On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-31-98.
Before Judges Havey, A.A. Rodriguez and Wells.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The law guardian, on behalf of S.M., a minor, appeals from a judgment dated March 27, 2002: (1) awarding the Division of Youth and Family Services (Division) legal custody of S.M.; (2) awarding physical custody of S.M. to S.F., her great aunt; and (3) terminating S.M.'s weekend visitation with her foster parents, M.P. and E.P. On appeal, the law guardian argues that the trial judge: (1) violated the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. § 672-679, by rejecting the Division's initial permanency plan "without good cause," and by not complying with the time strictures of the act; (2) committed reversible error by applying the "serious and enduring harm" standard, rather than the "best interests" test; (3) erred by applying the presumption which favors placement of a child with relatives; and (4) failed to consider S.M.'s emotional distress or her "somatic or behavioral problems."
We condense the extensive procedural history and the Division's involvement with S.M. and her family for the purpose of addressing the law guardian's contentions. On July 24, 1998, M.F. gave birth to S.M. *fn1 The Division already had custody of M.F.'s son, B.F., born on August 22, 1995. Because of reports of abuse, the Division had filed a Title 9 action on November 26, 1997, charging M.F. with abuse and neglect, and by order also dated November 26, 1997, the trial judge awarded legal custody of B.F. to the Division.
In August 1998, B.F. was returned to M.F.'s custody with the Division's consent. However, on January 19, 2000, the trial judge granted the Division's application to remove both S.M. and B.F. from M.F.'s custody, finding that M.F. had failed to bring the children to day care, failed to obtain medical treatment for S.M., and had permitted the children to reside in M.F.'s grandmother's house which, the judge observed, was "not the greatest environment." The children were initially placed in an emergency shelter and ultimately, on February 23, 2000, placed in the custody of foster parents, M.P. and E.P. During a March 2, 2000 case management conference it was reported that B.F. had been acting violently toward his foster mother. The judge directed M.F. to provide him with a list of relatives who may be willing to take custody of the children. The judge also denied the law guardian's application for a permanency hearing pursuant to N.J.S.A. 30:4C-61.2, finding that the children were not sufficiently adapted to their new placement to warrant such a hearing.
Dr. Charles F. Martinson, a court-appointed psychologist, conducted two evaluations of M.F. and in reports dated April 4, 2000 and June 23, 2000, concluded that M.F. was not presently, or in the near future, capable of caring for the children. On April 14, 2000, B.F. was accepted into a therapeutic foster-care program because of his continuing violent behavior.
During therapy sessions, M.F. expressed a desire that S.M. be placed with S.F., S.M.'s maternal great aunt. On May 10, 2000, the Child Placement Review Board recommended either the children's reunification with their biological parents or termination of parental rights, followed by adoption. The trial judge accepted these recommendations. On May 18, 2000, the judge denied the law guardian's second application for a permanency hearing.
On May 31, 2000, S.F. indicated a willingness to care for both children. S.F. was a single parent with two children, a homeowner, and employed as a certified medical assistant earning $38,000 a year. In July 2000, a case worker with The Children's Home Society reported that S.F. could not be recommended as a viable placement for the children because S.F. failed to recognize B.F.'s violent behavioral characteristics or M.F.'s inability to provide adequate parenting.
On July 31, 2000, M.F. gave birth to a son, M.M., Jr. By order dated August 4, 2000, the trial judge awarded physical custody of M.M., Jr. to S.F., subject to the Division's supervision. By report dated October 2, 2000, Dr. Martinson advised the Division that: it would be clinically unwise to place either of these two children [S.M. and B.F.] with [S.F.] at this time. I say this out of respect for the children's current placement and the emotional difficulties each would sustain if their respective placements were disrupted at this time. My recommendation is not made because I feel that [S.F.'s] parenting skills are wanting or out of any suspicion for her motives. Indeed, in my discussion with [S.F.], I was persuaded that she has greater insight into [M.F.'s] shortcomings as a parent and into the emotional needs of [S.M.] and [B.F.]. However, I do feel that [B.F.] continues to display symptoms of serious psychopathology and that his emotional needs are unlikely to be met outside of the specialized setting where he now resides. The record indicates that [S.M.] had made enormous emotional progress in her current foster placement although that progress has been painstakingly slow. My clinical sense is that substantial erosion of those clinical gains can be expected if [S.M.] must now transition to a new residential placement. On January 4, 2001, the trial judge ordered the Division to arrange for supervised visitation between S.F., S.M. and S.M.'s foster parents to determine whether S.M. could handle the transition to S.F.'s care and custody. On February 2, 2001, the Division filed its first permanency plan. It recommended that the children be adopted by their respective care givers, namely S.M. by the foster parents, M.M., Jr. by S.F., and B.F. by his therapeutic foster parents. The law guardian concurred with this plan. During a permanency hearing conducted on February 6, 2001, the trial judge rejected the Division's plan. He expressed concern regarding S.M., observing: [S.F.] came before this Court . . . [in] July, [or] early August . . . [when S.M. had] . . . only been in this foster placement for approximately nine months. Had the Division acted with some deliberation . . . the emotional . . . problems that she would suffer would've been somewhat lessened. I've got a real concern that there hasn't been any efforts to keep [S.M.] with her sibling [M.M., Jr.], and with the maternal aunt [S.F.].
I have some real concerns that the Division hasn't done all that it should've done to make it happen. Instead, they've taken the comfortable position of leaving the child in foster care for over eight or nine months
The judge then directed the Division to modify its plan to include concurrent planning with the maternal aunt (S.F.), and further ordered that no termination complaint could be filed for six months.
Additional reports were received by the trial judge from Dr. Martinson and Dr. Alan S. Gordon, the parties' mental health professional, addressing the effect of removing S.M. from her foster parents, and the benefits of S.M. residing with her younger brother, M.M., Jr., and S.F. After S.M.'s four weekend visitations with S.F., Dr. Gordon reported that S.M. "would have little difficulty living with [S.F.]. She is certainly bonded to her." During a status conference conducted on August 22, 2001, the Division agreed with Dr. Gordon that S.M. was capable of making the transition from foster care to S.F.'s custody. The foster parents objected, expressing concern for S.M.'s ...