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New Jersey Division of Youth and Family Services v. E.P.

July 14, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.P., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF: A.H., A MINOR



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(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).

The Court considers whether in these circumstances the family court erred in finding that the best interests of the child would be served by a termination of parental rights.

Andrea was born on July 27, 1995. Three years later, Andrea's mother, Emilia, suffered a psychological breakdown and could not care for her. Emilia's sister, Ann, took Andrea into her home. Emilia visited her daughter on weekends. Emilia struggled with addiction to heroin, homelessness and unemployment. In 2000, Emilia was convicted of drug possession and was incarcerated for six months, followed by probation. By 2001, Anne's relationship with Andrea had turned sour, and an allegation that Andrea had been abused triggered involvement by the Division of Youth and Family Services (Division). Despite the Division's intervention and services between December 2001 and March 2003, Andrea was sent to live in a foster home. That placement lasted two months and was followed by a succession of foster homes, a shelter, and a treatment facility. Andrea's problems included tantrums, assaults on other children and school staff, physical threats directed at foster parents, and threats or attempts to kill herself. As she moved from one home to another, Andrea persistently asked to live with her mother.

Meanwhile, from 1998 to 2007, Emilia attempted to deal with her drug addiction through multiple in-patient and out-patient treatment programs. She repeatedly relapsed. However, as of 2003, Emilia had found an apartment, had obtained employment as a waitress in a diner, and had successfully completed a parenting skills program, which she repeated again in 2004 with her long-term boyfriend. Although Emilia complied for the most part with the Division's reunification plan, including maintaining steady contact with Andrea, submitting to random drug tests, taking methadone, and attending psychotherapy sessions, the Division filed a Guardianship Complaint in April 2004 seeking the termination of Emilia's parental rights due to her intractable drug problem. In December 2004, Emilia signed an identified surrender that would have transferred all of her parental rights to Andrea's foster parents, but the foster parents decided shortly thereafter that they did not want to adopt Andrea. The Division moved to vacate the identified surrender and filed a second Guardianship Complaint seeking to terminate Emilia's parental rights.

The guardianship hearings occurred over six days between July 2005 and February 2006. Emilia had relapsed to heroin usage in September 2004 and the summer of 2005, but she asserted that she was committed to her recovery program and was prepared to go for in-patient treatment and to continue counseling toward the goal of regaining custody of her daughter. Emilia testified about her employment as a waitress, her stable residence, and her five-year relationship with a supportive man that her daughter called "daddy." At the time of the hearing in February 2006, Emilia was taking medication for anxiety and depression, learning parenting skills, receiving substance abuse treatment, and desperately wanted to be reunited with her daughter. The family court also heard testimony by Emilia's expert witness, a psychologist, who opined that Emilia's reunification with Andrea would be in the best interest of the child and who testified that Andrea had a very strong attachment to her mother. The expert witness testified further about his psychological evaluation of Emilia, maintaining that she was capable of parenting Andrea if she continued counseling and remained drug-free, but he was not aware that Emilia had relapsed within the prior six months. The Division's expert psychologist found that Emilia was the only figure in Andrea's life to whom she had a positive emotional connection, but he noted Emilia's drug relapses and concluded that she did not possess adequate parenting capacity to care for Andrea. He believed that Andrea needed a permanent caretaker and a great deal of structure, supervision, and other support. A Division adoption specialist testified that older foster children are more difficult to place and that it could take two to three years to find a placement for an older child. Andrea's law guardian opposed the termination, testifying that Andrea did not react well to previous attempts to sever her relationship with her mother and had attempted suicide on several occasions.

The family court terminated Emilia's parental rights based on the four-factor best-interests-of-the-child test. Although the court acknowledged the improvement in Emilia's life, it found that her continued drug use, deep depression, and inability to provide a stable home for Andrea endangered the child's health and development. Recognizing the improbability that Andrea would ever be placed successfully in an adoptive home, the court terminated Emilia's parental rights to give Andrea at least an opportunity for permanency. The court suggested that if an adoption was not effectuated and Emilia stabilized her life, she could seek to reopen the case in the future.

In an unpublished opinion, the Appellate Division affirmed the termination of parental rights substantially for the reasons stated by the family court. This Court granted Emilia's petition for certification. 190 N.J. 257 (2007).

HELD: The Division of Youth and Family Services did not prove by clear and convincing evidence that termination of the mother's parental rights would not do more harm than good. In the unique circumstances of this case, a parent-child relationship that continued to provide emotional sustenance to the child should not have been severed based on the unlikely promise of a permanent adoptive home.

1. The right of a parent to raise a child and maintain a relationship with that child, without interference by the state, is protected by the United States and New Jersey Constitutions. When the safety and welfare of a child become irredeemably jeopardized by parental abuse or neglect, however, the State may sever the relationship between a parent and a child. In balancing a parent's rights against the State's interest in the welfare of children, the State bears a heavy burden to show that termination of parental rights is in the best interests of the child. (Pp. 17-18).

2. Under the best-interests-of-the-child standard, a parent's rights may be terminated when the State proves by clear and convincing evidence each of four factors: 1) the child's safety, health or development has been or will continue to be endangered by the parental relationship; 2) the parent is unwilling or unable to eliminate the harm 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; 3) the Division has made reasonable efforts to provide services to help the parent correct the circumstances that led to the child's placement outside the home and the court has considered alternatives to termination; and 4) termination will not do more harm than good. A family court's decision to terminate parental rights will not be disturbed when there is substantial credible evidence in the record to support the court's findings. (Pp. 18-20).

3. Here, the family court correctly concluded that factors one through three of the best-interests-of-the-child test were established by clear and convincing evidence. The first two factors were met by Emilia's history of drug addiction and severe depression, which caused Andrea to be cycled through a succession of foster homes. Although Emilia eventually achieved a more stable lifestyle, she suffered drug relapses shortly before and during the guardianship hearings. The third factor was met by the Division's diligent efforts to reunite the family and by the fact that there was no person available to serve as a kinship legal guardian. (Pp. 20-22).

4. With regard to the fourth factor, the family court struggled to determine whether the termination of parental rights would not do more harm than good. Prong four serves as a fail-safe against termination even where the remaining standards have been met. The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent. When a parent has exposed a child to continued harm and has been unable to remediate the danger, and when the child has bonded with foster parents who have provided a nurturing and safe home, termination of parental rights likely will not do more harm than good. However, terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child. (Pp. 22-27).

5. Andrea, who is almost thirteen years old and psychologically fragile, has bounced around from one foster home to another. It is undisputed that her only enduring emotional bond is with her mother. At the time of the guardianship hearings, there was no permanent placement for Andrea in sight and the family court considered it highly questionable whether she would ever find a permanent home with a foster family. Although this Court, the State Legislature, and even Congress have emphasized that permanency must be the Division's goal, none has stated that the unlikely possibility of permanency in the future should outweigh a strong and supportive relationship with a natural parent. Therefore, the Court reverses the Appellate Division, which affirmed the family court's decision to terminate Emilia's parental rights. The family court was clearly mistaken in finding that the Division satisfied the four-prong best-interests-of-the-child test and in terminating Andrea's relationship with her mother. (Pp. 27-30).

6. Although Emilia has continued to maintain a positive relationship with Andrea and has continued to pursue a drug-free, responsible lifestyle, this Court is not the proper forum to resolve questions about Andrea's present guardianship status or her future relationship with her mother. Any changed circumstances must be brought to the attention of the Division and the family court. (Pp. 30-31).

7. Before deciding whether to terminate a parental relationship, family courts may consider, in appropriate cases, the wishes of a child over the age of ten who has reached a level of maturity that allows the child to form and express an intelligent opinion. However, children's wishes may often not be in their own best interests. Because each case will bring to bear particular factors that relate to the child's psychological well-being, the Court leaves this matter to the sound discretion of the family court. (Pp. 31-34).

The judgment of the Appellate Division is REVERSED, the termination of Emilia's parental rights is VACATED, and the matter is REMANDED for further proceedings consistent with this opinion.

JUSTICE RIVERA-SOTO, DISSENTING, believes that this case does not satisfy the standards required to justify the grant of a petition for certification. He maintains that certification should be vacated as improvidently granted.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE and HOENS join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice Albin

Argued January 22, 2008

In this case, the Appellate Division affirmed the Family Part's termination of a mother's parental rights to her daughter, who is now almost thirteen years old. The termination was based in large part on the mother's addiction to drugs, psychological problems, and unstable lifestyle, all of which made her unfit to care for her child for most of the child's life. Her emotionally fragile and unstable daughter moved from one foster home to another, and suffered abuse on more than one occasion. There is no prospect of the daughter's adoption on the horizon.

Although mother and daughter have not lived together now for more than nine years, they have maintained a loving relationship, through periodic visits and telephone conversations. Despite the mother's manifest deficiencies, they have developed a strong emotional bond with each other.

Termination of parental rights severs all ties and contacts between a parent and a child. The object is to allow the child the opportunity for a permanent placement with a new family, where the child can grow and thrive with the end goal of adoption. However, here, permanent placement is a remote possibility, whereas severing the one and only permanent and sustaining emotional bond that the child has -- her relationship with her mother -- is almost certain to cause serious harm to the child, who already has threatened and attempted suicide. Since the family court's ruling, the mother has been on a rehabilitative path -- free of drugs for some time, gainfully employed, and with stable housing. We cannot say, however, based on the record before us, that the mother is or will ever be fit to care for her daughter.

Nevertheless, because a permanent placement with an adoptive family is nowhere in sight and the child's only enduring emotional and loving bond remains with her natural mother, we hold that the Family Part was clearly mistaken in finding that the best interests of the child would be served by a termination of parental rights. For those reasons, we reverse.

I.

A.

This case involves the lives of a mother and daughter, who have been physically separated now for nine years, but who have remained emotionally bonded to each other. We begin with the mother's story.

Emilia*fn1 is the mother of Andrea, who was born on July 27, 1995.*fn2 Three years later, Emilia suffered a psychological breakdown after Andrea's father was murdered. Emilia became incapable of caring for Andrea, and Emilia's sister, Ann, agreed to take Andrea into her home. Emilia visited her daughter on weekends. By 2001, Ann's relationship with her niece turned sour, and an allegation that Andrea had been abused triggered involvement by the Division of Youth and Family Services (Division).

After placing Andrea with Ann, Emilia struggled with her addiction to heroin and from the cascading problems related to her addiction, including homelessness and unemployment. In 2000, Emilia was convicted of possession of drugs, which resulted in her serving a six-month prison term and a three-year probationary period. Despite her sorry plight, Emilia managed to maintain a relationship with Andrea, periodically visiting her while she remained at Ann's home. After Andrea was transferred from Ann's home to foster care, Emilia visited her daughter as often as the court permitted, usually once every two weeks.

Emilia has attempted to deal with her drug addiction problem through multiple in-patient and out-patient programs from 1998 to 2007. Throughout those years she repeatedly relapsed, as evidenced by positive drug tests in late 2004 and early 2005. However, as of January 2008, Emilia was in an out-patient drug treatment program called Khaleidoscope and had not used illicit drugs in the prior year. In 2003, Emilia's nomadic existence came to an end when she found an apartment in Bayonne. That year, she also began a job as a waitress in a diner. In 2001, Emilia successfully completed a parenting skills program, and did so again in 2004 with her long-term boyfriend.

Emilia, for the most part, complied with the Division's reunification plan. She submitted to psychological evaluations and random drug tests, attended psychotherapy sessions and drug rehabilitation programs, which included the taking of methadone to treat her heroin addiction. She also maintained steady contact with Andrea. Nonetheless, because of Emilia's intractable drug problem, in April 2004, the Division filed a Guardianship Complaint seeking the termination of her parental rights. In December 2004, Emilia signed an identified surrender that would have effected a legally binding transfer of all her parental rights to Andrea's then-caretaker.*fn3 Emilia had concluded that she was ...


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