On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-150-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2012
Before Judges Messano, Lihotz and Ostrer.
In these consolidated appeals, S.H. appeals from an order entered August 30, 2011 terminating her parental rights to her son, K.A.H., born August 7, 2008, and her twin daughter and son, T.D.A. and T.T.A., born September 1, 2009; and C.A. appeals from the same order terminating his parental rights to the twins. K.A.H.'s father was never identified. Both S.H. and C.A. argue the Division did not satisfy the four criteria required by N.J.S.A. 30:4C-15.1(a) for termination of parental rights. We disagree and affirm substantially for the reasons set forth in Judge Octavia Melendez's cogent forty-five page opinion issued August 30, 2011 after a four-day trial in June and August 2011.
We begin with a brief background of the parties. S.H. was almost twenty-one years old when she gave birth to K.A.H. in Virginia. While pregnant, she absconded from parole on a 2006 New Jersey narcotics conviction. She was arrested and incarcerated in Virginia, where she remained until K.A.H.'s birth. She was extradited to New Jersey and remained incarcerated during K.A.H.'s first four months of life, while he lived with S.H.'s mother in Virginia. Upon her release in December 2008, K.A.H. was returned to S.H.
The circumstances of S.H.'s criminal conviction are significant to this matter. S.H. was convicted of third-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35-5. She was initially given a probationary sentence in March 2006. However, she was incarcerated after she was resentenced, following a court determination she violated probation. Probation alleged she failed to report, tested positive for marijuana, failed to obtain mandated drug treatment, and failed to enroll in school or obtain employment. Probation also alleged she had been charged with four separate violations of a domestic violence restraining order, which apparently was obtained by her mother.
She was released to a half-way house in mid-2007. She failed to comply with parole, and fled first to Brooklyn, New York, before going to Virginia with her mother.
According to a psychological evaluation, S.H. unsuccessfully attempted to earn a G.E.D while incarcerated.
She had dropped out of high school, and could not recall the highest grade she completed. She had also been involved in the juvenile justice system, and had a history of running away from home. She asserted her mother physically disciplined her as a child. S.H. had no employment experience. According to intelligence testing conducted in October 2010, S.H. functioned in the extremely low range of intellectual ability, with a full scale IQ of 63, placing her in the first percentile.*fn2
S.H. initially believed that C.A. was the father of K.A.H., asserting that she had relations with C.A. in December 2007 and lived with him at his mother's house in 2008. It was later established in May 2010 that C.A. was not the father, nor were any of four other men S.H. would later identify.*fn3
Turning to C.A.'s background, he had more extensive contacts with the criminal justice system than did S.H. After a jury trial in 2005, C.A., then twenty-one years old, was sentenced on July 28, 2005 to a seven-year term, with three years of parole ineligibility, for a second-degree drug offense, N.J.S.A. 2C:35-7.1, consecutive to a seven-year term for possession of a weapon during a drug offense, N.J.S.A. 2C:39-4.1, and concurrent to a four-year term for unlawful possession of a handgun, N.J.S.A. 2C:39-5b. C.A. had been incarcerated since March 2004. On two other indictments, he was sentenced to concurrent terms of four years for third-degree possession of CDS, N.J.S.A. 2C:35-10a1, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The court noted in sentencing C.A. that he had one prior adult conviction, plus an extensive juvenile record including two adjudications for aggravated assault, two for firearm possessions, and three violations of probation.
C.A. was released to a halfway house in November 2008, where he remained until September 2009. During that period of time, he fathered T.T.A. and T.D.A. In September 2009, he left the halfway house without permission, allegedly to be by his twins' side. As a result, he was returned to prison where he remained until September 2011.
The court first granted the Division custody of K.A.H. and the twins on November 20, 2009. The court concluded the children should be removed after S.H. left K.A.H. with her brother on November 16, for what was supposed to be less than a day, and then failed to return. S.H. also failed to undergo training regarding the needs of the twins, who were still hospitalized with medical complications after their premature birth two months earlier.
Hospital staff had contacted the Division on October 23, 2009 to express concerns that S.H. was homeless, had not provided staff with a means to contact her, and had visited the twins only once a week. Before delivering the twins, S.H. was living in domestic violence shelters, after being victimized by her boyfriend, T.B. After birth, T.D.A. needed oxygen and T.T.A. had bleeds in his head. When S.H. did visit, she spent most of her time on her cell phone, or with friends, rather than interacting with her children. S.H. also failed to attend hospital classes to learn how to care for the babies' special medical needs after discharge.
After the referral in October, a Division worker ultimately contacted S.H., who initially refused to reveal where she was living. M.A., the paternal grandmother, allowed S.H. and her children to live in her three-bedroom home. However, M.A. reported on November 16 that S.H. left M.A.'s home with K.A.H. a week earlier after M.A. asked S.H. to contribute $200 a month toward rent. S.H. apparently could afford the rent, as the Division was informed S.H. was receiving $423 a month in cash assistance and $678 in food stamps.
The Division confirmed that J.H., the maternal grandmother, declined to care for the children because of her own unstable circumstances. M.A. reported on November 23, 2009 that she too would be unable to care for any of her grandchildren because she needed to care for her own mother. A paternal aunt in New York, C.W., offered to take the children.
On November 23, 2009, the Division found S.H. living in her godmother's home, which was unsuitable for the children because of its unsafe condition and state of disrepair. The house lacked heat, had exposed screws and wires, and an inoperable toilet. S.B., the father of the godmother's children, agreed to allow S.H. and her children to live in his home, which the Division found suitable.
The Division's goal at the time was family stabilization and reunification. On December 2, 2009, Judge John Fratto restored legal custody of the three children to S.H. K.A.H. returned to S.H. that day, and, after S.H. completed training to care for the twins, they were discharged from the hospital into her custody two days later. Though over three months old, T.D.A. weighed less than three pounds.
Soon after, S.H. required Division assistance in obtaining formula for the twins, after she called the hospital for help, with almost none left to feed her children. S.H. then took up residence again in S.C.'s home, notwithstanding the safety hazards. S.H. claimed she was bitten by bed bugs in S.B.'s home. A Division worker informed her if she remained at S.C.'s home, the Division would seek to remove the children.
On December 22, 2009, the Division received a referral that S.H. had medically neglected T.D.A. He was admitted to the hospital following a doctor's appointment because of a failure to thrive, having gained less than a quarter of a pound since his discharge. At the hospital, T.D.A. was not wearing an apnea monitor, which he was supposed to have on at all times. A hospital staffer reported that S.H. had stated she had difficulty with T.D.A.'s feeding. S.H. had also missed an ophthalmology appointment for the children four days earlier. Upon their discharge, S.H. was warned the twins faced a risk of blindness if they missed pre-scheduled ophthalmology appointments.
The Division then learned from S.B. that S.H. had not stayed at his home for the past two days. S.H. hung up on a Division worker who attempted to speak to her. That evening, workers finally located S.H. at S.C.'s home, where they observed the kitchen stove used for heat, an electric heater on the floor, roaches on the walls, and a kitchen door nailed shut. S.H. denied she neglected T.D.A.'s needs, claiming transportation problems prevented her from attending the ophthalmology appointment; she had complied with feeding directions for T.D.A.; and had removed his monitor only upon his examination at the hospital. Upon being informed of the Division worker's intent to effectuate an emergency removal of K.A.H. and T.T.A., S.H. fled the house with K.A.H., and left T.T.A. behind. The worker took custody of T.T.A. and brought her to the hospital for examination.
S.H. called the Division worker shortly before midnight, and said, "she was from the hood and was born and raised in the city of Camden and the Worker did not know who she was dealing with." Police assisted the Division in the search for S.H. and K.A.H., but their efforts were initially unsuccessful.
On December 23, 2009, the hospital released T.T.A. to the care of a special needs foster family, and the Division executed a hospital hold for T.D.A., who remained hospitalized. On December 24, 2009, Judge Deborah Silverman Katz granted the Division's request for the care, custody, and supervision of the children, and ordered S.H. to return K.A.H. to the Division's custody. The court found S.H. neglected her children, abandoned T.T.A. when she fled with K.A.H., and had unsuitable housing. The court ordered S.H. to ...