On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this appeal, the Court revisits the issue recently addressed in New Jersey Division of Youth and Family Services v. M.M.,
On this appeal we revisit the issue that we recently addressed in New Jersey Division of Youth and Family Services v. M.M., 189 N.J. 261 (2007): When may a parent be subjected to the termination of her parental rights for failing to eliminate harm to the child posed by her spouse?
The parties in this parental termination action are Gloria Lynch and her daughter Mary Jane Carleton whose father is Gloria's husband Ted Carleton.*fn1 Ted and Gloria were also the parents of an older son, Isaac, whose death focused the court's attention on the family. Gloria, who lives with a son from a previous relationship, is an accountant with a full-time job at a company in New York City. She also has pastoral duties at her church.
The case arose in March 2002 when Isaac, an infant, died under suspicious circumstances. At the time, Ted was home alone caring for Isaac. When the infant experienced respiratory failure, Ted claimed that he panicked and tried to call Gloria on her cell phone, but was not able to get through to her. He failed to call anyone else for medical assistance and waited for her to return home. When she arrived, Gloria immediately called 911. The operator contacted the paramedics and instructed Gloria to perform cardiopulmonary resuscitation (CPR) on her lifeless son. Thereafter, paramedics arrived and also attempted CPR on Isaac before taking him to Trinitas Hospital in Elizabeth. Later that same day, he was transferred to the Pediatric Intensive Care Unit at Newark Beth Israel Hospital where he was placed on ventilator support. A few days later, he died of his injuries.
After Isaac's death, the hospital explained to Ted and Gloria, as well as to the New Jersey Division of Youth and Family Services (DYFS), that the infant displayed signs of Shaken Baby Syndrome (SBS), including retinal hemorrhages and cerebral edema. The final autopsy report indicated that Isaac died from SBS. Investigators suspected Ted of having caused the infant's injuries, but he denied culpability. Subsequently, Ted was indicted for second-degree manslaughter and third-degree endangering the welfare of a child.
While the criminal proceeding against Ted was pending, Gloria became pregnant with another child. When DYFS learned of Gloria's pregnancy in early 2003, it decided to keep the case open for ongoing supervision. Mary Jane was born in May of 2003. At that time, Gloria and Ted had been living apart for several months. Although Gloria was not convinced that Ted had shaken Isaac to death, she agreed to submit to any restrictions DYFS imposed to maintain custody of Mary Jane. Those restrictions included a prohibition against Ted having unsupervised visitation with Mary Jane and Gloria's agreement to meet with a caseworker, participate in counseling, attend a parenting skills course, and undergo a psychological evaluation. The treatment summary following her counseling sessions noted that Gloria's progress was positive. That expert concluded that Gloria would not risk harming Mary Jane and recommended a psychiatric evaluation and psychotherapy to help her deal with the loss of her son and her husband.
Gloria complied with those recommendations. She underwent a psychiatric evaluation and became involved in therapy despite a reluctance to do so because of her belief that her spiritual community provided all the support she needed. Her therapist diagnosed her with post-traumatic stress disorder and recommended continued therapy to address emotional issues that had arisen as a result of her son's death. Gloria followed those recommendations in an effort to demonstrate to DYFS her commitment to Mary Jane. Further, although Ted had been present at the birth and seen Mary Jane at the hospital, after a number of unannounced visits, it was apparent to DYFS that Gloria had ceased cohabiting with Ted and that she had never allowed Ted unsupervised visitations with Mary Jane.
However, according to DYFS, Gloria continued to express her belief that Ted did not shake Isaac, but instead was guilty of failing to call for help. On that basis, in July 2003, DYFS filed a verified complaint seeking to place Mary Jane under its care, custody, and supervision due to concern that Gloria would provide Ted access to the infant. Nothing in the complaint suggested that Gloria had ever done so. Rather, the complaint was rooted in the notion that if Gloria believed in Ted, she could not be trusted to keep Mary Jane safe. The trial judge ultimately ordered Mary Jane to be placed under the care, custody, and supervision of DYFS, and directed Gloria to submit to further psychiatric evaluations and to participate in counseling to provide a risk assessment regarding reunification.
Mary Jane was placed in the home of her godparents, and later was transferred to the home of another relative. Gloria continued throughout the proceedings to represent that she would never allow Ted unsupervised visitation with Mary Jane and that she would cooperate in every way with DYFS to achieve reunification with her daughter.
DYFS's goal throughout the process was to reunite Gloria and Mary Jane. Indeed, as late as the summer of 2004, DYFS sought reunification, provided it was permitted to stay involved with the family through family counseling, parental problem-solving skills courses, and stress management assistance. At that time, DYFS made special note of the fact that Gloria had complied with every one of its requests and recommended that family preservation services be implemented. As part of those recommendations, DYFS arranged another psychological evaluation to ascertain Gloria's parenting skills.
Over the next several months, Gloria complied with all of the requirements imposed on her for the specific purpose of reunification with her daughter. She remained candid and stoic throughout the therapy process despite her continuing belief that her religious life provided all the therapy she needed and her view that the process was overly intrusive. She expressed her demoralization over the fact that she could not live under the same roof as her husband and her daughter, but said she found the strength to cope through her faith.
The result of that evaluation, as with those previous, was that the psychologist recommended that Gloria be permitted to raise her child. Despite his unease regarding Gloria's hesitation at confiding in strangers and her unwillingness to publicly declare her husband guilty of the homicide of their infant son, the psychologist found Gloria to be an able mother and recommended that she and Mary Jane be reunited provided Gloria continued psychotherapy and the family remain under DYFS supervision for at least six months.
The trial judge disagreed. After submission of the newest psychological evaluation which supported reunification, the judge ordered DYFS to devise a new permanency plan because she found that reunification was not in the best interests of Mary Jane. The judge was concerned that Mary Jane would be at risk because Gloria refused to acknowledge that Ted shook their infant son to death. The judge was particularly bothered because Gloria advanced her own theory of Ted's guilt --- that his ...