On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-04-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Lyons and Waugh.
S.A. (Mother) and S.A. (Father) appeal from an order of the Family Part entered pursuant to N.J.S.A. 30:4C-15.1, which terminated their parental rights to their daughter, S.A., who, together with her two older brothers, was taken into protective custody by the Division of Youth and Family Services (DYFS) when she was two years and three months old.*fn1 This appeal requires us to determine whether the order can be justified on the record presented to the trial court.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Mother and Father have four children. The oldest child is J.A., born March 22, 1997, who is today eleven years and six months old. S.A., Jr. was born on April 29, 2001, and is presently seven years and five months old. S.A., the child at issue in this case, was born on January 8, 2003, and is now five years and nine months old. The last child in the family is M.A. born in January 2008, and is approximately ten months old.
The parents married in November 2000, when Mother became pregnant with their second child. Father is a thirty-six year old high school graduate. At the beginning of DYFS's involvement, he worked for the State as a bus inspector. Mother, who is thirty-three years old, was a homemaker at the time.
In the fall of 2002, prior to any DYFS involvement with the family, J.A. started kindergarten in Long Valley. The Child Study Team at the school evaluated him almost immediately due to his weak academics and behavioral issues, including difficulty following rules, disruptive attention-getting behavior, nervousness, hitting, and biting himself. In October, the family moved to Jefferson to a house Mother inherited from her grandmother, and J.A. was placed in the Chancellor Academy, a school for emotionally disturbed children.
DYFS's involvement with this family began in March 2003, when the school nurse noticed J.A. had lost thirteen and one-half pounds, that he was not clean, and that he did not wear socks or underwear. Mother explained that J.A. had no appetite since he started taking medicine for attention deficit hyperactivity disorder (ADHD), and that he refused to wear socks and underwear. J.A.'s pediatrician reported to DYFS that he had no concerns about J.A.'s care.
On April 14, 2003, DYFS received a referral from the police, who had been called by a woman who had gone to the Mother and Father's home to pick up her child, and found S.A., who was only a few months old, home alone in her crib. Mother explained to the investigating DYFS worker that she left S.A. alone for a half hour when she went to chase after J.A., who had run into the woods. While the worker was there, however, she noticed that the house was very dirty, with old food on the floor, and cleaning products left in the children's reach. The worker told the Mother to clean up the house and advised that it would be reinspected within one to two weeks. DYFS determined neglect was not substantiated, as leaving S.A. was an "isolated" incident, but it opened a file because the cleaning products constituted a safety hazard to the children.
On April 24, 2003, a DYFS worker made an unannounced visit to the home and observed that the hazardous cleaning products had been removed, but the house remained dirty and cluttered. The home smelled of urine and feces, and the worker observed feces on the floor of S.A.'s bedroom.
DYFS was next contacted in December 2003, when J.A. reported to a school employee that his father had thrown a book at him, which resulted in a bloody nose. Father denied it, and abuse and neglect were not substantiated.
On June 11, 2004, DYFS received another referral from J.A.'s school because seven-year-old J.A. reported he had been riding an all-terrain vehicle without a helmet and flipped it. Although he had a swollen eye and abrasions, his parents had not taken him for medical attention. The parents took J.A. to the doctor only after being urged by the school.
A few days later, on June 15, 2004, a caseworker visited the home. She observed that the front yard looked like a "garbage can." Inside the home, there was garbage on the floor and dirty dishes all around. The kitchen had human feces and urine on the floor. Mother stated that S.A., Jr. had a difficult time using the bathroom. The worker observed dog feces in another room, and smeared feces in S.A.'s crib. The beds in the boys' room had no bedding, and the room contained old and fresh dog feces. There were reddish-brown smears on the walls that Mother attributed to the boys' smearing food. The only food in the house was "Steak-Ums" and milk. S.A., Jr. and S.A. were "filthy," and S.A. had bug bites all over her body.
S.A. also had a bruise under her eye which Mother explained was the result of S.A., Jr.'s hitting her with a toy truck.
DYFS continued to monitor the condition of the home throughout the summer, but on August 4, 2004, when it did not improve, DYFS asked the parents to sign a fifteen-day consent order for voluntary placement. The parents became upset and did not want to consent, but eventually did, reasoning that "DYFS will do what they want anyway." After finding no suitable relatives to care for the children, DYFS placed the children in foster homes, with S.A. being separated from the boys.
Prior to being taken to their placements, the children underwent physicals. S.A. was found to have insect and flea bites. During his physical, seven-year-old J.A. screamed, punched, pinched, and bit the caseworker, and yelled, "fuck you, you fucking bitch, you god damn nigger, you cock sucker." He was placed in the Children's Crisis Intervention Service (CCIS) of St. Clare's Hospital for a psychiatric evaluation. Dr. Fausia Mahmood determined that J.A. had impulse control disorder and adjustment disorder, in addition to his history of ADHD.
On August 24, 2004, DYFS filed a child abuse/neglect action regarding all three children seeking protective services. That action was given docket number FN-27-05. An order to show cause was simultaneously filed.
On September 9, 2004, J.A. was admitted for a week to the CCIS after he pushed his foster mother, tried to rip off her blouse, and shouted, "Show me your tits, bitch." J.A. also pulled down his pants and shouted, "I'm going to smear poop all over you." J.A. told S.A., Jr. to hit their foster mother, and he did.
Nevertheless, when he returned to school (and while still in foster care), J.A.'s school reported "tremendous improvement" in his physical appearance, behavior, and academic performance. During the separation, DYFS supervised visits between the parents and their children.
Both Mother and Father underwent unremarkable psychological examinations in September 2004. Mother attended a psychiatric evaluation with Dr. Richard Di Turi on September 13, 2004. Dr. Di Turi found that Mother was suffering from major depressive disorder. He recommended that she use medication to combat her depression.
On September 30, 2004, the return date of the order to show cause, a fact finding order was entered after the parents agreed to submit to the jurisdiction of the court by stipulating that the conditions in their home had presented safety hazards placing their children at risk. The court ordered that, based on the compliance the parents had demonstrated, the children were to be returned to their physical custody. Pursuant to the court's directive, but over DYFS's objection, the children were returned to their parents in October 2004.
From October 2004 to April 2005, DYFS continued to be concerned about the cleanliness of the house and the children, and whether the children were being fed. Caseworkers reported that the boys choked, pushed, and punched each other. During this time, the family attended Family Preservation Services (FPS) for five weeks to obtain assistance with food, clothing, finances, and time management. They also attended therapy at a Family Enrichment Program (FEP), and Mother attended individual therapy. The parents missed several sessions, and never returned the FEP worker's calls. When they did come, the parents did not discipline their children. J.A. often came to the sessions dirty, smelling soiled, and without socks or underwear. FEP found that neither parent had insight into the reasons for DYFS's involvement. Nevertheless, both parents completed a parenting class. Additionally, although they were referred to the Office of Temporary Assistance for help with paying their mortgage, they did not follow through.
J.A.'s school advised DYFS that on December 7, 2004, Mother brought J.A. to school late, and when she brought him inside, she left the other two children in the car. Three-year-old S.A., Jr. got out of the car and stood in the cold and rain, without shoes or a coat, screaming and crying. He, as well as S.A., were filthy. J.A. smelled of urine. Neglect was substantiated for both S.A. Jr. and S.A.
In March 2005, J.A.'s school reported that he had missed twenty-nine days of school and had arrived late ten days. It appeared that J.A. was not being given his medication regularly, which caused him to have temper tantrums. J.A. told his counselor that there was often no food in the home and he came to school hungry because he had not been fed dinner.
On April 12, 2005, DYFS received a referral from J.A.'s school stating that he had several bruises on his arm and hip and said he did not know how he got them. When a caseworker went to the home that day, J.A. told her that he got his bruises jumping over a deck railing into stones in the driveway. S.A., Jr. was naked, and S.A. was wearing a shirt and no diaper.
S.A.'s shirt was "totally soiled with crusted food stains and dirt, her hair was matted, and her face was covered with dirt and what appeared to be dried food." The worker observed S.A. pick up trash from the floor and put it in her mouth. S.A., Jr. had bite marks that he said were inflicted by his brother. The boys ran around the living room hitting, kicking, and punching each other without redirection from Mother. When the worker asked J.A. to speak with her, he called her an "asswipe." He started hyperventilating, crying, and yelling, then ran and threw himself into the wall. He also stood against the wall and banged his head into it. Although Mother tried to stop this behavior, she was unsuccessful.
The house was in a "deplorable" condition, with garbage, animal and human feces, and urine spread throughout. The refrigerator held only a nearly empty milk container and no food. The surfaces were soiled with food and dirt. The beds had no sheets. The house was infested with flies and gnats. The worker told the parents that certain work needed to be done that night, and that someone would return "within a week" to verify that the home had been cleaned.
The next day, the worker had a meeting with the FEP staff, who felt that no progress had been made with the family. The worker also talked to personnel at J.A.'s school, who told him that J.A. was very upset that day because his mother told him that if he talked about home any more, he would not be allowed to go to school. The worker returned to the home that afternoon. No improvements had been made to the cleanliness of the home because, according to Mother, they had not had time. The hands and feet of the children were black with dirt, but Mother said that the children were bathed every night before bed. When Mother tried to hug S.A., S.A. Jr. punched her and hit S.A. in the face. Mother laughed and told S.A., Jr. that it was not nice to hit his sister. She then leaned forward and growled in S.A. Jr.'s face, and then laughed. S.A., Jr. walked barefoot through the soiled cat litter box in the kitchen. S.A. picked up a foil-wrapped pink pill from the floor. When neither parent noticed, the worker took the pill - a Tylenol chewable -away from her.
Neglect was substantiated. The worker provided the parents with a Notice of Emergency Removal and left with the children. On April 15, 2005, DYFS filed an amended complaint and an order to show cause. On the return date of the order to show cause, April 28, 2005, the court ordered that the care, custody, and supervision of the children continue with DYFS.
S.A., who was twenty-seven months old when removed from her parents, was placed into her current foster home in June 2005, where she has resided for the last three years and four months. S.A., Jr. was placed in a separate foster home, but due to behavioral problems, he was moved repeatedly.
During his pre-placement physical, it was determined that J.A. had multiple cavities and two teeth broken to the gum line. J.A. was placed in five different foster homes, but due to the foster parents' inability to control his behavior, J.A. was returned home on June 3, 2005. An aide was placed in the home for five hours a day, seven days a week.
In an attempt to stabilize the family, DYFS required them to attend intensive therapy with Family Preservation Services during the summer of 2005. They had forty-six hours of intervention over five weeks. They did not appear for two sessions. At the end of the intervention, their goals were partially achieved. Despite the intensive therapy, J.A.'s behavior deteriorated and on the recommendation of J.A.'s psychiatrist, the court ordered him to be put in the Holley Center, a residential home for emotionally disturbed children, where he has remained since September 2005, except for weekend and certain other visits home.
Prior to his removal, however, the entire family was given psychological examinations by Dr. Rachel Jewelwicz-Nelson. After administering various tests to Mother, Dr. Jewelwicz-Nelson found that the results indicated Mother had "the intellectual understanding and skill base to be an appropriate parent," but that the results were at odds with her history. The doctor found that Mother exhibited "little insight, no introspection and minimal remorse for her situation." She externalized blame, and accepted limited responsibility for her actions.
As with his wife, there was a discrepancy between Father's test scores, which were normal, and his history. Father externalized blame and did not accept responsibility for his actions or their outcomes. He did not understand his children's need for discipline and consistency. Father acquiesced to his dominant wife.
Dr. Jewelwicz-Nelson saw the entire family during a bonding session. J.A. was "extremely possessive" of his parents and jealous of his siblings, particularly S.A., Jr. When the parents said, "no" to J.A., he responded, "I'll bash your brains in." J.A. hit and bit his parents. Dr. Jewelwicz-Nelson observed that the parents responded "poorly" to J.A. S.A. appeared "relieved" to depart from the session. After evaluating the children and the family as a unit, Dr. Jewelwicz-Nelson determined that they were not ready to be reunified.
In November 2005, S.A. was diagnosed with "significantly delayed" language skills. She was given an Individualized Education Program.
In May 2006, DYFS filed a complaint for guardianship and to terminate the parental rights of Mother and Father to the three children.
Mother had begun individual therapy with FEP clinician Michelle SanGiovanni in April 2005. By May 2006, Ms. SanGiovanni believed that Mother was gaining insight into her problems and taking responsibility for her previous actions. Mother had gained "significant insight" into the neglect issues. She maintained appropriate cleanliness of her home and appropriate personal hygiene. Mother attended her medication monitoring appointments.
Father had attended individual therapy sessions from November 2004 through December 2005, and then resumed individual therapy in February 2006, with FEP clinician Carla Brinker. By May 2006, Ms. Brinker noted gains in his understanding of his wife's depression, the negative patterns of his family, and DYFS's concerns. He better understood J.A.'s problems and its impact on the family. Ms. Brinker believed that Father was benefiting from the therapy.
During this time, the parents continued to attend the Therapeutic Supervised Visitation Program (TSVP) and attend weekly couples' therapy. They also attended counseling sessions at the Holley Center every other week. At some point, J.A. began weekend visitation with his parents at their home.
In September 2006, the parents lost their house to foreclosure. Even though they had inherited it, they had taken a mortgage to pay off debts associated with the house and the estate, and to fix household items, as required by DYFS. They were unable to manage the mortgage payments after the adjustable rate mortgage reset and Father had quit his job in February 2006.
Regarding his job loss, Father explained that the check he sent to pay for his driver's license renewal had bounced, but he was not aware that his license had been suspended until he was pulled over and advised by the police. During the time his license was suspended, he had driven a State vehicle, and when his boss found out, he suspended Father without pay. Father needed a full-time income, so he quit. Father also explained that he had taken a lot of unpaid time off from his job to attend visitation and other DYFS-related appointments, and his boss was not happy. Father and Mother started a business cleaning up properties, but discontinued it when DYFS, as well as potential lenders, told them that they needed verifiable income, not the cash income they received from the business.
During this time, Mother went off her medication because Father had lost his health insurance when he quit his State job. Mother did not tell her counselor for six weeks, but when she did, FEP and DYFS advised her how to obtain financial assistance for her medication and she eventually resumed taking it.
At the time of trial in November 2006, Father worked as a mechanic for an individual who paid him twenty dollars per hour, but did not take taxes from his pay. He had no medical insurance. One month prior to the trial, Mother started working nineteen hours a week at a pet store, earning nine dollars an hour. When they lost their house, they moved into the Father's father's home, which was a three bedroom ranch on a large piece of property.
Psychologist Elizabeth Smith was retained by S.A.'s Law Guardian to conduct a bonding evaluation regarding S.A. and her parents and foster parents, which she performed in June and July 2006.
From Dr. Smith's interview with Father, she learned that he thought that DYFS had overblown the severity of the situation. He denied that his children or their clothes were unclean, and did not believe that his house was unhealthy. He denied that there were fleas or gnats in the home or that his children had any bites. He also denied that the children were malnourished. He claimed any minor problems in the house were due to his wife's depression and their difficulty training their pit bulls. Father believed that all of J.A.'s problems arose as a result of his being separated from his family. He noted that the doctors wanted them to medicate J.A. when he was two or three years old, but they refused. He denied that J.A. ever bit S.A., Jr.
According to Dr. Smith, Father minimized all of the family's problems.
Mother, however, admitted some problems. She admitted that the house was not clean and that the puppies had been a problem, but believed DYFS grossly exaggerated the situation. She was depressed and "couldn't get it together." She too believed that J.A.'s problems were the result of his removal by DYFS. She contended that when S.A. picked up the pill off the floor it was only Mylanta, and it was "no big deal." She also claimed that the children's immunizations were up-to-date, but later admitted they were not. Mother believed that she had benefited from therapy and medication and had the situation in hand. Dr. Smith found the degree of Mother's denial "really stunning."
Dr. Smith also held a session with the siblings. S.A. and S.A., Jr. arrived first and played appropriately. J.A. arrived and for ten minutes, everything was fine. J.A. then went out of control, screamed, and threw things. He wrapped a tie around a doll's neck and said, "I'm hanging you bitch." He also yelled, "You people are trying to break up my family and I'm not going to let that happen." S.A., Jr. became agitated, but S.A. went "blank." J.A. then took a pill from his pocket and put it in S.A., Jr.'s mouth. J.A. and S.A., Jr. started wrestling and punching each other. When Mother and Father came, he calmed down.
Dr. Smith described the incident as the "most dramatic, intense, out-of-control behavior that I've ever experienced in an evaluation of this kind." She believed that J.A. would be an "incredibly challenging" child to any parent. She noted that J.A. was the only child at home in the summer of 2005, but he still had to be institutionalized. If S.A. were returned home with her brothers, she would be at risk of physical harm. Her behavior during J.A.'s outburst was the beginning of a dissociative process where she would "blank out" when her brothers were around.
Dr. Smith also interviewed the foster parents, S.K. and P.K., and found them to be "appropriate, warm" people who provided S.A. with a stimulating environment. When S.A. was first placed with them, she was malnourished, her ears were full of wax, and she would sit and rock. The foster parents obtained early intervention services in speech and physical therapy for S.A., and also took her to ballet lessons. Dr. Smith found that S.A. was in a stable environment with people who could meet her needs.
Dr. Smith opined that S.A.'s best interests were to stay with her foster parents and be adopted by them. Dr. Smith found that both biological parents were naïve and superficial in thinking that everything would be acceptable. Dr. Smith believed that their understanding and insight were so superficial that S.A. would be at risk. According to Dr. Smith, the circumstances that led to S.A.'s removal had not been addressed and the problems would recur; the parents could not keep a healthful, stable environment and could not manage J.A. and S.A., Jr. Dr. Smith opined that although S.A. had an attachment to her parents, they would fade in her memory and losing them would not cause a great deal of distress for her.
Moreover, S.A. would be at risk of emotional harm if she were removed from her foster parents. She had a strong attachment to her foster parents and removal would cause her trauma in losing them and her stable home. Were she to be reunited with her parents, she would suffer regression in her development and behavioral problems. S.A. had already been removed from her parents' home twice and another removal would be "absolutely disastrous." Dr. Smith acknowledged that losing contact with her brothers would be "sad," but believed that factor was not enough to outweigh the benefit of living in a stable environment with people who could meet her needs.
Dr. Frank Dyer, an expert in clinical and forensic psychology, conducted an evaluation of the family for DYFS in October 2006. He interviewed the parents and administered psychological tests to them. Father told Dr. Dyer much the same as he told Dr. Smith: that DYFS overreacted and exaggerated the family's problems. He recalled a DYFS worker telling him that DYFS was allowed to lie in order to reach their goals. Father believed that the family's circumstances had been temporary and not harmful to the children. His wife was a good mother who had become incapacitated by her depression. He believed that they were effective in controlling J.A.'s behavior and noted the incident at Dr. Smith's office, when the only thing that calmed down J.A. was their arrival. They had no plan for J.A.'s special needs. He also blamed DYFS for the deterioration of the family's finances. The way he saw it, he had to quit his State job when the visitation schedule caused him to miss too much time from work. He then started a successful yard cleaning business, but had to give it up when DYFS told him that he did not have verifiable income. He related that when he quit his State job, he lost his medical benefits, so he could not purchase the medication his wife needed to control her depression.
After administering psychological tests, Dr. Dyer determined that Father had no severe psychological problems, but he did have an adjustment disorder. He also found Father to be passive, dependent, and accommodating, which made him unwilling to confront his wife about the problems stemming from her depression. Further, he was not able to impose structure on his children.
Mother's narrative to Dr. Dyer was also similar to what she had told Dr. Smith. She had suffered from depression since she was a teenager, but it became severe after her daughter was born. When she takes her medication, her condition improves. She denied that J.A. had any serious behavioral problems, and she denied that S.A. had a language disorder. She had no plans to address their special needs. After administering psychological tests, Dr. Dyer concluded that Mother suffered from major depressive disorder to the point where she could be incapacitated, but she was in remission at the time he saw her.
Dr. Dyer attempted to evaluate J.A. and S.A., Jr. However, when J.A. came to the office, he pressed himself against a plate glass door. When Dr. Dyer told him that he would hurt himself, J.A. told him to "back off," and then threatened to kick the glass. S.A. Jr. then arrived and J.A. would not go into Dr. Dyer's office without him, so Dr. Dyer acquiesced. J.A. started to work on the task Dr. Dyer gave him, but then said he was not staying, and went into the waiting room. S.A., Jr. followed. The boys then ran around and tore up the office. J.A. was physically aggressive toward Dr. Dyer, a transportation aide, a caseworker, and another patient in the waiting room. Dr. Dyer called the police, who were able to subdue J.A., only by threatening to handcuff him. The officers called the crisis center at Mountainside Hospital, and J.A. bit the worker who transported him there.
Dr. Dyer stated that J.A. had "extremely severe behavior problems," and had problems in the top five percent of all of the children he had seen since the early 1980s. Dr. Dyer was particularly concerned with J.A. because, unlike most problem children, J.A.'s outbursts were not a "disorganized discharge of aggression." Rather, J.A. displayed a "calculating pattern" to intimidate adults. This pattern was harder to modify given its deliberate nature. The parents' parenting style reinforced J.A.'s behavior. Dr. Dyer opined that the parents were not "equipped" to handle J.A. However, he also felt that J.A. was not an adoptable child. J.A. expressed that he did not want to be adopted and, therefore, opined Dr. Dyer, he would manipulate the situation through his behavior to avoid that scenario.
S.A., Jr. was at risk for developing the severe problems that J.A. had. S.A., Jr. was capable of significant behavioral changes in the "right type of structured environment" where rules and consequences existed. Dr. Dyer felt that if J.A. was not in the house, S.A., Jr. could ...