On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-42-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2007
Before Judges Lisa and Simonelli.
This is a termination of parental rights case. We decide in this opinion the consolidated appeals of J.P.H., the mother, and R.E.Y., the father, of the judgment terminating their parental rights to their daughter, T.C.H., who was born on November 2, 2002. Both appellants argue that the Division of Youth and Family Services (DYFS or Division) failed to establish by clear and convincing evidence all four prongs of the best interests test. J.P.H. further argues that (1) the Division's interference in the relationship between her and her daughter violated her equal protection rights under the constitutions of the United States and New Jersey, and (2) the trial court mistakenly exercised its discretion in admitting in evidence the Division's expert report and certain Division contact sheets, because they were not timely submitted to her, resulting in a denial of her due process rights under the constitutions of the United States and New Jersey. We reject these arguments and affirm.
J.P.H. and R.E.Y. were never married. At the time of T.C.H.'s birth, J.P.H. was nineteen years old and R.E.Y. was twenty-six years old. J.P.H. has no other children. R.E.Y. has an older daughter by a prior relationship. Notwithstanding some evidence that J.P.H. initially told R.E.Y. that the child with whom she was pregnant was not his, it is clear that R.E.Y. knew the child was his immediately upon her birth. At the time of conception, both parents lived in Morristown. However, during the pregnancy, R.E.Y. relocated to Richmond, Virginia, where he has continued to live ever since.
For the first two and one-half years of T.C.H.'s life, she lived with her mother at various locations, including the home of J.P.H.'s mother, with other relatives, and at shelters. DYFS first became involved with this child when it received a referral on April 28, 2005 from the Morris County Office of Temporary Assistance, reporting that J.P.H. and T.C.H. were homeless. There was an outstanding warrant for J.P.H.'s arrest based on a prior assault charge. J.P.H. had also assaulted a fellow resident at another homeless shelter three months earlier and was at the current shelter because her mother threw her out of the house for fighting with J.P.H.'s brother. There was another alleged past assault at Homeless Solutions in Morristown. The Morris County Office of Temporary Assistance was unable to place J.P.H. in another shelter because of her history of violent behavior. A prior shelter also reported that J.P.H. hit her daughter as a form of discipline.
At the time of the referral, the DYFS representative observed T.C.H. to be very verbal, appearing "very healthy, well-groomed and . . . appropriately dressed." There were no visible marks on the child. She had attended eight days of daycare and received one medical examination, receiving all required shots.
J.P.H. had quit her previous job at Walmart eight months earlier "because she didn't like her position" and she did not seek further employment. She acknowledged a five-day stay in 2003 at the Morristown Memorial Hospital for depression. She had been prescribed medication for her condition, but discontinued its use and did not follow up with recommended therapy. J.P.H. also acknowledged a history of physical abuse perpetrated against her. She acknowledged that she sometimes disciplined her daughter by "pop[ping] her on the butt, leg or hand with an open hand," but she did not intend to harm her.
The only shelter with an available bed at which J.P.H. could be placed was the Salvation Army, which did not accept children. J.P.H. refused the placement. DYFS substantiated a finding of neglect based upon J.P.H.'s homelessness and inability to shelter her child due to "continuous engagement in violence," the admitted use of corporal punishment, and her continued lack of employment. Because of the absence of physical marks on the child, no finding of abuse was made.
DYFS searched for a suitable family member for placement, and succeeded in finding the child's maternal great aunt, J.H. J.P.H. agreed to sign a case plan, and to cooperate with anger management counseling and DYFS evaluations. However, she refused to sign a fifteen-day consent form for placement of the child with J.H., as a result of which an emergency removal was effected. On May 2, 2005, an order was entered placing T.C.H. under the care and custody of DYFS.
On July 13, 2006, DYFS filed a complaint for termination of parental rights and guardianship.
T.C.H. has remained in the custody of her great aunt since the original placement in April 2005. J.H. has consistently provided a safe, clean, and stable home environment. From the outset, she expressed a willingness to care for the child as long as necessary until her niece got better. She supervised visitation by J.P.H. However, J.P.H. visited only sporadically, without prior notice. Further, J.P.H. did not inform her aunt or other family members where she was living or where she could be reached. From September 2005 until September 2006, J.P.H. virtually "disappeared." She continued to be unavailable to her family, including J.H., and she did not respond to DYFS inquiries or furnish DYFS with contact information. She also failed to appear for court proceedings.
The record reflects that in September 2005, J.P.H. stole $40 from a former acquaintance, and she tested positive for cannabis abuse in late September 2005. Attempts by DYFS to find J.P.H. during this time were unsuccessful.
The Division made efforts to arrange for anger management programs for J.P.H. The efforts were unsuccessful, partly because of scheduling and funding issues, and partly because of J.P.H.'s noncompliance.
After the initial removal of T.C.H. in April 2005, the Division began to search for R.E.Y. Although he had occasional contact with J.P.H. since his relocation to Virginia, J.P.H. was unable to furnish any specific contact information. R.E.Y. was finally located in January 2006 through probation records. A Division caseworker wrote to R.E.Y. on January 26, 2006. However, she did not make contact with him until March 2006. Even then, R.E.Y. could be reached only at one telephone number, and, after some time, there was no way to leave a message because of a full mailbox. Another time, the phone was disconnected. The record reflects the protracted steps necessary to reach R.E.Y. either by telephone, personal service, or certified mail. R.E.Y. acknowledged that DYFS left a number of messages for him, with a contact number, during this period.
J.P.H. had identified R.E.Y. as the putative father of T.C.H. When DYFS reached R.E.Y., he agreed to submit to a paternity test, which was conducted in April 2006, and which confirmed his paternity. R.E.Y. indicated an interest in obtaining custody of T.C.H. Accordingly, DYFS forwarded a request through the Interstate Compact on the Placement of Children for Virginia to conduct an evaluation of R.E.Y.'s home. The Division also obtained R.E.Y.'s criminal history, which revealed that R.E.Y. served a three-and-one-half-year term of incarceration in New Jersey for the manufacture, distribution or dispensing of a controlled dangerous substance, second-degree vehicular homicide, and operation of a motor vehicle without a license.
An October 19, 2006 urine screen of R.E.Y. was positive for marijuana and barbiturates. He contended that he broke his thumb at work and obtained Percocet on the street for the pain. He further contended that he was a casual marijuana smoker. Because of R.E.Y.'s reported history of drug use, DYFS asked him to submit to a substance abuse evaluation. He did so in December 2006, and it was recommended that he receive substance abuse treatment.
Since R.E.Y. was located, the Division offered to facilitate visitation with his daughter. The Division offered to arrange a meeting place and pay the cost of his travel to New Jersey. The Division also offered to pay for his transportation costs to come to New Jersey for psychological and bonding evaluations. With respect to visitation, R.E.Y. said he could arrange everything when he came to visit his family in New Jersey because his mother lived in close proximity to J.H.'s home. He claimed to see T.C.H. on occasion at a local park and to spend "a few minutes" with her on those occasions. J.H. confirmed that R.E.Y. occasionally called and spoke to T.C.H. on the phone. T.C.H. was aware that R.E.Y. was her father. However, when R.E.Y. came on one occasion to visit T.C.H. at the home, J.H. reported that T.C.H. did not know who he was until she recognized his voice.
The Division did provide reimbursement to R.E.Y. for his reported trips to New Jersey, notwithstanding some confusion over the receipts R.E.Y. provided. On one occasion, he provided a receipt consisting of a train stub in the name of someone else for a trip to Florida. This confusion delayed the payment process, but the Division nevertheless accepted R.E.Y.'s claim that his bus trips from Richmond to New Jersey cost $40 each way and made disbursements accordingly. Reimbursement was also provided for the cost of other aspects of the trip after arriving in New Jersey, including train tickets and cab fare.
The Division engaged the services of Dr. Rachel Jewelewicz-Nelson, a psychologist. Jewelewicz-Nelson evaluated R.E.Y. However, R.E.Y. did not travel to New Jersey for a scheduled bonding evaluation. Jewelewicz-Nelson conducted a psychological evaluation of J.P.H., and she also performed bonding evaluations between J.P.H. and the child and J.H. and the child.
Before discussing the results of Jewelewicz-Nelson's evaluations and her opinions, we summarize the testimony given at trial by R.E.Y. R.E.Y. felt that T.C.H. was comfortable and happy in her current placement with J.H., and he was content to permit T.C.H. to stay with J.H. until she got older.
R.E.Y. described his residence in Virginia as a spacious two-bedroom apartment. Although he had the same girlfriend there for about four years, he lived alone. His older daughter continued to live with her mother in Morristown, but visited with him during school recesses and stayed in the second bedroom. He foresaw that T.C.H. could eventually stay with him and use the second bedroom, sharing it with his older daughter during her visits.
R.E.Y. had stable employment in the housekeeping department of a major hotel. His work schedule fluctuated significantly. However, he said he had discussed the matter with his supervisor and would be able to adjust his schedule to accommodate custodial parenthood. He earned $400 per week in salary plus tips ranging from about $25 to $100 per week. He was also familiar with a daycare center in the area, but did not know the cost.
R.E.Y. claimed that prior to T.C.H.'s removal from her mother, he saw T.C.H. "on a regular basis every time I came to Jersey." He could not quantify the number of visits, but vaguely referred to three to five trips per year from 2003 to 2005. He said he also kept tabs on T.C.H. through the reports of local friends.
R.E.Y. claimed he did not know he could visit T.C.H. after DYFS gave custody of the child to J.H. This contention was refuted by the DYFS caseworker, who contended that R.E.Y. simply did not take advantage of the opportunity to visit T.C.H. during this time. Further, R.E.Y. said he made no efforts to visit T.C.H. during this time because he was working and did not have the ...