On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-70-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2008
Before Judges Fisher and C.L. Miniman.
Defendant K.C. appeals from an October 15, 2007, judgment terminating her parental rights to her son N.O.G., and awarding guardianship over the child to the Division of Youth and Family Services (Division).*fn1 K.C. argues that the Division failed to prove three of the four statutory criteria for termination of parent rights found in N.J.S.A. 30:4C-15.1(a). We reverse and remand for further proceedings consistent with this opinion.
When the Division seeks to terminate parental rights, the judge is required to balance competing factors. That judicial task "implicates fundamental rights and interests of the parents and the children, as well as critical governmental concerns." N.J. Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 269 (App. Div.), rev'd in part on other grounds, 189 N.J. 261 (2007).
Parents have a constitutionally protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). They have a fundamental liberty interest under the United States Constitution in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982); see also E.P., supra, 196 N.J. at 102. Our State Constitution also protects the integrity of the family unit. Ibid.; see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
The law presumes that parents will act to promote the best interests of their children. However, "experience and reality may rebut what the law accepts as a starting point...." The incidence of child abuse and neglect cases demonstrates that some parents may act in ways that undermine the interests of their children rather than advance them. [M.M., supra, 382 N.J. Super. at 270 (citations omitted).]
Accordingly, parental rights are not absolute and the constitutional rights that surround family rights are "tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002); In re K.H.O., supra, 161 N.J. at 347. That responsibility requires the State to protect the welfare of children and to terminate parental rights if the child is at risk of serious physical or emotional harm. See Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979). "Few forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S.Ct. at 1398, 71 L.Ed. 2d at 610. Thus, strict standards have consistently been imposed in the termination of parental rights. In re K.H.O., supra, 161 N.J. at 347; see also In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Presumptions may not be used and "all doubts must resolved against termination of parental rights." In re K.H.O., supra, 161 N.J. at 347 (citing In re Adoption of Children by D., 61 N.J. 89, 93 (1972)).
When applying for guardianship, the Division is required to institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the State to establish its case by "clear and convincing evidence, obtained by reasoned application of the best[-]interest standard." N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 533 (App. Div. 2006); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (citing N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004)). The Division must demonstrate substantial prejudice to the child's best interests if parental rights are not terminated. A.W., supra, 103 N.J. at 603.
"When the child's biological parents resist the termination of their parental rights, the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." In re J.C., supra, 129 N.J. at 10; see also N.J. Division of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." In re J.C., supra, 129 N.J. at 10. The Division has the burden to prove "that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child. Ibid. (citing Santosky, supra, 455 U.S. at 768, 102 S.Ct. at 1402, 71 L.Ed. 2d at 616-17).
The competing concerns for the parents' fundamental liberty interest in raising their children and the State's parens patriae duty to protect children from harm is promoted by the standard of the best interests of the child. A.W., supra, 103 N.J. at 604-11. That standard has been codified in N.J.S.A. 30:4C-15.1(a), which establishes the proofs required to terminate parental rights:
(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.
These four factors are not independent of each other; rather, they are "interrelated and overlapping [and] designed to identify and assess what may be necessary to promote and protect the best interests of the child." R.L., supra, 388 N.J. Super. at 88 (citing In re K.H.O., supra, 161 N.J. at 348); see also M.M., supra, 189 N.J. at 280. Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." R.L., supra, 388 N.J. Super. at 89. The best-interests-of-the-child standard "requires a showing of very substantial and continuing or recurrent abuse or neglect that endangers the child's health and development." In re Guardianship of D.M.H., 161 N.J. 365, 377 (1999) (citations omitted) (emphasis added).
Generally, the scope of our review of a trial judge's findings of fact is a limited one. In re J.N.H., supra, 172 N.J. at 472. Those findings must be upheld if they are supported by "adequate, substantial and credible" evidence in the record. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations omitted); accord E.P., supra, 196 N.J. at 104; In re J.N.H., supra, 172 N.J. at 472. We generally defer to the judge's credibility determinations because that judge had a "feel of the case" and the opportunity to observe the witnesses. M.M., supra, 189 N.J. at 293; Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We are also obliged to defer to the judge's evaluation of the "credibility, qualifications, and the weight to be accorded [the expert's] testimony. In re D.M.H., supra, 161 N.J. at 382. Yet, "'where the focus of the dispute is... alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." In re J.T., supra, 269 N.J. Super. at 188-89 (citation omitted). Even then, we will defer to the judge's findings unless they are "so wide of the mark that a mistake must have been made." C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989) (citation omitted); see also E.P., supra, 196 N.J. at 104; N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). The trial judge's legal conclusions, and the application of those conclusions to the facts, however, are subject to our plenary review. M.M., supra, 382 N.J. Super. at 272 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The precipitating event leading to these proceedings was the Division's investigation of a referral on August 19, 2005, from the Fort Lee Police Department stating K.C., O.G., and N.O.G., who was born on June 7, 2005, were locked out of the maternal grandfather's home. The police found that home unfit for the infant due to overflowing garbage; stacked dirty dishes; cigarettes, beer bottles and small liquor bottles throughout the apartment; a broken playpen full of clothes; and N.O.G.'s maternal grandfather highly intoxicated. K.C., O.G., and N.O.G. were all taken to police headquarters and a subsequent investigation revealed that the parents had no money for clothing or food and were homeless.
The Division had previously been involved with K.C. as a child and as an adult. K.C. was born on June 19, 1982. Between May 1984 and June 1997, the Division received multiple referrals respecting K.C.'s mother being drunk and neglecting her children. By June 1997 when K.C. was fifteen, physical abuse of K.C. by her mother was substantiated, although K.C. was not removed from her mother's home. That year, K.C. began to use drugs, starting with marijuana but progressing to cocaine, then heroin and finally crack cocaine. When K.C. was about to enter her junior year in high school, she was admitted into a drug rehabilitation program called Daytop where she completed an eleven-month treatment program. She remained drug free until she was twenty years old.
On May 13, 2004, when K.C. was almost twenty-two, the Division received a referral from a social worker at Holy Name Hospital reporting that K.C. was pregnant and had tested positive for marijuana. K.C. had previously given birth to R.V.*fn2 on April 11, 2002, without any Division involvement. K.C. admitted that she had been using marijuana and cocaine for six months, unaware that she was pregnant. The Division referred K.C. for a substance abuse evaluation on May 25, 2004. As a result, K.C. was referred to an intensive outpatient program. Nevertheless, K.C. continued to use drugs, testing positive on June 9, 2004, for marijuana and cocaine. K.C.'s second son, C.J.G., was born on June 13, 2004, and both mother and baby tested positive for marijuana, triggering another referral from the hospital. The Division placed a hold on C.J.G. and, thereafter, the Division placed C.J.G. with K.C.'s maternal aunt, S.C. At that time, S.C. and K.C.'s mother had been caring for R.V. for about a year at the request of K.C. because O.G. had introduced K.C. to cocaine and she had been using it frequently. The Division referred K.C. for parenting classes.
K.C. did not follow the Division's recommendation for substance abuse treatment and tested positive for marijuana, cocaine, and benzodiazepine on July 16, 2004, and marijuana, cocaine, and morphine on August 19, 2004. In August 2004, K.C. failed to begin the scheduled outpatient treatment at Bergen Regional Medical Center. K.C. claimed that she enrolled at the Van Nost outpatient program from October 2004 to January 2005. The Division could not confirm this enrollment.
On December 5, 2004, K.C.'s maternal aunt was arrested and charged with first-degree robbery, aggravated assault and possession of a weapon. Both of K.C.'s children were placed on an emergency basis with K.C.'s mother and grandmother, although the Division had concerns about both of them. The Division again referred K.C. to Bergen Regional on February 16, 2005, for drug treatment, but she again did not participate and on February 22, 2005, she tested positive for cocaine and marijuana. Thereafter, the Division ruled out K.C.'s mother on March 2, 2005.*fn3 The children were placed in foster care for one day and then moved to K.C.'s brother, who agreed to care for them in the maternal great grandmother's residence.
K.C. surrendered her parental rights to her brother for adoption on March 17, 2005.*fn4 The Division approved a permanent plan for adoption by K.C.'s brother, but on July 18, 2005, he declined to care for his nephews and was ruled out by letter dated July 20, 2005, as were K.C.'s father and the maternal great grandmother. K.C.'s and O.G.'s identified surrenders became void and their parental rights were reinstated.*fn5 Thereafter, O.G. identified his mother as a caregiver, but she never responded to the Division's inquiries and was ultimately ruled out on January 5, 2006. On August 4, 2005, the Division sought guardianship of R.V. and C.J.G. and termination of K.C.'s and O.G.'s parental rights. On August 22, 2005, R.V. and C.J.G. were placed in foster care. Ultimately, K.C. surrendered her parental rights respecting R.V. and C.J.G. on June 27, 2006, when the matter was reached for trial.
While her parental rights to R.V. and C.J.G. were still in jeopardy, K.C. became pregnant again and gave birth to N.O.G. on June 7, 2005.*fn6 Both were drug free at N.O.G.'s birth. K.C. and O.G. kept N.O.G.'s birth a secret from K.C.'s family and the Division until the Division received the August 19, 2005, referral from the Fort Lee Police Department described above.
K.C. asked to have N.O.G. placed with her grandmother, who had R.V. and C.J.G. at the time, but she refused to take a third child. K.C. was not in drug treatment at this time and she once again tested positive for drugs. K.C. claimed that she had not used drugs during this pregnancy. However, K.C.'s February 22, 2005, drug test established that K.C. had used marijuana and cocaine while she was pregnant with N.O.G. Additionally, the Division discovered that K.C. was incarcerated on March 16, 2005, on drug charges while she was pregnant with N.O.G. Because the Division worker was unable to identify a relative caregiver for N.O.G., he told K.C. and O.G. that N.O.G. would be placed in foster care.
An emergency Dodd*fn7 removal followed and N.O.G. was medically cleared at Holy Name Hospital and he was placed with foster parents. On August 23, 2005, the foster parents reported to the Division that they took N.O.G. to a doctor because his navel was inflamed and oozing pus. The pediatrician who had been identified by K.C. or O.G. as providing care denied having N.O.G. as a patient. In fact, N.O.G. had not seen a pediatrician since his birth. After a Special Response Unit investigation by the Division, neglect by K.C. and O.G. was substantiated. The Division was granted custody, care and supervision of N.O.G. on August 23, 2005, less than three weeks after the Division filed guardianship proceedings and sought to terminate parental rights respecting R.V. and C.J.G. By September 9, 2005, N.O.G.'s navel had healed and his foster mother expressed interest in adopting both him and the baby girl for whom she was caring at the time.
After the Dodd removal, K.C. and O.G. began sleeping in a park or on the roof of O.G.'s mother's home and were shooting cocaine and heroin. K.C. had not used heroin before August 19, 2005. Later that month K.C. and O.G. were arrested in New Jersey for sleeping in the park. On September 17, 2005, K.C. was arrested on a drug charge. After being released ten days later, K.C. found employment as a waitress, but she continued her substance abuse.
Sometime in September 2005, K.C. started the Evergreen Program and it appeared that she did well for a time, with essentially clean urine screens on October 7, November 2, and November 17, 2005, although on the latter date she admitted she used marijuana the week before. However, on November 23, 2005, K.C. arrived looking unkempt and sleepy for a Division-supervised visitation with N.O.G. A random urine screen was positive for marijuana, cocaine and morphine. The judge terminated K.C.'s visitation with N.O.G., which did not resume until August 23, 2006. The Division then contacted the Evergreen program on November 30, 2005, and spoke with K.C.'s counselor, who advised that K.C. had been discharged because of a relapse on November 21, 2005. K.C. was again referred by the Evergreen program to an inpatient treatment program and eventual referral to Spring House, a New Jersey home for women recovering from drug addiction, where she could stay until she could function on her own. K.C.'s Evergreen counselor told the Division worker that K.C. refused to enter an inpatient program "because she was convinced that this would jeopardize her plan to get her children back. She was convinced they would be coming home soon."
On December 1, 2005, K.C.'s mother reported to the Division that K.C. would be returning to Bergen Regional for inpatient treatment, but on December 6, 2005, K.C. again tested positive for cocaine, marijuana, and morphine. Then, on December 22, 2005, K.C. reported to a Division worker that she had successfully "detoxed" and was awaiting a bed in an impatient program. In fact, she had not done so. After the December 22, 2005, conversation, the Division was unable to contact K.C. and K.C. did not contact the Division during the entire first half of 2006.
K.C. did attempt an inpatient treatment program at Straight and Narrow in January of 2006, but was discharged for failing to comply with the program's no-smoking rules. Thereafter, the Division learned that K.C. had been arrested in New York for robbery and was incarcerated at Riker's Island. She was there for two months, released, and rearrested on old warrants, spending three more days at Riker's Island. Soon after K.C.'s release in April 2006, she overdosed and was then picked up on the warrants for failing to appear. That month, K.C. pled guilty to the New York robbery charge and the New Jersey drug-possession charge.
While K.C. was in jail for a week in Bergen County, she completed intake sheets for Straight and Narrow. She was accepted on May 11, 2006, but was told to leave two days later for smoking. She went to stay with her grandmother and kept in touch with her Division caseworker while she looked for another program. On May 20, 2006, K.C. was hospitalized for an overdose and three days later overdosed again. Urban Pathways, a program that helps people on the street, assisted K.C. in finding Odyssey House, a residential treatment program, which K.C. entered on May 31, 2006. By this time, K.C. had not seen N.O.G. for over seven months and he was almost one year old. On June 8, 2006, K.C.'s mother advised the Division of K.C.'s entry into the Odyssey House and on June 25 Odyssey House reported to the judge that K.C. was in Level I treatment, her urine screens were negative, and she would be permitted biweekly visits with her son. During her first month at Odyssey House, K.C. asked the Division if N.O.G. could be allowed to attend Odyssey House with her, but this was not permitted because she was in the very early stages of recovery and her visitation rights had not been reinstated.
In July 2006, the Division recommended termination of parental rights at a permanency hearing because K.C. was required to remain in Odyssey House for at least a year and had a history of erratic behavior, continued drug use, lack of contact with the Division, and not being able to visit with N.O.G. The Division's policies and procedures require reassessment every three months to determine whether reunification of children with a parent in a drug program was appropriate, which would depend on the progress of visitation, the results of the treatment, the state of the client, the preparedness of the child, and similar factors.
On July 13, 2006, K.C. was sentenced in New Jersey to probation for three years conditioned on remaining in the program at Odyssey House for twelve additional months, completing the program, submitting to random drug testing, and receiving counseling.*fn8 The Division did not renew any discussion of K.C.'s request that N.O.G. live with her before the case was transferred to the Division's Adoption Resource Center (ARC) in September 2006, although three months had elapsed since she entered Odyssey House. However, based on her progress at Odyssey House, K.C.'s visitation was reinstated on August 23, 2006, with the first visit scheduled for August 31, 2006, and biweekly visits through December 21, 2006. The Division provided bus tickets for visitation. On the first visit, the Division worker observed that K.C. was appropriate, engaged and bonding with N.O.G.
On October 5, 2006, the Division filed this action for termination of parental rights. By that time, K.C. had been at Odyssey House for four months. On October 12, 2006, during her fourth visit with N.O.G., K.C. again asked the Division to permit N.O.G. to live with her at Odyssey House. At the next visit on October 26, 2006, N.O.G. was happy to see K.C. and gave her "a big hug and a kiss." The visit went well and K.C. was appropriate. Subsequent visits also went well and this continued until the trial of this matter.
On December 20, 2006, the Odyssey House reported to the Division that K.C. had moved to Level II treatment and had tested negative for drugs and alcohol. On January 2, 2007, the Division worker spoke with K.C.'s counselor at Odyssey House, who expressed that they did not want K.C.'s parental rights to be terminated because she had lost two other children. K.C.'s counselor advised the Division worker that Odyssey House was a family center that focused on keeping families intact. Two days later, K.C. advised a Division worker about her prospective internship at Odyssey House.
In December 2006 the Division arranged to have K.C. evaluated by Elayne Weitz, Ph.D. First, she performed a bonding evaluation of K.C. with N.O.G. on December 4, 2006, then a psychological evaluation of K.C. on December 7, 2006, and finally a bonding evaluation of the foster parents with N.O.G. on December 11, 2006. At that time, N.O.G. was about eighteen months old and had been residing with the foster parents continuously for fifteen months. She issued her report on February 11, 2007, concluding that K.C. was not ready at that time "to fulfill the roles and responsibilities necessary to safely and effectively parent a young child."
The Division continued in 2007 to provide K.C. with bus tickets for visitation. In March of 2007, the frequency of K.C.'s visitation was increased from biweekly to weekly, but the amount of time allowed for each visit was reduced from two hours to one. In fact, the amount of time allowed for visitation was never increased between August 23, 2006, and the commencement of trial on October 1, 2007, despite visits going so well.
On March 9, 2007, Paul Fulford, Ph.D., as an expert on K.C.'s behalf, performed a psychological evaluation of her. He also performed a bonding evaluation of K.C. with N.O.G., but it was interrupted by N.O.G.'s distress over hearing his foster parents outside the interview room. When he attempted to perform a bonding evaluation of N.O.G. with the foster parents, N.O.G. fell asleep and he had to terminate the evaluation. Nonetheless, he was able to make an evaluation and concluded that K.C. was ready at that time to parent a small child.
In March or April of 2007, K.C. again spoke to the Division about allowing N.O.G. to live with her at Odyssey House. The caseworker knew that K.C. was doing well there and might be offered a position as a counselor. The caseworker was also aware that there was a mother-child program at Odyssey House.
However, she did not go to Odyssey House to investigate the mother-child program, although there was no Division rule or policy that would prohibit such a program. The reason she did not further investigate it was because N.O.G. was already bonded to the foster parents.
On April 13, 2007, Odyssey House reported to the judge that K.C. had reached the Level III stage of treatment, was attending individual and group counseling, and had tested negative for drugs and alcohol on April 7, 2007. Odyssey House gave a verbal report to that effect to the Division two days earlier.
On May 25, 2007, Odyssey House reported to the Division that K.C. was then in the final, Level IV, stage of treatment and was a staff intern receiving a biweekly stipend of $200. K.C.'s plan was to complete her internship and become a fulltime clinical counselor. She was eligible to open a bank account and save enough earnings to obtain affordable and suitable housing. She continued to receive individual vocation and counseling sessions and had tested negative for drugs on May 7, 2007. The Division continued to provide K.C. with bus tickets through the end of August 2007, when it concluded that K.C. could afford them without assistance. Odyssey House provided another progress report in September of 2007.
The matter was reached for trial on October 1, 2007. The Division's caseworker, the Division's ARC supervisor, K.C., her mother, her brother, the deputy director of Odyssey House, and both experts testified at trial.*fn9 Many exhibits, most from the records of the Division, were accepted into evidence. The testimony of the caseworker covered the essential highlights in the Division's records and is not repeated here.
Anna Severino, the ARC supervisor, testified that she was aware that Odyssey House had a mother-and-child program and she discussed that program with the Division's caseworker in April of 2007. However, they decided against placing N.O.G. with K.C. because there had been an "intervention" at Odyssey House after drugs and drug paraphernalia had been found on its premises. She stated that she understood that a number of staff had been fired and some of the patients had been terminated from the program. Also, she did not want to take N.O.G. out of a home where he was safe and put him into a situation about which she had questions. She testified that she has never recommended placing children with parents in a substance-abuse program. She admitted that no one from the Division ever went to Odyssey House to investigate its program, even though the ARC had a dual focus--finding a permanent place for a child and working with the parents. Severino also noted that out-of-state supervision would be very difficult, although she conceded the Division could "do an interstate to ask them to supervise." She acknowledged that while the ARC had the file, the Division provided services to K.C. only in the form of bus passes and visitation.
Joan Jackson, the Deputy Director of the Family Center Program for Odyssey House Manor Facility, who was familiar with K.C. as a client, testified on her behalf. She explained that the Family Center Program is set up to afford parents the opportunity for treatment when their children are in daycare or school. She described the treatment program and the various skills classes and treatment levels K.C. had successfully completed. She reported that K.C. had been drug free since May 31, 2006, and had done an exemplary job. At the time of trial, K.C. was in an internship program and would soon be going to school to become a certified substance abuse counselor in New York. Odyssey House intended to employ K.C. in November 2007 at a starting salary of about $27,000. She would be given a two-bedroom apartment at their Family Re-Entry Facility until she could secure independent housing. That housing was immediately available and was a secure facility. K.C. would continue with her own individual and group counseling. She would be permitted to use the childcare facilities provided by Odyssey House while she was at work. With respect to the intervention mentioned by Severino, Jackson explained that it occurred about two weeks prior to trial when all visitations were suspended. Some of the attitudes and behaviors of some of the clients other than K.C. needed to be addressed. She denied that drugs or drug paraphernalia were found on premises in April.
K.C. testified that at Level IV in treatment she is able to go home on forty-eight-hour passes. Because she works at Odyssey House Saturday through Wednesday, she travels to New Jersey on Thursday mornings, visits with N.O.G. at the Division office, and then stays with her brother until she returns to work on Saturday.*fn10 She described the treatment she received and the various courses she completed, ...