On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-22-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Grall.
Defendant L.H. appeals from an order terminating her parental rights. She is the mother of two children born of different relationships. T.C., her daughter, was born in December 2000, and H.H., her son, was born in March 2004. The fathers' parental rights have been terminated, but neither father has appealed. The plan for the children is adoption by their maternal grandparents, with whom they have lived since late January 2006. The decision terminating L.H.'s parental rights was issued on April 23, 2008.
There is no dispute that the four-year-old T.C. was sexually abused by her stepfather, J.H. The question is whether the statutory standard for terminating L.H.'s parental rights was met. N.J.S.A. 30:4C-15.1a(1)-(4). The Division and the law guardian for the children contend that the evidence is adequate.
L.H. and T.C.'s father lived together in Ohio but separated within months of T.C.'s birth. Their relationship involved domestic violence. In 2003, L.H., still living in Ohio, met J.H. through his sister who worked with L.H. They dated for about six months and married. When she married J.H., L.H. knew that he had a prior conviction for gross sexual imposition. He told her that the victim was an adult woman with whom he had a dating relationship and that she had filed charges against him after learning she was expecting his child. He said he opted not to contest the charges and had been sentenced to a term of probation and ultimately jailed for violation of the conditions. Members of his family confirmed J.H.'s account, and L.H. believed the explanation and did not consider J.H. to be a person who posed a threat to T.C.
After H.H. was born, the family moved to North Carolina for a brief period and then to New Jersey, where they lived with J.H.'s mother until L.H. found a job and rented a home for her family. J.H., who did not find work, cared for the children when L.H. was not at home.
On September 22, 2005, the Division investigated a report, filed by T.C.'s father, alleging that L.H. and her children were living with a man who was a convicted sex offender. There is no evidence that T.C.'s father had had any contact with L.H. or T.C. prior to filing that report.
T.C. was questioned, and the four-year old, using the term "no-no spots" to refer to genitals, readily gave a child-like but detailed description of J.H.'s conduct which included acts of cunnilingus and fellatio done while her mother was not at home. T.C. said she had told her mother and "they talked about it and then went to bed."
When L.H. was questioned she denied prior knowledge of any abuse of T.C. by J.H. She said that one night T.C. had come into the bedroom she and J.H. shared while they were having intercourse, and she explained that she talked to T.C. after that incident. L.H. also told the investigator that her daughter was educated about the private parts of her body, and she later volunteered that J.H. did not bathe T.C. There is no evidence that L.H. questioned the veracity of the account of J.H.'s conduct that T.C. gave to the investigators. L.H. admitted her knowledge of J.H.'s prior conviction for gross sexual imposition. She was aware that he registered as a sex offender in North Carolina and New Jersey. She later advised that he was ranked in the lowest-risk tier.
J.H. was not at home when the investigators arrived. L.H. and the children were taken to the police station pending his arrest.
J.H. did not deny T.C.'s account of his sexual abuse. He admitted that on one occasion, drowsy from medication, he had taken a nap and woke to find T.C. touching him. He told the investigators that T.C. had talked to L.H. about that incident days after it occurred. He further indicated that when L.H. confronted him, he denied it and L.H. took no action. J.H. was arrested and remained in jail until he pled guilty and was sentenced.
Following J.H.'s arrest, L.H. was permitted to take the children home on the condition she bring them to the New Jersey CARES Institute at UMDNJ for examination. Dr. Martin A. Finkel, Professor of Pediatrics and Medical Director, interviewed and examined the children on September 23, 2005. After speaking to and examining T.C., he credited her account of the abuse. Dr. Finkel also met with L.H. and a caseworker from the Division. Based on L.H.'s statements and "level of distress," Dr. Finkel did "not believe" that L.H. "was aware that anything inappropriate was happening." Noting that "a common response is for moms not to want to believe that inappropriate contact occurred," he discounted the significance of information that T.C. had told her mother about J.H.'s conduct. Dr. Finkel recommended against the removal of the children from L.H.'s care as "too traumatic" for H.H. and "unnecessary."
The Division did not allow L.H. to leave UMDNJ with the children. They were removed from her care and placed in foster care. L.H. agreed to do whatever was necessary to regain custody of her children; her commitment and determination to avoid contact with J.H. and keep him from her children has never been questioned.
L.H. commenced counseling at Salem County Women's Services (SCWS) on September 26, 2005. Through the program at SCWS, L.H. focused on "reducing anxiety and other symptoms of Post Traumatic Stress Disorder associated with losing custody of children, learning of child's sexual victimization, and an abrupt change of family structure." She also received individual counseling there from Rebecca C. LaFleur, M.A.
On September 27, 2005, the Division obtained a court order authorizing continuation of the removal of L.H.'s children on the ground that it was "necessary to avoid an ongoing risk to the life, safety or health of the child(ren)." See N.J.S.A. 9:6-8.28. The order to show cause the Division filed in support of its application includes a reference to Dr. Finkel's confirmation of T.C.'s abuse but not to his recommendation against removal.
On September 28, 2005, a caseworker employed by the Division met with L.H. and the children's maternal grandparents, who traveled from their home in Ohio. The grandparents were willing to care for the children, and L.H. favored placement with her parents over placement in foster care in New Jersey. On October 3, 2005, the Division obtained an order commencing steps for a priority placement with the maternal grandparents in Ohio.
After the children were removed from her care, L.H. was permitted only supervised visitation. She regularly saw T.C. and H.H. on a weekly basis when they were able to attend; one visitation was cancelled due to illness of one of the children. On several occasions, one or both of the children had cold symptoms. L.H. questioned the supervisors about the care her children were receiving. With the exception of a reference to L.H.'s difficulty in "splitting her attention between the" children, the supervisors' reports are positive. The children were happy to see their mother, and T.C. was reluctant to leave her. On more than one occasion, T.C. had to be carried from the room when visitation ended. Once, she attempted to hide under a table.
L.H. continued to work, accepted services offered by SCWS and additional counseling from Janet Barkowsky, LPC, CAC. In November 2005, Barkowsky described L.H. as "in a lot of pain, guilt and shame blaming herself for not 'seeing' what was happening to her daughter" and allowing "herself to be manipulated by her husband." L.H. expressed concern about the Division's delay in arranging counseling for her daughter and anger over what J.H. had done. She was also distressed by her father's recent criticism of her involvement in "poor relationships" and failure to make "good parental decisions." Barkowsky's concern was that L.H. would become over-protective.
On November 30, 2005, L.H.'s children were still in foster care. An order to show cause seeking immediate return of her children to her custody was filed on L.H.'s behalf. By order apparently dated December 12, 2005,*fn1 that application was denied without prejudice to a motion supported by a recommendation of a psychologist the Division retained to evaluate L.H., Dr. Douglas R. Crawford.
On December 13, 2005, Dr. Crawford provided a report based on his clinical evaluation of L.H. L.H. reported a positive relationship with supportive parents and sexual abuse by a cousin that she did not report to her parents. Based upon the interview and the results of diagnostic tests, Dr. Crawford found no evidence of personality disorder, indications of some defensiveness, lack of insight, "interpersonal difficulties," and depression and some evidence of "positive family relationships." He concluded that there was "no substantial evidence of maternal neglect or lack of parental protection" and recommended therapy to improve L.H.'s personality features and alleviate her depressive symptoms. In his opinion her therapy could be managed "without interfering with parenting."
On January 19, 2006, the Division was given a summary of L.H.'s progress in counseling at SCWS. LaFleur described L.H.'s "anxiety about her children's well-being," her regular attendance at weekly counseling sessions and the education provided by SCWS on recognizing signs of sexual assault in children and the "characteristics and tactics of perpetrators." She reported that L.H. was able to look back and identify J.H.'s behaviors that "coincided with those of perpetrators" but not to identify in retrospect changes in her daughter's behavior "that would have signaled abuse." LaFleur recommended continued therapy to deal with L.H.'s "symptoms of Post Traumatic ...