On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FN-12-174-07 and FG-12-67-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Messano and LeWinn in Docket No. A-2895-08T4.
Before Judges Wefing, Messano and LeWinn in Docket Nos. A-0414-09T4 and A-0415-09T4.
We have consolidated these appeals for the purpose of issuing a single opinion. Defendant S.H. and her husband, defendant C.H., are the biological parents of S.A.H., born January 12, 2007. Within days of her birth, the Division of Youth and Family Services (DYFS or the Division) removed S.A.H. from her parents' custody and placed her in a foster home where she has remained ever since.
After initiating Title 9, N.J.S.A. 9:6-8.21 to -8.73, litigation against both defendants and after a finding of abuse and neglect was entered against C.H., DYFS began guardianship proceedings under Title 30, N.J.S.A. 30:4C-11 to -14. Those proceedings culminated in an order terminating both defendants' parental rights over S.A.H. In A-2895-08, S.H. appeals from the January 6, 2009, Family Part order dismissing the Title 9 litigation. S.H.*fn1 raises the following points on appeal:
I. THE PROCEEDINGS BELOW VIOLATED [S.H.'S] CONSTITUTIONALLY PROTECTED DUE PROCESS RIGHTS (Not Raised Below)
A. The Trial Court's Failure to Hold a Fact Finding Hearing Did Not Comport With Statutory Requirements And Violated The Principles Set Forth in G.M.
B. The Trial Court's Finding That [C.H.'s] Prior Conviction For A Sexual Offense Constituted Per Se Abuse and Neglect Was Reversible Error
C. The Initial Removal of [S.A.H.] From The Custody Of Her Mother Was Not Supported By Sufficient Credible Evidence That [S.A.H.] Was In Imminent Danger
II. THE TRIAL COURT ERRED IN APPROVING THE DIVISION'S PERMANENCY PLAN BECAUSE DYFS FAILED TO MAKE REASONABLE EFFORTS TO REUNIFY [S.A.H.] WITH [S.H.] (Raised Below)
DYFS contends that S.H. never raised any due process challenges during the proceedings below. On the merits, DYFS contends that S.H. was not denied due process and that sufficient cause existed to grant DYFS custody of S.A.H. DYFS also argues that the judge properly affirmed the permanency plan of termination followed by adoption.
The Law Guardian argues the appeal should be dismissed as moot; alternatively, she contends that any failure to conduct a "fact-finding" hearing was not reversible error in light of the subsequent permanency hearing, and that approval of the permanency plan was appropriate under the circumstances.
In A-0414-09 and A-0415-09, S.H. and C.H. respectively appeal from the order entered in the Title 30 proceedings that terminated their parental rights. S.H. raises the following issues on appeal:
I. DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE [S.H.'s] PARENTAL RIGHTS IN ORDER TO PROTECT HER CHILD'S BEST INTERESTS (Raised Below)
A. [DYFS] DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDING THAT THE HEALTH AND DEVELOPMENT OF [S.A.H.] WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP
B. [DYFS] DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDINGS THAT [S.H.] WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING [S.A.H.]
1. [S.H.] HAS SHOWN THAT SHE IS WILLING TO ELIMINATE THE HARM BY COMPLYING WITH ALL OF [DYFS'S] PREREQUISITES TO REUNIFICATION
2. [S.H.] CAN ELIMINATE THE HARM IF SHE IS GIVEN PROPER SERVICES
C. THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE DYFS FAILED TO MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [S.H.] CORRECT THE CIRCUMSTANCES WHICH LED TO [S.A.H.'S] PLACEMENT OUTSIDE THE HOME.
D. [DYFS] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF [S.H.'S] PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
C.H. raises the following arguments on appeal:
THE TRIAL JUDGE BELOW DID NOT PROPERLY ANALYZE THE BEST INTEREST TEST AS TO C.H.
A. THE TRIAL COURT IMPROPERLY DETERMINED THAT S.A.H.'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL BE ENDANGERED BY C.H. AND SHOULD BE OVERTURNED
B. DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO REUNITE S.A.H. WITH HER PARENTS, NOR DID THE COURT CONSIDER ALTERNATIVES TO TERMINATION
C. THE TRIAL COURT [sic] DID NOT PROVE [sic] BY CLEAR AND CONVINCING EVIDENCE THAT MORE HARM THAN GOOD WOULD BEFALL S.A.H. IF C.H.'s PARENTAL RIGHTS WERE TERMINATED [sic]
Both DYFS and S.A.H.'s law guardian argue that all four prongs of the statutory test were proven by clear and convincing evidence. They both urge us to affirm the termination order.
In December 2006, DYFS received a referral from a Middlesex County probation officer that S.H. was pregnant and shortly due to give birth. It was reported that C.H. was the father of the child, that he was a convicted sex offender, and that both parents were bipolar, not complying with their medications, and had engaged in domestic violence.
C.H., who was thirty-two years old at the time, had been convicted in 1999 of second-degree aggravated sexual assault involving a four-year old girl; he was sentenced to seven years imprisonment, was required to register as a sex offender pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -19, and was under community supervision for life after his release from custody in 2004. S.H. was almost twenty-five years of age when S.A.H. was born.
Defendants met at a rooming house in New Brunswick and married in 2005. Based upon what C.H. had told her, S.H. believed his prior conviction involved an alleged sexual relationship with a sixteen-year old girl who represented herself to be older; S.H. did not know until after the marriage that C.H.'s conviction involved a four-year old child. Defendants continued to reside in New Brunswick and received assistance from the county Board of Social Services as their sole financial support.
C.H., who was required to report to parole on a weekly basis, sought permission to reside in the same home with S.A.H. after her birth. Through parole, two psycho-sexual evaluations were performed and both concluded that C.H. could not reside in the same home with S.A.H. Furthermore, the reports concluded that any visitation between C.H. and his daughter should be supervised.
DYFS interviewed both parents, as well as S.H.'s psychiatrist, Dr. Daniel Cowan, who indicated that she was demonstrating signs of depression and had difficulty dealing with her anger. S.H. told DYFS that although she was "willing to allow [C.H.] to reside in a separate household," she did "not understand why he c[ould] not live in the home and she supervise the baby." S.H. claimed she was diagnosed as bipolar and told DYFS that she was not taking her medication during her pregnancy, as per her doctor's instructions.
On January 18, 2007, DYFS filed a verified complaint seeking custody of S.A.H. pursuant to Title 9, and a hearing was held. S.H. was represented by counsel; C.H. appeared pro se. DYFS caseworker Natasha Grisbin testified that the Division was concerned since C.H. was a "Megan's Law offender," and S.H. had questionable "ability to supervise and protect the child." In addition, Grisbin noted that S.H. lacked any "family support" and the Division had "concerns regarding her ability to actually protect the child and not become overwhelmed with the stress of dealing with a newborn baby."
S.H. testified that C.H. was looking for alternate housing, though she did not believe he posed any risk of harm to S.A.H. C.H. testified and took issue with the facts surrounding his sexual assault conviction. C.H. claimed that he sexually assaulted the four-year old girl because her mother, who was also his ex-girlfriend and the mother of his son, locked him in a room with the child and threatened that he would not see his son again. S.H. had similarly reported this version of the events when interviewed by DYFS, stating that she believed C.H. and not the claims of his ex-girlfriend.
The judge entered the order to show cause granting DYFS custody of S.A.H. because of C.H.'s "sexual assault on a 4 year old child... and serious concern re: both parents['] capacity to protect the child due to alleged denial [and] mental health." He found there existed a risk of harm to S.A.H. since C.H. could not live in the same home, and "there [wa]s a question about [S.H.] being able to police this requirement." The judge noted that S.H. was an "apologist" for C.H.'s behavior regarding the sexual assault.
On February 6, the return date of the order to show cause, S.H.'s counsel indicated that she had resumed taking her medication, and that C.H. was willing to move out of the home if S.A.H. returned. The judge continued the order granting DYFS custody of S.A.H., finding "it continue[d] to be contrary ...