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In re Adoption of a Child

July 21, 1998


Judges Dreier, Paul G. Levy and Wecker.

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

Argued January 6, 1998

This case turns on an issue last addressed by our Supreme Court In re Guardianship of J.C., 129 N.J. 1, 608 A.2d 1312 (1992), and its companion case, In re Guardianship of K.L.F., 129 N.J. 32, 608 A.2d 1327 (1992), as well as by this court in In re Guardianship of J.T., 269 N.J.Super. 172, 634 A.2d 1361 (App.Div.1993). That issue is whether A.R., an almost nine-year- old *fn1 girl with neurological deficits, developmental delays, and learning disorders, having bonded with her foster parents of seven years who seek her adoption, is likely to suffer serious and substantial harm if she is removed from their custody and returned to her biological mother, harm sufficient to warrant the termination of that mother's parental rights. The issue arises in the context of a proposed private adoption. The foster and proposed adoptive mother, J.S., is a cousin of the biological mother, M.R. M.R. voluntarily placed A.R. with J.S. and her husband, P.S., when M.R. realized that she could not care for A.R. or her older brother, C.B., *fn2 and needed in-patient rehabilitation from her long-term addiction to alcohol and other substances.

After several days of testimony on the termination of parental rights issue, the trial judge expressed frankly and with sensitivity his concerns about the long history of the court's involvement with this child; his recognition of her complete bonding with J.S. and P.S. and their three older children; her remarkable progress under their care and nurturing and in the face of her serious deficits; as well as M.R.'s record of rehabilitation as an alcoholic. After concluding that M.R. had not abandoned A.R. in the sense of "a willful or purposeful refutation of parental responsibility," and that therefore "the evidence here falls short of establishing, by clear and convincing evidence, that the parental rights of [M.R.] should be terminated," the judge nevertheless followed the guidance of J.T., 269 N.J.Super. at 191, 634 A.2d 1361, and determined that reunification with the biological parent "should not automatically follow dismissal of the termination complaint because 'the potential harm to [the child] if she is separated from her foster mother' could not be ignored." He dismissed the foster parents' complaint for adoption and ordered D.Y.F.S. to develop a plan for reunification, but denied M.R.'s application for unsupervised and increased visitation.

[1] While we commend the judge for his sensitivity and concern for all of the parties, we conclude that his interpretation of the standards governing this termination case was unnecessarily restrictive. In particular, we conclude that J.C. not only permits but requires a determination "whether [A.R. has] bonded with [her] foster parents and if so whether breaking such bonds would cause [A.R.] serious psychological or emotional harm. " J.C., supra, 129 N.J. at 25, 608 A.2d 1312 (emphasis added). We therefore reverse the judgment dismissing the adoption complaint and denying the application to terminate M.R.'s parental rights, and remand for a bonding evaluation, in accordance with J.C., focusing on the likely harm to A.R. if she is separated from J.S. and P.S., and M.R.'s likely ability to counter such harm.

A.R. was born on April 24, 1988, to defendant M.R. and D.B. *fn3 M.R. and D.B. had an older child, a boy, C.B. born in December 1984. They never married, and their relationship, marked by incidents of domestic violence, ended before A.R. was born.

On August 4, 1989, M.R. voluntary placed both fifteen-month-old A.R. and four- and-one-half-year-old C.B. with the Division of Youth and Family Services (DYFS) in Union County, where M.R. resided. A.R. was first placed with an unrelated foster family. However, seventeen days later, on August 21, A.R. was transferred to M.R.'s first cousin, J.S., and her husband, P.S. M.R. requested that A.R. be placed with her cousin, preferring that A.R. be with a family member rather than with strangers. The voluntary transfer was precipitated by the fact that M.R. had been abusing drugs and alcohol for some time, was often drunk, and admittedly had been neglecting both children. M.R.'s inconsistent drug and alcohol rehabilitation efforts had not been successful up to that point. There is no dispute that at the time A.R. was placed with J.S. and P.S., she had significant neurological deficits, was developmentally delayed, and showed many signs of emotional if not physical neglect. She has required special interventions and educational assistance from the earliest age to date, and will likely always have special needs.

C.B. was placed in foster care with a friend and neighbor of M.R., with whom he has remained. M.R. has only supervised visitation with C.B., now a fourteen-year-old boy with more serious disabilities than A.R. We are told that M.R.'s application for custody of C.B. is in abeyance in Union County pending the outcome of this case.

The history of A.R.'s involvement with the judicial system is lengthy. On January 2, 1990, a family court judge in Passaic County *fn4 (where J.S. and P.S. reside) awarded temporary custody of A.R. to J.S. and P.S., with liberal but supervised visitation for M.R. The trial judge noted that "it was clearly intended that there be family reunification. And at the very least, a hearing with regard to that." On January 25, 1990, another judge ordered that the matter be reviewed in one year. In June 1990, however, two orders were entered with regard to visitation, with the case to be relisted for a hearing in one year. The same custody arrangement and visitation were reconfirmed in a June 1991 order. Still another judge was assigned to the case in October, 1991. He ordered additional reports and evaluations. In June 1992 and again in September of that year, the judge reviewed the case and fixed visitation rights at one-and-one-half hours each week, to take place at J.S. and P.S.'s home and under their supervision. Another judge reviewed the case in October 1992 and ordered that custody continue in accordance "with the placement plan currently in effect."

A review of the case in April 1993 resulted in expansion of visitation to two hours each Thursday evening and four hours on one Saturday afternoon each month, all under the supervision of M.R.'s in-laws. In June, August, and October of 1993, the case was again reviewed. The October order provided that DYFS "is to initiate less restrictions regarding phone contact" between M.R. and A.R. The "goal of reunification" was restated in both the June and August orders.

Subsequent orders in May and July 1994 continued the same terms, with DYFS directed to "consider having [A.R. and C.B.] attend the learning disabilities class with their mother and step-father [given by] Phyllis Taistra [of the] Verona Public Schools." The May order, captioned as most of the orders "Concerning Placement Under the Child Placement Review Act N.J.S.A. 30:4C-50 et seq.," recommends "a summary hearing for a determination and the identification of a permanency plan [ ]" and ordered the case worker for each child to be present.

Throughout the period of the above-described orders, none of which were ever appealed, M.R. regularly maintained contact with the DYFS offices, never abandoning her efforts to regain custody of the child. From the initial placement in 1989 to the end of 1994, DYFS shared this goal of reunification, at least on paper. However, although DYFS was required to take steps to accomplish this, including getting M.R. into a program for controlling her substance abuse, M.R. contends that the agency did little if anything to accomplish this goal. Nevertheless, M.R. provided DYFS with evidence of attendance at outpatient follow-up to her 28-day rehabilitation, negative urine screens throughout 1992, and attendance at AA/NA meetings throughout that year. There is no evidence that M.R. has taken up drinking or other substance abuse since.

With one exception, M.R. was apparently unrepresented at the custody reviews. Also with one exception, either M.R. or her husband appeared at each review. Nevertheless, she was never able to persuade the court to increase her visitation significantly, or to make it unsupervised. The following exchange at trial is noteworthy:

[PLAINTIFF'S COUNSEL:] Q. [M.R.], you've been in Court, numerous times, in Passaic County trying to regain custody of your child, is that correct?

[DEFENDANT:] A. Correct.

Q: And each time, you were not only denied custody, you were denied unsupervised visitation, is that correct?

A: I didn't ask for unsupervised visitation.

Q: You didn't want unsupervised visitation with your daughter?

A: Well, I ask [sic] for visitation. And that's the way Judge Scancarella set it up. And since I--my family is there anyway always, you know, because I think it's nice for the children to be at--not only for her to see her brother, but her cousins. They're there anyway. They would be invited anyway. I didn't fight it. Let's put it that way. I didn't fight it. I wanted weekends, but I didn't get--I didn't get that. [emphasis added.]

J.S. and P.S. filed their adoption complaint on January 5, 1995. At the initial hearing, the family court judge ordered that A.R. was a ward of the court, and granted custody to J.S. and P.S. After defendant filed her objection to the adoption, counsel was appointed for her, and a law guardian was appointed for the child. M.R. filed an answer and counterclaim, objecting to the adoption and demanding that custody of A.R. be returned to her.

The case then was transferred to the judge who tried the case, and who denied M.R.'s motion to dismiss the complaint for lack of standing. He noted that although J.S. and P.S. would not have had standing to initiate an adoption complaint under N.J.S.A. 30:4C-15, dealing with petitions for termination of parental rights initiated by DYFS rather than by a private party, this case involved the voluntary placement of a child with relatives, and J.S. and P.S. therefore had standing to initiate an adoption complaint under Title 9. On this appeal, M.R. does not challenge J.S. and P.S.'s standing to bring the action.

The case was tried over five days between January 13 and January 27, 1997. In an oral opinion on February 28, the trial judge dismissed the adoption complaint, but continued custody with J.S. and P.S., and denied additional visitation, thus denying M.R.'s counterclaim. DYFS was ordered to "develop a plan for reunification" and report back to the court.

This appeal followed. M.R. has not filed a cross-appeal from the denial of custody. The foster parents requested a stay of those provisions of the court's order dealing with the plan of reunification, based on the contention that attempts at reunification would "cause irreparable emotional and psychological harm" to the child. The trial judge denied the request, but we granted a stay pending the outcome of this appeal.

[Details of M.R.'s substance abuse and inability to care for her very young children, preceding her voluntary transfer of custody, have been omitted for purposes of publication.] The following facts appear from the evidence at trial. M.R. eventually requested that DYFS provide assistance so that she could go into a short, inpatient detoxification program at Elizabeth General Hospital. After M.R. completed the program, C.B. was returned to her. However, she was unable to remain sober, and needed a longer in-patient program. In the interim she began a more intensive out-patient program at Union Hospital, known as Genesis, while she waited for admission to the in-patient rehabilitation program at Runnells Hospital.

On August 4, 1989, after a DYFS caseworker found M.R. unable to care for the children, C.B. was voluntarily placed with a neighbor, and A.R. was placed in foster care. M.R. was advised by the DYFS worker that because she sought help voluntarily, she would get her children back as long as she could remain clean and sober.

While in the Elizabeth General Hospital detox program, M.R. contacted J.S., her first cousin, telling her that A.R. had been placed with another foster family, but that she would be more comfortable if A.R. could stay with a relative. J.S. agreed to take the child, and A.R. was placed with P.S. and J.S. on August 21, 1989. M.R. signed a voluntary placement agreement with DYFS, the original goal being reunification of the child with M.R. P.S. and J.S.'s understanding at that time was that they would take care of A.R. until DYFS said it was fine for A.R. to go home, and they would bring her back to M.R. at that time.

When A.R. first came to P.S. and J.S., it was apparent that she was failing to thrive and had substantial developmental delays in all areas of functioning. The cause of A.R.'s deficits are unclear, although they are consistent with fetal alcohol syndrome or fetal drug exposure, as well as inadequate parenting during her first year. M.R. denies substance abuse during her pregnancy. Soon after A.R.'s placement with them, P.S. and J.S. took A.R. to a pediatrician, a neurologist, and then various developmental specialists, continuing to follow up in all areas. In September 1989, P.S. and J.S. took A.R. to see Dr. Aparna Mallik, a neuro-developmental pediatrician with the Child Developmental Center at St. Joseph's Hospital, for a complete developmental evaluation. P.S. and J.S. also enrolled A.R. in a special education program, where she continued for two years, in order to address her developmental delays and neurological impairments. During that time A.R. worked at the child center with several teachers specializing in learning disabilities, as well as physical, speech and occupational therapists.

When A.R. was three years old, P.S. and J.S. enrolled her in a pre-school handicapped program, which she attended on a daily basis. At five years of age, P.S. and J.S. had A.R. reevaluated, at which time it was determined that she should be enrolled in a special education kindergarten. Since the first grade, A.R. has been enrolled in special education classes for perceptually and neurologically impaired children, and has been monitored and evaluated regularly by the township public schools' child study team. J.S. and P.S. have had A.R. evaluated on a regular basis by physicians, psychologists and educational specialists, to ensure that she receives the appropriate care she requires.

A.R. apparently is functioning at a higher level than expected, given her condition at the time of her placement with J.S. and P.S. By all accounts they have provided exceptional parenting, and A.R. has also received unusual care and attention from their three teenage children, whom A.R. describes as her brothers and sister. Despite her progress, there is little doubt that A.R. is a child who continues to have very special needs, and has neurological disorders which cause her to tire easily and to have difficulty studying. A.R. is in continuing need of speech, language and occupational therapy. J.S. testified that it has been three times more difficult raising A.R. than it was raising her other three children, but her devotion and love for the child were apparent to the trial judge. There is no question about the quality of parenting A.R. receives from J.S. and P.S. and their family.

Continuing with M.R.'s history, after the initial court hearing in January 1990, M.R. voluntarily entered a twenty-eight day, in-patient rehabilitation program at John Runnells Hospital. She successfully completed the program, where she met her present husband, T.W. Immediately upon completion of the program, defendant enrolled in an out-patient program at Genesis, with meetings every night from 6:00 p.m. to 10:00 p.m. and a three to four hour session with a counselor on Saturday or Sunday.

The defendant married T.W. on February 24, 1991. She attended NA and AA meetings with him, and evidence of their attendance in 1992 was provided to DYFS. T.W. also completed the treatment program at Genesis, and they attended a Genesis couples' group together. M.R. also completed a parenting skills training class, along with T.W., in May 1992.

At the time of trial, M.R. was a forty-seven year old woman with a chronic history of alcohol and prescription drug abuse. There is no evidence that M.R. has returned to any substance abuse since her entry into rehabilitation. M.R.'s husband, T.W., is a thirty-three year old man with an equally if not more serious history of substance abuse, as well as bipolar disorder for which he must take lithium on a regular basis. There is some evidence of relapses by T.W. M.R. does not work, but is enrolled in school to train for a job in the computer field. She described T.W. as a self-employed mechanic. M.R.'s visitation history has involved T.W., his parents, and to a lesser extent his sisters. The trial judge noted M.R.'s supportive in-law family, but did not address the question of how M.R.'s apparent dependence on her husband's family should affect potential reunification with A.R.

At trial, the only expert who testified was Dr. Martha Page, a clinical psychologist, whose testimony was offered by J.S. and P.S. Dr. Page testified that she had evaluated A.R. on nine occasions between 1991 and December 1996. Dr. Page found that A.R. suffered from "developmental lags," but that J.S. and P.S. were offering her appropriate care and stimulation to counteract these lags. Specifically, Dr. Page found A.R. was functioning well below her age level in communication, personal care, motor skills, and interpersonal skills, and was neurologically impaired. She also said that despite the good care A.R. was receiving from J.S. and P.S., she continued to have difficulties learning, communicating, and comprehending complex concepts. According to Dr. Page, A.R. would continue to need special education and the encouragement of her foster parents and siblings.

Based on A.R.'s relationship with J.S. and P.S. and her attitudes toward M.R., Dr. Page concurred with the view that to remove A.R. from J.S. and P.S.'s home would result in harmful consequences to the child. She opined throughout the course of her involvement with A.R. that adoption would be appropriate so she might have "consistency and stability." For the child to continue to make progress, Dr. Page said she would require "super parenting," although even that was no guarantee of success. Dr. Page noted that after seven years of visitation with M.R., A.R.'s attitude toward M.R. showed that she felt no "ties to the biological mother," whereas she was bonded to J.S. and P.S. just as if they were her parents. In fact, Dr. Page said A.R. had not even bonded to M.R. as a child might to an aunt, nor did she have any bond with C.B., her natural brother. Although she personally had never done a psychological evaluation of M.R., based on the reports she saw in the DYFS files, Dr. Page concluded that M.R. lacked the necessary "super parenting" skills to raise A.R., and A.R. would suffer if taken out of her present home. In sum, she concluded that because of A.R.'s special needs, M.R. lacked the appropriate abilities to successfully remedy A.R.'s problems, including the likely trauma of separation from J.S. and P.S. and their children.

The Supreme Court has described Dr. Page's adherence to a theory of child development that "children [are] highly vulnerable and fragile" and that bonding with a parent figure is crucial. See J.C., supra, 129 N.J. at 19, 608 A.2d 1312. As the court points out, there are psychologists who are critical of this theory, on the ground that it "overestimates the importance of continuity in care" relative to other factors affecting child development. Id. at 20, 608 A.2d 1312.

The DYFS caseworker who testified, Judith Gerson, had limited personal knowledge of the parties, having taken over A.R.'s case only in 1995. Her testimony largely was to describe numerous reports and records contained in DYFS's files with respect to A.R.'s progress, including the five-year-old December 23, 1992, report of another psychologist, Dr. Frank J. Dyer. Dr. Dyer's evaluation and report were provided to DYFS at its request, and contained an assessment of M.R., her husband, T.W., as well as the children, A.R. and C.B. Dr. Dyer found each child's IQ to be in the mildly retarded range. In assessing M.R. and her husband, Dr. Dyer concluded at the end of 1992:

[M.R.] appears to be adequately established in her program of recovery. She is in adequate contact with reality and is functioning within the average range intellectually. She displays the immaturity, dependency, and egocentricity associated with a histrionic personality disorder. While this client requires further counseling to work on these characteristics, she does not suffer from any psychological defect that would categorically exclude her as a candidate for parenting her two children. Further, [M.R.] appears to have an adequate grasp of the special needs of both children. There is some question, however, as to whether she is presently capable of attending to those needs as conscientiously as are their present caretakers.

[T.W.] is an immature, dependant individual with chronic substance abuse problems. His most recent episode of dangerous behavior is particularly disturbing, as it represents a very severe regression in adaptive ego functioning and was the third such episode to which the subject admits. At the present time [T.W.] has found stable employment in a skilled trade and appears to be drug free. He will continue to require vigilant monitoring, with random urinalysis, in order to guard against the possibility of a relapse into drug abuse, with its dangerous behavioral consequences. He also requires continuing psychiatric care for medication monitoring. This should be supplemented by psychotherapy focusing on development of autonomy, impulse control, and relapse prevention. He is presently capable of relating to [M.R.]'s children in an appropriate and affectionate manner. When drug free, [T.W.] is capable of functioning as a secondary caretaker for them.

Both [C.R. and A.R.] are seriously handicapped children who require structure, stability, stimulation, and a higher than normal quality of care and supervision. Both children have a positive emotional connection to their respective caretakers.

Clearly [A.R.] is bonded to her foster mother, whom she regards as her central love object and attachment figure. While [C.R.] is also attached to his foster mother, he also has ...

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