On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-44-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2008
Before Judges Fuentes and Chambers.
Defendant K.G. ("Karen")*fn1 appeals from the final judgment of the Family Part terminating her parental rights over three of her minor children,*fn2 A.S. ("Agnes"), born in October 2000, V.S. ("Virginia"), born in January 2003, and L.L. ("Lyle"), born in May 2005.*fn3 T.S., the biological father of the two girls, did not testify or participate at trial. Lyle's biological father, J.L., executed an identified surrender of his parental rights and is, therefore, not contesting the actions taken by the Division of Youth and Family Services ("DYFS or the Division").
At the time this case went to trial, Agnes and Virginia were in the custody of their paternal grandparents and residing in New York State. Lyle was in the custody of his paternal great uncle and aunt, and was residing in the City of Vineland, in Cumberland County.
Karen argues that DYFS failed to satisfy the four prong criteria for termination under N.J.S.A. 30:4C-15.1a. She also argues that the termination proceedings were conducted in a needlessly prolonged fashion, thereby prejudicing her rights to a fair trial. After carefully reviewing the record, and in light of prevailing legal standards, we reverse.
We are satisfied that DYFS failed to present sufficient evidence to satisfy its burden of proof as to three of the four prongs codified in N.J.S.A. 30:4C-15.1a. Specifically, the Division's initial decision to remove the children from their mother's custody was factually unwarranted and legally unsustainable. As a result of this action by DYFS, the children became needlessly estranged from their mother.
The record also shows that while this case was pending judicial review, Karen took affirmative steps to address the problems that led to DYFS's intervention. Despite some early setbacks she: (1) successfully participated in an outpatient drug rehabilitation program; (2) completed a program in domestic violence awareness, which included both personal counseling and parenting classes; (3) terminated her dysfunctional and abusive relationship with Lyle's father J.L.; and (4) with her mother's support, secured steady employment and obtained suitable housing for herself and her children.
Against this backdrop, we conclude that DYFS failed to show how termination of Karen's parental rights was the only means of eliminating the potential harm posed to the children from being raised by a drug-addicted parent in recovery.
The event that prompted DYFS's involvement with this family occurred on August 4, 2005. The evidence presented by DYFS as to what occurred on this date came through the testimony of Caseworker Nicole Doldan. According to Doldan, the Division received an anonymous call on August 4, 2005, alleging that "two parents" were outside their home arguing about their use of crack cocaine.*fn4
Specifically, [the father] was arguing with [the mother] about using their money to buy crack when they had children to feed. The caller also stated that there is a young child in the home, a young boy in the home who was on a heart monitor, and they were concerned with that when the family was using drugs.
DYFS dispatched a caseworker to the home the following day, August 5, 2005. The caseworker found Lyle's father J.L. alone at the residence. According to J.L., Karen and her mother had gone to his mother's house in Franklinville, Gloucester County for a visit; the girls, Agnes and Virginia, were visiting their paternal grandparents in New York State. When questioned about the argument he and Karen had had the day before, J.L. indicated that both he and Karen had smoked marijuana before she became pregnant with Lyle, but that neither were currently using any drugs.
In the comments documenting the encounter, the caseworker noted that "[t]here was a table in the home... a plant was thrown off the table, and there was soil spread onto the floor and glass shattered onto the table from a plant that was thrown." By way of explanation, J.L. told the caseworker that he and Karen had had an argument the day before about his propensity for sleeping late. It was during this argument that the plant was disturbed and the glass table was broken. J.L. specifically denied that that the argument had been about drugs.
Although not clearly established from the evidence, DYFS proceeded under the assumption that Lyle had been asleep in one of the upstairs rooms during the August 4 argument. Other than the disturbed plant and broken glass, the caseworker found nothing inappropriate about the residence.
The caseworker contacted Karen at J.L.'s mother's house that same morning, and arranged to meet with her at DYFS's local office that afternoon. Karen, J.L. and his mother responded to the appointment. At this meeting, Karen readily admitted she and J.L. had been arguing on the porch the day before, but denied that the argument had been about drugs. When asked directly whether she uses illicit drugs, Karen equivocated at first; soon after, however, "she became upset and began to cry and admitted that she had used crack [for the first and only time] the weekend before this whole allegation came about." The children were not with her at the time she used the drugs.
Based on this information, the caseworker directed Karen to submit to urine testing to determine whether she still had illicit drugs present in her system. Karen complied with the testing that same day. (The test results would not be available until August 19, 2005.) The caseworker also directed Karen to sign a "Safety Protection Plan," whereby she agreed to reside with J.L.'s mother, while J.L. agreed to reside by himself in the couple's apartment at Penns Grove.
Under this arrangement, the girls would continue to reside with their paternal grandparents in New York State, and Lyle would reside with Karen and his paternal grandmother. DYFS also referred Karen to Services to Overcome Drug Abuse Among Teenagers (SODAT)*fn5, an outpatient treatment agency.
It must be emphasized that at this point, the only basis for concern was Karen's admitted drug use. Both parties denied that the argument leading to the broken plant was indicative of a domestic violence problem. DYFS did not investigate this issue further, or review law enforcement or judicial records to determine whether there had been a history of domestic violence. Despite the absence of evidence of domestic violence, DYFS concluded that a "Safety Protection Plan" was needed.
The Safety Protection Plan is accompanied by a "Safety Assessment" worksheet, which lists fifteen separate categories or "factors" of "behaviors or conditions that are associated with a child being in immediate and/or impending danger of serious harm."*fn6 Instructions direct the caseworker completing the form to identify the presence or absence of each factor by circling "yes or no." Here, we have indicated the caseworker's response by emphasizing the choice she made. Thus, where "No" or "Yes" was circled as the response, we have expressed it as No or Yes. The caseworker deviated from this format only with respect to factors 7 and 11.
Referral Date: 8/5/05 Assessment Date: 8/5/05 Time: 2:00 a.m/p.m. Conducted by _x_DO ___ SPRU
Section 1. Safety Factor Identification
1. Yes No Caregiver leaves child with a person unwilling to provide care.
2. Yes No Child is fearful of caregiver(s), other family members, or other people living in or having access to the home.
3. Yes No Caregiver is verbally hostile when talking to or about the child and/or has extremely unrealistic expectations for the child's behavior.
4. Yes No Caregiver caused serious physical harm to the child or has made a plausible threat to cause serious physical harm.
5. Yes No Caregiver's explanation for the child's injury or physical condition is inconsistent with the nature of the injury or condition.
6. Yes No Caregiver refuses access to the child, or there is reason to believe that the caregiver is about to flee, and/or the child's whereabouts cannot be ascertained.
7. Yes No Caregiver has not, will not, or is unable to provide care and supervision necessary to protect the child from potentially serious harem, including harm from self (child) or other persons living in or having access to the home. [Here, rather than indicating "Yes" or "No," the caseworker wrote the letter "R" on the margin of the page. No explanation is given for this response. We surmise that the letter "R" stands for "Reserved," meaning that the worker does not have sufficient information to answer]
8. Yes No Caregiver has not, will not, or is unable to meet the child's immediate needs for food, clothing, shelter, and/or medical or mental health care.
9. Yes No Child sexual abuse/exploitation is suspected and circumstances suggest that child safety may be an immediate concern.
10. Yes No The child's physical living conditions are hazardous and immediately threatening.
11. Yes No Caregiver's behavior is violent or out of control. [Here, although "No" was circled as the response, the letter "R" was also written on the outside of the number.]
12. Yes No Caregiver's drug or alcohol use seriously affects his/her ability to supervise, protect, or care for the child.
13. Yes No Caregiver's involvement in criminal activity seriously affects his/her ability to supervise, protect, or care for the child.
14. Yes No Caregiver's emotional stability, developmental status, or cognitive deficiency seriously impairs his/her ability to supervise, protect, or care for the child.
15. Yes No Other factors that place the child in immediate and/or impending danger of serious harm (specify):
DOMESTIC VIOLENCE IN THE HOME
Based on the Safety Assessment worksheet, the only risk factor applicable to Karen was her admitted substance abuse problem. The applicability of this factor, however, rests upon evidence that Karen's illicit drug use "seriously affects her ability to supervise, protect, or care for" the children. Based on the caseworker's description of Karen's home, together with her assessment of the children's physical and emotional condition, the record does not support the applicability of risk factor 12.
Furthermore, although domestic violence is also identified as a relevant risk factor, there was little, if any, evidence at that time to support such a finding. Even if the verbal argument between Karen and J.L., and the spilled soil and broken glass table are characterized as incidents of domestic violence, there is no evidence that: (1) the children were present at the time this occurred; or (2) Karen was the responsible party. Indeed, the only evidence strongly suggested that Karen was the victim of J.L.'s aggression. As such, DYFS should have referred Karen to local resources to assist victims of domestic violence, and apprised her of her rights under the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 to-35.
Karen underwent a second urine screen and a substance abuse evaluation on August 10, 2005. Based on the results of the evaluation, she was not recommended for inpatient treatment, but was registered into an "early intervention program."*fn7
On August 18, 2005, Karen notified DYFS that she and her children were moving back into her apartment at Penns Grove with J.L. That evening, a caseworker made an announced visit to the apartment. Caseworker Doldan gave the following testimony with respect to what occurred.
Did the Division worker looking at the physical plant of the home have any concerns with regard with the placement itself or the children living in that place itself?
Q: And at that point in time, what, if any, services did the Division hope to put into the family, into the home specifically to address the concerns that which led to the safety protection plan?
A: Family Preservation Services through Robins Nest.
Q: All right. Now, Would you describe to the Court briefly what Family Preservation Services does by way of referral? In other words, when they provide services to the ...