On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-71-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Lisa, Sapp-Peterson and Alvarez.
These three appeals have been consolidated for purposes of this opinion. R.A.S., Sr. (R.A.S.) and N.L.D. (collectively, defendants) appeal from the December 14, 2007 order of the Superior Court, Chancery Division, Family Part, terminating their parental rights to their biological children, R.A.S., Jr. (Jr.), born August 4, 2002, and S.M.S., born August 22, 2005, and granting guardianship of the two children to the Division of Youth and Family Services (Division). The law guardian appeals from that portion of the December 14 order granting guardianship to the Division without including a provision for sibling reunification and the court's failure to permit expert testimony in this regard. We affirm.
The evidence presented at trial disclosed that the Division first became involved with the family in 2004 when it received a referral stating that four adults and one child resided in a one-bedroom apartment and were about to be evicted for non- payment of rent. The Division was unsuccessful at that time in its effort to locate the family, but received another referral involving the family one month later. The referent reported that Jr. had been treated at a local hospital for ringworms and that the child was living with his parents, who were drug users, in filthy conditions and without food. The Division assigned a caseworker, Chris Igiehon (Igiehon), to investigate the matter. Igiehon visited the apartment where the family was living and interviewed N.L.D. The allegations were not substantiated. Igiehon did, however, refer both R.A.S. and N.L.D. to a certified alcohol and drug counselor.
There were additional referrals thereafter as a result of allegations of abuse and neglect and inappropriate living arrangements. At one point, the family started living with N.L.D.'s father, T.D., but the Division objected to this living arrangement because of reports that he regularly abused drugs. It made arrangements for the family to move to the YMCA shelter.
On August 24, 2005, the Division learned that N.L.D. had given birth to S.M.S. on August 22, and that both mother and daughter tested positive for methadone. Despite the fact that S.M.S. was experiencing withdrawal symptoms and required further hospitalization, N.L.D. voluntarily left the hospital and reportedly returned to live with her father. Also on August 24, Igiehon went to T.D.'s address. Finding no one home, he spoke to the first-floor tenant, who advised that T.D. "resided on the second floor with a relative and her son[.]" R.A.S. was incarcerated on a burglary charge at the time.
Igiehon met with N.L.D. later that day. N.L.D. told Igiehon that she used Percocet and heroin five months before S.M.S. was born, but said she was unaware of her pregnancy until three or four months into her term. Igiehon also observed bruising and scratches on Jr.'s legs, which N.L.D. could not explain. Jr. wore clothes that were too big for him and appeared dirty. Igiehon believed that abuse and/or neglect had been substantiated and removed Jr. from N.L.D.'s custody on an emergency basis.
Two days later, the Division filed an order to show cause and verified complaint seeking temporary custody of Jr. and S.M.S. The court granted the Division temporary custody of the children. Jr. was placed in the first of what would ultimately turn out to be five different foster homes over the next two years leading up to the guardianship trial. S.M.S. remained hospitalized for almost two months and, upon her discharge on October 11, 2005, she was placed in her current foster home.
After the Division removed Jr. from T.D.'s home, N.L.D. briefly lived with her maternal grandmother until her grandmother was told that no one else could reside in her residence because the apartment complex was age-restricted. On October 25, 2005, with the Division's assistance, N.L.D. was admitted to an eighteen-month drug rehabilitation program at Straight and Narrow in Paterson. She was discharged from the facility on February 10, 2006, after she violated program rules by smoking. During her brief residency in the program, she was voluntarily admitted to the psychiatric floor on two occasions for depression and anxiety. While on the psychiatric floor, N.L.D. reportedly expressed her preference for this floor and viewed this location as "relaxing at the hospital" and was pleased that by being on the psychiatric floor she did "not have to go to groups and make all the meal movements."
The discharge summary from Straight and Narrow reported that N.L.D. "did not appear motivated toward recovery [and] demonstrated poor anger management skills, poor coping skills, and low frustration tolerance[.]" It also contained a detailed description of her family background and her history of drug use. After her discharge, through the Division's efforts, N.L.D. temporarily lived in a Rahway motel.
On May 2, 2006, N.L.D. underwent a court-ordered psychological evaluation performed by Dr. Andrew Brown, Ph.D. During the examination, she detailed her lengthy history of substance abuse, but indicated that she had not used heroin for nearly four months. She also detailed her parents' substance abuse history, which claimed both of their lives, her mother due to an overdose and, more recently, her father, because of AIDS. Additionally, N.L.D. shared her goals with Dr. Brown, which included completing drug rehabilitation, securing employment, providing daycare for her son, finding a "stable place to live, [and] just be [sic] normal again." She did not reveal any particular plan for achieving her goals.
Dr. Brown administered the Child Abuse Potential Inventory ("CAP"), and observed that N.L.D. did not present an elevated potential for child abuse, but additional tests revealed that she lacked emotional stability and feelings of worth, felt lonely and depressed, and lacked the ability to effectively utilize available resources. In his opinion, N.L.D. presented a "considerable potential to engage in poor parental judgment which could result in acts of child endangerment." He recommended that she receive parenting education, psychiatric management, individual psychotherapy, and inpatient drug treatment with after-care support. He also recommended that child visitation remain as scheduled.
The Division referred N.L.D. to Sunrise House, an inpatient treatment program with a parenting skills component. She was admitted to the program in June 2006. Also in June, the Division started scheduling N.L.D. for biweekly visitation with the children. The Division's objective was to transfer custody of Jr. and S.M.S. to Sunrise House after N.L.D. completed the initial thirty-day program. She completed the initial thirty days, but was discharged two weeks later on August 14 for non-compliance with program rules due, once again, to smoking.
From the Sunrise House, N.L.D. was temporarily housed at Eva's Woman's Shelter in Paterson while awaiting admission to another substance abuse program. On October 13, 2006, the Division learned that N.L.D. had checked herself into a hospital for depression. The Division referred her to Options Outpatient Program, where she received mental health counseling services and drug treatment. The program went well and N.L.D. attended regularly, until she began working full-time. She was discharged on January 4, 2007 for nonattendance, though the program remained open to her. The Division was unable to re-enroll N.L.D. in parenting classes because she had not completed drug rehabilitation.
On April 17, 2007, N.L.D. completed her follow-up psychological evaluation with Dr. Brown. She told Dr. Brown that she had detoxified at Sunrise House and had not used illegal drugs for the last eleven months, her longest period of abstinence. She reported attending Narcotics Anonymous meetings five nights a week, but had no sponsor. Dr. Brown made many of the same findings from his original evaluation and found that N.L.D. had not complied with recommendations he previously made a year earlier. He noted that N.L.D. was not receiving psychiatric management or psychotherapy, stopped attending outpatient treatment "because of work[,]" and was still without stable housing. He concluded that N.L.D. remained "psychologically and residentially unable to parent" and that her "prognosis for parenting is poor."
On July 31, 2007, N.L.D. attended her regularly scheduled visitation with her children. S.M.S. was unable to attend. The worker supervising N.L.D.'s visitation with Jr. reported that N.L.D. "appears to be under some un/controlled substance" and that her "motor movements were sluggish, her eye contact was unfocused, and her words were unclear at times." The worker also observed that throughout the visit, Jr. continually gave his mother hugs and told her he loved her. On September 1, 2007, Dixon received a message from N.L.D. stating that she was vacationing, but N.L.D. did not disclose her whereabouts or when she would return.
While the Division was attempting to provide services to N.L.D., it also undertook measures to assist R.A.S., who, prior to the Division's involvement with the family, had been convicted and incarcerated on drug-related charges. He was rearrested on a parole violation two months before Jr.'s birth. He had also participated in drug rehabilitation through the Opioid Maintenance Therapy/Methadone Program in Elizabeth but relapsed. Two weeks before S.M.S.'s birth, he was arrested on burglary charges and remained incarcerated for eight months at the Middlesex County Adult Correction Center (MCACC). During this incarceration, he underwent a court-ordered substance abuse evaluation and voluntarily participated in a ninety-day jail-sponsored substance abuse program. He reported that he had engaged in the recreational use of marijuana and cocaine and the regular use of heroin, three to ten bags daily.
Also during this incarceration, Dr. Brown performed a court-ordered psychological evaluation of R.A.S. Test results from the CAP Faking-Good Index indicated that R.A.S. strove to provide a "socially desirable response in order to hide negative personal characteristics." Dr. Brown opined that R.A.S.'s "history of substance abuse, anti-social activities, inadequate housing, and frequent arrests/incarcerations inspires little confidence with respect to his ability to commit and dedicate his life to parenting any child." Dr. Brown recommended anger management, parenting classes, and sustained inpatient drug abuse treatment with after-care support upon completion of a program. He concluded that R.A.S.'s prognosis for parenting was "poor" without treatment and "fair" with adequate intervention and service compliance.
In March 2006, R.A.S. was released from jail directly into the Straight and Narrow Inpatient Program. After an initial delay in child visitation, R.A.S. had regularly scheduled visits with both children while participating in the program. Six months into the program, however, the Division received notification that R.A.S. had been discharged from the program on August 11 "for breaking more than one agency rule." At the time of his discharge, R.A.S. was one week away from completing the anger management and parenting classes.
After his discharge, R.A.S. failed to contact either his parole officer or the Division. He testified that after leaving Straight and Narrow, he lived and worked in Elizabeth and resumed his participation in the Options Outpatient Program in Paterson. He did not make any effort to contact the Division. He explained that N.L.D. kept him informed about the children. The Division terminated his biweekly visitation sessions with the children, but records revealed that he apparently accompanied N.L.D. to her biweekly visitation sessions with the children from October 2006 to January 2007 at the Division's Paterson office.
At some point in January 2007, R.A.S. briefly relocated to Florida with the hope that he could secure employment. He did not advise the Division that he was going to Florida, despite the fact that he spoke to Igiehon before he left. He agreed that his decision to go to Florida was basically made in the "spur of the moment" because he was living in a shelter. His desire to relocate to Florida was also influenced by his belief that N.L.D.'s sister was going to get custody of the children and he would be available to "help out" financially as well as see the children. When he learned that Forsythe was not approved, he returned to New Jersey but did not contact the Division. Igiehon eventually found R.A.S. on February 7, at the St. Paul's Men's Center in Paterson, five days after the court had released the Division from its obligation to make any further reasonable efforts towards reunification between R.A.S. and his two children because, according to Igiehon, R.A.S. "wasn't showing up in court . . . and he wasn't participating in anything."
On February 6, 2007, the Division transferred the case to the Adoption Resource Center. In late February, Sacha Dixon became the caseworker of record. From that time until the Division's last contact with N.L.D. in August 2007, Dixon reached out to N.L.D. and contacted her "occasionally" via N.L.D.'s cell phone number to schedule visitation, which continued. Dixon had no contact with R.A.S. until the fall of 2007, after learning of his re-incarceration in August 2007. She met with R.A.S. while he was still incarcerated three months later. He told her that he would become eligible for parole in February 2008.
On March 21, 2007, Dr. John Fiorello, Ph.D., conducted a bonding evaluation of Jr. and his current foster parents in which he observed their interaction for one hour. At the time, Jr. was four years old and had been residing with his foster parents for about eight months. Dr. Fiorello reported that both parents were "very emotionally receptive" to Jr. and showed an ability to correct or ignore certain maladaptive behavior when appropriate. He observed that Jr. "clearly trusts them." Dr. Fiorello further noted that Jr. "relies on them for his safety and well-being . . . and perceives them as nurturing." During the evaluation, Jr. followed their directions and appeared to view them as his psychological parents, referring to both men as "daddy."*fn1 Dr. Fiorello concluded that Jr. had formed a secure attachment to his foster parents, giving rise to a bond.*fn2 When asked at trial what would happen if Jr. were removed from his current foster parents and placed back with either biological parent, Dr. Fiorello noted that the answer was "purely hypothetical[,]" but that it "could lead to all sorts of psychopathology. . . . At the very least it's a disruption . . . of the child's environment and routine."
On April 11, 2007, Dr. Fiorello conducted a similar one-hour bonding evaluation between S.M.S. and her foster parents. At the time, S.M.S. was twenty months old and had been living with her foster family since she was released from the hospital following her birth. S.M.S's foster family consists of a mother, father, their three biological children, and one other child whom the foster parents had adopted. During the evaluation, Dr. Fiorello observed that the parents were receptive and responsive to S.M.S.'s needs. They let her lead in play when she wanted, but redirected her appropriately. She hugged them and showed a "very strong preference" for them. Dr. Fiorello concluded that S.M.S. had formed a secure attachment to her foster parents and would not recommend removal from that home and placement with her biological parents under any circumstances.
Dr. Brown performed a bonding evaluation with N.L.D. and the children on April 17, 2007. He observed interaction and play between N.L.D. and her children. He found that S.M.S. generally avoided her mother and made several attempts to leave the room, at one point leading N.L.D. to block the door to prevent her exit. On the other hand, Jr. responded well. Dr. Brown concluded:
[Jr.] demonstrates that he has a positive relationship to his natural mother. He involves her in play activity, generally responds to her requests, is affectionate with her, and is comfortable being in close proximity to her. At the same time [S.M.S.] does not appear to display bonding with [her] mother as she does not react upon separation from her and through[ou]t the observation, [S.M.S.] is generally aloof and avoidant.
On August 9, 2007, Dr. Brown conducted a thirty-minute observation of the interaction and play between Jr. and S.M.S. He noted in his report, as Dr. Fiorello did in his testimony, that bonding evaluations between siblings cannot be conducted unless one child has become the "parentified" caretaker.*fn3 For the majority of the observation, the children played separately with toys more suited to their genders. When they did interact with each other, they exhibited no evidence of aggression, jealousy, or rivalry. Dr. Brown observed that they appeared to feel comfortable and like each other. He concluded that Jr. and S.M.S. have a "positive social attachment" which would allow them to coexist in the same household. After noting this, however, Dr. Brown wrote in the last sentence of his report:
At the same time, this social attachment between siblings in no way takes precedence over the "evidence of a healthy attachment"
(i.e., internal working model of attachment) and the "secure and positive attachment"
(i.e., sense of permanency) that [S.M.S.] enjoys with her "nurturing, caring, trustworthy caregivers" (i.e., psychological parents) as described by Dr. Fiorello in his bonding evaluations.
In addition to providing services to Jr. and N.L.D. directed towards reunification, the Division, at the direction of the court, explored alternative familial guardianship arrangements. Early in its involvement with the family, before his death, it rejected T.D.'s home because of his reported drug addiction. On November 10, 2005, the Division sent a relative interest letter to N.L.D.'s sister, Rachael Forsythe (Forsythe), who resided in Florida, but received no response at that time. The Division sent Forsythe another letter nearly one year later on October 26, 2006, to which Forsythe responded via telephone the next day. Forsythe expressed an interest in caring for the children. On November 9, 2006, the Division submitted an Interstate Compact Agreement to its Florida counterpart to conduct the appropriate investigation of Forsythe and her home. On January 31, 2007, the Division received notification that Florida Family Preservation Services disapproved placement of S.M.S. and Jr. in the Forsythe home due to the husband's criminal history.
The guardianship trial commenced on December 10, 2007, and the testimonial portion of the trial was completed the following day. The court heard testimony on behalf of the Division from Igiehon, Dixon, and Drs. Brown and Fiorello. R.A.S. also testified on his own behalf. N.L.D. did not appear. However, when the court delivered its oral decision on December 14, the court acknowledged receiving a letter from N.L.D. that indicated that "she's having a hard time getting back up here for apparently monetary reasons" and her request to the court that it schedule the matter for late January so she could attempt to secure enough money to make an appearance. This letter was undated but attached to a letter dated December 6, from Forsythe seeking reconsideration of Florida officials' disapproval of her caretaker application.
At the outset of the trial, the law guardian requested that the court entertain oral argument on the motion filed to amend the permanency placement to require sibling reunification as part of any adjudication. The law guardian proposed removing S.M.S. from her current foster home and placing her in the foster home of Jr. The court asked the law guardian to postpone argument on the motion until after the court reached the threshold determination related to termination of parental rights.
The law guardian, during cross-examination of Dr. Fiorello, extensively questioned him on whether the children should be placed together. He maintained that he would not make such a recommendation in this case. He opined:
Sibling relationships I will characterize as extremely important, second only to really child caregiver relationships. You know, if you would have asked me before these children were close [to their foster parents] I would have said try to keep them together. That didn't happen. And so we are where we are now.
He also noted that S.M.S. has important sibling relationships*fn4 with her foster siblings in addition to her potential relationship with Jr. He testified that, in any case, relationships between siblings do not override a child-caregiver attachment.
On the final day of trial, after the judge terminated parental rights and heard argument on the motion, the law guardian made her arguments for sibling reunification but did not attempt to call her expert as she had on the first day. At one point, she referenced the findings of her expert, who evaluated both children. Apparently, the expert would have testified that the children's best interests would not be served by remaining in separate homes in the event parental rights were terminated and sibling visitation could not be enforced. The court denied the motion, reasoning that due to the bonds the children had formed with their respective foster families, the children's best interests were served by remaining in their current homes for permanent adoption.
On December 14, 2007, the trial judge rendered an oral decision granting guardianship to the Division and terminating the parental rights of N.L.D. and R.A.S. The court found that the Division satisfied, by clear and convincing evidence, the criteria for termination of parental rights pursuant to N.J.S.A. 30:4C-15.1. Although the court did not order sibling reunification, the judge stated, "without question[,] as ...