On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FG-09-129-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 24, 2010
Before Judges Cuff, Payne and C.L. Miniman.
In this appeal, we review an order terminating the parental rights of F.H. to her two daughters, V.M. and D.H. The youngest child, D.H., initially reported that she had been physically abused by her mother's boyfriend in March 2006. The girls were removed from their mother's care in November 2006, and placed with V.M.'s paternal great-grandmother. The removal was occasioned by F.H.'s failure to abide by an order not to allow her children to be in the presence of her abusive boyfriend and by her unstable housing and non-existent employment situation. In January 2008, D.H. revealed that she had been sexually abused by her maternal fifteen-year old uncle. Later, both girls revealed that their mother's boyfriend had sexually abused both of them.
The judge found that plaintiff Division of Youth and Family Services (DYFS) satisfied its burden of proof. She found that F.H. failed to protect her daughters from the abuse when it occurred, failed to recognize the harm caused to them by these acts, and failed to recognize the need to protect them in the future from similar abuse. F.H. argues that DYFS satisfied none of the four statutory prongs by clear and convincing evidence. We affirm.
V.M. was born on December 29, 1996; D.H. was born on September 3, 2001. The girls have different fathers. V.M.'s father, D.M., and D.H.'s father, J.C., voluntarily surrendered their parental rights in an identified surrender to D.C., D.M.'s grandmother. D.C. has had custody of both girls since November 2006.
DYFS first became involved with F.H.'s children on February 15, 2005, when it received a referral from V.M.'s school. The school reported that V.M. had a red swollen mark on the inside of her elbow and had stated that her mother, F.H., had struck her with a broom. DYFS investigated the incident and was unable to substantiate the abuse. On October 26, 2005, DYFS received a second referral. A caller reported that F.H. left her children home alone for twenty minutes when she went to the liquor store. DYFS could not substantiate this allegation.
On March 20, 2006, DYFS received another referral regarding F.H.'s family from D.H.'s daycare center. The daycare center staff reported that D.H., then four years old, complained of pain, and staff observed bruises on her arms and legs. Daycare staff reported that D.H. stated her mother's boyfriend, A.W., beat her with a hanger. DYFS substantiated physical abuse and advised F.H. that the children were not to have contact with A.W. F.H. and A.W. were referred for counseling services. A.W. was also the subject of a criminal investigation relating to the substantiated abuse of D.H.
In July of 2006, DYFS received the first of many referrals from A.W. alleging that F.H. had either brought the children to his home or invited him over while the children were at her home in violation of the no-contact order against him, and that F.H. was drunk and/or high when doing so. DYFS was unable to substantiate these referrals. However, in investigating those referrals, DYFS discovered that A.W. had been harassing F.H. and the children with threats against their lives. As a result, DYFS temporarily removed the family from their residence at Harmony House, a transitional living facility for families, which was located across the street from A.W.'s residence, and placed them in a battered women's shelter for the weekend of July 8, 2006.
In a July 9, 2006 statement, A.W. reported that D.H. had been sexually assaulted by a twelve-year old boy who attempted to force her to perform oral sex on him when she was playing outside unsupervised. D.H. confirmed that a boy had unzipped his pants and tried to push her head down towards his "private area" and that she ran away. F.H. was aware of this incident and reported it to the police, but she never brought D.H. to the police for an interview. Because of these incidents, DYFS required F.H. to sign a case plan stating that she would supervise the children at all times, not use corporal punishment, and provide adequate shelter, food and educational and medical necessities.
On August 1, 2006, DYFS received a referral from a man stating that F.H. was selling drugs and smoking "weed" inside the house.*fn1 The caller also said that because the children did not have any food, he had brought food to the house, and whenever anyone knocked on the door, F.H. hid a man in the bathroom. On August 6, 2006, DYFS received another referral from a caller who expressed concern that F.H.'s daughters were currently home alone and had been for at least three hours. On August 7, 2006, a DYFS worker spoke to a social worker at Harmony House, who had spoken to F.H. in the past about not supervising her children. F.H. was advised that her children should be supervised at all times and that she needed to keep her apartment clean, but DYFS took no further action on the matter.
On September 12, 2006, a DYFS worker went to Harmony House to visit with F.H. and her daughters, but was informed that F.H. was officially terminated from the facility on August 3, 2006, and vacated Harmony House as of August 10, 2006. The Harmony House social worker was not aware that F.H. had left until she made her rounds on that date. Harmony House did not have any contact information for F.H. When DYFS contacted F.H.'s parent aide, she refused to provide any contact information for F.H., informed the worker that the family was residing with a friend, and they did not want anyone to know where the friend lived.
Later that day, F.H. contacted the DYFS worker, provided contact information, and agreed to allow the worker to visit her and the children, after being told that DYFS would contact the police if she did not provide her address. On September 14, 2006, a welfare worker called and informed DYFS that F.H.'s welfare benefits had been terminated because she requested placement in a domestic violence shelter and then left. Then, on September 15, 2006, the DYFS caseworker met with F.H. at the East Orange home of her "godmother," who was actually A.W.'s mother, and F.H. advised that she and her daughters would be residing there.
On October 18, 2006, DYFS received another referral stating that F.H. and her boyfriend, A.W., were yelling at each other in loud voices. The referrent stated he overheard them saying that D.H. had been molested by her maternal uncle the Friday before in Jersey City. The referrent reported that F.H. broke a window and threatened to leave and take the children. The caller stated that he had seen F.H. and A.W. drinking alcohol earlier in the evening, but was not aware if either was intoxicated. The following day, on October 19, 2006, a DYFS worker met with A.W. regarding the referral.
A.W. stated that F.H. and her daughters had been living with him for about two or three months. He told the worker that he had called DYFS approximately two weeks earlier to report that D.H. told him she was molested by her uncle on two separate weekends. A.W. said he and F.H. were arguing because he said he was going to call the police, and she responded she was leaving and returning with the children to her grandmother's house in Jersey City, where the uncle lived. He reported that D.H. said V.M. ran away, that her uncle told her that he liked V.M. as a girlfriend, and that D.H. was in bed at the time and "[her uncle] got in the bed with her and pulled her legs open and started to hump her." A.W. alleged that F.H. was aware of the abuse, but did nothing about it. The DYFS worker observed that A.W. was under the influence of alcohol at the time of the interview. A.W. said that he was aware of the no-contact order against him, but F.H. came to him after she and the children left the shelter and he did not want to see them on the street.
In response to A.W.'s report of sexual abuse of F.H.'s youngest daughter, a DYFS worker interviewed F.H. and D.H. Both denied the event. Nevertheless, on October 24, 2006, DYFS met with F.H. at her grandmother's house. F.H. admitted that she had been living with A.W., that she had asked him to pick the children up from school on a few occasions, and that she only left them alone with him once when she went to her grandmother's house to help care for her sick mother. The worker instructed F.H. to enroll the children in school in Jersey City. While at the grandmother's house in Jersey City, the worker was informed that D.H.'s father, J.C., was also moving in so he could be with his daughter. Both F.H. and J.C. signed a case plan that stated the children had to be enrolled in school by October 26.
On October 31, 2006, F.H. called DYFS to report that she was no longer staying with her grandmother and that she was staying with J.C.'s mother. She stated that her grandmother kicked her out because they got into an argument over care for F.H.'s extremely ill mother. F.H., J.C., and J.C.'s mother all went to the DYFS office to discuss the situation. When the caseworker's supervisor informed the family that she would be contacting an attorney to see if DYFS could have the case litigated, J.C.'s mother offered to let both children live with her. She said she did not want to see her granddaughter or V.M. end up in the "system."
At that meeting, F.H. and J.C. also admitted that they were aware that the maternal uncle had molested D.H. F.H. said that her family was mad at her because she beat her brother for what he did to D.H.; J.C. said he did not want to lie anymore and he is not good at lying.
That same day, DYFS tried to reach F.H. at her grandmother's house, but F.H.'s uncle informed the caseworker that he had kicked F.H. out because she was disrespectful to his mother. He expressed concern about the way F.H. cared for her daughters. He said the girls ate dinner around 11 p.m., went to bed around 2 a.m., and were not attending school.
On November 1, 2006, the DYFS worker went to J.C.'s mother's home to conduct an inspection and spoke to F.H. about the allegations of sexual abuse by D.H.'s uncle. F.H. acknowledged that D.H. told her of the incident, emphasized that both were clothed at the time, and explained that she lied to avoid loss of her children. The worker also spoke to V.M. and D.H. V.M. denied seeing the encounter; D.H. acknowledged it. She said that she told her mother and her mother beat the uncle.
On November 15, 2006, J.C. reported to DYFS that his mother had "kicked" F.H. out the day before because she was not helping with any bills and stayed out all day and night. He also said that he believed F.H. was back with A.W. because A.W. had picked her up at the house over the weekend. That same day, F.H. contacted DYFS and reported that she had to leave J.C.'s mother's house because the landlord said they were not on the lease. F.H. advised that she was staying at her aunt's best friend's home in Jersey City and gave the worker the phone number and address, but could not provide the apartment number. When DYFS attempted to contact F.H. at that same phone number, the woman who answered stated that she was a friend of F.H.'s aunt and F.H. and the aunt left about an hour prior. She could not provide any information about their whereabouts and did not know the aunt's phone number.
On November 16, 2006, DYFS conducted an emergency removal of V.M. and D.H. from their mother's custody because of her protracted history with DYFS and on-going concerns about F.H.'s ability to protect her children. Those concerns included F.H.'s knowledge of the sexual abuse of D.H. and her refusal to report it, and her failure to keep her daughters from A.W., who had physically abused D.H. Further, F.H.'s unstable housing situation caused the girls to move from house to house, town to town, and school to school. The day following their removal, the girls were placed in the care of V.M.'s paternal great-grandmother, D.C., where they remain.
On November 20, 2006, DYFS filed a complaint and Order to Show Cause seeking care, custody, and supervision of V.M. and D.H., who were nine years old and ...