On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-126-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012
Before Judges Messano, Ostrer and Kennedy.
In these consolidated appeals, defendants T.Y.B. (Tess) and S.P. (Sam) appeal from the termination of their parental rights to their son, J.P. (Jason), and Tess also appeals from the termination of her parental rights to her son, M.S. (Mark).*fn1 We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
Tess is the mother of five other children: C.B. (Charles); R.S. (Ryan); T.S. (Tim); K.S. (Kate); and A.B. (Andy). None of the children are in her care and custody.*fn2 Her parental rights to Charles and Andy were terminated in separate actions prior to the resolution of this case. Tim, Ryan, and Kate reside with their biological father, Larry, and were not subjects of this action.
Tess gave birth to Charles while she was still a teenager. She left high school and began a relationship with Larry, twenty-two years her senior, which led to the birth of their first child, Ryan, in 1998. In December of that year, Larry called the Division of Youth and Family Services (the Division)*fn3 to report Tess was handling Ryan roughly when she changed his diaper.
After some initial investigation, the case was closed in February 1999.
In November 1999, a social worker at Beth Israel Medical Center reported to the Division that Ryan, then a year old, weighed only fifteen pounds. Tess, who was again pregnant, reported being physically abused by Larry. Although it was determined that Ryan was not malnourished, the Division referred Tess to a nutritionist to assist her in feeding Ryan and referred her and Larry for domestic violence counseling.
Tim was born in January 2000, and Kate was born June 2002. In March 2003, Tess was arrested for hitting four-year-old Ryan with a belt, leaving welts on his legs, back, and stomach. Charles and Tim reported that their mother had also hit them, and an unexplained mark was found on Tim's back. Larry was granted custody of Tim, Ryan, and Kate; Charles was placed in the custody of his biological father.
Frank Dyer, Ph.D., performed a psychological evaluation of Tess in June 2003. Dyer found Tess to be "an anxious, dependent, emotionally needy young woman who projects an aura of helplessness," and whose intellectual functioning was in the mildly retarded range. Dyer expressed "serious reservations" about Tess's ability "to parent her children independently," stating that "no matter how well-adjusted she became as a result of therapy," her cognitive limitations would mean that she would need in-home supervision before she could "be entrusted with the care of any child." Dyer recommended individual psychotherapy, parenting skills classes, and domestic violence counseling. The Division referred Tess for various services.
In April 2004, Tri-City People Corporation (Tri-City), which oversaw Tess's supervised visitation with her children, advised the Division that Tess had brought her then-newborn son, Andy, to the visit. Concerned for the baby's well-being given the psychological evaluation from Dyer, the Division effected an emergency removal and placed Andy in foster care.
On June 8, 2004, Tess was convicted of endangering the welfare of a child, Ryan, sentenced to probation and ordered to continue parenting counseling arranged by the Division. In July, the Division received a referral indicating that Charles was no longer with his father, but rather was living with Tess at Larry's home. Larry told the Division only that Charles had been calling him from Tess's home in New York for the past two weeks. Tess and Charles could not be located by the Division.
It is unclear from the record whether the Division was able to locate Tess during the next few months. In September, Babyland Family Services advised the Division that Tess's attendance at parenting classes was sporadic; Family Connections, a counseling service Tess was referred to by the Division, advised that she failed to keep an intake appointment. In a November 8 letter, the Division documented its attempts to reach Tess by phone and mail. The caseworker requested that Tess contact her "so that I can talk with you about your progress with the current case plan." The Division advised Tess of a psychological evaluation scheduled for December.
In February 2005, Family Connections closed Tess's case due to "sporadic" attendance and "limited contact." In March 2005, the Division advised Tess that attempts to contact her had been unsuccessful, and she had failed to complete any of the services provided, including a psychiatric evaluation, individual counseling and an updated assessment by Dyer.
In August 2005, the Division received another referral indicating that Tess had beaten Charles with a belt buckle. The referrant indicated Tess and Charles were at Larry's home. Division caseworkers went to Larry's home to investigate. Larry confirmed seeing Tess and Charles on a weekly basis when she came to visit the children, but Larry claimed that he never allowed them to stay with him and "his family."
While the workers were in Larry's home, Tess called, and Larry told her to come over. When she arrived with Charles, the workers interviewed Tess. She claimed to be living with a friend but provided no address; later in the interview, Tess claimed to be living in New York City. Tess told the workers that "she did not know that she c[ould] not have her child with her." Charles told the workers he stayed with his maternal aunt, Penelope, and, while the workers were still in the home, Penelope arrived to pick him up. Charles was released to Penelope's custody after Tess and Penelope executed a case plan, and Tess was again advised that she could not have unsupervised contact with any of her children. Ultimately, the Division determined the charge of abuse as to Charles was "unfounded."
In June 2006, Penelope contacted the Division, advising that she had returned Charles to his father because Tess "was causing problems for her." Penelope advised that Charles' father had since returned the child to Tess. The Division was unable to contact Tess, but, approximately two weeks later, the caseworker received a phone call from Tess. She told the worker Charles was with his father in Florida. When contacted, the father denied this and told the worker that he sent his son "up for the summer to visit with his mother." On September 13, 2006, the Division was granted custody of Charles, although his whereabouts were still unknown. When he was finally located in New York, the Division effected an emergency removal, and Charles was placed in foster care in December.*fn4
In January 2007, Tess was psychologically evaluated by Albert R. Griffith, Ed.D., in conjunction with permanency planning for Andy, who had been in foster care for approximately two years. Griffith found Tess was functioning in the "mildly retarded range." Griffith noted that Tess had never functioned independently and could not handle complex social challenges. He concluded that it could not be expected that Tess would "be able to provide primary parenting for [Andy] in the foreseeable future." The Division referred Tess to parenting classes at the Family Life Education Center (FLEC).
In November 2007, Tess was again evaluated, this time by psychologist Diane McCabe, Ed.D. Tess admitted that she was pregnant but stated "she had no intention of keeping the baby." McCabe opined that "[t]his mother's anger -- with its potential for displacement -- along with her cognitive limitations and inability to function independently, significantly limits her capacity to parent effectively and with assurance that her children will be adequately protected."
In February 2008, FLEC reported that Tess had attended her classes sporadically, presenting as disinterested because she had "completed similar programs in the past." The treatment goals were not met and Tess did not complete the program. Tess failed to maintain contact with the Division, which could not locate her and sent letters to hospitals around Newark and New York City requesting that they advise if Tess presented at its facility.
The Division received a report that Mark was born on March 18, 2008.*fn5 Social workers in New York reported that Tess intended to move back to New Jersey, with her newborn, and live with Larry. Attempts to contact Tess through the Administration for Children's Services in New York were unsuccessful. When she was eventually reached by phone in May, Tess denied having given birth to Mark. In May 16, 2008, Tess failed to appear at trial in Andy's guardianship proceeding, and an order was entered terminating her parental rights on May 19.
On August 8, 2008, the Division filed an order to show cause for investigation and to produce Mark. On August 6, Tess contacted the Division's caseworker asking whether a portable game system she had left for Charles had been given to him. When told it had not, because it would permit the exchange of emails, Tess became angry. She contacted the Division's supervisor, who heard "an infant crying in the background." Tess confirmed "the baby was in her presence." When Tess arrived at the Division office a few days later, she said she did not know where Mark was. A few days later, the caseworker told Tess that if she did not appear in court for a hearing in two days' time, a warrant would be issued for her arrest. Tess did not appear, refused to disclose her child's whereabouts and a warrant was issued for her arrest.
In November 2008, the Division received a referral providing an address where Tess had been seen. The Human Services Police responded to the address and found Tess and Mark. Mark was placed with a foster family on an emergent basis. At a fact-finding hearing held on January 14, 2009, Tess was found to have abused and neglected Mark, the order noting that she had "cognitive and psychological issues that preclude[d] her from safely parenting any child independently," that "these issues remained unaddressed due to her previous and current non-compliance with services[,]" and that Tess had "no independent housing, no income, and no means to support herself or the child . . . ."
In January 2009, Barry Katz, Ph.D., psychologically evaluated Tess, who told Katz that she was five months pregnant but did not know if she was going to keep the baby. Katz noted that Tess had "significant and pervasive paranoid thoughts and delusional ideation" which would mean that she would "display
[a] severe disturbance in interpersonal interactions and daily functioning." Tess was "severely narcissistic, paranoid and ha[d] disturbance of thought and in her interpersonal relationships." These problems "result[ed] in significant impairments in [Tess's] ability to care for a child on an ongoing basis" and "increase[d] the risk of continued harm to a child placed with" her.
In April, the Division again lost contact with Tess. It sent out letters to area hospitals advising that Tess was more than eight months pregnant. On May 21, 2009, during a hearing on the guardianship case involving Charles and Mark, Tess's counsel advised the judge that she had given birth to a baby boy, Jason, on March 5, and Sam was his father. Tess provided an address for Sam and Jason. The judge entered an order, pursuant to N.J.S.A. 30:4C-11.2, permitting the Division to remove Jason "due to imminent danger to [his] life, safety or health." The order further noted that Tess had twice told the Division ...