On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FG-06-29-11 and FG-16-17-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Reisner and Harris.
Defendants J.C. (father) and M.L. (mother) appeal from a May 26, 2011 order terminating their parental rights to their three children. The trial judge determined that, due to defendants' significant developmental limitations, they failed to address their children's significant medical problems in the past, they were not currently capable of caring for their children, and they would not be able to do so in the future. Two of the children had lived with a foster family for an extended period of time and had bonded with the family, who wanted to adopt them. The third child had such severe developmental and physical limitations that he would probably live permanently in a hospital unless adopted by a specialized resource family; due to their own limitations, defendants could not make necessary medical decisions for his care. However, the judge's May 26, 2011 order granted defendants' request to have continuing visitation with this child even after termination of parental rights.
We recognize that defendants love their children and it is not defendants' fault that they cannot care for them. However, we find no basis in this record to overturn the Family Part judge's decision that termination of parental rights is in the children's best interests, N.J.S.A. 30:4C-15.1a. That decision is clearly and convincingly supported by substantial credible evidence, and we therefore affirm the order on appeal.
M.L. and J.C. have three children - a daughter, V.C., who was born May 13, 2005, and twin sons, C.C. and M.C., who were born December 17, 2007. Because C.C. was born with severe disabilities, including suspected brain damage, he remained in the hospital for more than a month after his birth.
The Division of Youth and Family Services (Division)*fn1
first became involved with the family on January 23, 2008,
after receiving a referral from a hospital social worker who was
concerned about defendants' ability to care for their children. At
that time, C.C., who was still hospitalized, was due to undergo
surgery to have a feeding tube inserted, and the hospital staff was
concerned that M.L., who was illiterate and spoke no English, would
not be able to read instructions, properly administer medicine to
C.C., and maintain the clean
environment needed by a child with a feeding tube. The social worker
also reported that V.C. had a rotten tooth which had gone without
treatment, and that the family was living in a one-room apartment with
no proper sleeping accommodations for the children.
The Division's investigators made a home visit and confirmed the hospital social worker's observations. During their conversations with M.L., she did not appear to understand the seriousness of C.C.'s medical condition or how to care for him. They also noted that V.C. had a rotten tooth and was not yet talking or making any sounds, although she was almost three years old. The other son, M.C., was sleeping in a car seat because there was no crib for him. M.L. told the Division investigators that she had no family support and had not obtained dental care for V.C. because she did not know how to find a dentist.
When interviewed by Division staff a couple of days later, J.C. stated that he did not know what was wrong with C.C. because the hospital staff did not speak Spanish. He also stated that it was not his responsibility to figure out how to deal with the son's medical problems because he worked all day and M.L. should be responsible to care for C.C. During further discussions with the Division worker, J.C. admitted that he did not know how he or M.L. would be able to care for C.C. when neither of them could read medical instructions and had no family who could help them to care for the child. On re-contacting the hospital, the Division also learned that M.L. had a history of bringing V.C. in for medical appointments and then failing to follow treatment instructions.
The Division then set in place a range of support services and other assistance for the family, including buying furniture, arranging for a home health aide, and referring V.C. and M.C. to an early intervention program because both children had developmental delays. The Division also arranged for C.C. to be evaluated by the UMDNJ Child Health Program. He was diagnosed with encephalopathy, global development delay, seizure disorder, microcephaly, and cerebral palsy. When he was released from the hospital on March 31, 2008, the Division arranged for physical and occupational therapists to visit the home.
Due to concerns about defendants' parenting abilities, the Division also arranged for both of them to undergo psychological evaluations. Dr. Iser diagnosed M.L. with moderate mental retardation and recommended that she be trained in providing medical care for C.C. Additionally, Dr. Iser diagnosed J.C. as being in the lower range of intelligence and as having problems with adaptive functioning. He recommended that J.C. attend parenting classes.
Accordingly, the Division continued to provide the family with services through the end of 2008. During that time, C.C. had a number of health crises, and the Division learned that on one occasion, the parents failed to obtain necessary medication for him. When asked to explain that failure, J.C. claimed he was embarrassed because he could not sign his name, which was necessary to obtain the medicine at the pharmacy, and M.L. claimed she was afraid to go to the pharmacy lest she be identified and deported. In November, C.C. was hospitalized with pneumonia, and in December, M.L. filed for a restraining order against J.C., alleging that he tried to kill her.
On January 2, 2009, the Division removed the children on an emergency basis, after the assigned in-home therapist reported that M.L. was unable to care for the children. The therapist reported that C.C. appeared ill and in respiratory distress, and might not survive without intervention; and M.C. had been very ill for two weeks, with severe breathing problems, but defendants had not sought medical treatment for him. A Division investigation confirmed that information. On being interviewed by a Division case worker, M.L. stated that she did not seek medical attention for M.C. because she was only told to take C.C. to the hospital. The worker also observed that M.L. had a black eye, which M.L. said J.C. had inflicted on her. Understandably concerned that M.L. was overwhelmed and unable to care for the children, and that the children were at risk, the Division conducted a DODD removal. N.J.S.A. 9:6-8.29. The Division placed V.C. and M.C. in a foster home, and placed C.C. in the Children's Specialized Hospital because he needed round-the-clock care.
There followed a series of additional evaluations, all of which resulted in expert opinions that both parents had serious intelligence deficits. With one exception, those experts also opined that neither parent could independently care for the children. Dr. Sostre opined that J.C. might be able to care for the children if he received appropriate training. However, Dr. Sostre also speculated that J.C.'s mother might assist him in caring for the children.
The Division arranged for both parents to attend parenting classes, which they completed. The agency also arranged for a range of additional services, including literacy classes and psychological therapy for M.L., after Dr. Amaro diagnosed her with depression. The agency also attempted to identify relatives to care for the children, a search that ultimately proved unsuccessful.
The court initially rejected the agency's plan to file for termination of parental rights, directing that the agency search for additional services for the parents. On August 11, 2010, finally satisfied that the Division had exhausted its efforts to find available resources to assist defendants to improve their parenting skills to an acceptable level, and had been unable to find relatives to care for the children, the court approved the agency's plan to terminate parental rights. At that point, the children had been out of the home since January 2, 2009.
At the trial, which commenced in March 2011, Division case worker Maria Gonzalez testified that the agency initially planned to return the children to M.L.'s custody, conditioned on their all living with M.L.'s sister, who would assist M.L. in parenting.*fn2 However, at a family team meeting on June 16, 2010, the sister told Gonzalez that she was "no longer able to assist [M.L.]" because they were not getting along.*fn3 M.L. then asked the Division to consider her father and brother as placements. However, the Division ruled them out based on the negative recommendations of a psychologist who examined them. Gonzalez testified that each family member who was ruled out was sent a letter, in English and Spanish, advising of that decision.*fn4
Gonzales explained that the children could not be placed with the paternal grandmother because she was an undocumented immigrant. M.L. also told Gonzalez that she was uncomfortable with the grandmother's practice of kissing V.C. on the mouth.
Gonzalez testified that when the children were still living with defendants, the Division arranged for in-home nursing assistance for C.C. and in-home speech therapy for V.C. After the children were placed in foster care, J.C. frequently missed visits. M.L. had difficulty figuring out how to take the bus and was often late in arriving. Gonzalez also testified to the Division's efforts to provide M.L. with literacy instruction. M.L. dropped out of the class, explaining that she needed to work. The agency also arranged for both parents to take parenting classes.
According to Gonzalez, soon after the children were placed in foster care, the foster mother observed V.C. engage in sexualized behavior, such as putting sticks of string cheese in her underwear, and jumping up and down on a stuffed animal as though she were having sexual relations with it. When the parents were asked if they had observed such behavior while V.C. was living with them, J.C. said that he had but he did not know what to do about it. M.L. denied seeing the behavior. Ultimately, the agency was unable to confirm whether the child had been sexually molested by anyone.
Addressing C.C.'s situation, Gonzalez testified that he was confined to a specialized hospital, because he could not breathe without a tracheotomy tube, and had to be fed through a tube in his stomach. M.L. had so little understanding of C.C.'s medical condition that she once ...