On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-81-04.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fuentes and Baxter.
F.H. (Father), and A.H. (Mother), separately appeal the trial court's decision to terminate their parental rights to their three children: "Kathy", born April 7, 1999, "Harry", born July 3, 2001, and "James", born June 15, 2002.*fn1 By so doing, the court granted guardianship of the children to the Division of Youth and Family Services (DYFS or Division). These appeals have been consolidated for the purpose of addressing the issues raised therein.
Both parents argue that the Division did not prove each of the four statutory elements of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. F.H. also argues that the Division failed to appropriately consider: (1) placing the children with his brother as an alternative to termination; (2) that the termination of Muslim parents' parental rights, followed by a Christian adoption, undermines the children's cultural and religious heritage; and (3) that the trial court failed to make sufficient findings of fact and conclusions of law under R. 1:7-4(a).
We granted defendants' motion for a limited remand to permit: (1) the presentation of additional evidence dealing with the availability of kinship placement as an alternative to termination; and (2) to permit the parents to present expert testimony with respect to Harry's alleged medical disorder. The record before us now contains the evidence presented to the trial court after remand, as well as the court's findings and determinations after considering this evidence.
After carefully reviewing the entire record, we are satisfied that the Division presented sufficient evidence that the middle child, Harry, suffered serious injuries while in his parents' custody, thus creating legal grounds to warrant the termination of parental rights with respect to this child. Although the trial court's factual findings did not adequately articulate how the abuse suffered by this child was causally linked to the acts or omissions of his parents, there is nevertheless strong circumstantial evidence supporting such a finding.
The record also shows that the evidence alleging abuse of the eldest child, Kathy, is, in and of itself, legally insufficient to warrant the termination of parental rights with respect to this child. Finally, with respect to the youngest child, James, DYFS failed to present any direct evidence that he was abused or neglected by his parents, or that, based on the abuse suffered by his siblings, there is an unacceptably high risk that he would be abused or neglected if he is returned to his parents' custody. The two memoranda of opinion issued by the trial court here did not address this issue.
Under these circumstances, we affirm the Judgment of Guardianship entered by the court with respect to Harry. We vacate the Judgment of Guardianship with respect to Kathy and James. We further remand these two consolidated cases for the Family Part to conduct a permanency hearing and determine the individualized services this family needs to insure the safety and well-being of these two children. To achieve this goal, DYFS must design a web of services that includes: (1) close monitoring and supervision, to fulfill its paramount responsibility of protecting these children from harm; and (2) emotional and therapeutic support, to provide these parents with the skills needed to successfully parent, and to insure the physical and emotional well-being of the children.
If these measures prove to be ineffectual, DYFS may re-file its Guardianship Petition as to Kathy and James. At this juncture, the trial court must find sufficient evidence causally linking any incidents of abuse or neglect to specific acts or omissions committed by a particular parent. In order to sustain a judgment terminating a defendant's parental rights with respect to children who have not been the direct recipient of abuse or neglect, the trial court must find, by clear and convincing evidence, that DYFS has demonstrated that the parent's failure to adequately respond to and/or prevent the abuse endured by one child, exposes any similarly situated sibling to a high probability of being abused or neglected.
With these legal principles as our guide, we will now address the facts developed from the evidence presented at trial.
A. First Referral of Abuse
According to Supervisor Dolores Cunneely, the family's first encounter with DYFS occurred on December 22, 2001. On this date, DYFS received a referral from Englewood Hospital alleging acts of neglect involving the middle child, Harry. Hospital records show that F.H. brought five-and-a-half month old Harry to the emergency room to be treated for a number of bruises. X-rays revealed a fractured elbow and an old fractured tibia.
F.H. testified that he told the hospital staff that, three days earlier, Harry's two-and-a-half-year-old sister Kathy had tried to pull the boy out of an indoor infant swing. The swing fell on top of Kathy, with Harry still strapped in the chair.
F.H. did not recall whether Harry's arm was behind him or in front of him when he picked him up. Hospital records corroborated F.H's testimony in this respect. A.H. testified consistent with her husband's account of the event, adding only that Kathy had pulled Harry's arm because she was jealous and wanted to get in the swing. A.H did not have any knowledge about any other fractures. In fact, according to A.H., Harry had not been involved in any other falls prior to this incident.
At this time, a hospital staff physician advised DYFS that Harry may be suffering from a medical condition known as Poland Sequence.*fn2 If in fact Harry was afflicted with this physical disorder, he may not have been producing enough calcium for his bones. Harry's pediatrician confirmed this preliminary diagnosis. In this light, DYFS listed the case as "unsubstantiated for abuse," and Harry was discharged to his home a few days later.
B. Second Referral of Abuse
Approximately five weeks later, DYFS received a second referral from Hackensack University Medical Center. This time, Harry was brought into the hospital with facial bruising. A skeletal survey showed multiple fractures in different stages of healing. F.H. testified that he took Harry to the hospital because the child: (1) was not eating and appeared dehydrated; (2) had bruises on his face; and (3) had a cut under his lip. F.H. did not know that Harry had suffered multiple fractures of both arms and one leg. He was also unaware of what caused the facial bruises or the lip cut. With respect to this incident, A.H. testified that she did not know what caused the fractures. She had not detected any physical change in Harry between the two hospitalizations. It was her practice to always call the doctor when she saw something "different with him."
According to DYFS Supervisor Cunneely, the parents had no explanation for the fractures. Despite this disturbing absence of any plausible explanation, the Division again concluded that the allegations of abuse were unsubstantiated, because the child's medical condition was still under review. On January 30, 2002, Dr. Cheryl Kurer indicated that Harry had normal heart function. A report from the geneticist Dr. Robert Wallerstein issued the following day, concluded there was no evidence of "osteoporosis or Wormian bones that would offer an explanation for the fractures." Harry was discharged from the hospital and returned to his parents' custody on February 8, 2002.
Both parents declined the Division's offer to provide homemaker services, stating that the maternal grandmother was coming from Egypt to assist A.H. with the care of the children. Despite this initial disinterest from the parents, DYFS assisted the family in obtaining Medicaid benefits, and continued to monitor the situation until May 2002, when the grandmother arrived. In the absence of medical information concretely establishing the occurrence of an incident of abuse or neglect, DYFS closed the case.
In January 2002, F.H. worked five days per week in two family-owned businesses. His work schedule consisted of seventeen-hour shifts on two of the five days, and ten-hour shifts on the other three days. In July 2002, F.H. was incarcerated for federal tax evasion, leaving A.H. as the primary caretaker for the three children. A.H. did not work outside the home.
C. Third Referral of Abuse
The Division received a third referral, from the Palisades General Hospital, on December 4, 2002.*fn3 This time Harry was diagnosed with a severe hip fracture. A.H. brought him to the hospital. She explained that around eleven o'clock that evening the boiler providing heat for the apartment had stopped working. The electric heaters she used had short-circuited the house's electrical system, and all of the children had gone to one room to cluster around the portable heaters. As the only adult present, A.H. said she was scared and confused.
At one point, she went to the basement to check on the power. When she returned "maybe eight minutes" later, one-anda-half-year-old Harry was crying. He had fallen approximately two feet from the bed to the carpeted floor. When she asked Kathy what had happened, the child explained that she had been jumping on the bed and either fell on Harry, or the boy fell off the bed onto the floor. At this stage of his development, Harry could crawl and pull himself up, but could not yet walk on his own.
When A.H. checked Harry, she "saw some bruises, some redness around his legs," but did not detect any other injuries, including fractures. In fact, she thought he was fine because he had stopped crying and went to sleep. As she prepared to bathe Harry the next morning, however, A.H. noticed he was standing "crooked," and immediately called for an ambulance.
On a "consultation sheet" dated December 5, 2002, Dr. Wallerstein noted that the Poland Sequence diagnosis "does NOT explain fractures or increased tendency to bone fragility" but the "assessment was incomplete" because there was no information about "developmental/neuromotor status." This consultation sheet also reflects that Dr. Wallerstein was "suspicious of an underlying genetic etiology but [he] had no documentation of a specific syndrome." A skeletal survey dated December 5, 2002, indicated that Harry's bones were "normally mineralized."
On December 11, 2002, the Division obtained legal and physical custody of the three children, and placed them in a foster home on the following day. The Division requested two consultations on the case -- one from a DYFS nurse and another from the Audrey Hepburn Children's House. DYFS also referred A.H. for a psychological evaluation. By this time, F.H. was incarcerated, and the maternal grandmother was not yet residing with A.H.
In a March 31, 2003, report entitled "therapy referral," the Division, for the first time, noted that neglect (with respect to Harry) had been substantiated, because the parents had not provided a reasonable explanation for the multiple fractures suffered by the child between December 22, 2001, and December 4, 2002. In June 2003, the Division received additional genetics test results from Dr. Wallerstein, who concluded that "there was no specific [medical] explanation for bone fragility." In this same report, Dr. Wallerstein noted that the skin biopsy test that had "normal" results was "85% accurate in ruling out osteogenesis imperfecta."*fn4
As the mother of the children and the only adult available at the time of the removal, DYFS offered A.H. weekly supervised visitation -- first from the Children's House and then from the International Institute. She was provided with twelve therapy sessions with Dr. Lafontant from the International Institute, and with parent education classes with the Red Cross. The record does not reflect whether A.H. requested that DYFS provide her and the children culturally sensitive services. The record is equally silent on whether, if requested, DYFS was able to provide culturally sensitive services such as therapists or psychologists knowledgeable about Muslim childrearing practices.
DYFS initially classified Harry as "medically fragile," placing him in a second foster home that specialized in medically fragile children. Harry remained injury-free from December 12, 2002, when he was placed in the first foster home, to March 26, 2003, when he was placed in the specialized foster home. In September 2003, Harry was again moved to a different specialized foster home when the earlier foster family relocated out of state.
Although he continued to have developmental delays, Harry did not have any behavioral problems in foster care. He did have an unusual reaction to bathing. The first foster mother reported to DYFS that Harry "screamed bloody murder if he had to get in the bathtub." A subsequent foster mother also reported that Harry hated to take a bath and "screams when taken into the bathroom." By contrast, A.H. denied having had any problems with Harry in the bathtub.
In June 2003, Kathy, who Cunneely described as a "very active" and "sometimes aggressive" child, was referred for assessment by the Institute for Child Development to the Therapeutic Learning Center, which works with children that have behavioral problems. After four therapy sessions with A.H., the International Institute issued a letter dated July 2, 2003, indicating that she did not pose a risk to the children. Because this letter did not address or explain Harry's injuries, DYFS requested a second risk-assessment report. By letter dated August 11, 2003, the International Institute reiterated its earlier assessment, this time describing the topics covered in therapy.
Based in part on this evidence, the Division began developing a reunification plan for A.H. Although during that time F.H. was still incarcerated, he participated in court proceedings by phone. A.H. continued therapy for the twelve sessions offered by DYFS.
II. Evidence Involving Kathy and James
Kathy and James were returned to A.H.'s custody and care on September 22, 2003. By this time, the family was in financial crisis. On or about October 8, 2003, A.H. notified DYFS that she had moved to an apartment across the street from her previous residence, after losing her home to foreclosure. The new apartment was sparsely furnished; most of the furniture was in storage. The Division reviewed and approved this living arrangement, and Harry began to have weekend visitation with mother and siblings.
The Division's plan to reunite Harry with his family proved to be short lived. On December 31, 2003, DYFS received a referral from the therapeutic learning center reporting that Kathy had injuries or small bruises. According to Kathy, her maternal grandmother had pinched her about a week or two weeks earlier; and her mother had also hit her.
DYFS caseworker Melena Anderson went to the school to investigate. Anderson noticed a bloody scratch on Kathy's ear, a scratch on her left hand, and a small bruise on her upper arm. Kathy told Anderson that her grandmother had pinched her, scratched her and punched her arm because she had not listened to her mother. The school advised Anderson that that they had made two other referrals to DYFS earlier that month that had not been addressed. Thus, there were three incident reports in total.
The first incident allegedly occurred on December 12, 2003. Kathy told school staff that her grandmother had squeezed her inner thighs. The staff also noticed a bruise on the child's upper lip. The second incident was noted a week later, on December 19, 2003. On this date, Kathy reported that her mother was mad at her, spanked her, pinched her, and forced her to stand against a wall with her hands held up above her head. The school nurse noticed a small bruise. Finally, on December 31, 2003, Kathy reported that her grandmother had pinched and punched her. No physical evidence was noticed to corroborate this allegation.
According to caseworker Anderson, both Kathy and James were "dressed inappropriately, in terms of the number of layers of clothes." Although it was December and the school was "comfortable," Kathy was wearing four shirts, one sweater and two pairs of pants. She said that her mother would get mad if she took the layers off, and was not allowed to do so even if she was uncomfortable.
Anderson visited A.H. and the maternal grandmother that same day. The interview was conducted in English. A.H. translated for her mother. Although Anderson spoke to A.H. directly, without the assistance of an interpreter, she "never got the sense [they] were misunderstanding each other." A.H. reported that Kathy had not had any marks or bruises when she left the house. A.H. called Kathy a liar "many times," and denied that she or her mother had hurt Kathy in any way.
As part of her Referral Response Report dated January 2, 2004, Anderson noted that "[t]he Director of the school, Cindy Hick, indicated that [Kathy] has made stories up before. [A.H.] had called the school recently stating that [Kathy] reported that a teacher at the school had hit and pushed [Kathy] but that this did not happen as corroborated by the school staff."
Conversely, A.H. testified that from the start of their conversation, Anderson's tone with her was stern and accusatorial. A.H. testified that she got Kathy ready for school that morning while her mother slept. Kathy was not bleeding when she left the house, and "had no problems whatsoever" when she took her to the bus that morning. Kathy had come home from school with bruises on prior occasions, and had reported that other kids on the bus would hit her and take her food. A.H. testified that she had called the school and even spoke to the bus driver, without results.
Kathy came home from school while Anderson was talking to A.H. According to Anderson, the child appeared "very timid and nervous," and kept looking fearfully at her grandmother until Anderson asked the grandmother to leave the room. At Anderson's request, Kathy told A.H. about the marks, and about what her grandmother had done. A.H.'s response was both guarded and skeptical. She twice asked Kathy whether she was sure that it was not done by another child at school, to which Kathy responded: "No."
At trial, A.H. admitted that Kathy had told her that the grandmother had caused the scratches and bruises. She denied calling Kathy a liar, however, claiming that she had simply characterized the "conversation" as a lie. Because she believed her daughter, A.H. asked her mother to leave in July 2004.
During the interview, A.H. told Anderson that another caseworker and case aide had inappropriately touched Kathy between her legs. Although the incident had allegedly occurred two weeks earlier, A.H. had not reported it because she did not think anyone would believe her. She also wanted to wait for her husband to come home. In response, DYFS supervisor Cunneely testified that she did not have direct knowledge of the resolution of the allegations, but understood that the charges were not substantiated. Neither parent addressed those allegations during their testimony.
As part of the investigation, Anderson spoke privately with Kathy about the molestation allegations. Using a doll, Anderson asked Kathy whether anyone had ever touched her in the breast or "crotch area." Kathy pointed to her inner thighs, and said her grandmother had touched her there. In response, DYFS decided not to permit any contact between Kathy and the grandmother.
Not fully satisfied with this arrangement, Anderson unsuccessfully attempted to get a homemaker to start immediately. Without the presence of a third-party, DYFS decided to remove all of the children from their home. Understandably, A.H. became very upset and continued to call Kathy a liar. She spoke to Kathy in Arabic, causing the child to tell Anderson "something" about the prior caseworker. A.H. continued to talk to Kathy in Arabic until Anderson asked her to stop.
Once the children were in the car, Anderson asked Kathy if the caseworker had ever touched her. Kathy responded by pointing to her chest and the inside of her thighs. Anderson asked if he ever touched her under her clothes or hurt her. Kathy said: "No." In fact, Kathy said that the caseworker had been nice to her. When asked where the aide had touched her, Kathy pointed to the top of her head.
By way of a potentially innocuous explanation, Anderson testified that the car seats used to transport Kathy had a strap across the chest, and a strap between the legs. This may account for the alleged improper touching. DYFS eventually concluded that no improper touching involving its employees had occurred. Kathy and James were thus removed from their mother's care and placed in a foster home together.
After a permanency hearing pursuant to N.J.S.A. 9:6-8.54b(2), the case was transferred to the Adoption Resource Center (ARC) on March 19, 2004, with the goal of terminating defendant's parental rights. When asked why the Division changed its goal from reunification to termination of parental rights, Supervisor Cunneely explained:
After the second removal of the two children and [Harry] not having been reunified the case was assessed at that point in time, given the history in combination with everything else, and the second removal and still no -- no taking of responsibility or explanation for the things, the Division presented that plan in the permanency hearing which was accepted.
By that time, F.H. was living in a halfway house in Newark as part of a work-release program. He had not had any contacts with the children since his incarceration.
III. Services Provided By DYFS
On August 26, 2004, DYFS adoption worker Danielle Piotrowsky was assigned to be the family's caseworker in the ARC. She continued in that capacity up until the time of the trial. At the time the case was transferred to the ARC, A.H. was attending parenting classes. A.H. participated in counseling, had supervised visitation with the children, and was subjected to bonding and psychological evaluations. Piotrowsky testified that A.H. had attended all the parenting classes and counseling sessions as requested by the Division. Despite her cooperation, A.H.'s therapist was nevertheless concerned about her refusal to discuss the maternal grandmother. She also did not take responsibility for Harry's injuries and apparent abuse.
The record shows that the supervised visitation program was changed several times in response to a series of events mostly involving F.H. First, there was a "verbal altercation" between F.H. and the foster mother. As a result, the foster mother felt threatened and did not want to transport Harry to the visits. Second, F.H. became "irate" and "was disrespectful" to DYFS representatives when Harry was on vacation with his foster mother, and unable to attend one of the visits. The DYFS driver also objected to transporting F.H., claiming that he improperly ...