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New Jersey Division of Youth and Family Services v. J.V.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 15, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.V. DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF B.G AND C.G., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, FG-09-128-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 9, 2008

Before Judges Payne and Messano.

Defendant J.V., the mother of boys, B.G. and C.G., and of girls, D.G. and A.V., appeals from an order of the Family Part terminating her parental rights to the two boys, but not to the two girls, who were also the subjects of guardianship litigation filed by the New Jersey Division of Youth and Family Services (DYFS or the Division).*fn1

On appeal, J.V. contends that the Division failed to meet its burden of demonstrating, by clear and convincing evidence, the four prongs of the best interest of the child standard set forth in N.J.S.A. 30:4C-15.1, and thus that termination of her parental rights to the boys should not have occurred. The law guardian for the boys has likewise contested the termination decision, arguing that the Division's proofs with respect to the second and fourth prongs of N.J.S.A. 30:4C-15.1 were inadequate.

The Division has not appealed from the order denying termination of J.V.'s parental rights to the two girls. We agree with the Law Guardian's position and reverse.

I.

The record discloses that a son, B.G. (fictitiously, Ben) was born to J.V. on July 31, 2001 and another son, C.G. (fictitiously, Charles), was born on March 5, 2004. A daughter, D.G. (fictitiously, Donna), was born on March 17, 2003, and an additional daughter, A.V. (fictitiously, Ann), was born on February 10, 2007, after litigation in this matter was commenced.*fn2 A fifth child, A.G., was born when J.V. was thirteen years of age. The child was fathered by J.G., the twenty-two-year-old boyfriend of J.V.'s mother, who is also the father of the children who are the subject of this action. A.G. is in the legal custody of J.V.'s maternal grandmother and is not involved in the present proceeding.

Although J.V. had been known to DYFS previously, her history with the Division, relevant to the present proceedings, commenced with a referral in 2002, which was determined to be unfounded, followed by a further referral in 2004. Although it, too, was determined to be unfounded, homemaker services were instituted by DYFS, commencing in August 2004 and continuing to March 15, 2005, to ensure that the children were being properly fed and that their medical appointments were being kept. Although there was concern that Donna was failing to thrive, that concern was later determined to be unfounded. Homemakers reported that J.V.'s home was neat, the children were well-fed and otherwise well-kept, and that J.V.'s interactions with her children were appropriate and loving. At this time, J.V. had separated from the children's father, J.G., as the result of episodes of domestic violence. A permanent restraining order against the father was in place, and drug charges against him were pending. He was subsequently found guilty and incarcerated. There is no evidence of long-term reunification between the two parents, and the termination of J.G.'s parental rights to the children has not been appealed. J.V.'s relationship with her mother has been tempestuous. Additionally, J.V.'s brother, an alleged drug dealer who is also claimed to be a member of the Latin Kings gang, has disrupted J.V.'s life with threats against her and, on occasion, DYFS.

Nonetheless, a DYFS contact sheet, which appears to be dated April 26, 2005,*fn3 contains the following statement:

[J.V.] is a very nurturing mother to her children. She provides emotionally for [her] children. She plays with children and has been observed displaying affection toward the children, hugs and kisses. [J.V.] has also been observed feeding the children and the food appears to be nutritional and ample in portion for children. Worker has also observed that there is always food in the home. . . . Children do[] not appear to be maltreated or malnourished. [Donna] is small for her size but child responds to stimulant. She plays and talks to mother and siblings.

* * * [J.V.] has the life skills to provide [a] stable, secure environment for her children, free from abuse/neglect. [J.V.] has maintain[ed] [a] stable living arrangement for her children on a regular basis.

Children are always clean and neat with good hygiene. Their social skills are adequate.

Children appear[] to be reaching their developmental milestones age appropriately.

On May 6, 2005, a further referral was made in which it was claimed that J.V. was abusing marijuana and failing to provide an adequate caregiver for her children, having left them in the care of an alleged runaway teenager, a charge that was found on investigation to be incorrect. Again, no neglect was found.

However, DYFS, which at that time was concerned about J.V.'s immaturity and potential abuse of alcohol and marijuana, obtained J.V.'s consent to resume homemaker supervision (assistance that appears not to have been immediately implemented as the result of the unavailability of personnel) and to obtain a certified alcohol and drug counselor (CADC) evaluation. A urine test at about that time was positive for marijuana.

After missing CADC appointments on June 17 and June 28, a CADC evaluation occurred on July 5, 2005. As the result of J.V.'s admission that she occasionally smoked marijuana, it was recommended that she be referred to the St. Mary Hospital Giant Steps program for outpatient substance abuse care. J.V. was accepted into the Giant Steps program and scheduled to begin weekly outpatient treatment at the hospital on August 31, 2005, for a total of twenty-four to thirty-six sessions. Just prior to the commencement of treatment, J.V. admitted to her DYFS caseworker that she had smoked a blunt on the previous evening and that she had a problem with marijuana.

During the same period, J.V. was referred to Family Preservation Services, which was engaged to visit J.V.'s home on a daily basis to provide J.V. with skills necessary to discipline her children, to assist her in developing non- confrontational communication skills, and to establish effective anger management. However, its services were concluded in September 2005 following J.V.'s refusal to permit a worker to remain overnight and her decision to place her children with relatives, claiming that she was overwhelmed and needed to put her life in order by obtaining in-patient drug treatment.

In an undated letter, St. Mary personnel notified DYFS that J.V. had tested positive for marijuana while attending out-patient group counseling on September 5 and 13, 2005, and that she had failed to attend the following three group counseling sessions, without explanation. She was discharged from the program as the result of noncompliance in October 2005.

On September 22, 2005, the court entered an order granting temporary custody to DYFS of J.V.'s three children, primarily as the result of J.V.'s acknowledged use of marijuana. J.V. was ordered to undergo psychological and substance abuse evaluations, and to submit to random urine screenings.

On November 7, 2005, J.V. returned to Giant Steps to seek re-enrollment, but was not immediately accepted because of a lack of openings. At this time, J.V. also enrolled in parenting classes, attending sessions commencing on November 7, 2005 and completing the six sessions on December 12, 2005. She also attempted to obtain more intensive drug treatment from various sources, but was informed that her addiction did not warrant such treatment.

Although the three children had remained in the care of various relatives in the period from September to November 2005, on November 15, 2005, Ben and Charles were removed from their relative placements, because the relatives could no longer care for them, and they were placed in separate foster homes.*fn4 They were reunited in a single foster home on or about April 18, 2006, just one year prior to trial. Ben receives counseling services on account of his behavior and speech difficulties. However, the record indicates that the boys have otherwise adjusted well to their foster placement. Their foster mother seeks to adopt.

In January 2006, J.V. was again accepted into Giant Steps, commencing treatment on January 31, 2006 for a projected sixteen sessions. On March 9, 2006, she was referred to a ten-month intensive program administered by Project Second Chance at Jersey City's Christ Hospital for more intensive psychological counseling and substance abuse treatment, but she was not accepted into that program until August 2006. She commenced counseling and treatment on August 16, 2006.*fn5 She has tested clean ever since and claims to have been abstinent since March 2006. J.V. was reported as having been in consistent attendance at the Second Chance program, and as actively participating in group and individual sessions. Her progress reports have been excellent, and she was scheduled to complete the program between May and July 2007, shortly after the conclusion of the termination trial. According to a March 29, 2007 letter from Second Chance,

[J.V.] has shown herself to be motivated to make positive changes in her life and is eager to be a role model for her children. She has come a long way in her treatment since beginning Project Second Chance.

Following a court hearing on August 23, 2006, the Family Part judge approved the Division's permanent plan for the children of termination of parental rights, followed by foster home adoption for the boys and select home adoption for the girls.

In December 2006, J.V. was evicted from her apartment for nonpayment of rent and for a period of time was homeless. However, she applied for temporary rental assistance and, in February 2007, obtained a two-bedroom apartment deemed appropriate for children by DYFS, although at the time lacking in furniture. Ann was born on February 10, 2007 and placed in foster care.

Expert reports with respect to J.V. were rendered on behalf of DYFS by psychologist Dr. Manuel Iser on July 6, 2006 and April 1, 2007 and on behalf of J.V. by psychologist Dr. Gerard Figurelli following evaluations on November 30 and December 12, 2006.

In his July 6, 2006 report, rendered before J.V. had commenced drug treatment at Christ Hospital, Dr. Iser stated that J.V. had admitted to using marijuana "from morning to night" in November and December 2005, after removal of her children, but she stated that she had cut down on her use. She had agreed to undergo substance abuse treatment, but only because DYFS wanted her to do so. During the evaluation, she was administered the Adult-Adolescent Parenting Inventory (AAPI-2) test, an instrument designed to assess parenting and child-rearing attitudes and the risk that a parent will practice behaviors known to be attributable to child abuse or neglect. J.V. scored in the above average range when the appropriateness of her expectations of children were tested; in the average range with respect to empathy; above average in understanding alternatives to physical punishment; above average in establishing appropriate roles for herself and her children; and average in facilitating her children's power and independence.

Dr. Iser diagnosed J.V. as having cannabis dependence, alcohol abuse, and a depressive disorder. As the result of the administration of the Million Clinical Multiaxial Inventory-III (MCMI-III), a self-report objective personality inventory, Dr. Iser also found J.V. to have schizoid and avoidant personality traits.

Dr. Iser found on the basis of his examinations that granting J.V. custody of her children would not be in their best interest as the result of (1) J.V.'s failure to complete substance abuse treatment; (2) her delay in completing her psychological evaluation, despite an expressed desire to regain custody of her children; (3) her continued substance abuse problems; (4) her existing pregnancy, requiring that she devote time to proper pre-natal care; and (5) her cigarette smoking, despite her knowledge of its adverse effects on her unborn child. Dr. Iser recommended prenatal care, in-patient substance abuse treatment, and individual psychotherapy to focus on J.V.'s childhood physical and sexual abuse, adolescent and adult experiences of negative friendships, and inappropriate male relationships.

Dr. Iser issued a subsequent report on April 1, 2007, just before trial, following evaluations on March 21 and 25, 2007. During a portion of the evaluation, all four children were present, and their conduct, especially that of Charles, was extremely disruptive, resulting in an exhibition of frustration by J.V. and an eventual termination of the evaluation. These events were extensively noted in the doctor's report. Additionally, the doctor noted J.V.'s statement that she had not used marijuana since March 5, 2006, and that she had achieved one year of being drug-free. J.V. declined to participate in further psychological testing.

At the conclusion of his April 2007 report, Dr. Iser did not state an opinion regarding J.V.'s ability to parent any of her children. However, he stated that "of clinical concern" was J.V.'s past and recent behavior, consisting of the previously-described delay in completing her psychological evaluation, which called into question the priority of her commitment to her children over her addiction to marijuana; the previously-described cigarette smoking while pregnant; her physical attraction to the abusive father of her children, manifested by Ann's birth; her episode of homelessness while pregnant and her poor judgment in not utilizing the services of DYFS in this period; and her admission that she had told Ben to misbehave in the home of his foster mother so that he would be removed from there.

Dr. Figurelli evaluated J.V. on November 30, 2005 and December 12, 2006. After administering standard tests including the MCMI-III, Dr. Figurelli found that J.V. did not exhibit clinically significant symptoms of depression or other psychological disorder, or of a personality disorder. J.V.'s report that she had ceased marijuana use in March 2006 was consistent with that given to Dr. Iser. After administration of additional testing, Dr. Figurelli concluded that J.V. did not have a history of problems with alcohol abuse, that her acknowledged history of marijuana abuse was being adequately treated, and that the "nature, type and severity of drug problem that [J.V.] has experienced is typically amenable to positive treatment outcome in response to the type of treatment she has been provided." The doctor stated that: "If [J.V.] completes treatment and continues ongoing participation in a 12-Step recovery process, her prognosis for a sustained recovery from her drug problem is a positive one."

At the conclusion of Dr. Figurelli's report, he opined that:

If [J.V.] completes her involvement in substance abuse treatment, remains all psychoactive substance abuse abstinent, establishes/maintains an adequate living arrangement, establishes a consistent and adequate source of financial support, and establishes adequate alternate care for her children when she is otherwise unable to do so directly, it appears that [J.V.] has the capacity to act adequately in her role as parent.

At trial, Dr. Iser testified that he regarded J.V.'s recovery from substance abuse too recent to permit her to resume parenting, although she might be able to do so in the future. Dr. Figurelli found J.V. to be capable of parenting upon completion of her substance abuse program and attainment of financial independence.

Pre-trial bonding evaluations took place. An initial bonding evaluation by Dr. Iser occurred on November 18, 2006, when J.V. had been receiving counseling and substance abuse treatment at Christ Hospital for approximately three months. At that time, Dr. Iser interviewed J.V. further and reported:

[J.V.] revealed that she now understands that she needed to undergo substance abuse treatment and feels physically and mentally better because she is not "getting high," and also stated that she is able to laugh more, is not depressed, and does not spend the whole day in bed as she used to. She reported that attending substance abuse counseling has taught her that "drugs are bad" and added: "drugs messed up my whole life. I now have responsibility, I have goals, I think positively, not negative." She added that she has now come to realize that her use of drugs led to her losing custody of her children and blames no one except herself. [J.V.] stated that her use of drugs made her lazy and took her motivation away. She revealed that she stopped using drugs because "there was no noise in my house"; referring to an empty house without her children.

In his November 2006 report, Dr. Iser found a bond to exist between J.V. and her children, but that it was "more likely" that the children were more attached to their current caretakers. Dr. Iser characterized J.V.'s relationship with her children to be more that of a friend or playmate than as a mother.

As we have noted, in a further evaluation conducted in March 2007, Dr. Iser found that J.V. had difficulty controlling the children, that she became frustrated and emotional, and that the evaluation had to be cut short. However, the evaluation appears to have occurred in a doctor's waiting room that was not equipped with age-appropriate toys or other means of distracting the children when their conduct became disruptive.

In a April 1, 2007 letter, Dr. Iser reported on evaluations of the foster mother and the two boys in his office and in the foster mother's home, which she shared with the boys and her college-age son. He noted that the boys' foster mother had stated to him that when she originally took custody of the children she had no plans to adopt them, but DYFS approached her and asked her if she would consider adopting the boys. She explained that her daughter had moved out of her home, and that there would be an extra room available, and additionally added that a friend of hers told her that she would be doing a very good deed if she adopted [Charles] and [Ben]. [She] also explained that at first she was nervous about taking in children who were not hers, but after taking the classes to be a foster parent, she felt better about their efforts and her abilities to care for the boys. She stated that [Charles] and [Ben] are very obedient and that she and her biological son have become very close and attached to [Charles] and [Ben], and added that her own biological children . . . have encouraged her to adopt the children as they love them.

* * * [She] added that she feels that she can be a better parent than [J.V.] due to her stability, employment, and because she cares and loves them, and because they have all been together for the past year and knows that they are as attached to her as she is to them.

Dr. Iser also noted that, while in his office, Ben had been reluctant to undergo any psychological assessment tests, and that Charles "was in an agitated state, he was unable to sit still, and was cranky, and tired and not receptive to any type of informal assessment procedures including play therapy." During a one-hour bonding evaluation, the foster mother was reported as able to direct Ben away from playing with the office lamp and hitting the computer keys - conduct also displayed in the presence of J.V. - and that the children appeared to have "formed an attachment" to her.

In a further evaluation conducted in the foster mother's home, Dr. Iser found that Charles was "once again resistant and instead [of participating in an informal evaluation] wished to 'rough house' with Dr. Iser by pulling the hair on his forearms and attempting to slap his back and kick him." Ben, whose behavior was more amenable to evaluation, indicated a desire to remain with his foster mother.

Significantly, Dr. Iser did not come to a determination regarding the degree of attachment between the boys and their foster mother. Instead, he stated:

Regarding the nature of [the foster mother's] current relationship to [Ben] and [Charles], for the past year [she] has provided these two children with shelter, nurturance, and affection, and has additionally been cognizant of [Ben's] developmental difficulties regarding his speech and has addressed her concerns to the school in order for [Ben] to get the assistance which he requires. [She] is invested in the caring and raising of [Ben], and to date DYFS has not reported any types of problems regarding her ability to provide these children with adequate care.

In opining that J.V.'s parental relationship should be severed and adoption be considered, Dr. Iser relied primarily on the children's need for permanence, and his concern that if "the Courts of the State of New Jersey" were to grant J.V. "the opportunity to display that she may have the potential to provide [Ben] and [Charles] with proper parenting and adequate care," the courts "may be setting up a dangerous situation in which [Ben] and [Charles] may once again become the victim of [J.V.'s] past incompetence as a parent," and additionally set up a situation in which boys will not only have lost their foster and biological parents but also be required to adjust to a new foster home. "For these reasons," Dr. Iser concluded, "it is believed with a reasonable degree of psychological certainty that if [Ben] and [Charles] are removed from the custody of [their foster mother] that they will suffer severe and enduring harm due to their removal from an established attachment figure . . . who by now, they see as their psychological mother." Bonding with Ann was not conducted because of her young age.

Dr. Figurelli's bonding evaluation differed from that of Dr. Iser. Following an evaluation on December 12, 2006, Dr. Figurelli noted a strong bond between J.V. and her older children, Ben and Donna. Although he found that J.V. had a strong bond with her younger boy, Charles, it was less reciprocated, perhaps as the result of less contact and perhaps as the result of his stage of emotional development. Additionally, he found a strong bond between the siblings, and he concluded that terminating J.V.'s parental rights would cause more harm than good.

II.

At trial in April 2007, a DYFS caseworker and Dr. Iser testified on behalf of DYFS, and J.V., her aunt and uncle, and Dr. Figurelli testified for the defense. The aunt and uncle testified that they were willing to assist J.V. to stabilize her life and to regain custody of her children. However, their testimony was discounted by the trial judge, who noted that neither had come forward to provide care for the boys or J.V.'s infant daughter, but neglected the fact that they were presently caring for J.V.'s older daughter, Donna, although not on a permanent basis.

The judge summarized J.V.'s testimony as follows:

[J.V.] has testified again, very persuasively, as to her willingness to change, her recognition of a drug problem that impacted on her ability to care for the children, recognizing that she needed help. . . . I'm satisfied . . . that the children were placed by the Division as there was no suitable caretaker and [J.V.] recognized that she needed help for herself, that she was overwhelmed in trying to care for three children. She said that after the children were removed, she increased her usage of marijuana and fell into a depression.

She attempted to go to Giant Steps, relapsed. . . . At some point she began to think about her life, thinking about the children, lack of family support, lack of family, having problems with her mother, that she wanted to get her life together.

She testified again, very persuasively, emotionally, and dramatically about her need to love her children, how she misses her children, how she wants to . . . give them loves and hugs, she learned her lesson, she thinks about her mistakes, and she gets upset at herself, and she's doing what it takes to get her life in order, even to the extent of looking into arrangements for school for [Ben] . . . [Donna] and [Charles], becoming involved with what she calls RWA, Ready, Willing, and Able, that she has enrolled in that program. That program would provide her with counseling, job training, job placement, daycare for [Ann].

She's committed to being clean and wants her children.

She now has some financial security.

She's seeking employment. Hopefully, this Ready, Willing, and Able will assist her to become employed.

The psychologists testified in accordance with their reports, although the trial judge observed that "perhaps their reports [were] even more complete than their testimony." On the whole, the trial judge found that Dr. Iser, as the result of his more numerous evaluations, including an evaluation of the foster mother and her interactions with the boys, "had a more comprehensive view of the case," although he acknowledged that Dr. Figurelli was more knowledgeable with respect to issues involving addiction and drug treatment. The judge summarized Dr. Iser's opinions as follows:

Dr. Iser's position is that she is still in the early stages of recovery. She is in some sort of remission, but still needs additional time - good time under her belt before the children could be returned. She would seem to need - for some period of time to maintain her living arrangement, maintain some assurance of financial support, security, some good time under her belt after she leaves the protection of her drug treatment agency.

Dr. Iser felt that based upon his understanding of her current status that she should not parent any of the children.

However, if she was to continue treatment, maintain stability, she could parent sometime in the future, whatever that period of time is remains to be seen.

Following trial, the Family Part judge severed J.V.'s parental relationship to the boys, but not to the girls. In large measure, the judge's decision turned on his consideration of the fourth prong of the best interest test. After evaluating the testimony of Dr. Iser and Dr. Figurelli regarding J.V. and the bonding of the children with her and with their caretakers,*fn6 as well as the positive and negative aspects of J.V.'s own testimony and known history, the judge stated:

[J.V.] has done well in treatment. She has housing. She has support. She has hope, anticipation of return of her children, being a better parent than she was.

So in trying to evaluate the fourth prong, I take each . . . child separate. [J.V.] does have the ability to parent. She does have the ability to provide a household. The house that she now has is insufficient to accommodate four children.

Apparently as a consequence of that living arrangement, the potential for adoption of Ben and Charles by their foster parent, the lack of adoption prospects for Donna, who had some behavior problems, and the unlikelihood that Donna and Ann would be adopted together,*fn7 the judge determined to sever J.V.'s relationship to the adoptable boys, but not to the jointly unadoptable girls.

III.

In determining whether a parent's rights to a child may be terminated, the court must weigh the essential interest that a parent possesses in preservation of the fundamental and constitutionally protected family relationship and the State's parens patriae interest in the child's health and welfare. New Jersey Div. of Youth & Family Serv's v. A.W., 103 N.J. 591, 599 (1986). The accommodation between the two has been achieved in this State by use of a best interest of the child standard first enunciated in A.W., id. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), which requires consideration of whether:

(1) The child's health and development have been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made diligent efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

In order for termination of a parent's right to occur, the State must demonstrate by clear and convincing evidence that these four interrelated standards have been met. A.W., supra, 103 N.J. at 603; In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (noting the interrelated nature of the statutory criteria). As the Court in A.W. emphasized, "the 'best interests' of a child can never mean the better interests of the child." 103 N.J. at 603. "Merely showing that a child would be better off with an adoptive parent rather than with the biological parent is not enough." Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999).

Our review of the record in this matter satisfies us that the Division met its burden of proof by clear and convincing evidence with respect to the first element of the best interest test by demonstrating J.V.'s addiction to marijuana and her unsuccessful efforts to fully address it in the period prior to her admission into Christ Hospital's Second Chance program. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); New Jersey Div. of Youth & Family Serv's v. C.S., 367 N.J. Super. 76, 118 (App. Div.), certif. denied, 180 N.J. 456 (2004). The evidence amply supports the conclusion that J.V. repeatedly failed to take steps to remove the harm her substance abuse posed to her children by inadequately addressing her addiction.

We are likewise satisfied that the Division met its burden with respect to the third prong of N.J.S.A. 30:4C-15.1(a) by producing evidence of services offered to J.V., which included homemaker services, substance abuse evaluation and treatment, parenting classes, and psychological counseling. Additionally, the Division demonstrated a significant effort to locate relatives suitable and willing to accept placement of the children and, when that step was only partially successful, to identify a foster parent willing to accept both of the boys into her care. The Division also demonstrated that, during the period of foster care, it had appropriately facilitated visitation between J.V. and her children. We regard these steps, designed to enable J.V. to become an appropriate parent to her children, to have been clearly sufficient to meet the statutory standard. K.H.O., supra, 161 N.J. at 354. Although not all of the steps taken by DYFS to assist J.V. were successful, "[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

IV.

Our concern with the decision of the Family Part judge lies with his evaluation of the evidence supporting the second and fourth statutory conditions and his determination that those conditions had been met, as well.

The second prong of the statutory test requires proof by clear and convincing evidence that the parent "is unable or unwilling to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm." At trial, J.V. presented unrefuted evidence of her success in drug treatment and of her abstinence from drugs for, at least, the period since August 2006 and, she states, since March 2006. Additionally in this regard, she presented the opinion of Dr. Figurelli that an addiction to marijuana such as hers was usually amenable to treatment. J.V. also presented evidence of completion of parenting classes and ongoing participation in psychological counseling. She had maintained stable housing since February 2006. Additionally J.V. provided evidence of her efforts to obtain the job training through participation in the Ready, Willing and Able Program that would make her financially independent. None of this testimony was seriously contested, although it was noted that J.V.'s present housing was too small for a family of five, a remediable defect. As a result, substantial uncontroverted evidence was offered that J.V. could, within a reasonable time, become fit to parent her children. New Jersey Div. of Youth & Family Serv's v. F.M., 375 N.J.

Super. 235, 263 (App. Div. 2005) ("the fundamental focus of the inquiry is not whether the parent is now fit, but whether the parent can become fit in time to meet the needs of the children"). Indeed, the trial judge found that he was "satisfied that [J.V.] is in a position to provide a safe and stable home" for Donna and Ann. That she was afforded physical custody of the girls by DYFS and has retained that custody provides further evidence in this respect.

Nonetheless, the judge appears to have found this same evidence inadequate to permit reunification between J.V. and her boys. Yet, the Division offered no evidence to suggest that J.V. was less capable of parenting the boys than the girls or that her efforts with the boys would be less successful than with the girls. Further, neither psychologist reached the conclusion that J.V. was capable only of parenting a limited number of children, and no other evidence presented during the course of the trial provided a basis for concluding that this was the case.

Additionally, bonding evaluations suggested that J.V. was strongly attached to all of her children, and that the children were bonded to each other and to an extent with J.V. Although evidence was introduced that an attachment had formed between the boys and their foster mother, it is noteworthy that the boys had been with their current foster parent for only one year. Even Dr. Iser, the psychologist offered by the Division, did not suggest the existence of such a strong bond between the boys and their foster mother at the time of trial that it should be regarded as unseverable, instead testifying that it would be "tough to say" whether the boys would suffer significant and enduring harm from the severance of their present relationship.

Indeed, the doctor did not significantly attempt to focus his testimony on the depth of the relationship between the boys and their foster parent. Instead, his focus was on the need for permanence, and his opinion that the boys' tie with J.V. should be severed was premised upon the assumption that, because J.V. was likely to fail in her recovery from addiction, permanence could better be achieved by leaving the boys where they were. However, as the judge recognized, Dr. Iser was less qualified to evaluate J.V.'s addiction and her recovery efforts than was Dr. Figurelli, who regarded J.V.'s prognosis in far more positive terms. Thus, we fail to discern the solid factual or experiential foundation for Dr. Iser's opinion that would render it clear and convincing evidence with respect to the second prong of the statutory standard. Compare, K.H.O., supra, 161 N.J. at 363 ("if there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of h[is] bond with foster parents, this will satisfy N.J.S.A. 30:4C-15.1(a)(2)).

"'Clear and convincing' evidence should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). Our examination of the record does not support the conclusion that such a level of certainty could result from the proofs presented. While the record is not free from doubt on the issue of the permanence of J.V.'s recovery, we find that doubt insufficient to warrant termination of her rights at this time. New Jersey Div. of Youth & Family Serv's v. F.M., 375 N.J. Super. 235, 264 (App. Div. 2005) (quoting In Re Guardianship of J.E.D., 217 N.J. Super. 1, 15-16 (App. Div. 1987) ("our courts have recognized that a child's relationship with a parent is of such significance that doubts are to be resolved against its destruction."), certif. denied, 111 N.J. 637 (1988)).

V.

The inexplicable dichotomy in treatment of the two sets of children affects the fourth prong as well. In that regard, the judge concluded that termination of J.V.'s parental rights would not do more harm than good to the boys, whereas the judge apparently reached the opposite conclusion with respect to the girls. However, the only difference between the two sets of children that the judge clearly articulated was that the boys were immediately adoptable, whereas the girls were far less likely to be so as a pair. Moreover, in reaching the conclusion that he did, the judge neglected entirely to consider the effect of severance of the existing bond between the boys and their sisters. The judge thus appears to have impermissibly founded his decision on his perception that the boys would be better off in a foster care placement likely to lead to adoption. But, as the Supreme Court has established in A.W., supra, 103 N.J. at 603 and G.P.B., supra, 161 N.J. at 404, that is the incorrect standard.

As the Supreme Court has noted, "[a]ppellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" J.N.H., supra, 172 N.J. at 472 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting, in turn, Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). We reluctantly conclude that the lack of foundation discussed in J.N.H. exists in this matter, and that the order terminating J.V.'s rights to her two sons must be reversed. We recognize in this regard that ten months have elapsed since the trial of this case, and that in those months the bonds of affection between the boys and their foster mother have grown. We also recognize the effect that this decision will have upon the expectation of adoption shared by the boys and their foster mother alike. Nonetheless, we cannot conclude on the basis of this record that the balance of considerations established by the Supreme Court in A.W. and adopted by the legislature clearly and convincingly supports an order terminating J.V.'s paramount rights to her boys.

We therefore reverse the order of the Family Part insofar as it applies to B.G. and C.G., and we remand the matter to permit the institution of a protective services action with respect to them.


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