On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Morris County, No. FG-14-21-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2007
Before Judges Wefing, Parker and Lyons.
H.D. is the mother, and E.H. the father, of A.E.H.D, a little girl, now four and one-half years old. Following a four-day bench trial, the trial court entered a judgment terminating their parental rights. H.D and E.H. each appealed separately from that judgment; their appeals have been consolidated. After reviewing the record in light of the contentions advanced on appeal, we affirm the judgment terminating the parental rights of both H.D. and E.H.
H.D. and E.H. were never married to each other, and each has children through other relationships. These other children were not the subject of the proceedings below. The relationship between H.D. and E.H. ended prior to the birth of their daughter. H.D. has a nine-year-old daughter, M.G., and a son, D.M.D., nearly three years old. M.G. is in the custody of her biological father, and D.M.D. is in the custody of H.D. H.D. has never identified the father of D.M.D. Since August 2004, when she was fourteen months old, A.E.H.D., the subject of this appeal, has resided with a foster family that wishes to adopt her.
H.D.'s first dealings with the New Jersey Division of Youth and Family Services ("DYFS") occurred prior to the birth of A.E.H.D. DYFS received several reports that H.D. was neglecting M.G. DYFS investigated each such report and concluded that M.G. was not at risk. In May 2003, DYFS received a report that H.D. was at a bowling alley with A.E.H.D. and was intoxicated. The local police department responded to investigate and advised DYFS that the report was inaccurate in that H.D. was not intoxicated. The following day DYFS investigated H.D.'s situation and found that she was living with M.G. and A.E.H.D. in a third-floor room she was renting. DYFS was concerned with the physical surroundings, but H.D. told the DYFS worker she had to leave that day at the request of the landlord.
H.D.'s removal from that location was the first of many moves that she and her children experienced in a short period of time. H.D.'s mother and stepfather would permit her to stay with them only for the weekend. DYFS then arranged a temporary stay for H.D. and the children at a motel and then at Interfaith Shelter. H.D. was asked to leave the shelter because she did not comply with its rules. M.G. then went to reside with her biological father, with whom she remains. H.D. and A.E.H.D. went to stay with another friend of H.D.'s. The two stayed with that friend for approximately one month. The DYFS caseworker stressed the need for H.D. to secure employment and stable housing, but H.D. refused to participate in the programs that were offered because she had not been ordered by a court to do so. Eventually, the friend communicated with DYFS about her concerns, particularly that H.D. would leave the baby with her for long periods of time. She also stated that she had witnessed H.D. push M.G. near the top of a flight of stairs on an occasion when M.G. was visiting. The friend eventually indicated that while A.E.H.D. could remain, H.D. would have to leave.
H.D. and A.E.H.D. then stayed at another shelter in Morristown. She was again terminated from this shelter because of her refusal to abide by the rules and to seek employment. Although H.D.'s caseworker was able to obtain two extensions for H.D., she remained non-compliant and had to leave. By this time, she was again pregnant. DYFS located another shelter, which would admit H.D. H.D. refused to go, however, because that shelter would not permit her to bring A.E.H.D.
H.D.'s caseworker began to seek out potential placements for A.E.H.D. and approached E.H. and his parents, with whom he was residing. E.H. expressed an interest in caring for A.E.H.D., and his parents said the child was welcome in their home, although they would not permit H.D. to stay there. Other residents of the household included E.H.'s brother and sister, E.H.'s girlfriend, his girlfriend's sister, and his two children from an earlier relationship. E.H. told DYFS that he had had drug problems in the past but was now clean and had a stable job. The DYFS caseworker verified his employment and participation in an outpatient drug treatment program, and A.E.H.D. then went to live with E.H.
In June, DYFS filed a protective services complaint for M.G. and A.E.H.D., and an order was entered placing A.E.H.D. in the legal custody of DYFS and the physical custody of E.H. Unfortunately, approximately two and one-half months later, DYFS learned that both E.H. and his girlfriend were arrested on drug-related charges. E.H.'s parents expressed shock and dismay at their son's arrest; they told DYFS that A.E.H.D. was welcome to stay and that they would care for her. However, they refused to complete the necessary background check. In particular, they refused to submit recent fingerprints for themselves and the other adults living in the house. They continued in this refusal even after being told that their refusal would require DYFS to place A.E.H.D. in foster care. On August 25, 2004, A.E.H.D. was placed with a foster family and has since resided there continuously.
During this time, H.D. did nothing to stabilize her situation. Her caseworker on several occasions drove her to various locations to seek employment, to no avail. H.D. told her caseworker that she was sleeping in her car or staying with the Salvation Army when it had an open bed. H.D. denied this at trial, saying she had been staying with a friend.
In September 2004, H.D. told DYFS that she was leaving New Jersey and relocating to Arizona, where she would stay with an uncle and aunt. At trial, she explained that she moved to make a fresh start and get away from bad influences; she was also concerned that DYFS might seek to obtain custody of her baby when it was born.
Prior to leaving, H.D. submitted to a court-ordered psychological evaluation at the Family Enrichment Program at Morristown Memorial Hospital. The Program submitted a report noting that H.D. had been diagnosed with Attention Deficit Disorder as a child and had "chronic history of instability in her living arrangements, employment and relationships . . . a history of poor judgment and decision-making, and . . . limited insight and empathy about the impact of chronic instability and [of] her upcoming move on her children." It recommended she participate in individual therapy and parenting classes.
Shortly after submission of that report, H.D. departed for Arizona, and in October she informed DYFS that she was residing with her aunt, D.A.R., and uncle, W.R., in a trailer home on a twenty-acre ranch in Snowflake, Arizona. She said that in exchange for room and board she helped to care for the animals on the property and assisted her aunt with her puppy-breeding business. In December, she gave birth at home to her son, D.M.D.
In February 2005, both D.A.R. and W.R. traveled to New Jersey to participate in a court-ordered psychological evaluation. The report revealed that both had, in the past, abused drugs and been involved with the criminal justice system. Prior to their marriage, each had a child from an earlier relationship. They had two children of their own and raised the four together. Three of the children were the victims of sexual abuse, as was D.A.R. herself. D.A.R. had been diagnosed as suffering from bi-polar disorder, as had one of their sons.
D.A.R. reported that she took her medications regularly, while her son did not. She stated that the two had learned to stay away from one another if one was in a manic phase because it could affect the other. The son had tried to kill himself several years earlier, and D.A.R. said that she in the past had had thoughts of suicide.
W.R. is an over-the-road trucker and home only a few weekends a year. He knew that three of the children had been sexually molested but knew none of the details. Nor did he know the circumstances around his son's attempted suicide. The evaluator described him as "self-protective and aloof" and preferring a "peripheral role in ...