On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0068-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Kennedy.
At the time of trial in this termination of parental rights
litigation, defendant J.L.S. was thirty-two years old and had been in
a relationship with co-defendant R.M.F. for thirteen years.*fn1
Together the couple had eight children, six of whom were
subjects of the guardianship complaint: V.L.S., a daughter born in
2000; G.L.S., a son born in 2003; N.L.S., a son born in 2004; F.M.S.,
a daughter born in 2005; and I.T.S., a son born in 2006. The couple's
oldest daughter, D.M.S., originally included in the complaint, was
removed from the litigation at the request of the Division of Youth
and Family Services (DYFS or the Division). Another son, born after
the removal of his six older siblings, is the subject of separate
Defendant raises the following argument on appeal:
POINT I [DYFS] FAILED TO SATISFY BY CLEAR AND CONVINCING EVIDENCE THE REQUIREMENTS OF N.J.S.A. 30:4C-15.1(a), AND, THEREFORE, J.L.S.' PARENTAL RIGHTS MUST BE REINSTATED.
We have considered that contention in light of the record and applicable legal standards. We affirm.
On October 20, 2007, DYFS received a report that two-year-old F.M.S. was severely injured when attacked by a dog while she rode her bicycle. R.M.F.'s mother was on the porch watching the girls while R.M.F. was inside preparing a meal, and defendant was changing another child's diaper. F.M.S. was taken to the hospital.
A DYFS worker who visited the home that night found it was very dirty and told R.M.F. that, because of the risk of infection, the home had to be thoroughly cleaned before F.M.S. could return. A worker who visited the home the next day noted that R.M.F. was "overwhelmed with the care of all of her children and could benefit from . . . services." Although medically ready for discharge, F.M.S. was placed on a "hospital hold" until the house was sufficiently clean. The incident resulted in a substantiated allegation of neglect against defendant and R.M.F.
Soon after F.M.S. was discharged, DYFS received a report that the children had been left unattended. Investigation established that the children were left with their grandmother while defendant and R.M.F. went to pick up medication for F.M.S. The grandmother, in turn, left the children alone. Defendant and R.M.F. told DYFS that the grandmother was homeless, occasionally slept on their porch and was using drugs. They promised not to leave the children in her care again. The Division substantiated another charge of neglect against defendant and R.M.F.
Several days later, DYFS received a report that R.M.F. had been to the emergency room on eight occasions since August requesting Adavant, a medication used to treat anxiety. R.M.F. had come to the hospital with one of her children, who was "dirty all over [and] . . . said he was hungry." R.M.F. told the DYFS worker that she was taking more of her medication since F.M.S. was bitten, but claimed she had only been to the hospital twice and denied her purpose was to get Adavant. Defendant told the DYFS worker that he was not on any medication and was capable of caring for the children.
While investigating the dog bite incident, DYFS discovered that V.L.S., N.L.S. and I.T.S. had not been to the doctor in more than a year. There was concern that V.L.S. was not receiving appropriate care for a possible heart condition and hearing impairment. In addition, DYFS received a report in December 2007, that D.M.S., V.L.S. and G.L.S. had elevated lead levels in 2005, and, since April 2007, R.M.F. had not responded to requests to have the children re-tested. Defendant and R.M.F. told the Division that the high lead levels were traced to the paint in their prior residence, and subsequent testing documented that the lead levels decreased after the family moved.
Nonetheless, DYFS scheduled medical appointments for all the children in January 2008. I.T.S., who was thirteen-months old at the time, had not had a check-up since birth. All the children received their missing immunizations and tests confirmed that their lead levels were reduced. The children had lice but otherwise were healthy.
Since R.M.F. had missed V.L.S.'s cardiology appointment in September 2007, the Division re-scheduled an appointment for April 7, 2008. However, during a home visit on April 15 by a new case worker, defendant and R.M.F. advised that they had canceled the appointment and rescheduled it for later in the month because they lacked transportation.
In August 2008, when asked why V.L.S. still had not seen the cardiologist, defendant claimed he was told by the prior caseworker that DYFS would provide transportation to the family, a claim the worker refuted. I.T.S. had reddish spots on his cheeks, dried mucus in his nose and a raw area on his face that appeared to be infected. Defendant said I.T.S. had been to the doctor and presented a prescription dated five days earlier. Defendant explained it remained unfilled because the doctor said the medication might not be necessary, and I.T.S. improved without the medication.
In June 2008, the Division's worker described the condition of the home as "deplorable." Two months later, the home was still "filthy" and pipes and wiring were exposed because a panel had been removed from the kitchen ceiling. Although the children's feet, hands and clothing were dirty, there were no obvious signs of physical abuse and there appeared to be sufficient food.
Defendant was employed as a supervisor for a cleaning service but left his job to help R.M.F. care for the children. She was not working and received food stamps. Defendant hoped to return to his job soon and would not apply for unemployment benefits because he feared "child support" obligations. Defendant explained to the Division's caseworker in December 2007 that the family were squatters in the building where they lived and had not paid rent for over one year. Family members helped pay their utility bills.
During a May 2008 home visit, defendant told the new DYFS case worker that the family had until September to find housing. In June, the Division gave defendant a list of low income housing. Several days later, the case worker completed and submitted a low-income housing application on the family's behalf.
At the next home visit, R.M.F. showed the worker a warrant for removal issued by the court dated May 22, 2008, and effective July 21, 2008. Defendant insisted, however, that it was not legally valid. As he explained to the caseworker, the family had not paid rent for eighteen months because "the landlord sold the house, didn't tell them anything, so why should they pay rent." Defendant admitted that the family had not used the low-income housing list provided by the case worker and rejected her suggestion that they consider staying temporarily in a shelter. Defendant claimed he was trying to procure $2500 for a security deposit on a new four-bedroom apartment, and suggested the family could move in with one of his relatives. DYFS rejected that suggestion because the home was inadequate.
Defendant still had not addressed the housing situation by the following month because he believed the eviction notice was not valid and the family was living rent free. The case worker returned to the home about one week later with a safety plan. Defendant signed the plan and said he understood the steps to be taken, but R.M.F. became hostile and refused.
Two days later, on September 5, 2008, the Division's workers arrived at the house intending to effectuate an emergency removal of the children. R.M.F. was asleep on the downstairs couch and defendant had difficulty waking her. Defendant said he would deal with the housing situation when the family was actually evicted, telling the workers, "why should [we] move when [we] don't have to pay rent."
The house was messy and roach-infested, but the utilities were working and there was ample food. When the worker inquired about V.L.S.'s heart condition, defendant presented a heart monitor and cassette tape labeled "Dr. Mark Levine 5/4/06." Both parents claimed they had taken V.L.S. to the cardiologist since that time, but neither could identify when. Defendant, who remained unemployed, told the worker he had not applied for welfare because of concerns "with paying child support." The workers did not remove the children at that time, telling R.M.F. and defendant they would return the following Monday.
The next documented home visit in the record occurred on October 8, 2008. The house was now vacant. The caseworker contacted family members and left messages in an attempt to locate defendant, R.M.F. and the children. When R.M.F. returned the worker's call, she accused the Division of causing the family's eviction.
On December 4, 2008, the Division conducted a home visit after locating the family. R.M.F. was living with the children in a roach-infested house and told the worker that defendant had left the family. The case worker reminded R.M.F. that V.L.S. had a cardiologist appointment which DYFS had scheduled in September for 9:30 a.m. the next day.
The next morning R.M.F. advised DYFS that she rescheduled
V.L.S.'s appointment with a different doctor who had previously seen V.L.S. The Division workers called that doctor to confirm the appointment and were told the doctor had relocated out-of-state. Later that day, DYFS effectuated a Dodd removal*fn3 of all the ...