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New Jersey Division of Youth and Family Services v. Ro.H. and Ra.H.

March 14, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-58-10.

Per curiam.



Submitted January 24, 2012 -

Before Judges Messano, Yannotti and Espinosa.

Defendants Ro.H. ("Rose")*fn2 and Ra.H. ("Robert") appeal from the termination of their parental rights to their three children, P.R.H. ("Paul"), T.G.H. ("Tammy") and A.R.H. ("Alan"). We affirm.

I Termination of parental rights is warranted when the Division of Youth and Family Services (DYFS or the Division) establishes by clear and convincing evidence that:

(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 [D]ivision 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); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).]

In their appeals, Rose and Robert each argue that DYFS failed to establish these four prongs by clear and convincing evidence. We disagree.

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record[,]" the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

The trial court carefully considered the criteria established in N.J.S.A. 30:4C-15.1(a) and cited adequate, substantial evidence in the record in a detailed written opinion to support its conclusion that each of the prongs had been proven by clear and convincing evidence. We affirm substantially for the reasons articulated in the trial court's opinion and recite only the following salient facts.


The first prong requires proof that the "child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). During the course of the three years prior to the guardianship hearing, DYFS had numerous contacts with defendants. Although the evidence reflected several occasions of suspected physical abuse of the children, none of these instances were substantiated. However, the harm that must be shown under the first prong is a threat to the child's health and safety that is "likely [to] have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). To obtain sufficient proof, it is not necessary to wait "until a child is actually irreparably impaired[.]" In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The prong may be satisfied "by an accumulation of harms over time." New Jersey Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 506 (2004). "[T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348.

DYFS initiated this guardianship action in October 2009, after responding to and investigating various referrals involving defendants dating back to January 2006.

The first referral to DYFS concerned neglect of two-year-old twins, Tammy and Alan, reporting that Rose left them home alone each morning for ten minutes while she took five-year-old Paul to the bus stop. In addition, it was reported that the parents were verbally abusive to the children and physically abused them by grabbing their arms and pushing them around. Robert acknowledged that the twins were left home alone. After Rose agreed that she would no longer leave the twins home unattended, and finding no corroborative evidence of physical abuse, DYFS determined the allegations of abuse and neglect were unfounded and closed the case.

The second referral reflected a failure to attend to the medical needs of defendants' children. In May 2007, the Roxbury Department of Health reported that three-year-old Alan had tested high for a level of lead. Despite several letters and telephone calls, defendants failed to have Alan's levels re-checked. Both defendants were unresponsive to this medical issue.

In her first interview with the DYFS caseworker, Rose said Alan had not been taken for a follow-up test because they had only recently obtained medical insurance and because Robert would not allow her to take the children to the doctor. Robert later called the caseworker, screamed and threatened him, accusing him of invading his privacy and refused to take Alan to have his lead level checked again. The caseworker followed up with a visit to the home, accompanied by two police officers. He stressed the serious risks associated with exposure to lead and advised that Alan could be tested at a free clinic. Robert claimed ignorance of the risks and apologized for his prior behavior, stating he was a disabled veteran, suffered from post- traumatic stress disorder (PTSD) and was an insulin-dependent diabetic.

Because defendants made arrangements for re-testing, DYFS concluded the allegation of neglect was unfounded but opened a case for monitoring and services. Both defendants signed the case plan requiring them to provide a safe and stable home and meet the children's medical needs. However, at an announced visit in July 2007, defendants still had failed to take Alan for an updated lead test. It was not until late September that Alan finally was re-tested, four months after DYFS first addressed this need with defendants.

The third referral concerned defendants' financial obstacles to providing a safe and stable home environment. In June 2007, the Morris County Office of Temporary Assistance (OTA) reported that the family had no propane fuel since February 2007 and that it was unknown whether they had an electric stove to prepare food. Defendants had initially contacted OTA in February 2007 to request assistance with overdue rent. However, Robert refused to provide the paperwork necessary to obtain the assistance and was described as irrational and argumentative by the OTA employee. The caseworker who met with defendants confirmed that, although the family lacked gas, they had electricity and a working electric stove to prepare meals.

The family's financial troubles continued, however. In July 2007, Robert asked a caseworker for assistance regarding $5,000 in unpaid rent, a $254 monthly electricity bill and maintaining adequate food. He stated that they were unsuccessful in getting assistance from OTA and that their food stamps had stopped when he returned to work. On July 30, 2007, Robert advised the caseworker that their electricity would be shut off for non-payment. DYFS paid the outstanding bill. Despite these difficulties, defendants failed to submit necessary documentation to obtain housing assistance from OTA as late as September 24, 2007, and owed $6,000 in back rent as of October 2007. On November 29, 2007, Robert's employment at Walmart was terminated because he was accused of theft.

The next referral to DYFS came in January 2008. An anonymous source reported that while at the Temporary Assistance for Needy Families (TANF) office, Robert raised his hand in the air, threatening to hit the children when he disapproved of their behavior. Although the referent did not see Robert strike the children, she heard a sound like a child being struck and saw Paul under a table with red cheeks, looking as though he was crying.

This referral of apparent corporal punishment echoed similar reports of Robert threatening to hit the children in public and statements by the children that he frequently struck them when angry and they feared him. As early as May 2007, Paul told a DYFS Family Service Specialist that he found his father "scary" and that his father had thrown him against a wall and onto the floor when he was in kindergarten. In June 2007, Paul repeated that he was afraid of his father because he yelled and hit the children with a belt and that his father also hit his mother. Although defendants denied physical abuse, Rose admitted they occasionally spanked the children. Following the January 2008 referral, Paul denied being hit recently but said his father yelled a lot and sometimes spanked him and the twins.

DYFS received another referral in February 2008. A school guidance counselor reported that Paul, who was then seven years old, told her he liked to drink rum and beer and that his father either gave him shots of rum or left it around the house. When interviewed by the DYFS caseworker, Paul denied that his father offered him alcohol but said he sneaked sips of beer and whiskey when his father was not looking. Robert denied giving Paul alcohol aside from small sips on special occasions but admitted that Paul sometimes stole alcohol from him.

In late March 2008, the family began an in-home crisis intervention and family education program with Family Preservation Services (FPS). Although inconsistent in response to inquiries about domestic violence, Rose confirmed the suspicions of various workers associated with the case, corroborating Paul's allegations of physical domestic violence. Specifically, Rose disclosed in April 2008 that Robert had choked her in front of the children on two separate occasions, in February and March, resulting in another referral to DYFS.

When a Special Protective Response Unit worker went to the home with a police officer to investigate these allegations, Robert ordered Rose not to say anything to the worker and told the worker to leave, without interviewing the children. Robert became overtly hostile to further DYFS involvement. Although he initially agreed to have Alan evaluated after DYFS referred the family for psychological evaluations in March, Robert withdrew his consent, refused to allow caseworkers to speak to Paul or any of the family members' therapists and even threatened to use force to remove caseworkers from his home.

On April 18, 2008, DYFS filed an order to show cause and complaint for care and supervision pursuant to Title 9, N.J.S.A. 9:6-8.21 to -8.106, and Title 30, N.J.S.A. 30:4C-12. The court placed the children in the immediate care and supervision of DYFS and ordered defendants to appear on May 1 to show cause why they should not be required to cooperate with the Division and comply with services arranged for them. An order dated May 1, 2008 reflected that defendants consented to proceed with the psychological evaluations on May 22, and ordered them to cooperate with the Division. Nonetheless, Robert later told DYFS he would not submit to a substance abuse evaluation because it had not been ordered by the court.

On June 2, 2008, DYFS received a referral from the Roxbury Police Department, stating that Robert was arrested for driving while intoxicated while Paul was in the car with him. Following his arrest, he spoke of ...

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