October 24, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.O.G.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, including basic childcare and parenting, anger management, relapse prevention, a women's empowerment group.
K.C. related that at no time on or after August 19, 2005, did the Division offer any assistance to her in obtaining suitable housing. It did not offer homemaker or cleaning services. It did not offer to give her food, a food allowance, or a voucher for food. It did not permit her to have more than one hour of visitation per week and from time to time the Division interfered with her weekly hour to bond with N.O.G. by discussing issues with her during visitation rather than speaking with her before or after her time with her son.
Also, the Division did not investigate Odyssey House, which would have been a safe and stable home for N.O.G. where she could spend mornings and evenings with him and take him to day-care in the Odyssey House program. K.C. described the Family Re-Entry Facility as a beautiful, secure building with a huge playground in the back. She would have a two-bedroom apartment with a huge kitchen, a nice living room, and a bathroom.
She testified that she has saved about $1100, will receive $2000 as a completion check when she finishes her internship, and will also receive $1300 from the Human Resource Administration. When she begins to work as a counselor at Odyssey House, she will earn $500 per week. With affordable housing and food stamp assistance, she will be able to support N.O.G.
K.C. has several plans for reunification. One is to have N.O.G. live with her at the Family Re-Entry Facility until she secures affording housing. Another is to live with her brother, who has enough room in his house to allow her to use either two bedrooms upstairs or the finished basement, and travel to work at Odyssey House. A third is to live with her mother.
K.C. expressed her understanding that N.O.G. is bonded to his foster parents and so she would propose twelve-hour visits initially, and then start overnight visits before reunification. Thereafter, she would maintain contact with the foster parents so N.O.G. would get to see them and not have his bond with them completely severed.
On cross-examination, K.C. admitted that she was not available to N.O.G. for seven months as a result of her drug use. When asked on redirect what made K.C. think she would not relapse again when she relapsed once after being drug free for almost four years, she replied that this time she had lost two children because of the relapse and was fighting to keep her third child and that gave her "all of the reason in the world to never do it again." She also pointed to the tools she had acquired to avoid relapse and the support network she had to handle problems as they arose.
At trial, Dr. Weitz testified about the psychological evaluation she performed of K.C. on December 7, 2006. She found K.C.'s family and personal history significant in that her parents' behavior established a model for K.C.'s behavior and her own drug use as a teenager interfered with her learning and development. Dr. Weitz also felt that K.C.'s rehabilitation program in high school "was very promising, and... after that she was able to remain substance free... a couple of years." She found this significant because: it shows that she has the ability to learn from a setting like that where she has emersed [sic] in rehabilitative kinds of counseling and she's able to... take ownership of her behavior and learn from it and grow, and so again, it shows that this time around she can do the same.
On the other hand, it also shows that it's possible that that growth is time limited because she did end up relapsing.
Dr. Weitz explained why K.C.'s drug involvement after the Division placed N.O.G. in foster care was important to the formulation of her opinion:
One of the reasons is that by the time things are serious enough in the parent's life to have their child removed from their care, one of the things that I'm looking at is how much are they going out of their way to try to heal themselves and get their lives back together so that they can take their child out of the foster care system and have them reunified with them, and again, the other reason being that... it took her a very long time to get to the point where she was able to get help. There were a lot of false starts I guess I would say.
Nevertheless, Dr. Weitz's impression of K.C. based on her interview was that she "was really on the road to recovery and it looked somewhat promising for her."
The cognitive-assessment tool that Dr. Weitz used demonstrated that K.C. functioned in the average range of abilities and, thus, there was nothing cognitively that might preclude her from raising a child. The personality testing revealed that K.C., despite being guarded in her responses, had "[s]ome difficulty delaying gratification, not taking complete responsibility for her behavior." This was usually consistent with substance-abusive behavior but in light of six months of sobriety it characterized K.C.'s behavior overall. She also observed that the personality test K.C. took showed some tendency to be dramatic and that she might be prone to occasional hostile outbursts, but Dr. Weitz could not point to any past behavior demonstrating this tendency.
Dr. Weitz administered a Child Abuse Potential (CAP) evaluation of K.C. and found that her score was slightly elevated, "primarily due to the distress and the unhappiness scales being significantly elevated." She explained that "any elevation is of concern, and it's even more a concern when an individual's validity scores are such that they are trying to present favorably, as she was." However, on cross-examination she admitted that she evaluated K.C. during an early phase of her treatment, which could have influenced her scores. She also acknowledged that the distress and unhappiness scales could have been attributable to K.C.'s separation from her child.
With respect to incomplete-sentence testing, K.C. demonstrated "some awareness for the role that she had taken in her situation, and some regret about that, and a desire to have [N.O.G.] returned to her care." From the interview and these tests, Dr. Weitz formed an opinion respecting K.C.'s ability to parent N.O.G.
I wasn't concerned about her desire to be a mother to her child. But this was an individual who really for all of her adult life as I knew it... from I'd say around 20 years old to the time that she had entered her current program in 2006 was unstable in her emotional situation, as well as her residential situation.
In order to demonstrate a stable home or lifestyle, Dr. Weitz opined that K.C. should show "eighteen months of sobriety" and "six to nine months of successful, independent living before the Division should even think about putting the child in her care." By successful, independent living, she meant maintaining a residence on her own, working, attending NA or AA meetings, and remaining drug and alcohol free. She did not consider K.C.'s treatment at the Odyssey House as independent living, even though she was permitted to have passes to spend time in the community.
Dr. Weitz remarked on K.C.'s history of parenting and noted that she handled the stress of parenting small children by handing them off to relatives or using drugs. She opined that K.C.'s personality profile presented "the risk that she will not be able to sustain herself in an independent living situation. There's certainly the risk of relapse. And under either of those situations you have the possibility of a failed placement."
Dr. Weitz also performed bonding evaluations respecting K.C. and N.O.G. on December 4, 2006, and the foster parents and N.O.G. on December 11, 2006. At that time N.O.G. was eighteen months old. She observed that he was an easy-going child.
Things don't seem to rile him up too much. And he was happy and easy going and playful, and there was a nice interchange of affection and play between [K.C. and N.O.G.], certainly I think all really initiated by [K.C.], but mostly received well by [N.O.G.].
However, her tendency is to get very, very affectionate and very close to the child, and what happened to concern me this particular day was that she was ill, and she said that she wished that she was home and in bed with him cuddling, I presume.
And... her nose was running. She had had a very bad cold, and she continually kissed him on his lips. It's hard to really convey the number of times she asked him for a kiss and she asked him for a hug. It... felt almost continuous.
And he obliged most of the time. Sometimes he didn't and he turned his head away. And I think she read those okay. She didn't pursue it. But, you know, 30 seconds later she was asking him for a kiss again. So there was just a lot of physical affection on her part toward him.
She kept him safe. She supervised when it was time to feed him. She cut food into little pieces. I mean, you know, she was very attentive to his safety and to make sure that he was enjoying himself and having a good time. But it was the other issue that really concerned me.
When it was time to leave, I think she just left, and he showed no reaction to her leaving, and when he interacted with me it wasn't really a whole lot different than the way he interacted with her. When she did return into the room, he smiled when he saw her.
Dr. Weitz opined that "since bonding is a continuous process that happens over a period of time, there's just no way that a bond could have developed between [N.O.G.] and his birth mother because... he has not been in her continuous care since the time he was a baby."
She also opined that it was significant that N.O.G. was two-and-a-half years old at the time of trial because true bonding is completed at age three or four years old if the child has remained in one placement during that period. She explained that
[i]f a child is removed from a caretaker to whom it's bonded or really in the thro[e]s of bonding where bonding is almost completed and experiences the loss of that caretaker as a devastation, which it typically would in a healthy bond, as a death, basically, and is not able... to recover through another caretaker who perhaps knows him well and he sees as a secondary kind of psychological parent, you know, like the spouse of the primary caretaker, for example, but if a person like that is not available to the child, the child is going to resist forming a relationship with this new person.
And so that is a very big risk for children who are three, four years old at a time when lots of development is happening for them to, you know, lose toilet training,... lose their speech, not be able to sleep by themselves, not want to engage in any social interactions, withdraw from other people, and so it puts them in a situation where they're not opening to learning and growing.
Dr. Weitz testified the K.C. was not in a role as a secondary caretaker to N.O.G. because she was not available during the first eighteen months of his life and that the visitation, which resumed on August 23, 2006, was not sufficient to permit the formation of a bond as of the time of trial.
Dr. Weitz then opined that N.O.G. had bonded to the foster parents and that they were attentive to his needs. However, she also admitted that N.O.G. pushed the foster mother away quite a bit, he thwarted her attempts at affection, the foster parents' interactions with N.O.G. were intrusive, and their behavior was more extreme than other foster parents presenting for bonding evaluations. Although bonding is an affectionate tie, physical affection between the foster mother and N.O.G. was absent. Dr. Weitz was not asked to perform a psychological evaluation of the foster parents.
She testified that if K.C.'s parental rights were not terminated "the result of removal would be that he would be devastated." She acknowledged that a "child's reaction to removal depends on what the circumstances are, where they're going to be going afterward and the kind of care and quality of care that they're going to be receiving, and although [N.O.G.] knows his birth mother, there has been some resistance to her." The potential outcome of reunification would be the regressions she described. On the other hand, she opined, if parental rights were terminated, there would be no impact on N.O.G. because K.C. has not been a primary part of his life.
On cross-examination, Dr. Weitz acknowledged that under her definition of bonding it would have been impossible for K.C. to develop a bond with N.O.G. during the first sixteen months of his life because she had only weekly visitations. She was aware that children were permitted to live with their mothers at Odyssey House and stated that she has in the past recommended that children be allowed to be with their birth mothers in such facilities. When asked to assume that N.O.G. was returned to K.C. at the end of the hearing and then to opine whether a bond could grow between them over time, Dr. Weitz stated that it was possible, although not probable, that he could develop a bond with K.C. She admitted, however, that N.O.G. was more responsive in his affection with K.C. than with the foster mother.
With respect to Dr. Weitz's opinion that K.C. should not have been kissing N.O.G. when she had a cold, she admitted that she had no medical evidence that K.C. was actually sick and that she could have been suffering from allergies. In that case, she would not have been putting her child at risk. However, she denied that her initial conclusion overshadowed her report.
During cross-examination, Dr. Weitz was questioned about her report, which stated,
Once [K.C.] has achieved 18 months of sobriety and six to nine months of successful independent living, then she could be considered as a viable placement option for her child. However, it is not fair to [N.O.G.] to have his permanency delayed for another year, at best, while his birth mother tries to remedy the problems that caused his removal.
Dr. Weitz admitted that there was nothing from a mental-health point of view that would preclude K.C. from parenting her child. She also admitted that K.C. mostly met N.O.G.'s needs during the bonding evaluation and that when K.C. left the room, N.O.G. was happy to see her return. Dr. Weitz acknowledged that "if there's a problem in the relationship with the child and the caretaker, there can be some psychological effects of having been separated from a birth parent, even an unknown one." Additionally, she stated that N.O.G. could have suffered a loss when he was separated from K.C. on August 19, 2005. Dr. Weitz was not familiar with K.C.'s situation at the time of trial.
Dr. Fulford also testified to his psychological assessment of K.C. She had normal intelligence and a borderline depression score. Her MMPI-2 personality assessment had an elevated impression-formation scale, which would be expected in an evaluation setting like this, and an elevated psychopathic-deviant scale, which would also be expected for someone who had been arrested. Similarly, she had an elevated paranoid scale, which was consistent with someone involved in criminal or family court. There was no mental illness and no need for psychiatric treatment. He testified that under DSM criteria, K.C. was in remission after one year of sobriety. He related that research has shown that the likelihood of maintaining sobriety increases as the duration of abstinence increases and the prognosis also improves. He concluded that K.C. has no disability that would preclude parenting and was able to be considered a potential caregiver and have her parental rights restored.
As to the bonding evaluations, he found that N.O.G. was bonded with the foster parents but also had a bond with K.C., although she was not the primary caretaker. Dr. Fulford explained that although he ended the bonding evaluations early, he had made sufficient observations to reach his conclusions. Although K.C. qualified as a potential caregiver, Dr. Fulford did not recommend immediate reunification but, rather, a gradual transition to out-of-office visits, then overnight visits, and then reunification over a three-month period if each stage was successful.
He considered Dr. Weitz's requirement of six-to-nine months of independent living a high estimate of what was required. When presented with K.C.'s situation at the Odyssey House at the time of trial, he opined that it gave added support to his earlier opinions. He testified that K.C. had a significant parental bond with N.O.G. and that she could mitigate the risk of harm to N.O.G. from reunification and that N.O.G. would not suffer permanent or irreparable harm. Because of N.O.G.'s age, Dr. Fulford opined that he would not likely remember the change in custody.
On cross-examination, Dr. Fulford rejected the necessity of a period of independent living because substance-abuse programs incorporate reintegration phases. He stated that bonds are mutual and K.C. and N.O.G. shared a bond. Although, given N.O.G.'s age, he had a significant bond with his foster mother and that changing this bond carried some degree of risk, there would not be permanent or irreparable harm if the change of custody was properly handled. There was, he testified, no probability of harm, rather, there was only a possibility of some harm.
The judge issued a written decision on October 15, 2007, but it was not the "lengthy, comprehensive" type of decision that we approved in N.J. Division of Youth & Family Services v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The judge, instead, briefly recited K.C.'s drug abuse history and the voluntary surrender of her parental rights to R.V. and C.J.G. He described the events of August 19, 2005, and the Division's unsuccessful efforts to arrange for a relative caregiver. He found that K.C. came to her supervised visitation on November 23, 2005, while under the influence of drugs and that the Division was notified on November 30, 2005, that K.C. had been discharged from Bergen Regional because of two drug relapses. He found that K.C. tested positive for drugs in court on December 6, 2005. The judge also found that K.C. advised the Division that she planned to go to Spring House for treatment but did not enter its program. He found that K.C. was arrested in New York for an undisclosed crime*fn11 and some outstanding warrants, spent a day in the Tombs and one month on Riker's Island, and was placed on probation for five years. The judge also found that:
[K.C.] was arrested in New Jersey on September 17, 2005, and indicted on January 13, 2006 for possession of heroin. Apparently, she was sent from Riker's Island, New York to the Bergen County Jail on April 27, 2006 and pled guilty to the possession of heroin charge on May 9, 2006. She was sentenced to three year[s] probation with a condition that she remain and complete an inpatient drug program of at least twelve months duration at Odyssey House, New York.
[K.C.] entered the Odyssey House drug program on May 31, 2006 and has remained drug free and done exceptionally well in the program. She is scheduled to complete the program at the end of this month and has been offered a position as a counselor in the Odyssey House Family Center Program with housing for herself and [N.O.G.]
She has had over a one-year period of sustained drug use remission, but the period occurred while living in and with support of the long-term drug program. Her ability to remain drug free has not been tested by the stresses of problems of daily living outside of the program.
.... [K.C.] neglected and harmed [N.O.G.] by using drugs during her pregnancy, [and] did not provide [N.O.G.] with proper housing, medical care, and nurturing during the two months he was in her custody after his birth. She was totally absent from him for fourteen months thereafter and has seen him only for brief visits since he was sixteen months old. If she has become able to properly parent [N.O.G.], it has taken an unreasonably long time.
[N.O.G.] is now two years and four months old and his foster parents have been caring for him since he was two months old.
Both [K.C.]'s and the Division's mental health expert[s] agree that [N.O.G.] is bonded to his foster parents.
The judge then quoted the conclusions reached by Drs. Weitz and Fulford in their reports. Specifically, he quoted Dr. Fulford's written opinion that N.O.G. was "likely to experience significant difficulty in separating from" the foster parents. Further, the judge quoted Dr. Fulford's written opinion:
Although his age and the length of his present placement, and the lack of any other permanent placement in his history can result in a separation that has the potential to be permanent and enduring in any child, the risk can be successfully mitigated through a gradual transition to the custody of the birth mother that would include longer and more frequent visits, reduced supervision and overnight visits.
The judge quoted Dr. Weitz's written opinion that there was no true bond between K.C. and N.O.G. and that N.O.G. would not be harmed if contact with K.C. ceased and indeed would benefit from it because he would be free to enjoy a permanent relationship with the foster parents "who he is coming to view as his psychological parents." He then quoted her written opinion that N.O.G. was at a critical stage of emotional development that "begins at about 18 months of age and lasts until [children] are about three years old," a stage when children "are extremely vulnerable to trauma and deprivation." Last, he quoted her written opinion that:
As long as there are no disruptions in the bonding process, [N.O.G.] stands the best chance of becoming a confident and capable individual if he continues in the care of the [foster parents]. Disruptions at this stage, especially considering [K.C.'s] problems and limitations, could cause severe and enduring emotional harm to [N.O.G.]
The judge found Dr. Weitz's "opinions concerning the bonding of [N.O.G.] with his foster parents and the risk of harm to [N.O.G.] should he [be] separated from them and returned to the custody of his mother [are] more reasonable and credible than those of [K.C.]'s expert." He found that "[r]eturning [N.O.G.] to the custody of his mother will place him at great risk of severe and enduring harm." The judge concluded:
The evidence is clear and convincing that: (1) [K.C.] and [O.G.] neglected [N.O.G.] and have caused him harm and that [N.O.G.] would be at great risk if returned to either of their custody[;] (2) [t]he Division offered and provided services to [K.C.] and [O.G.] to assist them in overcoming the causes of their neglect of [N.O.G.] and they have been unable to do so within a reasonable period of time; (3) the Division made reasonable efforts to find relatives willing and able to properly care for [N.O.G.]; (4) it is in [N.O.G.]'s best interest that his parents' parental rights be terminated to free him for adoption; and (5) the termination of his parents' parental rights will not do him more harm than good.
The judge did not discuss applicable law. He did not explain why he found the opinions expressed by Dr. Weitz more credible than those of Dr. Fulford. And he did not discuss the bulk of the evidence bearing upon the issues to be decided. Nonetheless, we may review the underlying evidence and the judge's findings of facts "to ascertain whether the evidence fulfills the best interests standard of N.J.S.A. 30:4C:15.1(a)." In re D.M.H., supra, 161 N.J. at 378. Therefore, "we may render complete findings based on the evidence of record in order to dispose of the important issues in this case." Ibid.
K.C. does not dispute that the Division proved the first prong of the statute. Indeed, the evidence clearly establishes that K.C.'s drug abuse during her pregnancy and for the first twelve months of N.O.G.'s life endangered his safety, health and development. Rather, she asserts that the Division did not prove the second, third and fourth prongs of N.J.S.A. 30:4C-15.1(a). Both the Division and the Law Guardian contend otherwise.
Specifically, K.C. argues under the second prong that the judge failed to distinguish between her past behavior and her willingness and ability at least as of the time of trial to eliminate the harm to her child. As to the third prong, K.C. asserts that the Division did not make reasonable efforts to provide services because it never formulated a concrete plan for reunification and the judge failed to consider K.C.'s mother as an alternative to termination even though the Division ruled her out as a caregiver. Finally, K.C. urges that the experts both opined merely that reunification should be delayed for three to nine months and that such opinions could not support a conclusion under the fourth prong that termination of parental rights would not do more harm than good.
The second prong of the best-interests standard focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re D.M.H., 161 N.J. at 378-79. The second prong requires proof that "[t]he child'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).
While the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interest of the child. [In re D.M.H., supra, 161 N.J. at 379 (citation omitted) (emphasis added).]
N.J.S.A. 30:4C-15.1(a)(2) defines harm to the child as "includ[ing] evidence that separating the child from his foster parents would cause serious and enduring emotional or psychological harm to the child." In re D.M.H., supra, 161 N.J. at 384.
Under the second prong, a Family Part judge is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child.*fn12 A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.
After the four-prong analysis of A.W. was adopted by the Legislature as N.J.S.A. 30:4C-15.1(a), we decided In re Guardianship of A.R.G., 318 N.J. Super. 323 (App. Div.), certif. denied, 162 N.J. 127 (1999). In that case, the mother, whose drug remission was "relatively short-term" at trial, appealed the termination of her parental rights. Id. at 324, 326. Because the mother was only seeking "to indefinitely postpone permanent placement until such time, if ever, she becomes prepared to function as a parent for the children," we affirmed termination of her parental rights. Id. at 330.
Later in 1999, the Supreme Court considered when termination of parental rights becomes appropriate in light of the statutory best-interests-of-the-child standard. In re K.H.O., supra, 161 N.J. at 343. The Court found under the first prong that "[d]rug use during pregnancy, in and of itself, does not constitute a harm to the child under N.J.S.A. 30:4C:15.1(a)(1)."
Id. at 349. Further, "[p]renatal drug use does not, without more, establish parental unfitness or an inability to parent." Ibid. "The child is harmed by the mother's drug use, however, when that drug use results in the child being born addicted to drugs with the attendant suffering caused by such addiction." Id. at 350.
The Court then observed that "the second element of the best interests standard must focus on the measures taken by the parent after the child's birth to maintain the parent-child relationship and to foster an environment leading to normal child development." Id. at 352. The Court went on to hold this prong may be satisfied by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child. [Id. at 353.]
For three-and-a-half years after K.H.O.'s birth, her mother "ha[d] been consistently unable to take any responsibility for K.H.O.'s parental care." Id. at 353. The court-appointed expert opined that the mother "'has perpetuated a behavioral pattern' of chronic, unresolved drug abuse that prevented [the expert] from recommending that she be given custody." Ibid. Indeed, the mother conceded at the time of trial that she was unable to care for her child. Ibid. Additionally, the Court observed that there was no indication that the mother "will successfully rehabilitate herself sufficiently to care for her daughter; this finding is affirmed by her positive drug test just prior to trial and by the court appointed expert's report." Ibid. As a consequence, the Court found that the second prong had been established. Id. at 354.
The D.M.H. Court discussed a father's "failure to provide even minimal parenting to his children" while the children were at risk of being placed in foster care because over a two-year period from 1991 to 1993 the family was living under deplorable conditions and suffering from the mother's neglect, drug abuse, and homelessness. In re D.M.H., supra, 161 N.J. at 379. The mother placed the children in foster care in 1993 after she left them dirty and unsupervised in a shelter. Id. at 372-73. Even after the mother died in 1995, id. at 373, the father "did not provide the children with the emotional support and comfort or even the reassurance of physical presence that such trauma would required of a parent. Instead, he failed even to visit the children for six months," id. at 379-80, and lacked the "'emotional, psychological, physical or financial means' to provide minimal parental care to his children" according to the court-appointed expert. Id. at 381. The Court found this and other evidence sufficient to satisfy the first and second prongs of the statutory standard. Id. at 383.
By the time of trial in this matter, K.C. was willing and able to eliminate the harm to her child. She had been drug free for sixteen months and would complete drug treatment on November 7, 2007. Under DSM criteria, K.C. had been in remission since June 1, 2007. She was able and willing to provide a safe and stable home for her child. She would begin fulltime employment with Odyssey House in November 2007 and could live with N.O.G. in its safe and secure Family Re-Entry Facility or with her brother. Furthermore, she had childcare available at Odyssey House.
Both experts agreed that K.C. had no mental health issues that would preclude effective parenting. Both agreed that she was really on the road to recovery. Both agreed that she was aware of the role her behavior played in the need for foster care for N.O.G. Dr. Weitz testified only to a risk of relapse, not a probability, and Dr. Fulford testified that research has shown that the risk of relapse diminishes as the duration of abstinence increases. Both experts had no concern about K.C.'s desire to mother her child.
This evidence precluded any finding that K.C. was unwilling or unable to eliminate the harm to her child and to provide a safe and stable home for her child. Furthermore, some of the judge's fact findings are not supported by the record. He characterized K.C.'s remission as lasting "over a one-year period," which seems to minimize her eighteen-month remission. He found that K.C. was totally absent from N.O.G. for fourteen months, but it was only seven months. The judge found that K.C. had seen N.O.G. only for brief visits since he was sixteen months old, but her visitation resumed before N.O.G. was fifteen months old and she was limited to brief visits by the Division and the court despite her requests for greater visitation.
It is clear that at the time of trial it was "reasonably foreseeable that [K.C. could] cease to inflict harm upon [N.O.G.]." A.W., supra, 103 N.J. at 607. K.C. did all that was required of her. See Ibid. Unlike the children in A.R.G. and K.H.O., N.O.G. had been in foster care for only two years and one month. See In re A.R.G., supra, 318 N.J. Super. at 330 (children in foster care for four years); In re K.H.O., supra, 161 N.J. at 344-45 (children in foster care six years). Unlike K.H.O.'s mother, K.C. was drug free for sixteen months, had successfully completed childcare and parenting classes, and was prepared to function as a parent. See In re K.H.O., supra, 161 N.J. at 344. Further, N.O.G. was not born addicted to heroin or cocaine, unlike K.H.O. See ibid. Like the mother in S.A., K.C. has made substantial and successful efforts to address her addiction, which is significant evidence that K.C. can cease causing harm to N.O.G. See S.A., supra, 382 N.J. Super. at 535 (mother "finally acknowledged her addiction and made substantial and thus-far successful efforts to address it").
This evidence thus limits the Division to proving the second prong by clear and convincing evidence "that separating the child from his resource family parents would cause serious and enduring harm to the child." N.J.S.A. 30:4C-15.1(a)(2) (emphasis added). Because this issue is similar to the fourth prong and overlaps it, we will consider it together with the judge's findings and conclusions respecting the fourth prong.
Under the third prong of the best-interests standard, the Division must prove that it "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." N.J.S.A. 30:4C-15.1(a)(3); see also In re K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" are defined by the statute to mean:
attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c).]
The third prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." In re K.H.O., supra, 161 N.J. at 354 (citing In re D.M.H., supra, 161 N.J. at 386-87). Reasonable efforts depend upon the facts and circumstances of each case. In re D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
The New Jersey Administrative Code also provides guidelines for the diligent efforts of [the Division] to reunite families.
N.J.A.C. 10:133I-4.2. Those guidelines require that [the Division] provide services to the family according to a case plan, including enlisting the assistance of relatives, providing direct services, or providing referrals to community services providers. N.J.A.C. 10:133I-4.2(a). The guidelines provide that [the Division] must monitor the services, change them as needs arise, and identify and strive to overcome "barriers to service provision or service utilization." N.J.A.C. 10:133I-4.2(b)(2). [In re D.M.H., supra, 161 N.J. at 387.]
In D.M.H. Court examined its K.L.F. decision and observed that:
The critical holding of K.L.F., supra, regarding the "diligent efforts" requirement, is that [the Division] must encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family. [The Division] must promote and assist in visitation and keep the parent informed of the child's progress in foster care. [The Division] should also inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually, to become an effective caretaker and regain custody of his or her children. N.J.S.A. 30:4C-15.1(c); In re Laura F., 662 P.2d [922, 930 (Cal.] 1983) (finding reasonable efforts requirement met when agency counseled parent on changes she needed to make in order to regain custody). [Id. at 390 (citing In re K.L.F., supra, 129 N.J. at 46).]
After a child has been placed in foster care, the Division is required "to maintain the relationship between the child and the parents in an effort to return the child to the parents whenever possible." A.G., supra, 344 N.J. Super. at 433.
Here, the Division, in the days and weeks following the Dodd removal of N.O.G., did not offer any assistance to K.C. in finding suitable housing, did not offer homemaker or cleaning services, and did not offer assistance by providing food or food vouchers. The last time the Division referred K.C. for drug treatment was on February 16, 2005, before N.O.G. was born. When K.C.'s counselor from the Evergreen Program told the Division caseworker in November 2005 that K.C. refused to enter an inpatient program because she was convinced it would jeopardize reunification, the Division did not counsel K.C. that, to the contrary, inpatient treatment, if successful, would improve her opportunity to be reunified with her children and it did not refer her to an inpatient program.
Indeed, contrary to the judge's finding, it was K.C. who voluntarily entered Odyssey House*fn13 without the assistance of the Division. Thereafter, the Division did not provide visitation until after K.C. had been in treatment for three months. It never investigated Odyssey House to ascertain the type of program or the facilities. The Division never allowed N.O.G. to attend Odyssey House and, instead, referred the matter to the ARC. Although K.C.'s visitation schedule was changed from biweekly to weekly visits in March of 2007, the Division cut the length of each visit from two hours to one. Further, at the same time, the Division again ignored K.C.'s request that N.O.G. attend Odyssey House, this time because N.O.G. was already bonded to the foster parents. Although Severino testified that the ARC had a dual focus--permanent placement and working with the parents--it did little of the latter here.
The judge here merely found that "the Division made reasonable efforts to find relatives willing and able to properly care for" N.O.G. Those efforts alone are not sufficient to help the parent correct the circumstances that led to the placement. Nor are they efforts that focus on reunification. In re K.H.O., supra, 161 N.J. at 354. It is clear that the Division did not encourage, foster and maintain a bond between N.O.G. and K.C. As a result, it has not proven by clear and convincing evidence that the third prong of the best-interests-of-the-child standard has been satisfied.
Under the last prong of the best-interests standard, the Division must prove that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The overriding consideration is the child's need for permanency and stability. In re J.C., supra, 129 N.J. at 10. "This criterion is related to the first and second elements of the best interests standard, which also focus on parental harm to the child." In re D.M.H., supra, 161 N.J. at 384. This prong "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609.
"The question to be addressed under [the fourth] prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the child's] natural parents than from the permanent disruption of [the child's] relationship with [the child's] foster parents." In re K.H.O., supra,, 161 N.J. at 355. Where a child is between nine and eighteen months, the child's vulnerability to moving is very concentrated. In re Guardianship of K.L.F., 129 N.J. 32, 42 (1992); S.A., supra, 382 N.J. Super. at 540.
To show that the child has a strong relationship with the foster parents or might be better off if left in their custody is not enough. [The Division] must prove by clear and convincing evidence that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." In re J.C., supra, 129 N.J. at 19 (citations omitted) (emphasis added); see also A.G., supra, 344 N.J. Super. at 435.
In meeting the fourth prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. In re J.C., supra, 129 N.J. at 19.
In reversing our conclusion that the first and fourth prongs of the best-interests standard had not been proven, the K.H.O. Court observed that the "trend over the last thirty years has been towards foster care reforms that place limits on the amount of time that a parent may have to correct conditions at home in anticipation of reunification." In re K.H.O., supra, 161 N.J. at 358-59. The Court observed:
The Appellate Division was understandably reluctant to terminate [the mother]'s parental rights. Caution is appropriate because termination of parental rights does not automatically lead to adoption or other comparable permanent arrangements. This Court has noted other dangers of placing too much emphasis on continuity of support as the basis for keeping children in foster care. Parents, particularly those with limited incomes and unstable housing and work experiences, should be able to turn to the foster-care system without fear of losing their children. We have expressed concerns that the rush towards permanency creates the risk of institutional bias, which may tilt the process in favor of the agency and its social workers and foster parents, and unfairly weigh the process against parents with fewer material resources. Further, we are aware that disadvantaged women are more likely to be reported for abuse and to be tested for drug use. [Id. at 359 (citations and internal quotations omitted).]
However, the Court concluded that "[l]ong-term foster care is the exception to the general rule favoring adoption, and is available under only very limited circumstances, not present here." Id. at 360 (footnote omitted).
More recently, we considered the termination of parental rights in an opinion authored by Judge, now Justice, Hoens. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235 (App. Div. 2005). In that case, we reversed the termination of a mother's parental rights on several grounds, most notably, because the judge's factual determinations were not supported by the record and the record "contain[ed] virtually no findings based on credibility." Id. at 259-60. In particular, the mother had complied in whole or in part with all of the recommendations of the Division's risk-assessment expert. In doing so, we observed:
We are not unmindful of the opinions of the experts. We are particularly mindful of the opinion of [the mother's] own expert, who concluded that she was not yet ready to be reunited with her children. The trial judge discounted his opinion that she might be able to achieve reunification after six more months of therapy on the ground that he mistakenly believed that she was already working in therapy. In fact, the trial judge overlooked the extensive work that [the mother] had accomplished in her parenting and anger management classes and blamed her for the failing of [the Division] to offer her services that were, as a practical matter, available to her. Although it is true that [the mother] may need six months of additional therapy before being reunited with her children, that fact did not support terminating her parental rights. As our Supreme Court has cautioned, the fundamental focus of the inquiry is not whether the parent is now fit, but whether the parent can become fit in time to meet the needs of the children. See J.C., supra, 129 N.J. at 10.
Nor are we unmindful of the fact that these children undoubtedly have strong bonds with their foster parents, bonds made even stronger by the passage of time from the time of the evaluations, through the trial, through the preparation of the judge's opinion and through this appeal. Indeed, it is largely the strength of those bonds that gives rise to [the Division's] plan for foster parent adoption of these children, a plan that is supported on appeal by the Law Guardian.
As to [the boy], [the Division's] expert opined that he would need to engage in therapy regardless of whether he was reunited with [the mother]. As to [the girl], while her attachment to [the mother] was weaker, the continued visits evidenced a bond between the two. Although the bonds these children have developed with their foster parents are strong, those bonds alone are an insufficient basis on which to terminate Florence's parental rights. See State v. T.C., 251 N.J. Super. 419, 432-33 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992).
Plainly, [the mother] will need to engage in the therapy that [the Division] previously failed to afford her and that was an impediment in the view of both experts to reunification. Both [the boy] and [the girl] will also need therapy in order to assist them with reunification with [the mother] as well as with the inevitable disruption to their lives that leaving their foster parents will entail. We echo, however, our observation in T.C. that "[t]here is much that is disquieting about this case." Id. at 433.
We further find instructive the following admonition of this court:
A final separation from a biological parent is a harm in itself.... Experts are increasingly concerned about the seriousness of this loss and are recognizing the need for continued contact with a biological parent, even a flawed parent.... Our courts have recognized that a child's relationship with a parent is of such significance that doubts are to be resolved against its destruction.
[In re Guardianship of J.E.D., 217 N.J. Super. 1, 15-16 (App. Div. 1987).] [Id. at 262-63.]
Under the fourth prong of the best-interests standard in this case, the pivotal issue is whether there is clear and convincing evidence that separating N.O.G. from his foster parents would cause serious and enduring emotional or psychological harm to him. In re J.C., supra, 129 N.J. at 19. To resolve this issue, we must consider the opinions of the experts who testified, recognizing that the judge, for an unexplained reason, found Dr. Weitz's opinion respecting N.O.G.'s bond with the foster parents and the risk of harm should he be separated from them to be more credible than those of Dr. Fulford. That was the only credibility determination made by the judge.
The evidence from K.C.'s supervised visits with N.O.G. established that K.C. behaved in an appropriate fashion and she was affectionate with N.O.G. Dr. Weitz acknowledged that K.C. had once before taken ownership of her behavior when she remained drug free for four years, although her relapse now, as then, might be time limited. She opined that it took K.C. "a very long time to get to the point where she was able to get help," but did not consider that the Division had last referred K.C. for drug treatment almost two years before she issued her opinion. She did acknowledge that K.C. "was really on the road to recovery and it looked somewhat promising for her."
Dr. Weitz expressed concern about K.C.'s ability to parent because she did not have steady employment or a suitable place to live and raise a child. The latter concern was unfounded because Dr. Weitz did not consider the facilities and programs available at the Odyssey House, the suitability of which was not contested by the Division at trial. In fact, neither the Division nor Dr. Weitz investigated its Family Care Program. When Dr. Weitz testified, she expressed her opinion with respect to suitable housing as a concern she had in December 2006 and confessed that she was not familiar with K.C.'s situation at the time of trial.
Dr. Weitz opined that there was a risk that K.C. would relapse and a risk that she would not be able to sustain herself in an independent living situation, but she did not quantify those risks. As to the bonds N.O.G. had formed with K.C. and his foster parents, Dr. Weitz observed that "there was a nice interchange of affection and play between" K.C. and N.O.G. Dr. Weitz also noted that K.C. was very attentive to N.O.G.'s safety, but she was concerned that K.C. was kissing N.O.G. on the lips when she appeared to have a cold because her nose was running. However, at trial she admitted that she did not know that K.C. was actually sick and acknowledged that she might have had a flare of allergies. The judge did not discuss the impact of this admission on the weight of Dr. Weitz's concern about the appropriateness of K.C.'s kissing N.O.G.
Neither did the judge consider the impact of the Division's role in providing limited visitation on K.C.'s ability to develop a stronger bond with N.O.G. There were only seven months during which K.C. was not available to N.O.G., yet she only had significant contact with him during the first two-anda-half months of his life and, thereafter, had no more than four hours per month to spend with him from September through December 2005 and from September 2006 through September 2007.
Dr. Weitz described the qualities of an individual who can form a healthy bond as one who can put the child's needs ahead of her own, who has a healthy personality, who is not drug involved, who is not abusive, and who is capable of changing her parenting style with the age and needs of the child. Yet she did not opine that K.C. was not capable of forming a healthy bond at the time of trial. Indeed, K.C. seemed to satisfy these criteria at that time. Both experts agreed that K.C. did not suffer from any mental illness, she was not drug involved, she had never been abusive, and there was no evidence that she was incapable of changing her parenting style. There was also no evidence at the time of trial that K.C. was incapable of putting N.O.G.'s needs ahead of her own. Indeed, she had spent sixteen months in a drug-treatment program to cure her prior failure to put the needs of her children before her own.
As to the bonds between N.O.G. and the foster parents, in particular the foster mother, Dr. Weitz raised some red flags that neither she nor the Division explored. She observed that N.O.G. pushed the foster mother away quite a bit and that he thwarted her attempts at affection. She found that the foster parents' interactions with N.O.G. were intrusive and their behavior was more extreme than other foster parents presenting for bonding evaluations. She testified that bonding is an affectionate tie, but admitted that physical affection between the foster mother and N.O.G. was absent.
Although Dr. Weitz opined that N.O.G. was in the process of forming a true bond with the foster parents, which would not be complete until he was three or four years old, she also testified that the devastation a child would experience from the loss of the foster parents could be ameliorated through another caretaker who knows him well and who he sees as a secondary psychological parent. Although she opined that K.C. was not a secondary caretaker to N.O.G., she had not evaluated the progress of their bonding in the nine months prior to trial, a factor that bears on the weight of her opinion.
Dr. Weitz also acknowledged that a child's reaction to removal from foster parents would depend on the circumstances of the kind and quality of care the child would receive thereafter. Further, she admitted that once K.C. achieved eighteen months of stability and six to nine months of independent living, "she could be considered as a viable placement option for the child" (emphasis added). Indeed, at that time N.O.G. would be about three years old and K.C. could well have become a viable placement option for N.O.G. It seems clear that the only real divergence between the opinions of Drs. Weitz and Fulford was the time required to mitigate the risk of harm to N.O.G. from reunification.
The judge's uncritical acceptance of the opinions Dr. Weitz expressed in her February 11, 2007, report without analyzing the impact of the evidence adduced at trial upon the reasonableness of those conclusions is inconsistent with the obligation of a Family Part judge to find by "clear and convincing evidence, obtained by reasoned application of the best-interest standard," S.A., supra, 382 N.J. Super. at 533, "that separating the child from his resource family parents would cause serious and enduring harm to the child," N.J.S.A. 30:4C-15.1(a)(2), and that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).
We see no significant distinction between the evidence developed at trial here and that reflected in our opinion in F.M., supra, 375 N.J. Super. 235. As in F.M., it is largely the strength of the bonds between N.O.G. and his foster parents that gives rise to the Division's plans for adoption. Id. at 263. Yet here there were at least some red flags raised by Dr. Weitz respecting the strength of those bonds, but they were not explored. The judge did not address the principle that foster-parent bonds alone are an insufficient basis for termination of parental rights. See T.C., supra, 251 N.J. Super. at 432-33. The judge did not consider the availability of "therapy to assist [N.O.G.] with reunification with [K.C.] as well as with the inevitable disruption to [his life] that leaving [his] foster parents will entail." F.M., supra, 375 N.J. Super. at 263. Nor did he consider the impact of K.C.'s plan to ameliorate the disruption to N.O.G.'s life by maintaining contact with his foster parents into the future.
Further, Dr. Weitz did not opine on the extent to which K.C.'s reunification plan would ameliorate the harm she feared would befall N.O.G. if K.C.'s parental rights were not terminated. Cf. In re K.H.O., supra, 161 N.J. at 362. In evaluating the weight of an expert's opinion, the fact-finder must consider whether the facts on which the expert's opinion is based have been proved. Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd, 79 N.J. 547 (1979); see also, N.J.R.E. 703. That was not done here.
For all of the foregoing reasons, we conclude that the Division has failed to prove the second and fourth prongs of the best-interests standard for termination of parental rights by clear and convincing evidence.
Because we find that the Division has failed to satisfy the necessary prongs of N.J.S.A. 30:4C-15.1(a)(2), (3) and (4) by clear and convincing evidence, we must address the issue of reunification. Of course, K.C.'s drug abuse history from the time of initial termination to the time of a remand hearing "will be of undoubted relevance to this issue." S.A., supra, 382 N.J. Super. at 539. Assuming K.C. has remained and continues to remain drug free, then a "precipitous reunification... would be both unwise and unwarranted." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 624 (App. Div.), certif. denied, 192 N.J. 68 (2007). Instead, the Division must gradually increase the frequency and scope of K.C.'s contacts with N.O.G. in order "to achieve the desired goal: the eventual return of [N.O.G.] to [K.C.], without compromising [his] safety." See ibid. If, after the passage of three to siX months to assess the efficacy of services, the trial judge is satisfied that reunification is no longer legally viable, the Division may refile its guardianship petition.
We do not, however, remand this matter to the same judge. Where a Family Part judge "has heard [the] evidence and may have a commitment to its findings, we believe it is best that the case be reconsidered by a new fact-finder." A.W., supra, 103 N.J. at 617 (citing with approval In re Guardianship of R., 155 N.J. Super. 186, 195 (App. Div. 1977), where we required that the case be assigned to a new judge because "[t]he judge who heard the matter below has already engaged in weighing the evidence and has rendered a conclusion on the credibility of the Division's witnesses"). Accordingly, upon remand, this matter must be assigned to another Family Part judge for expeditious proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.