On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-124-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Waugh and Newman.
S.A. had four children by four different fathers. Jenny was born on August 8, 1992, to S.A. and J.R. Jenny presently lives with her father in North Carolina and was not a party to this proceeding.*fn2 Cindy was born on June 23, 1994, to S.A. and C.T. Her father is presumed dead and has not participated in these proceedings. She is living in North Carolina with her sister Jenny and J.R. He is married and seeks to adopt her. Mary was born on February 22, 1999, to S.A. and J.C., who was deported to El Salvador and was imprisoned there. His whereabouts were unknown and he has not participated in these proceedings. Andy was born on June 3, 2004, to S.A. and A.P., Sr. (A.P. hereafter) who has participated in these proceedings. Both S.A. and A.P. appeal from the order terminating their parental rights. We affirm the order of termination of parental rights of S.A. as to Cindy and Mary. We reverse the order of termination of parental rights of A.P. as to Andy and remand for further evaluation in connection with the fourth prong of the best interests test. In light of the remand and the fact that S.A. and A.P. are still married, we await the remand proceedings completion and review thereof before passing judgment on S.A.'s parental rights to Andy.
The history of the Division of Youth and Family Services (DYFS) with this matter began on January 24, 2003, when a referral was received that Jenny had been sexually abused by a maternal uncle. The charge was substantiated. The family was referred to and cooperated with sexual abuse family education. Although DYFS closed the case, it continued supervision.
S.A. and A.P. were married on April 1, 2004. DYFS received a referral that A.P. was engaging in inappropriate sexual contact with Jenny. She alleged that A.P. had touched her breasts on three separate occasions. A.P. admitted that he accidentally touched her breast on one occasion when he was opening a curtain and she was directly behind it. Following an investigation, the charge was found to be unsubstantiated. A.P. was directed to leave the household. In May 2005 DYFS received a referral that Jenny indicated that A.P. was coming to the house at night and leaving in the morning. Jenny reportedly did not want DYFS to take her away from her mother so she did not report it. Cindy corroborated that A.P. had been coming to the house at night and sleeping over when she was interviewed at her school. S.A. denied that A.P. had been coming to the house. She said she saw A.P. once a week when she met him at a park so that he could visit with Andy.
There were various visits by DYFS and Metropolitan Homemaker Services checking on the residence. It was reported that it was dirty and there was garbage and roaches in the apartment. This ultimately culminated in a visit on August 8, 2005, where the caseworker found the home to be messy, having a bad odor and no food in the house. A neighbor reported that she was constantly feeding and washing the children. DYFS received a referral, describing the deplorable condition of the household. It was noted that there were roach nests on the floor, standing water in the bathtub which was clogged and a mattress had caught fire sometime during the prior week and had not been reported. The health department had been contacted.
On August 12, 2005, the caseworker performed another home inspection and at that time, the tub was clogged and there were candles burning in the bathroom. The building superintendent reported that the roach problem had gotten worse since S.A. had moved in. Cindy indicated that she had gotten into a fight with her mother and her mother had punched her in the face. The DYFS caseworker went to the babysitter who watched Mary and Andy and lived across the street from S.A.'s home. She told the caseworker that S.A. paid her monthly for baby-sitting and that she used this money to buy food for Andy.
All four children were removed via emergency removal without a court order on August 12, 2005. Jenny and Cindy were placed with the same foster mother; Mary was placed with a different foster mother; and Andy was placed in a third home.
S.A. was evicted on August 18, 2005, because of damage to the apartment caused by "willful negligence in maintaining the premises in an uninhabitable condition."
Supervised visitations were arranged by DYFS, beginning August 22, 2005. S.A. visited with all four of her children. A.P. visited with Andy. Both S.A. and A.P. consistently attended scheduled visitations. On October 18, 2005, S.A. underwent a psychosocial evaluation from the Audrey Hepburn Children's House. Following testing, the evaluator had this to say about S.A.'s responses:
S.A. invalidated the results by responding in a manner that demonstrated an extremely high frequency of inconsistent answers.
This indicates a highly defensive and deceptive response style and a response style of not taking the testing seriously. [S.A.] did not complete the parenting instruments. Also, [b]ased on the clinical assessment, [S.A.] has a self-centered personality that diminishes her capacity to empathize with her children's negative experiences.
The evaluator opined that S.A. was "defensive in a pleasant, manipulative manner. . . . [S.A.] was an immature and impulsive individual who takes risks without fully appreciating the level of risk involved and the impact on her children."
S.A. was diagnosed with narcissistic personality disorder.
A.P. underwent a psychological evaluation on December 12, 2005. Dr. Harold Goldstein reported that A.P. could neither read nor write in English or Spanish and he only spoke Spanish. A.P. denied ever inappropriately touching Jenny except for the accidental touching that he had previously acknowledged. He told the evaluator that "sexual behavior with an underage girl was wrong no matter what." Having insufficient data to classify the subject as a high risk to engage in sexually inappropriate behavior, Dr. Goldstein found the incidents "to be more situational than predatorial -- the family was living in very close quarters and the children lacked adequate sleeping arrangements." He recommended that A.P. attend "individual and/or group sex offender treatment . . . ." He also indicated that A.P. should not have contact with the three daughters until he successfully completed treatment.
Both Cindy and Mary were evaluated by the Audrey Hepburn Children's House on January 31, 2006. Cindy denied ever being touched inappropriately by A.P. She did report seeing A.P. and S.A. argue and become physically violent toward each other. She also indicated that she saw "A.P. put his foot up [Jenny's shirt] and started touching [Jenny's breasts]." Cindy said she and Jenny had told S.A. about the incident, but S.A. did not believe them.
During her evaluation, Mary indicated a desire to be reunited with her mother. She did admit to seeing her mother and A.P. hit each other as well as seeing S.A. hit Jenny and Cindy with a belt. She denied ever being physically or sexually abused.
Andy needed to be moved from his foster home in April 2006. It became evident that his foster mother was overwhelmed caring for him because of his asthma and need for constant supervision. He had emergency room visits for asthma and related conditions eight times between October 28, 2005, and April 16, 2006. In addition to medical care, he was in need of speech therapy.
DYFS required that all of Andy's caretakers be certified in child CPR.
On April 20, 2006, A.P. was told in person about his son's new placement and reminded that he had court ordered psychosexual evaluation scheduled for April 25, 2006. A.P. acknowledged that he knew about the appointment because he had received a letter in the mail with all of the information. A.P. did not attend the appointment. A.P. missed a subsequent appointment scheduled for May 18, 2006. Dr. Richard Sandoval's office refused to reschedule A.P.'s appointment because he had twice not shown up. The caseworker, in addressing the missed appointments, told A.P. that DYFS could not "cater to him anymore."
On June 23, 2006, DYFS received a phone call from J.R., Jenny's dad, requesting that his daughter be placed with him and his wife in North Carolina. He also indicated he would care for Cindy as well because the sisters were so close.
On August 14, 2006, DYFS conducted an investigation of the home of maternal cousins in Long Island, New York, who expressed an interest in being the caretakers for Andy and possibly his sisters. The caseworker found the home to be neat and clean and the family enthusiastic about the possibility of having Andy live with them.
Andy was moved out of his second foster home in September 2006, when his condition had improved. In the third foster home, the caseworker noticed that the house was messy and Andy had a foul odor with spots on his face resembling bed bug bites. On a return visit, the caseworker found Andy in better condition but the home was messy and there were dirty dishes in the sink. On a subsequent visit on November 29, 2006, the DYFS caseworker found the home was clean and that Andy was "very close" to his foster mother.
In December of 2006, Dr. Ernesto Perdomo conducted a psychological assessment of S.A. and her children. Dr. Perdomo found that S.A. was "a socio-economic, educationally deprived individual who tends to deny any problems and is rather passive- dependent. Her ability to defend her children from further abuse and restrain her impulses is poor . . . . [T]he children would always be at risk if unified with [S.A.]." During the evaluation, Jenny and Cindy "categorically refuse[d] to be reunited with their mother because they don't get along with her." Dr. Perdomo found that Mary "wants to return to her mother [and] . . . is very attached to her mother." Dr. Perdomo found Andy, then two-and-one-half years old, was "still not verbal and . . . need[ed] to receive speech therapy and be evaluated for developmental delays."
On June 25, 2007, Dr. Antonio Burr performed a psychological evaluation of S.A. at the request of the law guardian. Dr. Burr found, with respect to the alleged molestation of Jenny by A.P., that "for [S.A.] the greater violation was not that [Jenny] experienced molestation, or that she failed to protect her, but rather that, [Jenny] told people her problems outside the family and this resulted in the 'loss' of her husband." Dr. Burr did find that S.A. had "loving sentiments toward her children," however her sentiments toward Jenny and Cindy "are tinged with emotional ambiguity and some degree of ...