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In re Guardianship of DMH

March 06, 1998


Submitted February 10, 1998

Before Judges Conley, Wallace and Carchman.

The opinion of the court was delivered by: Conley, J.A.D.

L.R., the biological father of two of four children involved in this guardianship matter, appeals the termination of his parental rights on the grounds of abandonment. We reverse.

All four children have the same biological mother, K.H., who died in October 1995. In addition to L.R., who is the father of C.H. (now seven years old) and R.H. (now four years old), the Division of Youth and Family Services' complaint for guardianship sought to terminate the parental rights of J.M., the father of D.H. (now eleven), and of L.W., father of L.H. (now six years old). *fn1

When D.H. was five and C.H. was one, DYFS became involved with the family when L.H. was born in September 1991. At that time the hospital reported to DYFS that both mother and child had tested positive for cocaine and opiates. K.H. was referred to a detoxification program and after DYFS confirmed that she was attending a drug program, L.H. was released to the care of his maternal grandmother, with whom K.H. lived, along with her two other children, D.H. and C.H., and one or two other family members in a two-room apartment. Upon a home visit, the apartment was found to be overcrowded and K.H. with her children were referred to the Elizabeth Housing Authority.

In June 1993, when R.H. was born, K.H. again tested positive for drugs, this time heroin, as did R.H. Apparently the family was still living with the maternal grandmother. DYFS determined the conditions were "deplorable" and overcrowded and would not permit R.H. to live there. After an unsuccessful effort to locate alternative placements with family members, not including L.R., *fn2 on June 22, 1993 K.H. signed a voluntary foster home placement agreement for R.H. and he was placed in a foster home. DYFS learned of L.R.'s relationship with the children on November 18, 1993, when he came with K.H. during a visit. *fn3 At that time, he told the caseworker he was the father of C.H. and R.H., but that he wanted to care for all four of the children. It was his testimony during the termination hearing that from 1990 to the foster care placement of the children in 1993 he had daily contact with the family, living in the same motel, and supplying their daily needs. This testimony was not countered by anything in the record. At the time he told the caseworker in November 1993 that he wanted to be considered for placement of the children, his living accommodations (a one-room apartment) were not then sufficient, and his job as a caretaker for the aging owner of the Smith Cadillac dealership, at which he was earning $180 a week, "wasn't secure." He had no family relatives to help care for the children.

C.H. and L.H. were placed in foster care on November 24, 1993. Initially they were placed in the same home as R.H. but were later moved to their present foster home. R.H. was also moved from the initial placement to his present foster home. D.H., the oldest and most troubled of the children, apparently has been in several foster homes and, just prior to the termination proceeding, was placed in a "teaching family home." *fn4

What is at the crux of this appeal is the undisputed fact that at no time did DYFS ever consider L.R. as a viable prospective caretaker and at no time did it ever develop any plans for reunification of the children with him. The following evidence is illustrative.

The primary concern of the caseworker in November and December 1993 when L.R. told DYFS he wanted to care for the children was his housing. A contemporaneous case note at that time states "`[L.R.] said although he is the father for [C.H. and R.H.] only, he would like to care for all the children but he does not have a permanent address at this time. He would like the Division to assist him and [K.H.] in finding an apartment. I told [L.R.] that we cannot find them apartment. . . .'"

It was, then, made clear to L.R. in November and December 1993, that his living accommodations were not adequate. So, on December 3, 1993, he went to the DYFS office with an application for an apartment in Elizabeth and requested a letter from DYFS stating that the children were going to be returned to him, in order to help him secure the apartment. He was told "we don't provide such letters until the children are placed with him." "A Catch 22 situation for some people; isn't it?", was the apt observation made by the trial Judge. Additionally, while one of the DYFS caseworkers asserted that before considering L.R. for reunification a drug evaluation would have been performed, given some medical history showing prior drug use, it was admitted that such an evaluation was not requested of L.R. because reunification with him was never contemplated. This despite the drug treatment, homemaker, day care and shelter assistance offered K.H.

The most DYFS did for L.R. was to refer him to Legal Services, and told him that because of instances of domestic violence on the part of K.H. towards him, he would have to obtain a restraining order before placement of the children with him could be considered. He did obtain a restraining order. He also went to Legal Services, but was told nothing could be done for him.

L.R. testified during the termination proceeding that he "asked was there any kind of program or assistance that I could get. Being that I could not financially provide for them is there some kind of program that I could get involved with in which - similar to what they had approached [K.H.] with and where that it would be possible where I could get an apartment and to be able to investigate child care procedures, . . . day care procedures, schooling procedures and I did make attempts for that, yes." He was consistently told there was nothing DYFS could do to assist him.

From 1993 to July 1995, the children remained in their respective foster homes with reunification with K.H. still the goal of DYFS. Throughout the three years, L.R. maintained consistent contact with the children, attending almost every bimonthly visitation that was scheduled. As described by one of the caseworkers "[L.R.] took an active role in participating in the visits . . . I saw him at a regular basis . . . he had a lot of contact with all of the family - with all of the children."

The years of L.R.'s involvement has established a strong relationship between not only C.H. and R.H., but L.H. as well. *fn5 This is reflected by the May 30, 1996 psychological bonding report of DYFS's psychologist, Dr. Wells. The report describes Dr. Wells' observations of the interaction between L.R. and these children in the following manner:

The children arrived prior to [L.R.], although he was on time for his scheduled appointment. Upon seeing him, [C.H.], [R.H.], and [L.H.], half-sibling to [L.R.'s] children, ran to him, hugging and kissing him. Referring to him as daddy, it was apparent that they were mutually happy to see each other. [L.R.] arrived to the visit with snacks including individual beverages for each of the three children and a large bag of potato chips which he stated to the children had been purchased the day prior and refrigerated to make sure they were cold for them.

From the onset, it was apparent that [L.R.] had come prepared to visit with not only his biological children, but [L.H.] as well, who at no point did differentiate or show an unfavorable response. The interactions were pleasant with all three of the children overly demonstrating their enthusiasm in visiting with him. [L.R.] brought bubbles to the evaluation which immediately occupied the children's attention and focus. He showed them how to blow bubbles, gave each child a turn, and excitedly praised the child for the effort in attempting to blow a bubble.

[C.H.] made and maintained good eye contact with [L.R.] who talked to each child individually, looking at them while he spoke. He unreluctantly sat on the floor with the children, laughing, eating snacks, and blowing bubbles. There was an ease in relating with the activity being fun. The children sat in close proximity with him, each within touching distance. [L.R.] made physical contact with each child, none of who pulled back or seemed to be uncomfortable with him touching them.

Relating positively to all three children, [L.R.] asked [C.H.] about her performance in school and spoke of activities and situations from earlier visits. Stating to them that he was glad to see them, [L.R.] related that he informed other employees at his job, "I'm going across the street to see my babies. I don't have time. I flew across the street."

Although [C.H.], the oldest child and most mature, attempted to determine how her brothers should respond, it was clear that [L.R.] was the adult figure structuring the visit. He complimented the children on their hair, showed them pictures from his wallet of themselves including a picture of their oldest sibling, [D.H.], and asked them questions pertinent to their live (sic) about school, holidays, activities, and church. The interaction was natural, pleasant, and easygoing. The children were focused, calm, and interacted without confusion or conflict. They played nicely together, showing consideration and sharing of the activities and snacks.

There was no indication at any time that all three children were not raised in the same household, although [R.H.] resides in an independent foster home. Each child called [L.R.] daddy, a title he did not reject. He referred to them as his children, calling [L.H.] "Vonnie" a name he did not reject or show anger when [L.R.] called him. (It is noted that [L.H.] verbalized opposition to this name when his biological father had referred to him as Vonnie earlier during a bonding evaluation with him. While he had corrected his biological father, no correction [was made] when [L.R.] referenced this name.)

Twice during the evaluation juice was spilled, initially by [L.H.] and then by [R.H.]. [L.R.] responded immediately to cleaning up the spilled beverage and then poured some from his bottle to replace his juice. [L.R.] was kind and non-critical, never overly angry, but merely placed a bag over the wet area so the children would not get wet. He then resumed the conversation, asking, "what did you do for Easter?"

At one point during the evaluation [C.H.] attempted to speak negatively about [L.H.'s] biological father, questioning "[L.H.], why you Daddy didn't bring no goodies?" [L.H.] replied "my daddy?" Seeming to realize that discomfort was about to occur, [L.R.] interjected, "because he knew daddy [L.R] would bring some. Whose your daddy? [asked to [L.H.]]" Without waiting for a response, [L.R.] stated, "me. All of you mine."

During her trial testimony, Dr. Wells described the relationship she observed between L.R. and the three children as "marvelous." The May 30, 1996 report concludes not only that the children were bonded to L.R., but that they saw him as a parental figure, and that he, for his part, treated them in a positive parental fashion. This is a fair reading of the following "clinical impressions[:]"

[L.R.] promoted a loving, nurturing, and considerate environment among the children and with himself. At no point was he observed to be inappropriate, unkind, or show partiality to any of the children. It was apparent that he had planned for the visit and was excited to see the children.

Similar to [L.R.'s] enthusiasm relative to visiting with the children, immediately upon seeing him, each child overly showed their delight. It was apparent that [C.H., R.H. and L.H.] were pleased to see him. Moreover, the bond between [L.R.] and the children was indicative of a father relating to his children and vice versa. The children were respectful of the adult-child division and responded to [L.R.] in an appropriate manner.

[Emphasis added.]

Nonetheless, Dr. Wells concluded in her report that:

Although it is noted by the present examiner that a positive and mutual bond exists between [L.R.] and the children, no support can be given for him to secure care and custody of the children as he lacks the wherewithal to care for their day-to-day needs.

The basis for Dr. Wells' ultimate Conclusion that, while the children were bonded to L.R., they should not be reunited with him because he "lacks the wherewithal to care" for them, seems to be her May 24, 1996 psychological evaluation of L.R. There are several troublesome aspects of that report. Part of the "relevant background information" contained in the report is a reference to prior hospitalizations of L.R. at the psychiatric unit of the Elizabeth General Medical Center, the most recent admission having been April 25 to 28, 1994 during which he was diagnosed with schizoaffective disorder, organic mood disorder, and opioid dependence. This history of psychiatric episodes seems to have played some role in the doctor's assessment of L.R. L.R. referred to those past periodic hospitalizations as "rest periods" and the record reflects that they seem to have related to his relationship with K.H., who was abusive to him. There is nothing in the record to suggest that whatever may have been L.R.'s psychiatric problems they affected his relationship with the children. Neither was there any evidence as of the date of the termination hearing in October 1996 that he had had any recurrence of the April 1994 episode. And the doctor's "behavioral observations" of L.R. reflected no underlying pathological or behavioral defects. As her report reads:

[L.R.] arrived early for his scheduled appointment, and patiently waited for the evaluator who was a half hour late. He was dressed in a vest and dress pants along with a tie. He presented as polite, cooperative, and seemed to recognize the social contexts of the evaluation. [L.R.] spoke candidly of his personal and interpersonal relationship with [K.H]. There was an idealized manner in which he perceived his relationship with her, stating that they had plans to secure a living environment where all four of the children could reside. This objective seemed to have gained greater momentum for him in light of [K.H.'s] death, although [L.R.] was not clear as to how he could proceed.

Appearing older than his stated age, [L.R.] was cooperative with the demands of the evaluation, responded to all questions posed of him during both the clinical interview and test protocol portion of this evaluation. His responses to the questions posed were relevant and goal-directed. No evidence of a thought disorder or a major affective disorder were elicited. He made and maintained good eye contact; did not overtly present features of anxiety, and established rapport with relative ease. Concerns relative to clarity of speech, intonation, or enunciation were not identified. Substance abuse or features typically associated with substance abuse was not noted. Although not formally assessed for intellectual capabilities, [L.R.'s] cognitive functioning is speculated to be within the average.

Presenting in a candid and frank manner, [L.R.] freely shared information about his relationship with the examiner, seeming to be pleased with the opportunity to discuss [K.H.] and the children. Although he was aware that termination of his parental rights to [C.H.] and [R.H.] were being pursued, [L.R.] shared plans for all of the children. Establishing that these two children were his only blood relatives, [L.R.] discussed his intention to not only pursue care and custody of [C.H.] and [R.H.], but to acquire the same for [D.H.] and [L.H.]. At no point during the evaluation did [L.R.] waver in his desire to secure care ...

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