On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-201-07 (A-4986-07, A- 4987-07, and A-3979-08) and FG-07-24-09 (A-4127-08 and A-0217-09).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Miniman and Waugh.
In this opinion, we address five appeals that have been consolidated for the purposes of the opinion. Three of the appeals (A-4986-07, A-4987-07, and A-3979-08) were argued, while two (A-4127-08 and A-0217-09) were submitted on the papers. All of the appeals involve the parental rights of L.M.A. (fictitiously Lillian) and T.P. (fictitiously Todd),*fn1 who are the biological parents of seven children. The children, to whom we refer by fictitious names, are Tony, born in June 1996; Nancy, born in February 1998; Tom, born in September 1999; Tim, born in April 2002; Tara, born in December 2003; Ted, born in July 2005; and Teresa, born in August 2007.
Tom is not directly involved in these appeals because Lillian and Todd voluntarily surrendered their parental rights to Tom in March 2002. In two separate proceedings, the Family Part terminated Lillian and Todd's parental rights with respect to the four youngest children; Tim, Tara, Ted and Teresa. Lillian and Todd have appealed those decisions.
Tony and Nancy, the two oldest children, were returned to Lillian's custody after the Family Part judge determined that the Division of Youth and Family Services (Division) had not met the burden of proof required to terminate Lillian and Todd's parental rights as to them. The Division has appealed that decision.
Although we will address each case separately with respect to the trial judge's application of the four prongs that compose the best interests of the child test, N.J.S.A. 30:4C-15.1(a); New Jersey Division of Youth & Family Services v. M.M., 189 N.J. 261, 280 (2007), we make the following preliminary observations. Although Lillian and Todd are the parents of all seven children, they resided together for relatively brief periods of time due to Todd's several incarcerations and an extended separation before his most recent incarceration. There were no allegations of direct abuse of the children by Todd, and the case, as it related to him, turned primarily on his extended absences and unwillingness to parent or protect the children from abuse or neglect by Lillian.
There were three removals in this case. The first was in 1999, when the three oldest children, Tony, Nancy, and Tom, were removed as the result of Lillian's serious physical abuse of Tom. Lillian pled guilty to endangering the welfare of a minor, N.J.S.A. 2C:24-4, with respect to that incident. Todd was incarcerated at the time of removal.
The second removal was in 2006, after the two oldest children, Tony and Nancy, had been returned to Lillian and three more children, Tim, Tara, and Ted, had been born into the family. The removal was premised on Lillian's physical abuse of Nancy, as well as her neglect of all five children. She pled guilty to aggravated assault, N.J.S.A. 2C:12-1(b), with respect to that incident involving Nancy. Todd was incarcerated at the time of the second removal. The third removal, in 2007, followed almost immediately upon the birth of the seventh child, Teresa, who was born while Todd was incarcerated and the other children were in foster care.
In our view, the most difficult issue presented in these appeals was not whether the terminations were warranted, but whether the return of Tony and Nancy to Lillian was appropriate. Given Lillian's history of two separate and significant episodes of abuse, between which she was the recipient of services from the Division, as well as doubts about Lillian's ability to parent by the two mental health experts whom the trial judge found to be most reliable, we would not ordinarily have expected that any of the children would be returned to her custody, especially a child who was physically abused and the sibling who participated in that abuse at Lillian's direction. As was the trial judge, we were required to balance legitimate and well-founded concerns that the stress resulting from the return of any child would prompt another episode of abuse against the opinion of the expert whom the judge found most reliable that Lillian would be able to parent Tony and Nancy, and only those two, and that the termination of her parental rights as to them would most likely cause them more harm than good.
For the reasons set forth in this opinion, we affirm all of the orders on appeal with respect to Lillian. However, in affirming the return of Tony and Nancy to Lillian, we do so with the understanding that there is ongoing Title 9 litigation. In addition, we affirm without prejudice to the Division's ability, acting in good faith, to seek termination in the event there are new facts that, taken together with the facts that underlay these appeals, would justify such action. As to Todd, we affirm the orders terminating his parental rights as to the younger children, but reverse the order that denied termination of his parental rights to Tony and Nancy. We do so because, after a careful review of the record, we have concluded that the Division proved by clear and convincing evidence that Tony and Nancy's best interests require such termination.
The record reveals the following facts and procedural history. Although we appreciate that the case of each parent and child must be decided on its own merits, we have concluded that they cannot be reviewed without reference to the entire history of the family unit, and Lillian and Todd's relationship to all of their children and to each other.
Lillian became known to the Division as a minor in April 1981, after the death of her three-year-old sister. The Division again became involved with her family when Lillian and her other sister were allegedly sexually abused by their stepfather, at which time Lillian entered foster care. The charges against the stepfather were later dismissed, and he continued his relationship with Lillian's mother. Lillian eventually returned home, and the Division closed the case in June 1996.
By 1999, Todd had a criminal history, having pled guilty to various offenses, including theft by unlawful taking (October 12, 1994, and January 30, 1996), criminal restraint (November 12, 1997), and possession of cocaine (December 11, 1998). He was incarcerated at the time of the Division's initial involvement with his children.
The Division received its first referral on October 25, 1999. A social worker at the University of Medicine and Dentistry of New Jersey reported that Lillian had brought her one-month-old child, Tom, to the emergency room two days earlier because of dehydration, vomiting, and diarrhea. Tests revealed that Tom had bilateral skull fractures of different ages, multiple bleeds in the brain, and two possible rib fractures. Lillian denied any knowledge of the injuries, and could not explain how they occurred. She claimed that Tom had stayed overnight with her mother two weeks earlier. The Division substantiated the physical abuse allegations and effectuated a removal of the three children. On October 29, 1999, Tony (then age three) and Nancy (then age one) were placed in foster care, although Tom physically remained in the hospital.
Lillian was arrested and charged with child endangerment. On November 1, 1999, she signed a case plan and agreed to attend parenting classes and to submit to a psychological evaluation.
On November 12, 1999, the hospital discharged Tom to his foster family. On November 17, 1999, the Division's pediatric consultant submitted a report which concluded that Tom's multiple injuries had been inflicted and were potentially serious.
On November 18, 1999, Diane W. McCabe, Ed.D., performed a psychological evaluation of Lillian, who, at the time, was unemployed and enrolled in a GED class to attain her high school diploma. McCabe reported: "The profile of this parent argues for caution in granting parental rights. The possibility of cognitive slippage impairing judgment and diminishing adequate control over labile personality features is sufficient to warrant discretion." She recommended Lillian receive counseling on anger management and impulse control.
On December 10, 1999, the Division filed a Title 9 action against Lillian, seeking the care, custody, and supervision of Tony, Nancy, and Tom. An order to show cause was also entered by the Family Part.
On December 29, 1999, Alvaro Gutierrez, M.D., conducted a psychiatric evaluation of Lillian. She continued to deny any knowledge of Tom's injuries, and blamed the hospital. Gutierrez diagnosed Lillian with a personality disorder, and recommended that she receive psychotherapy, complete a psychological evaluation, and submit to random drug screening. He also recommended supervised visitation if she followed those recommendations. The Division subsequently arranged for biweekly one-hour visits.
On February 24, 2000, Lillian completed an eight-week parenting skills training program at the WISE Women's Center of Essex County College. On February 28, 2000, she began psychological treatment with Linda S. Cameron, Psy.D. In her first progress report dated May 21, 2000, Cameron noted that the results of Lillian's parenting stress inventory did not suggest a profile typically associated with risks of abuse or neglect. Nevertheless, she observed that Lillian isolated herself from her feelings, disassociated herself from her emotional life, misread her environment, and maintained a distorted view of reality. Cameron recommended that Lillian continue individual counseling and participate in an incest and sexual abuse support group. She also recommended a session with Todd, who had recently been discharged from prison.
Cameron met with Lillian and Todd on August 1, 2000. In a report dated September 20, 2000, she noted that Lillian understood the extent of Tom's medical problems, and was willing to make the necessary behavioral changes to parent her children effectively. She noted, however, that Lillian had an "emotional, protective defense" that was complicated by her cognitive limitations. Cameron found Todd "to be a supportive partner who expressed a sincere interest for his children." She recommended that Todd receive a psychological and child abuse/neglect risk assessment, and that plans proceed "for family re-unification with intensive in-home supports and brief family counseling (possibly with [Todd]) during [the] adjustment period."
On September 8, 2000, Lillian pled guilty to endangering the welfare of a child. In October 2000, she was sentenced to probation for five years.
Meanwhile, on September 29, 2000, Daniel E. Williams, Ph.D., saw Todd for a psychological evaluation. He concluded that Todd had the intellectual and emotional resources to meet his children's needs. In his opinion, the children would not be at risk if placed in Todd's custody, provided he completed parenting skills training.
On November 8, 2000, at the Division's request, Andrew P. Brown, Ph.D., conducted a psychological evaluation of Lillian. She continued to claim that she was unable to explain what had happened to Tom and maintained her innocence with respect to any abuse, even though she had pled guilty to child endangerment in September 2000. Brown found that Lillian had personality characteristics consistent with mania and paranoia, that she suppressed the magnitude of critical events, and that she exercised poor judgment which placed her and her children in potentially harmful situations. He recommended that Lillian attend an incest survivors group prior to consideration of reunification, and, if reunited, that the Division monitor the family closely for at least six months.
On February 6, 2001, the Family Part judge apparently held a permanency review hearing at which time the judge found that the Division's plan for termination of parental rights was appropriate and acceptable for Tony, Nancy, and Tom.
On February 20, 2001, Brown conducted a psychological evaluation of Todd. Todd admitted to past drug use and involvement in criminal activities starting when he was sixteen-years old. Brown concluded that Todd had difficulty controlling his impulses, and recommended that he attend classes on parenting skills, anger management, and substance abuse. Brown believed that if Todd completed these programs, engaged in no further episodes of anti-social activities, and demonstrated employment and adequate housing, the children would be at minimal risk of abuse and neglect in his custody. According to Todd, he attended counseling and treatment, but there is no evidence in the record that shows Todd successfully completed any of Brown's proposed programs.
In June 2001, the Division filed an order to show cause and a Title 30 complaint to terminate parental rights as to Tony, Nancy, and Tom.
On February 26, 2002, Robert Raymond, Ph.D., saw Lillian and Todd for psychological evaluations. In his report dated March 5, 2002, he wrote that little had changed in Lillian's life even though she had attended the mandated programs. Raymond expressed concern about Lillian's ability to sustain herself in a mature and independent manner, and to provide for her fourth child whose delivery was due the following month. He believed that the return of the three existing children would exacerbate the challenges Lillian already faced.
Raymond concluded that Todd lacked the maturity and responsibility to sustain a parenting role with young children, even without the introduction of a newborn child. He noted that Todd had been in jail during the births of his three children, and that neither their births nor removals motivated him to change his behavior.
The next month, Todd was arrested and charged with receiving stolen property and possession of a handgun. On November 22, 2002, he pled guilty to burglary, and was eventually sentenced to five years in State prison.
On March 26, 2002, Lillian and Todd voluntarily surrendered their parental rights to Tom and, on April 12, 2002, the Family Part judge filed an order terminating those rights.
Tim was born on April 17, 2002. The Division received a referral about Tim's birth two days later. The caller suggested that the Division perform a home assessment before the baby's release from the hospital. The Division concluded that "child welfare/protective service concerns" existed, and sought care and custody of Tim. However, it placed him in Lillian's physical custody.
On April 25, 2002, Raymond advised the Division that he had reconsidered his negative view of Lillian's ability to meet the goal of reunification based on his re-interview of Lillian, his interview of her mother, his consultations with Cameron, Lillian's voluntary surrender of Tom, and the birth of Tim. In his revised opinion, he stated that reunification might still be possible if Lillian received more intensive therapy and support from Cameron and the Division provided a home attendant or parenting aid.
On May 16, 2002, the Division filed a Title 9 complaint and an order to show cause seeking temporary custody of Tony and Nancy while their parents continued to receive services. On May 28, 2002, the Division amended the Title 9 complaint to include Tim, who was living with his mother at that time.
On December 10, 2002, the Division changed its goal to reunification for Tony and Nancy with the condition that the family receive numerous services. On January 9, 2003, the Division reunited Tony and Nancy with Lillian. The Title 9 case remained open for supervision. Lillian and Todd were married on February 14, 2003.
On November 20, 2003, the Division received a referral from an unidentified caller about Lillian's children. The caller stated that Lillian was pregnant, that she treated Tony differently from her other children, that she beat Tim, and that on one occasion she had given Tim a "busted lip" when she pushed him off her leg. The Division's investigation failed to substantiate the allegations. The next month, Lillian gave birth to Tara.
On March 11, 2004, the Family Part judge dismissed the Title 9 complaint with respect to Tony, Nancy, and Tim. The judge ordered that Todd notify the Division when he was released from prison and the halfway house, and that he have no unsupervised contact with his children until he successfully completed substance abuse and psychological evaluations. On July 21, 2004, the Division closed its case.
In July 2005, Lillian gave birth to Ted.
On March 24, 2006, the Division received a referral from a social worker at Madison Avenue School, stating that a teacher had noticed a substantial amount of blood on Nancy's hair and hair ties. The school nurse also observed blood on Nancy's sternum area and old burn marks on her back. Nancy, then eight years old, told the social worker that her mother had punished her by hitting her on the head with a belt buckle. She said blood from the beating "flew" onto the walls, the doorknob, and her clothing. Nancy also said her mother told Tony, then nine, to "get on" her, meaning to beat her. Tony punched her, "busted" her lower lip, and twisted her leg. Her mother told her not to tell anyone about what happened, or "it would be her last day alive." She also explained that her mother and Tony had previously burned her back with an iron.
The school notified emergency medical services, which transported Nancy to the hospital for further evaluation. The medical report noted that she had sustained an ulnar fracture in November 2005, and had old scars on her forehead from another belt buckle incident. The Division was notified, and the worker who went to the hospital noticed that Nancy's underwear was black from dirt, her clothes and socks were visibly filthy, and she smelled like "poop."
Later that day, the Division removed Tony, Nancy, Tim, Tara, and Ted from their mother's care pursuant to a notice of emergency removal, N.J.S.A. 9:6-8.29 and 9:6-8.30. A Division worker who observed their home described its condition as deplorable. The children's medical examinations revealed that they all had scabies.*fn2 Tony was described as obese and malodorous, with poor hygiene. Tim had lead poisoning, multiple bruises of various ages, and was "extremely unkempt." Tara had asthma.
Lillian was arrested and charged with aggravated assault and endangering the welfare of a child. She denied burning or hitting Nancy, and denied telling Tony to punch his sister.
On March 24, 2006, Nancy wrote to her "Mommy":
I hope you stop hitting me and stop telling bub to hit me [too]. I know you get mad but you can't do this to me so I hope when I go home you don't hit me. I hope you be nice to me because you wouldn't like if somebody hit you and tell your brother to hit you, burn you, and hold you down when you is getting hit with the belt. Love Nan.
What I will like for you to do for me is protect me, save me from getting killed because I don't deserve it, I help clean up the house, I help cook, and I help you clean up [other] rooms.
I wish you could come home because there are terrible things that are happening to me. Can you stay home? I don't want nothing else to happen to me. Even [now] that your leg hurts I know you could make it.
Lillian subsequently claimed that Division personnel forced Nancy to write the letters.
The Division initially placed the children with their maternal grandmother, D.E., and her husband, N.E., but subsequently determined that the home was unsafe because of the history of N.E.'s alleged sexual abuse of Lillian and her sister. On March 31, 2006, the Division placed Tim, Tara, and Ted in the foster home of a couple we will refer to fictitiously as the Moores. On April 3, 2006, the Division placed Tony and Nancy in separate foster homes.
On March 28, 2006, the Division filed a Title 9 complaint seeking the care, custody and supervision of Tony, Nancy, Tim, Tara, and Ted. On April 20, 2006, Lillian entered into a stipulation that she had beaten Nancy with a belt on March 22, 2006.
On June 8, 2006, Kendra Haluska, Psy.D., conducted a psychological evaluation of Lillian to assess her parenting ability. Lillian explained her family problems as follows:
I was going through so much. I had to get another place for the kids, and trying to get help from welfare, and constantly running every single day, so many things to have to do and then can't get the help I need. I wanted parenting classes because I don't ever want to touch my kids again. I can't see life without my kids.
At the time, Lillian was living with her mother. She described her mother as supportive, and said she could also turn to her church for help.
Haluska concluded that Lillian had difficulty coping with stress caused by caring for five children in substandard living conditions. She recommended Lillian receive a psychiatric evaluation, complete an anger management program, attend weekly individual psychotherapy to address parenting issues, and continue supervised visitation. She also recommended that the Division continue to monitor the family closely.
In June 2006, supervised visitation began at a Division office through the Tri-City Peoples Corporation (Tri-City) Supervised Visitation Program. After June 2007, the visits took place at Tri-City. Tri-City reports reflect that the family interacted well and the children were happy. The supervised visits continued every other week through October 2007, and then weekly at least through October 22, 2008.
Meanwhile, in the summer of 2006, Lillian began attending anger management and parenting skills classes at the WISE Women's Center. While transporting Nancy to a parenting skills observation session on August 10, 2006, a Division worker noticed several healed stitches on her arm. Nancy told the worker that her mother had hit her with a bat, and that it had happened on more than one occasion. Nancy said her mother also told Tony to hit her, and that her mother asked her brother to hold an iron behind her "so that every time she tried to run or jump back she would get burned."
On October 10, 2006, Lillian completed the sixteen-hour parenting skills program. She also attended individual therapy sessions with Joyce Mierzejwski at the Family Center in Verona from September 2006 to August 2008. The sessions addressed issues of anger, parenting, and self-esteem. They continued on a regular basis except for a temporary gap arising from a delay in the Division's payments. Mierzejwski issued a series of reports which noted Lillian's compliance with therapy, motivation to meet the Division's goals, efforts to understand her past mistakes, and attempts to provide a safe and healthy home for her children.
The Division also provided services for the children. From June 21 to September 21, 2006, Tony attended therapy sessions at ASun Star Consulting. From October 11 until December 20, 2006, Nancy attended the Children's Socialization and Abuse Training Group at the Regional Diagnostic and Treatment Center at Newark Beth Israel Medical Center. The purpose of the training group was to assist physically or sexually abused children in developing self-esteem along with self-protection and social skills.
Meanwhile, on August 2, 2006, the Family Part judge entered an order directing the law guardian to obtain an independent evaluation of Lillian and her children, and also directing Lillian to attend a psychiatric evaluation and psychotherapy. According to a Division report, Todd was released from prison around this time.
In August 2006, Susan Cohen Esquilin, Ph.D., the law guardian's expert, conducted a psychological evaluation of Lillian and bonding assessments of Lillian and her children. In her report dated September 10, 2006, Esquilin stated that the three younger children were living with the Moores, who expressed an interest in adopting them. She noted that Nancy's foster mother had requested her removal and, during the course of the evaluation, Nancy was transferred to another foster home. The report also stated that Tony's foster parent was not committed to adoption.
Nancy understood that she had been placed in the Division's custody until her mother learned how to calm down and take care of her. She also told Esquilin that Lillian assaulted her more than once. Nancy said that she received stitches after her mother hit her arm with a bat, and had marks on her legs and face where her mother hit her with a belt. She described her mother as "funny, nice at times... can be mean," and her father as nice. Nancy considered herself as a primary caregiver for her younger siblings.
Tony told Esquilin that he tried to keep his younger siblings with him so they would not get "in trouble." He said Lillian sometimes spanked them with a belt or her hands, if they were "really, really bad." He said Nancy was "picked on," but denied that her arm injury was caused by a bat. When confronted with the fact that his story differed from his sister's account, Tony became tearful but did not respond. Tim also told Esquilin that his mother and father would "whup" him with a belt on his "booty" and legs, and that his mother hit Nancy and him with a bat. In Esquilin's opinion, Tony and Nancy were "quite parentified," meaning that Lillian "relied on them to support her and help care for the younger children."
At the bonding sessions, Esquilin observed that the foster parents were more aware of potential danger to the children than Lillian, explaining that they removed certain objects from the play area whereas Lillian failed to notice Tara and Tim putting marbles in their mouth. She noted that Tony and Nancy had a primary attachment to Lillian.
Esquilin believed the realities of Lillian's life were overwhelming, noting that she was raising five children between the ages of one and ten with very limited financial resources in substandard housing, while her husband was often absent. She identified several risk factors which contributed to Lillian's problems, including: an inability to identify her own stress; lack of external supports; parentification of her older children; and lack of adequate recognition of potential danger to her children. She concluded that Lillian lacked the competency to provide a safe environment for her children at that time or any time in the near future. She recommended termination of parental rights ...