On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-53-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Graves, Harris and Koblitz.
In these consolidated matters initiated by the New Jersey Division of Youth and Family Services (DYFS or the Division), defendant E.I.M.T. is the biological mother of two boys: W.J.B. (fictiously, Walter), and B.D.B. (fictiously, Bruce). Defendant A.B. is the biological father of Walter. Walter is now five years old and Bruce is four. Defendants appeal from a judgment of guardianship entered on July 29, 2010, terminating their parental rights.*fn1 For the reasons that follow, we affirm.
At the outset, we reiterate the well-settled principle that parents enjoy a fundamental right to raise and maintain a relationship with their children that is protected by the United States and New Jersey Constitutions. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).
"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, the Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a).
The New Jersey Supreme Court has "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]
"The statute requires that the State demonstrate harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. The four statutory factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid. "When the child's biological parents resist the termination of their parental rights, the court must decide whether the parents can raise their children without causing them further harm." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007) (citing J.C., supra, 129 N.J. at 10).
In the present matter, E.I.M.T. and A.B. are both natives and citizens of Honduras where they had two children together.*fn2
A.B. reported that he came to the United States in 2004, and E.I.M.T. indicated that she arrived in 2005.
Their relationship continued in the United States, and Walter was born in Trenton on February 3, 2006. Four months later, on June 16, 2006, E.I.M.T. was ordered removed from the United States by Immigration and Customs Enforcement (ICE).*fn3 The order resulted from E.I.M.T.'s failure to attend a hearing on February 7, 2006. Her removal was not effectuated, however, and E.I.M.T. has remained in this country.
On March 14, 2007, E.I.M.T. contacted Womanspace, a women's shelter in Trenton. She reported that she lived with her boyfriend, A.B., who was "mentally abusive towards [her]," and that "she [could not] take it any longer." E.I.M.T. was admitted to the shelter the next day and received counseling and other services until she decided to return home on March 19, 2007.
Bruce was born in Trenton on June 18, 2007. Approximately five months later, on November 9, 2007, police responded to a report of harassment and domestic violence at E.I.M.T.'s residence. According to a report filed by Officer Avanzato, E.I.M.T. "stated that she had gotten into a verbal argument with [A.B.] during which [A.B.] began pushing her."*fn4 When a neighbor intervened, A.B. "fled the scene" and E.I.M.T. called the police. Nevertheless, E.I.M.T. declined to sign a complaint or seek a temporary restraining order.
On July 11, 2008, a detective with the Morris County Prosecutor's Office contacted the Division to report that a prostitute known only as "Giselle" had left her young child, subsequently identified as Bruce, in the care of M.M. On the same date, a DYFS caseworker visited M.M.'s home in Morristown. The worker learned from M.M. that she was caring for the child at the request of the child's mother, who was later identified as E.I.M.T. The worker observed that Bruce "appeared very neat and clean." In addition, M.M. stated that the child's father, allegedly Valentine Matos, had arranged "to pick up his son."
The DYFS worker returned to M.M.'s home on July 14, 2008, to conduct further interviews. After informing the worker that she was unaware of E.I.M.T.'s full name, M.M. indicated that E.I.M.T. had arrived at her home in March 2008 with a mutual friend. The friend stated that E.I.M.T. "had gotten a job in Atlantic City" and "needed someone to care for her son during the week." In addition, E.I.M.T. told M.M. "that she was a victim of domestic violence and did not have contact with [Bruce's] father." When M.M. explained that she had no bed for the child to sleep in, E.I.M.T. "told her that she could put [Bruce] to sleep on the floor." M.M. agreed to take the child, on the condition that E.I.M.T. purchase a crib.
According to M.M., Bruce arrived looking malnourished. She stated that the clothes E.I.M.T. brought for him were all "dirty," and Bruce "was coughing and had a fever." Because E.I.M.T. had not given her any insurance information, M.M. could not take the baby to the doctor, instead treating the symptoms with cough syrup and Tylenol until "his cold went away." During that time, M.M.'s attempts to contact E.I.M.T. were unsuccessful. M.M. reported that when E.I.M.T. eventually called her back, she stated that she had been unable to do so sooner because "she was busy working." Eventually, E.I.M.T. admitted that she was actually working as a prostitute in Morristown.
In addition, M.M. told the DYFS worker that the child's father came to her house to pick up Bruce on July 11, 2008. A.B. then returned to M.M.'s house on July 14, 2008, and he asked M.M. if she would care for both of the boys. M.M. agreed to do so, and A.B. gave her the following notarized letter:
Morristown, July 14th, 2008
To Whom And It May Concern: I, Valentin Matos . . . father of minors [Walter] and [Bruce] . . . give the custody to the baby sitting [M.M.] . . . because the mother abandoned . . . them[.] [M.M.] has been . . . baby sitting . . . [Bruce] for a long time, she is very nice with him taking [him] to the doctors for check up because he did not have the vaccines on time, she buy his baby foods, formula, clothing and everything that he needs.
I give this custody for indefinite time to [M.M.]. I hope you understand . . . and thank you for your attention to this letter. Cordially, /s/ Valentin Matos
Based on its investigation, the Division concluded that E.I.M.T. had failed to make appropriate arrangements for M.M. to care for Bruce on a long-term basis and had not provided M.M. with sufficient contact information in the event of an emergency. The Division allowed the boys to temporarily remain with M.M. after she signed a safety protection plan and promised not to allow either child to "go with anyone without contacting the worker at the Division."
On July 17, 2008, the Division filed an order to show cause (OTSC) and was granted temporary custody of the boys.*fn5 The OTSC stated: "The mother's current whereabouts are unknown and [she] allegedly is a prostitute. The father does not have the resources to care for the children."
The OTSC also provided for supervised visitation and on July 25, 2008, while A.B. was visiting the boys, he was asked by a DYFS worker why his name (Valentin Matos) did not appear on the children's birth certificates. At that time, he admitted he was actually A.B., the person named as the father on both boys' birth certificates. A.B. explained he came to this country illegally and was using the Matos identification for employment purposes.
On the return date of the OTSC, the court granted legal and physical custody of the children to the Division and ordered both E.I.M.T. and A.B. to undergo psychological and substance abuse evaluations and treatment. Additionally, the court required the Division to arrange for bi-weekly supervised visits for both parents. Later that day, A.B. tested positive for cocaine, and his substance abuse evaluation recommended outpatient treatment for "cocaine abuse" and "alcohol dependence."
E.I.M.T. underwent a substance abuse evaluation on August 12, 2008, and was referred for outpatient treatment at Hope House, a facility in Dover, New Jersey. At that time, she reported that she was living "with her boyfriend in a hotel." Six days later, on August 18, 2008, ICE issued an order of supervision authorizing E.I.M.T. to remain in this country so long as she complied with the conditions enumerated in the order.
In addition, both children underwent medical examinations arranged by the Division. Walter, then two-and-a-half years old, was described as "somewhat shy and apprehensive." His foster mother reported that he "said only a few single words," did not put words together or use pronouns, and had a "short attention span." She also indicated that he "tend[ed] to play by himself rather than with other children," had "little patience[,] and [became] angry very easily." He also had a history of asthma. The examiners recommended that Walter be evaluated by a speech therapist for his "speech delay" and undergo a child psychological assessment to address his "poor social skills."
Bruce, then fourteen months old, was described as "an extremely active baby" who daycare workers sometimes found "difficult to manage because of his high activity level." Although Bruce did "babble with inflection," he had not yet begun to use intelligible words, so examiners diagnosed him with "possible delayed speech." They also recommended that he receive "close observation for development of social skills and peer interactions."
On August 27, 2008, E.I.M.T. obtained a temporary restraining order against A.B. E.I.M.T. told police that A.B. had a history of violent and threatening behavior and once "caused [her] to abort." She also reported that A.B. had called her aunt in California "and told her he had handed [E.I.M.T.] over to immigration so that he could have both kids, but what he really wanted was to kill [E.I.M.T.] here." E.I.M.T. stated that A.B. called her "trash and a filthy whore" and "told her that if he saw [her] in Honduras he ...