DIVISION OF YOUTH AND FAMILY SERVICES v. IN THE MATTER OF THE GUARDIANSHIP OF (2010)

Defendant B.C. is the biological mother of L.L.C.-P., a boy who is now three years old.   She appeals from the final judgment of guardianship entered by the Family Part terminating her parental rights to her son.   We affirm.

We gather the following facts from the record developed before the trial court.

I

Defendant has a chronic substance abuse problem.   Her first child, L.P., tested positive for illicit narcotics at the time of his birth in May 2003.   The Family Part terminated defendant's parental rights to L.P. by default as a result of her failure to respond to a guardianship complaint filed against her by the Division of Youth and Family Services (DYFS or Division).   L.P. was eventually adopted when his biological father N.P. voluntarily agreed to surrender his parental rights.   Defendant's and N.P.'s second child, L.C., is a little girl who is now four years old and was born addicted to methadone.   Defendant's and N.P.'s parental rights to L.C. were terminated in March 2008 after four days of trial.

L.L.C.-P. was born on September 20, 2007, fifteen weeks premature.   At the time of his birth he weighed just over one pound, tested positive for cocaine, and was immediately placed in the neonatal intensive care unit.   Defendant also tested positive for cocaine at the time of delivery.

Defendant tested positive for cocaine approximately three months before the birth of L.L.C.-P. She was admitted to the hospital seven days before L.L.C.-P. was born due to her “water breaking” but left the hospital against medical advice the day before L.L.C.-P. was born.   She tested positive for cocaine during this six-day period of hospitalization.

Based on the circumstances surrounding L.L.C.-P.'s birth, the staff at the hospital referred the matter to DYFS. A Division caseworker visited the hospital the day after L.L.C.-P.'s birth and confirmed from the attending nurse that the child was being treated for jaundice and exhibited the symptoms of cocaine withdrawal.   L.L.C.-P. was delivered by Caesarian section and was at risk of having three of his toes amputated because of poor circulation to his feet.   Although the Division did not take legal action at that time to obtain custody of the child, a Division caseworker requested the hospital staff not to discharge L.L.C.-P. without first notifying DYFS.

The Division caseworker met with defendant at the hospital to discuss the situation with her son.   Defendant was not receptive to the Division's involvement and denied having used cocaine during her pregnancy or near the time of L.L.C.-P.'s birth.   Defendant refused to disclose her home address or identify who was L.L.C.-P.'s biological father.   The caseworker advised defendant that if she did not voluntarily enroll in a substance abuse rehabilitation program, the Division would take custody of L.L.C.-P. The child remained hospitalized for five months with severe asthma.   He was on a ventilator for approximately one month, received multiple blood transfusions to treat his anemia, and suffered from an array of other medical problems.

On October 9, 2007, defendant called a Division caseworker to discuss the situation with her son.   Defendant agreed to meet with the caseworker to discuss what services DYFS was willing to provide her in order to retain custody of her son.   On October 18, 2007, defendant and the Division caseworker met at defendant's apartment.   Defendant told the caseworker that she had completed parenting classes at Family Services and was being assessed for further services at Substance Abuse Initiative.   The caseworker did not find any obvious safety concerns in defendant's apartment.

On February 11, 2008, DYFS received a report from the hospital's social worker that defendant had been visiting the child on a regular basis.   The staff indicated that defendant provided adequate care to her infant son and appeared to take her parental responsibilities seriously.   In disregard of the caseworker's specific request, the hospital discharged L.L.C.-P. to defendant's custody on February 14, 2008, without first notifying the Division.   As a result of a routine status call, the caseworker discovered that same day that L.L.C.-P. had been discharged to defendant's custody.

The caseworker immediately contacted defendant who agreed to meet with the caseworker at her apartment the following day.   At this point in time, the Division's primary concern was to ensure that defendant had all of the food and medicine necessary to care for the child.   The caseworker was able to determine during this visit that defendant had the necessary items to properly care for L.L.C.-P.

On February 19, 2008, the caseworker became aware of defendant's and the biological father's substance abuse history.   Based on this information, the Division removed L.L.C.-P. from defendant's custody.   L.L.C.-P.'s biological father was the only person at home at the time DYFS took this action.

The Division caseworker who picked up L.L.C.-P. immediately took him to Virtua Hospital upon noticing that he was gasping for air.   The child was thereafter transported by ambulance to Cooper Hospital for further treatment.   Because the caseworker had not taken all of L.L.C.-P.'s medications, defendant notified the New Jersey Child Abuse hotline and a police officer was dispatched to pick up the medication.   L.L.C.-P. suffered from severe asthma at the time.   He was placed in a Special Home Service Provider (SHPS), a foster home dedicated to the care of medically fragile children.   The SHPS foster family was responsible for administering Pulmicort to L.L.C.-P. on a daily basis.¹  The Family Part granted DYFS custody of L.L.C.-P. and directed that both parents be evaluated for substance abuse treatment.   Defendant was referred for treatment at Cooper House, but she did not complete the program.

Defendant began participating in the WorkFirst program on February 11, 2008, a few days before L.L.C.-P. was removed from her care by DYFS. On or about April 4, 2008, she was accepted into the Family First Intensive Outpatient Program.   A report dated April 14, 2008, indicated that defendant did not attend the first four sessions of the program and was thirty minutes late for the sixth session.   Defendant had a negative urine screen on April 10, 2008, but her urine screen from April 21, 2008, was found to be “abnormally dilute[d].”  A report from April 25, 2008, indicated that all aspects of defendant's participation were rated unsatisfactory.

Defendant had regular supervised visits with L.L.C.-P. from June 2, 2008 to February 9, 2009.   These visits were originally held at the maternal grandmother's home, but the visitation site was changed to the DYFS office by court order after defendant and the biological father N.P. were found to be noncompliant with Division-sponsored services.   Of the total twenty-three documented visits, defendant was late nine times and failed to appear four times.   Visitation monitors described defendant as affectionate with L.L.C.-P. and attentive to his needs when the child was ill;  she also fed and changed the child's diapers as needed.   However, defendant was not sensitive to the child's specialized dietary needs.

On September 8, 2008, the Family Part found acceptable the Division's permanency plan calling for termination of parental rights followed by adoption.   This initial assessment was tempered by the results of bonding evaluations ordered by DYFS which found that as of February 2009, the child had an emotional bond to defendant.   As a result, the Division withdrew without prejudice the guardianship complaint.   Although the focus now shifted toward family reunification, the court directed that the Division continue to have physical and legal custody of the child.   Acting on the Division's application, the court also reactivated the Title 9 abuse and neglect action that had been dismissed when the Title 30 guardianship action was filed.

On March 10, 2009, DYFS transported defendant to a site where she was required to submit to drug testing.   Once at the test site, defendant refused to submit to a hair follicle test.   Although she provided a urine sample, the specimen she submitted was of a temperature beyond the normal range and thus found to be unsuitable for testing.   Defendant submitted two urine samples in May and June 2009 that tested positive for illicit drugs;  the remaining samples tested were negative.   Defendant's supervised contacts with L.L.C.-P. during this time period were, for the most part, consistent and positive.   She did not, however, participate in court-ordered services provided by DYFS.

As an alternative to a termination of parental rights plan, defendant provided the Division with the names of certain relatives to L.L.C.-P. who could be candidates for kinship legal guardianship.   From this list, DYFS ruled out one woman due to her criminal history, and a second woman did not return the caseworker's telephone calls.   Although no formal “rule out” letter was sent to the maternal grandmother, the Division caseworker testified that she was ruled out due to her criminal history.   A few days before the trial in this case was scheduled to begin, defendant suggested her sister who resides in Georgia as a possible kinship guardian.   Due to the untimely nature of the request, the Division did not contact this woman or make any efforts to ascertain her availability.

Despite the Division's willingness to keep the door to reunification ajar, defendant and N.P. did not take any of the steps necessary to keep this option viable.   Both defendant and N.P. failed to participate in court-ordered substance abuse counseling and continued to test positive for illicit drugs.   Left with no other option, the court again approved the Division's plans to terminate parental rights followed by adoption.

On November 6, 2009, the court ordered defendant and N.P. to attend bonding and psychological evaluations with Dr. Linda Jeffrey.   Both parents failed to appear as directed.   Despite subsequent efforts to secure their attendance at these court-ordered appointments, neither defendant nor N.P. ever submitted to bonding or psychological evaluations.

II

The Division's case at trial consisted of the testimony of three caseworkers, two of whom had direct interactions with defendant.   The third caseworker testified primarily about defendant's conduct with respect to her other children.   The court admitted this testimony for the limited purpose of establishing defendant's long term substance abuse problem and overall dysfunctional behavior.

Because defendant had failed to submit to the court-ordered bonding evaluation and psychological testing, the court permitted DYFS to present psychological evaluations authored by Dr. Chester Sigafoos in 2005 and 2008.   In so doing, the court overruled defendant's hearsay objection, finding that this evidence was admissible under Rule 5:12-4 as a means of counterbalancing the prejudice caused by defendant's failure to attend the court-ordered evaluations.

In his 2005 report, Dr. Sigafoos documented defendant's chronic drug abuse and history of dependency which began when defendant first used heroin at age twenty-two.   The situation worsened when she began using cocaine at age twenty-six.   According to Dr. Sigafoos, defendant “suffers from narcissism, egocentrism, and ․ experience[s] an emotional disturbance.   She is emotionally unresponsive.   She has problems with control of impulses, and suffers from addictive disorder․”  He found that her prognosis was poor, and she was at a “high risk of relapse.”   In Dr. Sigafoos' opinion, the “rooted character of [defendant's] psychopathological disorders will be difficult to treat.”

The 2008 report echoed many of the concerns noted three years earlier.   In this report Dr. Sigafoos found defendant had difficulty relating to others and lacked empathy.   These two characteristics are significant because they interfere with effective parenting.   The report further indicated that defendant “is overly self-centered, she has a personality disorder that is characterized with a preoccupation with orderliness, perfectionism, and mental and interpersonal control, all at the expense of flexibility, that the abuse of substance becomes a mechanism through which she experiences pleasure․”  Dr. Sigafoos concluded the 2008 report by emphasizing that, in his opinion, defendant cannot “effectively parent her children and ensure their safety.”   Her commitment to treatment is “inconsistent,” and “she is in a serious state of denial of her problems, and her prognosis is poor.”

The Division did not present any evidence concerning the bond, if any, between L.L.C.-P. and his pre-adoptive parents.   Although the “adoption” caseworker testified that there was one foster family that had expressed an interest in adopting L.L.C.-P. given his particular medical needs, the Division had not arranged an actual meeting with the family by the time this case went to trial.

Defendant did not testify at trial nor call any witnesses in her own defense.

Against this evidence, Judge Fratto found that the Division had met its burden of proving, by clear and convincing evidence, the four prongs codified in N.J.S.A. 30:4C-15.1.

III

Defendant now argues on appeal that DYFS did not present sufficient credible evidence to support the trial court's findings warranting the termination of her parental rights and that the court erred in admitting the hearsay reports authored by Dr. Sigafoos.

We are satisfied that the court's judgment of guardianship met all of the legal requirements and tracked the statutory requirements of N.J.S.A. 30:4C-15.1. In re Guardianship of K.H.O., 161 N.J. 337 (1999);  In re Guardianship of D.M.H., 161 N.J. 365 (1999).   The court's factual findings are also well supported by the record.  Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009).

DYFS proved, by clear and convincing evidence, that defendant is unable to parent this child.   Her continued parental association with L.L.C.-P. will expose him to significant harm.   Defendant's inability or unwillingness to address her chronic and severe substance abuse problem has been clearly established.   Her addiction caused direct, permanent harm to her son and left her incapable of parenting him.   The record also shows that DYFS made repeated efforts to provide defendant with services to address her addiction and improve her parenting skills, to no avail.

We reject defendant's hearsay argument.   Defendant deliberately failed to attend court-ordered evaluations that would have provided the court with a current insight into her psychological needs.   More importantly, by failing to submit to a bonding evaluation defendant deprived the court of valuable evidence concerning the degree of emotional attachment between her and her son, as well as her ability to care for this medically fragile child.   We thus affirm substantially for the reasons expressed by Judge Fratto in his oral opinion delivered from the bench on February 4, 2010.

Affirmed.

FOOTNOTES

FN1. Pulmicort is an asthma medication administered through a nebulizer..  FN1. Pulmicort is an asthma medication administered through a nebulizer.

PER CURIAM