On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FG 14-45-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and LeWinn.
D.M. is the natural mother, and F.M. the natural father, of S.N.C.M. (S.M.), born September 18, 2001. Both parties appeal from the May 22, 2007 order of the Family Part terminating their parental rights and awarding guardianship of S.M. to the Division of Youth and Family Services (DYFS).
The parties first came to the attention of DYFS in June 2004, when caseworker Nicholas Mangold received a referral to the parties' residence from the Montville Police Department reporting a "verbal argument between the parents." Upon arrival, D.M. told Mangold that F.M. "had attempted to hit [S.M.] with a belt during the argument." Mangold observed the residence and found "no obvious safety hazards." Mangold ascertained that "the family had a history of financial problems. . . . [T]hey were having problems getting the rent paid on time and . . . [were] getting behind on their bills."
Mangold advised D.M. about the possibility of seeking a domestic violence temporary restraining order. D.M. "said she was thinking about doing so the following day." D.M. told Mangold that "there had been a history of domestic violence[,] and [F.M.] would disappear for two to three weeks, that's why she didn't feel that an immediate restraining order was necessary."
F.M. "confirmed that there was a verbal argument[,]" and that he had tried to "get [S.M.] to calm down and . . . to discipline her . . . he had made a loop with his belt and tapped her on the arm." Mangold observed no injuries on S.M.
Mangold asked the parties about substance abuse "as part of our investigation." F.M. "acknowledged that he had a history of that. And he said he had not used any substances since 2002." Mangold then requested F.M. to "comply with a certified alcohol and drug evaluation through our office counselor." Mangold discussed various DYFS services with the parties, "to provide [them] with parenting skills and . . . organizational skills[.]" Both parties were "interested in receiving" those services, because of "their financial situation" and the "fact that at times they [were] having difficulty controlling [S.M.]." At the time of this visit, S.M. was two and a half years old.
Mangold received a second referral to the parties' residence on July 15, 2004. Their electricity had been turned off and D.M. was upset because she took medication that required refrigeration. Also, the food and diaper supply was "getting low[.]" DYFS provided the family with financial assistance to restore their electricity.
On that same date, Mangold transported F.M. to an alcohol and drug evaluation, and then took him to a Salvation Army store to pick up "various supplies for food, clothing, [and] diapers for the child." Mangold set up an account at the Salvation Army store for ongoing support to the parties.
Mangold testified that he "did not substantiate any abuse or neglect. . . . It was a child welfare investigation, due to the nature of the condition of the home."
In the interim between these two referrals, Mangold testified that he received many telephone messages from D.M. saying that "she was having trouble with [S.M.] at times[,]" and that "she was having trouble financially." F.M. had apparently left the residence for a period of time, and D.M. also left messages advising Mangold that she had not heard from her husband.
DYFS received a third referral on August 10, 2004, when the emergency department at St. Clare's Hospital contacted DYFS, advising that the parties had brought S.M. in "for stomach pain." While in the emergency room, the parties "were arguing with each other," and hospital staff "wanted to make sure that everything was okay with . . . the family at home."
Mangold went to the parties' residence and interviewed D.M., who denied that she and F.M. had had an argument; rather, D.M. said that she had had an argument with a neighbor who had helped to transport the family to the hospital.
Mangold continued to receive voicemails from D.M. advising him that (1) she had witnessed F.M. using drugs within the recent past; and (2) F.M. wanted a divorce because he was having an affair with the neighbor with whom she argued the night S.M. went to the emergency room.
Mangold said that he became concerned about D.M.'s well-being, as a result of these telephone messages. He visited D.M. at her residence on August 12, 2004, and found her "very upset, visibly concerned." D.M. told Mangold that she and F.M. had had an argument the previous night and "she made allegations that she was sexually assaulted and raped by [F.M.]." S.M. was present during this interview; however, F.M. was not at home. At this time, D.M. applied for and received a restraining order.
Mangold learned that D.M. had been diagnosed with multiple sclerosis. He was concerned about her "physical disability" with "a very active young child running around the house, throwing items[.]" D.M. walked with a cane; her physical movements were slow; and she was taking medications. Mangold stated that he did not know whether her medications "would impact her mental stability or ability to adequately supervise the child. [He] did not know what the effects of that were."
On several occasions, Mangold discussed DYFS-provided services with D.M., for assistance with "housing, clothing, food, transportation and [an] outreach worker[.]" D.M. "was very open to that. She admitted that she needed some assistance."
Mangold acknowledged that, while he was the parties' caseworker, S.M. remained in her parents' custody. He described the child as "clean and healthy . . . very active." At no time during Mangold's supervision of the case was any neglect or abuse substantiated against either party. He observed D.M. to have difficulty disciplining S.M. when the child was being playful. D.M. told Mangold that she and F.M. had "arguments over the fact that he sometimes uses minor physical discipline and [D.M.] did not agree that that was appropriate."
Mangold was the parties' caseworker from June to October 2004. On October 6, 2004, Mangold arranged for an in-home nursing consultation with S.M. and D.M. Nurse Bethea A. Brost reported that D.M. was under treatment with a physiatrist, Dr. Rand, for her multiple sclerosis, but would prefer to see a physician who specialized in the disease. Brost's "main objective in the home visit was to assess the current health status of [S.M.]." Brost reported that S.M.'s "growth was excellent. The physical examination was completely normal other than significant tooth decay or 'baby bottle caries' caused by having the bottle in the mouth for long periods of time[.]" Brost was unable to perform a developmental screening test on S.M. because of the child's "lack of cooperation . . . and her shyness and . . . the limited time factor."
Brost made several recommendations, including: (1) "a psychological assessment of both parents to assess their parenting strengths and weaknesses"[;] (2) "some form of social interaction for [S.M.] with Head Start . . . or some similar type of activity"[;] (3) a dental checkup for S.M.; and (4) an evaluation of S.M.
On December 15, 2004, D.M. brought S.M. to a DYFS-scheduled evaluation at Morristown Memorial Hospital. Dr. Janet DeGiorgio-Miller reported that D.M. "had difficulty completing the questions on the registration paperwork. She did not complete her interview." Dr. DiGiorgio-Miller noted that D.M. "has numerous needs, medically, (M.S.) and financial." She recommended outreach services "to introduce [D.M] to assistance. Daycare for S.M." A psychiatric evaluation was to be scheduled.
As of January 12, 2005, Carol Baldino was D.M.'s DYFS case manager. A case plan of that date noted that "[S.M.] needs to be in a safe home." D.M. was to have no contact with F.M. and to allow no contact between S.M. and F.M. D.M. was required "to follow all hospital recommendations including instructions for taking medication as well as for follow-up testing and care." D.M. was also required to cooperate with psychiatric/psychological evaluations and "all DYFS recommendations including but not limited to in-home counseling and social services."
On January 18, 2005, D.M. dismissed the final restraining order she had obtained against F.M. in August 2004.
DYFS case notes indicate the following series of events leading up to S.M.'s removal from appellants' home in March 2005.
On March 24, 2005, D.M. contacted DYFS to report that she believed that F.M. had molested S.M. DYFS caseworker Linda McNamara advised D.M. to contact DYFS's Central Screening Unit to report the incident; however D.M. did not do so until the following day.
On March 25, 2005, a neighbor contacted DYFS to report that S.M. had alleged that F.M. had "touched her private parts." A DYFS worker responded and contacted the police for assistance. The caseworker learned from a police officer that F.M. was at the police station applying for a temporary restraining order against D.M. as the result of allegedly having been hit by D.M. with a telephone. F.M. was also applying for custody of S.M.
The caseworker met with F.M. at police headquarters and advised him that DYFS would not support his receiving custody of S.M. based upon the recent allegation of sexual abuse. F.M. denied having sexually abused his daughter. F.M. obtained a temporary restraining order against D.M. that stipulated that custody of S.M. and visitation would be "left up to the discretion of [DYFS]."
The DYFS caseworker located D.M. and S.M. at the home of a family friend in Boonton. D.M. appeared emotionally unstable and had difficulty with physical movement because of her multiple sclerosis. D.M. accused F.M. of severely emotionally and physically abusing her and of possessing heroin in front of S.M. a few months earlier. The caseworker reported that she became concerned regarding D.M.'s erratic behavior and whether she was able to protect S.M.
On March 28, 2005, the caseworker transported D.M. and her friend to the Morris County Courthouse for the purpose of assisting D.M. in obtaining another restraining order. During the ride to the courthouse, the DYFS worker reported that D.M. stated she intended to leave New Jersey with her daughter. Both D.M. and her friend were disruptive and uncooperative with court staff and, according to the caseworker, displayed "inappropriate and bizarre behavior." On that same day, DYFS executed an emergency removal of S.M. from her parents' care.
The only other DYFS caseworker to testify at trial was Jennifer Crossman, who became the family's caseworker on April 24, 2006. By the time Crossman took over the case, S.M. had been in foster care placement for over one year. Crossman testified that when S.M. was initially placed in foster care, the goal was reunification. DYFS provided D.M. and F.M. with regular visitation with S.M., first each parent separately and later together. Initially visitation was once a week, but it was subsequently increased to twice a week.
Notwithstanding the parties' history of some domestic violence, DYFS recommended joint visitation because "[F.M. and D.M.] were compliant and they were doing well. . . . [A]fter June of '06, things started to get better and [DYFS] felt they were making progress in visitation." Crossman acknowledged that, in the summer of 2006, there was a two-month period during which F.M. did not visit S.M. and was not in regular contact with DYFS.
DYFS provided "ninety five percent" of the parties' transportation to their visitation with S.M., according to Crossman. DYFS also made appointments and transported D.M. to St. Barnabas Medical Center to see a multiple sclerosis specialist. DYFS gave F.M. a bus pass to enable him to get to visitation as well as to attend therapy at St. Clare's. The parties also attended couples counseling.
Regarding F.M., Crossman testified that, as of April 2007, he had "already been sober for . . . a period of time, so he didn't really meet the criteria for" the intensive outpatient substance abuse treatment program at Hope House. However, at a case management conference immediately prior to trial, F.M. had tested positive for cocaine. As a result, DYFS recommended a follow-up assessment. The results of that assessment were negative for cocaine.
Crossman testified that the parties also had "issues regarding eviction[.]" In May 2006, D.M. faced the risk of eviction for non-payment of rent; however this situation was rectified and no eviction occurred.
Crossman also testified that neither party presented any relatives who could be viable candidates for placement of S.M. Each party had presented relatives but "for numerous reasons, they were ruled out."
Crossman described S.M. as "a very healthy, sweet, young, beautiful child." S.M. had no special needs, either educational or developmental, of which Crossman was aware. S.M. was in DYFS-provided counseling. As of the time of trial S.M. had been in placement with her current foster parents since August 2005. According to Crossman, S.M.'s needs are being met by her foster parents and DYFS expects that to continue. Crossman represented that the foster parents "are very interested in adopting [S.M.]." Crossman observed F.M. with her foster parents and described the relationship as "[w]arm, loving." Neither F.M. nor D.M. had offered any alternative plan other than their parenting S.M. together.
Dr. Rachel Jewelewicz-Nelson (Nelson), a licensed clinical psychologist, conducted a "best interests" evaluation on behalf of DYFS, on February 26, 2007. This consisted of psychological evaluations of both parties and a bonding evaluation of S.M. with both her natural and her foster parents.
Dr. Nelson observed D.M. to be "very slow, . . . very deliberate, . . . 'spacey' and unaware of a lot of what was going on in her environment." When completing information and taking the psychological tests, D.M. was "very slow and took much longer than typical to complete everything."
Dr. Nelson opined that D.M's multiple sclerosis was "not really a reason for being unable to parent [S.M.]. . . [i]n terms of her cognitive and intellectual ability[.]" However, the doctor opined that D.M. "seemed very limited in her ability to negotiate activities of daily living."
Regarding F.M., Dr. Nelson was aware of his drug abuse history; he had told her about that history in his interview. F.M.'s psychological testing led Dr. Nelson to be "concerned about his parenting ability" because "he didn't have a good sense of how much freedom and how much limitations and restrictions a child ought to have in terms of safely being able to explore her world. . . . And, he doesn't have a good repertoire of alternatives to use when discipline is necessary."
Dr. Nelson conducted an hour-and-a-half bonding evaluation with S.M. and her parents. D.M. "was in one of her sleepy modes." F.M. was "very actively engaged with [S.M.]." F.M. would draw D.M. into the interaction, "at which point she would participate for a while, and then kind of take a back seat." The doctor "was struck by the fact that [S.M.] accepted [D.M.]'s gestures of affection whenever [D.M.] offered them, but that
[S.M.] did not seek them out or elicit them in the same way that she did seek out and elicit physical contact with her father." At the conclusion of the bonding evaluation, F.M. told Dr. Nelson that D.M. is "not usually like this, . . . that this was not one of her better days."
Dr. Nelson expressed concern about the way F.M. and D.M. communicated with each other:
[F.M.] seems to walk on eggshells . . . in the way he talks to [D.M.]. He seems to be afraid of her and is very tentative in how he talks to her. And [D.M.], in the bonding session that I observed, was really not aware of everything that was going on in the session.
Dr. Nelson also conducted a bonding evaluation of S.M. with her foster parents. S.M. was "very quiet and very constricted" during the evaluation; the foster parents "[v]ery much" expressed interest in adopting her and "seemed committed" to the child.
During the bonding evaluation, Dr. Nelson left S.M. alone in the room with each foster parent individually. She observed that "each time one parent left, [S.M.] very quickly got up and went to sit next to the other parent to maintain physical contact with that parent." This "suggested" to Dr. Nelson that S.M. "clearly was looking to them for protection and security and comfort in this novel situation." The doctor described S.M. as "very shy[,] . . . very slow to warm up . . . hypervigilent [sic] and very careful in these situations. She's not very trusting."
Dr. Nelson's recommendation was that S.M. be "freed for adopting by her foster parents." This stemmed from her concerns about F.M. and D.M.:
My first concern is that the parents are placing too much burden on [S.M.] to be the vehicle for their reunification. The focus of all their therapy and the emphasis of everything that they've done up until now is to get [S.M.] back. And so they've been working on their marriage, they've been working on communication skills, they're . . . doing everything for the purpose of getting [S.M.] back. And that's a very big burden for a child to carry in terms of maintaining and protecting and perpetuating her parents' marriage. . . .
The second concern I have is that [F.M.] has a fairly rigid understanding and a very concrete understanding of life in general. And that although when he is taught specific things that he ought to do with [S.M] in terms of parenting, he can follow through very compliantly. My clinical judgment is that he's not very adept at adjusting those leanings and growing with [S.M.] and adjusting his parenting to her needs as she grows and changes over time.
My second concern for [F.M.] is that he relapsed and that therefore his coping mechanisms are still very tenuous and very fragile and that he would potentially place [S.M.] in danger if he relapsed again. . . . . . . .
. . . [H]e knows he ought to go to meetings, he knows he ought to not use, he knows he needs to maintain employment and provide for his family. He knows that children should not be hit but he doesn't understand why for example. He doesn't understand the negative implications of being witness to domestic violence. He doesn't understand the damage to [S.M.] of all the previous times in which she has been used by both parents in their verbal arguments and its negative impact on her.
So I would expect that his behavior would continue in a similar way in the future, if he had [S.M.] back. . . . .
My concern about [D.M.] is that she still tends to fall asleep at times. So if she had a child in her care, I would worry that danger would befall this child. I would worry that she would not be able to get up in time, get her to school, get her home, get her to bed, maintain a routine for her.
I am also concerned about the fact that [D.M.] tends to be both rigid in her thinking, in terms of some parenting aspects, and also tends to have some suspicious and paranoid ideation. For example when she originally thought that [F.M.] was sexually abusing her or when she thought [F.M.] was flirting with the neighbor and she got angry at [F.M.] and took it out on [S.M.] by calling the police and wanting a restraining order against him and things like that.
So she seems to have poor judgment and a poor sense . . . of reality at times, in terms of what's really going on.
My third and most important concern regarding [D.M.] is that she's a poor historian. She goes off on tangents, she falls asleep, she loses her train of thought. If [D.M.] had to meet with a pediatrician over a problem, or with a principal or teacher over issues in school, I am very concerned that . . . her poor communication skills would really prevent her from conveying the important information to these other people. And I'm not sure that she would be able to remember . . . and understand and carry out what they tell her regarding the care of [S.M.].
Dr. Nelson opined that "there is a very strong possibility that reunification [between S.M. and her natural parents] would fail, and . . . that would be absolutely devastating for [S.M.]." Dr. Nelson believed that the foster parents "are very capable of ...