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New Jersey Division of Youth and Family Services v. M.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 10, 2007

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.W., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF R.W., F.W. AND T.H., MINORS.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.H., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF T.H., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-37-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 25, 2007

Before Judges Collester, Sabatino and Lyons.

These are consolidated appeals from a judgment of guardianship entered on June 8, 2006 by Judge Glenn A. Grant of the Essex County Family Part, terminating the parental rights of defendant M.W. to her three sons, twins R.W. and F.W., born on June 13, 1995, and T.H., Jr., born August 28, 1998, and from the termination of parental rights of T.H., Sr., natural father of T.H., Jr. M.W. named defendant's M.J. and G.C. as possible biological fathers to R.W. and F.W., but their whereabouts are unknown. Following the State's proof of diligent inquiry to ascertain their location under R. 5:12-2(b), default was entered against these defendant's on January 19, 2006. Following a trial held on May 22, 23, and 24, 2006, and on June 8, 2006, Judge Grant terminated the parental rights of both M.W. and T.H. and on June 15, 2006, he issued a comprehensive eighty-two page written opinion setting forth in detail his findings of fact and conclusions of law.

The facts of this case would shock the cynical and wound the most hardened of hearts. It outraged the citizenry and shook the foundation of the State child support system resulting in an organizational restructuring of the Division of Youth and Family Services ("the Division").

On the morning of January 4, 2003, the Newark Police Department received a 9-1-1 call reporting that two beaten and starving children were found locked in the basement of an apartment building at 188 Parker Street. When police arrived, they met Shawn Slappy, who made the call. He identified himself as the boyfriend of Sherry Murphy who lived in the building.

Slappy said he moved in with Murphy about two weeks before and was unaware of the existence of the children until he entered the basement that morning to look for his boots. When he saw something moving, he investigated and was shocked to find two boys locked in a room with a bed but no sink or toilet. He brought the children upstairs and called 9-1-1. He told police that Sherry Murphy never told him about these boys. He said she left early that morning, and he had no idea when she would return. They were in deplorable condition. Their clothing was filthy with urine and feces. Their hair was matted. Each showed old and new bruises and burn marks indicating they were burned and abused.

The boys were taken by EMT to University Hospital for examination and treatment and the Division was notified. Sandra Osborne responded for the Division and arrived at the hospital at about 11:30 a.m. She was told the boys appeared to be three or four years old. Ms. Osborne's report then reads:

At this time, there was very little information about the boys. Both kids were in deplorable condition. Clothing was filthy and smelled of urine, hair matted, there were old and new bruises as well as burn marks on the children. [T.H., Jr.], age 4, appeared to be extremely weak and needed assistance standing. He was not able to verbalize at all. However he understands what is being said to him. [He] has multiple bruises over his entire body and appears to have been burned over the buttocks, arms, legs, face and stomach. He is very thin and frail for his age. [R.W.], age 7, was able to provide his name and also his brother's same. [R.W.] was also filthy with old burns and marks on back and neck.

His skin is dry and scaly, clothes were wet with the smell of urine. He was very weak and hungry. [R.W.] gave his age as 6 years old, but did not know his brother[']s age.

Both boys appear to be underdeveloped for [their] ages. It is not known how long the children were in the basement, however, it appears that they have been locked up for 3 to 4 weeks. [R.W.] was able to tell me that Sherry put him and his brother in the basement. He stated that she only fed them sometime[s] not all the time. I asked [R.W.] how did he get the bump on his eye. He stated "Sherry punched me in my face for peeing on the floor." He also said that she put [T.H., Jr.] in hot water because he "do do" on the floor. I then asked [R.W.] did he know where is mother was and he responded, "Yes."

I said where is she?" He responded, "She's locked up." I asked [R.W.] how long has he and his brother been in the basement? He responded, "A long time." . . . [R.W.] did not want to answer any more questions at that time because he wanted to eat.

A hospital registration clerk searched their computer for past admittances and found the name of M.W. as the mother of the children. There was also a contact number for the children's aunt, R.G., in the Bronx. Ms. Osborne called, and R.G. told her that she spoke with M.W. the night before and asked about the children. She said M.W. was "vague anytime the conversation would come up about the children" but said that "Sherry was taking care of them until she could find an apartment." R.G. said that the children had previously been living with Sherry Murphy from March 2001 to July 2001 while M.W. was in jail for driving while suspended and causing an accident. R.G. said that M.W. also moved in with Sherry Murphy after she was released, but M.W. was thrown out after an argument in August. R.G. said that another of M.W.'s sons, ten-year-old F.D.W., also left the Murphy home at that time and was now in the care of R.G.'s son in New York. The remaining boys were left with Sherry Murphy

During the conversation, R.G. mentioned another boy named F.W., R.W.'s twin, and wanted to know his whereabouts. Ms. Osborne said only two children were found in the home. R.G. insisted that all three were living with Sherry Murphy. She gave Ms. Osborne a phone number to call M.W.

Before making the call, Ms. Osborne received information from Division records which confirmed that there was another boy named F.W. who was a twin to R.W. Ms. Osborne then called the phone number given by R.G. and reached P.W., M.W.'s sister, who said that M.W. had been living with her in Newark since she left Sherry Murphy's house in the summer of 2001. M.W. told P.W. that her three youngest sons were living in Rocky Mount, North Carolina with a cousin. P.W. said she felt something was wrong, but she did not question her sister further. She said M.W. had left that morning to visit F.D.W. in New York.

P.W. came to the hospital emergency room to see the children and met with Ms. Osborne and a Newark police detective. She became upset when she was told that F.W. was not found with the others and said she had no idea where he might be. She added that Sherry Murphy had five of her own children living in her home and that she worked at night as a go-go dancer. Ms. Osborne then interviewed R.W. about his twin brother. He said that F.W. lived in the basement with the other two brothers and that the last time he saw him was when "Joe" came and got him because "Sherry put him in hot water and he was screaming." "Joe" was later identified as a prior boyfriend of Sherry Murphy. At 7 p.m. a missing persons bulletin for F.W. was sent out by the Newark Police Department. Later that evening it was reported that M.W. had been struck by a car in the Bronx and was taken to Lincoln Hospital. The day ended with no information on either Sherry Murphy or the missing F.W.

At about 3 p.m. the following afternoon, January 5, 2003, Newark police returned to the basement at 188 Parker Street and found what they feared most -- the decaying body of seven-year-old F.W. in a box about fifteen feet away from where his brothers had been found. The Essex County Medical Examiner reported that the body had been so badly decomposed that there were no facial features, no facial tissue, no eyes, no nose, and no lips. The only means of identification was through DNA.

F.W. was pronounced dead at 3:35 p.m. The medical examiner said that he actually had been dead for at least a few weeks.

The gruesome discoveries of R.W. and T.H., Jr. in the basement and the dead body of F.W. spurred extensive coverage in newspapers and media outlets throughout New Jersey and the metropolitan area on the police hunt for Sherry Murphy. After the police received information on her location, Murphy was arrested and remanded to jail. On November 7, 2003, she was indicted for attempted murder, kidnapping of R.W. and T.H., Jr., and child endangerment of all three children. Her son, W.M., was charged with aggravated manslaughter of F.W., aggravated assault of F.W. and endangering the welfare of a child.

W.M. entered into a plea agreement and pled guilty to one count of reckless manslaughter on September 2, 2005. He was paroled on December 29, 2005. Sherry Murphy entered into a plea agreement to two counts of aggravated assault, two counts of criminal restraint, and two counts of endangering the welfare of a child. She admitted at her plea hearing that she put the dead body of F.W. in a hamper in her bedroom and, after three days, moved it into the basement. She also admitted confining R.W. and T.H., Jr. to an area in the basement without a toilet or other bathroom facilities, causing their severe malnutrition, causing a serious burn on the buttocks of four-year-old T.H., Jr., and not seeking medical treatment for him. Sherry Murphy was sentenced on November 2, 2005, to an aggregate term of twenty-five years, with sixteen years of parole ineligibility under the No Early Release Act. Her sentence was affirmed on appeal. Her projected eligibility date is August 13, 2016.

The physical and psychological damage to R.W. and T.H., Jr. was apparent when they were taken to University Hospital on the morning of January 4, 2003. The condition of both boys can only be described as pitiful. Four-year-old T.H., Jr. presented with hypopigmented patches on his skin resembling burns, scaling skin, osteopenia (generalized reduction of bone mass), significant dental decay, and a distended abdomen. Evidence of old burns on his feet and buttocks were consistent with second degree burns. Circumferential scarring around the ankles, wrists, and neck were consistent with his being bound with some type of restraints. He weighed approximately twenty-nine pounds and measured approximately three feet tall, both under the third percentile for a four-year-old. Burn scars were also present on his neck and chest wall. As a result of the burn scarring, T.H., Jr. had to wear a compression garment suit over his entire body for twenty-three to twenty-four hours a day for almost a year.

Seven-year-old R.W. was also extremely emaciated. He weighed only thirty-seven pounds and was only three and one-half feet tall, a height and weight below the third percentile for a child of his age. Physical examination disclosed multiple scars, old burns, lesions, scabbing, dried skin, a distended stomach, and severe dental decay. The subsequent finding of the physicians was that R.W. suffered from chronic protein calorie malnutrition and micronutrient deficiency. When the caseworker asked R.W. about a bump on his eye, he said that Sherry punched him "for peeing on the floor." He said that she put his brother in hot water when he did "do do" on the floor. When he was asked where his mother was, he responded, "She's locked up." He said that he and his brother had been in the basement "a long time." Over the course of his two-month hospitalization, R.W. was observed to engage in certain sexual actions and make sexual innuendoes, which indicated exposure to sexual activity.

M.W. was interviewed at Lincoln Hospital by a Division caseworker on January 10, 2003 and served with the complaint and order to show cause filed by the Division to obtain care and custody of R.W. and T.H., Jr. The caseworker observed that M.W. appeared neither remorseful or sad. She said that she had not seen her children since August 2001 when she left Sherry Murphy's apartment. She claimed that she made several failed attempts to get R.W., F.W., and T.H., Jr. back. She blamed Sherry Murphy for causing them harm, but did not express anger toward Murphy. After M.W. was discharged from the hospital, she was arrested in Newark for violating the terms and conditions of the probation imposed upon her resulting from a 1996 child endangerment conviction. She was subsequently convicted of the violation and sentenced to a four-year prison term. She maxed out on her sentence and was released in April 2005.

After two months in University Hospital R.W. and T.H., Jr. were discharged on March 7, 2003, and placed by the Division at Nicholas House, a specialized therapeutic group home for children in Newark. To meet the highly specialized emotional, psychological, social and physical needs of the two boys, they were seen on a regular basis by a team consisting of child therapist Lorna Zellerkrut; psychologist Dr. Karen Wells; social worker and clinical supervisor Stan Evanowski; psychiatrist Dr. Deanne McCabe; behavioral therapist Charles C. Cooper III; psychiatrist Dr. Obleata; and pediatric consultant Dr. Gajarawala. R.W. and T.H., Jr. were reluctant to talk about the abuse they suffered because they lacked trust in anyone. What they did disclose came out in bits and pieces about the evil they endured at Sherry Murphy's home and in the basement. Deprived of food, all three boys were forced to eat their own or each others vomit and drink each others' urine. Sherry Murphy burned them in hot water, often dragging them to the sink or bathtub or oven. Both boys expressed extreme fear even at the sight of a bathtub. R.W. said that their mother had also burned them and that Sherry Murphy learned to burn them from M.W. They were also tied or shackled by their ankles and wrists and possibly their necks. Following this hearing the Division investigated placement of R.W. and T.H., Jr. with relatives. None were deemed suitable by either the treatment team or the Division.

It soon came to public attention that the Division had been involved with M.W. and her children for an extensive period of time. M.W. gave birth to five children. The oldest, K.W., was born on January 9, 1989, when M.W. was sixteen. M.W.'s parental rights were terminated when K.W. was six years old. She was subsequently adopted. The next oldest, F.D.W., was born on May 6, 1991, and was living in the Murphy home with his brothers until August 2001, when Sherry Murphy threw M.W. out. F.D.W. also left and went to live with R.G. in New York and then with her son, C.J., who enrolled F.D.W. in school and sought to adopt him. At present, F.D.W. is in the legal custody of Children's Services of New York. He has resided at Bronx Psychiatric Hospital and has been under the supervision of the Association of Children's Society since 2003. M.W. is not allowed contact with F.D.W. and an action has been commenced to terminate M.W.'s parental rights in the New York Family Court. While F.D.W. is not a subject or party to this action, an amicus curiae was filed on his behalf in support of termination of the parental rights of M.W. to R.W., T.H., Jr. and F.W.

The Division's involvement with M.W.'s youngest sons began when the Division received an anonymous call reporting that five-year-old F.D.W. and the eleven-month-old twins, R.W. and F.W., were left alone in their apartment without food for several hours and that the mother often left the children alone. When confronted, M.W. admitted to leaving the children for twenty to thirty minutes while she visited someone in the building. The Division considered the allegations substantiated, and M.W. signed her first of many case plans agreeing to cooperate with DYFS and its services. She failed to cooperate or complete any of them.

The Division received another anonymous call on December 4, 1996, reporting drug trafficking in M.W.'s apartment. The caller also said M.W. continues to leave her children unattended, and they are consistently dirty and without clothing. The allegations were deemed to be unsubstantiated after a Division caseworker visited M.W.'s apartment. In February 1997, after M.W. failed to maintain contact with the Division and attempts to locate her were unsuccessful, a request was made to put a hold on her welfare benefits. On March 4, 1997, the Division received another referral that M.W.'s apartment was filthy, with garbage all over the floor, that F.D.W. is constantly begging for food, and that the children continue to be left unattended. A field visit to the home convinced the caseworker that the family was "stable," but the apartment was crowded and unclean. M.W. signed another case plan sometime around April 2, 1997, agreeing to cooperate with the Division's services. Without further proof of cooperation with the Division's services, the Division closed its case on April 7, 1997.

The decision to close the case of M.W. and her children by the Division is particularly puzzling because in 1996, as the Division was well aware, M.W. was accused of physically abusing a friend's children left in her care while their mother was in jail. On October 4, 1996, the children's physician called the Division when he noticed two to three month old bruises and burn marks on his three-year-old patient. It was later confirmed that the three children, ages seven, five, and three and a half, were beaten by M.W. with a belt, a belt buckle, a coat hanger, and burned with lit cigarettes. The matter was referred to the Essex County prosecutor. Subsequently, M.W. pled guilty to second degree child endangerment charges. She was sentenced on April 12, 2002, to a five year term of probation.

From October 1997 to December 2001 M.W. moved ten times without ever notifying the Division. There were occasions where M.W. was put into a "missing status" and requests were made for holds on her welfare benefits in order to locate her and the children. Also during this time period, the Division received five more referrals concerning M.W. and her children. M.W. signed five more case plans, agreeing to cooperate with the Division and its services. She did not.

The Division re-opened its case with regard to M.W. and her sons on October 28, 1997, after the Division received an anonymous referral that T.H., M.W.'s boyfriend and father of T.H., Jr., accidentally burned one of the twins with hot tea and no medical treatment was sought. A field visit to the home revealed that F.W. did indeed have a burn mark on his neck. The referral was found to be unsubstantiated. Because of the unclean state of the apartment, M.W. herself, and her children, the Division requested she sign another case plan.

On November 3, 1997, the Division referred M.W. to the Apostles' House Family Preservation Program, a parent aid program, in order for her to learn housekeeping, budgeting, and basic hygiene skills. Additionally, the Division registered M.W. for weekly parenting skills classes with Essex County College from November 20, 1997 to January 22, 1998. Transportation costs were provided. After M.W. failed to attend four of the seven parenting skills classes, she was notified that completion of the course was mandatory and that a hold on her welfare check would be requested if she did not comply. There is nothing in the record to indicate that M.W. ever completed the course.

On April 9, 1998, M.W. completed a drug/bio-psycho-social assessment at the request of the Division. She was found to have severe occupational, housing, and economic problems. She had no employment history, a total lack of marketable skills, and unstable living conditions. She relied solely on social services for support of herself and her children.

During a routine visit to M.W.'s home on May 27, 1998, the Division caseworker observed that F.D.W. had an untreated laceration on his palm. The child and M.W. were transported to the emergency room where the wound was cleaned and treated, but it could not be sutured because it was too old. Medical neglect was substantiated. M.W. once again signed a case plan, agreeing to cooperate with the Division and its services. On June 1, 1998, she was referred to the Ad House Newark New Start Project for a psychological evaluation, a drug screening, and pre-natal care, as she was four moths pregnant with T.H., Jr. at the time. But by June 16, 1998, the Division again lost contact with M.W. because she moved without notification. During this time she gave birth to T.H., Jr. on August 20, 1998.

After several requests for holds on her welfare benefits, M.W. finally contacted the Division on October 1, 1998 to advise that she was living in East Orange. M.W. was required to sign another case plan on October 7, 1998, and she agreed to cooperate with services and ensure that F.D.W. was enrolled in school. On October 28, 1998, the Division referred M.W. to the Apostles' House Family Preservation Program in order for her to learn housekeeping and hygiene skills.

In November of 1998, M.W. informed the Division caseworker that she did not want parent aid services and would not cooperate further. The Division again lost contact with M.W. and her four children until February 2, 1999, when a Division caseworker saw her on Broad Street in Newark. M.W. told the worker she had moved back to Newark. The caseworker visited the new address on February 22, 1999, and learned that M.W. and her children had left and were living with relatives of T.H. However, on March 8, 1999, the relatives informed the Division that M.W. left the apartment on March 1, 1999, and her whereabouts were unknown.

The family was again located in East Orange on April 27, 1999, after a referral from F.D.W.'s school reporting he had an inch long cut on his thumb and told the nurse that his mother cut him with a knife while she was trying to attack her boyfriend. The child also said that there was a gun under his bed at home. A worker visited the family that afternoon and questioned both M.W. and F.D.W. The mother explained that the cut was from a fall while the child was playing outside, and the child agreed. M.W. also lifted the mattresses in the house for the caseworker, and no gun was found. The allegations were unsubstantiated, but M.W. was requested to sign another case plan since the school also reported that F.D.W. was in the second grade but classified as a non-reader.

On July 28, 1999, the Division was contacted by H.H., the paternal grandmother of T.H., Jr., and was told that M.W. had abandoned T.H., Jr. H.H. said M.W. asked her to watch the child one afternoon and never came back. After three weeks had passed, H.H. called the Division since M.W. did not leave any food or clothing for the child. She added that her son, T.H., the father of the child, did not provide financial assistance. Abuse was substantiated by the Division.

The following day, F.D.W., R.W., and F.W. were placed in the care of their maternal aunt, R.G., while T.H., Jr. remained with H.H. M.W. continued have no contact with the Division. During a Division visit to H.H.'s home on August 19, 1999, H.H. told the caseworker that she had not seen or heard from M.W. in two months and that M.W. had no contact with T.H., Jr. She said that M.W. moves every two to three months due to non-payment of rent. H.H. added that T.H. did not financially support his son and had visited the boy only once.

Sometime between the end of November 1999 and June 2000, F.D.W., F.W., and R.W. were returned to M.W. She signed yet another case plan and agreed to a psychological evaluation, which took place on July 11, 2000. The examining psychologist, Dr. Daniel E. Williams, noted that M.W. possessed extremely inferior judgmental ability or "common sense" skills, and that she posed a risk to her children without Division services/training. He said that it would be appropriate to allow M.W. to regain the care of her children once she underwent parenting skills training. M.W. did not complete the required parenting skills courses.

The Division next was notified that in August 2000, the three older children were back in the care of R.G. However, by October 26, 2000, all four boys went back under the care of M.W. This was confirmed on January 17, 2001, when the Division received an anonymous referral that M.W. and her children were living in an apartment with broken windows and no heat. A caseworker visited the apartment building that day. The referral was found to be unsubstantiated. This was the last time anyone from the Division saw any of M.W.'s children until January 4, 2003.

For the remainder of 2001, the Division had no contact with M.W. On July 13, 2001, the children's maternal aunt, P.W., called the Division to report that F.D.W. was in her care, and R.W., F.W. and T.H., Jr. were with Sherry Murphy because M.W. was arrested for non-appearance on her child endangerment indictment. She remained in jail until August 23, 2001. A Division field visit to P.W.'s apartment on October 3, 2001 revealed that F.D.W. was no longer residing there but with R.G. in New York. P.W. also reported that M.W. and her three other children were all living with Sherry Murphy. P.W. also told the caseworker that M.W. physically abused her children by burning them with lit cigarettes. The caseworker visited Sherry Murphy's home the same day. She was told that M.W. and her children did not live there and their whereabouts were unknown.

Another field visit was made to Sherry Murphy's home on November 1, 2001. Murphy told the caseworker that M.W. was living there with all of her children, including F.D.W. but they were "not home at the moment." M.W. showed up at the Division office a few days later and confirmed that she and her children were living with Murphy and said they were all fine. She also claimed that F.D.W. had been kidnapped by her aunt R.G. and was living in New York.

Upon placing a call to the aunt, R.G., in New York, the Division received a very different report. R.G. said M.W. begged her to take all of the children, but she was only able to take F.D.W. R.G. also reported that M.W. did not properly feed or clothe the children and failed to enroll F.D.W. in school. She said her son was now caring for F.D.W. and the New York court system had awarded him custody. R.G. added that M.W. and Sherry Murphy were abusive individuals. She said F.D.W. told her he was physically abused by both and that Sherry Murphy's son had tried to sexually abuse him.

Finally, after ten months, the Division successfully made contact with M.W. and set up a field visit for November 13, 2001. However, M.W. called to say that she was too busy and the Division would have to call back after Thanksgiving. The caseworker made a field visit the following day, November 14, 2001, to Sherry Murphy's home. Murphy told the caseworker that M.W. and the children were not home and that all of them were doing well. Another unfruitful visit occurred on November 26, 2001. This time Murphy's brother told the caseworkers that M.W. and her children were away for the week. Division caseworkers visited Sherry Murphy's home once again on December 10, 2001. While walking up the steps they met a young man who told them that M.W. and all of her children were inside. But as they approached the front door another man said that M.W. and the children were not there and that the workers had "just missed her."

Incredibly, on December 11, 2001, the decision was made by the Division to close the case on M.W. and her children even through there had been no physical contact with the children since January 2001 and despite seven or eight attempts to visit Sherry Murphy's home and M.W.'s continued refusal to cooperate with the Division. An "In-Home Safety Assessment" conducted by a Division caseworker concluded that the children are unlikely "to be in danger of immediate or serious harm at this time." This conclusion was reached without the caseworker ever seeing the children. The Division supervisor signed off on the requisite papers and the case was formally closed on February 7, 2002. By this time R.W., F.W., and T.H., Jr. had been abandoned by M.W. Now they were abandoned by the State agency that was supposed to protect them. The next Division contact was the cruel discovery on January 4, 2003 of two starving and abused boys in a cold, dark basement and a dead seven-year-old rotting in a box nearby.

Following the January 6, 2003, order placing the R.W. and T.H., Jr. in the care and supervision of the Division a factfinding hearing was conducted on February 24, 2003. The Family Court judge found by clear and convincing evidence that M.W. abused or neglected R.W. and T.H., Jr. by placing them in the sole care of Sherry Murphy, which resulted in serious physical and emotional damage to them. The judge continued placement with the Division. Permanency hearings were conducted on December 17, 2003, November 10, 2004, and July 14, 2005, while the Division investigated the possibility for placement of R.W. and T.H., Jr. with various relatives of both T.H. and M.W. None were found suitable. On July 14, 2005, the court directed the Division to file within sixty days a complaint for guardianship and termination of the parental rights against M.W. and T.H. That complaint was filed on August 12, 2005.

Prior to the filing of the Division's guardianship complaint, a civil action was commenced against the Division on December 30, 2004, by the administrator ad prosequendum of F.W.'s estate, the guardian ad litem for R.W. and T.H., Jr. and M.W. individually, with each represented by separate counsel. The complaint alleged claims of common law negligence as to all three children, claims under the New Jersey Wrongful Death Act and the New Jersey Survival Act on behalf of F.W., and a separate claim by M.W. for loss of consortium. The action was settled with the terms incorporated in the February 10, 2006, order approving settlement. The State agreed to pay $2.75 million on behalf of R.W., $3.75 million on behalf of T.H., Jr., and $1 million to the estate of F.W. M.W. was not present at this hearing. The State maintained its claim for contribution from her, and the court dismissed her complaint without prejudice to renewal.

On March 8, 2006, the Division filed a notice of motion to amend its guardianship complaint to further demand termination of M.W.'s parental rights to F.W. M.W. opposed the amendments. Following oral argument on April 17, 2006, Judge Grant ruled in favor of the Division, and the amended complaint for guardianship was filed on that date. The following day M.W. sought emergent relief from this court from Judge Grant's order permitting the amendment. We declined the emergent application. On May 3, 2006, M.W. filed a notice of motion for leave to appeal Judge Grant's order. We denied that motion on June 1, 2006.

The guardianship trial commenced on May 22, 2006, and continued for three days. Testifying on behalf of the Division were: psychologist Frank J. Dyer; a Division caseworker, Sabrina McNeil; and behavioral therapist, Charles C. Cooper. Neither M.W. nor T.H. testified, and they called no witnesses. Judge Grant gave his oral decision on June 8, 2006, terminating the parental rights of T.H. to T.H., Jr. and the parental rights of M.W. to R.W. and T.H., Jr. as well as to the deceased F.W. A permanency order was filed on June 9, 2006, and on June 15, 2005, Judge Grant issued a lengthy, comprehensive and insightful written opinion setting forth his factual findings and legal reasoning in reaching his determination. This appeal followed.

We initially address the respective arguments of M.W. and T.H. to the judgment terminating their parental rights of R.W. and T.H., Jr. The contention of M.W. with respect to the amendment of the guardianship complaint and termination of her parental rights to F.W. will be addressed in a separate opinion to be filed shortly. First we consider the appellate arguments of T.H.

After the children were removed from the home of Sherry Murphy, the Division learned that T.H. was living in Vermont. They contacted him, and he visited his son once in New Jersey on January 30, 2003, when the boy was at Nicholas House. The Division offered him further visitation as well as financial assistance to help with his travel expenses from Vermont. However, he failed to attend on a regular basis. The staff at Nicholas House were concerned with his failure to maintain contact and to keep promises he made to the boys. Finally, the therapist recommended that visitation be suspended, and the court approved on August 2005.

The Division also requested an interstate evaluation of T.H.'s home in Vermont, but it was denied in May 2004 because T.H. did not cooperate. He also did not make himself available for fingerprinting as ordered by the court. Furthermore, he did not contact the Division over extended periods of time, calling once in August 2005 to explain that he had been incarcerated on drug charges. Subsequently, the Division ascertained that T.H. was under federal indictment for drug running. That matter has not be concluded. It was also noted that T.H. had been convicted in 1992 for possession of cocaine.

T.H. submitted to two psychological evaluations. The first was conducted by Dr. McCabe on April 1, 2003. Based on the behavior of T.H. and his obvious cognitive limitations, she concluded: "There is considerable compensatory work to be done with [T.H., Jr.] and it is doubtful that T.H. grasps the scope of the task or has the enduring, insightful capacity to adequately meet the multiple needs of his son." On December 1, 2005, T.H. was examined by Dr. Frank Dyer to determine his capacity to parent T.H., Jr. Based on the clinical interview and psychological testing, Dr. Dyer stated that T.H. was mentally retarded with a verbal IQ and full range index comparable to a four-year-old child who could read only at a rudimentary level. He was also angry and defensive as to drug and alcohol use and refused to discuss his criminal history. Dr. Dyer concluded that T.H.'s mental retardation combined with his defensiveness, his antisocial and criminal history, and his total inability to meet his son's special needs, rendered him incapable of responding to adequately parent his son.

Taking into account all of these impairments put together, and especially this individual's level of mental retardation taken alone, I would say that there is no set of interventions with which I'm familiar that offers a realistic process of rehabilitating [T.H.] to the point where he could be considered to have acquired adequate parenting capacity.

T.H. argues initially that he received ineffective assistance of prior counsel and that his due process rights were violated. As indicated above, neither M.W. nor T.H. testified at the trial. T.H. contends that he was never advised by trial counsel of his right to testify and, as a result, his right of due process was violated. There is a fundamental right to protect a family or parent from arbitrary actions of government. In re Guardianship of C.M., 158 N.J. Super. 585, 591 (J. & D.R. Ct. 1978) (quoted in Div. of Youth & Family Servs. v. V.K., (App. Div. 1989). The due process of Article I, paragraph 1 of the New Jersey Constitution is protection against loss of parental rights without the services of counsel. Pasqua v. Council, 186 N.J. 127 (2006). Indigent parents are entitled to representation without charge for proceedings which may involve termination of their parental rights. Crist v. N.J. Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1976). See also Stanley v. Ill., 405 U.S. 645, 652, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972). Representation by counsel means nothing less than competent representation. Our Supreme Court has recently released its opinion in New Jersey Div. of Youth and Family Servs. v. B.R., ___ N.J. ___ (2007), holding that the right to counsel has both a constitutional basis and a statutory grounding under N.J.S.A. 30:4C-15.4(a). The Court further adopted for parental termination cases the test of ineffective assistance of counsel in criminal cases as enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The two-part test for establishing effectiveness of counsel requires a finding that counsel's performance was objectively deficient as falling outside of professionally acceptable performance and that counsel's deficiency prejudiced the defense to the extent that there exists a reasonable probability that the trial was unfair and the outcome unreliable. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; Fritz, supra, 105 N.J. at 52.

In this case, T.H. fails to satisfy either prong of the Strickland/Fritz test. There is nothing in the record and no certification to support T.H.'s contention that he was not advised by prior counsel of his right to testify. A simple statement or claim in a brief is insufficient to constitute a prima facie showing of ineffective assistance. There is also no offer of proof setting forth what T.H. would say if he did testify that would make a difference. Furthermore, our review of the record leads us to conclude that T.H. did receive effective assistance by trial counsel.

T.H.'s remaining appellate arguments relate to the issue of whether termination of parental rights was proper under the best interests of a child test set forth in N.J.S.A. 30:4C-15.1(a), which incorporated the standard established by the Supreme Court in New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-05 (1986). Under the best interests test, the State must prove by clear and convincing evidence the following:

(1) the child's health and development have been or will continue to be in danger by the parental relationship;

(2) the parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm . . . .;

(3) the Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

In In the Matter of Guardianship of K.H.O., 161 N.J. 337 (1999) the court emphasized that the four criteria set forth in the statute were not independent factors but related to and overlapped each other to provide a comprehensive standard to identify the child's best interests. Id. at 348. In reviewing the decision of Judge Grant, we are mindful that the findings of a trial court are considered binding on appeal when supported by adequate substantial and credible evidence. Brundage v. New Jersey Zinc Co., 48 N.J. 450 (1967). Deference must be given to the trial court's credibility determinations and the judge's "feel of the case" based on his opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Therefore, we will not disturb the findings of Judge Grant unless they are so "manifestly unsupported by or inconsistent with the confident, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); Cesare, supra, 154 N.J. at 412-13. For the reasons set forth in the well-reasoned and comprehensive opinion of Judge Grant, we affirm the termination of T.H.'s parental rights.

The lay and expert proofs adduced at trial amply establish all four statutory factors for termination under N.J.S.A. 30:4C-50 are fulfilled. T.H.'s arguments to the contrary are without substance. While he argues that he did not endanger the health and development of T.H., Jr. since he was in the State of Vermont during the period of abuse, it is clear that he simply abandoned his child throughout T.H., Jr.'s life. He was uncooperative with the Division's efforts to assess his residence and inconsistent in his visitation to the point where the children's therapist recommended they cease. Based on the uncontradicted testimony of Dr. Dwyer, T.H.'s parental unfitness was demonstrated by the fact that he could not provide a safe and stable home for his son, did not possess the ability to parent, and could not address the special needs of his child. There was more than ample clear and convincing evidence that termination of T.H.'s parental rights would not do more harm than good. T.H.'s claim that the lack of a bonding evaluation was required is without merit. The testimony at trial clearly established that there is no relationship between T.H., Jr. and his father. Since placement in his present foster home in September 2005, T.H., Jr. has not mentioned or asked about T.H. Mr. Cooper, the child behavioral therapist, has never heard T.H., Jr. mention T.H. since he started working with the boy in September 2004. An evaluation of an existing bond would pointless. The child's need for stability and permanent placement simply underscores that Judge Grant properly terminated T.H.'s parental rights.

Turning the spotlight on M.W., the record discloses a woman who abused and neglected her children, abandoned them with little or no concern as to their well being and is completely incapable of functioning as a caring and adequate parent. In the context of the first prong requiring the State to demonstrate harm to the child by the parent, M.W. clearly endangered the health of her children and their development. While poverty may explain some of her actions, it hardly excuses her instability and failure to provide a safe home for the children. While many of the anonymous reports of neglect and abuse could not be substantiated, what was shown was clearly abandonment, medical neglect as well as educational neglect since there is no record of R.W., F.W., or T.H., Jr. ever attending school or pre-school. Also obvious is that M.W. subjected her children to inappropriate living conditions and exercised horrendous judgment by turning her children over to Sherry Murphy for a period of almost two years. There is no substantiation of her claims that she believed her children were with relatives in North Carolina. No effort was made by her to find them. While she told other she made efforts to obtain her children's return, no calls were made to the police or to the Division to obtain assistance or look for them. As told by her children in their conversations with their therapist, M.W. knew where they were and knew that Sherry Murphy was abusing them. Indeed, both her children and other members of the family told the investigator that M.W. physically abused her children by burning them in hot water or with cigarettes.

As found by Judge Grant, M.W.'s failures as a parent can be quantified into three categories. First, her instability and failure to provide her children with a safe home was demonstrated by the fact that she was incarcerated on multiple occasions and unable to provide a safe and nurturing environment during or after these periods of incarceration. She moved approximately ten times without advising the Division and then only responded when receipt of her welfare check was threatened. The second category of failure was her refusal or inability to comply with or accept assistance by the Division to improve the stability of her family unit. She completed none of the offered services and requirements save for a parenting skills class, failed to follow up on the medical needs of her children, and failed to enroll them in school. The third and most significant harm found by Judge Grant was the inappropriate parenting of M.W. as demonstrated by her failure to provide a safe home, medical neglect, educational neglect, physical abuse and abandonment.

The consequences of her abuse, neglect, and abandonment were grievous. One child killed, treated like rubbish and left rotting in a box in a dark basement. Two remaining children, starved and locked away from sight. They suffered psychological wounds so profound and deep that they will probably last a lifetime. These children were robbed. They were robbed of their childhood, of a life-long relationship with their now dead brother, of any sense of personal security or trust in adults, of their need for structure to grow and flourish, and, most of all, any sense that they are somehow special and loved.

It is no wonder then that their therapist and social worker reports that the children can be aggressive. They are two to three years behind their peers, lacking basic concepts, and exhibiting highly sexualized behavior. One of the sadder statements made by R.W. was how surprised he was to find that all children were not burned and abused. It is no wonder why they have tantrums and express rage and see the world as terribly unsafe and frightening. It is no wonder that they have terror of bathing, cry at seeing the bathtub and are awakened by nightmares almost every night.

And the children know the cause. When shown a picture of their mother, they began experiencing behavioral problems. R.W. was so upset he said he did not want the picture around. When asked why, he said because M.W. had taken them to Sherry Murphy's house where "those terrible things happened to us." Both boys expressed fear of their mother to their therapists and were deathly afraid that she or her family were going to come get them. Their psychologist reported that the children lived in constant fear that they were going back to that house in Newark. The photo of M.W. was taken away at their request, and neither have asked to see it again.

The uncontradicted testimony of the State's experts was that the traumatization of the boys resulted in a profound fear of their mother and that any contact with M.W. had a significant risk of regression. Accordingly, the record substantiates the finding of Judge Grant that

[M.W.]'s failure to meet the community's minimal standard for adequate parenting when the children were in her custody, her psychological functioning and her failure to ensure adequate care for the children coupled with her absences from their lives demonstrates actual and continuing harm to [T.H., Jr.] and [R.W.].

M.W. does not contest Judge Grant's findings with regard to the first prong of the statutory test -- that the health and development of the children were and will continue to be endangered by the parental relationship. Rather, she contests the remaining statutory prongs.

Nonetheless, M.W. argues facts that supported the first prong also inform the other prongs of the test as "part of the comprehensive basis for determining the best interests of the child." D.H. v. D.M.H., 161 N.J. 365, 379 (1999). There was a lack of clear and convincing evidence that she was able to become parentally fit to meet the needs of R.W. and T.H., Jr. She cites New Jersey Div. of Youth & Family Servs v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005) in which we rejected the finding of parental unfitness under the second prong because the parent could fulfill the needs of her children with an additional six months of therapy. However, there is no indication here that six months, a year, five or ten years will ever render M.W. "fit" to parent these children. Dr. Dwyer testified that M.W. suffers with "schizophrenia dysthymic disorder, and personality disorders with prominent antisocial features." He said that she was "too unstable emotionally and behaviorally to be even remotely capable of providing the kind of consistent nurturance, structure, guidance and stimulation, and physical protection that a child requires." Dr. Dwyer also stated that M.W. presented no indication that she gained any insight into her personality so that future acts endangering these children would not occur. To the contrary, he testified that returning the children to M.W. would make it "highly likely that they would be exposed to abuse and neglect." This was especially so in light of the special needs of these children caused by M.W.'s abandonment and abuse together with the horrors they experienced in Sherry Murphy's basement. We agree with Judge Grant that clear and convincing evidence was produced that M.W. will not be able to eliminate harm to her children and that they would suffer more harm if separated from their foster parents with whom they are presently secure.

As to the third prong involving the Division's reasonable efforts to reunite the family, it is clear that the Division attempted working with M.W. and offered her services to assist the family, and she failed to take advantage of them. M.W. heaps blame on the Division for the consequences to her children. It is without question that considerable fault in this case lies at the feet of the Division but not for failing to provide services to the mother of the children. All forms of services were provided. M.W. simply did not accept them or complete them.

The fourth prong was also established by clear and convincing evidence at the trial. The uncontradicted testimony of the experts produced was that the best interests of the children can be served only by a termination of M.W.'s parental rights. The experts recommended that the children remain together to support each other, and the Division has so provided with the fortunate placement of R.W. and T.H., Jr. in a foster home with a loving foster family to whom the boys have bonded.

The judgment of Judge Grant terminating the parental rights of M.W. to R.W. and T.H., Jr. is affirmed.

20070810

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