Argued January 21, l998 - Decided February 20, 1998
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County.
Before Judges Pressler, Conley and Carchman.
The opinion of the court was delivered by: Conley, J.A.D.
This appeal arises in the unfortunate and, we fear, not uncommon setting of a drug-addicted parent who, during the first four years of her child's life and despite extensive drug programs offered through the auspices of the Division of Youth and Family Services (DYFS), has not been able to overcome her addiction to the satisfaction of DYFS. As a result, while permitted visitations with her child, she has never become a custodial parent and the child has bonded with her foster parents who now want to adopt her. DYFS' application to terminate parental rights so as to free the child for the adoption was successful. *fn1 Because, given the existing law and the practicalities of the adoption procedure, termination and adoption effectively severs forever the child's biological relationships, *fn2 what this termination proceeding ultimately may present is the choice of maintaining those relationships with continued foster care on the one hand, and the perceived need for "permanency and stability" in the form of freeing K.O. for adoption on the other. The choice is made particularly difficult because the adoptive parents have no legal obligation to ensure that K.O.'s contacts with her biological family, including her grandmother and brother with whom she has had a significant relationship, continue.
It is a choice that, we think, implicates primarily the first and fourth prong of the "best interests" test of N.J.S.A. 30:4C-15.1(a) and New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-05 (1986). In this respect, we are convinced the record before us is insufficient to demonstrate clearly and convincingly that B.S.'s unsuccessful efforts to overcome her drug problem, thus leaving her child in foster care, have yet reached the level of unremediable parental harm, and that termination of B.S.'s parental rights, and thus K.O.'s biological ties, will not do more harm than good. Were there an evidential basis before us for concluding, clearly and convincingly, that K.O.'s best interests require familial closure now, we of course would affirm the termination. Quite simply, there is not.
The essential facts are easily depicted. During her pregnancy with K.O., not to mention thereafter, B.S. used drugs. K.O. was born on August 31, 1993 with a cleft palate, respiratory problems and addicted to heroin. B.S., occasionally, lives with her mother, O.S., who cares for B.S.'s other child, J.S. When O.S. advised DYFS that she could not care for the newborn, B.S. agreed to a temporary foster home for K.O.
K.O. was discharged from the hospital on September 29, 1993 into the care of her foster parents with whom she has lived ever since. It is undisputed by all that K.O. has bonded with her foster parents, and has thrived in their care. It is also undisputed that though B.S. has entered a number of drug treatment programs, she did not complete many and none have been successful. Moreover, although she has maintained visits with K.O., the visitations have not always been as scheduled or on a regular basis. It is somewhat unclear from the record exactly how many visits there were. According to DYFS' psychologist, Dr. Chorost, who did not testify at the termination trial but whose reports were put in evidence, the foster mother told him that there might have been a total of thirty visits over a three year period. During the termination hearing, there was some mention of 82 out of 84 scheduled visits. The caseworkers' records, however, do not support these figures. In any event, the caseworker who testified at the termination proceeding admitted that many of the missed visitations were not B.S.'s fault. We have the distinct sense that, at least after DYFS determined adoption by the foster parents was preferable to reunification, DYFS was less than diligent in promoting any continued relationship between K.O. and her biological family.
In any event, it is clear that while K.O. has "bonded" with her foster parents, calling them "Mom" and "Dad," she as well has a good relationship with her mother. The January 2, 1997 report of Dr. Chorost reflects that she refers to B.S. as her "friend" or her "Mom." The record also reflects that K.O. views herself as having "two Mommies." Moreover, and just as importantly, the record reflects that B.S. has an extended family, including her other child, J.S., and her mother, O.S. These are K.O.'s biological brother and grandmother, with whom K.O. had a positive relationship, at least while visitations were occurring in O.S.'s home where J.S. resides.
DYFS filed its complaint for termination on August 7, 1996. On January 2, 1997, Dr. Chorost submitted his report in which he depicts the results of his psychological evaluations of B.S. and K.O. The report reflects a full awareness of B.S.'s drug addiction and her persistent drug treatment efforts since the birth of K.O. The report also reflects the doctor's awareness that, as of January 2, 1997, those efforts had been unsuccessful, largely as a result of B.S.'s inability to regularly attend the various programs or to follow through with what was required. Thus, Dr. Chorost concluded in his January 2, 1997 report that while his testing and evaluation revealed no "significant thinking or emotional disorder which would impair [B.S.'s] parenting ability[,]" her "admitted chronic and as yet unresolved drug use problem call out for caution. . . ." But he did not recommend terminating the parental relationship. Rather, his caution was related to immediate reunification. In this respect, he opined that "er history of incomplete treatments for the drug dependency and her pattern of missed appointments with [K.O.] and other Division appointments give this examiner no confidence in recommending to the Court that [B.S.] is now ready to take full and responsible care of [K.O.]." Dr. Chorost also observed the psychological bonding between K.O. and the foster parents. His opinion was that K.O. would not be harmed by a continuation of the foster care situation, but said:
for the long term, this examiner recommends to the Court that visits between K.O. and B.S. be increased in frequency and duration in preparation for an eventual return to the natural mother when the latter can demonstrate a stable social and drug free life style. The child gives evidence that, although she has a history of initial stranger anxiety, she has a good resilience in adapting to change and is able to establish and maintain healthy secondary relationships. There is also no evidence to suggest that K.O. now presents a "special needs" situation. With these factors in mind and within the limits of psychological certainty, K.O. should be able to adjust to her natural mother if she is afforded the opportunity for a closer interaction with her and if she perceives a cooperative relationship between the two women who seem to love her.
Although adversaries in the custody issue, both B.S. and [the foster mother] have expressed a genuine respect for each other and an interest in keeping in touch with each other in the future. In light of this positive mutual relationship it would be in K.O.'s best interests to promote the child's sense of continuity with both of these caring and significant adults.
The evident thrust of the State's expert's opinion is that continued relationships with both B.S. and the foster parents would not be harmful to K.O., indeed would be beneficial, but with the primary goal still being reunification with B.S. This opinion was expressed in light of a full disclosure of B.S.'s drug problem, and her deficiencies and inabilities in handling that problem. Yet, inexplicably, on March 13, 1997, four days before the trial and after DYFS notified him that B.S. had tested positive for drugs on February 24, 1997, not a surprising fact, Dr. Chorost faxed to the Deputy Attorney General (DAG) a handwritten note that says in toto:
Please be advised that I am in receipt of your March 12th fax memo of the results of the urine drug screen submitted by B.S. on February 24, 1997. The findings were positive for both cocaine and opiates and B.S.'s behavior reportedly gave the examiner an impression that she was "nodding from heroin."
As noted in my report of January 2, 1997 ". . . the admitted chronic and as yet unresolved drug use problem call for caution before giving B.S. a clean bill and allowing the natural mother to receive primary custody of her children."
The recent findings add strongly to my reticence to recommend a return of the children to B.S. The natural mother has perpetuated a behavioral pattern which impels toward a recommendation that the children be freed for adoption.
Thus, whereas as of January 2, 1997, Dr. Chorost had recommended continuation of K.O.'s biological relationships, suddenly just four days before trial and in response to the DAG's tip of continued drug use, the doctor did an about-face, now recommending severance of those ties. But the "behavioral pattern" "perpetuated" by B.S. was no better or worse on March 13 than it was on January 2. We are left to wonder what had so substantially changed to justify the doctor's sudden change.
Naturally, we would have expected that with such a change of professional opinion, Dr. Chorost would have been called by DYFS to testify. He was not. The only witnesses at trial were the current DYFS caseworker, who essentially provided the background information, and the law guardian that had been appointed for K.O. and who attested to the loving and caring home environment provided K.O. in her foster home. Interestingly, he offered no factual observations as to K.O.'s relationship with B.S. or with her grandmother and natural brother. The entire DYFS caseworker file, of course, was admitted into evidence, as was Dr. Chorost's January 2, 1997 report and his handwritten March 13, 1997 fax addendum. This forms the entire record upon which B.S.'s parental rights, and thus K.O.'s biological ties, were severed. Much more is needed. E.g., In the Matter of the Guardianship of J.C., 129 N.J. 1, 22 (1992). Cf. Kinsella v. Kinsella, 150 N.J. 276, 318-19 (1997).
Termination of the biological ties was sought here under the "best interests" of the child test as set forth in N.J.S.A. 30:4C-15.1(a). Both the Legislature and the Supreme Court, however, have made clear that termination of these ties, even under the best interests rubric, requires clear and convincing evidence of the following:
(1) The child's health and development have been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm . . . .;
(3) The division has made diligent efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-05 (1986); New Jersey Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 262 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied sub nom. Kliewer v. New Jersey, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990) ("`t is clear that a `best interests' determination is never sufficient to terminate parental rights; the statutory criteria must be proved.'" (quoting In the Matter of Baby M., 109 N.J. 396, 428-29 (1988)). And see A.W., supra, 103 N.J. at 603 ("the `best interests' of a child can never mean the better interests of the child."). This is so because:
The right of a parent to enjoy a relationship with his or her child is considered fundamental, and is constitutionally protected. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Termination of parental rights -- in contrast to the loss of custody of one's children -- permanently severs the relationship between children and their biological parents. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 762-64, 102 S. Ct. 1388, 1399-1400, 71 L. Ed. 2d 599, 612-13 (1982), has evaluated the evidentiary standard to be applied in termination proceedings, and held that the constitutional concern for the parental interest is heightened by a combination of factors. Those factors include the nature of this fundamental right, the permanency of the threatened loss, the complexity and subjectivity involved in evaluating parental fitness.
[In the Matter of the Adoption of Children by L.A.S., 134 N.J. 127, 132-33 (1993).]
All doubts must be resolved against termination of the biological ties. Id. at 133; In the Matter of the Adoption of ...