On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. FG-13-64-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and R. B. Coleman.
In each of these three consolidated cases, a biological parent appeals from an order terminating parental rights. In Docket No. A-4061-06T4, R.M.D. is the biological mother of J.N.L.B. (J) and K.S.T. (K); in Docket No. A-4059-06T4, H.B. is the biological father of J; and in Docket No. A-5201-06T4, K.T. is the biological father of K. Each defendant challenges the sufficiency of the evidence supporting termination of their parental rights under N.J.S.A. 30:4C-15.1(a). H.B. and K.T., the fathers of both children also argue that the evidence does not support a finding that they abandoned their children under N.J.S.A. 30:4C-15(d). R.M.D., the children's mother, argues that the Division of Youth and Family Services's (DYFS) decision to seek termination of parental rights undermines the purpose of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, because it punishes her as a victim of domestic violence. After considering all of the parties' arguments, we affirm the order terminating parental rights in each case.
R.M.D. has been involved with DYFS since she gave birth to her first child on September 25, 1999, when she was fifteen. In February 2000, the infant was placed in the custody of a family friend because the child was at risk and R.M.D. was unable to meet the child's needs. The family friend later adopted the child after R.M.D. surrendered her parental rights.
In 2000, R.M.D. began a relationship with K.T. and became pregnant. During her pregnancy, DYFS worked with R.M.D. and placed her in the PATH Program for Homeless Women. PATH provides support services to individuals with serious mental illnesses or substance abuse disorders who are homeless or at risk of becoming homeless. In March 2001, R.M.D. gave birth to K while residing in the PATH program. Although no father was listed on the child's birth certificate, R.M.D. identified K.T. as the biological father of K, and a paternity test two years later confirmed that K.T. was the child's father.
Due to R.M.D.'s past history, DYFS opened a case for care and supervision of K, but did not initially seek custody of the child. In July 2001, DYFS arranged a psychological evaluation for R.M.D. with Dr. Chester Sigafoos, a clinical psychologist, who found that she suffered from several psychological disorders and was at the borderline level of intellectual functioning. Dr. Sigafoos also found that R.M.D. did not demonstrate an understanding of her disorders or their impact upon her ability to parent her child. He recommended therapy and parenting skills training.
In December 2001, after allegations that R.M.D. was fighting in the PATH program, the facility terminated her participation. She then entered the Union Industrial Home for Children with K, where she remained for approximately one year prior to moving in with her maternal grandmother.
Between August 2002 and April 2003, R.M.D. moved in and out of her grandmother's house a number of times. By April 2003, R.M.D. and K had once again moved back with the grandmother and the DYFS caseworker notified R.M.D. that the case would be closed. R.M.D. objected to DYFS closing the case because she had enrolled in parenting classes and was scheduled to attend counseling sessions. Nevertheless, DYFS closed the case in April 2003, terminating those services.
In June 2004, R.M.D. gave birth to J, whose father was identified as H.B. On July 24, 2004, DYFS reopened the case when it received a referral from the Jersey Shore University Medical Trauma Unit that six-week-old J was being admitted to the hospital with head trauma and bleeding in the brain. The referral reported that R.M.D. gave several inconsistent explanations as to how the infant's injuries occurred. R.M.D. initially explained to the police and doctors that K had injured J. She alleged that J was sleeping on the bed when she left the room to go to the bathroom, K picked up J and accidentally dropped J, causing him to hit his head on the furniture.
Dr. Steven Kairys, of the Dorothy Hersh Child Protection Center, diagnosed J with a skull fracture, bleeding in the brain and anemia, for which the infant received a blood transfusion. A CT scan also revealed that the infant had suffered an injury to his ribs. R.M.D. claimed that the rib injury came from the infant swing, but the treating physician stated that the injury could not have come from the swing.
On July 27, 2004, R.M.D. called the DYFS caseworker to ask that K be given a psychological evaluation because she wanted to ensure that he did not injure the infant again. The caseworker informed her that J would not be going home with her when he was released from the hospital. R.M.D. went to the DYFS office to discuss the incident with her caseworker. During discussion, R.M.D. changed her story and admitted that J's injuries resulted when H.B. hit her while she was holding the infant and "mistakenly" struck the infant on the head. R.M.D. further admitted that she did not take J to the hospital that evening because she was afraid of H.B.
R.M.D. claimed that there had been several instances of domestic violence between her and H.B. and on one occasion, H.B. hit K in the face, splitting his lip. R.M.D. also admitted that she had several abusive relationships in the past. She indicated that H.B. had been drunk when he hit her and J and that he was abusing drugs daily. She signed a fifteen-day consent for temporary placement of both children in foster care after the incident.
H.B. agreed to meet the caseworker on July 29 to discuss the incident, but he failed to appear and the caseworker was unable to locate him.
On July 30, 2004, K.T. met with the caseworker to discuss K's placement. He claimed to have joint custody of K but could not produce any documents to support that claim. K.T. stated that he was on probation for aggravated assault, weapons violations and CDS possession and that the sentencing judge had ordered him to undergo drug rehabilitation, but he had not done so.
On August 2, 2004, the DYFS caseworker learned that H.B. had an outstanding warrant for his arrest for domestic violence and for endangering the welfare of a child. On August 3, 2004, R.M.D. reported to the caseworker that H.B. had physically threatened her and that she was seeking a restraining order. When the caseworker spoke with H.B., he admitted hitting the child but claimed it was an "accident" and blamed the injury on R.M.D. because she attempted to use the infant as a "shield" during their fight.
On August 12, 2004, DYFS filed a complaint pursuant to N.J.S.A. 9:6-8.21, seeking custody of both children. R.M.D. appeared at the September 2, 2004 hearing and H.B. was transported to the family court from the Monmouth County correctional facility. K.T. failed to appear. The trial court granted DYFS temporary custody of both children and ordered all three defendants to undergo psychological and substance abuse evaluations.
On December 2, 2004, H.B. waived his right to a fact-finding hearing under N.J.S.A. 9:6-8.44, and stipulated that he and R.M.D. had a domestic dispute during which J was physically injured. R.M.D. was not present at that hearing and the court entered a default against her. The trial court rendered a finding of abuse and neglect as to H.B. On January 18, 2005, R.M.D. appeared for a proof hearing and the default was vacated. She then entered into a stipulation similar to H.B.'s and the court rendered a finding of abuse and neglect as to her, as well.
On May 2, 2005, H.B. pled guilty to third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, for injuring J. At a review hearing on May 5, 2005, K.T. was transported from Middlesex County corrections facility but R.M.D. and H.B. failed to appear. The trial court entered a contempt order against H.B. and directed him to pay $100 within thirty days or a bench warrant would be issued. All three defendants were ordered to participate in evaluations. On July 28, 2005, a permanency plan for both children was entered. Neither of the fathers appeared.
On October 17, 2005, DYFS filed three guardianship complaints and orders to show cause were entered. On November 17, 2005, the return date of the orders to show cause, the court dismissed the Title 9 case and proceeded with the Title 30 case. Neither of the fathers appeared.
When the trial began on May 16, 2006, R.M.D. was living with her fourth child, a five-month-old infant, and her twenty-year-old sister. Both fathers were transported from correctional facilities for the trial. Despite the fact that H.B. had previously pled guilty to the third degree criminal charge of endangering J, during the termination trial, he denied committing the offense. The trial court found H.B.'s testimony lacking in credibility, based upon the evidence in the criminal case.
K.T. testified that he had a lengthy criminal history and had been incarcerated numerous times on various criminal charges, including CDS, weapons, aggravated assault and robbery charges. K.T. expected to be in prison until at least December 2009. He acknowledged that he had last seen his son, K, approximately a year ago.
The DYFS caseworkers testified as to their continuing supervision of the family and their attempts to provide services and assistance to R.M.D. Nevertheless, R.M.D. did not attend parenting classes, she remained on welfare and made no effort to find work or obtain a G.E.D. In May 2005, after R.M.D. failed to appear for a scheduled court date, the caseworker visited her home. When R.M.D. answered the door, "her eyes were glassy and red." The caseworker smelled marijuana and when he asked who was getting high, R.M.D. pointed to her boyfriend who admitted he had been ...