On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-33-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Carchman, Graves, and Waugh.
Defendant M.C. (Matthew) is the biological father and defendant T.H. (Teri) is the biological mother of A.H. (Andrea), who was born on September 11, 2007.*fn1 In these consolidated appeals, we are asked to review separate orders of the Family Part (1) finding that both parents engaged in abuse or neglect; (2) relieving plaintiff Division of Youth and Family Services (DYFS) from its obligation to provide services to Matthew; (3) adopting a permanency plan calling for the termination of their parental rights to Andrea, to be followed by Andrea's adoption by her foster parents; and (4) dismissing the abuse and neglect litigation so that DYFS could pursue the termination action. We affirm.
We discern the following facts and procedural history from the record on appeal.
Teri has four other children, none of whom were fathered by Matthew. Teri's other children no longer reside with her, primarily due to DYFS's intervention. Three children reside with relatives, and Teri voluntarily surrendered one for adoption. Through its prior investigations, DYFS learned that Teri has significant mental health problems, especially when she is not taking her medications.
Matthew had one other child with a different woman. His parental rights to that child were involuntary terminated in March 2005. According to the records of the Wildwood Police Department, there was a history of domestic violence allegations involving Matthew and Teri prior to Andrea's birth.
On December 10, 2007, when Andrea was three months old, DYFS filed a verified complaint for care and supervision because of concerns about Teri's mental health and her ability to parent Andrea. At that time, DYFS did not know the identity of Andrea's father, so he was not a party to the litigation. The Family Court granted DYFS's application, and Teri was ordered to "attend Advanced Behavioral Counseling . . . and cooperate with any and all recommendations[,] including taking medications if prescribed." Based on Teri's cooperation, the litigation was terminated on April 2, 2008, with no finding of abuse or neglect.
During the pendency of the first DYFS litigation, Matthew was identified as Andrea's father. However, he was not added as a party to the litigation. He had been incarcerated during most of the time the litigation was pending, but was released shortly before the litigation was terminated. The order of dismissal provided that "[Matthew] shall be restrained from all contact with [Andrea]."
In August 2008, DYFS received two referrals claiming that Teri had left Andrea unattended for "long periods of time" and that Teri "entertain[ed] guests with alcoholic beverages until early morning hours" and brought "'crackheads' into her home."
Although DYFS did not substantiate those claims, its investigation revealed that Matthew had again been arrested and incarcerated, and that Teri was taking Andrea to the jail to visit him. After Teri "agreed to abide" by the earlier order that Matthew have no contact with Andrea, the investigation was terminated without substantiation of any abuse or neglect. Matthew was released from jail on October 16, 2008.
Between that date and October 23, there were reports from DYFS workers and the police that Matthew came to Teri's home on several occasions and was allowed contact with Andrea, and that there were domestic disputes between Matthew and Teri. On October 23, Teri alleged that Matthew threatened her with a knife while she was holding Andrea.
Matthew was arrested and charged with "endangering the welfare of children, unlawful [possession] of a weapon, [possession] of weapon [with] unlawful purpose and terroristic threats." He was incarcerated and ultimately pled guilty to contempt of a court order. DYFS effectuated an emergent removal of Andrea, pursuant to N.J.S.A. 9:6-8.28, and placed her in foster care pending a court hearing.
On October 27, 2008, DYFS filed a verified complaint against Teri and Matthew, summarizing the events that transpired between August and October of 2008 and seeking custody of Andrea. The Family Part judge ordered that Andrea be "placed in the immediate custody, care and supervision of [DYFS]," issued an order to show cause why custody should not be continued with DYFS, and set November 12, 2008, as the return date.
On the return date, the judge continued Andrea in DYFS's custody. He ordered Teri to attend a psychiatric evaluation, counseling, medication monitoring, and anger management counseling, and to cooperate with a parent capacity assessment at Rowan University. Matthew was required to submit to psychological and psychiatric evaluations and attend parenting skills training. Teri was permitted one weekly visit with Andrea. Matthew, who was incarcerated and did not attend the hearing, was "restrained from all contact with [Andrea]."
On May 21, 2009, the judge held a fact-finding hearing to determine whether Teri and Matthew had engaged in abuse or neglect with respect to Andrea. DYFS took the position that the events of October 2008, specifically Matthew's having contact with Andrea with Teri's consent in violation of the earlier order and the incident with the knife, were sufficient to satisfy the definition of an "[a]bused or neglected child."
N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected child as a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . .
Teri agreed to enter into a stipulation of fact and acknowledge conduct meeting that definition. Matthew opted to oppose DYFS's position and requested a hearing.
Teri was sworn as a witness and gave the following testimony to support her stipulation:
Q: [Teri], you know that we're here today for a fact finding.
Q: And a fact finding is basically a trial?
Q: And at that trial the State would have to put on a case against you.
Q: And we would have the right to call witnesses and put in evidence and try to defeat their case.
Q: Rather than do that you've decided that you would do a stipulation or make a statement to the Court today?
Q: And by giving that stipulation you're giving up your right to a trial today?
Q: Okay. You're doing that freely and voluntarily?
Q: And nobody's coerced you or -
Q: - forced you to do this?
Q: Are you under the influence of any drugs, alcohol, or any substance clouding your judgment today?
Q: Okay. Have I been your attorney throughout this matter.
Q: And are you satisfied with my representation thus far?
Q: On or about - between the period of October 16th and October 23rd of 2008 did [Matthew] come to your home?
Q: On or about the 16th did he enter your home without being invited?
Q: And subsequent, later in the evening the police showed up at the house, correct?
Q: And did you tell the police that he was allowed to be there?
Q: Okay. So, in fact, you knew at the time that he wasn't supposed to be there by court order?
Q: And so you really didn't take sufficient steps to protect your daughter from having contact with him, is that correct?
Q: Okay. And then over the next week, approximately on three or four other occasions he did also come to the home, usually uninvited?
Q: And ultimately, on or about the 23rd, there was a domestic incident?
Q: Did he punch and kick you at one point?
Q: Did he also brandish a knife at ...