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Matter of A.

Decided: November 22, 1994.


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Passaic County.

Before Judges Dreier, Villanueva and Wefing.


The opinion of the court was delivered by


This appeal is by the foster parents of A. from an order of September 16, 1993 directing the reunification of the child with his mother. On December 27, 1990, A.M. gave birth to a boy, A., who was born methadone-addicted. When he was six weeks old his mother brought him to St. Joseph's Hospital in Paterson, New Jersey. The Division of Youth and Family Services (DYFS) was called, and the mother signed a voluntary placement agreement with DYFS.

The infant was two months old when placed with the plaintiffs, E.F and L.F., who signed the standard foster parent-DYFS agreement which included permitted visitation by the mother and foster parent cooperation with reunification. Some time later, plaintiffs expressed their interest in adopting should the child not be reunited with his mother.

A.M. had a troubled background. She was heroin-addicted for five years prior to rehabilitation and had a history of drug and alcohol addiction from the time she was a teenager, but she had made various attempts at rehabilitation starting four months after the baby's birth. A.M. also admitted to a period of time as a prostitute and to shoplifting charges, and had been arrested for possession of controlled dangerous substances in August 1992, for which she was incarcerated for thirty days and put on probation for two years.

A.M. maintained monthly visits with the child except for the time she was incarcerated on the drug charges. While in jail, A.M. met with a new caseworker and affirmed her desire to cooperate with DYFS and regain custody of her son. After her release, A.M. completed a twenty-eight day drug rehabilitation program and has fulfilled the requirements of an intensive outpatient program, including weekly drug screenings which had at the time of trial proved negative. After rehabilitation, she obtained an apartment in Bergen County and has attended parenting classes.

Visits between the child and mother continued and were increased under the supervision of both Passaic and Bergen Counties' DYFS case workers, and in March 1993, overnight visitations were instituted. Plaintiffs, however, believed such visits should have been introduced more gradually. They contended that the child was having nightmares and exhibited violent behavior shortly after the overnight visits began. They then had A. evaluated by three psychologists who noted signs of psychological trauma and suggested that transfer of the child not be immediate. They also hired a private investigator to observe A.M., but the only possibly

damaging information that was gathered concerned her boyfriend.*fn1

Before the mother's rehabilitation, the Passaic County Child Placement Review Board, aware of the difficulties that the mother was having with drugs, determined that the child could not be returned pending Board review. In December 1992, DYFS' Adoption Resource Center rejected parental termination, since the mother had made progress. In January 1993, the Board extended the goal of reunification with the mother for three more months, and finally on March 29, 1993, the Board approved DYFS' plan for reunification with the mother. The order to that effect was entered on April 19, 1993. A.M. then rescinded her voluntary placement agreement, and DYFS agreed to a reunification date of April 30, 1993. A psychological evaluation by DYFS' psychologist, Dr. R. Silikovitz, supported the reunification plan, including counselling for all parties. A.M. and DYFS executed the final case plan on April 27, 1993.

On April 30, 1993, the date of the scheduled return of the child to the mother, the foster parents made an application for an order

to show cause to stay the transfer of the child. The stated object of the stay was not for termination, but for a gradual return of the child to the mother. The stay was granted, a law guardian was appointed, and discovery was denied, although the DYFS case file was later supplied to plaintiffs.

Although there was some Discussion concerning the foster parents' standing, Judge Passero determined to hold summary hearings in May 1993. He then ordered continued counselling for the mother and an evaluation by a psychologist who would make a recommendation to the court concerning a schedule for reunification. All parties entered into an interim consent order on July 1, 1993. The order left DYFS with legal custody of A. and physical custody with the foster parents. Various conditions were placed on the mother.

A court appointed expert, Dr. Dyer, evaluated all parties and made a final report stating that the transfer would be traumatic and harmful to A. but should not be prolonged if the court determined it should occur. He also felt that the mother was making a "solid beginning in her process of recovery, although she was in need of parenting skills training."

In July 1993, plaintiffs amended their complaint to include counts for guardianship, termination of parental rights, and custody or adoption. They based their complaint on the bonding associated with A.'s two years of living with plaintiffs, the special needs of the child, and the drug history and lack of parental skills of the mother. Their standing was again challenged.

During the ensuing hearings, the opposing sides differed on the interaction between the child and the mother. There is caseworker and other testimony that the child was comfortable with his mother and that she had a positive attitude towards the child. Her drug counselor testified that A.M. was doing well in recovery. E.F. testified, however, to physical and emotional problems when the child returned from overnight visits.

Dr. Dyer again opined that the separation trauma would cause irreversible harm to the child should he be removed from the foster parents. He recognized, however, that the mother displayed positive parenting. Another expert disagreed that there would necessarily be permanent harm to the child if there was appropriate therapy. After several other witnesses and exhibits over a total of ten days of trial, the court rendered a decision on September 16, 1993.

Judge Passero determined that (1) the foster parents did not have standing, (2) if there was standing, they did not prove their case by clear and convincing evidence under the standard of New Jersey Division of Youth & Family Serv. v. A.W., 103 N.J. 591, 512 A.2d 438 (1986) and the applicable statutes, (3) reunification was to be accomplished on September 19, 1993 with visitation allowed with the foster parents if deemed appropriate, and (4) certain conditions were to be followed by the mother.

The foster parents' stay application was denied by this court on September 17, 1993, and the mother and son were reunited on September 19, 1993 after the mother had been drug free for eleven months. At the time of reunification, the child had lived with the foster parents for over two and one-half years and was thirty three months old. Defendants allege that A.M. has fully complied with all court orders and that all reports concerning her relationship with the child are positive. DYFS has not yet returned legal custody to the mother due to the pendency of the appeal. The mother and A. continue to live together.*fn2 After a conference in chambers on December 10, 1993 concerning the inability of the foster parents and the mother to work out visitation,

the Judge ordered therapy for the child and recommended it for the adults. Visitation ...

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