On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-201-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
Defendant K.T.T., who is the mother of two girls now ages seven and three, and W.R., who is the father of the younger girl, appeal from judgments following trial terminating their parental rights.*fn1 We affirm.
The Division of Youth and Family Services (DYFS) had initial contact with K.T.T. in 1986 when she was five years old. K.T.T. was placed in foster homes and youth shelters from the time she was fourteen. Several psychological evaluations diagnosed her as mildly mentally retarded. She also had several psychiatric hospitalizations to treat active psychosis. During this litigation, K.T.T. was receiving services through the Department of Developmental Disabilities (DDD).
K.T.T. first gave birth to a child in 2001. A hospital social worker called DYFS to report concerns about her ability to care for the newborn. DYFS arranged psychological, neuro- psychological, and psychiatric evaluations. The three evaluations confirmed her mild mental retardation. In September 2004, K.T.T.'s parental rights to her first-born child were terminated by judgment of the court.
In December 2003, K.T.T. gave birth to the older child involved in this appeal. She had received no prenatal care. The hospital discharge summary noted that K.T.T. "was irrational during delivery and during a visit to the nursery." A urine screen during delivery tested positive for cannabis and opiates secondary to morphine.
The baby was released into the care of her father. In November 2005, the court appointed a paternal cousin as the child's kinship legal guardian because K.T.T. and the child's father had not made themselves available for services, nor expressed any interest in caring for the child. The kinship legal guardianship ended in March 2008 with the death of the paternal cousin. DYFS then placed the child with a paternal relative where she remained at the time of trial in this case. The older girl's caretaker wants to adopt her.
From November 2005 through January 2007, K.T.T. was incarcerated, eventually entering a plea of guilty to a charge of theft. In February 2008, about thirteen months after her release from jail, K.T.T. gave birth to the younger girl involved in this litigation. She identified W.R. as the father. The hospital reported the birth to DYFS, stating that K.T.T. was under DDD supervision, did not have appropriate housing, and had no means of supporting the baby.
DYFS contacted the DDD caseworker. That individual believed K.T.T. was not competent to raise a child. She was living in a rooming house with W.R., was unemployed, and had no means to support a baby. W.R. was not receiving services, but the DDD caseworker had met him and thought he might have mental health problems that impaired his ability to function as a parent. Also unemployed, W.R. received Social Security Insurance (SSI) benefits.
At the hospital, K.T.T. provided false information to the DYFS caseworker about who was caring for her two older children and where she lived. She said she had received prenatal care before the birth of the third child but was unable to give the name of her doctor. K.T.T. denied any mental illness and said she had been diagnosed incorrectly. She also said she did not need any additional services from DDD. W.R. told the DYFS caseworker that he had not looked for work because he did not want to leave K.T.T. alone during her last months of pregnancy.
After DYFS confirmed that K.T.T. actually lived at a rooming house with W.R., she persisted in claiming that her address was the incorrect one she had given. A criminal background check disclosed that W.R. was a convicted sex offender, having pleaded guilty in 1992 and been sentenced to seven years in prison on charges of first-degree aggravated sexual assault, endangering the welfare of a child, sexual assault, and unlawful possession of a weapon. The charges arose from the sexual assault of the eight- and nine-year-old daughters of his girlfriend.
DYFS obtained an order for custody of the younger girl upon her release from the hospital and placed her in foster care. When the girl was six months old, she was placed in the care of a maternal relative, where she remained at the time of trial. Her foster mother expressed her desire to adopt the child.
DYFS arranged for biweekly visitation for K.T.T. and W.R. with the girls. W.R. did not attend consistently, and K.T.T. missed some visitations and was frequently late. The visitation supervisors recorded several instances of K.T.T. acting inappropriately and having problems meeting the children's needs. For example, at a December 2008 visit, K.T.T. began to use profanity while on the phone, and when asked to stop, she was rude to the staff and began using profanity towards them. In February 2009, the older girl's foster mother reported that K.T.T. put earrings in the child's ears through a hole that had closed, although the child told her that it was hurting her.
In March 2008, DYFS arranged for a psychological evaluation of K.T.T. by Dr. Andrew Brown. Dr. Brown concluded that K.T.T. had a shallow repertoire of methods for establishing limits and control of children. Her cognitive disorder, poor self-esteem, drug use, rigidity, anger management, and poor insight "render her potential to engage in acts of child endangerment excessive." He concluded that K.T.T. did not demonstrate she is prepared to function as a parent and her tolerance for caring for a child appeared shallow. Dr. Brown recommended that K.T.T. be scheduled for individualized or one-to-one parenting education. She would need to obtain appropriate housing and demonstrate legal, residential, and financial stability. Her prognosis for parenting was poor.
DYFS inquired of DDD regarding services provided to K.T.T. DDD stated she had participated in a parenting program and a day program in which she had learned daily life skills. Upon further investigation, however, the day program reported that K.T.T. had attended inconsistently.
In June 2008, a DYFS caseworker met with W.R. W.R. denied that a picture of himself in the DYFS case file was him and also denied being a sex offender. He claimed that people "stole his identification." He told the worker that he "is an undercover cop," that he works for the White House and the CIA, and that he always walks behind K.T.T. because he does not want anyone to shoot her accidentally.
In July 2008, DYFS received a report that W.R. had physically assaulted K.T.T. and had been abusive to her for several months. K.T.T. had previously shown bruises to the staff at her day program, and the staff had also observed her damaged jaw and teeth. When questioned by DYFS, K.T.T. denied domestic violence. Later in July 2008, the DDD worker placed K.T.T. in a safe house because of concerns about domestic violence. K.T.T. left the safe house the following morning. A DYFS worker met with K.T.T. and asked her to sign a release for DYFS to obtain information from her day program but K.T.T. refused. When asked if she had been placed in a safe home, K.T.T. became agitated and said that her private life was no one's business. Similarly, in November 2008, she said that DYFS's questions about her swollen hand were "too personal."
In November 2008, Dr. Alexander Iofin, a psychiatrist, evaluated K.T.T. Dr. Iofin reported that K.T.T. had a history of substance abuse and had been treated with psychotropic medications. He also stated that she "resorted to denial, minimization, and rationalization in order to avoid dealing directly with [her] significant amount of problems." His provisional Axis I diagnosis included post-traumatic stress disorder, anti-social behavior, affective disorder, and impulse control disorder. His Axis II diagnosis was "mild mentally retarded functioning." He recommended individual or group therapy at a mental health clinic, but he did not recommend cognitive behavioral treatment approaches because of her mental retardation. He also noted that her "well delineated and unchangeable cognitive limitations will be the detriment that will make it impossible for her to take care of any minor child on her own, unsupervised, now or in the foreseeable future."
In December 2008, K.T.T. revealed that W.R. had assaulted her on October 8, 2008, and she obtained a restraining order.
DYFS referred her for domestic violence counseling. On that same date, she stated in court that she would test positive for marijuana if tested. DYFS also referred K.T.T. to individual parenting skills classes at Babyland Family Services. K.T.T. missed her initial appointment but attended subsequent classes.
Dr. Elayne Weitz conducted a psychological evaluation of K.T.T. in January 2009. K.T.T. acknowledged she had been diagnosed with schizophrenia, but she believed the diagnosis was inaccurate. She admitted using marijuana, but denied illegal drug use, stating that she did not consider marijuana to be a drug since it was legal in some places. K.T.T. showed Weitz "multiple scars on her face that resulted from [W.R.'s] violent behavior toward her."
Dr. Weitz found K.T.T.'s measured intelligence to be in the category of mild mental retardation. She was unable to provide "basic information such as how many weeks are in a year or why some food should be cooked before it is eaten." Testing results indicated she suffered from a "moderate degree of psycho-pathology." She also appeared to lack empathy and compassion. She had "high, unrealistic expectations of children and may be inflexible in her approach to parenting." Dr. Weitz agreed with previous evaluators that K.T.T. was "incompetent to parent and would pose a risk of abuse or neglect to a child placed in her care." She found that "[u]nder no circumstances can [K.T.T.] be considered as a viable caretaker for any child, and all contact between her and ...