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Division of Youth and Family Services v. D.M.


August 11, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FG 14-45-07.

Per curiam.



Argued May 28, 2008

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 helping [S.M.] work through [the] trauma" of losing her natural parents.

Dr. Nelson conducted an updated interview with D.M. on April 30, 2007. D.M. appeared "alert and personable." D.M. denied to Dr. Nelson that F.M continued to use drugs. Dr. Nelson was aware that F.M. had tested positive at the latest court date in April 2007 and therefore concluded that both parties "have minimized that result[.]"

In a supplemental report, Dr. Nelson reaffirmed her prior recommendations regarding "outcome planning" for S.M., based on the following:

1. [D.M.]'s improved level of functioning is very recent and without the test of time or demonstrated stability, it is still not sufficient for her to be a single, full-time, parent to a young child.

2. [D.M.] continues to exhibit difficulty in . . . decision-making[.]

3. She continues to exhibit narcissistic behaviors that meet her ego needs at the expense of others; her time management and planning capacities are weak.

4. Her relationship with [F.M.] is tenuous; her commitment to the marriage is unclear, particularly if it turns out that they do not get [S.M.] back.

5. She continues to minimize her weaknesses and problems and to present in an unrealistically positive manner.

6. [F.M.] has relapsed with substance abuse; [D.M.] denies, or minimizes it.

Dr. Nelson concluded that D.M. and F.M. would not be able to parent S.M. in the reasonably foreseeable future. The doctor opined that S.M. would be harmed if she were to wait any longer for permanency:

Well, [S.M.]'s already been in and out of home placement for almost two years. She's been living with a sense of uncertainty and lack of affiliation. Children need to know where they belong. They need to know who their parents are. They need to have a sense of security and stability and trust that they will be taken care of and that all their needs will be met. And she doesn't really have that, as long as she's a foster child and she has this confused allegiance to two sets of parents. . . . . . . . [T]he longer that it takes the more disturbed her attachments in the future would become.

On cross examination, Dr. Nelson acknowledged that, during her February 2007 evaluation, she was unaware that D.M. was in transition between treating physicians and that her medication was in a state of flux. By the time of the April 2007 reevaluation, D.M.'s medications had been stabilized and D.M. appeared to "walk straighter" and generally seemed improved. D.M. did not demonstrate "the same forgetfulness" in response to Dr. Nelson's questions as she had in February; the doctor acknowledged that the change in D.M.'s medication could be responsible for the improvement.

Dr. Nelson expanded upon her opinion that F.M. "has a rigid understanding of life in general." Based upon the psychological testing, F.M. demonstrated a tendency "to have an inflexible style of thinking. So that when he makes up his mind, he has a hard time shifting from that." While that would "make it potentially more difficult" for him to parent S.M., it would not "render him incapable" of doing so.

Dr. Nelson also acknowledged that D.M.'s "obsessive compulsive traits . . . don't reach the level of a diagnosable personality disorder per se, but they reflect a rigid and inflexible style in general in terms of how she handles herself and her world that extends to parenting." When asked how this specifically applied to S.M., Dr. Nelson stated: "Well, given that she has not parented [S.M.] in almost two years, it's hard to say with a concrete current example. She has certain ideas about how children ought to be[.]"

As an example of D.M.'s rigid attitude, Dr. Nelson testified:

She is very meticulous in how she presents herself physically. She's always very careful to dress very properly, very nicely, she's always very [well] put together. And as [counsel] pointed out, down to her shoes. Well, she chose to wear high heel shoes that look pretty, even though it makes her walk less well. That's an example of a rigid style of functioning in the world and making certain choices about what's more important and what's less important. . . . .

Well, this is all hypothetical because she hasn't parented [S.M.] in a while, but for example if she felt that she had to look proper when she took [S.M.] to the doctor, and therefore she couldn't walk as efficiently in taking [S.M.] to the doctor, and she might fall or [S.M.] might fall and she might have more trouble picking her up, that's an example of a rigid style of functioning that interferes with parenting potentially.

Dr. Frederica Brown, a licensed clinical psychologist, testified on behalf of the Law Guardian, regarding bonding evaluations she conducted with S.M and both sets of parents. Dr. Brown described S.M. as "very solicitous toward her mother. She was very helpful." S.M. seemed "uncomfortable" with D.M. in that "she seemed to avoid touching her. . . . She sometimes rebuffed her mother verbally." D.M. continued to try to engage the child in an appropriate manner. In fact, D.M. "actually got down on the floor with [S.M.] to play with her," and the child "had a great time." Dr. Brown acknowledged that, despite her illness, D.M. "fights through to . . . love and nourish [S.M]."

By contrast S.M. "did not show enthusiasm" with her foster mother; there was "virtually no eye contact and no touching" between them. Recognizing that S.M. had been in this foster placement for twenty months as of the time of trial, Dr. Brown described the situation as "a caretaker arrangement." The doctor stated that, "[i]n the absence of something better," she recommended this arrangement for S.M. Dr. Brown observed that S.M. is "happier when she's with her biological parents[]" than she is with the foster parents. While not recommending reunification, Dr. Brown opined that, if S.M. were to be reunified with her parents, there would need to be "services in place which involve some kind of supervision in the home for a period . . . of time, . . . the purpose of [which] would be to insure that [S.M.] was safe in the home." Dr. Brown's concern about S.M.'s safety in the home was based upon her opinion that D.M. cannot "set limits" with her.

F.M. was "very playful" and engaged in "horseplay and tickling and he was more able to structure the tasks that they had to do. [S.M] seemed to listen more."

Dr. Brown opined that there was "a positive bond" between S.M. and her natural parents; the child "was very happy to be with her parents. She seemed to be happy and enjoying herself." There were mutual displays of affection. In addition, F.M. and D.M. "were working together. . . ." They were "supportive of each other. . . . [T]hey made it clear that they were very anxious to have her back and that they were doing whatever they thought needed to be done so that they could be reunited with her."

However, Dr. Brown observed that D.M. "had a lot of difficulty in leading [S.M.] that [S.M.] more led her." This led the doctor to conclude that, if reunification occurred, F.M. "would be the person who would be able to set limits and who would have [S.M.] respond to those limits and keep her safe."

Termination of the natural parents' rights would be "difficult" for S.M., because "she does know her parents, she loves her parents." Ideally, Dr. Brown advocated for an "open adoption" with some "monitored supervision with the parents."

Dr. Brown observed S.M.'s interaction with her foster parents to be "appropriate" and "cooperative[.]" S.M. was affectionate with her foster father, but not with her foster mother. Dr. Brown observed that the foster mother had difficulty in engaging S.M. in make believe play, which she considered "not a good sign." The doctor stated that, at the age of five, "imagination is very important in play. And the . . . extent to which a child can make believe and imagine helps their intellectual functioning later on." S.M. had engaged in make believe play with her natural parents, particularly with F.M. Nonetheless, Dr. Brown concluded that S.M. had a "positive bond" with both foster parents. She opined that the child has "grown" with the family and is "attached" to them, including her foster siblings whom S.M. would miss if she were removed from the foster home. Dr. Brown opined that, if S.M. were returned to her natural parents and that reunification ultimately failed, it would "be very difficult for her." Dr. Susan Herschman, a licensed forensic psychologist, testified on behalf of defendants. Dr. Herschman conducted bonding evaluations of S.M. both with her natural parents and with her foster parents. She also conducted a psychological evaluation of D.M.

Dr. Herschman found that, while D.M. may have been using her medications inappropriately in the past, and may have initially been prescribed the wrong medication, there was no evidence that D.M. had ever deliberately abused her medication. Currently, D.M. appears to have her medications under control.

Dr. Herschman opined that D.M. possessed "a fund of knowledge" regarding proper parenting practices. She described D.M.'s parenting style as appropriately sensitive, not rigid. Dr. Herschman noted, however, that D.M. needed to improve her knowledge of setting "parental boundaries and authority."

S.M. appeared comfortable during the bonding evaluation with her natural parents. Dr. Herschman described the child as "animated," "happy," "playful," and noted that S.M. "smiled a lot."

F.M. was more physical with the child, and engaged her in horseplay. With D.M., the child was "sitting still, talking, touching hands, asking questions." S.M. interacted with both parents; while she maintained physical contact with both of them, she appeared more physically interactive with F.M., while demonstrating affection towards her mother. Dr. Herschman observed S.M. to act in a caring manner toward her mother and to share a bond with her.

During the bonding evaluation with the foster parents, S.M. was "pretty sedentary." Dr. Herschman did not observed a strong emotional connection between S.M. and her foster mother. S.M. seemed "[v]ery controlled in her behaviors. Very quiet. Not animated at all. Very low emotion." The doctor acknowledged that S.M. had a cold on the day of that evaluation and appeared tired.

When asked if S.M. shared a bond with her foster parents, Dr. Herschman replied: "[S.M.] probably feels comfortable in this home. It was hard to judge with the mother. . . . [T]he foster mother even indicated that [S.M.] is closer to the foster father and there seems to be some bond with the foster siblings."

Dr. Herschman opined that termination of parental rights would do more harm than good, based upon the bond she observed between S.M. and defendants, and the fact that there had never been "any obvious abuse or neglect of [S.M.]."

Dr. Herschman acknowledged that D.M. did appear to be "tangential . . . and . . . delusional[.]" However, the doctor stated:

[S.M.] might think she has an eccentric mother? Would it be harmful to her? I don't know if it would be harmful to her. I don't know if it would necessarily be harmful. I think there are all types of parents and we all know people who can be delusional who function fine in every day life. . . . There's a lot of psychiatric stuff that's out there that people live with on a daily basis that doesn't get noticed. I think [S.M.] would adapt to it.

Dr. Herschman opined that D.M. would need homemaking services to insure that reunification succeeded. The purpose of those services would be to assist her with shopping, cooking and housekeeping. These services should be in place for approximately one year following reunification; in addition, Dr. Herschman recommended continued individual counseling for S.M. and couples counseling for the parents.

Regarding F.M.'s history of substance abuse, Dr. Herschman stated:

I would want close monitoring and more substance abuse counseling. [F.M.] had been going to AA . . . and had had a sponsor. And I know he wasn't thrilled with the sponsors, they weren't giving him enough support. So I would want him to have significant support in that area. Most likely through . . . a licensed therapist or counselor within [the] field.

Dr. Herschman described F.M. as "firmly committed to being together as a family" with D.M. and S.M.

Dr. Herschman opined that if S.M. were reunified with her natural parents, she would "miss" her foster parents; however, the doctor did not "believe that there would be enduring harm if she was removed from the foster parents." In the reverse situation, if parental rights were terminated and S.M. remained with her foster parents, Dr. Herschman opined: "Given the strength of bond that I observed, I believe that there would be a significant loss and potentially enduring harm as a result of that."

On cross examination, Dr. Herschman stated that she would prefer to see F.M. exhibit a year of sobriety before returning S.M. home. However, the doctor acknowledged that waiting that long would not be "the best outcome," because S.M. needed permanency.

F.M. testified. As of the time of trial, he and D.M had lived together, as husband and wife, for the previous six and a half years, in a two-bedroom apartment in Pine Brook, New Jersey. He acknowledged that, when DYFS became involved with the family in 2004, there was "domestic violence going on." Also, the parties had some financial problems.

F.M. described himself as "a recovering drug addict." He denied actively using drugs at the present time. He described his drug use as follows: marijuana for a six-year period starting at the age of fifteen or sixteen; in his mid- to late thirties he began to use heroin and then cocaine. He stated that he last used drugs on May 9, 2005.

F.M. used drugs following S.M.'s birth. He testified that he would "stay out and by the time [he] would come back home [he] wouldn't be high." F.M. acknowledged that, in May 2005, he stayed away from home for about six and half months. He did not communicate with D.M. or with DYFS during that period of time. He stated that he used the time to try to get his life together and to get his "head . . . [and] mind together again."

F.M. stated that D.M. stayed home full-time and cared for S.M. Despite her disability, D.M. "took care of everything." F.M. described D.M.'s relationship with S.M. as: "Joyful. . . .

[T]hey're inseparable. . . . A lot of love, I mean . . . it's awesome. It's really awesome. And I get such joy just watching them." F.M. described his own relationship with S.M. as "inseparable. . . . I mean we would just have so much fun."

F.M. acknowledged that he had tested positive for cocaine during a random urine screen following a court hearing in April 2007. F.M. denied that he used cocaine at that time, but could not account for the positive test result. He stated that he would not have been able to appear in court and function if he had been high on cocaine.

F.M. testified that DYFS provided him with the following services: (1) a bus pass; (2) supervised visitation with S.M.; (3) a drug abuse evaluation; and (4) individual counseling.

F.M. testified that DYFS provided the following services to D.M.: (1) supervised visitation with S.M.; (2) transportation to St. Barnabas Medical Center in Livingston; and (3) individual counseling.

F.M. testified that, as of the time of trial, the parties' marriage was "so much better than it was in the past. . . . [W]e have more communication with one another today. More understanding about one another's differences today. It's no longer a control thing today where it was in the past. We respect one another a lot more today. We understand today that it's not about us but it's about our daughter."*fn1

F.M. described the parties' plans in the event S.M. was reunited with them. She would attend a nearby school with bus service that came right to their apartment building. They planned to enroll her in various activities such as soccer and gymnastics. F.M. was employed at a fast-food restaurant and worked a shift from 4:00 p.m. to 1:00 a.m. He testified that, if D.M. were unable to care for S.M. either generally or in an emergency, he could adjust his work hours to be available when S.M. got home from school.

F.M. testified that he was currently attending A.A. and N.A. meetings. This provided him with "a lot of support now." He was confident that, with this support in place, he would not relapse into drug use in the future.

On May 22, 2007, the trial judge rendered a decision from the bench. The judge found that DYFS had presented clear and convincing evidence to satisfy each of the four statutory factors governing termination of parental rights. As set forth in N.J.S.A. 30:4C-15.1(a), those factors are:

(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 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 resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable 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.

Regarding the first standard, the judge found as follows. The defendants "have had a marital history of domestic violence and financial instability." F.M. was arrested for drug offenses in July 2004. He found further:

The parental relationship has further been strained by the debilitating effects that [D.M.] has experienced from multiple sclerosis and scoliosis. Also by the long history of substance abuse by [F.M.]. These observations are obtained from the testimony of two DYFS caseworkers, Nick Mangold and Jennifer Crossman, [the] testimony of [F.M.] and documentary evidence . . . .

It is against this strong evidence that [S.M.] was removed from her parents' care. [F.M.] in testimony admitted his long past use of illegal drugs and his relapse after [S.M.] was born. He testified that when there is a lot of stress and pressure, there is a relapse. [D.M.]'s illness, he says, caused some relapse.

[F.M.] admits disappearing in 2005 for approximately six and a half months when he began using drugs again. . . . [F.M.] admitted in testimony using drugs outside the home while he and [D.M.] still had custody of [S.M.].

Caseworker Nick Mangold, in 2004 observed many occasions when [D.M.] had trouble controlling [S.M.]. These same observations were noted by subsequent DYFS Caseworker Jennifer Crossman. . . .

The Court found persuasive a . . . March 31, 2005 substance abuse evaluation of [D.M.] that the evaluator noted [D.M.] had seen a psychiatrist and was diagnosed as having polysubstance abuse.

. . . [D.M.] confirmed that [F.M.] had been in and out of rehabs and had been using drugs since her pregnancy with [S.M.]. She admitted he had used crack, cocaine and heroin. The CADC evaluator . . . observed that [D.M.] appeared to be overly medicated.

P-57 in evidence, the rampant dental decay of [S.M.]. P-32 in evidence, a nursing consult [o]n November 8, 2004 advised [D.M.] to seek dental care for [S.M.]. It appears this was done by the parents prior to [S.M.]'s removal in March 2005. Testimony of DYFS caseworker Jennifer Crossman reconfirmed this observation.

This Court finds by clear and convincing evidence that [S.M.]'s safety, health and development has [sic] been endangered by the parental relationship.

The child's exposure to domestic violence in a fragile household clearly justified [S.M.]'s removal and protection. I find by clear and convincing evidence [DYFS] has proved the first prong.

In connection with the second prong, the court "observ[ed] . . . a clear and continuing pattern" of "[D.M.] having difficulty staying awake" during the trial. He also noted her "difficulty with ingress and egress into the courtroom . . . apparent[ly] due to her scoliosis, multiple sclerosis, and apparent pain medication[.]" The judge added:

Noted on home visits, [D.M.] unable to control [S.M.], such as setting limits and providing a schedule or routine. At times [D.M.] was noted . . . as contradicting prior statements and appeared highly medicated to the point where she slurred her words.

[D.M.] has presented continued difficulty in being evaluated throughout the division's involvement with this case. . . . . . . .

Notwithstanding these observations, a report of Dr. Rand, . . . of September 6, 2005 indicates [D.M.]'s multiple sclerosis does not prevent her from caring for and parenting [S.M.].

. . . [F.M.]'s long history of substance abuse, criminal incarceration associated with substance abuse and several relapses, including May 2005, presented a fragile recovery.

P-86 in evidence also indicated a strong possibility of a delusional disorder for [D.M.]. The report indicates [D.M.]'s presentation during the evaluation was inconsistent and at times appeared impaired by medication. . . .

The report, which I find supported by subsequent evaluations and observations of [D.M.], reveals that [D.M.] has no insight or appreciation regarding the risk to [S.M.] prior to removal and consequently, she presents a significant risk for abuse and neglect in the future. . . . .

Dr. Jewelewicz-Nelson's credible testimony and report was thorough and well reasoned. She indicated that [D.M.] required significant medication to function on a daily basis and stressful situations were problematic for both [D.M.] and for [F.M.] with his drug history.

[S.M.]'s safety would depend upon [D.M.]'s ability both to take her medication and to react appropriately while medicated. While the parties have received services, serious concerns still are apparent to this Court. . . . .

Doctor Jewelewicz-Nelson found that both [D.M.] and [F.M.] revealed significant personality deficits that have a negative impact on their capacity to parent.

Doctor Frederica Brown, expert called by the Law Guardian, was also found credible. She indicated that Defendants do not present enough strengths to insure a stable and adaptive environment. . . .

Without supervision, Dr. Frederica Brown said [S.M.] would not be safe in [defendants'] home.

The judge "found difficulty with a great portion of" Dr. Herschman's testimony, because she "downplayed the recent positive April 2007 [urine screen] of [F.M.] . . . for using cocaine and minimized [D.M.]'s issues." The trial judge noted Dr. Herschman's statement that S.M. "would adapt" to "[D.M.] being delusional[.]" The judge found that "perhaps . . . appropriate for a teenage child, but not for a five and half year old."

On the second statutory factor, the court concluded:

I find that many of the concerns and issues of the Defendants that were present when [S.M.] was removed have not been addressed or eliminated, they still exist. This court finds by clear and convincing evidence that the Division has proven this second prong.

This Court must be mindful of the realistic likelihood that the parents will be capable of caring for [S.M.] in the future. Dr. Jewelewicz-Nelson's testimony and report further supported this Court's conclusion that delay in permanent placement of [S.M.] is harmful. Dr. Jewelewicz-Nelson said [S.M.] needs permanency, stability and security and that without some finality, she does not have these important elements of permanency.

Regarding the third statutory factor, the court concluded that DYFS provided numerous services to defendants including:

(1) financial assistance in paying the electric bill; (2) nursing consults; (3) transportation assistance; (4) food assistance through the Salvation Army; (5) drug abuse evaluations; (6) dental assistance for S.M.; (7) supervised visitation; and (8) psychological evaluations. The judge found by "clear and convincing evidence that [DYFS] has made reasonable efforts to provide services to help the defendants. . . . [DYFS] explored relative care placement to no avail."

Finally, regarding the fourth standard, the judge found:

[S.M.] at age five and a half, has been in her current foster placement for 21 months. According to Caseworker Jennifer Crossman and all experts, the foster family, who have other children similar in age, desire to adopt [S.M.]. [S.M.], according to DYFS Caseworker Jennifer Crossman, has no special needs, but received weekly counseling to cope with missing her family.

. . . Crossman reported the foster parents provide a warm and caring home for [S.M.]. The foster parents according to . . . Crossman, clearly understand what effect termination of parental rights might have on [S.M.] and are prepared to love and assist her with such things as therapy and a life book.

. . . Crossman testified to having seen [S.M.] a dozen or more times with the foster parents and found them loving, warm and caring and [S.M.] noted to laugh, hug and call them mom and dad.

Dr. Jewelewicz-Nelson . . . was found very credible and provided great insight and sensitivity to the Court. She recommended termination of parental rights within a reasonable degree of psychological certainty. She found the parents too much of a burden on [S.M.] and another drug relapse or other need for removal would be devastating to [S.M.]. She found that a bond exists between [S.M.] and her parents as well as with her foster parents.

Dr. Jewelewicz-Nelson felt termination of parental rights would require intensive therapy for [S.M.], due to the changes in placement and other life experiences[.] Dr. Jewelewicz-Nelson testified that at times [D.M.] was disassociative in her style and that . . . need[s] monitoring. Dr. Jewelwicz-Nelson testified that termination of parental rights would not do more harm then good.

The Law Guardian expert, Dr. Frederica Brown was found credible by the Court. She also supported termination of parental rights. She found bonds with [S.M.] for both [F.M. and D.M.] and the foster parents.

Both positive with differences as to capabilities of each set of parents. [Dr. Brown] . . . did not feel [D.M.] could take care of [S.M.] without [F.M.]. . . . [A] failed reunification . . . would be harmful to [S.M.] including difficulty for future relationships.

[Dr. Brown] said the termination of parental rights should be pursued now. She said with 21 months of out of home placement, there has been ample time and opportunity for the parents to change.

. . . I did not find the testimony and report of Dr. Susan Herschman to be compelling and insightful. While the doctor advocated against termination of parental rights, she recognized many . . . deficits of both [F.M. and D.M.]. She testified that [D.M.] would need a homemaker or aid for at least a year and downplayed a recent relapse of [F.M.] with cocaine[.] [Dr. Herschman] was also unaware that currently [DYFS] made all medical appointments for [D.M.].

Based on those findings, the court concluded by clear and convincing evidence that termination of parental rights would not do more harm than good. The judge thereupon terminated defendants' parental rights and granted a judgment of guardianship to DYFS.


It is well-established that parents have a fundamental right to maintain a relationship with their child without undue interference by the State. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However,

[p]arental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard. [Id. at 347.]

That standard requires a fact-based assessment of the four statutory factors in N.J.S.A. 30:4C-15.1(a)(1) to (4). Until and unless a court finds each of those factors satisfied by clear and convincing evidence, parental rights shall not be terminated. These criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

We recognize that the scope of our review of a trial court's factual findings in these matters is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)(citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

The trial court's findings of fact "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)(quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).


[t]here is an exception to that general rule of deference: Where the issue to be decided is an "alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," we expand the scope of our review. Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken. [N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)(quoting J.T., supra, 269 N.J. Super. at 188-89)).]

Mindful of these standards, we nonetheless conclude that a number of the trial judge's factual findings regarding the statutory prongs are not supported by the record, thereby rendering his termination decision "clearly mistaken." Ibid. For the reasons set forth below, we conclude that DYFS has failed to present clear and convincing evidence that S.M.'s "safety, health or development has been or will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). In the absence of such proof, termination of appellants' parental rights was improper. Because the statutory factors "relate to and overlap with one another[,]" K.H.O., supra, 161 N.J. at 348, we also address the judge's findings with respect to the other three factors.

Regarding the first factor, the court stated that, in 2004, Mangold "observed many occasions" when D.M. had "trouble controlling [S.M.]." However, this claimed observation of "many occasions" is not supported by the record. Mangold became involved with the family in June 2004. The first referral was caused by F.M.'s attempt to discipline S.M. with a belt. Mangold had frequent telephone contact with D.M. and "would stop by and see how she was doing[.]" During some of the voicemails D.M. left for Mangold, D.M. stated that "she was having trouble controlling [S.M.] at times."

Mangold expressed "concerns" about D.M.'s medical condition, stating: "She has a very active young child running around the house, throwing items, difficult for her to control the child."

During his first home visit on June 10, 2004, Mangold noticed that [S.M.] was running throughout the home in . . . a diaper only and . . . [D.M.] was having a hard time getting control of [S.M.] and convincing her to put on some clothing. And [S.M.] would pick up . . . a bouncy ball and throw it against the wall, throw it against her mother and me in a playful manner, and [D.M.] was having a hard time stopping her from being so active.

At the time of that visit S.M. was two years and nine months old.

D.M. described her "outlook on parenting" to Mangold as follows: "She said that she pleads with [S.M.] to stop, she speaks with her and tries to get her to stop and when [S.M.] doesn't stop doing whatever it is that she's doing inappropriately, that really is all she does. . . . [T]here's no other methods that she uses." Mangold believed that D.M.'s inability to control S.M. was due to "her outlook on parenting and not due to her physical disability[.]" The judge referred to P-3 in evidence, which is Mangold's Referral Response Report, dated June 10, 2004, in which he states the same observations and concerns about which he testified.

However, Mangold testified to several other visits to the parties' residence as their caseworker and reported no other observations of D.M. having "trouble controlling [S.M.]." On cross-examination, the following colloquy occurred between Mangold and D.M.'s attorney:

Q: On subsequent visits to the home, . . . is it fair to say that [S.M.] was well behaved, she was not running around uncontrollably. After the June 10th [visit], you saw [S.M.] in her home, correct?

A: Correct.

Q: And you made no further observations of her running around uncontrollably?

A: It wasn't every time I went out there, no there were sometimes where she was an active two and a half year old.

Q: Exactly. And a healthy, active two and half year old is not a cause for concern by DYFS, is it?

A: It depends on how she's being supervised but -

Q: Okay.

A: -- yes.

Q: The first time though, she was supervised by her mother?

A: Yes. My initial time I was there, yes, she was supervised. . . . .

Q: Okay. You never went to the home and found [S.M] unsupervised, did you?

A: No.

The trial judge further stated that the "same observations" about D.M. having trouble controlling S.M. were noted by Crossman. However, by the time Crossman became involved in this matter, on April 24, 2006, S.M. had been in foster care placement for over a year. While Crossman did observe some of D.M.'s visits with S.M., she did not testify to any incidents of D.M. having trouble controlling S.M. In fact, Crossman's testimony does not address this issue at all.

The trial judge also found "persuasive" a March 31, 2005 substance abuse evaluation of D.M. in which, the judge stated, the evaluator had noted that D.M. was "diagnosed as having polysubstance abuse." The statement in that evaluation is as follows: "[D.M.] saw a psychiatrist on 3/29/05 who diagnosed her with polysubstance abuse. She sees a pain management doctor who prescribes large doses of Actiq 800 mg[,] 30 in a box[,] 4 boxes a month." It appears that D.M., herself, provided this information to the evaluator. The evaluation contains a hearsay, undocumented statement of an unidentified "psychiatrist[.]" Further, there was testimony that D.M. had problems getting her medications under control until DYFS arranged appointments for her at St. Barnabas Medical Center.

The judge referred to an April 18, 2005 evaluation, in which the evaluator "observed that [D.M.] appeared to be overly medicated." Review of that document reveals the following statements by the evaluator: "While [client] meets DSM IV criteria for opoid [sic] dependence [client]'s dependence is on prescription medications, which are apparently taken as prescribed, and therefore no treatment recommendations can be made at this time." At the time of this evaluation, D.M. was still under treatment with Dr. Rand, and the evaluator's comment about D.M. "appear[ing] overly medicated" was in the context of expressing concern about her receiving proper prescription medications.

The trial judge referred to a February 22, 2006 Forensic Team evaluation of D.M. from St. Clare's Hospital (P-86 in evidence) as indicating "a strong possibility of a [d]elusional disorder[.]" Based upon the evaluators' observation that D.M. "presented as distorted in her perceptions, [and that] her report was frequently inconsistent with documentation and reports provided by her caseworker[,]" the team concluded: "There is a strong possibility that she has a Delusional disorder." This evaluation contains no reported testing or any further diagnostic evaluations. No expert opined that D.M. had a diagnosis of delusional disorder.

Regarding F.M., although the record contained evidence of his recurrent substance abuse as recently as April 2007, nonetheless there is no evidence that F.M.'s drug history resulted in any abuse or neglect of S.M., nor that he endangered her "safety, health or development . . . by the parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). F.M. testified that the purpose of his periodic absences from the home was to get "sober" and "straight" so that he would not be under the influence while parenting S.M. in the home.

The trial judge relied upon the following factors in finding clear and convincing evidence to support the first statutory factor: (1) the parties' "marital history of domestic violence and financial instability"; (2) the "debilitating effects that [D.M.] has experienced from multiple sclerosis and scoliosis"; (3) F.M.'s history of drug abuse and periodic disappearances from the home; and (4) DYFS caseworker Mangold's observation that "[D.M.] had trouble controlling [S.M.]" when the child was two and a half years old.

These findings do not present clear and convincing evidence to justify a conclusion that S.M.'s "safety, health or development" was "endangered" by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). To the contrary, both Mangold and Crossman consistently described S.M. as a happy, physically healthy, playful child. Mangold found no basis on which to substantiate any abuse or neglect claims against the parents. The only health detriment in the record was S.M.'s tooth decay caused by her overuse of a baby bottle.

"N.J.S.A. 30:4C-15.1a is conduct-based." G.L., supra, 191 N.J. at 608. As noted, the "conduct" upon which the trial judge relied in weighing the first statutory factor was F.M.'s drug abuse history, D.M's multiple sclerosis, and some domestic violence incidents between appellants. However, as also noted, there is no clear and convincing evidence of record that any such conduct "endangered" S.M.

"The statute requires that the State demonstrate harm to the child by the parent. Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. Nothing in the record establishes this critical nexus between "the parental relationship" and "endangerment of [S.M.]'s health and development[.]" We are, therefore, "compelled by the record as it currently stands to conclude that there is not clear and convincing evidence to support the findings necessary to terminate parental rights." In re J.C., 129 N.J. 1, 18 (1992).

We address the remaining statutory factors insofar as they "provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. Because of the extensive passage of time since S.M.'s removal from appellants' care and custody, our decision will require proceedings before the Family Part that address S.M.'s best interests at present. The child's interests are inextricably intertwined with the "comprehensive standard" provided by the four statutory factors collectively. Ibid.

Regarding the second statutory prong, the judge noted his own observations of D.M.'s "difficulty with ingress and egress into the courtroom[,]" and what he believed to be her difficulty staying awake during the trial.*fn2 The judge made no reference to D.M.'s improvement as the result of the stabilization of her medication. His finding that "[D.M.] has no insight or appreciation regarding the risk to [S.M.] prior to removal[,]" led him to conclude that D.M. "presents a significant risk for abuse and neglect in the future." The judge did not make findings as to any specific "risk" to S.M. prior to her removal. In light of the absence of any evidence of abuse or neglect in the record, we find no clear and convincing evidence to support this conclusion regarding D.M.

The judge also relied upon the testimony of Dr. Brown to support his conclusion that "[S.M.] would not be safe in [defendants'] home." However, Dr. Brown based her opinion upon one bonding evaluation at a time when S.M. had been in her current foster placement for twenty months.

Moreover, the judge ignored Dr. Brown's concession, based upon her bonding evaluation of S.M. with the foster parents, that the foster placement was "a caretaker arrangement[,]" and was recommended "[i]n the absence of something better[.]" The judge failed to address this testimony in relation to the provision in the second statutory factor that the "harm facing the child . . . may include evidence that separating the child from h[er] resource family parents would cause serious and enduring emotional or psychological harm to the child[.]" N.J.S.A. 30:4C-15.1(a)(2).

All experts acknowledged that S.M. maintained a loving attachment to her natural parents. No expert testified as to a comparable bond between S.M. and her foster parents. The judge rejected Dr. Herschman's testimony because he concluded that she "downplayed" F.M.'s April 2007 drug relapse. The judge also rejected Dr. Herschman's opinion that S.M. could "adapt" to "[D.M.] being delusional." As noted, the record contains no evidence that D.M. has been diagnosed with a delusional disorder. Rather, there is only the February 22, 2006 evaluation from St. Clare's Hospital that there is "a strong possibility" that she has a "[d]elusional disorder." However, as noted, that evaluation contained no reported testing or diagnostic evaluation.

The trial judge relied extensively upon Dr. Nelson's report and testimony in support of this prong. Dr. Nelson, who first observed the parties in February 2007, based her opinion as to D.M.'s parenting ability on D.M.'s medical condition and what the doctor characterized as "personality deficits." When Dr. Nelson saw D.M. again in April 2007, by which time D.M.'s medication had been stabilized, the doctor acknowledged D.M.'s "improved level of functioning[,]" but opined that "it is still not sufficient for her to be a single, full-time, parent to a young child." However, neither Dr. Nelson's testimony nor her report presented clear and convincing evidence of any specific harm to S.M. as a direct result of such "personality deficits."

Dr. Nelson described the "harm" to S.M. in terms of the child's need for permanency. The doctor further criticized what she characterized as D.M.'s "rigid attitude," which evidenced itself in the manner in which D.M. dressed for her court appearances. However, Dr. Nelson was compelled to acknowledge that her opinion was "hypothetical" because "[D.M.] hasn't parented [S.M.] in a while[.]"

Regarding the third statutory factor, we concur with the trial court's finding that DYFS made reasonable efforts to provide services to appellants and considered alternative placements for S.M.

Finally, regarding the fourth statutory prong, the judge relied upon Crossman's testimony that the "foster parents provide a warm and caring home for [S.M.]." The foster parents are reported to be willing to adopt S.M. However, the trial judge did not address S.M.'s ongoing attachment to her natural parents in consideration of this factor.

S.M. has been in her current foster care placement since August 23, 2005. We are, therefore, mindful that our reversal of appellants' termination order will require additional proceedings in the Family Part. We note that the trial evidence of S.M.'s bonding with her foster parents was mixed, at best. By contrast, as noted, all experts acknowledged that S.M. maintained a loving relationship with appellants. Dr. Nelson described S.M. as "very quiet and very constricted" during the bonding evaluation with the foster parents. The doctor emphasized S.M.'s need for permanency because, "for almost two years[,]" the child "has been living with a sense of uncertainty and lack of affiliation[.]"

Defendants may have "personality deficits that have a negative impact on their capacity to parent[,]" as Dr. Nelson opined in her report. Notwithstanding these deficits, the record contains evidence of a strong loving bond between S.M. and her natural parents as well as evidence of the lack of such a bond with her foster parents. Once again we note the lack of any evidence of abuse, neglect or endangerment of S.M. resulting from her parents' "personality deficits[.]"

Dr. Brown testified that S.M. showed no "enthusiasm" towards her foster mother; they engaged in no eye contact and no make believe play which the doctor regarded as "not a good sign." Dr. Brown described S.M.'s foster care placement as a "caretaker arrangement" and recommended it "in the absence of something better[.]"

On remand, the Family Part must examine the present state of S.M.'s bond to her foster parents as well as appellants' current situation. We have concluded that there is not clear and convincing evidence to support the decision to terminate appellants' parental rights. "That does not mean, however, that termination may not be an appropriate resolution." J.C., supra, 129 N.J. at 25. If DYFS presents "substantial evidence of the harm that may come to [S.M.] if separated from [her] foster parents[,] . . . that evidence may not be disregarded, even though, as the record now stands, it does not meet the strict statutory and constitutional standards that govern the termination of parental rights." Ibid.

If, however, DYFS is unable to offer clear and convincing evidence that, at present, "moving [S.M.] . . . will, to a reasonable psychological certainty, cause serious harm," In re K.L.F., 129 N.J. 32, 44-45 (1992), then appropriate steps must be taken to return S.M. to her natural parents. "The standard is not that the end result cause no pain or trauma but that the child be kept from [her] parents only to avoid serious and lasting harm." Id. at 45. "We are compelled to note that much of the bonding that has taken place in this case could have been avoided if" S.M. had not been improperly removed from appellants' custody in the first place. Ibid.

Therefore, we remand to the Family Part in order that additional evidence may be adduced directly addressing whether [S.M. has] bonded with [her] foster parents and if so whether breaking such bonds would cause [S.M.] serious psychological or emotional harm. To determine these questions the trial court should conduct hearings and direct any of the witnesses to undertake any necessary investigations and examinations. Further, the parties and the court should give due regard to the relationships between [D.M. and F.M.] and [S.M.]. [D.M. and F.M.] should be allowed visitation with [S.M.] sufficient to enable the experts to consider those relationships. Because [S.M. has] an essential and overriding interest in stability and permanency, it is inimical to [her] welfare that [her] legal status remain unresolved. The hearing on remand should be undertaken and concluded as expeditiously as possible. [Id. at 25-26.]

We reverse the judgment of the Family Part terminating the parental rights of D.M. and F.M., and remand the matter for further proceedings consistent with this opinion.

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