On certification to the Superior Court, Appellate Division.
Handler, Wilentz, Pollock, O'Hern, Garibaldi, Stein, Clifford
The opinion of the court was delivered by
This appeal raises the same issues and invokes the same concerns as the companion case, In re J.C., N.J.(1992). In this case, the mother voluntarily placed her newborn infant with the Division of Youth and Family Services (DYFS or Division or agency) for temporary custody and care. Following a long period of separation of mother and child the Division brought an action to terminate the parental rights of the mother in order to prepare for the permanent placement of the child. The trial court refused to terminate the mother's parental rights, concluding that the mother had not abandoned the child and was fit to raise the child, and, further, that the child would not suffer psychological harm in being removed from her foster parents and returned to her mother. The Appellate Division affirmed. The Court granted the petition for certification. N.J.(19 ).
B.F. became pregnant with K.L.F. after having been gang-raped in New York City. She came to New Jersey to have her child, believing that New York City was too dangerous a place in which to raise children. She gave birth to a healthy daughter at Hackensack Hospital in Bergen County in November 1988.
At the time she gave birth, B.F was homeless. Unable to find shelter for herself and her daughter she entered into a temporary custody agreement with the Division of Youth and Family Services and consented to the temporary placement of K.L.F. in foster care. N.J.S.A. 30:4C-11. The agency arranged for B.F. to live at the Bergen Shelter, a facility that did not allow infants or children.
B.F. visited with K.L.F. twice during December at the DYFS offices in Hackensack. When B.F. came for a third visit, she was unable to see K.L.F. because the social worker handling the case was sick. Shortly thereafter, B.F. left the shelter, and returned to New York City in search of permanent housing.
During the year and a half that followed, B.F. had neither work nor a home, and lived in shelters and with friends. At trial, she testified that she called DYFS from pay phones in New York numerous times during that period but was unable to reach an agency worker who knew about K.L.F.'s case.
In the meantime K.L.F. lived in the home of foster parents. DYFS caseworkers sent letters to various State agencies and made phone calls but were unable to communicate with B.F. In May 1990, eighteen months after K.L.F. had first been placed, DYFS concluded that she needed a permanent home and moved her to a new set of pre-adoptive foster parents with whom she currently lives.
Less than a month later B.F. reached K.L.F.'s new case worker at DYFS, and requested to see her child so that she might eventually regain custody. DYFS informed B.F. that the agency was bringing a legal action for guardianship and that she would have to wait for a court to decide whether visitation should occur. DYFS also told B.F. that she would have to release medical information and later undergo psychiatric evaluation before visitation could be permitted. Because the agency refused to allow her to visit her child, B.F. concluded that she had to go to court to obtain visitation. She traveled from Staten Island to the Bergen County Courthouse in Hackensack to file a pro se motion for visitation. Although Bergen County was the correct venue, employees at the courthouse sent her to the Passaic County Courthouse in Paterson. When B.F. finally arrived in Paterson, she was not permitted to file her motion there and was directed to return to Bergen County. Frustrated, B.F. returned to Staten Island without having filed a motion for visitation or otherwise obtained assistance.
B.F thereafter did find a stable living situation, signing a three-year lease on an apartment in Staten Island where she now lives with another daughter. Nonetheless, on March 23, 1991, DYFS petitioned for guardianship and termination of parental rights based on abandonment and the best interests of the child. N.J.S.A. 30:4C-15. At that time K.L.F. had been living with her current foster parents for ten months. DYFS concluded that K.L.F. had bonded with them and that moving her again would cause her psychological and emotional harm.
At the trial both parties introduced evidence chronicling the foregoing events primarily on the issue of whether B.F. had abandoned her child. In addition, both parties presented expert testimony relating to B.F.'s parental fitness and to harm ...