NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
J.R., Defendant-Appellant, and A.S. and M.S., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF K.A.R. AND K.S.R., minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-158-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Assistant Deputy Public Defender, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Delia A. DeLisi, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Katherine J. Bierwas, Designated Counsel, on the brief).
Before Judges Alvarez and Waugh.
J.R. (Joan) appeals the Family Part's May 24, 2012 order terminating her parental rights to her eleven-year-old daughter K.A.R. (Amy) and eight-year-old son K.S.R. (Steve). We affirm.
We discern the following factual and procedural background from the record on appeal.
Joan, Amy, and Steve came to the Division's attention on March 4, 2004, when Jersey City Medical Center reported that Joan had given birth to Steve and admitted to using PCP within twenty-four hours of entering the hospital. Steve tested positive for PCP on March 5. Joan told a Division worker she had used PCP two days before giving birth, but stated she had not used PCP for six months before that and did not have a drug addiction or need services. Joan informed the Division that she lived with her mother, Faith, who was looking after Amy while she was in the hospital.
The Division visited Faith's home and found it to be overcrowded, with mattresses on the floor and an open oven heating the apartment. The Division provided homemaker services on March 5. On March 8, Joan told a Division caseworker that Faith used cocaine regularly.
On March 9, the Division substantiated Joan for child neglect based on her use of PCP shortly before Steve's birth, Steve's positive PCP test result, and living with Amy in the home of Faith, a cocaine user. On March 12, the Division filed for and was granted care and custody of the children.
Joan tested positive on six drug screens between March 17 and 30. On April 1, Joan entered a stipulation acknowledging she used PCP while pregnant with Steve.
Joan was authorized to have supervised visitation with the children every other week, starting on March 23. From mid-June to early August, she did not regularly attend visits. However, she attended a number of visits in the fall, and by May 2005 was visiting the children weekly.
The Division referred Joan for outpatient drug treatment at a program run by the Medical and Social Services for the Homeless (MASSH), which she successfully completed on April 28, 2005. It also referred her for parenting classes. Joan completed the Family and Children Early Education Services (FACES) parenting program on March 1.
In anticipation of the children's reunification with Joan, the Division provided her with homemaker services. The services went well in May. The children were reunified with Joan on June 3. During June, July, and August, Joan refused to let the homemaker in or was not there when the homemaker arrived.
Joan tested positive for PCP on or about July 21, but tested negative on July 27, August 3, and August 11. In September, she complied with a substance abuse evaluation arranged by the Division, and tested negative on two follow-up random drug screens.
By October, Joan was living in a two-bedroom apartment with the children. The Division continued to work with the family, providing financial assistance for the children's clothing, a bed for Amy, and a crib for Steve. On November 17, legal custody of the children was transferred to Joan and the care and custody litigation was dismissed.
On January 31, 2006, a caseworker visited the home and reported that there were no child welfare concerns. On February 1, the caseworker learned that Steve had not attended daycare in January. On the same day, Lilly, Joan's aunt, reported to a Division caseworker that the children had been staying with her for approximately a month.
By early March, the children had returned to Joan's home. On March 15, Amy's school notified the Division that Amy had recently missed nineteen days of school and had demonstrated inappropriate and sexualized behavior. Amy subsequently told a Division worker that she was "often" left home alone and that "her mother beats her and her brother . . . with a belt when they do not listen." However, Amy could not remember when this had last occurred, and the worker observed no physical marks on Amy.
On March 16, a teacher called the Division to report that Amy had touched a classmate's private parts and to convey the school's concerns that Amy might have a history of sexual abuse. The Division interviewed Joan, who initially denied Amy had ever been sexually abused. Later in the interview, Joan disclosed that, when Amy was two years old, she had "walked in on [Amy] and another cousin and there were two boys in their room humping them." She said she "got the boys off both girls" and "beat their behinds" before sending them home. The Division concluded that the allegations of abuse were unfounded.
On March 21, the school notified the Division that Amy had broken blood vessels near her right eye and had disclosed that her mother hit her with a belt. A Division caseworker interviewed Amy at school that day. When asked what had happened to her face, Amy responded that something had fallen on her, but she could not identify what it was. Joan told the caseworker she had not seen the marks on Amy's face the night before. However, another caseworker who visited the house unannounced later that day noted that Amy appeared to be afraid of her mother. The Division substantiated allegations of physical abuse by an unknown perpetrator.
On March 22, the Division filed for and was granted custody of Amy and Steve. Steve was taken to the pediatrician for a routine placement physical. When the Division worker took Steve's shoes off, "he screamed extremely loud[ly] in excruciating pain" and "would not allow anyone to touch his feet." Another Division worker "observed a knot on the right side of [Steve's] head" and "a scratch mark on his lower right side."
Steve was taken to the emergency room, where the examining physician observed "what appeared to be belt marks on both sides of his upper inner thighs, " scratch marks on his back, ear, and behind his ear, and "a quarter size knot on the right side of his head." The doctor also stated that Steve could not stand due to "wearing tight sneakers/shoes for an extended period of time."
According to the Division worker, Amy told her that her mother held Steve up by the throat and beat him with a belt. Amy also reported that Joan beat her with a belt on her face and arms, and that she had been beaten by Joan "since she was three years old."
The Division substantiated physical abuse by Joan. It placed Amy with Lilly, and Steve with someone who, at the time, was believed to be his paternal grandmother. After paternity test results ruled out a biological relationship and the placement's negative background was discovered, Steve was also placed with Lilly.
Joan was arrested on March 29, and charged with child abuse, aggravated assault, and endangering the welfare of a child. On October 23, she pled guilty to two counts of endangering the welfare of a child, and was sentenced to a five-year term of probation.
On June 6, Joan underwent a psychological evaluation by Robert Kanen, Psy.D. When Kanen asked why she had been referred for evaluation, Joan responded, "I beat my children but not to the point I abuse them. I hit them with a belt. I don't normally beat them. They bruise easily. I beat them to discipline them." She also told Kanen that she "used to get beatings, " had grown up in an unstable home, and "wanted to break the cycle." Joan began individual counseling sessions at Mt. Carmel Guild in July.
On July 28, Joan stipulated "that as a result of allegations of physical abuse [she] was arrested and unable to care for [the] children which put them at risk." Joan was allowed supervised visitation with the children.
In July, a visitation supervisor reported that when she asked Amy how she felt about seeing her mother, Amy said "she is happy to see her mother and want[s] to live with her." In contrast, Steve was reported as "not show[ing] any affection towards his mother, " and as being "anxious and . . . happy to leave the visits." Lilly informed the Division she was allowing Joan to visit the children at her home, as of October.
In February 2007, the Division discovered that Lilly was on probation for a criminal conviction in North Carolina and removed the children from her home. The children were placed with a non-relative foster parent. Lilly was formally ruled out as a placement in August.
In March, Joan was hospitalized for seven days for "alcohol detox." The discharging physician, who reported Axis I diagnoses of "polysubstance dependency" and "psychosis due to substance use, " referred Joan for further treatment. Joan received inpatient substance abuse treatment from April 27 to May 24. She was referred for follow-up treatment, but was discharged from one program for non-compliance and failed to attend assessment appointments for another program.
In April 2007, the children were referred for weekly counseling based on concerns their foster mother, G.E., had about their behavior. In June, G.E. requested their removal from her home due to behavioral problems. They were moved to another non-relative placement, where they remained until October, when they were returned to G.E.'s home. The children were moved to a different non-relative placement in January 2008, after G.E. told the Division she could no longer care for them.
Dean M. De Crisce, M.D., conducted a psychiatric evaluation of Joan on July 30. He observed that Joan "minimizes her substance abuse and does not appear to recognize her significant need for treatment." He found that she "show[ed] little acknowledgement or insight" regarding the physical abuse and neglect of her children. He noted that she "appear[ed] to represent a continued, significant risk to the welfare of her children, " but recommended that she be allowed "to visit and maintain a relationship with her children under supervision."
In July, the Division received a referral concerning Amy's sexualized behavior. In October, Steve was referred for in-home behavioral therapy based on cursing and fighting with Amy.
The Division continued to arrange visitation with Joan either at the Division office or through the Urban League. The Division also continued to evaluate relatives as potential placements for the children. Maternal grandmother Faith was formally ruled out in November 2007, based on her history with the Division. The Division also ruled out the woman originally thought to be Steve's paternal grandmother, based on her domestic violence history. Lilly was ruled out for the second time. Only Lilly sought an internal review of the decision. In December, her case was returned to the local Division office for further review of her suitability.
In December, the Division sought a change in the permanency plan from termination of parental rights followed by adoption by Lilly to termination followed by select home adoption. It argued that Lilly was disqualified under applicable federal law because of a 1994 criminal conviction. The judge denied the Division's motion. She denied the Division's motion for reconsideration in February and again in JUne, having determined that Lilly's guilty plea to burglary was not a disqualifier. The judge observed that "[t]he only stable placement that these children have ever had was with [Lilly]."
The judge ordered the Division to return Amy and Steve to Lilly's home in August. The children were placed with Lilly in September 2008.
Joan's sporadic supervised visits continued in 2008. Joan attended two visits in January and one in March, but missed a visit in February. On April 9, she arrived for a visit thirty minutes late and left immediately. Amy, who had "started to jump screaming 'Mommy, Mommy!'" when Joan appeared, was left "crying." According to the visitation supervisors, the children, especially Amy, were sad when visits ended and when Joan missed visits.
On April 13, Joan was arrested for burglary. She remained incarcerated until September 30, the day after she pled guilty to fourth-degree criminal trespass. Joan was unable to attend visits after her incarceration in mid-April.
In October, Lilly informed the Division that she wanted to pursue kinship legal guardianship rather than adoption. The judge dismissed the guardianship complaint and reinstated the care and custody litigation on October 29.
In January 2009, Joan started to receive services at Christ Hospital's Project Second Chance. However, she was incarcerated from late January through February due to an alleged fighting incident. She resumed services in March, but only attended sporadically.
In February, the Division confirmed with Lilly that Joan had been visiting with the children at her home, and that Lilly supervised those visits. On March 27, Lilly reported to the Division that Joan had hit Steve during a visit. A Division worker observed Steve had "welt marks on [his] neck and above his ear, as well as a large red mark near his left temple, " "scratches above and below [his] eyes, " a three- to four-inch long bruise on his left side, and "belt marks" on his arms.
Amy told investigators she saw her mother slap Steve and hit him on his arms and legs with a belt. Steve reported that Joan scratched him on his face because he was not doing his homework, and also hit him with the belt on his side. Joan claimed her children bruise easily, but acknowledged that she had "popped" Steve on the legs with an open hand because she heard he had been bothering one of his cousins, and again when he refused to write his name for her. She also acknowledged that she "used a belt" four times on his legs. She also admitted to yelling at Steve, causing him to jump backward and hit his head on a dresser.
The Division subsequently substantiated Joan for physical abuse of Steve. That was Joan's fourth abuse or neglect substantiation. On April 1, Joan was arrested in connection with the incident. In June 2010, she pled guilty to one count of second-degree endangering the welfare of a child, for which she received a four-year prison sentence. Joan remained incarcerated from April 1, 2009, until spring 2011. During Joan's incarceration, the children told the Division caseworker that they missed their mother and were hoping that, one day, they could live with her as a family again. In December 2009, one of Amy's teachers reported that Amy "writes her [mother] letters and we mail them out." In July and September 2009, the children told Division caseworkers they would like to visit Joan in prison. They reiterated this desire in March 2010.
The children continued to live with Lilly. On April 29, 2010, the Division received a referral alleging that Amy had been physically abused in Lilly's home. The Division's investigation confirmed that Lilly hit Amy "on her palm with a belt, " but concluded the action did not meet the statutory standard for abuse.
The Division worker who interviewed the children was told by Steve that Amy had told him and his cousin "to pull down their pants and touch each other's 'pee pee.'" Amy denied doing so, but divulged that Lilly's teenage son had tried to make her touch his private parts about four years earlier, during her first placement in Lilly's home. Amy told the worker that she had disclosed the incidents to Joan, Faith, and Lilly. When asked if her cousin "tried to get on top of her, " Amy said he had. According to Amy, the last incident had taken place five years earlier. Amy also disclosed that she had seen her cousin "humping" someone.
When interviewed on May 3, Lilly denied knowledge of incidents involving sexual contact between Amy and her cousin. However, Lilly acknowledged that she had caught her son having sex in the home. Her son told the investigator that Amy had "walked in on him when he [was] having sex." At Lilly's request, the Division removed the children from her home during the investigation.
A Division worker subsequently interviewed Joan, who admitted that both she and Lilly knew about the incident involving Amy's cousin four years earlier. Joan said she had not told the Division about the incident because she "didn't want anyone to get in trouble."
The children underwent medical and psychosocial evaluations at Audrey Hepburn Children's House (AHCH) in July. Amy told evaluator Patricia Sermabeikian, Ph.D., that she "got beat a lot of times" by Lilly. She also acknowledged being physically abused when she lived with her mother, and that she would "cry" and "be scared." When asked who beat her more, Lilly or her ...