On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Hudson County.
Pressler, Shebell and Skillman. The opinion of the court was delivered by Pressler, P.J.A.D. Shebell, J.A.D., concurring.
T.C. and I.R. appeal from an order of the Family Part, entered pursuant to N.J.S.A. 30:4C-15, which terminated their parental rights to their daughter, D.C., who, together with her older brother, was taken into protective custody by the Division of Youth and Family Services (DYFS) when she was two and a half years old. This appeal requires us to determine whether the order can be justified largely on the expert's opinion that despite the present fitness of the parents, despite the return to them of the other child, and despite the resultant permanent severance of D.C. from her biological parents and her siblings, parental termination is required by reason of the harm the expert predicts that D.C. will suffer by severance of the bond which has already taken place between her and her foster mother, who proposes to adopt her. Our careful review of the record persuades us that under the circumstances here, the termination order must be reversed.
These are the circumstances which led to T.C.'s and I.R.'s loss of their child. In 1981 T.C., then 21, gave birth to a son R.Y., with whose father she had been living but to whom she was not married. They continued to live together as a family until R.Y.'s father was sentenced to a life term in prison when R.Y. was about three months old. She then returned with the baby to her mother's home in Union City despite generally poor relations between them and a history of the mother's abuse of
T.C. Shortly thereafter, T.C. met I.R., a man in his fifties, who had recently arrived in the United States from Marielle, Cuba. In 1982 they started living together, I.R. acting as a father to R.Y. and generally supporting both R.Y. and T.C. by working at a variety of jobs. According to the uncontradicted testimony of both I.R. and T.C., the three of them formed a stable, well-functioning family unit. Indeed, despite some periods of difficulty between I.R. and T.C., they are still together in a stable relationship.
D.C., the child we are presently concerned with, was born to I.R. and T.C. in November 1985. In preparation for her birth, they rented a new apartment in Jersey City which they painted, furnished and had moved into shortly before she was born. The family continued to live there until its eviction in March 1988 for nonpayment of rent.
DYFS had become involved with the family some time prior thereto. The protective services worker responsible for the family until November 1988 was unable to testify at the June 1990 termination trial because of illness. The history of that period of DYFS involvement can, however, be gleaned from the DYFS records, particularly the worker's handwritten contact sheets, which were introduced into evidence.
The first contact with DYFS occurred in May 1986 when T.C.'s mother and brother, later largely discredited as reliable informants, communicated with DYFS to charge that T.C. was giving R.Y. cocaine and permitting him to "discipline" D.C. The worker visited the home and found no evidence to substantiate the charge. In June 1987 T.C. herself asked DYFS for assistance with R.Y., then six, whose behavior she was having difficulty in controlling. She believed the boy to be troubled in some way and was referred by DYFS to a physician, who failed to diagnose anything abnormal. R.Y. was, however, later diagnosed and treated as a hyperactive child during his institutional placement, hereafter referred to, at Wiley House in Pennsylvania. In any event, DYFS remained involved with the family to
assure R.Y.'s regular school attendance. A case note in December 1987 recorded that R.Y. was enrolled in school and was in the first grade.
The DYFS contact sheets next cover a period from early January 1988 to the late March 1988 eviction. A field visit note of January 14, 1988, reports that the two children "appeared clean," were "adequately dressed," and were "outgoing -- friendly -- not fearful." The home was reported to be "adequately furnished" and "kept in a relatively neat clean manner -- no health hazards noted." T.C. was not home at the time of the visit. The children were reported to be in the care of T.C.'s brother, who was apparently living there, and I.R., referred to as the "mother's live-in boyfriend" rather than as D.C.'s father. A similar report was made of a visit on January 26, 1988. Again the children were observed to be "adequately dressed and appeared clean. They were friendly and mother and children appeared to interact in a reasonable manner -- no fear indicated in children."
On February 1, 1988, DYFS received an anonymous call, apparently from T.C.'s mother, reporting that T.C. had been arrested on drug charges, that she was using her welfare check for drugs, and that she was leaving the children alone while she went out selling drugs. That note continues with the report that "supervisor responded . . . children not alone . . . other info not verified re: drugs." It was, however, true that T.C. had been arrested on a minor drug paraphernalia charge and was placed on probation under the conditional release provision of N.J.S.A. 24:21-27. The paraphernalia consisted of a balance scale which, she claimed, belonged to her brother.
During the next several weeks, DYFS continued to receive anonymous calls, again apparently from T.C.'s mother and brother, charging her with drug use and neglect of the children. DYFS' responsive field visits continued to be generally uncorroborative although it did appear that R.Y.'s school attendance was not regular due at least in part to illness. On two
occasions, however, it appeared that there was insufficient money in the household to assure an adequate supply of food, and emergency assistance was given. As late as March 1988, field visits continued to result in reports of appropriate care to the children and of the home and no evidence of drugs or drug use. It also appears that by some time early in 1988, I.R. was unemployed and the family had resorted to welfare assistance.
Disaster struck in late March 1988 when the family was forcibly evicted for non-payment of rent, T.C. having been "afraid" to go to court when noticed of the summary dispossess proceedings. She advised DYFS of this calamity and sought refuge for the family with her mother. An ensuing conversation between the DYFS worker and T.C.'s mother confirmed the mother's declination to take them in and the repeat of her charge that T.C. "was a drug . . . addict" and "could lay down in the street and die." The family then sought assistance from the Hudson County Welfare Department, which referred them to a shelter. This was apparently not an appealing alternative, and upon T.C.'s further request of DYFS for assistance, she was told "that DYFS could offer foster care assistance -- she said no -- told [T.C.] it was her responsibility to provide for food and shelter and clothes and school and medical care for children." It appears that T.C. then used her welfare check to pay for a hotel room for herself and the children. When that resource was exhausted she again, on April 6, 1988, called the DYFS worker, who again advised her to seek assistance from welfare, again offered foster care which T.C. rejected and again warned T.C. that if she did not provide for her children "DYFS will consider court ordered intervention." T.C. was also instructed to call DYFS within two days to "inform worker of status of herself and family." She did not. In the meantime, DYFS, still reposing some degree of confidence in T.C.'s mother, explained to her "the procedure for removal of children from parent" upon the mother's assertion that T.C. "is not competent to care for children and the children should be taken away from [her]." An illuminating note of April 10, 1988, then
explains that T.C. was on that date unable to obtain emergency shelter assistance from the Welfare Department and was further told by welfare that her regular welfare check was being withheld to assure her communication with DYFS.
In the ensuing days T.C. stayed with friends, avoided DYFS, missed her probation visits, and arranged with her mother temporarily to care for R.Y. while she kept D.C. with her. Finally on April 15, 1988, T.C. advised the DYFS worker that she had found a place to live for herself, I.R. and D.C. in a basement apartment in Jersey City and asked for the release of her welfare check so she could pay the rent. DYFS conducted a home visit at that apartment on April 18 and apparently found the living arrangements acceptable. D.C. was reported to be "clean and adequately dressed" and T.C. was reported to have "vacillated between responsive and anger and refusal to discuss issues. [I.R.] attempted to calm her down and to participate in discussion." It is clear that T.C.'s hostility to the DYFS worker had escalated all during this period.
The next legible note, dated May 16, 1988, reports that T.C. called to tell the DYFS worker that the family, including R.Y., was now with another friend and that R.Y. was behaving badly and was trying to return to his grandmother's. The worker visited the next day and was told by T.C. that the family had to make a new arrangement because of a quarrel with the friend. T.C. refused to let the worker see the children, and the worker explained her options to her, namely, "she could sign for both children voluntarily (1) no court involvement -- she could obtain municipal welfare for herself and get things together, (2) court involvement to supervise, (3) court to remove children. [T.C.] said no." T.C. and the family left the friend's home that day. The friend, who was actually a friend of T.C.'s mother, then promptly reported to the DYFS worker that during the two weeks the family had been with her, T.C. and I.R. were free-basing cocaine, not feeding the children, generally neglecting them, and abusing them by hitting and punching them. The friend further alleged that T.C. threatened to kill the children,
that T.C. had contributed only $70 "for staying there two weeks" and that T.C.'s mother was a "drug user and pusher." Finally the friend reported that T.C. had obtained money by pawning a stolen diamond ring and other items she had stolen from friends. None of this information was ever, insofar as the record indicates, investigated or corroborated.
Finally, on May 27, 1988, based primarily on the worker's affidavit repeating the information provided by the "friend," DYFS filed a protective custody complaint under N.J.S.A. 9:6-8.28 and obtained an ex-parte temporary emergency order authorizing its removal of the children. They were in fact removed on May 31, 1988, as T.C. was attempting to obtain shelter at St. Lucy's shelter. The children were first placed together in a temporary foster home, where they could not remain because of R.Y.'s behavioral problems. Within several days D.C. was placed in the foster home in which she still resides with her foster mother, a single parent whose household included her three teenage daughters ages 14 to 18, an adopted 2 1/2 year old and another young foster child. R.Y. was placed for a time in a welfare hotel with a series of paid "homemakers," then briefly in another foster home where he could not be managed, and finally in late summer 1988 at Wiley House, where his hyperactivity was finally diagnosed and treated. At the time of their removal, D.C. was two and a half and R.Y. was seven.
It is against this explanation of T.C.'s and I.R.'s original loss of custody of the children that we consider the subsequent administrative and judicial events leading to the termination order. To begin with, although it does appear that T.C., and perhaps I.R. as well, were, during this period, occasional drug users, there is nothing in the record to suggest either debilitating use, habitual addictive use, or distribution by either. There is, of course, a great deal of desperation in their story. They were not coping well with their impoverished circumstances, had no family support and were unemployed if not unemployable. T.C. is barely literate, I.R. is not fluent in
English, and both were living on welfare. Both were also fearful and distrustful of any governmental system, including the court, which could have aided them. In any event, neither parent saw D.C. again until her third birthday on November 21, 1988, six months after the removal, and they did not see R.Y. until much later.
The first scheduled court date following the temporary custody order was June 16, 1988. Ten days prior thereto, the DYFS worker went to the apartment where T.C. was then staying and personally served her with process. T.C. asked if she would lose her children forever and was assured she would not, but that she would have to provide a proper home for them before the children could be returned. When T.C. asked about visiting the children, the worker told her that would be arranged at the court hearing. At that point T.C. advised the worker that she could not be in court on June 16 as she had an appearance to make before another court at the same time on a drug charge. The DYFS worker "advised that she needed to change [the criminal court] date."
I.R. was apparently not personally served. Indeed he was apparently never separately served or noticed throughout these proceedings. It appears from the reference to him in the contact sheets as the "live-in boyfriend" and in the initial complaint as the "mother's paramour," that his status as D.C.'s biological father was overlooked.
Neither I.R. nor T.C. appeared at the June 16 hearing. T.C.'s mother, however, had apparently telephoned the DYFS worker to report that T.C.'s absence was due to her presence at the Union City police station because of assault charges made against her by her brother. As a result of T.C.'s non-appearance, the protective custody order was continued and a new court date of September 29, 1988, was scheduled. The record does not indicate whether T.C. or I.R. had actual knowledge of that date or what steps, if any, DYFS took to advise them of it. Neither appeared. The custody order was continued until January
5, 1989. The protective services contact sheets for the period from June 1988 until November 1988 do not disclose a single contact with the parents initiated by DYFS, although DYFS knew for the most part where they were living. Nor is there recorded any contact initiated by the parents, although T.C. testified at trial that she had ...