On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-16-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Defendants Haley Van Achen*fn1 (Haley) and Jack Von Achen (Jack) appeal from a June 30, 2008 order of the Chancery Division, Family Part, terminating their parental rights to their son Peter Von Achen and awarding guardianship to the Division of Youth And Family Services (the Division or DYFS). We affirm.
These are the relevant facts adduced at trial. Haley, born on April 9, 1978, and Jack, born on April 11, 1978, are the biological parents of five children, four of whom are currently alive: Kevin Von Achen, born on October 15, 2000; Vince Von Achen, born on November 2, 2001; Carrie Von Achen, born on March 10, 2003; Daisy Von Achen, born on February 13, 2004; and Peter Von Achhen, born on August 17, 2007. Defendants' parental rights to Kevin, Vince, and Carrie were terminated on June 18, 2003. Defendants' parental rights to Daisy were terminated on March 16, 2005; Daisy died on March 31, 2005, from complications due to a congenital heart defect.
The Division has been involved with defendants since they were minors*fn2 . On September 8, 1999, the Division was informed that defendants, both of whom have psychological and intellectual limitations, were expecting their first child. A Division caseworker visited defendants, who were residing with Haley's parents, James and Valerie McBride. Haley's autistic brother, Richard, who has a history of violence, was also living there. Upon entering the home, the caseworker noted a "strong cat odor." The home was "messy", "cluttered", with old food on tables, dirty dishes in the sink and on the counter, floors that needed to be vacuumed and mopped and litter boxes that were full and needed to be emptied and cleaned. The Division provided a variety of services to both parents and to the McBrides, including pre-natal services for Haley. On October 13, 1999, Haley delivered a still born child.
Approximately one year later, on October 17, 2000, the Division received a referral from a social worker at Chilton Memorial Hospital. Haley gave birth to a boy, Kevin, and the hospital staff was concerned about defendants' ability to care for Kevin. On October 30, 2000, the Center for Evaluation and Counseling (CEC) conducted an emergency risk assessment of defendants and the McBrides. In what emerged as a persistent and crucial issue in this case, the CEC reported that both parents were "high-risk parent[s]" due to their cognitive limitations, "poor" parenting skills and "poor hygiene." The clinicians observed that defendants "actively endanger[ed]" Kevin by failing to support his head, despite repeated reminders to do so, and by failing to feed Kevin on a consistent basis. The clinicians also opined that the McBrides did not "lower [the] risk to [Kevin]" due to their own "limitations" and their denial of defendants' limitations. Therefore, the Division retained custody of Kevin while providing a variety of services to the family.
On May 15, 2001, Dr. Paul Garson conducted psychiatric evaluations of defendants and the McBrides. Dr. Garson reported that Haley had "mild" mental retardation with a full scale Intelligence Quotient (IQ) of sixty-two, while Jack had a full scale IQ of seventy-three. Dr. Garson opined that defendants were "not capable of caring for [Kevin]." He also noted that the McBrides had "an unrealistic concept of what is needed to raise a child." Dr. Garson opined that Kevin "should not be returned to the [Von Achen]-McBride family . . . ."
Hayley gave birth to a boy, Vince, on November 2, 2001, and the Division obtained custody of the infant on November 8, 2001. The Division continued providing the necessary services to the family. However, a clinician reported that she was "highly concerned" because defendants were "still not learning basics such as infant feeding schedules" or supporting the baby's head at all times. A clinician was also concerned with defendants' "ability to learn" parenting skills because they "have failed to demonstrate comprehension of the material." On April 25 and May 14, 2002, Dr. Susan Herschman conducted psychological evaluations of both Haley and Jack and bonding evaluations with Kevin and Vince. Dr. Herschman's observations were consistent with those of Dr. Garson. Dr. Herschman was "great[ly] concern[ed]" that defendants "have had weekly visitations with [Kevin and Vince] yet seemed to have retained little from the parenting classes and other therapies they have had." She opined that defendants' "many limitations" and "parental deficits" would cause the children to "suffer significantly."
On January 17, 2003, the Division was advised by the Bon Secours Community Hospital (Bon Secours) in Port Jervis, New York that Haley was receiving pre-natal care because she was seven months pregnant. During a prior court hearing, she had denied being pregnant. Bon Secours also advised the Division that Haley was "portraying to the hospital that she ha[d] custody of [Kevin and Vince]." Dr. Herschman conducted an updated psychological evaluation of both parents on February 21, 2003. Although Haley was approximately eight months pregnant at the time, when Dr. Hershman asked, both Haley and Jack claimed that Haley's asthma medication was causing her to look "bloated." Dr. Hershman's opinion was the same as before. With regards to Jack, Dr. Hershman noted that Jack had "little knowledge of child rearing practices and appropriate developmental milestones" and that "[d]evelopmentally, in many ways he is much like a young child who needs to be taken care of and told what to do." As to Haley, Dr. Hershman concluded, "[w]hile [Haley] does not appear to be intentionally abusive or harmful to her children, if they were placed in her care they would be at risk for neglect and harm due to her cognitive and social limitations." Haley gave birth to Carrie Von Achen on March 10, 2003.
Following a trial, on June 18, 2003, Haley and Jack's parental rights as to Kevin, Vince and Carrie were terminated. Haley appealed and we affirmed. New Jersey Div. of Youth and Family Servs. v. H.V.A., No. A-6074-02T4 (App. Div. February 6, 2004). In the opinion, we noted that the trial court "carefully examined the unsafe and unsanitary nature of the home in which [Haley] resided and the myriad instances in which she exhibited her inability to care for the children." Id. (slip op. at 3). We also noted that "the record discloses continuous and extensive efforts, starting long before the birth of [Kevin], the oldest child, to furnish guidance and support to meet the needs of [Haley] and her family." Ibid.
On February 13, 2004, defendants' family doctor advised the Division that Haley had given birth in her home to a girl, Daisy Von Achen. Daisy was transported to Newton Memorial Hospital because she was in respiratory distress. She was diagnosed with Total Anomalous Pulmonary Venous Return (TPVR), a congenital heart defect. After receiving open heart surgery, Daisy was placed in a specialized foster home on April 22, 2004. Dr. Frank Dyer conducted a psychological evaluation of Haley and Jack on October 18, 2004. Dr. Dyer found Jack to be "mildly retarded" with a full scale IQ of sixty-seven. Dr. Dyer concluded that Jack "lacks any appreciation of the physical and emotional needs of a young child . . . [and] that he would not be expected to profit from any kind of instruction or supervision" due to his hostility and resistance to social service workers. With regards to Haley, Dr. Dyer also found her to be "mildly retarded" with a full scale IQ of sixty-seven. He noted that she "maintains a posture of rigid denial with respect to any wrongdoing or failures that might cause DYFS to have concerns over her adequacy as a mother" and that she was "a dependent, immature young woman with poor insight and judgment." On March 16, 2005, following a trial, Haley and Jack's parental rights as to Daisy were terminated. Daisy died from "complications of her congenital heart defect" on March 31, 2005.
On July 2, 2007, the Division received a referral that Haley "was seen with a newborn child." On that same day, a Division caseworker visited the defendants/McBride home and confirmed that defendants did not have another baby. The caseworker noticed a "strong odor of cat urine" and that the home was "very cluttered," "[t]here were flies all over," "[t]here were feces all over the floors," "the cat litter boxes were overflowing with waste," the animals were "malnourished, dirty, and the dog was missing hair on his back." Valerie advised the caseworker that James' brother, Oscar McBride, had been staying with them, "had a bladder problem" and "has been urinating around the home." Although the family denied that Haley was pregnant, the Division contacted all hospitals in the area requesting that they contact the Division if Haley came for any pre-natal or neonatal treatment. The Division received two responses from St. Anthony's Hospital in Warwick, New York on August 15, 2007, stating that Haley was admitted there for gestational diabetes. The following day, the Division spoke to a staff member of St. Anthony's and learned that Haley was thirty-three to thirty-four weeks pregnant and was receiving pre-natal care from Dr. Arrow.*fn3 The staff member also advised the Division that Haley had told Dr. Arrow and hospital staff that this was her first pregnancy. When the caseworker interviewed Haley, she denied being pregnant, although she was in the maternity ward, and claimed that she was in the hospital receiving treatment for diabetes. Haley also requested a copy of Daisy's death certificate because she believed that Daisy was still alive and that the Division "lied to her about" Daisy's death. A hospital social worker also reported that Haley claimed that she was "sexually assaulted in December 2006 [and that Jack] was not the father of the child." Haley gave birth to a boy, Peter Von Achen, on August 17, 2007. Peter was born with respiratory distress and was transferred to the Neo-Natal Intensive Care Unit (NICU) for testing and treatment. He was discharged on September 13, 2007, and placed in a specialized foster home where he remains to this date.*fn4 Peter suffered from two cardiac conditions--- "a defect in the wall between the two chambers in the heart" and "abnormal circulation between the two arteries near the heart." He also has been fitted with a headband "to help correct [his] Torticollis*fn5 " and gradually "remold" his head.
Prior to Peter's discharge, the Division met with defendants and the McBrides to determine the feasibility of having Peter in the home. On August 21, 2007, a caseworker visited the home and again noted the smell of cat urine. The basement, where defendants sleep, had a "potent smell of must and cat urine." The caseworker again observed two rabbits in cages and "a cat litter box with feces overflowing onto the floor." On September 10, 2007, a caseworker visited the family at the hospital and noted an "overwhelming" odor from the family. The hospital social worker reported that the family's odor "was so bad a nurse vomited." The caseworker observed Haley reposition Peter without supporting his head. When advised that the Division was filing for Peter's custody, Valerie claimed that the Division could not take him away because James' "grandfather was a member of the Lenni-Lenape [tribe]." Haley stated that she was raped by a man of Native American descent and that Jack was a "Cherokee Indian." Haley also claimed that Daisy's foster parents had "fed her anti-freeze causing her death." Valerie informed the caseworker that the feces a Division worker had observed on the floor were not animal feces but "human feces from her brother-in-law."
During a scheduled visit with Peter and the family on September 19, 2007, the Division caseworker again noted the family's "offensive" body odor. Haley advised the caseworker that a man named Thomas Carter raped her and was "incarcerated for drug related charges and rape, but [that] they did not know" the name or location of the prison. She also stated that "a paternity test was done at the hospital which confirmed that Mr. Carter [was Peter's] father ...." The caseworker informed the family that it would conduct its own paternity test and that it had also scheduled the family for psychological evaluations.
During the visit, Haley handled Peter appropriately but Jack pressed his fingertips into the baby's back, with enough force that the caseworker noticed Peter's chest rising with each poke.
Jack would also press his thumb into Peter's side, squeeze Peter's fingers and pull on Peter's arm so that Peter "squirm[ed] or grunt[ed]." The caseworker noticed the same behavior during another visit which occurred on September 26, 2007. Jack did not support the baby's head but rather left the head "dangling off [of] his forearm," he "continued to be forceful with [Peter's] arms, legs and finger[s]," he "palm[ed]"
Peter's head and moved it "side to side." The caseworker had to repeatedly correct Jack and tell him to "stop poking and pulling on [Peter]." Despite being told to stop, Jack continued to poke, prod and flick Peter during subsequent visits. On the other hand, Haley "properly" cared for Peter.
Dr. Dyer conducted a psychological evaluation of Haley, Jack, Valerie and James on September 25 and 26, 2007. With regards to Jack, Dr. Dyer opined that his "psychological presentation had not changed appreciatively since the initial evaluation [that was conducted] in 2004." Dr. Dyer noted that Jack "continue[d] rather to function at a mildly retarded level," and "continue[d] to display poor judgment, poor insight into his limitations, lack of comprehension as to the needs of a young child" and was still "volatil[e]." Therefore he "strongly recommend[ed] that [Jack] not be considered as a viable candidate for custody of [Peter]." With regards to Haley, Dr. Dyer reported that Haley stated that she believed Daisy "to still be alive" and living with the foster parents "because she never received a death certificate with a raised seal." He opined that Haley was "manifestly lacking in the intellectual ability, literacy, judgment, and overall ego resources to provide adequate protection, nurturance, structure, stimulation, and positive role modeling for a child." Dr. Dyer also opined that not only was there "no detectable improvement" in Haley's parenting ability since his evaluation in 2004, but that "her parenting capacity [was] even below the level that it was when [he] initially evaluated her." Therefore he "recommended that DYFS not consider [Haley] as a viable candidate for custody."
As to Valerie, Dr. Dyer noted that she had a full range IQ that was below sixty, which means that she "falls well within the mildly retarded range." During the interview, Valerie stated that "she still [did] not understand the allegations against [Haley]," that "[Jack] did 'great' with [Kevin]," and that there were no "dangerous conditions in the home that would pose a threat to the children." She claimed that she knew Daisy was still alive because "their dog, who is a search and rescue dog, found [Daisy]" living "with her foster parents three houses away...." She believed that "DYFS was 'playing a funny joke' with them by telling them that [Daisy] was dead." Dr. Dyer opined that Valerie was not "a positive resource for [Peter]" due to her "cognitive limitations, her own basic literacy and her own [in]capacity to assess reality properly."
As to James, Dr. Dyer found that his "intellectual functioning [was] estimated as high average," but noted that James also believed that Daisy was still alive. James stated that "he felt that there was something fishy about the whole process," noted that there was no obituary for Daisy, and he felt that the Division told them Daisy was dead because "'they were trying to end this situation with [Haley]'s children.'" He believed that Daisy was "living down the street from them" but he could not see her when the family passed by the foster parents' house because he is the one driving the car. Dr. Dyer concluded: "If DYFS had considered [James] as a psychologically intact and stable figure of normal intelligence ...