On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-170-07.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Waugh and Newman.
The Division of Youth and Family Services ("DYFS") appeals from a "judgment of guardianship after trial" which terminates the parental rights of fathers M.M. and C.S. to their respective children, but denies the termination of parental rights of the mother, A.R. DYFS also appeals from the denial of a motion for reconsideration and to supplement the record.
A.R. is the mother of four minor children, including C.S., Jr. ("Junior") who was born June 28, 2006. His sister and half-sisters are three to nine years older. A.R. is married to C.S., the father of Junior and Gwen.*fn1 There is no contest to the judgment terminating the parental rights of the fathers, including C.S. While the Family Part declined to terminate A.R.'s rights to any of her four children, DYFS appeals only from that portion of the judgment regarding A.R.'s parental rights over Junior, her youngest child.
On September 20, 2005, DYFS removed A.R.'s three children from the home of A.R. and C.S. Two days later the Family Part found that "the removal . . . was required due to imminent danger" because of the parents' drug use and C.S.'s incarceration. Legal and physical custody was transferred to DYFS.
On April 5, 2006, the trial court entered a "multipurpose order" allowing for reunification of the three children with A.R. once she provided "a permanent plan of how a single mother would care for her children" and verification that C.S. "has moved out" of the home. Reunification occurred on July 25, 2006.
The court ordered the removal of the children again on September 6, 2006. A.R. was found to have allowed C.S. "to return to the home and be with the children while he was actively using drugs." By that time, Junior had been born and all four children were removed and placed in the "immediate care and supervision of" DYFS. However, on November 8, 2006, the court ordered reunification, and legal and physical custody were returned to A.R. Shortly thereafter, on December 12, 2006, the children were again removed from the home because C.S. was found in the house, high on crack cocaine. The emergency removal was confirmed by an order entered on December 14, 2006. The children were again placed "under the care and supervision" of DYFS, and a Law Guardian was appointed.
DYFS filed a complaint for guardianship and an order to show cause on May 8, 2007. At a hearing on December 17, 2007, the Family Part ordered that the trial commence on January 7, 2008, and that "[A.R.] shall attend a bonding evaluation to be scheduled by [DYFS]" in advance thereof. However, this evaluation never took place.
The trial occurred in January and February 2008. In a comprehensive opinion, Judge Mark J. Nelson denied the termination and guardianship with respect to A.R. The court reinstated the protective services litigation and listed the matter for a compliance review on May 28, 2008. Judge Nelson found that DYFS satisfied its burden on only two of the four prongs of the statutory test required for termination. See N.J.S.A. 30:4C-15.1.
[Substantial portions of the opinion have been redacted for purposes of publication at the request of the court.]
Dr. Daniel Bromberg, a clinical psychologist, performed bonding evaluations on A.R. and her children on April 19, 2007, and evaluated A.R. and C.S. individually. Dr. Bromberg also conducted a bonding evaluation of Junior with his foster parents. Based on these evaluations, Dr. Bromberg determined that A.R. is unable to provide a safe and stable home for her children. He based this conclusion on her "long standing history of substance abuse," her history with men who have substance abuse problems, and her failure to protect herself and her children from domestic violence. He also noted that A.R.'s employment history "didn't appear to be particularly stable" and her marketable skills were severely limited.
Dr. Bromberg stated that A.R. only attended Narcotics Anonymous ("N.A.") meetings "once in a blue moon," which concerned him. He was also disturbed to learn that the father of the older girls, Darlene and Barbara, A.R.'s former paramour M.M., had been accused as a teenager of raping his younger sister, but A.R. did nothing when she heard this accusation and "stayed with him." Dr. Bromberg believed this behavior was part of "a pattern of failure to be aware of significant risks to her children and failure to protect her children from those significant risks." He also noted that psychological tests revealed A.R. was "skilled in deceiving other individuals" and was "preoccupied with approval." Dr. Bromberg attributed A.R.'s concealing her substance abuse history from him during her evaluations to this desire for approval.
In sum, Dr. Bromberg determined that A.R. was "unable to parent at the time of the evaluation." He stated that A.R. needed to be able to demonstrate to the court that she could provide safe, stable housing, keep up with her rent payments, hold a job, and remain clean and sober. He also opined that she needed psychotherapy, which would not be "short term."
Regarding A.R.'s bonds with her children, Dr. Bromberg noted that all four children had "different levels of emotional attachment to her." In describing A.R.'s bond with Junior, Dr. Bromberg acknowledged that any analysis he could provide was limited because Junior slept through most of the evaluation. As such, "[i]t was easier to assess the bond [A.R.] had to [Junior], then [sic] it was to assess the bond that [Junior], has to [A.R.]" However, Dr. Bromberg observed that, while Junior was awake, he "appeared to interact with his mother well, he was cuddling with his mother. There was mutual gazing between them." Dr. Bromberg stated that because Junior "slept through a great deal of the bonding evaluation" with A.R., the impact of termination was a "more difficult question to answer."
When asked if Junior would suffer any harm if his ties to A.R. were permanently severed, Dr. Bromberg stated "I believe that he would, certainly, miss [A.R.], . . . given his age, and the amount of time that he's been in foster care, at this point, and the nature of the relationship with the foster parents. I'm not convinced that that would be terribly harmful for him." He acknowledged that Junior would suffer "some harm" but stated that "with psychotherapy and with appropriate support" he could recover. He also stated that, while terminating A.R.'s parental rights would not create severe or enduring harm, another failed reunification would be "devastating" to the other children.
Dr. Albert Griffith, a clinical psychologist, performed an evaluation of A.R. on June 10, 2007, and testified for the defense. He also conducted bonding evaluations on A.R. and her three oldest children.
In his evaluation of A.R., Dr. Griffith testified that, based on her performance on the Adult Intelligence Scale reading, it was likely A.R. had a learning disability. However, he found that she had "sufficient general abilities to learn parenting." In assessing A.R.'s parenting skills, Dr. Griffith found that she maintained her visits with her children, that she was "able to adequately describe her children" and "could talk about their individual needs." However, Dr. Griffith noted that "she was not that aware of [Junior], simply because he had been removed so much earlier."
Dr. Griffith also testified that A.R. needed parenting skills training, but was not "grossly deficient at this point." He "saw reunification as being possible, say, placed in two stages with a period of adjustment between the 2 of about 60 days." ...