On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FG-09-248-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 10, 2007
Before Judges Cuff, Lisa and Simonelli.
D.B. is the mother of six boys between the ages of four and eighteen. D.B. and the law guardian for J.S.B. and J.J.B. appeal from an order terminating D.B.'s parental rights to both children, who are mentally retarded.*fn2 She and the law guardian contend that the Division of Youth and Family Services (DYFS) failed to prove by clear and convincing evidence that D.B. cannot eliminate harm to the boys and provide a safe and stable home for them and that termination will not do more harm than good. The law guardian urges that the court has effectively made these boys legal orphans. We agree with the arguments presented by D.B. and the law guardian as to J.S.B. and reverse the order terminating D.B.'s parental rights to J.S.B. As to J.J.B., we remand for reconsideration of the termination order.
The subjects of the August 18, 2006 order of guardianship are J.S.B., born on December 23, 1996, and J.J.B., born on June 15, 2000. J.S.B., almost eleven, has been diagnosed with mild to moderate mental retardation with significant language delays and has resided at Devereux Kanner Center (Devereux), a residential treatment center in West Chester, Pennsylvania, since July 28, 2003. J.J.B., seven years old, has been diagnosed with Down syndrome and moderate mental retardation. He has resided in the same DYFS-approved special home service provider since April 2005. The permanency plan for both boys is select home adoption.
DYFS received approximately eighteen referrals with allegations of child neglect regarding D.B. and her family between June 27, 1991 and July 15, 2003. The reports generally concerned lack of supervision, filthy living conditions, and domestic violence between D.B. and T.B., the father of all but the oldest child. DYFS also received allegations of substance (alcohol, marijuana and cocaine) use and abuse by both parents.
A DYFS worker responding to the July 12, 1995 referral found the house in Cliffside Park in which D.B., T.B., and the two boys lived was "filthy, uninhabitable with urine and feces everywhere." The following day, the fire administrator noted that the residence had two inoperable smoke detectors and a "questionable amount of alcoholic beverage containers within and outside of the structure." The fire administrator also reported that the "careless storage of household contents and garbage" could potentially start a fire within the home. Neglect was substantiated and R.A.B. and T.J.B.*fn3 were removed from the care of D.B. and placed in foster care. That same date, D.B. and T.B. signed a foster home placement agreement regarding the two boys. On August 9, 1995, the two boys were returned to D.B. after she obtained adequate housing and agreed to adhere to a DYFS case plan.
Despite many referrals and home inspections, neglect was not substantiated again until October 8, 2002, and none of the children were removed until June 24, 2003. On September 26, 2002, however, DYFS obtained a court order because D.B. refused entry into her apartment. Following a hearing on October 4, 2002, D.B. was ordered to comply with all recommendations made by DYFS. On October 8, 2002, the worker visited D.B.'s home and found the apartment to be clean and orderly. The worker spoke with D.B. again about R.A.B., then thirteen; T.J.B., then seven; and J.S.B., then six, not being enrolled in school. D.B. informed the caseworker that the children were on "home instruction." D.B. was unable to show the caseworker school books or a curriculum and educational neglect was substantiated because the children were school age and not registered.
On February 4, 2003, the North Bergen Board of Education (Board of Education) contacted D.B. because she had failed to register R.A.B., T.J.B. and J.S.B. for school. In the letter, the Board of Education also stated they were aware that D.B. had a three year old son, J.J.B., diagnosed with Down syndrome and offered to discuss placement for him in a preschool with children of similar disabilities.
On March 14, 2003, the DYFS caseworker contacted D.B.'s pediatrician, who informed her that the children had not been seen in his office for several years. The doctor also confirmed that he had never examined then two and one-half year old J.J.B. The DYFS worker also discovered that D.B. and her children were not patients of the health center.
On May 30, 2003, DYFS received a referral from a caller who stated that thirteen year old R.A.B. came to stay at her home two days prior. On June 2, 2003, the DYFS worker spoke with R.A.B., who explained that he had decided to stay at the friend's home. The worker also spoke with D.B., who denied excluding R.A.B. from her home. The principal of R.A.B.'s school informed the worker that the school would be taking R.A.B. and D.B. to court for R.A.B.'s truancy issues. Neglect was not substantiated; however, the case remained open by DYFS for supervision.
On June 17, 2003, the Guttenberg Police Department reported that R.A.B. was found sleeping on a sidewalk vent grate around midnight. R.A.B. was brought to police headquarters and stated that he had been walking the streets since 8 a.m. the previous day. The police reported that they were concerned because D.B. did not report her son missing. D.B. later asserted that she attempted to file a missing persons complaint over the telephone but was told the complaint could only be filed in person. Neglect was substantiated by DYFS.
On June 20, 2003, DYFS received a referral from Palisades General Hospital that D.B., who had used the name of her paramour when admitted into the hospital, had just given birth to a baby boy and both mother and infant tested positive for cocaine. When questioned by the assigned DYFS caseworker, D.B. suggested the exposure was caused by having been with friends who smoked crack-cocaine while she was pregnant. D.B. agreed to undergo a substance abuse evaluation and signed a hospital hold on the baby. When asked about possible relative placement resources, including the newborn's father, D.B. refused to disclose his name or address. Neglect was substantiated and the case remained open for supervision.
On June 23, 2003, the worker met with D.B. at her home. When D.B. was asked about J.J.B. and his diagnosis of Down syndrome, D.B. stated that he did not have other medical problems associated with Down syndrome. When the worker reminded D.B. that the Board of Education had sent her correspondence explaining that the district had services available for him, D.B. informed the worker that she did not want him in preschool with other children diagnosed with Down syndrome. When the worker attempted to discuss J.S.B.'s diagnosis of autism, D.B. responded that her son was "gifted."
On June 24, 2003, D.B. submitted to a substance abuse assessment and tested positive for alcohol. At that point, the caseworker became aware of D.B.'s history with DYFS and discovered that D.B. had used her paramour's last name at the hospital. D.B. admitted that she had abused drugs and alcohol during her pregnancy and attempted to conceal the pregnancy from DYFS. DYFS filed an emergent protective services application and removed D.B.'s six children from the home due to the immediate danger the children faced by D.B.'s drug and alcohol use.
Upon further investigation, the caseworker discovered that J.S.B., then six and one-half years old, had never attended public school and had not seen a doctor since 1998. DYFS also ascertained that J.J.B. had not seen a doctor since surgery to repair a cardiac defect four months after his birth in 2000.
Following removal, J.S.B. was initially placed in a foster home. Within a day he was placed at Jersey City Medical Center, and a day later transferred to Saint Mary's Hospital. J.S.B. was observed by hospital staff displaying behaviors of a dog, such as drinking from the toilet, smelling his environment and crawling on the floor. The staff also reported that all of his teeth were rotting and looked like "black stumps" in his mouth.
On July 1, 2003, Nadezhda Robinson, Ph.D., completed an evaluation of J.S.B. and diagnosed him as a seven year old non-verbal, autistic child with poor social interaction, poor eye contact, no expressive language skills and occasional discomfort with tactile stimulation.*fn4 While physical abuse was ruled out, it was noted that J.S.B. had rotting molars due to a complete lack of dental care and appeared to be seriously and chronically physically, emotionally and educationally neglected. Dr. Robinson recommended that J.S.B. engage in a behavior modification program, concluding that the child's development had been "grossly impeded" by the educational, physical and emotional neglect he suffered while in D.B.'s care.*fn5
On July 28, 2003, J.S.B. was transported from Saint Mary's Hospital to Devereux. On September 25, 2003, the caseworker brought eight year old T.J.B. to visit J.S.B. at Devereux. The worker was informed that J.S.B. had adjusted very well to the facility and was doing well at the school. The caseworker also reported that J.S.B. appeared to have no recollection of his brother and just stared at him.
Visitation with J.S.B. by D.B. and D.B.'s other children was observed by the staff at Devereux on September 29, 2004. D.B. had not visited J.S.B. since he had been placed at the facility on July 28, 2003. The record of this visit reports that J.S.B. seemed "indifferent" to his family and appeared happier playing with the stuffed animals.
On January 18, 2005, Dr. Charles S. Hasson submitted a report regarding his October 13, 2004, psychological evaluation of D.B. and bonding evaluation of D.B. with J.S.B. Although Dr. Hasson found D.B. to be cooperative and pleasant, he felt she had a "selective memory" and appeared "guarded." He did not find her reliable and expressed his belief that she was the type to "finesse the truth." Dr. Hasson also concluded that D.B. appeared to be "character disordered, addiction-prone and suffering from a personality disorder."
On February 22, 2005, Devereux submitted to DYFS a report regarding a February 18 visit with J.S.B., D.B., the child's father and siblings. The report related that J.S.B. appeared to be unresponsive when his parents attempted to hug him but appeared to be very excited about the toys they had brought for him. While J.S.B. appeared to be more receptive to hugging his parents at the end of the visit, it was unclear whether J.S.B. was aware that his parents were leaving and noted that he did not display any attachment behaviors towards his parents and siblings. Staff made similar observations during the July 8 and September 12, 2005 visits. During two visits in December 2005, J.S.B. tried to leave the room, flopped on the floor and seemed disturbed by the noise created by his siblings. The record reflects, however, that J.S.B.'s lack of engagement with his mother and siblings is characteristic of his condition rather than the product of inattention from, or the absence of, his family.
While the facility reported that J.S.B. had made huge strides since living at Devereux, he still required supervision while completing daily living skills such as bathing and brushing his teeth. J.S.B. also needed constant supervision while performing tasks and because he did not appear to understand the dangers of traffic or strangers. Although his problematic conduct had decreased, he still exhibited behaviors such as "flopping, non-compliance and tantrums." Due to the decrease in J.S.B.'s problematic behaviors and the fact he had become more physically healthy and had ...