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In re Guardianship of J.N.H.

June 26, 2002

IN THE MATTER OF THE GUARDIANSHIP OF J.N.H., A MINOR.


On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

were terminated in 1998 as a result of her inability to overcome her drug and alcohol addictions and to provide a safe home. C.H. contends that her circumstances and those of Jesse have changed dramatically in the four years since 1998, and that because no adoption has occurred, the trial court erred in denying her motion to set aside the termination judgment under Rule 4:50-1(e).

DYFS first became aware of C.H. in November 1988 when it received a referral from a California Social Services Agency reporting that C.H.'s oldest son, Jeremy had tested positive for cocaine at birth. C.H. did not cooperate with California authorities before she left for New Jersey. Concerned for Jeremy and the child with whom C.H. was then pregnant, the California Agency requested courtesy supervision of the minor and quarterly reports. DYFS visited C.H., who had married the father of the child she was carrying. When C.H. cooperated with the investigation and submitted to drug screening, DYFS concluded that the home was appropriate for Jeremy. C.H. gave birth to Benjamin on May 18, 1989. Jesse was born in February 1994.

After receiving reports that C.H. was using drugs, a DYFS worker visited C.H.'s residence on April 3, 1995. C.H. was uncooperative, stated she was being evicted, and would not allow the caseworker to enter the house. On April 11, 1995, a caseworker made an unannounced visit to C.H.'s mother's residence, where C.H. and her children had been relocated. C.H. admitted she had been arrested with G.L., Jesse's father, and pled guilty to selling drugs. She was sentenced to serve 30 weekends in jail. Her two older children stayed with her mother on weekends, and Jesse went to a babysitter.

On June 15, 1995, C.H. telephoned the Absecon Police Department requesting that they pick up her children from school because C.H. had had an accident. Neighbors informed police that C.H. frequented drug houses and left Jesse alone on occasions. A caseworker interviewed C.H.'s mother, who stated her daughter was still using drugs but trying to quit and that she needed a drug rehabilitation program. The mother stated she would be able to care for the two older children, but she could not care for Jesse. In July 1995, C.H. requested that Jesse be put in foster care, and Jesse was placed in a foster home.

Upon completion of her jail time, C.H. underwent random drug tests and attended narcotics anonymous and alcoholics anonymous meetings three times a week. She rented a two-bedroom apartment, was receiving AFDC, and earning money working as a massage therapist. Jesse was returned to C.H.'s care in September 1995.

In April 1996, local police charged C.H. with child endangerment for leaving Jesse home alone and unsupervised. Jesse received emergency foster home placement, and DYFS filed a complaint against C.H. alleging abuse and neglect. A trial court entered an order placing Jesse in the care of DYFS. C.H. and her other children were allowed bi-weekly visits with Jesse. Because of complaints by the foster mother about Jesse's behavior, he was moved from his original foster care family to his current foster home in June 1996.

In September 1996, the caseworker advised C.H. that she was not following the court-ordered case plan to work towards reunification with Jesse. The caseworker informed C.H. that she needed to have a drug and alcohol evaluation, a psychological examination, and submit to random drug tests. In a series of random drug tests, C.H. tested positive for cocaine. DYFS sought to enroll C.H. in an in-patient substance abuse program, but C.H. failed to appear as scheduled. Her drug use continued.

As a result of C.H.'s long-term noncompliance with the court's orders, Jesse was transferred to the Adoption Resource Center Unit in August 1997. C.H. was incarcerated from September 1997 to March 1998 for violating probation. In December 1997, DYFS filed an action seeking to terminate C.H.'s parental rights. At the time of the trial in September 1998, Jesse was three and one-half years old and resided with his foster parents. His siblings, Jeremy and Benjamin, aged ten and nine respectively, resided with C.H.'s mother.

DYFS caseworkers testified that C.H.'s inability to overcome her drug dependency and Jesse's need for a permanent, stable living environment, required termination of C.H.'s parental rights. DYFS represented that Jesse's foster parents had expressed an interest in adopting him and providing a stable, loving home. The DYFS expert in clinical psychology testified that C.H. had a very strong dependence on drugs and alcohol, and concluded that with her profile, long-term abstinence was unlikely. He also predicted that severance of C.H.'s parental relationship would have a minimal effect on Jesse's well being, in part because Jesse had been out of C.H.'s care for so long. The DYFS expert testified that Jesse would suffer significant emotional harm if the bond with his foster parents were broken. He acknowledged that the foster parents had informed him that if they adopted Jesse, they would not want ongoing contact with Jesse's birth family.

C.H. testified that she had been sober since her incarceration in September 1997, and, on her release from prison in March 1998, she re-enrolled in an intensive outpatient substance abuse program. None of her drug screens had shown up positive. In addition, she was employed full-time at a Pizza Hut, although one-quarter of her paycheck went to pay off fines. C.H. stated that she wanted to have Jesse back when she could afford an apartment, which she estimated could occur in six months. Her psychological expert testified that it was premature to terminate C.H.'s parental rights in light of the positive signs that she was effectively dealing with her addiction. The expert also predicted that Jesse would suffer emotional turmoil if his ties to C.H. and his siblings were cut off.

The trial court rendered a decision terminating C.H.'s parental rights on October 26, 1998. The court noted C.H.'s history of drug addiction and the fact that Jesse had been in foster care for more than half of his life. It relied heavily on the testimony of the DYFS expert, finding his testimony to be more credible than that of C.H.'s expert. The court concluded that C.H.'s expert accepted at face value that C.H. had changed without plausible explanation.

C.H. was allowed to visit with Jesse for the last time on November 27, 1998. Her attorney filed a notice of appeal from the decision terminating her parental rights. However, DYFS and the Public Defender argued over which agency was responsible for the costs of transcripts, and the appeal was dismissed for lack of prosecution in February 2000. Although the appeal was reinstated, it was dismissed again in July 2000 when C.H.'s attorney failed to file the brief in a timely manner. C.H. did not learn about the dismissal until February 14, 2001.

Since the termination decision, DYFS has continued to monitor Jesse's adjustment and growth. In February 1999, it reported that he was a "hyper child." On two occasions in 1999, the foster family did not take him on a family vacation and DYFS was required to find a temporary placement. A DYFS caseworker also described Jesse as emotionally needy and emotionally rigid, and stated that he had anger management issues.

C.H. retained new counsel and on April 24, 2001, she filed a motion pursuant to Rule 4:50 to vacate the judgment terminating C.H.'s parental rights. Jesse was seven years old at the time. C.H.'s criminal sentencing judge submitted a certification noting C.H.'s improvement since sentencing. He commented that she demonstrated an abiding commitment to the maintenance of her sobriety. Her family therapist concluded that there was no reason to assume that C.H. could not adequately parent. C.H.'s employer of eight months described her as a fit, loving, and responsible mother. C.H. certified that she had been drug and alcohol free since her incarceration in September of 1997, had regained custody of her two older children, who were doing extremely well, and had steady employment. In addition, she claimed Jesse was deteriorating in his foster home. C.H. attributed this deterioration to Jesse's foster family and the decision to terminate her parental rights.

DYFS argued in opposition to the motion that moving Jesse from his foster home would damage him irreparably and that there was no indication his problems were attributable to his relationship with his foster parents. Jesse's guardian ad litem agreed. The trial court acknowledged C.H.'s assertions of her progress and stated that if the 2001 information was available in 1998 the outcome might have been different. Nonetheless, it concluded that the termination decision was the right decision at the time based on the evidence presented, and denied the motion.

C.H. filed motions in the Appellate Division to vacate the July 2000 dismissal of her appeal and to stay Jesse's adoption proceedings, which were granted. She also filed a notice of appeal from the decision denying her Rule 4:50 motion. Both appeals were consolidated and affirmed in a brief opinion on December 5, 2001. The Supreme Court granted C.H.'s petition for certification, limited to the application of Rule 4:50.

HELD: The trial court did not have sufficient evidence before it to decide the Rule 4:50 motion. An updated psychological evaluation of Jesse is required. And, in light of what has occurred in the interim, there should be a reassessment of the expert reports on which the original judgment of termination was based.

1. A court may relieve a party from a final judgment or order if it is no longer equitable for the order or judgment to be given prospective application or for any other reason justifying relief from the operation of the judgment or order. R. 4:50-1(e) and (f). Relief under these subsections is available only when truly exceptional circumstances are present. Among the factors to be considered are the extent of the delay in making the application, the underlying reason or cause, the fault or blamelessness of the litigant, and any prejudice that would accrue to the other party. There is nothing in the language of Rule 4:50 that would preclude its applicability to a termination of parental rights case. The need to achieve equity and justice always is balanced against the state's legitimate interest in the finality of judgments. In a parental termination case, there is an additional weight in the balance: the notion that stability and permanency for the child are paramount. (Pp. 41-45)

2. C.H. was blameless for the delay in challenging the 1998 termination judgment. She produced evidence that since that judgment, she literally had turned her life around and that her two other sons were thriving. All parties agreed that Jesse was not doing as well as had been hoped. Nonetheless, the trial court continued to believe the 1998 testimony of the DYFS expert. Given the evidence presented by C.H. in her Rule 4:50 motion, the DYFS expert should have been recalled and questioned about whether C.H.'s rehabilitation would alter his original view. Of greater concern is the fact that, although Jesse's present emotional condition and his connections with the parties is the pivotal issue in the case, the court refused an updated evaluation of him. Jesse's emotional status and condition required reevaluation by experts before the Rule 4:50 motion was decided. C.H.'s willingness to allow Jesse to sustain a relationship with the foster family is of significance, given the foster family's refusal to permit contact between James and his birth family as a condition of adoption. In short, C.H. presented a case warranting further evaluation. The remand should be completed and an opinion rendered within 120 days. (Pp. 45-51)

3. Despite C.H.'s unrebutted evidence of her own rehabilitation, if there had been no suggestion that Jesse was experiencing problems, the Court would not likely have interfered with the trial court's decision on the Rule 4:50 motion. It is only an abiding concern for Jesse's long-term well-being and the Court's reservation in respect of whether termination will do more harm than good in these circumstances that impels the continuation of these proceedings. (Pp. 51-52)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law Division for further proceedings consistent with this opinion. Jurisdiction is retained.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Long, J.

Argued April 29, 2002

C.H. is a mother whose parental rights in respect of her son Jesse, were terminated in 1998 as a result of her inability to overcome her drug and alcohol addictions and provide a safe home for him. She challenges a trial court order that denied

her motion, made pursuant to Rule 4:50, to set aside the termination judgment. She contends that her circumstances and those of Jesse have changed dramatically in the four years since her rights were terminated, and that because no adoption has occurred the trial court erred in concluding that those changes did not warrant relief from the judgment under Rule 4:50-1(e) and (f). Because we have concluded that the record provided an inadequate basis on which to determine the motion, we reverse and remand the case to the trial court for further proceedings, the details of which are delineated below.

I.

DYFS became aware of C.H. in November of 1988 when it received a referral from a California Social Services Agency reporting that C.H.'s son, Jeremy, had been declared a dependent child because he tested positive for cocaine at birth. C.H. did not cooperate and tested positive for cocaine before she left California for New Jersey. Concerned for Jeremy and the child with whom C.H. was then pregnant, the California Agency requested "courtesy supervision of the minor and quarterly reports" on C.H.'s progress.

DYFS followed up with a visit. C.H. had married M.P., the father of the child she was carrying. Because C.H. cooperated with its investigation, including drug screening, and expressed regret about her past history, DYFS concluded that the home was appropriate for Jeremy and that he would do well in C.H.'s care. Benjamin was born on May 18, 1989.

In May of 1992, the family left New Jersey for California. Shortly thereafter, C.H. returned with her children and moved in with another man, G.L. Jesse was born in February of 1994. On January 13, 1995, when Jesse was almost a year old, DYFS received a referral from a friend of C.H. He reported that she was using and selling drugs out of her home; that she yelled and hit the children and had no patience for them; that they were inappropriately dressed for cold weather, and that the baby, Jesse, was sick but had not been taken to the doctor. The results of the DYFS investigation showed that Jesse had received medical attention for an ear infection and that the teachers at school had not noted any problems or concerns for the two older children except that they often seemed hungry. DYFS concluded that intervention was not needed at that time.

On March 10, 1995, DYFS received another referral, that time from a Family Practice physician, who reported that C.H. had failed to bring Jesse in for three follow-up appointments to treat an acute ear infection. When she finally returned with Jesse, the doctor reported that he was concerned that she would not follow up with another of Jesse's medical ailments but that the child was better. At that visit, the doctor confronted C.H. concerning her appearance because he suspected that she was using drugs. C.H. became angry and "stormed around the office."

A DYFS caseworker visited C.H.'s residence on April 3, 1995. C.H. was uncooperative and informed the worker that she was being evicted. The worker was not permitted to enter the house. On April 11, 1995, a caseworker made an unannounced visit to C.H.'s mother's residence where C.H. and her children had relocated. C.H. admitted to the caseworker that she had been arrested with Jesse's father, G.L. and had recently pled guilty to selling drugs. C.H. was sentenced to thirty weekends in jail on the drug charges. While she served her sentence on the weekends, her mother watched her two older children and Jesse went to a babysitter.

On June 15, 1995, DYFS received another referral from a Detective in the Absecon Police Department. C.H. had telephoned the police requesting that they pick up her children from school because she had been in an "accident." The police had also been informed by neighbors and the landlord that C.H. frequented "drug houses"; that she left Jesse home alone on several occasions; and that when she had enlisted the neighbors' help to watch him, had not returned as promised.

A caseworker interviewed C.H.'s mother, F.H., who stated that her daughter was still using drugs but trying to quit and needed a drug rehabilitation program. C.H.'s mother reported that her bedroom door had been "kicked in" by C.H. and that she had stolen money from her mother who intended to obtain a restraining order against her. The mother informed DYFS that she would be able to care for the two older children, but that she was unable to care for Jesse. Thereafter, more reports were received by DYFS that the children had been found home alone.

On July 7, 1995, C.H. requested that Jesse be put in foster care because there was no one to look after him while she served her weekend jail term. She signed a Foster Home Placement Agreement and Jesse was placed in a foster home on the same day. C.H. periodically contacted DYFS to inform the agency of her status. Caseworkers checked on Jesse in his foster home and noted that he was doing well. On August 7, 1995, Jesse was allowed to visit with his mother and brothers and the caseworker reported that the visit was successful.

On August 16, 1995, C.H. told DYFS that she was residing with a friend and that she wanted Jesse to return to her care upon the completion of her sentence. She was informed that she would need to obtain a stable place to live and be drug and alcohol free in order for Jesse to be returned. When she completed her jail time, C.H. was required to undergo random drug tests and attend Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings three times per week. She told DYFS that she was ready for Jesse's return.

On September 6, 1995, a caseworker visited C.H. at her newly rented two bedroom apartment which was noted to be "very clean." Another DYFS report indicated that C.H. would be getting help from her local church, receiving AFDC, and earning money by working as a massage therapist. C.H. expressed that she "absolutely wants Jesse home."

After C.H. tested negative for drugs, Jesse was returned to her care on September 8, 1995. In December of that year, C.H. was reporting to probation, attending NA meetings, and the caseworker reported that Jesse "looked great" and was "bright and cheerful." DYFS determined that the family no longer needed its services because Jesse was doing well in his mother's care.

Nevertheless, on April 2, 1996, DYFS received a report that C.H. had left Jesse alone for over an hour and that C.H. was abusing drugs and had left her children in the care of people who were also abusing drugs. On April 10, 1996, a report was received from the Brigantine Police Department that Jesse had been left home alone. When the police arrived they found Jesse alone and asleep in the apartment. The neighbors reported that C.H. was out buying drugs. At that time, there was also an outstanding criminal warrant for her arrest. The police observed that the home was messy, but that Jesse appeared clean and healthy. They took the child into custody and then returned to the residence to wait for C.H. The police charged C.H. with child endangerment.

The DYFS caseworker spoke to C.H. while she was in lock-up. She was "very cooperative and easy to communicate with" and told the caseworker that she had left Jesse with her landlord Mark, who she had asked to baby-sit. The landlord had admitted to being drunk all day and did not recall being asked to baby-sit for Jesse.

Jesse received an emergency foster home placement pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30, without a Court Order. DYFS filed a complaint against C.H. alleging abuse and neglect. On April 11, 1996, the trial court entered an Order placing Jesse in the care, custody and supervision of DYFS.

When C.H. was released from jail, she immediately requested a visit with Jesse. The visit was scheduled for April 19, 1996. C.H. was twenty-five minutes late and the caseworker noted that her eyes were bloodshot. However, the "visit went very well." The caseworker suggested to C.H. that she seek employment, move out of the motel she was staying in, and find an apartment. In the meantime, C.H. was allowed bi-weekly visits with Jesse. Upon review, the court continued Jesse in the care, custody, and supervision of DYFS and ordered C.H. to accept a referral to the Robin's Nest Family Ties Program (Family Ties), cooperate, follow the recommendations of the staff, submit to drug and alcohol evaluations, including random urine screens, and submit to a psychological evaluation.

Because of complaints by the foster mother about Jesse's behavior, Jesse was moved from his original foster care family to his current foster home in June of 1996. The caseworker reported that Jesse was "adjusting very well" to his new surroundings and observed Jesse "playing appropriately with the other children." C.H. and her other children continued to visit Jesse.

In the meantime, services were provided to C.H. through Family Ties, a therapeutic visitation program, with the intention of ultimately reunifying Jesse with her. Family Ties was responsible for taking Jesse to visit his mother once a week for two hours at C.H.'s mother's residence. The program also addressed C.H.'s alcohol and drug problems, parenting skills, lack of employment and stable housing, and her relationships with her mother and new boyfriend R.N. Stephanie Reel was the family's caseworker from Family Ties.

Thereafter, DYFS received a telephone call from Art Howell, who identified himself as a friend of C.H. He reported that C.H. had asked him to baby-sit her two older children because her mother was out of town. She left for two days and, on her return to pick up the children, he caught her smoking crack in his bathroom. C.H.'s mother also advised DYFS ...


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