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New Jersey Division of Youth and Family Services v. R.K.

May 19, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-119-08.

Per curiam.



Submitted April 20, 2010

Before Judges Carchman, Parrillo and Lihotz.

In these consolidated appeals, defendant T.H. and defendant R.K. appeal from a March 30, 2009 order of the Family Part terminating parental rights, in the case of T.H., to N.C.H., N.I.H., T.K.H., N.O.H., N.A.H. and T.A.H. and in the case of R.K., to N.C.H. On this appeal, defendants assert that the Division of Youth and Family Services (DYFS or the Division) failed to establish by clear and convincing evidence the statutory criteria set forth in N.J.S.A. 30:4C-15a, and articulated by the Supreme Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986). We conclude that DYFS met its statutory burden by clear and convincing evidence and affirm.

These are the relevant facts adduced from the record.

T.H., born on March 26, 1979, and R.K., born on September 8, 1972, were not married but produced a son N.C.H., born on April 22, 1997. T.H. is the mother of eight other children, only six of whom (including N.C.H.) are the subject of this appeal.

DYFS was first referred to the family in March 1998, when N.C.H., then one, and his two-year-old sister, T.L.*fn1 were left alone. T.L. began knocking on nearby apartment doors, crying, in an attempt to locate her mother. Police were called and took the children to a local hospital.

T.H. admitted to DYFS that she left the children alone so that she could buy diapers, and returned two hours later; she did not immediately check the children, believing they were asleep. Although neglect was substantiated and the children temporarily removed, they were later returned to her custody.

During the ensuing years, twenty-one referrals were made to DYFS regarding this family. For example, in 2003, T.H. left her children and disappeared for a lengthy period of time, leaving the children with her mother, V.H. Although upon T.H.'s return the apartment was found clean and food available so no abuse charge was substantiated, the pattern of leaving her children continued. In 2004, T.H. left her then five children with a friend. No food was available and when T.H. returned, she explained that she was stressed and needed a break from her children.

A similar circumstance arose after a complaint that V.H.'s boyfriend had hit one of the children. It was then determined that T.H. had left the children two days earlier with no food or diapers and her whereabouts were unknown.

This recurrent pattern of activity as well as DYFS's recognition that T.H. suffered from significant psychological and cognitive deficits prompted DYFS to reconsider a plan of reunification and consider the alternative of termination and placement with a view towards adoption. Specifically, DYFS was concerned that T.H. was mentally, emotionally and psychologically unstable and unfit to parent. She tended to leave her children with others for substantial periods of time, frequently without food or money, so that she could attend to her own personal affairs. Moreover, she left the children with individuals who did not want to care for them, and without telling the caregivers how to contact her.

DYFS moved for and was granted custody of seven of the children in July and September 2005, and despite T.H.'s denial that she was again pregnant, she gave birth to twins in 2007, who were also removed and placed in foster care by DYFS.

During this period, DYFS offered numerous services to T.H. Specifically, she was offered visitations after the initial 1998 referral, as well as drug screens, counseling and psychological evaluations and parenting classes. T.H. completed a parenting class in 2006, but DYFS believed she needed to attend another program; T.H. refused to do so.

T.H. had been offered visitation with her children through Tri-City Peoples Corporation (Tri-City). However, she did not consistently visit with her children, and Tri-City ultimately terminated the visitations, in part because the children became so upset when their mother failed to appear as scheduled. DYFS also offered T.H. continuing parenting classes, and numerous additional psychological evaluations. Unfortunately, T.H. was frequently non-compliant with the recommendations made by the psychologists or therapists she saw, and at one point refused to attend therapy at the East Orange Hospital as requested by DYFS. DYFS referred T.H. to a "Community Health" program in 2007, but T.H. did not attend, believing that the program was for "retarded people." In fact, at one point, DYFS informed T.H. that by attending therapy, she might be able to improve to the point where the termination of her parental rights could be avoided. Nevertheless, T.H. failed to consistently attend therapy or comply with the recommendations.

All of the children have been placed. N.C.H. lives with his current caregivers, the Ds, his aunt and uncle, and has been there since June 2005. Two of his siblings reside there as well. N.I.H. was placed with V.H. in June 2005, while N.A.H. and T.K.H. lived with foster parents who were not identified in the record. Notably, the caregivers wanted to adopt the children despite certain behavioral and physical problems. One child participates in an educational program for children with behavioral problems while another attended special education classes at an elementary school and received counseling for behavioral issues. Two of the children had no educational issues and one child exceeded her school's expectations. Nevertheless, these children receive in-home therapy for various physical and speech issues. In sum, the children present discreet issues that must be addressed by their respective caregivers.

At the time of trial, T.H. sought reunification with her children. She indicated that she was employed full-time and maintained a one bedroom apartment in East Orange. She testified that she would become a better parent by virtue of attending parenting classes, and promised that she would not leave her children alone for extended periods anymore. T.H. claimed that she had engaged in that behavior previously because of her depression and monetary issues, and promised to begin attending therapy again in order to ensure that such behavior would not recur.

T.H. conceded that she had refused to participate in therapy in the past, and had been terminated from certain providers. She claimed that she had done so after being directed in September 2007 by a DYFS caseworker to tell her children her parental rights were being terminated, since such efforts on her part would no longer result in reunification.

T.H. asserted that she missed visits due to issues surrounding the current litigation, but denied being terminated from any visitation program. T.H. also saw her children in "unofficial visits" arranged through the children's caregivers.

If reunited with her children, T.H. planned to move to Georgia and "work on getting a job." She wanted to take her children to movies, skating and on trips, and wanted them enrolled in ballet, dancing and karate classes.

At trial, R.K. was incarcerated at Bayside State Prison. He had been incarcerated for approximately twenty-five months, and anticipated his release would occur within six months. He had only been out of prison seven months from a prior incarceration before beginning his present jail term.

N.C.H. had visited with R.K. while he was incarcerated in another prison, but could not do so while at Bayside. R.K. claimed that he and N.C.H. had spent time together while he was not in jail, including some overnight visits. Although he had not seen his son since July 2008, R.K. believed that he and N.C.H. had a good father and son relationship.

R.K. had a forklift operator license and believed he could obtain employment once released from prison. Once released, he planned on living with N.C.H. and his girlfriend, perhaps in Pennsylvania where his sister lived. He intended to support his family with the proceeds from a vaccination settlement which would provide him with $125,000. He also planned to open a small business once relocated.

R.K. admitted that he had been incarcerated ten times as an adult. He was fourteen when he was first arrested. He was in state prison three separate times, the last for CDS possession. He conceded that while incarcerated in 2005, he obtained his license to operate a forklift. Moreover, in 2006, between his last two incarcerations, R.K. had worked in a candy store.

Nevertheless, he felt compelled to sell drugs to support his family, leading to his current incarceration.

DYFS provided T.H. with numerous psychological and psychiatric evaluations, some of which were performed by professionals who did not testify at trial. T.H. underwent a psychiatric evaluation by Ambrose O. Mgbako, M.D., in October 2005. After discussing her history, Mgbako found that T.H. demonstrated "symptoms of depression of mild intensity related to her lack of involvement with her children." T.H.'s "intellectual functioning [was] borderline at best." Mgbako found that T.H. lacked the "capacity to appreciate the seriousness of her liabilities, her lack of resources to be utilized in raising her children, and [her] lack of meaningful future opportunities."

Andrew P. Brown, III, Ph.D., performed psychological evaluations of T.H. in June 2006 and February 2007. In the June evaluation, Brown noted that T.H. was living alone in an apartment in East Orange, supported by public subsidies and welfare. As of that time, T.H. had seven children with four different fathers. She reported a limited employment history and denied using drugs; however, she admitted to the occasional use of alcohol. She conceded that she left her children alone, leading DYFS to remove them from her care.

Testing revealed that T.H. demonstrated "poor concentration and mental flexibility," as well as "slow mental processing." She suffered from "impaired executive mental processing", suggesting that she would "have difficulty engaging in independent, effective problem solving." Moreover, she likely suffered from a "neurodevelopmental disorder."

Additional testing showed that T.H. had an IQ less than 70, indicating that she had a "[d]eficient . . . range of intellectual functioning." Her "verbal analogous reasoning" and "understanding and awareness of social mores" was in the "[b]orderline range." All of these findings were "consistent with the presence of a learning disability."

Brown concluded that T.H. demonstrated "impaired cognition, reasoning and problem solving abilities." She was deficient in areas such as "concentration, concept formation, verbal and non-verbal learning and memory," and had difficulty performing tasks that "require mental shifting or sequential-alternative processing." T.H.'s ability to perform "cognitive operations" was "impaired." It was likely that T.H. failed "to recognize the larger significance of decisions" she makes. In sum, Brown concluded that T.H. was "mentally incompetent with regard to her ability to execute adequate parental judgment." Her deficiencies rendered "the potential for child endangerment [as] excessive."

In his report following the February 2007 evaluation, Brown re-stated T.H.'s history. During the evaluation, T.H. stated that she was attending counseling and therapy sessions and was planning to begin a GED program; after she obtained her degree, T.H. planned to obtain employment. However, T.H. expressed her belief that the public assistance she was receiving would be "sufficient for her financially."

T.H. discussed her visits with her children, their various placements, and blamed DYFS for her separation from her children, claiming that although she had done all DYFS asked of her, DYFS simply did not "want [her] to have [her] kids."

Testing done at this evaluation revealed that T.H. attempted to give what she believed were the "desirable" responses "in order to hide her negative personal characteristics." However, Brown believed that T.H. excessively used "selected defense mechanisms, such as suppression, repression, denial, rationalization, and lack of insight into her behavior." Further, testing indicated that T.H. "requires sustained mental health intervention." T.H. also demonstrated "a rigid attitude toward the appearance and behavior of her children," leading her to "make her children fit a rigid mold as defined by her."

In sum, Brown concluded that T.H. failed "to recognize the larger significance of decisions that she either makes or does not make and as a consequence her capacity to make sound judgments and decisions [is] compromised." Brown diagnosed T.H. as suffering from "Depressive Disorder NOS", "Mild Mental Retardation", "Learning Disorder NOS", and "Cognitive Disorder NOS." T.H. did not "demonstrate that she was ready nor able to parent independent of supervision as her psychological status is not conducive to [the] fulfillment of parenting obligations and responsibilities. Furthermore, prognosis for parenting is poor."

In March 2007, Denise M. Williams-Johnson, Ph.D., performed a psychological evaluation of T.H. At the beginning of the evaluation, T.H. was very angry because her twins were not brought to a bonding evaluation as she anticipated. At one point, she stated that she 'could black out on everybody . . . (and) could get a gun and kill everyone involved with (her) case, and anyone else (she) wanted' if her Parental Rights [sic] are terminated, she does not get her children back, or DYFS attempts to take her newborn twins after their anticipated birth in April 2007.

T.H. also made similar threats "to harm herself" if any of those events occurred. By the end of the interview, T.H. had calmed down, and indicated that she did not intend to carry out her threats.

Although T.H.'s composure at the end of the evaluation precluded an emergent hospitalization, William-Johnson was sufficiently concerned that "an attempt to warn all individuals involved with the case appears warranted, for purposes of taking precautions when in contact with [T.H.]." The doctor felt compelled to issue a so-called Tarasoff letter,*fn2 warning anyone involved of the potential danger posed by T.H. when she was overly angry.

Based on this incident and her other evaluations, Williams-Johnson concluded that T.H.'s "frustration tolerance was low," and that if placed under sufficient stress she might deteriorate to the level demonstrated during the March 2007 evaluation. She recommended that T.H. receive a psychological evaluation, treatment, and monitoring with respect to possible medications, at East Orange Hospital. At trial, she conceded that she had not seen T.H. since March 2007, and could not offer a more current evaluation. She did note that once an individual puts an idea in his or her "repertoire" regarding injury to self or others, the individual must be monitored to ensure that no repetition of such threats occur.

T.H. was also referred to Johnson & Associates for psychological counseling. As of April 2007, she had not regularly appeared for the anger management or individual therapy classes offered, although when she did appear she participated "well." Although T.H. seemed to be making progress, she still had a "hard time accepting the consequences of her actions, which is keeping her from moving forward emotionally."

Finally, in May 2007, T.H. was psychiatrically evaluated by Sonia Oquendo, M.D. Although T.H. denied any history of psychiatric hospitalizations, it was "documented that she had at least two or three inpatient psychiatric treatments for unclear reasons."

During the evaluation, T.H.'s speech was clear, "affect was appropriate", and her "thought process was logical and she was goal-directed." T.H. was "alert and oriented to time, person and place." T.H.'s concentration "was fair at best", but her memory was good. T.H.'s intellectual function was described as being "mild mental retardation, or borderline at best."

To summarize, T.H. had a history of psychiatric inpatient hospitalizations, was "non-compliant" with various services offered to her, and demonstrated "below average intellectual functioning, poor concentration and distractibility. She has no insight into her problems. She has unrealistic expectations of having a big mansion including a swimming pool before she can assume the responsibility of reuniting with her children." Notably, T.H. expressed the desire to reunite only with her youngest children immediately; perhaps in the future she could reunite with her older children.

T.H.'s "limited intellectual functioning markedly interfered with her capacity to effectively parent her children." The mental retardation from which she suffers was not treatable, and T.H. did not demonstrate a commitment to participating in the services that could help her improve her parenting skills. There was also no "evidence of any significant improvement" in her parenting skills. Nevertheless, T.H. did "not meet diagnostic criteria of any major mood or psychotic disorder", and no medications were needed.

DYFS produced two expert witnesses to discuss T.H.'s and R.K.'s parenting abilities and the bonds between them and their children, as well as the bonds between the children and their current caregivers.

Frank Dyer, Ph.D., admitted as an expert in psychology, was offered to relate his findings resulting from a psychological evaluation of T.H. T.H. did not abuse alcohol or drugs, nor did she have a criminal record. However, she admitted that she had neglected and abandoned her children for periods in the past, although she promised during the evaluation that no such events would recur.

Dyer found that T.H. had mild cognitive limitations (i.e., she was mildly retarded), but no thought disorders. However, T.H. demonstrated "poor judgment, little insight into her situation, defective impulse control, and [a] low frustration tolerance." T.H. did not believe that she needed therapy and called referrals for therapy superfluous. Moreover, she had been terminated from other therapy programs, which was consistent with her belief that she did not require assistance.

In addition, T.H.'s thinking processes were bizarre and only loosely tied to reality. She had difficulty maintaining relationships with men, resulting in brief affairs during which several of her children were born to various men. Dyer was also concerned because more than two years after her children were taken, T.H. still lacked insight into her situation and problems.

In sum, T.H. lacked sufficient capacity to safely parent her children because she lacked the necessary intelligence, judgment, sense of responsibility, impulse control or the ability to put her childrens' needs ahead of her own. Because she was unable to create a "risk-free environment for them," Dyer believed T.H. should not be considered "a viable candidate for placement of any of her children."

Dyer also evaluated R.K. at the correctional facility where R.K. resided. R.K. had a tenth grade education. However, he had a lengthy criminal history including twenty arrests as a juvenile, and ten arrests as an adult; he was incarcerated three times in state prison, including the term he was serving during trial. He posed a "very high risk of criminal recidivism." He also suffered from a personality disorder NOS; that is, while he had no pure personality disorders, he demonstrated signs of "antisocial personality disorder and narcissistic disorder."

R.K. described his proposal to relocate with N.C.H. to Pennsylvania where he would live with relatives. However, he had no specific plans, nor any employment prospects.

Dyer concluded that R.K. was "preoccupied with his own needs" and "contemptuous of rules and laws." Dyer believed that R.K. was not a "viable candidate" to regain custody of his son. In fact, it would be "extremely destructive" to N.C.H. if he was reunited with his father.

Dyer also performed separate bonding evaluations of the children with their biological parents and their current caregivers. On April 11, 2008, he performed a bonding evaluation of N.I.H. with V.H., her maternal grandmother with whom she lived. V.H. noted that she allowed T.H. to visit with N.I.H. V.H. recognized that T.H. had a history of abandoning her children, but believed that T.H.'s other parenting skills were adequate. V.H. indicated her willingness to adopt N.I.H. if T.H.'s rights were terminated, and would ensure continued visitation between T.H. and her daughter.

Dyer noted that N.I.H. had emotional and learning problems. She was not reading at her grade school level, "was only able to write three words," frequently left her seat during class, and required "constant redirection." Further, testing indicated that N.I.H. suffered from "hyperactivity, aggression and conduct problems." N.I.H. took "longer to recover from difficult situations than do most other children of her age." N.I.H. also displayed "a mild degree of oppositional behavior."

During the bonding session, N.I.H. referred to V.H. as "Mama" or "grandma." N.I.H. had been living with V.H. since August 25, 2007, and liked it there. Although she enjoyed living with V.H., N.I.H. indicated that she would "love to live with [her] mom and [siblings]," because she "really" loved her mother.

Also on April 14, 2008, Dyer performed a bonding evaluation between T.K.H., N.C.H., and N.O.H., who all lived with the Ds. Dyer noted that N.C.H. was angry because T.H. had already left the office that day following her earlier psychological evaluation. Mrs. D. noted that N.C.H. was "good," but had "a lot of anger because he is separated from his parents." N.C.H. took medication for hyperactivity. As of the evaluation, N.C.H. was in both a regular fourth grade class and after school program; he was slated to begin in the "Challenge Program" a month after the evaluation was done. N.C.H. had been held back from advancement and suspended in the past due to his behavioral problems.

Mrs. D. explained that on one occasion in March 2008, around the time of T.H.'s birthday, N.C.H. threw several tantrums. After speaking with his mother on the phone, N.C.H. "threw another tantrum" and then retrieved a knife and threatened Mrs. D. He was taken to the crisis unit at a local hospital and stayed for eight days. T.H. visited her son only once.

The Ds indicated that they wanted to adopt N.C.H. since they had custody of him for so long and since Mrs. D. could "control him." Notably, N.C.H. became very ...

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