February 21, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF M.N., A MINOR.
M.N., A MINOR, PLAINTIFF-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF M.N., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-327-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Wefing, Parker and Lyons.
In these back-to-back cases, the Division of Youth and Family Services (Division) and the Law Guardian were each granted leave to appeal from an order entered on May 15, 2007 continuing the children in the Division's custody and foster care, but allowing the biological mother, L.N., partially supervised overnight visits. The Division was also granted leave to appeal from the trial court's refusal to sign an order to show cause to initiate guardianship proceedings against L.N. We reverse and remand for further proceedings.
M.N., born on December 11, 2005, is L.N.'s sixth child. Her five other children have been removed from her custody either voluntarily or involuntarily as a result of L.N.'s drug and alcohol abuse, inability to parent the children and domestic violence perpetrated on her by J.M., father of all six children.*fn1
The facts relating to M.N. were set forth in our prior opinion in Docket No. A-4986-05T4, rendered on March 7, 2007, in which we affirmed the trial court's orders of March 10 and April 3, 2006, finding that M.N. was an abused or neglected child who should remain in foster care under the custody and supervision of the Division.*fn2
M.N. was born on December 11, 2005. On December 15, 2005, while the child was still a patient at University Hospital in Newark, the Division commenced this action seeking a determination that the child was "abused or neglected," as defined by N.J.S.A. 9:6-8.21, and an order placing M.N. under the Division's supervision, care and custody. The Division's verified complaint asserted, among other things, that L.N. was an unfit parent because she no longer had custody of any of her five other children, had troubles in the past with drugs and alcohol, and had been involved in episodes of domestic violence.
L.N. was represented by counsel at the hearing on January 5, 2006 which was the return date of the December 15, 2005 order to show cause, and all other events thereafter. The judge ultimately rejected L.N.'s application for return of the child to her custody and found, after conducting an evidentiary hearing on March 10, 2006, that M.N. was an abused or neglected child, N.J.S.A. 9:6-8.21, by chiefly relying upon the past terminations of L.N.'s parental rights to her other children, her past history of substance abuse, and her uncertain housing circumstances. Immediately after making those findings, the trial judge heard testimony and received evidence concerning the disposition of the child in light of his finding of abuse and neglect. He concluded that the child should remain in foster care and denied L.N.'s motion that the child be returned to her.
In addition, we observe that the trial judge's finding that M.N. was an "abused or neglected child," was more than amply demonstrated by the evidence adduced at the fact-finding hearing on March 10, 2006. In seeking a finding that M.N. met the definition contained in N.J.S.A. 9:6-8.21(c)(4), the Division was only required to prove by a preponderance of the evidence that M.N. was a child "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or guardian to exercise a minimum degree of care" (emphasis added). In this regard, "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of another child." N.J.S.A. 9:6-8.46(a)(1). The fact that L.N. was previously found to be unfit provided ample support for a finding that
M.N. met the definition of an "abused or neglected child." This circumstance, as well as the other evidence presented, provided an adequate basis for the judge's findings and ultimate disposition in this matter, and we have been provided with nothing that would warrant our second-guessing of that determination.
The law guardian and the Division then moved to waive the requirement that the Division make reasonable efforts to reunite M.N. with her mother. That motion was denied on March 27, 2006. In a written opinion, the trial court acknowledged that L.N.'s parental rights to her five other children had been voluntarily or involuntarily terminated, but cited two reasons for its decision to deny the Division's motion:
First, [L.N.] has now completed an entire year of successful drug treatment. This successful year would appear to indicate that 'the health and safety of the child' may not be as seriously endangered as was originally thought. See N.J.S.A. 30:4C-11.3. Of course, if [L.N.] is still seeing [J.M.], or if she cannot demonstrate stable housing, [M.N.'s] health and safety would be endangered; these issues need to be resolved at trial, together with several issues raised by the law guardian's extensive brief, such as [L.N.'s] apparently angry parenting style with [C.N.], which could lead one to conclude that she would parent [M.N.] similarly.
Secondly, in addressing "the child's need for permanency", another factor listed by N.J.S.A. 30:4C-11.3, the court notes that [M.N.] was born only three months ago, which puts her in a far different situation than [C.N.] who was born three and a half years ago and [S.N.] who was born one and a half years ago. As the S.A. case pointed out, it is much more important to work towards reunification in the early months before a child may have bonded with foster parents, and already achieved some degree of permanency.
The law guardian's motion for leave to appeal the March 27, 2006 decision was denied.
The supervision case continued and a permanency hearing was conducted on November 8 and 9, 2006. In a written decision rendered on November 28, 2006, the trial court rejected the Division's permanency plan. The court set forth L.N.'s lengthy history of involvement with the Division and the judicial system, including the termination of parental rights to her five other children and her long history of domestic abuse at the hands of J.M., the father of all six children. Included in the court's review was an incident that occurred on October 20, 2004, when J.M. threatened to kill her and "started to punch her with a closed fist on her face, back of her head, neck and upper back repeatedly . . . . grabbed her behind her head and slammed her head on the bathroom wall several times." The trial court noted that "[d]espite what happened in October 2004, [L.N.] refused to end the relationship with [J.M.]." Indeed, the evidence demonstrated that L.N. went to great lengths to hide her continuing relationship with J.M.
The court further noted in its November 28, 2006 opinion that L.N. "has fought a lifelong battle with substance abuse." Nevertheless, she denied "ever using drugs" during a psychological evaluation with Dr. Robert McMillan in 1996; she denied using drugs in 1998, even when she tested positive for cocaine; she denied drug use during three separate evaluations in March, May and November 1999, but tested positive on each occasion. In 1999, three years after her two oldest children were placed in foster care, L.N. finally entered an outpatient program. In 2002, however, she acknowledged using cocaine while she was pregnant with S.N. and living at the YMCA with C.N.
In the November 28, 2006 opinion, the trial court noted that Frank Dyer, Ph.D., a licensed psychologist, evaluated L.N. on numerous occasions on behalf of the Division. In 1999, Dr. Dyer diagnosed L.N. as having probable drug and alcohol problems and an Axis II diagnosis of Mixed Personality Disorder with Histrionic, Borderline, and Schizotypal Features. [She] was found to be impulsive, manipulative and eccentric. Her thinking processes were found to be loosely tied to reality and it was felt that she relied upon a crude denial system to filter her thoughts and perceptions.
The judge further noted that six years later, in his June 2005 report, Dr. Dyer concluded:
In regard to the question of parental fitness, it is my opinion to a reasonable degree of psychological certainty that
[L.N.] is in exactly the same position as she was during her previous evaluations.
That is to say, that she continues to suffer from drug and alcohol problems with a significant vulnerability to relapse, protecting her substance abuse and behavior through an over reliance on a crude denial system. Her behavior and overall lifestyle continued to endanger her children, and in fact in the present case DYFS has documented injuries to a child in her care.
In its November 28, 2006 opinion, the trial court further referred to Dr. Dyer's supplemental letter-reports dated February 9 and March 3, 2006. In the February 9 letter, Dr. Dyer stated that after reviewing information about L.N.'s recent attempts at rehabilitation, "[t]here is nothing in the above facts that would cause me to modify my previously stated opinion that [L.N.] is not capable of providing adequate parental care to any child."
In his March 3, 2006 letter, Dr. Dyer again indicated that nothing in the more recent record "would cause me to modify my previously stated opinion." He acknowledged that "there had been some positive reports from the staff at the Trinitas Hospital Program regarding [L.N.'s] compliance with the program of recovery in which she participated at that facility." Most significantly, Dr. Dyer reported that L.N. "has superficially complied with programs in the past, but that this did not prevent a recurrence of the behavior that led to removal of other children in her care." He further noted that L.N. "is only outwardly and temporarily compliant with programs in order to manipulate circumstances to regain her child, and that [L.N.] shows no evidence of any intention to live her life any differently than she has in the past." He reported further that
L.N. "had remarked that she would probably return to a romantic relationship with [J.M.]." Dr. Dyer concluded his March 3, 2006 report with the following statement:
I wish to stress that for virtually any other client in [L.N.'s] circumstances, the progress documented in the materials submitted by her attorney would clearly be associated with a lowered risk of harm if the client were allowed to care for her infant daughter with supervision. In the present instance, however, we are dealing with a client who has a lengthy history of appearing to profit from services, and then reverting to her former pattern of drug/alcohol abuse and resuming her extremely dysfunctional and abusive relationship with her children's birth father. Thus, the present glowing reports from [L.N.'s] counselors are familiar echoes of prior effusive statements of progress that merely preceded a return to lifestyle choices that endangered the subject's older children who now enjoy the protection of foster or adoptive homes.
In the November 28, 2006 opinion, the trial court also referred to the testimony of Gerald A. Figurelli, Ph.D., a licensed psychologist, who appeared on behalf of L.N. Dr. Figurelli reported that his test results "showed that [L.N.] had no serious problems other than 'the presence of histrionic traits in the overall organization and functioning of her personality.'" The judge specifically noted, however, that "Dr. Figurelli presents so many caveats in his conclusion that [L.N.] can become an adequate parent that his conclusion is not totally contrary to that of Dr. Dyer. Put differently, both experts believe it would be very difficult, but Dr. Dyer thinks the difficulties are virtually insurmountable."
Notwithstanding Dr. Dyer's long history of evaluating L.N. and considerable evidence of L.N.'s misrepresentations regarding her drug/alcohol use and her persistent relationship with J.M., the court concluded that "[t]he Division has not carried its burden, by a preponderance of the evidence, that [L.N.] is unable to provide a safe, healthy and stable environment for [M.N.]. Therefore, its proposed [permanency] plan is not appropriate." The court determined, however, that it must continue to guard against "four possible problems . . . . [J.M.], a drug relapse, a loss of housing, and [L.N.'s] emotional issues." Despite substantial evidence of L.N.'s inability to care for M.N., the court ordered the Division to increase visitation, "including weekend visitation at her apartment" with an aide to monitor the visits.
After rendering its decision on November 28, 2006, the trial court appointed Elayne Weitz, Psy.D., a licensed psychologist, to undertake an independent evaluation of L.N. Dr. Weitz's report, dated May 2, 2007, reflects a number of inconsistencies in L.N.'s statements to Dr. Weitz; for example, L.N. told Dr. Weitz that she began drinking at age twenty-one and using cocaine in her early thirties. The record indicates elsewhere, however, that she began using drugs and alcohol as early as the tenth grade. Dr. Weitz indicates that L.N. "never really viewed herself as having a problem with drinking," despite her several admissions into rehabilitation programs. Another significant inconsistency is L.N.'s denial of a continuing relationship with J.M. She reported to Dr. Weitz that "she has had no contact with [J.M.] in two years." The evidence presented at the November 2006 hearing, however, demonstrated that L.N. was seen with J.M. on at least two occasions in late 2005. The court even noted in November 2006 -- just sixth months prior to L.N.'s evaluation by Dr. Weitz -- that it "cannot conclude that [L.N.] has eliminated any and all danger posed by [J.M.]. Moreover, the court found in November 2006 that L.N.'s "failure to eliminate [J.M.] from her life does reflect poorly on her judgment . . . because she has known for over a decade how dangerous he is and is not able to totally disengage herself from him."
Dr. Weitz noted in her report that L.N. "had some difficulty articulating a plan for having [M.N.] placed in her care. She wants to begin overnight visitation as soon as possible, but could not weigh the pros and cons of gradual versus abrupt unification." L.N. acknowledged that if M.N. were returned to her care, the child would no longer see her siblings who had been adopted by the same foster parents caring for her since she was born. L.N. hoped that M.N.'s foster parents would allow the child to continue seeing her siblings if she were returned to L.N.
Dr. Weitz "found that [L.N.] distorts reality to her advantage . . . . minimizes, rationalizes, and denies behavior even in the face of documented evidence," and concluded that "no amount of psychotherapy can lead to behavior change if an individual does not take responsibility for her actions." Dr. Weitz specifically commented:
While I commend [L.N.] for the progress she has made in living independently, remaining drug-free, participating in counseling, and visiting reliably with [M.N.], I have reservations about her ability to maintain these gains if [M.N.] is placed in her care. Unexpected events and emergencies happen when raising children. I do not view [L.N.] as having the cognitive flexibility to deal with sudden change. Similarly, I question her ability to know how to parent and discipline her child as her mood, behavior and development change.
Dr. Weitz expressed "reservations about [L.N.'s] long-term stability once a child is placed in her care. Should some relapse (with drugs) or disruption (loss of job or residence; relationship with an abusive individual) occur, [M.N.'s] health, safety and well being will be compromised."
Notwithstanding the substantial evidence of L.N.'s long history of drug abuse, instability and continued relationship with the abusive J.M., on March 15, 2007, when the child was fifteen months old and had been in foster care since birth, the trial court declined to sign an order to show cause initiating the Division's guardianship action for termination of parental rights; rather, the court increased visitation.
On May 15, the Division again presented the court with an order to show cause and verified complaint for guardianship pursuant to N.J.S.A. 30:4C-15(f), which requires the Division to file its petition for guardianship "no later than when the child has been in placement for [fifteen] of the most recent [twenty-two] months, unless the [D]ivision establishes an exception to the requirement to seek termination of parental rights." The Division ordinarily commences a guardianship action by order to show cause in order to expedite the proceedings. R. 5:12-2(a).
Even while a protective services case is proceeding pursuant to N.J.S.A. 9:6-8.10a to -8.106, the Division is obligated to plan for permanency of the child in the event the parents are unable to regain custody within a reasonable time. N.J. Division of Youth and Family Servs. v. K.M., 136 N.J. 546 (1994); N.J.S.A. 30:4C-15 as amended by the Adoption and Safe Families Act, 42 U.S.C.A. § 629.
When the guardianship petition was presented to the court, the trial judge declined to sign it, stating that "[t]here's not a short term danger." The court seemed to believe that the Division had to present all of its proofs in support of the petition in order to commence the guardianship action. When counsel for the Division pointed out that the petition was being filed because the child had been in foster care for eighteen months, she noted the court's own expert "said that she would not recommend reunification or any long term placement with [this] mother because of [the] psychological effect on the child." Although the court was obviously familiar with Dr. Dyer's several reports, having referred to them just six months before in its November 28, 2006 decision, the court responded that "[i]t is conceivable I would sign the [guardianship petition] . . . if I see a Dyer report for it." In its subsequent letter opinion, the court reiterated "that it would be better for [M.N.] if the court had more information when the ultimate decision in this case is made." The trial court appeared to mistake the filing of a petition with "the ultimate decision" at the end of the guardianship proceedings.
The Division argues that the trial court erred in refusing to sign the order to show cause and sign the petition. We agree. While the petition must allege facts upon which the guardianship action is premised, it is not necessary to present proofs at commencement of the guardianship action. N.J.S.A. 30:4C-15. The court had an obligation to sign the order to show cause and file the petition in accordance with the statutory mandate. N.J.S.A. 30:4C-15. The trial court apparently failed to appreciate that the Division was obligated to continue its efforts at reunification pursuant to N.J.S.A. 30:4C-15.1(c) after the court had denied the Division's motion to waive the reunification requirement in March 2006. Moreover, the ultimate determination as to whether parental rights will be terminated can only be made after a full evidentiary hearing in which all parties participate and have the opportunity to present their evidence. In order to terminate parental rights, the Division has the burden of proving by clear and convincing evidence the four factors articulated in DYFS v. A.W., 103 N.J. 591 (1986) and codified in N.J.S.A. 30:4C-15.1(a).
After carefully considering the extensive evidence in the record before us, we are convinced that the Division met its obligation under N.J.S.A. 30:4C-15 and that the trial court erred in refusing to accept the petition for guardianship.
The law guardian further argues that the trial court's decision to increase visitation and allow partially supervised overnight visits is not supported by adequate, substantial and credible evidence in the record. Again, we agree.
At the May 15, 2007 hearing, Dr. Weitz, the court's own expert, was questioned by the trial judge, specifically with respect to her comment in the final paragraph of her report indicating that she had "reservations about [L.N.'s] long-term stability once a child is placed in her care." The court inquired whether Dr. Weitz "perceive[d] a short term danger if [it] allow[ed] continued visits and include[ed] overnight visits, you're [sic] -- you're [sic] concern is long term?" Dr. Weitz responded: "My concern is long term but I guess I need some clarification on when you talk about overnights that would be unsupervised overnight?" The judge responded that in all likelihood they would not be supervised when the child was sleeping. Under that circumstance, Dr. Weitz indicated that her "reservations are really more limited to the long term."
When the law guardian requested the opportunity to question Dr. Weitz about Dr. Dyer's bonding report, the court directed the doctor not to answer. The court specifically said that it "will allow the doctor to see that portion of the evaluation dealing with the bonding, but not a portion of any [e]valuation dealing with a bonding between M.N. and L.N." The judge then explained to Dr. Weitz, "[T]he reason I'm not having you answer the question is the -- the scope of your job is to determine, as I set forth in my opinion, is -- is -- is to report your views concerning [M.N.'s] health, safety and well-being while in L.N.'s care." The law guardian persisted, stating: . . . I think [Dr. Weitz's] opinion is very clear that she has reservations of -- about the safety, care -- if --
THE COURT: - that maybe that could end up causing me to agree with the Division, however, that's a far different issue, far different, from who is [M.N.] more attached to. I don't think -
[LAW GUARDIAN]: Your Honor there is more to -- much more to Dr. Dyer's report than who M.N. is attached to.
THE COURT: But I have not read Dr. Dyer's report so I would not know . . . .
The law guardian then asked the judge if she could question Dr. Weitz as to "what benefits she would see to increase[d] visitation for [M.N.] at this point." L.N.'s attorney objected and the court sustained the objection, stating:
The benefits [of increased visitation] are that it would enable the Court two benefits. One, it will enable the Court to make a decision which is my decision, not [Dr. Weitz's] decision. Secondly, it is -- it appears to me likely that even if the Division convinces the Court to allow it to file a -- a termination of parental rights proceeding, and even if the Court convinces -- is convinced by the Division to terminate [L.N.'s] parental rights, under the last sentence of M.M.,*fn3 the -- [L.N.] would certainly be allowed continued time, in fact, [Law Guardian], you agree, do you not?
[LAW GUARDIAN]: I'm sorry, Your Honor?
THE COURT: You agree with [what] I just said?
[LAW GUARDIAN]: I'm sorry, I was trying to read something over there.
THE COURT: Okay. What I said, is that even if the Division were to convince the Court to allow termination of parental rights proceeding and even if the Division were to convince the Court to terminate [L.N.'s] parental rights, of course, we'd be governed by the last sentence of M.M. so she'd have continued visitation. There -- therefore --are you saying -
[LAW GUARDIAN]: Your -- Your Honor; --
THE COURT: [Y]ou're saying I ignore the Supreme Court opinion. Well, that's -
LAW GUARDIAN]: Your -- Your Honor, honestly at this point I don't know what to say.
THE COURT: -- okay, [Law Guardian], . . . what does the last sentence of M.M. say?
[LAW GUARDIAN]: Your Honor, the last sentence of M.M. was clearly defined with respect to that particular case. There has been no evidence here that post adoption visitation would be to [M.N.'s] best interest.
The court then continued to question Dr. Weitz as to whether she believed a reassessment of L.N. after two months of continued therapy and overnight visits would "enable both you and me to have more information." Dr. Weitz responded that "sixty days in the scope of therapy is not a lot of time, so, she really needs to go weekly to the same therapist." The court responded: "That's fine." The judge then asked Dr. Weitz: "Incidentally, do you see any substantial psychological advantage or disadvantage to the visits?" L.N.'s attorney objected and the court stated: "No, I think she can answer this [question]." The court then rephrased the question to Dr. Weitz:
Do you feel that -- is it possible to state at this point, I'll put it that way, whether the visits . . . between [M.N.] and [L.N.], are necessarily beneficial or not beneficial?
L.N.'s attorney again objected and, ultimately, Dr. Weitz responded, "I can't answer that."
Thereafter, the hearing deteriorated into such a disjointed exchange among counsel and the court that it is difficult to determine from the transcript what was actually said by whom. The court indicated it would issue a written opinion, but the disjointed discussion continued with the law guardian requesting a stay of the overnight visitation pending appeal. The discussion between the court and counsel again deteriorated over the law guardian's request that the judge include in the form of order that he declined to sign the petition for guardianship. The law guardian attempted to bring the discussion to a close by stating, "We can put that in the order and then it would be my responsibility to take the position we do afterwards. At this point, it will be a waste of time to just continue on this. If Your Honor wants to order overnight visits, let's put that in the order and move on." The court then addressed L.N. directly regarding the hours of the visitation.
After the visitation schedule was finally established, the law guardian moved for the court to recuse itself:
Your Honor, based on the fact that New Jersey statute N.J.S.A. 30:4(C)-15 states that a petition shall be filed as soon as the child has been out of placement for fifteen of the last twenty-two months and based on the fact that the Court's own expert has shown in her report that she sees little hope for reunification in this matter. I am now asking the Court to recuse himself from this case.
L.N.'s attorney objected to the motion and, again, the discussion deteriorated to the extent that the transcript is virtually unintelligible. Ultimately, the court indicated that it would reserve on the motion.
On May 17, 2007, the court rendered a letter opinion in which it focused on Dr. Weitz's report, listing nine "observations favorable to [L.N.]" and nine "observations unfavorable to [L.N.'s] ability to parent." The trial court entirely disregarded Dr. Dyer's several reports referred to in the November 28, 2006 opinion, asserting that the bonding evaluation was never shown to him. During the May 15 proceeding, the law guardian presented Dr. Dyer's bonding evaluation and the court indicated that it would study it. The court refused, however, to allow Dr. Weitz to review the report. The court further disregarded all of the evidence presented just six months earlier at the November 2006 hearing, in deciding to increase visitation and include overnight visits, which would only be partially supervised.
In its May 17, 2007 opinion, the trial court indicated that it based its decision to allow overnight visitation on Dr. Weitz's statement that she had greater "reservations about
[L.N.'s] long-term stability once a child is placed in her care." Even if he did not have Dr. Dyer's most recent report at the time he rendered his opinion, the trial judge certainly had Dr. Dyer's prior report in which he indicated that:
I wish to stress that for virtually any other client in [L.N.'s] circumstances, the progress documented in the materials submitted by her attorney would clearly be associated with a lower risk of harm if the client were allowed to care for her infant daughter with supervision. In the present instance, however, we are dealing with a client who has a lengthy history of appearing to profit from services, and then reverting to her former pattern of drug/alcohol abuse and resuming her extremely dysfunctional and abusive relationship with her children's birth father. Thus, the present glowing reports from [L.N.'s] counselors are familiar echoes of prior effusive statements of progress that merely preceded a return to lifestyle choices that endangered the subject's older children, who now enjoy the protection of foster or adoptive homes.
Moreover, the trial judge ignored the evidence of L.N.'s long-term drug use, her continuing relationship with J.M. and her persistent denials of both -- all of which were well documented and substantiated in November 2006.
In our consideration of the record, we do not find substantial credible evidence to support the trial court's decision to increase visitation and include partially supervised overnight visitation. In our view, the trial court erred in increasing visitation and including partially supervised overnight visits.
Finally, in the May 17 letter opinion, the trial court denied the law guardian's motion to recuse itself, and justified its denial of the motion on the ground that it "was recently accused by appellate counsel for [L.N.] of favoring the Division." It is apparent from the record that the law guardian moved for recusal because the trial court refused to permit the Division to file the petition for guardianship within a certain period of time as required by the statute. While the visitation decision did not necessarily exhibit bias, it did exhibit a narrow focus on some aspects of Dr. Weitz's report while disregarding overwhelming evidence of L.N.'s lifetime history of drug/alcohol abuse, relapses, unemployment, instability and persistence in a relationship with J.M. who subjected her to severe domestic violence.
Accordingly, we reverse the order of May 17, 2007 and remand the matter for further proceedings, consistent with this opinion. We direct that the matter be assigned to another judge for all further proceedings.
Reversed and remanded.