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In re Guardianship of J.T.

Decided: September 17, 1993; November 22, 1993, Decided.


November 15, 1993, Reargued. September 17, 1993, Decided. On appeal from Superior Court, Chancery Division, Family Part, Passaic County.

J.h. Coleman and Muir, Jr.

Per Curiam

[269 NJSuper Page 175] This is a continuation of the foster mother's appeal following our remand decision of September 17, 1993. In our prior decision, we did not articulate the extensive procedural history which spans nearly four years. Since we conclude that the order dated October 14, 1993, transferring J.T. to her natural mother must be reversed, it becomes necessary to outline the detailed procedural history and factual statement.


J.T. was born on November 20, 1989, and she has been in the same foster home since January 4, 1990. The biological mother of J.T. has two other daughters who were one and two years old in 1989. Prior to the birth of J.T., the Division of Youth and Family Services (DYFS) became involved with the family during the summer of 1989 after receipt of complaints that the girls were being neglected and that domestic violence was occurring in the home. The two girls were taken to live with their maternal grandmother in Puerto Rico on July 19, 1989.

J.T. was born at St. Joseph's Hospital in Paterson. The hospital contacted DYFS because the infant was born premature and the mother was addicted to cocaine, had no prenatal care and both the mother and infant had syphilis. The hospital also needed consent to transfer the infant to another hospital. The mother had used cocaine just two hours before she was admitted to the hospital in labor. The mother was discharged from the hospital on November 25, 1989, but the premature infant remained. DYFS met with the mother on December 13, 1989, and the DYFS caseworker informed the mother and father of J.T. that DYFS would seek custody of J.T. because DYFS had been unable to contact them since the mother was discharged from the hospital.

On December 18, 1989, DYFS filed a Verified Complaint for Protective Services. The complaint alleged that the natural father of J.T. was crazy and the couple had no place to live. The maternal grandmother had informed DYFS caseworkers that she was unable to care for J.T. On February 1, 1990, DYFS was granted an order for protective services. In the interim, J.T. was discharged from the hospital and placed with the present foster mother on January 4, 1990. The February 1, 1990, order provided that visitation between J.T. and her mother and father "take place a minimum of two times a month." By orders dated April 20, 1990, and July 5, 1990, J.T. continued to be in the protective service of DYFS.

After the mother and father failed to express an interest in J.T. for more than a year, to arrange a permanent plan for J.T., a complaint for termination of parental rights was filed by DYFS on March 12, 1991. However, before the complaint was filed, the mother called the DYFS Adoption Resource Center on February 26, 1991, requesting that J.T. be surrendered to her. She offered no explanation for her absence and failure to express any interest in the child for approximately fourteen months. In response to the complaint and order to show cause, the biological mother appeared in court after she was assigned an attorney to represent her interest. Default was entered as to the natural father on May 21, 1991.

The biological mother appeared in court on April 17, 1991, to express her opposition to termination of her parental rights. The parental rights of the natural father, however, were terminated that day. The biological mother met with DYFS workers on June 18, 1991, and requested that J.T. be placed with her maternal grandmother. Since the grandmother had already declined to accept custody, the mother was informed the matter had to be resolved by the court. That was an erroneous decision by DYFS which we will discuss later.

Trial on the complaint for termination was scheduled for August 7, 1991, but was adjourned to August 20, 1991, and again adjourned to October 30, 1991. During the trial, DYFS presented testimony by Dr. Frank Dyer, a psychologist, who testified that J.T. had bonded with the foster mother. He also testified that removal of J.T. from the foster mother would cause the child to suffer "devastating separation trauma." Dr. Dyer's opinions were based on an evaluation of J.T. on July 31, 1991, after the child had been with the foster mother for approximately twenty months. He opined that the long-term consequences would be severe impairment in the child's self esteem, basic trust and capacity to form intimate emotional connections with others. He also stated the child would be vulnerable to depression and personality disorders later in life.

Irene Cusack, a Family Service Specialist Three Case Worker who was employed by DYFS from 1988 to 1991 in the Paterson Office, also testified for DYFS. She is fluent in Spanish and was the case worker assigned to the case between June 1989 and September 1990.

Ms. Cusack testified that she contacted the maternal grandmother and the father's sister to take J.T., but they were unable to do so. Consequently, when J.T. was discharged from the hospital on January 4, 1990, she was placed in the present foster home by Ms. Cusack. Thereafter, Ms. Cusack contacted G.A., a relative of the mother, on February 14, 1990, to ask if she would take care of J.T., but she said no. The Child Placement Review Board conducted its first review on April 3, 1990; there was no attendance by J.T.'s parents. The Board continued the placement and accepted the placement plan. In June 1990, the father's brother informed DYFS that there were family members willing to care for J.T. The relatives were two of the same people who had already declined to take care of J.T. Ms. Cusack also had contact with the mother on June 8, and July 11, 1990, but no interest was expressed in J.T.

Tania Rodriguez, another DYFS case worker, also testified. Ms. Rodriguez became responsible for the case on October 3, 1990. She testified that J.T.'s parents were located on December 7, 1990, through a police report involving a criminal charge that the father had threatened to kill J.T.'s mother. Ms. Rodriguez wrote a letter in Spanish to the parents of J.T. asking them to contact her because DYFS was preparing to seek a court order terminating their parental rights. Ms. Rodriguez met with the mother on February 26, 1991, who stated she wanted her daughter back. She explained to the mother that a complaint to terminate parental rights was about to be filed and that she would have to await the outcome of the court proceedings. This was the first time the mother had expressed any interest in the child. She next saw the mother on March 25, 1991, which was after the complaint had been filed and a court hearing had been set for April 17, 1991, as the

return date on the Order to Show Cause. Ms. Rodriguez continued to have contact with the mother for the remaining time before the trial was concluded.

At the Conclusion of the evidence on October 31, 1991, the trial Judge stated he was not satisfied that DYFS had established by clear and convincing evidence that other reasonable alternatives to termination of the mother's parental rights had been considered by DYFS. He directed the attorneys to research whether DYFS was required to consider other alternatives discussed in New Jersey Div. of Youth and Family Serv. v. A.W., 103 N.J. 591, 608-12, 512 A.2d 438 (1986). The Judge stated that if DYFS was required to consider other alternatives, then "I may want to look into the alternative, come back in three or four months with the alternatives and balance them."

On December 18, 1991, the Judge considered written summations and the evidence respecting the A.W. issue, and concluded that DYFS was obligated to consider other alternatives to termination and that DYFS had not investigated other alternatives to termination satisfactorily, one of which had been suggested by the natural mother when she spoke with a DYFS caseworker on February 26, 1991, and again when she testified on October 31, 1991. An order was entered on January 2, 1992, directing DYFS to (1) investigate other alternatives, and (2) arrange for the biological mother to visit with J.T. at a DYFS office twice a month. The matter was rescheduled for February 5, 1992.

As a result of the February 5, 1992, review, the court found that a report from DYFS was not extensive enough. In an ensuing order dated March 11, 1992, the Judge directed DYFS to "conduct an in-depth study regarding the [natural mother's] proposed alternatives to termination of her parental rights." The proposed alternative involved the mother's request to take custody of the child. By that time the mother was living with a new boyfriend whom she later married. The matter was adjourned without date and the "Clerk of the court shall be notified as to when the above referenced report is completed and/or when the decision [by the

New Jersey Supreme Court] In the Matter of K.L.F., [129 N.J. 32, 608 A.2d 1327 (1992)] is released for publication . . . ." K.L.F. was decided on June 30, 1992, and the trial court rescheduled the matter for August 20, 1992.

On August 20, 1992, the foster mother was permitted limited intervention, and on September 25, 1992, the Judge appointed Dr. Rotman to conduct an immediate evaluation of all the parties' as contemplated by K.L.F. respecting "the bonding and relationship between [J.T.] and her biological mother as well as the bonding and relationship with her foster mother . . . ." The matter was rescheduled for October 30, 1992, and DYFS was directed to submit its report to the court on uniting the child with the natural mother in light of K.L.F. The order was signed on September 25, 1992.

Dr. Betram Rotman, a clinical psychologist, was the only witness to testify on October 30, 1992, a full year after the trial commenced on the termination complaint. He testified that after evaluating the interested parties in October 1991, it was his opinion that J.T.'s interest would be best served if she were placed with her natural mother, 0 provided that the natural mother furnish an appropriate and proper upbringing for her. The Judge signed an order on December 4, 1992, dismissing without prejudice the complaint for termination. The order directed DYFS to (1) immediately seek custody of J.T. under Title 9, (2) undertake a plan for gradual unification, (3) arrange therapy/counselling for J.T., the biological mother and her new husband, and (4) arrange visitations between J.T., the biological mother, her two other children and her husband. The Judge denied the foster mother's application for a stay.

The foster mother filed this appeal on December 4, 1992. We denied her emergent motion for a stay pending appeal on December 15, 1992. The trial court entered several orders during 1993 changing the visitation schedule and establishing new dates for the transfer of J.T. to the biological mother. The transfer dates were modified because the visitations indicated that little, if any, progress

toward unification was being achieved. The lack of progress prompted ...

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