On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-207-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Sapp-Peterson.
Defendant A.K. appeals from a June 5, 2008 Family Part order terminating parental rights to her three children, M.K., M.R. and Z.K. We affirm, substantially for the reasons stated in Judge Hayden's comprehensive written opinion dated May 29, 2008.
A.K. has two daughters: M.K., born January 26, 2000; and M.R., born April 29, 2002. A.K.'s son, Z.K., was born on December 12, 2005. The children all have different fathers, whose rights have also been terminated, and who have not appealed to this court. Both M.R. and Z.K. were born exposed to marijuana.
A.K. and her family were first referred to the Division of Youth and Family Services (DYFS or Division) in December 2000. DYFS has twice taken custody of her children. M.K. and M.R. were removed from A.K.'s care at "[t]he beginning of 2004," but were later returned to her in October 2005. All three children were then removed from A.K. in June 2006, when she last had custody. In total, A.K. has been referred to DYFS approximately twelve times.
A. Referrals and Removals
At trial, the factual background concerning A.K.'s various interactions with the Division was chronicled in the testimony of Kanella Phelps, the DYFS supervising caseworker for the subject family; Beth Watkins, a DYFS exchange specialist; as well as Andre Reeves, a DYFS adoption worker.
In June 2000, A.K. brought M.K. to a hospital emergency room in Newark, and fell asleep while supervising M.K. Hospital workers had difficulty rousing her, and also discovered she had no medical insurance, nor information as to M.K.'s medical history. DYFS initially opened its case as a result of this incident.
In July 2002, A.K. was referred to DYFS because she was "being physically aggressive towards [M.K.] and verbally aggressive." Upon information provided by O.K., A.K.'s father, the DYFS referral report also alleged that A.K. was "drug involved."
In December 2003, A.K. was referred to DYFS after A.K. brought M.K. to the hospital, at which time M.K. "complained that her vaginal area was sore." Phelps further testified that "[s]exual abuse was substantiated," as committed by "[T.K.], her cousin." According to Phelps, A.K. "wasn't surprised" at the incident of abuse by T.K., because T.K. "was caught rubbing pants with one of her nieces. So, they knew that he was prone to such behavior." Phelps testified that A.K. and K.K. (her sister) took M.K. and "left the hospital against the Division's advice and the medical staff['s] advice." DYFS thereafter conducted a search for A.K. and her family so that M.R. could also be examined for evidence of sexual abuse, but they could not be located. According to Phelps, this incident gave rise to concerns about K.K., as she had assisted A.K. in concealing the children from the Division.
Thereafter, in March 2004, the children were removed from A.K.'s care due to her failure to follow through with prescribed services, and her general evasion of Division supervision. Reeves testified that M.K. and M.R. were placed with K.K. in March 2004, and returned to A.K. in October 2005 after a brief stay with their maternal great-grandmother, F.P. F.P. was eventually ruled out as a possible placement for the children because, during this period, F.P. allowed the children to come into contact with T.K.
A.K. was again referred to DYFS in December 2005, when Z.K. was "born exposed to marijuana." DYFS did not then take custody of Z.K., M.K. or M.R., but did add Z.K. to the protective services litigation.
In June 2006, A.K. was again referred to DYFS because, according to Phelps, "the family didn't have operable utilities in their apartment," specifically referring to the lack of electricity in the home. This was apparently discovered when an investigator from the prosecutor's office interviewed M.K. while the girl was at school. DYFS paid for the restoration of utility service at A.K.'s home.
Following these events, A.K. again tested positive for marijuana, and the children were again removed from her care. DYFS documents also note that A.K. had failed to "take [M.K.] for her sex abuse therapy." All three children were eventually placed with the aunt, K.K.
However, in August 2006, the children were removed from K.K.'s custody because, according to Phelps, "we got a report that [T.K.] was frequenting the home and he had even spent the [night] in the home and shared a bedroom with [M.K.]," whom he had previously sexually assaulted. Indeed, a contemporaneous DYFS report indicates that T.K. was actually living with K.K., and sharing a room with M.K. Phelps testified: "Our concern with [K.K.] was that she wasn't safeguarding [M.K. and M.R.] from the perpetrator of the abuse." However, Phelps noted that the referral was not "substantiated."
Z.K. was subsequently placed in the care of a maternal cousin, D.H.; M.K. and M.R. were placed in foster care, provided by Tri-City Peoples Corporation. A.K. and K.K. were permitted to visit with the children at Tri-City, though A.K.'s visits were stopped due to her inappropriate behavior. A.K. visited approximately eight times. A.K. testified that she felt the foster parents mistreated M.K. and M.R. K.K. also visited frequently. According to Reeves, the Tri-City foster parents were not interested in adopting any of the children "because of... the actions of [A.K.]."
In November 2007, A.K. was arrested following an altercation with D.H., and had a physical altercation with D.H. in February 2008. However, A.K. denied having a criminal record.
Phelps and Reeves testified that upon termination of A.K.'s parental rights, Z.K. would be adopted by A.K.'s cousin, D.H., a licensed foster parent. Reeves stated that, at the time of the hearing in this matter, Z.K. had been placed with D.H. for approximately one year. Phelps added that K.K. was interested in adopting M.K. and M.R., though K.K. was not a licensed foster parent. However, Phelps added that even if K.K. "does not work out" for adoption, the sisters would be "adoptable" nonetheless.
At the time of the hearing, A.K. testified that she had a three-bedroom apartment, was working in her father's business for the sum of $200 per week, and that she was also self-employed as a hair stylist. She had been working with her father, O.K., for three years, but could not prove her employment because the work was "under the table." A.K. acknowledged that she ...