On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-92-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Lisa, Reisner and Alvarez.
Defendant, J.K., appeals from a judgment of guardianship terminating his parental rights to his daughter, A.S.K., who was born on June 16, 1998. Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of proving all four prongs of the best interest test. Defendant also argues that he was denied the effective assistance of counsel and that the trial judge should have recused herself from this case. We reject these arguments and affirm.
Defendant is sixty-seven years old. He is a retired special education teacher. He was previously married in 1967. He and his wife separated in 1977 and were divorced in 1997. He has two grown children from that marriage.
Defendant began a relationship with G.H. in 1993. A.S.K. was born of that relationship.*fn1 A.S.K. was born prematurely and spent the first six or seven months of her life in the hospital. Over the next several years, G.H. spent some time living with defendant in his Somerdale home and some time living in Philadelphia. When she went to Philadelphia, she took A.S.K. with her. According to defendant, G.H. suffers from bipolar disorder and has had a history of hospitalizations in mental health facilities. G.H. was not providing proper care for A.S.K. when A.S.K. was in her custody. In October 2003, the Pennsylvania Division of Human Services placed A.S.K. in defendant's care.
After moving in with her father, A.S.K. attended kindergarten at a local public school. Child study team evaluations revealed that A.S.K. suffered from various developmental disabilities. She was ultimately diagnosed with various conditions, including attention deficit hyperactivity disorder (ADHD) and petit mal absence seizure disorder. She was prescribed medications for these conditions. A.S.K. also exhibited symptoms of post-traumatic stress and "generalized and sexualized behavior difficulties." A.S.K. was provided counseling to address these issues. A.S.K. is a special needs child and a classified student placed in a special education program.
From the time of her placement with defendant, A.S.K. and defendant lived alone in defendant's Somerdale home. On June 29, 2004, defendant and A.S.K. went to Philadelphia. They visited G.H., who was confined in a mental health facility. Defendant dropped off A.S.K. at a relative's home. Defendant then picked up A.S., a fourteen-year-old girl. According to defendant, he asked her how old she was, to which she responded she was eighteen, and said she was living with her grandmother but did not like living there and wanted to leave. Defendant contended he asked her whether she was good with children and suggested she come with him to become A.S.K.'s nanny, to which A.S. agreed.
According to A.S., she was walking across a street when defendant pulled up in his car and asked her to get in, which she did. He told her things that "women would like to hear." When he asked her age, she said, "How old do I look?" When defendant said, "eighteen," A.S. responded, "[i]t is what it is."
Under either version of these events, defendant did not make any further inquiries of A.S. regarding her age, qualifications to be a nanny, background, or the like. And, defendant did not inform A.S.'s grandmother that A.S. would be coming to live with him in New Jersey. It is apparent that A.S. was a runaway, and possibly a prostitute.
With A.S. in his car, defendant drove to the place where he had left A.S.K. While A.S. waited in the car, defendant went in and got A.S.K. The three then proceeded to defendant's Somerdale home.
A.S. admitted that for the next month she regularly engaged in all forms of sexual relations with defendant in the home. She denied that A.S.K. was present during these activities. Defendant denied having sexual relations with A.S., although he acknowledged observing her using sex toys he maintained in his home to pleasure herself. Defendant also denied ever leaving A.S. alone with A.S.K. However, A.S. stated that she often went alone with A.S.K. to various places, including the mall, the park, and the library.
Defendant maintained in his home a large quantity of pornographic materials. He kept a video camera mounted in his bedroom and often videotaped his sexual activities. A.S. acknowledged that defendant videotaped some of their sexual relations. A.S.K. stated that she sometimes watched pornographic videos with her father.
A.S. described an incident in which defendant physically abused A.S.K. From outside the house, she heard A.S.K. screaming. She ran in to see what was wrong and saw defendant holding a "broken tree stick" in his hand. She saw splinters in A.S.K.'s skin "around her buttocks area." A.S. surmised that defendant had just beaten A.S.K.
A.S. testified that she slept in various places in the house, sometimes in the guest bedroom, sometimes in the den, and sometimes in defendant's bed with defendant and A.S.K. (although A.S.K. had her own bedroom in the house).
The Division's involvement in this case stems from an incident which occurred on June 29, 2004, when defendant, accompanied by A.S.K. and A.S., went to the Division of Pensions and Benefits in Trenton. While defendant was in a portion of the building discussing his pension issues, he left A.S. and A.S.K. in the lobby. A.S. absconded with A.S.K. When defendant returned to the lobby and realized the girls were missing, he waited there for a while, then drove around the streets of Trenton looking from them, and finally, after about four-andone-half hours, called the police and reported them missing.
Detective Robin Gittens of the Trenton Police Department accompanied defendant to his home to obtain photographs of A.S.K. and A.S. When Gittens asked defendant if she could conduct a visual inspection of his home for anything that might help in the search, defendant refused to consent until he could obtain the advice of his attorney. Gittens then obtained a search warrant, which she executed on July 1, 2004.
Gittens described defendant's home as "cluttered with excessive pornographic material throughout the home in plain view" and "unfit for the rearing of a child." She observed large quantities of films, videotapes, a video camera in defendant's bedroom, magazines, and photographs in boxes. Defendant later alleged that the police fabricated the scene in order to bring charges against him. He contended he kept these materials in sealed boxes and planned to sell them since A.S.K. moved in with him about eight months earlier.
Describing the video camera in defendant's bedroom, which was aimed at his bed, Gittens said it contained a videotape depicting defendant engaging in sex with a young girl. Gittens "could not see the girl's face but her general appearance was similar to the photograph she had of [A.S.]," and, the girl "appeared to be younger than what [defendant] had told them and . . . did not appear to be eighteen years old." Another video later obtained by the police depicted defendant engaging in sex with three prostitutes between August 4, 2004 and August 20, 2004. One of the prostitutes could be seen smoking crack cocaine from a glass pipe and bargaining with defendant for more drugs in exchange for performing specific sexual acts.
Based on her observations, Gittens referred the matter to the Division. On July 2, 2004, a DYFS worker investigated defendant's home and interviewed defendant about the events of his daughter's disappearance. At that time, defendant's bedroom no longer contained the video camera pointed at his bed.
On July 8, 2004, after nine days of searching, the police received a tip from a Philadelphia woman who saw a picture of A.S.K. in the Philadelphia Inquirer and recalled seeing the girl in the presence of her neighbor. Apparently, when A.S. got to her North Philadelphia neighborhood with A.S.K., she left A.S.K. in the custody of others and A.S.K. was shifted around from time to time to various unrelated and unknown individuals. It is also apparent that during this time, A.S.K. spent some of her time in or was exposed to a brothel.
Dr. Marita Lind, a pediatrician with special expertise in child abuse matters, examined and interviewed A.S.K. the day after A.S.K. was found in Philadelphia. Lind explained that A.S.K. had been "found in the company of people who were believed to be prostitutes in Philadelphia." In her trial testimony, Lind described her interview with A.S.K. A.S.K. described her experiences in Philadelphia as follows:
I asked [A.S.K.] who she was with when she was away from her dad, she said Shenayah (phonetic) and Kate, but I wasn't really sure that she had said Kate so I asked her to repeat that second name and she said [A.S.].
I asked her who those girls were, she said big girls, a lady Lori lives with them -- lived with them. She -- she played with me yesterday, I slept over her house. I asked [A.S.K.] what else happened while she was away, she said men came to the house. I said what happened then. She said they kept -- keep their legs open. I said who keeps their legs open, she said the girls did. I asked who else, she said the lady do. I said what happens then, she said the men open their eyes. I said what else happens, they were slipping on the ground, a lady's foot got broken.
I asked [A.S.K.] when the legs were open what happened, she said men do stuff with their bodies, men touch girls' bodies.
A.S.K. went on to describe events that occurred with defendant, as well as further events in Philadelphia:
At that point, I asked her if anyone had taken any pictures of her with her clothes -- without her clothes on and she said yes. I said how do you feel about that, she said sad and she again was crying. I asked her where did this happen and she said my daddy did it. I said where were you going -- what were you doing and she said getting into the tub. I was -- it was too hot. I asked where else, she said eating bubble gum and in my bed. I help my daddy with my hand, he don't feel good, he don't hurt no more, I was being the doctor. I said how did you help and she said his private part.
I said what do you call that and she said his penis. Daddy took pictures with the camera at the house, I watched a movie. I said did you ever see any of these pictures, she said I watched a movie. I said what was in the movie, she said people were hitting people, people were touching bodies. Daddy was touching a boy, daddy put it in the boy's mouth, the boy was bigger than me. And I said did you see anymore movies. She said the movie of daddy touching me.
I asked [A.S.K.] if she could tell me anything else about going to Philadelphia. She said the girl who took me to Philadelphia was [A.S.]. I said why did she take you there, she took me to keep me safe. I said did that work. She said I felt safe with her but when I was with [A.S.] the grownups hit me. I asked [A.S.K.] if anything else happened, she said daddy was touching ...