On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-0078-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012
Before Judges Fisher, Baxter and Nugent.
In these consolidated appeals, defendants J.H. and P.P. appeal from a July 23, 2010 Family Part permanency order that approved the plan of the Division of Youth and Family Services (Division or DYFS) to file a guardianship complaint against both defendants, rather than reunify them with their son A.P., born in the fall of 2008. As to the mother, J.H., we agree with the judge's determination that in the two years following the emergency removal of A.P. from J.H.'s custody, J.H. failed to take the steps necessary to achieve reunification. In particular, J.H. failed to establish housing independent of P.P., a known sex offender with an extensive criminal record; and she failed to bond with A.P. or develop any significant mother-child relationship despite the intensive parenting classes DYFS provided.
As to P.P., the judge observed that P.P. had recently been convicted of second-degree sexual assault on a minor, and had been sentenced to a six-year term of imprisonment with a three-year period of parole ineligibility. We agree with the judge's determination that by virtue of P.P.'s prolonged absence from his son's life, and P.P.'s inability to avoid committing further sexual assaults upon children, P.P. should not be reunified with A.P. For that reason, the Division's plan to seek guardianship and terminate P.P.'s parental rights was appropriate.
In addition to A.P., the child who is the subject of the present appeal, J.H. is the mother of three older children. We provide some history of the Division's earlier involvement with those three children, as it sets the stage for the Division's ultimate removal of A.P. Those three children -- a daughter, A.H., born in the beginning of 2001; a son born in the early spring of 2004; and another son born in the spring of 2006 --were born to J.H. while she was married to W.H., whom she divorced in September 2007. When J.H. and W.H. initially separated, J.H. began living with defendant P.P. Shortly thereafter, W.H. learned from a friend that P.P. was a registered sex offender. When W.H. so informed J.H., she refused to believe him and refused to take steps to ensure that her three children were never in P.P.'s presence.
On December 6, 2007, W.H. called DYFS to report that his and J.H.'s six year-old daughter A.H. awakened in the middle of the night screaming "My thing is going to hurt." She woke up a second time that night screaming hysterically, "Leave me alone, don't touch me." W.H. immediately reported A.H.'s outburst to DYFS, and requested that the agency take steps to prevent J.H. from allowing P.P. to have access to any of the three children.
When a DYFS caseworker confronted J.H. with the facts of A.H.'s outburst, J.H. insisted that P.P. could not have molested A.H., as she, J.H., was always present when P.P. was with her three children. J.H. also asserted that A.H. was "lying" at the behest of her father, J.H.'s ex-husband, so that he could exact further concessions from J.H., such as increasing her child support obligation for the three children or restricting her parenting time.
When the caseworker asked J.H. whether she was aware of P.P.'s criminal background, J.H. answered in the affirmative, acknowledging that P.P. had been convicted of endangering the welfare of a child after admitting to engaging in sexual intercourse with thirteen and fifteen year-old girls. J.H. asserted there was nothing wrong with P.P.'s conduct, as both girls had consented. When the caseworker persisted in explaining to J.H. the seriousness of P.P.'s past conduct, and the risk he posed to J.H.'s three children, J.H. ended the conversation with a statement that if anything had happened to A.H., P.P. was not the perpetrator.
Alarmed by J.H.'s lack of insight into the risk P.P.'s prior history of sex offenses posed to J.H.'s children, the Division filed a verified complaint for care and supervision of J.H.'s three children. Although the complaint did not allege that J.H. had abused or neglected any of her three children, the Division asserted that her failure to "tak[e] the allegations of sexual abuse seriously" placed her children "at risk" because she had allowed "a registered sex offender to be unsupervised with her children." DYFS sought an order granting the agency care and supervision of the children.*fn1
At a hearing on September 18, 2008, DYFS presented the testimony of caseworker Linda Zapelli, who described P.P.'s "extensive" criminal history. Zapelli explained that P.P., a registered Megan's Law sex offender, had been convicted in 1996 of endangering the welfare of a child; in 2003 of second-degree sexual assault on a child; and in 2007 of another second-degree sexual assault after admitting to sexual intercourse with an underage female.*fn2 He was also convicted in 2007 of violating the requirements of community supervision for life.
Zapelli's testimony also included a discussion of the parental fitness evaluation conducted by Norman D. Schaffer, Ph.D., to evaluate whether J.H. posed a risk to her three children. According to Zapelli, Dr. Schaffer recommended that J.H. be prohibited from unsupervised visitation with her three children because J.H.'s refusal to believe that P.P. posed any risk to her three children endangered their well-being.
Zapelli also testified that a few days earlier, J.H. had given birth
to A.P., the child who is the subject of this appeal. Zapelli
explained that DYFS had conducted an emergency Dodd*fn3
removal of A.P. in light of the presence of P.P. -- a
convicted sex offender -- in the home. She also testified that
DYFS had amended its Title 9 complaint to add P.P. as a defendant and
A.P. as an at-risk child.
At the conclusion of the September 18, 2008 Dodd hearing, the judge approved the emergency removal of A.P. from the home of J.H. and P.P., finding that A.P. "would be at risk if placed with his mother [J.H.] based upon the mother's inability to supervise . . . [P.P.'s] contact with the child." The judge further concluded that J.H. and P.P. were in need of services to remediate the circumstances that created an "unfitness" to care for A.P. The judge observed that with appropriate services provided by DYFS, and close supervision of J.H. and P.P., she hoped reunification would be possible. The judge's September 18, 2008 order granted ...