On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-70-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2011
Before Judges Reisner and Hayden.
Defendant J.L. (Jane) and J.K. (Jason) are the biological parents of C.K. (Cara), born March 6, 2009.*fn1 In these consolidated appeals we are asked to review separate orders of the family part (1) finding that both parents had engaged in abuse and neglect; and (2) adopting a permanent plan calling for the termination of their parental rights to Cara to be followed by Cara's adoption by her parental grandparents. Based upon our review of the record, we find no basis to disturb the trial judge's decision, and we affirm.
We discern the following facts and procedural history from the record on appeal.
Defendants had been in a romantic relationship since October 2007 and were living together on July 28, 2009. That day defendants had a verbal argument about household tasks that started around 5:30 p.m. and went on for some time. During this time Jason fed Cara, then she was put in a baby swing to sleep around 6:00 p.m. Defendants continued to argue, then Jason decided he would leave because he said Jane was acting like a "maniac." Jane blocked the front door to prevent his departure. When Jane put her hand on the door to stop him from leaving, Jason's fingers got caught in the door, possibly injuring his fingers. He then grabbed her by the neck and pushed her into the kitchen. She went into the living room and picked up a PVC pipe. Defendants continued to argue and then Jane hit Jason on the head with the pipe. He then struck her with such extreme force in the back of her head that she dropped to the ground and lost consciousness for two or three seconds or perhaps longer.
Due to the commotion coming from defendants' apartment, neighbors had
summoned the police. When Jane regained consciousness, Jason told her
that the police were coming, so she put on a bathrobe to hide the
marks from the fight. Both defendants told the police that they had
been arguing, but no physical violence had occurred.*fn2
According to the police report, Jason had the infant in his
arms when he greeted them at the door. After the police left, Jane
called her mother, an EMT, who sent a private ambulance to the
apartment to take Jane to the emergency room.
The altercation had occurred in the hallway as well as the kitchen and living room. During most of the incident, four-month-old Cara was present in the apartment in her bedroom about nine feet away and her door was partially open. Jane did not recall Cara waking during the incident but she could not explain why the police reported that Jason met them at the door with Cara in his arms. After the incident, Jason appeared to Jane to be "emotionally distraught," crying and curled up in a ball. Jane feared leaving the baby with him in his "unstable" state so she took Cara with her to the hospital.
After Jane arrived at the emergency room at 9:21 p.m., she reported that she had been assaulted by Jason, which caused the doctor to contact the Division of Youth and Family Services. An investigator for the Division came to the hospital that night and worked out a safety plan with Jane, including that the baby would go with Jane's mother for the night, then Jane and Cara would live with her mother. Upon being released from the emergency room, Jane was taken to the police station to obtain a Temporary Restraining Order and file a criminal complaint, but once there she declined to cooperate. A few days later, Jane told the Division investigator that she regularly took medication for her bipolar disorder, but she had not taken it for a few days before the incident because her apartment was so messy she was unable to find it.
On August 6, 2009, the Family Court granted the Division's complaint for care and supervision of Cara and restrained Jason from contact with the baby except for supervised visits. In September, Jane left her mother's home due to family conflict and reunited with Jason. Soon thereafter, on October 6, 2009, based on the mother's significant suicidal ideation, the court found that continuation of custody with the mother would be contrary to the welfare of Cara and granted the Division custody of Cara with physical custody remaining with the maternal grandmother. In later October, after the maternal grandmother tested positive for cocaine, the Division removed Cara from her home. In December 2009, Cara was placed into the home of her paternal grandparents, where she resided throughout the remainder of the litigation.
In December 2009, the Division filed an amended complaint alleging abuse and neglect. In addition to the violent incident of July 29, 2009, the complaint alleged that the parents had a pattern of instability which placed the baby at a continuing risk of harm. Allegations about Jane included prior substance abuse treatment, current lack of treatment for bipolar disorder, and two psychiatric hospitalizations, and allegations about Jason included numerous positive drug screens for amphetamines and prior history of domestic violence.
On February 1, 2010, at the scheduled fact-finding hearing, Jason failed to appear despite having received notice. Rather than go to trial on all the allegations, Jane entered into a stipulation that she and Jason were engaged in a mutual altercation resulting in her becoming unconscious and that, as a result, neither parent was available to care for Cara. Jane also ...