On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-32-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Espinosa.
In these consolidated appeals, defendants B.D. ("Bonnie") and A.R.D., Sr. ("Arthur") seek review of the Family Part's order terminating their parental rights to their three children, A.R.D., Jr. ("Arthur Jr."), N.M.M.D. ("Nelly"), and C.M.D. ("Claire").*fn1 Both defendants contend that the Division of Youth and Family Services (DYFS or the Division) failed to establish by clear and convincing evidence the statutory criteria contained in N.J.S.A. 30:4C-15.1(a).
We have considered defendants' arguments in light of the record and applicable legal standards. We affirm.
Defendants were married on August 14, 2002. On August 27, Arthur Jr. was born at Children's Hospital of Philadelphia (CHOP) with a diaphragmatic hernia that was subsequently surgically repaired.*fn2 On September 11, CHOP contacted DYFS, concerned that, because of their cognitive impairments, defendants were unable to care for Arthur Jr. upon his release.
DYFS interviewed the couple on September 27 at their Trenton apartment which was clean and orderly. Arthur claimed to be on leave from his position at WalMart; Bonnie did not work and received monthly income from Social Security. Arthur also received a monthly disability payment from the Veterans Benefits Administration (VA). The DYFS workers told defendants that Arthur Jr. would not be released to their custody unless someone could assist with child care. Various family members were considered to no avail. DYFS also wanted defendants to be psychologically evaluated. They agreed, and, in November, Dr. Alan Lee conducted the evaluations.
Lee reported that Bonnie had a "long history of cognitive and intellectual limitations and apparent developmental delays," suffered from low self-esteem and appeared passive and dependent. Lee believed Bonnie could care for her child if services were in place to help her. He recommended that DYFS monitor the family, provide counseling and provide an in-home health aide and visiting nurse.
Arthur exhibited symptoms of Bipolar Disorder, but Lee opined that reunification with his son "appear[ed] possible, particularly if in-home support services [were] implemented." Lee also recommended that Arthur be psychiatrically evaluated and receive individual counseling and ongoing supervision by DYFS.
In December, after a home health aide was provided, Arthur Jr. was released from CHOP to his parents' care. DYFS continued to assist defendants in securing services and monitored the family. On March 5, 2003, the Division noted during a home visit that Bonnie had left the oven on with the door open to provide heat in the apartment. In May, a nurse examining Arthur Jr. expressed concern that he may have developmental delays. At the end of June, DYFS reported that defendants' home was "very untidy."
Arthur Jr. was accepted into a program called Special Child Health Services (SCHS), which would provide in-home therapy. Within weeks, a SCHS worker contacted DYFS with concerns about the family, in particular that Arthur "was having problems dealing with things. He appeared overwhelmed and did not understand what and why [SCHS was] there." The worker suggested that Arthur Jr. receive therapy at a day care center because Arthur's attitude made in-home therapy impossible. She believed the family "was struggling."
By August, Arthur Jr. was enrolled in a medical day care, and workers recognized his developmental delays. The following month, Arthur lost his job. DYFS also received a call from the day care reporting that Arthur Jr. had been sent to the day care center with sour formula. On October 8, a neighbor reported to DYFS that defendants' home was unsanitary and the family was being evicted for non-payment of their rent.
On October 14, a home visit reported defendants' home was in such disarray that the floor in several rooms was barely visible. Arthur claimed the family was in the process of moving, although he could provide no address for the new residence. Beverlyn Grissom, a legal advisor at Mercer County Children's Medical Daycare Center, confirmed that she had found the family a new apartment which they could move into on November 1.
However, on January 28, 2004, Grissom notified DYFS that the family had not moved into the new apartment, but, instead, moved to New York. They had now returned, were homeless and residing in the Trenton train station. Grissom had arranged for them to stay at a hotel for the next two days. Caseworkers met the family at the hotel and noted that Arthur Jr. was "very dirty," had no clean clothes, and weighed only seventeen pounds.
Defendants agreed to permit the temporary six-month placement of their son with D.L., a nurse who worked at the medical day care that Arthur Jr. had attended. Defendants visited their son at the day care two days per week. When D.L. resigned from her position in February, she sought to enroll Arthur Jr. in another day care center.
On March 17, 2004, D.L. expressed concerns about defendants' behavior to DYFS. She said that most of their visits took place at a local mall, and Arthur stole things from the stores and endangered Arthur Jr. by placing him on the escalator railing because the boy enjoyed it. D.L. often brought food for Arthur Jr. to eat during the visits, but Arthur and Bonnie took the food and ate it themselves. D.L. told DYFS she wished to adopt Arthur Jr.; however, the caseworker informed her the Division's plan was for reunification of the family.
By April, defendants had secured an appropriate two-bedroom apartment and wanted Arthur Jr. returned to their care, but DYFS indicated that they needed to complete parenting skills classes beforehand. Arthur Jr. was progressing while in D.L.'s care, though he still had health and developmental problems -- he weighed only twenty-two pounds, spoke few words, and often fell because of his pronated feet. By July, defendants were participating in a parenting class with the Children's Home Society (CHS) and attending bi-weekly individual and couples counseling on caring for a child, budgeting money and utilizing resources.
When the six-month consensual placement ended in August 2004, DYFS initiated a Title Nine action and was granted custody, care and supervision of Arthur Jr. CHS reported that defendants were doing very well in the program. Bonnie's mother agreed to assist the family. Lee conducted another psychological evaluation of Arthur and Bonnie in October and reached similar conclusions to those contained in his earlier report. Also in October, defendants completed the CHS program, and its director recommended their son be returned to them provided community and familial supports were in place.
Arthur Jr. was showing signs of developmental disorders. In mid-December, D.L. informed DYFS that she would no longer care for the child. He was placed in another foster home by the end of the month.
Dr. Alexander Iofin evaluated Arthur in November, and concluded he was "functioning in either the borderline level of intellectual functioning or the very top level of mild mental retardation" and presented symptoms of Bipolar Disorder or some type of mood disorder. Iofin recommended further testing and mental health services, and was unsure whether reunification was a viable option.
Defendants underwent a series of parenting evaluations during June and July 2005 which were positive, and Arthur had regained employment at WalMart. From mid-October to December 7, however, Arthur Jr. was hospitalized for failure to thrive. DYFS received two referrals in December 2005 and January 2006 alleging defendants neglected Arthur Jr. by failing to properly feed and supervise him. The Division's ensuing investigations did not substantiate the claims. On January 18, DYFS dismissed the Title Nine complaint and Arthur Jr. was formally returned to his parents' custody.
A visit in February revealed that defendants' home was extremely cluttered, although defendants cleaned most of the apartment within a week. Defendants removed Arthur Jr. from the day care he had been attending because they preferred the medical day care he attended previously.
On April 2, 2006, Nelly was born. In June, defendants told DYFS they no longer needed, nor would they accept, the Division's services. A week later, DYFS received a call reporting that the children were being neglected. Specifically, the referent claimed that Arthur Jr. was allowed to roam the neighborhood alone, had nearly been struck by a car, and ate bread left on the ground for birds because there was no food in the house. The following month DYFS received a call from a neighbor reporting that Bonnie and Arthur had left Arthur Jr. unattended in an inflatable pool, and the family was homeless and staying with a friend. DYFS visited the family at a friend's home, and defendants again denied any neglect, claiming their former neighbors were making these allegations to harass them.
On August 2, 2006, Detective Burns of the Lawrence Township Police Department reported to DYFS that he had responded to an ambulance call for Nelly who was lethargic, vomiting, and had diarrhea as well as a bruise on her hand, which defendants could not explain. Defendants told DYFS that they had been evicted from their apartment and were staying with a friend whom they blamed for causing the bruise.
Defendants moved the family into Bonnie's mother's one bedroom apartment, which was unsuitable for their needs. For the next ten days, the Division was unable to locate the family, but eventually found them residing at the Budget Inn hotel in Trenton where they stayed until they located ...