On certification to the Superior Court, Appellate Division, whose opinion ordering remand is reported at 245 N.J. Super. 373 (1991), and final opinion is not reported.
Handler, Wilentz, Pollock, O'Hern, Garibaldi, Stein, Clifford
The opinion of the Court was delivered by
The State may seek guardianship of a child placed in foster care if it believes that the child has been abandoned by his or her natural parents or would suffer injury if returned to them. Transferring guardianship to the State terminates all the parental rights of the natural parents and is a prerequisite to having the child adopted by the foster parents or by another family. The Court in this case, as in the companion case, In re K.L.F., N.J. (1992), is required to determine whether the parental rights of a natural mother should be terminated based on the need to protect children from potential harm that may result from being separated from foster parents with whom the children may have formed parental bonds.
The mother in this case has three children. Unable to cope with the difficulties of raising them, primarily because of homelessness, domestic abuse, and her own substance abuse, the mother voluntarily placed her children in foster care through the Division of Youth and Family Services. The children remained in foster care from 1986 until today, and although the mother regularly visited with them, the Division eventually determined that she lacked parental fitness and that the children required permanent homes. Acting on what it determined to be in the best interest of the children, the Division brought an action to terminate the mother's parental rights in order that the children could be adopted.
The trial court held that the mother's parental rights should be terminated, emphasizing the psychological harm that would result from breaking the bonds that each child had formed with foster caretakers. The Appellate Division affirmed in a per curiam opinion. The Court granted the mother's petition for certification. N.J. (1992).
A.C., who was born in Colombia and came to this country as a teenager, is the natural mother of three children. Two girls, J.C. and J.M.C., were born in July 1983 and in January 1985, respectively, and J.C., a boy, was born in August 1986. A.C. voluntarily placed her two girls in foster care with the Division of Youth and Family Services (DYFS, Division, or agency) in August 1985. The children were returned to her after three months. Almost a year later, in October 1986, A.C. again placed the two girls, along with her new child, J.C., in foster core, where they have remained for the past five and a half years.
A.C. began unsupervised weekend visits with her children soon after their placement in foster care, seeing them regularly twice a month during the following year. Although DYFS had intended to reunite the family, in November 1987 the agency stopped unsupervised visits out of concern that the children were not being properly cared for. DYFS also came to believe that A.C. was addicted to drugs and was being abused by her husband (who, she claims, was not the father of any of the children). However, bi-monthly visits at the DYFS office continued. In April of the following year, A.C. entered drug treatment. By November 1988 the agency concluded that the children could not be returned successfully and that preparation should be initiated for their permanent placement and adoption. The agency transferred the case to its Adoption Resources Center (A.R.C.), which subsequently terminated visitation.
DYFS filed a petition for guardianship over the three children on July 7, 1989. It sought the termination of A.C.'s parental rights on the grounds that A.C. was unable and unwilling to stop causing the children harm and that to delay permanent placement would add to the harm facing the children.
At the time that DYFS moved for guardianship, the oldest child, J.C., had lived with at least two foster families. She was moved to her current pre-adoptive parents a week later,
on July 13, 1989. J.M.C. had been living with her current foster parents since October or November 1988. A.C. has since consented to the adoption of her youngest child, J.C., and his status is not an issue in the case.
The case was initially tried on November 9, 1989, and December 15, 1989. Following a remand and additional hearings held in March 1991, the trial court concluded that termination of A.C.'s parental rights was necessary in the best interests of the children. It determined that A.C. had not, as a matter of law, abandoned her children even though she had placed them in foster care and had failed to achieve the requisite fitness to secure their return. However, it did find that the children would suffer serious psychological harm if they were removed from their foster or pre-adoptive homes and returned to A.C., and that the harm in part was attributable to A.C.'s own inability to plan for their future and her failure to rehabilitate herself. The Appellate Division affirmed. N.J. Super. (1991).
Foster care is one of several social services that the Division of Youth and Family Services is empowered to provide to troubled families. A child may come into the custody of the Division and be placed in foster care pursuant to either a voluntary-placement agreement or a court order. In this case, the children were placed voluntarily without the involvement or review of a court. Under the voluntary-placement scheme, the decision to place a child in foster care rests solely with child's parent or guardian. However, before providing foster care services DYFS must itself determine that a child's welfare is endangered and that the child's needs cannot be met either through financial assistance or placement with family or friends. N.J.S.A. 30:4C-11.
The law governing DYFS reflects a strong societal bent in favor of the integrity of the natural family. The law clearly favors keeping children with their natural parents and resolving
care and custody problems within the family. When children are placed in foster care, the law requires diligent efforts by the State to maintain a relationship between children and their parents and to return children home as quickly as possible. Nonetheless, when efforts to reunite families repeatedly fail, permanent plans must be made for children, justifying the termination of parental rights. The latter action requires court approval pursuant to a petition by the agency for guardianship. N.J.S.A. 30:4C-15.
DYFS brought its legal action for guardianship over J.C. and J.M.C. under N.J.S.A. 30:4C-15 (section 15), which provided for the termination of parental rights either when it is required in "the best interests of [the] child" [subsection c] or the parent "has failed substantially and continuously or repeatedly for a period of more than 1 year to maintain contact with and plan for the future of the child, although physically and financially able to do so." [subsection d] Ibid. The Division relied on subsection (c) of section 15 as the basis for seeking termination of A.C.'s parental rights. N.J.S.A. 30:4C-20 (section 20) defines the court's authority to terminate parental rights based on an application by DYFS under section 15. It may do so "[when it] is satisfied that the best interests of [the] child require that he be placed under proper guardianship."
The Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986), undertook a comprehensive examination of the foregoing statutory scheme. The Court, through Justice O'Hern, reasoned that although the parental interest in a relationship with children is fundamental and constitutionally protected, it is limited when the physical or mental health of children is jeopardized. Both the statute and the State Constitution, the Court explained, require that DYFS demonstrate clearly and convincingly that "the child's best interests will be substantially prejudiced" if parental rights are not terminated. Id. at 603 (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 340-41 (App. Div. 1969)).
The Court then set out four specific findings that a trial court should make before it terminates parental rights. The first finding is that the child's health and development have been or will be seriously impaired by the parental relationship. Id. at 604-05. Secondly, the court must conclude that the parents are unable or unwilling to eliminate the harm and that a delay in permanent placement will add to the harm. Id. at 607. Third, the court should be convinced that alternatives to terminating parental rights have been thoroughly explored and exhausted, including sufficient efforts made to help the parents cure the problems that led to the placement. Id. at 608-10. Fourth, all of those considerations must inform the determination that termination of parental rights will not do more harm than good. Id. at 610.
In 1991, the Legislature amended section 15, L. 1991, c. 275, § 7, to require that before the Division petitions for guardianship based on the child's best interest, it be satisfied that the four standards articulated in A.W. have been met. Although the language amends section 15 governing agency discretion, rather than section 20 defining the judicial responsibility, it refers to the inquiry that a court must make in the termination proceedings under section 20. L. 1991, c. 275, § 7c. That the Legislature intended also to clarify the substantive standard for termination under section 20 and that the best interest standard is identical for both agency and court decisions is thus inferable.
The standards for terminating parental rights established by the Legislature and this Court are fully consistent with constitutional doctrine. State law allowing for the termination of parental rights must satisfy the protections that surround family autonomy under the United States Constitution. Parents have a constitutionally-protected, fundamental liberty interest in raising their biological children, even if those children have been placed in foster care.
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Balanced against the constitutional protection of family rights is the State's parens patriae responsibility to protect the welfare of children. Because that power involves the State acting in the place of parents, it is limited to situations in which the state has demonstrated that the child's parent or custodian is unfit, Developments in the Law, The Constitution and the Family, 93 Harv. L. Rev. 1156, 1219 (1980), or the child has been neglected or harmed, see State v. Perricone, 37 N.J. 463, cert. denied, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962).
Termination of parental rights permanently cuts off the relationship between children and their biological parents. "Few forms of state action are both so severe and so irreversible." Santosky, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610; In re Adoption of J.J.P., 175 N.J. Super. 420, 426 (App. Div. 1980). When the child's biological parents resist the termination of their parental rights, the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm. In most cases proofs will focus on past abuse and neglect and on the likelihood of it continuing. See, e.g., In re Guardianship of J.E.D., 217 N.J. Super. 1 (App. Div. 1987). However, the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm. A.W., 103 N.J. at 607. The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents. The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child. Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17.
In this case both parties presented evidence relating generally to the harm that would befall the children if they were
removed from the custody and care of foster parents and returned to their natural parent. DYFS also presented evidence that addressed the conduct of A.C. as indicative of her own responsibility for having caused the harm to the children and her parental fitness as a factor in determining whether that harm could be remediated if the children were returned to her custody.
The evidence strongly indicated that A.C. showed an interest in her children while they were in foster care, visiting them regularly and frequently. DYFS recognized that interest but stopped short of returning the children to A.C. on several occasions due to concerns about her housing situation and drug and alcohol addiction. Toward the end of 1987, after the two girls had been in foster care for more than a year, DYFS made plans to return the children, one by one, to A.C. Those plans were cancelled after reports of domestic violence in A.C.'s home, as well as renewed concerns over her continuing drug and alcohol abuse. In February 1988, DYFS had a psychiatric examination of A.C. undertaken by the Urban League of Hudson County. That report, written by Dr. Willy Hoffmeister, a psychologist, reached equivocal Conclusions. It noted A.C.'s troubled and unstable personality, but expressed an inability to make a recommendation concerning whether she could care for her children.
In April 1988, with the help of the Urban League, A.C. entered a twenty-eight-day in-patient drug- and alcohol-treatment program in Newark. Nydia Farias, the social worker in the case, testified that she had told A.C. that DYFS had made a decision that the case would be transferred to the A.R.C. for purposes of arranging for the adoption of the children. However, she had also told A.C. that if she wanted the children returned, she would have to continue receiving outpatient drug treatment and find a larger apartment. Ms. Farias testified that A.C.'s failure to have completed the in-patient portion of a drug-rehabilitation program that she began in April 1988 was a significant factor in DYES's decision to seek a permanent home
for the children. She produced letters from C.U.R.A., Inc., the sponsor of A.C.'s drug-rehabilitation program, stating that A.C. had successfully completed a twenty-eight-day residential program, but had declined to participate in an extended in-patient program and had begun, but failed to complete, a supplemental out-patient program. Whether DYES reasonably relied on that correspondence from C.U.R.A., however, was a question raised by the testimony of Maria Baugh, A.C.'s drug counselor at C.U.R.A. Ms. Baugh, testifying in December 1989, expressed the view that A.C. had successfully completed C.U.R.A.'s thirty-two-day residential program and had remained free from drug and alcohol addiction since the Conclusion of the program in May 1988. Ms. Baugh observed that after completing the program A.C. was "a ...