On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-164-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sapp-Peterson and Alvarez.
In these consolidated appeals, C.M. (the mother) and B.B. (the father) appeal from a judgment of guardianship terminating their parental rights to six children, who are now between the ages of two and twelve. All six are the biological children of C.M. Five are the biological children of B.B. The children are: De.M. (girl), born July 15, 1996; T.M. (boy), born March 26, 1998; D.M. (boy), born July 18, 2000; A.M. (girl), born August 28, 2001; Al.M. (girl), born September 18, 2002; and M.M. (girl), born March 23, 2007. B.B. is not the biological father of De.M.*fn3
Defendants argue that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. C.M. presents the additional argument that, even if the Division proved each prong as to the child who was most severely beaten (D.M.), it failed to make the required showing for all of the children. B.B. presents the additional argument that the trial judge erred in failing to consider in her written opinion an unpublished opinion of this court, which counsel for B.B. brought to the judge's attention. The law guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm the termination order. We reject the arguments presented by C.M. and B.B. and affirm.
C.M. and B.B. have never been married to each other. They had an ongoing relationship for more than twenty years. C.M. has never been employed. She receives social security disability benefits, due to being blind in one eye. She has a significant substance abuse history. She was a regular user of cocaine and heroin for a number of years, including during periods of pregnancy. She was later on a methadone program. She has also abused alcohol. B.B. was employed at the time of trial, earning about $21,000 per year. He has had a history of unstable living arrangements. He did not regularly live with C.M. and the children they shared in common. Both parties have exhibited and been diagnosed with personality disorders and low levels of intellectual functioning.
B.B. has a significant criminal history. He has a history of physical abuse against C.M., who has been passive and suffered the abuse without ever filing charges against B.B. Both parents have regularly engaged in excessive corporal punishment of the children. C.M. has been the more culpable in this regard. Both parents have struck the children, sometimes using objects such as a belt, other times using a closed fist or an open hand. Some of the beatings have been severe, resulting in injuries and hospitalization.
The Division's initial involvement with the family occurred in 1991, when C.M. brought her daughter De.M. to the hospital claiming she fell down a flight of stairs. Abuse or neglect was not substantiated. When D.M. was born on July 18, 2000, he tested positive for cocaine and methadone. He remained in the hospital for about two weeks, and was released to a Division-approved foster home pursuant to a fifteen-day informed consent signed by C.M. D.M. returned to C.M.'s care in November 2004, but later returned to the same foster placement in which he was originally located and remains there at this time. When A.M. was born on August 28, 2001, she too tested positive for methadone exposure. On September 18, 2002, Al.M. was also born exposed to methadone.
In April 2003, the family was evicted from their residence for nonpayment of rent. DYFS referred the family to the Red Cross for housing assistance. Suitable housing was obtained and the Division procured assistance with furniture through the Salvation Army. The case was closed in July 2003.
The case was reopened on January 10, 2006, when the Division received an anonymous referral through school officials reporting that five-year-old D.M. had bruises on his torso. The school nurse observed the bruises from D.M.'s "mid-abdomen going around his back." D.M. stated that his mother beat him with a belt. At that time, C.M. and B.B. lived at the Starlite Motel in Jersey City with S.M., De.M., T.M., D.M., A.M., Al.M. and C.M.'s biological niece. The investigation revealed that school officials had concerns that D.M. complained of his back hurting and he often came to school hungry. When interviewed, D.M. stated that his mother "whooped" him that morning, the night before, and the night before that, all in front of his siblings. D.M. said his mother uses three different belts on him, makes him pull down his pants and lean over the bed, where she beats the back of his body, and then makes him turn around and "w[h]ack[s]" his legs. D.M. reported that his father also beat him with his belt and hit him in the face with a closed fist the previous Monday. D.M. said he was very afraid of his parents and they were always mean to him. Bruises, swelling, and other marks on D.M.'s body were consistent with the abuse he reported. He had a fever of 105 degrees. In a further interview, D.M. revealed that he gets beaten with belts, hot wires, brooms and irons. D.M. was taken by ambulance to Jersey City Medical Center, where he was admitted to the pediatric intensive care unit.
The other children corroborated D.M.'s reports of physical abuse. T.M. confirmed that he saw all three instances in which D.M. was beaten over the previous three days. T.M. also reported that his father hit him with a belt on his knees the day before. He stated that all of the siblings get beaten, but that D.M. gets beaten all the time by both parents. De.M. and C.M.'s niece also reported seeing D.M. beaten by both parents. They both said they had also been hit, although not as often as D.M. C.M.'s niece said she saw someone get hit at least once a day.
On that day, January 11, 2006, an emergency removal was effected, and C.M. was arrested on charges of second-degree endangering the welfare of a child. B.B. was not charged. He and C.M. stated that she hid the beatings from him and he had no knowledge of them. C.M. was incarcerated in default of bail and held until July 2006. In October 2006, she was convicted and sentenced to three years imprisonment. She was released to a halfway house in May 2007. While in prison, she gave birth to M.M. on March 23, 2007. M.M. was immediately removed and placed in a foster home, where she has remained ever since.
All of the other children have remained in foster placements since their removal on January 11, 2006. D.M. is living with the same foster parent with whom he was originally placed after his birth in 2000. He is bonded with his foster mother, who wishes to adopt him. A.M. and Al.M. have been in the same foster home since July 2007. They have a close attachment with their foster family, and their foster mother wishes to adopt them. De.M. has been in the care of her paternal grandmother since July 2007. The relationship is healthy, happy and wholesome, and her grandmother wishes to adopt her. M.M. has been with the same foster family since her birth, and her foster parents wish to adopt her. At the time of trial, T.M. was not in a pre-adoptive home, and select home adoption was planned for him.
The Division made numerous contacts with relatives, seeking appropriate placements. Except as we have stated, those efforts were unsuccessful.
On March 9, 2006, Dr. Robert Kanen performed a psychological evaluation of B.B. B.B. was then living with two friends in a small apartment. He admitted to a history of cocaine abuse which ended when he stopped using on his own ten years prior. He revealed two prior arrests, for shoplifting and domestic violence. He denied any knowledge of C.M.'s beating of the children. He admitted using mild corporal punishment on each child by hitting them on the behind once or twice. He acknowledged that C.M. had a heroin addiction and took methadone but thought her drug use did not have a negative impact on the children. He said he was not living with C.M. and the children at the time the children were removed.
Dr. Kanen concluded that B.B. demonstrated borderline intelligence and evidence of longstanding personality problems. He found B.B. extremely self-centered and felt he would be "unlikely to be able to adequately recognize physical and psychological dangers to his children and demonstrate good judgment in keeping them safe from harm." He found B.B. "chronically angry, irritable, moody, mistrustful," lacking in insight, and having "little patience with childcare demands and challenges to his authority." He concluded that B.B. could not "adequately provide a safe, secure and stable home for his children" and "returning [them] to his care would expose [them] to an unnecessary risk of harm."
On April 19, 2006, Dr. Kanen evaluated C.M. while she was incarcerated. C.M. admitted to sniffing cocaine every day for four years after her brother's death and using alcohol and heroin two to three times per week. She attended a methadone program for about five years, but was never in an inpatient program.
Dr. Kanen found that C.M. showed evidence of "severe parenting deficits," including longstanding personality problems, attention-seeking and impulsively violent behavior, lack of insight, depression, and a generalized anxiety disorder, all of which lead her to feel "overwhelmed with the demands of daily life and childcare." Noting her history of drug abuse, Dr. Kanen concluded that her "prognosis for change is poor" and she poses a "great risk of relapse back to cocaine use" after her release. He found that she had "no realistic goal to take care of her children" and was unable to care for them. He concluded that returning the children to their parents would expose them to an unnecessary risk of harm.
On May 1, 2006, B.B. contacted a DYFS caseworker. He informed her he had been living on the streets for several weeks. He expressed some willingness to surrender his parental rights to T.M. and D.M., but said he wanted to fight for the two girls, A.M. and Al.M.
At a hearing on May 3, 2006, C.M. and B.B. waived their rights to factfinding. C.M. stipulated she was unable to care for her children due to her incarceration at that time. Judge DeCastro ordered continued legal and physical custody of the children with the Division.
On July 7, 2006, Dr. Ernesto Perdomo performed psychological evaluations of De.M. and D.M. On July 26, 2006, Dr. Perdomo evaluated T.M. He found no major psychiatric or mental health disorders with the children and recommended counseling, which was arranged by the Division.
At a compliance review on July 26, 2006, Judge DeCastro ordered both parents to submit to a second psychological evaluation and to attend parenting classes. C.M.'s visitation rights were suspended because of her criminal charge. B.B.'s visitation was increased to two-hour biweekly supervised sessions. The Division provided transportation. Over the ensuing months, B.B. was required to submit to random urine screenings, all of which yielded negative results.
On September 12, 2006, B.B. completed joint parenting and anger management classes. C.M. attended some parenting/anger management classes, but missed others before her criminal sentencing on October 27, 2006. On January 3, 2007, Judge DeCastro entered a permanency order, approving the Division's plan of termination of parental rights and adoption for De.M., T.M. and D.M. As to A.M. and Al.M., the court granted B.B. a three-month extension to find a suitable apartment with the Division's assistance. (M.M. was not yet born.) The court found that the Division had offered reasonable efforts, including housing assistance, evaluations, parenting skills, random urine screenings, and visitation. The court approved termination of parental rights because "mother [was] incarcerated and unavailable for services due to child abuse. Father lacks housing and has not complied with family therapy as to [T.M. and D.M.]."
On the next day, the Division learned that C.M. was pregnant. While in prison, C.M. began parenting skills training and a drug support group. B.B. expressed to a caseworker that he could not care for the new child because of his ongoing efforts to regain custody of his other children. He also stated he found an appropriate apartment and requested that the Division evaluate it.
On January 23, 2007, the Division received a background check for B.B. which revealed a significant arrest history, including charges of possession of cocaine, shoplifting, hindering prosecution, simple assault against C.M., simple assault in a street fight, terroristic threats, and open warrants for failure to appear and contempt of court.
On March 30, 2007, the Division filed its guardianship complaint seeking to terminate parental rights as to T.M., D.M. and De.M. The court issued a case management order directing C.M. to contact the Division after her release from the halfway house to inquire about services and visitation. On April 27, 2007, further psychological evaluations and bonding evaluations were ordered. On May 21, 2007, C.M. was ordered to attend anger management, and the court requested an opinion from the Division's psychologist, Dr. Frank J. Dyer, as to whether visitation and family counseling would be appropriate for C.M. On the same day, the court entered an order approving termination of parental rights and adoption as the appropriate plan for A.M., Al.M., and M.M. At the time, C.M. lived in the halfway house, until her release on July 11, 2007. B.B. was incarcerated and lacked housing at the time.
On July 30, 2007, the Division amended its guardianship complaint to include termination of parental rights with respect to A.M., Al.M., and M.M. Bonding evaluations for the children with their biological parents and foster parents were ordered. On August 2, 2007, C.M. advised a DYFS caseworker that she and B.B. were willing to surrender their rights to D.M. and possibly De.M. if she was happy living with her grandmother. On October 25, 2007, C.M. reiterated this possibility as to D.M.
C.M. completed parenting classes on August 7, 2007 and anger management classes on October 29, 2007. She also participated in a substance abuse program during this time and consistently passed negative urine samples. ...