On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-216-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman, Baxter and King.
Defendant A.E.M. appeals from the termination of his parental rights to I.M.M.*fn1 The Family Part judge concluded that plaintiff Division of Youth and Family Services (the Division) had proven each of the four statutory prongs for termination of parental rights by clear and convincing evidence. We conclude that the proofs were insufficient to support termination of defendant's parental rights to I.M.M. and reverse.
Because of the grounds on which we base our reversal, we recite the facts and the procedural history of this matter at length. We pay particular attention to the proceedings between removal and conclusion of the termination proceeding as defendant never missed a court date for well over two years, was fully compliant with all services provided by the Division, and consistently took advantage of visitation.
The Division became involved with I.M.M. soon after her birth on September 6, 2005. It received a referral from a social worker at University Medical Center on September 8, 2005, who reported that the mother had six children, none of whom were in her care, and that she was living in a shelter that did not allow children. The hospital social worker further stated that the mother, who allegedly had not had prenatal care, tested positive for hepatitis C and syphilis and had admitted to drinking alcohol while pregnant and using cocaine about two weeks before the baby's birth. Both mother and baby tested negative for drugs but I.M.M., like her mother, tested positive for syphilis and hepatitis C and was considered medically fragile.*fn2
A Division caseworker, Trent Collier, first interviewed the mother in the presence of defendant father. The mother denied drug use during her pregnancy except for one relapse a month before birth. She stated she had prenatal care with Dr. James at the University of Medicine and Dentistry of New Jersey until her relapse, when she was sent to a methadone clinic. Collier then spoke with defendant about his plan for I.M.M. Defendant stated that he would explore relatives as he was unable to care for I.M.M. at that time since his housing was "unstable." Collier asked defendant about his substance-abuse history. Defendant admitted that he had smoked marijuana in the past, was in the Urban Renewal Drug Program, and had maintained sobriety for two years. Both parents provided Collier with their identifying information and completed Promis Gavel and police- check forms.*fn3 The mother identified her sister S.P. as a possible caregiver, but she was soon ruled out. On September 9, 2005, Division caseworkers met with the parents and identified their needs and services, concluding that defendant needed "a CADC*fn4 evaluation, stable housing, and any other services the Division feels is needed."
The Division determined to seek legal custody of I.M.M., concluding that the allegations of abuse and neglect by the mother had been substantiated. In the Case Plan executed by Collier on September 14, 2005, he listed the CADC assessments and a psychological evaluation of the mother, among other things, as requiring the immediate attention of the caseworker to be assigned thereafter.
The Division prepared a verified complaint on September 15, 2005, seeking custody of I.M.M., alleging that the father admitted he was unable to care for I.M.M. An order was entered in the presence of both parents on September 16, 2005, placing I.M.M. in the custody of the Division and notifying defendants to appear on October 27, 2005, and show cause why I.M.M. should not continue in the care and legal and physical custody of the Division, and counsel was appointed. The judge found that I.M.M.'s removal was necessary because of the Division's allegations of "transmission of STDs by the defendant mother, exposure to illicit substances and failure to secure pre-natal care," and that there was imminent danger to her life, safety and health because she was "born exposed to Hepatitis C and Syphillis [sic]." The removal was, thus, not based on lack of shelter or any other conduct by defendant. This abuse-or-neglect proceeding is pivotal to our consideration of this appeal.
The Division assigned this matter to caseworker John Green on September 23, 2005, who worked on the case until February 2007. He placed I.M.M. in foster care and on September 27, 2005, reached out to defendant about a relative caregiver. At that time, Green advised defendant that he had only twelve months to comply with Division services, although he could get an extension of three to six months. After that, I.M.M. could potentially be adopted if defendant did not comply with Division services. Green made arrangements for parental visitation and both parents participated. As of early October 2005, the Division's plan was reunification after the assessments were completed and positive reports were received. Both parents had visitation again on October 19, 2005, and the visit went very well with the parents asking for another visit before the next court date. A family meeting was scheduled for October 27, 2005, to discuss long-term care planning.
At the October 27, 2005, family team meeting, the mother stated that her only family support was her adult children and defendant. She stated that she had been drug free for sixteen months with defendant's help. Green told the mother that he had arranged for a treatment program and the intake appointment was scheduled for October 31, 2005. Green advised defendant that he had to have stable housing to regain custody.
At the compliance review on October 27, 2005, the mother stipulated to abuse and neglect. Green reported that both parents were scheduled for psychological evaluations on November 7, 2005, at 3:30 p.m. Defendant advised that he would have an apartment in a month or so and was willing to do whatever the judge asked him to do. He also advised the court that he had never been involved with hard drugs--only marijuana. The judge ordered the Division to provide psychological and psychiatric evaluations, drug screening, and to continue visitation biweekly. The Division requested parenting-skills classes, but it was not included in the October 27, 2005, order. Shortly thereafter, defendant brought Green a lease demonstrating that he had rented an apartment in Irvington near his place of employment.
The Division continued to provide visitation with I.M.M. to defendant, supervised initially by the Division and then through Tri-City Peoples Corporation (Tri-City). Both the Division caseworkers and Tri-City visitation supervisors reported that defendant's visits with I.M.M. from October 2005 until the time of the guardianship trial in December 2007 went very well. Defendant missed only one visit with I.M.M. due to a death in his family. He arrived on time for his visits and brought food and clothing for I.M.M. At various visits, I.M.M. was described as smiling and giggling when she saw her father, happy to see her dad, excited to see her father, and happy for the entire visit. The visitation supervisor noted on one occasion that "[p]arents and child was [sic] the picture of happiness," and on another occasion that "[a]s I monitored the session I couldn't help but notice how happy [defendant] and [I.M.M.] were together." During the visits, defendant and I.M.M. sang songs and played with toys.
On November 7, 2005, the day scheduled for the psychological evaluations of both parents by Dr. Marc Singer, Division workers went to get the mother at an address in Livingston, but she was not there. When the mother could not be found, the Division workers cancelled both appointments with Dr. Singer. The record does not explain why the Division was not able to transport defendant from Irvington, where he lived and worked, to his appointment with Dr. Singer.
On December 12, 2005, defendant was referred to Babyland Family Services, Inc. (Babyland), for "court-ordered" parent education. The form advised Babyland that the next court date was January 12, 2006, and indicated that the Division caseworker would accompany defendant to the initial case conference.
At the compliance review hearing on January 12, 2006, the Division advised the judge that it might in the future request an order of no further efforts regarding the mother because she had, so far, been noncompliant with drug treatment and previously had her rights to earlier-born children terminated. The Division, however, stated that defendant "is a different case" because he was employed and had secured an apartment, which the Division stated it wished to inspect.
Upon inquiry from the judge, the Division stated that a psychiatric evaluation of defendant had been scheduled for January 6, 2006, but had not been conducted because notice of the appointment had been sent to defendant at the shelter rather than his apartment, although the Division was obviously aware of his new address. The Division reported that defendant had also been scheduled for a psychological evaluation on January 11, 2006, but a caseworker failed to provide defendant with transportation. "So the bottom line is that it wasn't attended, not through any fault of [defendant]."
The Division also reported to the judge that defendant had been advised of a new date in February for the psychological evaluation. As to parenting-skills classes, the Division advised that the caseworker "has to find out what the exact start date is." When the judge questioned why he had a report that defendant was living with the mother, defendant replied that she would live with him under only one circumstance:
If she seeks treatment, get cure then we can be a couple again. You know, I'm not going to -- what I said on status of the application of my wife, all right? That is true. But also I'm not going to marry a junkie. So if she seeks treatment, get help, okay, then it's going to be A okay.
The judge replied, "That's fine. All right."
At defendant's request, the Division agreed that the psychiatric evaluation would abide the results of the psychological evaluation, which was "the normal protocol." Defendant expressed that he obtained housing so that I.M.M. would not have to be in foster care and sought her return to his custody pending the psychological evaluation, but the judge expressed that he was "reluctant" to do that. However, he agreed to increase defendant's biweekly visits from one to two hours. The matter was scheduled for another compliance review on March 30, 2006. The judge ordered defendant to submit to a psychological evaluation and fingerprinting, and to maintain safe and stable housing and income. He ordered the Division to provide defendant with two-hour visitation and to "assess [defendant]'s recently-acquired apartment."*fn5
On February 22, 2006, the Division issued a Family Team Meeting Referral requesting a meeting to discuss the mother's continued drug use and the father's criminal history. On February 27, 2006, defendant met with Green and Division Supervisor S. Alexander at the Division local office to discuss his criminal record.*fn6 The supervisor advised defendant that his crime was a matter of concern, but it would be up to the court to make a final decision on returning I.M.M. to his care. The supervisor also expressed concern that defendant permitted the mother to live with him in his new apartment because it would expose I.M.M. to a high risk of harm and that he should begin to consider caring for I.M.M. alone. Defendant replied that it was necessary in order to permit him to help her with her drug addiction.
A Family Team Conference was scheduled for March 2, 2006, and then rescheduled for March 23, 2006. In the meantime, I.M.M. was moved to a new foster home. On March 23, defendant's needs were identified as continuing to live a drug-free life, a psychological evaluation, and visitation with his child. Psychological evaluations were rescheduled for April 27, 2006, with the Division providing transportation.
On March 30, 2006, another compliance review hearing was conducted as scheduled. The judge inquired about the psychological evaluations and Green advised him that they had been rescheduled for April 27, 2006. The Division also advised the judge that it had learned of defendant's criminal record and stated his conviction "from the Division's point of view changes things considerably in terms of his viability as a caretaker." It advised that once it received his judgment of conviction and official documentation, there was a strong likelihood that it "may ask for an order of no further reasonable efforts" based on the 1980 crimes. The Division also expressed that it had "severe concerns about his relationship" with the mother, that they were currently residing together, and that the cohabitation presented problems with reunification.
Defendant advised the judge that he signed releases at the hospital for whatever information they needed, so his conviction should not have been a surprise to the Division. He stated that he had an apartment, he had a job, and he would attend whatever psychological evaluations the Division scheduled. He committed to doing everything necessary to be reunited with I.M.M. The next compliance review was scheduled for July 13, 2006. The judge ordered defendant to undergo the psychological evaluation on April 27, 2006, at 1:00 p.m., to attend parenting-skills training at Babyland,*fn7 to submit to random urine screenings, and to maintain stable income and housing. The Division was ordered to secure the specifics of defendant's conviction to determine whether an order for no reasonable efforts could be entered.
On April 27, 2006, the Division transported both parents to the psychological evaluations and Dr. Singer faxed his reports on May 9, 2006, although it is not clear whether he faxed them to the Division or the court. He assessed defendant's parenting ability, mental status, and treatment needs. Dr. Singer reported that defendant was oriented to person, place and time and there was no evidence of psychotic symptomatology or a formal thought disorder. Psychological testing suggested that defendant "is a secretive individual who has a desire to improve himself." Defendant's TAT narrative suggested that he was a concrete individual who tended to intellectualize as a defense mechanism. It also revealed that he was experiencing feelings of loss. Defendant provided a valid MCMI-III protocol, but his response style was "suggestive of an individual who minimizes personal faults and holds unrealistically positive perceptions of one's level of psychological functioning." This, however, did not invalidate the protocol but might "result in artificial suppression of other scales." The MCMI-III protocol suggested a personality style consistent with obsessive-compulsive personality disorder. This style "would characteristically be found in an individual who engages in public displays of compliance" and would be "likely to engage in moralistic and perfectionistic thinking." Dr. Singer noted that defendant viewed fathers as the head of the household.
After describing his evaluation of the mother, Dr. Singer opined, "The totality of the data suggests that [the mother] and [defendant] cannot provide a safe, consistent environment for [I.M.M.]" He then made various recommendations to assist them both in becoming more viable placement options for I.M.M. in the future. As to defendant, Dr. Singer recommended that he should continue to participate in supervised visits with I.M.M., should maintain appropriate housing and employment, complete a parenting-skills training program, and participate in individual psychotherapy to address his "tendency to minimize while addressing [his] personality features that limit [his] ability to respond effectively to the demands placed upon [him] as [a] parent[.]" No psychiatric evaluation was recommended for defendant and Dr. Singer suggested that the case be revisited in four to six months if defendant complied with his recommendations. The six-and-a-half-month delay in securing this evaluation left defendant little time to engage in psychotherapy before the first permanency hearing.
At the July 13, 2006, compliance review, the Division had finally obtained defendant's criminal records and conceded that it could not ask for a no-reasonable-efforts order. The Division had not implemented Dr. Singer's recommendation for individual psychotherapy for defendant or scheduled parenting classes for him. The Division asked defendant to participate in psychotherapy and he asked for a referral in order to comply. He also stated that he wanted to start the parenting-skills classes, earlier discussed at the January compliance review hearing "so at least that could be finished by September."
The judge reviewed Dr. Singer's evaluation and asked the Division to whom it would refer defendant. It identified Dr. Katz, Dr. Singer's partner, but defendant's counsel expressed a concern about a possible conflict of interest because evaluation and therapy are not usually done by the same professionals. The judge stated that he had no objection either way.
The Division noted that defendant and the mother were continuing to live together, which seemed "like they're putting their eggs in the same basket," when it might be appropriate for the mother to secure her own independent housing to avoid an issue down the road if defendant was compliant and the mother was not. The judge responded, "We'll wait till [we] get down the road. At this particular point in time neither one is in the position to care for any child. At this point in time I'm not saying that she's got to be made homeless." (Emphasis added.)
The order entered on July 13, 2006, required defendant to attend psychotherapy and parenting-skills training, and submit to random urine screenings. The Department of Corrections was ordered to release defendant's prison records and the matter was scheduled for a permanency hearing on September 13, 2006. The Division spoke with Dr. Singer after court and he advised that there was no conflict of interest in Dr. Katz performing the psychotherapy. It is not clear why, in light of this advice, Green did not revisit this issue with defendant or his attorney.
Defendant met with his caseworker at the Division office on July 20, 2006, to express concern about I.M.M.'s welfare and to advise them that he had taken a second job at the International House of Pancakes in West Caldwell as the head chef. Defendant admitted that the mother was noncompliant with her scheduled psychiatric evaluation and drug treatment. The caseworker advised him that her noncompliance was jeopardizing reunification and suggested that defendant should think about resolving their relationship and focus on what he needed to do to be reunited with his daughter. Defendant stated that he was thinking of putting her out of his home because she was hindering the whole process. The caseworker advised defendant that his parenting classes were going to begin in September, which was the earliest date available. This was despite the fact that the Division was first ordered to providing parenting-skills training on January 12, 2006, and had earlier made a referral to Babyland on December 12, 2005, for parent education.
On July 31, 2006, the caseworker contacted the office of Dr. Denise Johnson to inquire about psychotherapy sessions for defendant and ultimately secured an appointment for August 23, 2006, at 9:15 a.m.; defendant complied with this appointment. On August 30, 2006, almost nine months after the Babyland referral, the Division referred defendant to Johnson & Associates for parenting-skills training. Meanwhile, the mother was continuing to abuse drugs and was hospitalized from August 10 to 13, 2006, due to a drug overdose.
The permanency hearing and compliance review occurred on September 13, 2006. Dr. Johnson issued a report indicating that defendant had attended his initial assessment and that he was scheduled to attend a minimum of sixteen parenting-skills classes twice per week. She recommended that he attend a minimum of twelve individual counseling sessions. This apparently triggered no concern by the Division about the time line for completing psychotherapy, even though it knew that Dr. Johnson was only available once a month. It certainly did not bring any such concern to the attention of the judge.
Green testified that the Division would like to work toward reunification with defendant if he would separate himself from the mother and parent I.M.M. independently. Green stated that defendant had been compliant with the services provided. He expressed that he would like to give defendant an extension for psychotherapy and parenting-skills training rather than seek termination of his parental rights at that time because his continued cooperation might lead to reunification. Green testified that he believed that defendant was "fully capable of parenting" I.M.M. and that reunification had always been the Division's plan, but that he would have to separate from the mother. As to the mother, Green testified that reunification was not appropriate due to her noncompliance and that she needed inpatient drug treatment for twelve to eighteen months.
The Law Guardian expressed concerns with the parents continued cohabitation and objected to the Division's request for a six-month extension of time, which was too long for the child. She also complained that the Division had not yet obtained defendant's prison records and expressed concern that defendant might still have violent propensities. Defendant's counsel stated that she understood that the mother was living with her daughter, not defendant, which the mother's counsel corroborated, and also stated that her client would follow whatever was in the court order. Defendant's counsel requested a six-month extension on the permanency date because they would need more than three months to get the treatment report.
The judge questioned whether it was reasonable for the Division to take a year to provide psychotherapy and the Division protested without any record support that it was not the first time that the father "has seen a psychiatrist." The Division admitted that the father was the most viable candidate, but if the parents were not separated, the Division's reunification plan would have to fail.
The judge found that parenting-skills training had been done for the family*fn8 and defendant was in psychotherapy with Dr. Johnson. He found that it was not clear whether the parents were cohabiting because neither had testified and the Division had not been able to confirm that they were living separately. The judge agreed that it was important to have defendant's prison record as the best evidence of his conduct to determine what he would do in the future and that it was important for his therapy as well. The judge also concluded that the Division had made reasonable efforts to provide services, but he could not assess the reasonableness of the Division's plan without knowing whether he had a "violent incarceration." The judge concluded that he would do concurrent plans, one for reunification if the prison record was not violent, and one for termination if the prison record was not favorable. He gave the Division three additional months to get the prison records and make them available to all parties and Dr. Johnson. The judge also granted a six-month extension with a compliance review in three months and entered two orders that day. The permanency order granted a six-month extension and the compliance review order required defendant to participate in psychotherapy, with the next compliance review scheduled for December 14, 2006. These orders did not prohibit defendant from cohabiting with the mother and the Division's records do not disclose any effort on its part to corroborate the representations made by the parents' attorneys on September 13, 2006, that they were no longer cohabiting.
On October 10, 2006, the Division confirmed with Johnson & Associates that defendant was participating in parenting classes and on November 28, 2006, Johnson & Associates reported that defendant had satisfactorily completed eleven of sixteen parenting classes and was progressing. It recommended that defendant receive "individual counseling to re-emphasize and reiterate topics discussed during Parenting Skills Classes." However, the Division never offered this service to defendant.
Dr. Johnson issued a December 6, 2006, report regarding defendant's psychotherapy. She stated that she had not received any new background documents and reported that she saw defendant on September 20, October 18, November 14, and December 5, 2006. She reported that defendant was angry with her on November 14 because he perceived that she thought he was "crazy" and that she said "he 'can't get (his) kid back.'" She denied that she said this, but reported that defendant was apologetic on December 5 for "'appearing to have an attitude.'" Defendant told her that he ended his relationship with the mother in September 2006, but admitted that he did visit her, gave her money and other items, and talked to her on the telephone.
Dr. Johnson expressed a number of impressions and concerns. She stated that defendant presented as if he had genuinely made significant changes to his lifestyle in the community. However, he portrayed himself as innocent of the 1980 arson and felony murders, yet without documentation to prove his innocence, she had to assume that he was guilty and that no amount of change could mitigate dangerousness without a concomitant change in accepting responsibility for his behavior. She was also concerned that he did not express any empathy or remorse for the victims. She found his interpersonal behavior suggested ongoing, subtle anger problems, especially where "females/people disagree with him," but felt that he could work on this issue in therapy. She found his "thinking processes appeared very confused when he was required to give extended explanations" and that he might "have a fragile mental status." He seemed not to perceive that his efforts to help the mother might actually be hurting her.
Dr. Johnson recommended ongoing psychotherapy but warned that, if he had any further difficulties containing his anger with her, he would be discharged and consideration should be given to transferring him to a male therapist. She opined that he appeared to be in need of services more than once a month, which was all she could provide. Dr. Johnson concluded that "[s]afety concerns suggest it is not in the child's best interest to be placed with [defendant] at this time. His improvement outlined in the areas of this report are considered to be a long-term process (years)."
On January 5, 2007, Dr. Johnson called Green to inquire about the December 14, 2006, compliance review.*fn9 She was referred to Unit Supervisor Curtis Livingston, Jr., because Green was on vacation. She reiterated that defendant might do better with a male therapist and that he needed counseling more than once a month. She also stated that she had received "500 pages" of information, which we assume were defendant's prison records, first deemed relevant ten months earlier. The Division file was transferred to caseworker Renee Anderson in February 2007 and she retained responsibility for the case until May 2007.
On March 15, 2007, Dr. Johnson prepared a second summary of treatment she provided on January 30 and February 20, 2007, and included her analysis of defendant's prison records.*fn10 She indicated that she understood that the judge had ordered the Division to find another psychotherapist who could see defendant more than once a month. With respect to the prison records, Dr. Johnson noted that although "there is some variability across prison records, the overall impression is that [defendant] demonstrated the same behaviors and areas of concern" as those raised by her ...