Opinion
DOCKET NO. A-2762-12T3 DOCKET NO. A-2874-12T3 DOCKET NO. A-0437-13T4 DOCKET NO. A-0438-13T4
06-26-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.B. and A.S., Defendants-Appellants, and D.J., Defendant. IN THE MATTER OF A.S., X.B., A.S., JR., and L.S., Minors. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.B. and A.S., SR., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF A.S., JR., L.S., A.S., AND S.S., Minors.
Edward F. McGinty, Designated Counsel, argued the cause for appellant R.B. (Docket No. A-2762-12) (Joseph E. Krakora, Public Defender, attorney; Mr. McGinty, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant A.S., Sr. (Docket No. A-2874-12) (Emily J. Daher, Designated Counsel, on the brief). T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant R.B. (Docket No. A-0437-13) (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, on the briefs). Elizabeth Burke, Designated Counsel, argued the cause for appellant A.S., Sr. (Docket No. A-0438-13) (Joseph E. Krakora, Public Defender, attorney; Ms. Burke, on the brief). Jessica M. Steinglass, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Steinglass, on the briefs). Todd Wilson, Designated Counsel, argued the cause for minor respondents (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the briefs).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FN-09-290-11 (A-2762-12 and A-2874-12) and FG-09-162-12 (A-0437-13 and A-0438-13). Edward F. McGinty, Designated Counsel, argued the cause for appellant R.B. (Docket No. A-2762-12) (Joseph E. Krakora, Public Defender, attorney; Mr. McGinty, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant A.S., Sr. (Docket No. A-2874-12) (Emily J. Daher, Designated Counsel, on the brief). T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant R.B. (Docket No. A-0437-13) (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, on the briefs). Elizabeth Burke, Designated Counsel, argued the cause for appellant A.S., Sr. (Docket No. A-0438-13) (Joseph E. Krakora, Public Defender, attorney; Ms. Burke, on the brief). Jessica M. Steinglass, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Steinglass, on the briefs). Todd Wilson, Designated Counsel, argued the cause for minor respondents (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the briefs). PER CURIAM
Defendants A.S., Sr. (Thomas) and R.B. (Mary) are the biological parents of four children: A.S., Jr. (Tim), born January 2010; L.S. (Ann), born December 2010; A.S. (Jane), born December 2011; and S.S. (Cassandra), born December 2012. Jane was born after the New Jersey Division of Child Protection and Permanency (Division) filed a Title 9 abuse and neglect complaint against Thomas and Mary. See N.J.S.A. 9:6-1 to -8.106. Cassandra was born after the Division filed Title 30 guardianship proceedings. See N.J.S.A. 30:4C-1 to -92. Additionally, Mary has a fifth child, X.B. (Robert), born October 2000, whose biological father is D.J. (James).
We refer to the parties and their family by pseudonyms to protect their privacy and for ease of reference.
Custody of Robert was transferred to James. Mary does not appeal that decision.
After a June 19, 2012 fact-finding hearing, Thomas and Mary were found to have abused and neglected Robert, Tim, Ann, and Jane. On August 27, 2013, the court terminated Thomas and Mary's parental rights to these four children and infant Cassandra. At the time of the termination of their parental rights, Thomas was twenty-five years old and Mary was thirty-one. We have consolidated their separate appeals of these orders. After reviewing the evidence presented to the trial courts, we affirm the finding of abuse and neglect as well as the termination of Thomas and Mary's parental rights.
I
We summarize the relevant, tragic circumstances gleaned from this extensive record. In 2004 and 2006, the Division received unsubstantiated referrals regarding Mary, alleging the physical abuse of Robert. The 2004 unsubstantiated referral also included the claim that Robert was absent fifteen times during the school year and sent to school unkempt.
On Sunday night, January 9, 2011, the Hoboken Police Department contacted the Division to report that they had assisted in the ambulance transport of an unconscious one-month-old baby suspected of having suffered a traumatic brain injury. Ann was taken from the initial hospitalization at Hoboken University Medical Center (HUMC) to the St. Joseph's Hospital Pediatric Intensive Care Unit (PICU). A Passaic County Special Response Unit (SPRU) worker was advised at the PICU that Ann had internal bleeding in the front and back of her head, and that the trauma had caused a ten-to-fifteen-minute cardiac arrest, resulting in irreversible brain injury. The treating physician could not specify whether Ann had been shaken, hit, or thrown against a wall as her head was not visibly bruised.
On March 24, 2011, after three months of continuous hospitalization, Ann was discharged to a nursing facility. Her diagnosis was post-traumatic brain injury secondary to non-accidental trauma, seizure disorder, post-tracheostomy and gastronomy, and severe psychomotor retardation. Ann is so neurologically impaired that she will never be able to function independently.
A. The Fact-Finding Hearings
Hoboken Police Officer Wilfredo Gomez, one of the officers who responded to the initial 9-1-1 call, testified that Mary told him that night that Ann had not been herself for two days. The baby had been crying and refusing the bottle all day. At approximately 8:30 p.m., she gave Thomas the baby to hold while she cooked dinner. When he brought the baby back after several minutes, Mary noticed Ann was unconscious and called 9-1-1. Mary said she had no idea what had happened.
Thomas told Gomez that he had tried to feed Ann and put her to sleep that evening but she had continued to cry. After several minutes, she began to cough and gasp for air, prompting him to return the baby to Mary.
Because Mary had to stay behind with the couple's other children, only Thomas accompanied Ann to HUMC. While there, Thomas told Ann's treating physicians that he had shaken the baby to try to get her to sleep. According to Gomez, who witnessed the conversation, however, the rocking Thomas demonstrated to the staff was not violent.
When Mary arrived at the hospital, she told a detective from the Hudson County Prosecutor's Office that while visiting a friend, Eve, on Thursday evening, Eve's five-year-old daughter had tried to pick Ann up by the arms but she stopped her. Mary also said she texted Thomas that Thursday night to ask that he come help her with the children because Tim was falling ill and Ann was crying incessantly.
Thomas arrived on Friday night, as did Mary's fourteen-year-old sister K.M. (Lena). Mary and Lena left Thomas home with Robert, Tim, and Ann while they picked up some take-out food. On Saturday morning, Ann awoke crying and "not her normal self." Mary roused Lena because she was debating taking the baby to the hospital, but decided to wait to see if her condition worsened. Because the baby did not have a fever and was not vomiting, Mary decided to go food shopping instead. She left Ann with Thomas. When Mary returned, Ann was "crying" and had a dry diaper, which Mary found "kind of odd." Ann continued to cry the rest of the day Saturday. That night, Ann drank an ounce of formula and spat up clear liquid.
On Sunday, Ann awoke around 5:00 a.m., 11:00 a.m., and 2:00 p.m. On each occasion, she cried, drank less formula than usual, then went back to sleep. According to Mary, Ann was not as fussy after 2:00 p.m., but was drinking less than her usual three or four ounces of formula.
At approximately 8:00 p.m. on Sunday night, Mary fed Ann and gave her to Thomas to hold while she cooked dinner. Mary denied shaking Ann and did not believe anyone else had done so. While he held the baby, Thomas said she "just kept gagging" or "gasping for air" as if she had to throw up. When Thomas returned Ann to Mary a few minutes later, the baby looked pale and felt "like a doll" or "dead weight." He told Mary to call 9-1-1, and began to administer cardiopulmonary resuscitation (CPR) until the dispatch operator told him to stop and place the baby on a flat surface with her head to the side.
When Robert was interviewed at his maternal grandmother's (MGM's) home that Monday morning, he was crying. He was worried about Ann, and said he had been away for four days, spending three nights with his father and Saturday night with his MGM. When he returned home on Sunday at approximately 7:00 p.m., he saw Tim rocking Ann in her swing, and heard his mother and step-dad tell Tim to stop. Robert thought Ann looked "woozy," and that she "probably wanted to throw up." He did not remember hearing her cry. Although Robert denied knowing what happened to Ann, he said that Thomas needed help when he watched the children.
Thomas told Gomez that he lived in Newport News, Virginia, and only came to New Jersey to visit his children. He had been staying with Mary since Thanksgiving. He said Ann had been sick and cranky for three or four days with a cold and runny nose. She cried constantly, and in the last day or two, she cried "a lot more" than normal, even in her sleep.
Thomas said Ann slept "on and off" for very "short period[s] of time" and woke up crying. Although he and Mary were alarmed by the baby's condition, Thomas could not explain the reason that neither took her to obtain medical care. Thomas told the SPRU worker that Ann was "breathing good" when Mary handed him the baby on Sunday night. After drinking an ounce of formula, she immediately began to vomit. Ann then gasped for air and stopped breathing. He blew air into the baby's mouth in an attempt to perform CPR. Thomas denied shaking Ann or seeing the baby fall or strike her head. He also told the SPRU worker that he and Mary had an "on and off" relationship since 2002 or 2003, and that they argued but always reunited.
After being advised that Ann's injury was non-accidental, a possible shaken baby case, the Division conducted an emergency Dodd removal of Robert, Tim, and Ann. Robert and Tim were placed in foster care.
N.J.S.A. 9:6-8.28(a)(2) authorizes the Division to remove children "to avoid imminent danger to the child's life, safety[,] or health."
Ruth Ylizarbe, the Division intake worker initially assigned to the case, testified as to the Division's investigation efforts. Ylizarbe observed the Prosecutor's Office's January 10, 2011 recorded interview of Thomas. During the interview, Thomas reiterated that he returned to New Jersey at Thanksgiving and stayed with Mary until after Christmas, when she called police to remove him from the home. He received a text from her on Thursday night asking for his help with the children. When he arrived at the home on Friday evening, Ann was "not herself," was cranky, crying constantly, and refusing her bottle.
Thomas and Mary discussed taking Ann to the doctor, but decided against it. He said "we both figured like they don't - they can't give infants medicine." They also believed the hospital would send them home as had occurred on prior occasions when they had taken Robert and Tim. He later added that they thought Ann was just "a little sick" and that they could "fix it." Thomas did not recall Mary leaving the home on Friday night.
Thomas said Ann continued to be cranky and crying through Saturday. He fed the baby after Mary and Lena went food shopping and said Ann vomited "big portions . . . through her nose, [and] through her mouth." She threw up again after Mary returned home. Thomas said he knew "something was bothering" Ann because "she really was, like, throwing up. Every bottle that we gave her." He thought the vomiting was scary, but still did not take her to the doctor. Ann was placed in her swing and cried herself to sleep.
Robert's cousins came over on Saturday for four or five hours, they left with Lena, and later Robert joined them at his MGM's house. Thomas and Mary stayed home on Saturday night, and Ann continued to cry.
Thomas said Ann did not cry on Sunday afternoon, but only drank an ounce of formula, which she later vomited. He and Mary were home all day and had no visitors.
Thomas repeated his prior version of the Sunday night events, acknowledging that he patted the baby on her back when she started to gasp. When attempting to administer CPR, he blew into the baby's mouth about ten times, and each time she spit out liquid the color of milk through her nose and mouth. Thomas picked her up, wrapped her in a blanket, and heard her take one long gasp before meeting the emergency medical technicians in the hallway. He acknowledged prior domestic violence incidents with Mary, involving screaming, yelling, pushing and shoving, but denied shaking Ann, other than "rocking her to bed."
Ylizarbe also observed Mary's initial interview with the Prosecutor's Office on January 10. During the interview, Mary reported that she was Ann's primary caretaker, but that she left Ann with her mother and sister on Monday, January 3. Mary said Ann was fine on Thursday night when she took all three of her children to her friend Eve's home. Eve's daughter tried to pull Ann by her arms during the visit, but Mary told her to stop.
Mary then claimed that Ann only became ill on Saturday morning when she "was not acting her usual self." She was "screaming and screaming," and refusing to take formula. Ann was also vomiting and her stool was dark brown instead of its usual green. Ann eventually drank some formula and went back to sleep.
Mary said she did not take Ann to the hospital because the baby did not have a high fever. She said she would have taken Ann to a pediatrician if she had insurance, explaining that she would rather see a doctor than sit for hours in an emergency room just to find out that she could not be helped.
Mary left Thomas alone with Ann for approximately ninety minutes on Saturday when she went food shopping with Lena, and the baby was quiet when she returned. On Sunday, the baby was "back to her usual self," but "only eating one ounce" of formula. The baby had dry diapers. Mary insisted Ann had no trouble breathing on Sunday until Thomas held her that evening. She had no idea what happened, but denied shaking the baby.
On January 12, 2011, Thomas took a polygraph test, during which he denied any knowledge of Ann's injuries. During the polygraph interview, Thomas admitted that he did not spend a lot of time with the baby because of his experiences with Tim. A doctor and Mary had told him that he patted Tim's back "a little too hard," that he changed his diaper "a little too rough," and that he held him "too tight." When he first rocked Ann, the doctor also said he was "a little too rough" with her.
During the polygraph interview, Thomas again acknowledged that he and Mary discussed taking Ann to the doctor on Saturday and Sunday, but decided that there was nothing anyone could do for her because "[y]ou can't give the baby medicine." Thomas did not believe that Mary hurt the baby, but said "[s]he gets mad quick."
Because he reported suicidal thoughts, Thomas was taken from the interview to a hospital for screening. He was diagnosed with depression and suicidal ideations due to stress and was released the following day with a referral for outpatient treatment. The polygrapher determined that the readings were insufficient to draw any conclusion from the interview.
On January 14, 2011, Mary was administered a polygraph test. In the examiner's opinion, she was deceptive when she denied shaking Ann or having knowledge of who did. Mary was initially angered about the test result, but later asked to speak to the detective who had brought her to the Prosecutor's Office.
Mary told the detective that although she had a bad temper, "she would never take it out on her children." She recalled an occasion after Christmas, however, when Lena was visiting overnight and Ann began to cry immediately after she had gotten Tim to fall asleep. Mary picked the baby up from her car seat on the floor and changed her diaper, but the baby continued to cry. Mary said she was tired, frustrated, and "really mad," and yelled at Ann, saying "oh my f-ing God, [Tim] just went to bed." She recalled roughly dropping Ann into the car seat and that the baby hit her head as she fell. Mary described the force she used as if she was "putting down a two-year-old or something." Lena came out of the bedroom and took the baby from her. Mary thought the incident might have occurred on Wednesday, January 5, 2011.
Mary was placed under arrest and charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2); and fourth-degree child abuse, N.J.S.A. 9:6-1 and 6-3. The record does not indicate the final outcome of Mary's criminal case.
Mary told the detective that she remembered the incident because it "always was in my head." She explained: "I knew as soon as it happened, I knew it." She added: "I can't believe I did that to her. I do feel like an animal." Mary said she had not previously disclosed the incident because she had been told that Ann was shaken while being held up in the air. She added that she thought the incident could have happened during "one of those moments when I had [a] blackout."
Mary also admitted being frustrated with Thomas because she knew it would be difficult for her to care for the children alone. She paid for him to return to New Jersey from his mother's home in Virginia and was hurt when Eve reported seeing him with another woman. She wanted to kill Thomas but decided her children were more important. Mary described their relationship as violent and abusive, and recalled an incident where she bit him in self-defense while he tried to choke her.
Contrary to Thomas and Lena's statements that Ann was ill on Friday night, Mary insisted that the child was fine. She asked rhetorically why they had not taken the baby to the hospital if they thought she was ill.
Mary reiterated that she first noticed something was wrong with Ann on Saturday morning, and considered taking her to the hospital at approximately 11:00 a.m. when she awoke crying and refused her bottle. She asked Lena to go with her, but decided to wait once the baby began to feed, "even though it was [only] an ounce." Mary insisted she went food shopping with Lena that day and called her sister a liar for stating otherwise.
Mary said Ann threw up on Saturday afternoon while she and Lena were at the market and that it was not a "little" amount. She said Ann threw up again when she got home, explaining that it sounded "like -- blahhhh -- like it came out." When Mary asked Thomas about the vomiting, he said "I told you." Mary could not explain the reason she did not take Ann to the hospital then. She later said that she did not believe anything was seriously wrong with the baby, even though Ann had never "done that before" and Mary knew "it wasn't good."
Mary also did not like "sitting at [the hospital] because they really, really want something to be wrong with your child." She added: "[T]hat's why I wish I would have had [Ann's] insurance. I would have went as a walk-in in the doctor's, but that's why."
Madesa Espana, M.D., the chief of St. Joseph's Child Protection and Safety Center, testified on behalf of the Division. Espana examined the child on January 11, 2011, when she was intubated and hooked to a ventilator, eyes open but unresponsive to tactile stimuli. Espana testified that the CT scan of Ann's head showed intracranial bleeding.
Ann remained intubated and required ventilator respiratory support while at St. Joseph's. She had intermittent eye openings and fixed pupils, but did not exhibit tracking movements with her eyes. She could not purposefully move her extremities and later developed seizure activity. Although Espana did not notice any obvious bruises on the baby's head or face, or swelling or deformity of her extremities, it was clear the baby had intracranial and retinal hemorrhages that resulted in "severe neurological impairment." Espana believed these injuries were consistent with "intentional trauma, specifically Shaken Impact Syndrome."
In Espana's opinion, Mary's explanation of how the child might have been injured was not consistent with the child's injuries. Espana's testimony mirrored her February 2011 report, which was admitted into evidence at both proceedings. At the fact-finding hearing, consistent with her report, Espana stated that on Sunday night Ann suffered cardiopulmonary arrest and stopped breathing for ten to fifteen minutes. She also suffered subdural bleeding, which is bleeding between the brain and the skull, along with bilateral retinal hemorrhages, which is bleeding in the back of the eyes.
Espana noted that the CT scan showed both acute and subacute subdural bleeding, meaning that multiple injuries, both recent and older, led to Ann's presentation at the hospital. Espana opined that the subdural and retinal hemorrhages were caused by Ann being forcefully shaken and then placed against a flat surface.
Shaken babies often have no signs of external injuries such as bruising or fractures, and symptoms range from irritability, vomiting, and disturbed sleep to breathing abnormalities, seizures, and the risk of a coma within minutes. Although Espana declined to give an opinion to a reasonable degree of medical certainty as to the date of the shaking, she believed the acute bleeding most likely occurred on January 8 or 9, and no earlier than January 5.
In Espana's opinion, Ann's seizures and significant neurological impairment, including vision and hearing damage, were permanent and caused by a combination of brain injuries and lack of oxygen during the cardiopulmonary arrest. Significantly, Espana believed the delay in seeking medical attention contributed to the severity of Ann's symptoms. She testified that the initial brain injury progressed slowly, increasing intracranial pressure. Immediate medical attention, therefore, would have prevented Ann from going into cardiopulmonary arrest.
Mary's expert testified to the contrary. Steven Kairys, M.D., a pediatrician with special interest in child abuse and neglect, testified that in his opinion Ann suffered an abusive head injury two or three days before her hospitalization. He premised his opinion on Mary's later account that Ann had been acting normally until Saturday morning and then became fussy and irritable, and was crying and not eating. Kairys therefore opined that the trauma occurred when Mary went food shopping on Saturday and left Ann at home with Thomas. He modified his statement upon being informed that Ann was exhibiting symptoms on Friday night.
In Kairys's view, the more significant injury, a major "neurological catastrophe," occurred when Ann aspirated formula and had cardiac or respiratory arrest for "as much as [fifteen] minutes" without oxygen to the brain. In light of the aspiration and lack of oxygen, he was unable to allocate the extent of damage resulting from the initial physical trauma.
Kairys did testify, however, that the person who inflicted the abusive head trauma would have known it occurred, as it required active violence and a significant amount of force. While acknowledging that Ann's outcome would have been significantly different had she received earlier medical attention, he also opined that the failure to take Ann to the hospital was not medical neglect because there have been many cases of "missed abusive head trauma" in which babies had non-specific signs and were sent home by the hospital. Kairys disagreed with Espana, however, regarding acute and subacute bleeding.
B. The Fact-Finding Decision
On March 15, 2012, the judge in the abuse and neglect case rendered her findings from the bench. After reviewing the events surrounding Ann's hospitalization, the medical reports, the testimony, and the Prosecutor's Office's interviews of the parents, the judge concluded that the Division had proved by a preponderance of the evidence that Thomas and Mary had abused and neglected Ann.
With regard to the cause of Ann's injuries, the judge relied on Espana's testimony and report indicating that the delay in medical attention significantly contributed to Ann's condition. She found Espana's testimony persuasive that prompt treatment would have prevented the cardiopulmonary arrest and lack of oxygen that led to Ann's brain damage and seizures, and that the initial injury could have been treated by hospitalization without particularly serious results. The judge also relied upon Kairys's opinion that most of the injuries were the result of lack of oxygen that occurred when the baby aspirated formula while she was in distress. She cited Kairys's testimony that acute physical trauma occurred several days prior to Ann's hospitalization and that the extent of damage to a shaken child is apparent from the symptoms.
The judge found by a preponderance of the evidence that defendants had abused and neglected Ann. She determined that the initial injury occurred when Mary forcibly placed the baby in a car seat, and the second injury occurred when the parents failed to seek timely medical care. Both parents saw the child crying repeatedly, even in her sleep, refusing to take formula, and forcefully vomiting. Mary even noticed the child had an unusual stool, yet neither parent did anything to help her. Had Ann received proper medical attention after the initial injury, she might have survived it and led a normal life.
With regard to Thomas, the judge observed that he tried to feed Ann regardless of the fact that she was fussing, vomiting, and gasping for air. Thomas inflicted more damage on Ann by waiting until the baby was unconscious to call for help and attempting to resuscitate her. She added that this was one of the "saddest cases" she had ever seen and said:
We know that parents are unfortunately not given lessons on how to take care of children. And it's pretty obvious to me in this case that neither parent had any idea about how to care for a one month old child. But in not doing that, and allowing this child to be inflicted with physical injury or improper handling, they have caused a human being to be without the ability to take care of herself and to be brain damaged for the rest of her life.After rendering her decision from the bench, the judge allowed the parties an opportunity to submit briefs on the issue of the other children.
I am sure that they must think about this everyday of their life, I am sure of that. But the [c]ourt has no option. Certainly it is well beyond the preponderance of the evidence since they were the two that were in charge of this child during the entire proceeding. More so [Mary], than [Thomas], but he too had the same obligation as she did to get medical help and to not do any further damage to this child.
Upon receiving the briefs, the judge first addressed Mary's argument that she was not on notice that the Division was seeking a finding of abuse or neglect as to all of her children. The judge concluded that Mary received notice by virtue of the pleadings. Mary was served with the original complaint seeking care and supervision of only Robert and Tim. The Division filed an amended complaint on December 28, 2011, which added Jane, who had been born a few days before the filing.
The judge then found by a preponderance of the evidence that Thomas and Mary had abused or neglected Robert, Tim, and Jane in addition to Ann. In her view, the infliction of these serious injuries and lack of judgment in addressing Ann's medical needs warranted a similar finding of abuse or neglect as to the other children. According to the judge, the other children, especially Jane who was merely a helpless baby, were put at risk by their parents' conduct.
The judge observed that the parents' relationship, which had suffered from domestic violence, had not been repaired. The parents' poor judgment could and would repeat itself with respect to the other children.
On June 8, 2012, the Division filed a complaint for guardianship. At the permanency hearing conducted on August 22, 2012, the abuse and neglect judge approved the Division's plan for termination of parental rights followed by adoption and dismissed the FN litigation. The judge then recused herself from the parental termination case, stating: "I have too much already in my head with regard to this case and it would not be fair." She added: "I've had really much too much involvement in this case to be fair and impartial. I mean I know when I can, and I know when I can't."
C. The Division's Placement Efforts
The Division explored alternatives to termination with defendants' relatives, including the PGM and Mary's sisters. The Division's caseworker requested that the State of Virginia investigate the PGM's home under the Interstate Compact on the Placement of Children (ICPC), N.J.S.A. 9:23-5. Had Virginia been notified that the placement was in a relative's home, no actual investigation or home study would have been required.
The investigation revealed that the PGM had a prior criminal history, prompting Virginia to reject the PGM as a possible placement for the children. Mary's sisters also declined to act as a placement, even though they initially expressed some interest in offering a home to the children for a short period of time.
D. The Guardianship Trial
Robert testified during the guardianship trial that Thomas came home on Friday night and that Lena arrived later. Mary and Lena went out for food while Thomas stayed home with the children. While his mother and aunt were gone, Robert claimed he heard Ann cry and asked Thomas what happened and that Thomas said he was just feeding her. Robert confirmed that Thomas watched Ann on Saturday when Mary and Lena went food shopping. He recanted his earlier statement that Ann had not been eating well since Wednesday, claiming instead that it had only been since Saturday.
Robert denied seeing his mother hit any of her children, but said he saw Thomas hit his mother. On cross-examination, Robert said he saw Thomas strike Mary "a lot of times," but could not give any dates. He recalled seeing Thomas choke his mother and was afraid of him.
At seventeen, Thomas was convicted of aggravated assault and served one year of a two-year sentence. While incarcerated, he attempted suicide and was transferred to a psychiatric hospital. He threatened suicide again after Ann's injury. In 2006, 2007, and 2010, Thomas was arrested on multiple occasions as a result of domestic violence involving Mary. All charges were either dismissed or downgraded.
Except for an unspecified period during the termination proceeding, Thomas has been unemployed. He did not graduate high school and has either been homeless or lived with relatives throughout his entire adult life. Although offered an array of services after the Division became involved with the family, including psychological treatment, substance abuse, anger management, batterer's programs, and parenting classes, he only completed one six-session parenting program, some batterer's classes, a substance abuse evaluation, and bonding evaluations. Thomas acknowledged using alcohol and abusing marijuana since age thirteen, and in July 2011, tested positive for marijuana.
At trial, Frank Dyer, Ph.D., the Division's expert in psychology, testified that Thomas lacked any parenting skills. His report, which was consistent with his testimony, diagnosed Thomas with depressive disorder, cannabis abuse, and personality disorder with anti-social and paranoid features. When interviewed, Thomas failed to acknowledge any problems, and historically, had failed to meaningfully engage in treatment. Thomas told Dyer that he intended to rely upon his mother (PGM) to care for the children. As Dyer put it, Thomas did not display any behaviors that would inspire confidence in his ability to care for a child.
Alice Nadelman, Ph.D., the Law Guardian's expert in psychology, also testified consistently with her written report, which was admitted into evidence. Nadelman concluded that Thomas lacked any capacity to provide minimally adequate, safe, and appropriate care for his children. At the time of her interview, he had made no progress in any area of his life, and, if granted custody of the children, planned to have them live with the PGM in Virginia. Thomas wanted Ann placed in a facility in Virginia and hoped to be able to relocate there to be with the children if he "could get himself together." He had never lived on his own and had no timetable for when he could personally care for the children.
Nadelman's test results indicated Thomas displayed signs of dependency and inadequate functioning along with "heightened suspiciousness, vigilance, and mistrust of others." In Nadelman's view, Thomas could not, at that time or in the foreseeable future, parent the children. She further opined that the children would be at risk of harm if returned to his care because of his lack of parental competence. During the course of Nadelman's bonding evaluations with Tim and Jane, Thomas did not even minimally supervise the children.
On December 10, 2012, while the guardianship proceedings were pending, Mary contacted the Division claiming that Thomas took Cassandra, then five days old, and refused to return her. He allegedly told Mary that he and his sister were taking the baby to Virginia and that Mary would never see her again. The Division reached out to Thomas, who agreed to meet workers at a train station. When the Division workers arrived, however, he was not there and did not answer his cell phone.
The Division was thereafter contacted by Thomas's aunt, whom we shall refer to as Kate. Kate informed the Division that Thomas had dropped Cassandra off at her home with a couple of diapers and that she had a "big diaper rash." Kate claimed he said he needed someone to watch the baby while he visited with his other children, but then failed to return. A Dodd removal followed, and Cassandra was placed in the same resource home as Jane.
Commencing with the filing of the abuse and neglect complaint in January 2011, Mary was referred to a host of services, including anger management, individual counseling, domestic violence counseling, a partial hospitalization program, and parenting classes. She was relatively compliant by the time the guardianship complaint was filed, on anti-depressant medication, and enrolled in individual counseling. Mary continued to be homeless and unemployed.
On October 23, 2012, Samiris Sostre, M.D., conducted Mary's psychiatric evaluation. Sostre diagnosed Mary with "major depressive disorder, severe without psychotic features." Sostre opined that Mary required regular psychiatric treatment, medication, and needed to participate either in an intensive outpatient or partial hospitalization program.
When Mary contacted the Division for help with Thomas's alleged refusal to return Cassandra, she also reported that she had not learned that she was pregnant until approximately one month prior to Cassandra's birth. She admitted that she had purposely not notified the Division of her pregnancy because she wanted to keep the baby for a few days.
On December 12, 2012, Mary told Ylizarbe that Thomas had threatened to "beat her up" if she told the Division about her pregnancy with Cassandra. The couple's last physical altercation, according to Mary, took place in March 2012. Despite her earlier call, she explained Cassandra's presence at Kate's house as merely the result of Kate watching the baby while she and Thomas visited their other children. She claimed Kate refused to return the baby and accused her of calling the PGM to discuss how they could keep her. Cassandra was added to the guardianship complaint the following day.
Dyer also evaluated Mary, finding her thought processes to be "somewhat convoluted and confused," and that she was accustomed to subordinating her needs to those of a partner. She was unable to care for her children because of her "tendency towards depression, her problems with anxiety," and her dysfunctional and abusive relationship with Thomas. Dyer also relied upon Mary's involvement with Ann's injuries in reaching his conclusion that she could not care for any of her children. Although she wanted to care for Ann, she had no realistic appreciation of the child's need for "extremely specialized care." Additionally, Mary had no concrete plans for the children, remained vague about housing, and did not have any job prospects. Dyer did not consider it likely that she would benefit from services.
Nadelman also testified that Mary, like Thomas, lacked the capacity to even minimally care for the children. Mary reported she was attending a partial hospitalization program three days a week and a support group for survivors of domestic violence one night a week. When Nadelman evaluated Mary in March and April 2013, Mary had been prescribed Lexapro and claimed to have recently began taking Zoloft for depression. She admitted being in a worse position than she had been two years prior as she now lacked stable housing. She was not employed and had no other source of income besides public assistance.
Nadelman testified that Mary genuinely loved her children, but had only a minimal understanding of their psychological needs and a limited capacity to implement strategies to meet those needs. Nadelman's testing results found no depressive symptoms or anxiety, post-traumatic stress disorder, or other emotional problems.
On the other hand, Nadelman was concerned about Mary's emphasis on absolute obedience by children and the need for strict discipline. Mary had little understanding of a toddler's need for nurturance, supervision, and protection. Despite the services extended to her, and the services in which she became engaged, Mary continued to be unemployed, lacked stable housing, and had given birth to two more babies with Thomas since Ann's traumatic brain injury. Nadelman concluded that Mary lacked the resources to parent the children at present or in the foreseeable future. The children would be at risk of harm if returned to Mary's care because, like Thomas, she lacked basic parental competence.
Mark Seglin, Ph.D., testified as Mary's expert in psychology and forensic psychology. He administered a number of personality tests in addition to interviewing her in May 2012. Seglin described Mary as socially isolated since childhood, having reported no close familial or social relationships. She suffered from major depression, post-traumatic stress disorder, and battered woman's syndrome. Because of Mary's passive nature and lack of tendency towards violence, he considered it unlikely that she had caused Ann's injuries. Seglin attributed Mary's failure to seek timely medical treatment for Ann to her involvement in an abusive relationship.
Seglin believed that Mary had significantly progressed since the Division's initial contact with the family, accepting her depression and the need to take medication to control it, and developing clearer goals. He reported that Mary was residing with her sister and testified that she was rebuilding her relationship with her family.
Dyer's bonding evaluation found that Tim was profoundly attached to his foster mother. Even though he had a positive emotional connection to his birth parents, Dyer concluded that Tim would suffer a traumatic loss if removed from the resource parent's care. Tim viewed Thomas and Mary as "somewhat peripheral in his inner emotional world," whereas his foster mother occupied the "position of centrality." Dyer opined that defendants lacked the ability to eliminate the harm to Tim that would result from his separation from his foster mother. He believed, however, that the foster mother could mitigate any loss that the child might suffer if defendants' parental rights were terminated.
Nadelman believed that the bonding evaluations unquestionably revealed an ambivalent mother-child attachment between the children and Mary, particularly with regard to Tim. Although Mary provided appropriate supervision and followed careful safety practices, Tim was provocative and challenging while in her company. Jane, like Tim, did not show spontaneous affection towards Mary, instead treating her like a family friend or relative.
Nadelman assessed Tim and Jane as more ambivalent towards their father than their mother, but found many indications of a secure attachment between the children and their respective foster mothers. The children looked to them for assistance, attention, and affection, responded cooperatively to their directions, and displayed spontaneous affection.
Tim, who had lived more than half of his life with his foster mother, was making good developmental progress. Jane was very affectionate towards her foster mother and was advanced in her development. Four-month-old Cassandra was too young to be assessed at the time of the bonding evaluation, but was making excellent developmental progress, and was responsive and thriving.
Nadelman opined that Tim's foster mother could mitigate any harm from termination of parental rights with therapeutic services. In contrast, she did not believe that Mary could consistently meet Tim's needs, or recognize or help him with his grief if he was returned to her care. In Nadelman's opinion, the children would not suffer serious and enduring psychological harm from the termination of parental rights.
Seglin also conducted parental bonding evaluations in February and March 2013. He concluded that Mary was attentive, affectionate, and interactive with the children. He opined that reunification was appropriate, provided that Mary had stable income and housing and continued to receive services. He recommended that Mary: continue to engage in counseling, obtain a parenting coach, participate in a self-help group for abused women, retain some housekeeping services, obtain a vocational assessment and vocational training, and obtain training in coping with a seriously disabled child. Seglin was "guardedly optimistic about a positive outcome." Although he acknowledged that Tim would suffer psychological harm if removed from his foster parent, he believed Mary possessed the requisite parental resources to limit the negative impact from reunification. He did not recommend placement with Mary in the immediate future but thought that, with support, the children could eventually be returned to her care.
At the guardianship trial, Seglin testified that he did not see Mary as a "clear and present danger to her children." This testimony, however, does not contradict Seglin's initial conclusion that:
Unless compelling evidence is adduced corroborating [Mary's] involvement in [Ann's] injury, unification should be established as the policy for [the Division]. Rather than subjecting her to further, apparently unproductive classroom experience, [Mary] needs more personalized and individualized parental coaching that can accompany the process of reunificiation.
E. The Guardianship Decision
The judge who presided over the guardianship trial relied on much of the same proofs presented during the abuse and neglect hearing, either by way of documents marked into evidence or testimony. Espana's report appears to have been stipulated into evidence although the expert did not testify at the trial.
At the time of the judge's decision, Tim was three years old, Ann two years old, Jane one year old, and Cassandra eight months old. The judge's fifty-page written decision found that the State established by clear and convincing evidence each prong of the best interests of the child test found in N.J.S.A. 30:4C-15.1.
The judge opined that the parental relationship harmed Ann's health and development because her injuries were not the result of an accident or illness. The parents harmed the other children as well because of years spent in foster care. She further found that neither defendant could "provide a safe and stable environment for [any of the] children." The judge also found that defendants were unable to address their parenting deficits and eliminate the harm in the near or foreseeable future. Despite the reasonable efforts on the part of the Division to provide services, including supervised visitation, and to consider alternatives to parental termination, including relative placements, defendants' status remained essentially unchanged from the time Ann suffered her injuries to the date of trial. Finally, the judge concluded that termination of parental rights would not do more harm than good.
The judge relied upon the opinions of the Division experts and the Law Guardian's expert regarding defendants' inability to address their fundamental parenting deficits. She also relied upon the presence of the positive bonds between the children and their prospective adoptive parents. Furthermore, she noted that during the pendency of the proceedings, defendants failed to stabilize their circumstances so that they could offer the children a safe and secure home.
II
We first address defendants' appeal of the termination of their parental rights, as many of the conclusions we reach also address their appeal of the abuse and neglect matter. The Law Guardian concurs with the decision of the trial court in both the abuse and neglect litigation and the guardianship proceeding. Defendants challenge the sufficiency of the proof on each of the four statutory prongs of the best interests of the child test. See N.J.S.A. 30:4C-15.1(a). They counter that the abuse and neglect finding was error, as well.
A.
An appellate court's review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We determine whether the trial court's decision is supported by substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We review deferentially the fact-findings of the Family Part because of its superior ability to evaluate the credibility of witnesses and its special expertise in such matters. Ibid. The findings are not overturned unless they were "so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J. at 605. Once an appellate court determines that the trial court's findings do not sufficiently rise to this level of error, "its task is complete and it should not disturb the result, even [if] it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964).
Parents have a constitutionally protected right to raise their children. F.M., supra, 211 N.J. at 447. This right is tempered by the State's responsibility, as parens patriae, to protect children from serious physical or psychological harm. Ibid. When balancing parental rights against the State's obligation, however, all doubts must be resolved against parental termination. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102-03 (2008). A court should terminate parental rights with caution and care, and only in circumstances where proof of parental fitness is unclear. F.M., supra, 211 N.J. at 447.
To prove that termination is in the best interests of the child, the Division must demonstrate, by clear and convincing evidence, that each of the following four factors are satisfied:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
These prongs are not discrete and separate, but overlap, providing a comprehensive standard that identifies a child's best interests. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007); In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The application of the standard is extremely fact sensitive and requires particularized evidence to address the specific circumstances in each case. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 554 (2014).
The four prongs ensure that a court does not equate the "best interests" with a child's "better interests." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 603 (1986). Strong policy considerations, however, underscore the need to secure stability and permanency for the child without undue delay. In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999).
B.
Defendants premise their attack on the guardianship judge's conclusions as to the first prong because Ann had other caretakers during the two or three days before her hospitalization, thus contending that the judge had no basis for placing the responsibility for her devastating injuries on them. They also argue that because Mary's expert testified that since Ann did not require emergency treatment until Sunday night, there was no basis to find that their other children would be in imminent danger of harm. Mary also claims that the judge improperly relied upon the burden-shifting rule found in N.J.S.A. 9:6-8.46(a)(2), and upon her inculpatory statement to the authorities, which she asserts was the product of "deceptive and coercive custodial interrogation."
We do not agree that the trial judge employed the burden-shifting rule and address that point first. The trial court found that Ann's serious injuries were the product of both defendants' acts and omissions, and that it was not the Division's responsibility to prove which parent was responsible for which act. The court found, and we agree, that both parents had a responsibility for Ann's care commencing on the Friday night before the Sunday evening when she went into cardiac arrest. During that time, it was abundantly clear that this month-old infant was in a physical state which required urgent medical attention.
Incessant crying; the inability to take nourishment; persistent, violent vomiting; vomiting of fluids other than formula through the nose and mouth; dry diapers; an unusual, discolored stool; and the inability to be comforted or even to rest peacefully should have caused the parents to immediately obtain medical care. The symptoms, as the trial judge found, were evident on Saturday morning, at the latest.
Parents who ignore such dramatic symptoms in an infant lack the basic skills to care for any child, particularly very young children, such as the ones in this family. This was the essential core of the testimony proffered by the Division and the Law Guardian's experts, which the judge accepted and relied upon in her decision. Loving parents they may be, but Thomas and Mary lack the fundamental competence to be charged with the responsibility of caring for their children. To leave these children in defendants' care would endanger their health and development. See N.J.S.A. 30:4C-15.1(a)(1); N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004); K.H.O., supra, 161 N.J. at 348.
The harm and likelihood of future harm can be established by a single act or an accumulation of acts. P.P., supra, 180 N.J. at 506. "[A] particularly egregious single harm can trigger the standard." K.H.O., supra, 161 N.J. at 348. Further, a parent's abusive treatment of one child "could be a dangerous harbinger" of the parent's treatment of another child. N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.) (holding that where a child died from abuse, the potential abuse of other children could not be discounted), certif. denied, 174 N.J. 39 (2002). The Division does not have to wait until parental inattention or neglect causes a child irreparable harm to act. F.M., supra, 211 N.J. at 449.
The failure to obtain medical care for Ann's egregious condition, which was described by both Thomas and Mary in words that paint a devastating picture, establishes an astonishing lack of judgment. Add to that incomprehensible failure to respond, the physical injuries inflicted upon Ann that even Mary's own expert opined were consistent with intentional, extreme, and significant force, and only one conclusion can be reached.
Both parents acknowledged that Ann was incessantly crying, refusing to eat, vomiting fluids through her nose and mouth, and visibly not herself. Defendants did not reach out for medical assistance until Ann became pale, limp, and unconscious, and then went into cardiac arrest. Although on appeal Thomas contends there was no evidence that he had knowledge of any injury that might have alerted him to the potential seriousness of the baby's obvious distress, it is abundantly clear from his own statements that he knew that something was gravely amiss.
Mary similarly argues, in reliance on Kairys's testimony, that Ann's non-specific symptoms required only "watchful waiting." We do not agree that the trial court erred in rejecting this opinion. More was required than to passively stand by and observe an infant suffer over the course of two full days. Kairys himself acknowledged that the delay of medical attention in this case greatly exacerbated the child's injuries.
That Mary considered taking the child to the hospital on Saturday morning but ultimately decided the trip would be pointless, is symptomatic of the parents' lack of judgment. When a parent considers a month-old baby's medical condition to be so grave as to warrant a trip to an emergency room, the possibility of being sent home is not a reasonable basis upon which to fail to go. That Mary saw the choice as either an emergency room or a grocery shopping trip says it all. A parent capable of exercising minimal judgment would not leave a child in that state as if it was any ordinary day. And as the trial judge noted, Thomas exacerbated Ann's injuries by administering CPR while she continued to gag and vomit until he was told by the 9-1-1 operator to stop.
Mary's statements regarding forcibly dropping her month-old infant in a car seat, even if not the event that triggered the traumatic brain injury, speaks volumes about her judgment. Mary's conduct reflects an extreme lack of understanding. In her own words, this event occurred on the Wednesday prior to the child's incessant crying and extreme discomfort for two continuous days. It is incomprehensible that Mary would not have entertained the possibility that the two events were connected.
The passive acceptance of Ann's condition by these parents is indeed a "dangerous harbinger" of the future for their other very young children if returned to their care. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div.), certif. denied, 192 N.J. 68 (2007); Robert M., supra, 347 N.J. Super. at 68.
Not to be ignored are the realities of Thomas and Mary's housing and employment situation at the time of the guardianship trial. Despite being offered numerous services, their circumstances did not appreciably improve from the time of Ann's hospitalization until the guardianship trial. Chronic unemployment and homelessness alone are conditions that can endanger children, particularly very young children. The trial judge therefore correctly determined that all these children will continue to be endangered by the parental relationship. The judge's finding as to the first prong was supported by substantial and credible evidence in the record and thus was not error.
C.
In considering the second prong, the trial court properly concluded that defendants were unwilling or unable to eliminate the harm facing their children or provide them with a safe and stable home. These defendants engaged in a sincere effort to sustain a relationship with their children and to visit with them, and those efforts should not be minimized. That the parents maintained contact, although to their credit, does not negate their inability to provide their children with the safe, stable, and nurturing environment to which they are entitled.
Thomas, who had multiple arrests for domestic violence and two psychiatric hospitalizations, failed to attend individual counseling or complete any substance abuse treatment. Although the trial judge mentioned in her decision that he was employed at the time of the hearing, the nature and duration of the employment was not discussed. At the time of the decision, Thomas still lacked housing and his plan to care for the children was to place them with his mother in another state and then join them once he "got himself together."
Similarly, Mary did not make significant progress since her children's removal despite becoming involved in mental health treatment and adhering to a medication regimen that addressed her depression. At the time of the guardianship trial, she was unemployed. Like Thomas, she had no independent housing. After Ann's removal, she had two additional children with Thomas, and attempted to conceal the children's births from the Division.
The trial court accepted Dyer's testimony that Thomas was "too impulsive and emotionally unstable to provide a safe and stable home for his children." Dyer perceived Mary's depression as interfering with her daily functioning. The court also accepted Nadelman's testimony that, as an issue separate from the cause of Ann's injuries, defendants were not capable of safely parenting their children because each, for different reasons, lacked the most fundamental parental "competence." We see no abuse of discretion in the court's reliance given the record which supported the expert opinions. See Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.) ("A trial court is free to accept or reject the testimony of either side's expert."), certif. denied, 174 N.J. 193 (2002).
Furthermore, as the trial judge observed, both experts found that Tim and Jane had formed secure attachments to their foster mothers and would suffer a significant traumatic loss if removed from their care. The experts opined that neither Thomas nor Mary had the ability to address the grief and overwhelming loss the children would experience if separated from their foster parents.
Mary's own expert did not believe that she could, at the time of trial, assume care and custody of her children. Rather, he found that her resumption as primary caretaker required a host of services. This opinion was premised on speculation into the future regarding the services' positive effect if adhered to.
The first and second prongs of the best interests test overlap. The danger that the parental relationship poses to a child's safety, health, or development is inter-related with a parent's ability to eliminate the harm and "provide a safe and stable home for the child." N.J.S.A. 30:4C-15.1(a)(2). It also includes considerations of "whether the child has bonded to his or her resource parents to the extent that separation from them in itself would cause the child serious and enduring emotional or psychological harm." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App. Div. 2012) (internal quotations and citation omitted).
In this case, all the experts opined that Tim and Jane, the only children able to be tested, would be harmed by removal from their foster homes. Both children had developed secure attachments to their foster parents. The Division and the Law Guardian's experts opined that neither Thomas nor Mary had the capacity to assist the children to recover from the harm that separation would inflict, whereas the foster parents had the ability to assist the children in recovering from the harm, if any, that termination of the parental relationship would cause. Only Mary's expert believed that she could ameliorate the harm that would result from removal, although that opinion assumed substantial supportive services and reunification at some unspecified time in the future.
The Division may satisfy the second prong by showing that "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. To make this showing, the court can consider, as did the trial judge in this case, the bonds between a child and his or her resource parent when deciding whether separation would cause the child "serious and enduring emotional or psychological harm[.]" N.J.S.A. 30:4C-15.1(a)(2); L.J.D., supra, 428 N.J. Super. at 483. A child "must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 210 (App. Div.), certif. denied, 192 N.J. 293 (2007).
In this case, the trial judge correctly found that the Division met the second prong. These parents had not progressed, and when, if ever, they would be leading stable and independent lives themselves was an open question. The children were bonded to their foster families, would be harmed by removal, and are entitled to permanency. Thus the judge's conclusion was supported by substantial and credible evidence in the record.
D.
Thomas contends that the Division offered him services but did not adequately investigate his mother as a resource placement for the children. Mary contends that the Division both failed to provide her with proper services and failed to consider alternatives to parental termination.
The Division was required to, and did, in the trial court's view, consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). Pursuant to N.J.S.A. 30:4C-12.1(a), the Division has a statutory obligation to contact relatives of a child in custody. N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 577 (App. Div. 2011). N.J.S.A. 30:4C-12.1(a) provides, in relevant part, that the Division must "initiate a search for relatives who may be willing and able to provide the care and support required by the child." Thus, while there is no presumption in favor of placement with relatives, the Division may not seek termination of parental rights and adoption by foster parents without first exploring available relative placements. K.L.W., supra, 419 N.J. Super. at 580.
The Division's statutory obligation requires prompt identification of relatives and notice to them of the results of any investigation. Ibid. This obligation does not permit "willful blindness and inexplicable delay" in the approval or disapproval of a relative known to the Division. Id. at 582.
New Jersey, however, has a strong public policy in favor of permanency. K.H.O., supra, 161 N.J. at 357; see also In re Guardianship of J.C., 129 N.J. 1, 26 (1992) (noting that children have "an essential and overriding interest in stability and permanency"). A delay in permanency based on the Division's failure to comply with statutory obligations is warranted only when it is in the child's best interests. K.L.W., supra, 419 N.J. Super. at 581-83 (holding that the Division's failure to contact and assess maternal grandparents that it knew had custody of the child's siblings deprived the court of any meaningful opportunity to make an informed decision as to whether the placement was in the child's best interests); N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82, 87 (App. Div. 2013) (holding that although the Division had a statutory responsibility to conduct a fair investigation of relatives, there was no realistic basis to perceive that placement with the father's cousins would be in the child's best interests), certif. denied, 217 N.J. 587 (2014).
Here, the Division explored various relatives as potential caregivers, but ruled them out for legitimate reasons. Notably, in January 2011, shortly after Ann's removal, it placed Tim with Mary's sister, Ellen, who asked for his removal nine months later because their sister, Alice, was no longer able to help with child care. The Division later ruled out Mary's three sisters altogether, and their lack of responsiveness made clear that they were not able or willing to offer themselves as alternative placements in the long run. The MGM had been substantiated for medical neglect, and Mary herself had told Division workers that her mother was sick and unable to care for the children.
In February 2011, the Division ruled out the PGM based on her 1991 drug conviction and, in April 2011, denied her appeal of the decision. In July 2012, the abuse and neglect judge ordered the Division to reconsider the PGM, rejecting the Division's argument that her failure to pay the fine from her drug case until 2010 automatically disqualified her as a resource parent under N.J.S.A. 30:4C-26.8(e)(3).
In December 1990, the PGM was arrested for possession of a controlled dangerous substance within 1000 feet of a school, pleaded guilty, and was sentenced to three years of probation in 1991. The PGM completed probation but did not satisfy the financial obligation until November 2010.
The following month, the Division submitted an application to Virginia under the ICPC, asking for an evaluation of the PGM's home. The Virginia authorities then denied the placement due to her unstable financial situation. In December 2012, after confirming that Virginia had relied on inaccurate financial information submitted by the PGM, the Division, at the court's direction, resubmitted the request. The Division worker, however, checked the box on the application for foster family placement, not relative placement, resulting in a background investigation. In April 2013, the Virginia authorities denied the second request based on the PGM's criminal history.
The ICPC, codified in New Jersey at N.J.S.A. 9:23-5, "was intended to remove, not to create, obstacles to out-of-state placements that are in the best interests of children." N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 635 (App. Div. 2002). The goal of the ICPC is to facilitate the placement of children "by removing the limitations imposed by state boundaries, increasing the flow of information between cooperating states and providing guidelines for resolving jurisdictional conflicts." Id. at 631.
Article I of the ICPC provides:
a. Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.Article II defines "placement" as
b. The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement hereby promoting full compliance with applicable requirements for the protection of the child.
c. The proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.
d. Appropriate jurisdictional arrangements for the care of children will be promoted.
[N. J.S.A. 9:23-5, art. I.]
the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.
[N. J.S.A. 9:23-5, art. II.]
Article VIII addresses the ICPC's limitations. It provides, in relevant part, that the ICPC does not apply to "[t]he sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or nonagency guardian in the receiving state." N.J.S.A. 9:23-5, art. VIII, subd. (a). The exemption of "certain close relatives" was added "to protect the social and legal rights of the family." McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991) (quoting Draftsman's Notes on Interstate Compact on the Placement of Children, reprinted in R. Hunt, Obstacles to Interstate Adoption 44 (1972)). Our courts recognize that the ICPC does not apply to relative placement. K.F., supra, 353 N.J. Super. at 635.
To advance the Division's policy and the goals of the ICPC, a court must have broad discretion to assess a relative's ability to care for children and to facilitate placements that are in the children's best interests. Id. at 635, 638 (holding that the ICPC did not require prior approval of the receiving state when a New Jersey court had decided against foster care in favor of placing the children with their out-of-state maternal grandparents, who were willing and able to assume custody, and the placement was in the children's best interests); see also McComb, supra, 934 F.2d at 482 (holding that the ICPC only governed placing children in substitute arrangements for parental care, and did not apply when a child was returned by the sending state of Pennsylvania to a natural parent in Virginia).
While a court may reject a relative on best-interests grounds under N.J.S.A. 30:4C-12.1, rather than a finding that the relative is unfit or unwilling, it must first conduct a fair investigation of each relative. J.S., supra, 433 N.J. Super. at 87. When the Division has been "lax or capricious in its assessment" of a timely presented relative, the court will conclude that the Division has failed to prove by clear and convincing evidence that alternatives to termination of parental rights were appropriately considered. Ibid.
Based on the plain language of Article VIII(a), it was improper for the court to rely on the decision by the Virginia Department of Social Services in finding that the Division met its statutory obligation to consider the PGM as a relative placement. Although the court directed the Division to fully explore the PGM as a resource parent, there was no evidence in the record that the Division did more than request an investigation by Virginia. There were no bonding evaluations of the PGM and Tim, Jane, or Cassandra, or evaluations of the PGM. The Division did not adequately investigate whether placement with the PGM would have been detrimental or in the children's best interests.
Although it is clear that Thomas, at least, wanted the PGM to be considered as a placement, the record does not provide any indication that she wanted the children, other than her cooperation with Virginia's investigation. There is nothing in the record demonstrating that she regularly visited the children, either before or after their removal. There is no evidence that she had any sort of ongoing relationship with them. Mary, prior to trial, was actually opposed to the PGM as a placement because she lived too far away and the PGM did not like her.
While the Division's investigation of the PGM was flawed, we cannot say that the error was of such magnitude as to warrant reversal. See J.S., supra, 433 N.J. Super. at 87. The children are now bonded outside the family and their resource parents are committed to adopting them. This exhaustive record included no evidence that any relationship existed between the PGM and the children. Thus in this case, the Division's failure to follow through correctly does not warrant reversal of the trial court's conclusion.
Insofar as Mary's claim that the Division did not provide her with adequate services, it bears noting that because of the criminal charges pending against her, Mary initially decided not to engage in treatment. She was referred to partial hospitalization programs, but initially did not participate because of the birth of Cassandra. When she began to attend HUMC's partial hospitalization program in January 2013, and domestic violence counseling in April 2013, the guardianship trial was merely weeks away. That was a choice that Mary made, not the result of the Division's failure to offer proper services. Thus the third prong was met by clear and convincing evidence. The Division offered adequate services and its shortcomings in investigating the PGM were not fatal to the trial judge's ultimate conclusion that the statutory standard was met.
E.
The fourth prong requires the Division to prove by clear and convincing evidence that termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. Under this prong, "[a] child's need for permanency is an important consideration[.]" M.M., supra, 189 N.J. at 281. "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
We concur with the trial judge's determination that the Division readily met the fourth prong of the best interests of the child test. Despite defendants' efforts to maintain a relationship with their children, they have a primary attachment with their respective foster mothers, not their biological parents. The trial court found persuasive, as we do, Dyer's opinion that removal from the foster parents would have profoundly negative effects on Tim and Jane, effects that neither parent could ameliorate.
The trial court also relied on Nadelman's testimony. Nadelman's bonding evaluations revealed that Tim had an ambivalent attachment to his birth parents, but a positive, secure attachment to his foster parent. Jane and Cassandra had lived with the same foster parent since they were a few days old. Jane related to Mary as a friendly visitor, but had no attachment whatsoever to her.
Given Nadelman's opinion that neither defendant had the basic skills to parent their children in the foreseeable future, it follows that neither would be able to assist the children with the trauma that would be inflicted by removal from their foster homes. No benefit would be gained from such a removal, which would inflict significant emotional trauma, or by extending the placements and labeling them as temporary, in the hopes that Thomas or Mary would one day be able to offer their children a safe, stable, and nurturing home.
Weighing the potential harm from parental termination against a child's removal from his or her resource parents requires expert inquiry into the strength of each relationship. K.H.O., supra, 161 N.J. at 355. The State should offer the testimony of a "'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19). After balancing the two relationships, the court must determine whether parental termination would cause a child to suffer a greater harm than the permanent disruption of his or her relationship with resource parents. K.H.O., supra, 161 N.J. at 355. The trial court balanced the relationship and found that termination would not do more harm than good. We agree.
Jane and Cassandra's foster mother is willing to adopt Ann, who requires long-term care in a medical facility. Ann, given her condition, has no known attachment to anyone and is unlikely to suffer harm from parental termination. That she will be part of a family with two of her sisters is not an inconsequential consideration.
F.
Mary contends that the abuse and neglect judge erred by failing to recuse herself based on partiality prior to issuing findings of fact. She argues that the judge's recusal from the termination matter raises questions regarding the fairness of the Title 9 proceeding and thus requires reversal. On the contrary, in our view the abuse and neglect judge is to be applauded for her conduct in ensuring that every opportunity was afforded to these defendants in the termination proceeding despite her factual conclusions, which obviously had far-reaching consequences for any future proceeding.
Rule 1:12-1(g) instructs judges to avoid sitting in any matter "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." Canon 3(C)(1) of the Code of Judicial Conduct similarly requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might be reasonably questioned. These court rules "are designed to address actual conflicts and bias as well as the appearance of impropriety." State v. McCabe, 201 N.J. 34, 43 (2010).
"Absent a showing of bias or prejudice, the participation of a judge in previous proceedings in the case before him [or her] is not a ground for disqualification." State v. Walker, 33 N.J. 580, 591 (1960), cert. denied, 371 U.S. 850, 83 S. Ct. 89, 9 L. Ed. 2d 86 (1962). A judge should not withdraw from a case based on a mere suggestion that he or she is disqualified, unless the judge knew about the alleged cause of recusal or it is shown to be true. Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009). While it is unnecessary to prove actual prejudice, a judge may be disqualified on the ground of an appearance of bias. Panitch v. Panitch, 339 N.J. Super. 63, 67 (App. Div. 2001). Before disqualification based on mere appearance, however, "the belief that the proceedings were unfair must be objectively reasonable." Ibid.
The decision to recuse is left to the sound discretion of the trial judge. Id. at 66. When the ground for recusal is bias, "the judge ordinarily has readiest insight into his or her own mind." Magill v. Casel, 2 38 N.J. Super. 57, 63 (App. Div. 1990).
Mary relies on the abuse and neglect judge's statement that she was too involved in the Title 9 proceeding to be fair and impartial, claiming the judge's "glib remarks confirmed the injudicious approach." In further support of her position, Mary cites the judge's statement in her March 2012 ruling that "it's pretty obvious to me in this case that neither parent had any idea about how to care for a one[-]month[-]old child," even though Mary had raised a ten-year-old and a one-year-old son without harm.
By the time the judge recused herself, however, she had presided over multiple court appearances involving this family, reviewed substantial expert testimony, and issued her findings regarding abuse and neglect of the children. It is understandable, given the extreme circumstances and the life-threatening nature of the parents' conduct in this case, that she recused herself because she was committed to her fact findings. See Carmichael v. Bryan, 310 N.J. Super. 34, 49 (App. Div. 1998) (matter was appropriately transferred to another judge where the motion judge expressed opinions regarding the plaintiff's intent while weighing the evidence, reflecting a commitment to his findings). Other than the statement made after the proceedings were decided, Mary does not draw our attention to any specific comment or ruling during the proceeding which might demonstrate alleged partiality. Thus we find no merit to this argument.
G.
Mary also contends that she had no notice that the Division was also seeking a finding of abuse or neglect as to Robert, Tim, and Jane. She further claims that there is insufficient evidence to support abuse or neglect of these children. Mary argues that she was not appropriately noticed because the complaint only mentions removal of the children from her care and custody based on the possibility that Ann's injuries were not accidental.
We agree with the Title 9 judge's conclusion that Mary had ample notice of the Division's intent with regard to all of the children. First, the obvious—the Division filed pleadings naming each of the children. If that was not enough, certainly the Division's placement of all the children in resource homes, and request for care and supervision of even Robert, who was placed with his biological father, gave her actual notice.
Due process requires adequate notice and a meaningful opportunity to be heard. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004). These constitutional protections are tempered by the State's responsibility as parens patriae to protect the welfare of children. Ibid. A parent is entitled to sufficient notice of the State's intentions so that he or she can prepare a meaningful defense. Ibid. (holding that the court's authority to remove children from their parents' custody must adhere to procedural safeguards).
The Division's initial complaint filed January 11, 2011, unequivocally stated that it sought a finding of abuse and neglect as to Robert, Tim, and Ann. It further alleged that the three children were abused and neglected, and that their "physical, mental, or emotional condition" was impaired by virtue of their parents' failure to provide them with the minimum degree of care. It specifically asserted that the children required the Division's protection, care, and supervision. Subsequently the Division filed an amendment on December 28, 2011, to name Jane, born ten days earlier. Hence, the abuse and neglect judge's ruling regarding notice to Mary was also supported by ample evidence in the record. Mary was provided with notice enough in advance to prepare her defense.
H.
We do not reach Thomas's and Mary's other claims of error with regard to the Title 9 proceeding, as they are either made moot by our decision in the guardianship proceeding or are so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION