March 17, 2009
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF I.M.M.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 30, 2009
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 previous treatment summary. This suggested to Johnson that "his issues are longstanding, and not specific to the 'stress' of the current circumstances."
Dr. Johnson said that defendant's demeanor was appropriate without any observable anger, but described a "disturbing" incident that occurred during her January 30, 2007, session with defendant, whose cell phone rang, playing a song from the 1970's called "Fire." Johnson concluded that the song "[a]t best . . . suggests ongoing poor insight and judgment [sic]," while "[a]t worst it reflects an irreverent attitude towards the crime, the presence of ongoing underlying anger, and a sense that the fire was ego-syntonic." However, Dr. Johnson acknowledged that defendant's prison records demonstrated that he had expressed remorse for the fire.
During the January 30, 2007, session, defendant told Johnson that the mother had been living with him again for the past week, but Dr. Johnson did not indicate whether the mother remained in defendant's apartment as of the February 20, 2007, session. Dr. Johnson reiterated her request that defendant see a male therapist on a more regular basis, as "[r]ecords suggest he needs to be seen at least weekly." She stated it was not in I.M.M.'s best interest to be placed with defendant at that time, until his "current issues can be further evaluated." She also recommended a formal psychiatric evaluation and raised a concern about a significant head trauma defendant suffered as a teenager that could be responsible for the symptoms he demonstrated. She also recommended a formal neuropsychological evaluation and procurement of defendant's past head-trauma records and a current neurological evaluation.
A second permanency hearing was conducted on March 22, 2007. The judge noted the Division report dated March 16, 2007, which indicated that defendant was compliant with services at a satisfactory level, had maintained his employment at the Gospel Café and Gospel Services Homeless Shelter, where he was then Head Chef, and was also employed as a security guard. Although the case had been transferred to Anderson, Green notified the court that the Division had changed its plan for I.M.M. to termination of parental rights "based on the report from Dr. Johnson that says that he lacks insight to be able to protect [I.M.M.], his criminal history and the fact that the parents are back in the same home." Green reported that he had not been able to find a male provider who could see defendant more often than once a month as Dr. Johnson recommended,*fn11 but he would seek to make a referral to a hospital-based program.*fn12 He reported that the father had completed parenting-skills classes, but did not mention that Johnson & Associates had recommended further individual training. The Division argued that under federal guidelines a decision on termination of parental rights had to be made at that time because eighteen months had elapsed and because I.M.M. could not be returned to defendant at that time. As a result, the Division argued that the plan had to be termination of parental rights, even though it did not allege neglect by defendant in its verified complaint and none had been stipulated by him at the order-to-show-cause hearing.
The judge found defendant's employment and his role in his church were two positive factors, but they did not erase "incidents which occurred with [defendant] when he was young." He accepted and adopted Dr. Johnson's opinions and found that defendant was in denial respecting his crime, resided with the mother despite the judge's admonition that he had to choose whom to protect,*fn13 and was not sufficiently rehabilitated nor sufficiently engaged in psychotherapy to permit reunification at that time. Therefore, he concluded that defendant would pose a significant risk of harm to I.M.M. He did not, however, find that defendant and the mother were cohabiting. The judge entered a March 22, 2007, order approving the termination plan followed by foster home adoption. The judge required the Division to file a guardianship complaint within forty-five days.*fn14
That complaint was filed two months later on May 22, 2007, and abuse-or-neglect proceedings were terminated the following day. Other than visitation, the Division had not provided any services to defendant since February 20, 2007. In May 2007, caseworker Anika Hazel assumed responsibility for the Division file.
At a June 27, 2007, case-management conference, defendant was ordered to attend psychological, psychiatric, and bonding evaluations. The Division was also to arrange a neuropsychological evaluation and ongoing intensive therapy for defendant. This order apparently triggered another search for a therapist. In stark contrast to the abuse-or-neglect proceedings, Hazel called five agencies, ultimately identified Powell as a weekly provider, and scheduled an appointment for defendant on August 21, 2007. Thus, the Division allowed six months to pass without psychotherapy for defendant.
On September 12, 2007, default was entered against the mother and defendant was ordered to attend a psychological evaluation on September 17, a bonding evaluation on September 20, a psychiatric evaluation on September 21, a neuropsychological evaluation on September 26, and an intake appointment for therapy with Powell on a date to be determined because, through no fault on defendant's part, he had been unable to locate Powell's office when he went for his appointment on August 21. The next case management review was scheduled for October 17, 2007, and defendant's visitation with I.M.M. was continued. Defendant attended his initial appointment with Powell on September 12, 2007.
Dr. Singer performed his second psychological evaluation of defendant on September 17, 2007. He again made note, among other things, of his April 27, 2006, recommendation that defendant have individual psychotherapy, although he did not note that only six therapy sessions had been provided with Dr. Johnson since that date. At this evaluation, defendant reported that he and the mother "stopped living together 90 days ago. She's back out using. It wouldn't be safe for [I.M.M.] I don't trust her."
The test data suggested that defendant "minimizes personal faults and holds unrealistically positive perceptions of his level of psychological functioning." He has "significant difficulty acknowledging and responding to the needs of others, including children," and "has little desire for meaningful social contact." Dr. Singer concluded that "within a reasonable degree of psychological certainty, [defendant] lacks the emotional resources needed to parent [I.M.M.]"*fn15
Dr. Singer also performed a bonding evaluation between defendant and I.M.M. on September 20, 2007. At the time of the evaluation, I.M.M. was two years old. In his report, Dr. Singer noted that during the evaluation, defendant effectively guided I.M.M. during play and praised her appropriately. They exchanged hugs and kisses periodically. Throughout the session, I.M.M. referred to defendant as "dada." I.M.M. "clearly recognizes [defendant] as being her father and demonstrated affection towards him." Dr. Singer concluded that I.M.M. "has come to recognize [defendant] as being more of a play/adult authority figure than a consistent parental figure, although the child has clearly developed an affinity for her father." However, Dr. Singer noted that "this finding is not surprising," considering that I.M.M. and her father have not lived together.
Dr. Singer was concerned with certain behavior displayed by defendant during the bonding evaluation, which he felt "suggests that [defendant] may make unrealistic promises and have limited insight into I.M.M.'s needs and sensitivities." He concluded that I.M.M. is not likely to experience significant and enduring harm should the relationship with her father be severed. While I.M.M. would likely experience a sense of loss, "the impact would not likely be long term and may be mitigated through the existence of other attachment figures." He further concluded that the data suggested that defendant could not provide I.M.M. with the permanency and consistency she needed and was not likely to become capable of providing such an environment in the near future. Therefore, he supported the Division's case goal of freeing I.M.M. for adoption.
Dr. Singer also performed a bonding evaluation of I.M.M. with her foster parents. The data suggested that I.M.M. viewed her foster parents as being central parental figures in her life. Dr. Singer noted that such a finding was not surprising, given I.M.M.'s age and length of time with this family--eighteen months. Dr. Singer further noted that I.M.M. "engaged in exploratory behaviors, using both adults as a secure base from which to explore her world." Physical and verbal interactions were "warm and spontaneous," and both adults engaged I.M.M. and praised her appropriately.
Dr. Singer concluded that, "within a reasonable degree of psychological certainty," I.M.M. would likely experience significant and enduring harm if her relationship with her foster parents was severed. In the short term, I.M.M. would likely regress behaviorally and emotionally. In the long term, "it is anticipated that [I.M.M.] would experience feelings of loss, sadness, insecurity, and have difficulty in establishing and maintaining meaningful relationships." I.M.M. is "clearly in need of permanency and stability," and she appears to have thrived in her foster home. Dr. Singer concluded that "[I.M.M.] has experienced previous abandonment in her life*fn16 and severing this secure attachment will likely do more harm than good."
Defendant timely submitted to a psychiatric examination conducted by Dr. Alexander Iofin on September 21, 2007, in preparation for trial. Dr. Iofin reviewed and commented upon Dr. Singer's April 2006 evaluation, particularly noting Dr. Singer's report that defendant's thinking process appeared to be very confused when he was required to give an extended explanation. He stated that he did not observe any obvious thought blocking or thought derailment and concluded that defendant "does not present with any major psychiatric pathology on Axis I or II that would be chronic in nature and untreatable." He did, however, diagnose him on Axis I with "adjustment disturbance of emotion, provisional post-traumatic stress disorder," and certain disorders by history not currently manifested. On Axis II, he diagnosed defendant with obsessive/compulsive personality disorder. Dr. Iofin noted that defendant "presents with significant outside stressors, including long term incarceration and difficult relations with the biological mother of [I.M.M.] . . . . He definitely has quite serious problems in the realms of abnormal psychology rather than psychiatry." Dr. Iofin also noted that defendant had very poor social support and had "very limited parental knowledge and never actively participated in the upbringing of his three oldest children as well." He agreed with Dr. Johnson's analysis that, in determining whether defendant could be considered a minimally adequate parent, "'it is clinically prudent to err on the side of safety.'"
Dr. Andrew Brown conducted a neuropsychological evaluation*fn17 for the Division on September 26, 2007. He observed defendant to be "pleasant, motivated, and cooperative throughout the assessment." Dr. Brown administered a variety of tests and described the results of each test in detail. Based on defendant's self-reported special-education status and slurred speech with right-sided body paralysis following his head injury, Dr. Brown concluded that [i]t would appear that [defendant] does manifest evidence of a premorbid neurodevelopmental disturbance which impacted reading and arithmetic. He then sustained an apparent insult subsequent to blunt head trauma caused by a pool stick which resulted in lateralized contusion and this impacted neurological control of right sided movement as well as speech. Furthermore this additional insult to the brain was superimposed upon an already existing neurodevelopemental [sic] problem.
Nevertheless, defendant's IQ was average, which Dr. Brown explained was not uncommon for someone with these conditions.
With regard to parenting, Dr. Brown opined that defendant "may perform well" with the provision of structure and support "given evidence of adequate auditory attention, 'Average' range IQ, and mental processing speed." Dr. Brown further noted that defendant "appears capable of establishing a considerable degree of functional normalcy utilizing the assets available to him." He also stated that defendant "appears highly motivated and determined to parent his daughter despite his limitations." Dr. Brown observed that defendant's ability to sustain employment and maintain housing "exemplify his capacity to compensate well for his deficits as he derives maximal benefit from the functional assets available to him." Dr. Brown's Axis I diagnosis was cognitive disorder NOS, his Axis II diagnoses were mathematics disorder and reading disorder, and his Axis III diagnoses were cerebral contusion and mixed receptive-expressive language disorder. Dr. Brown, like Johnson & Associates before him, found that defendant would benefit from individualized and repetitive parenting education. "With this provision [of parenting education defendant] should execute parenting adequately as he tends to derive maximal compensatory benefit from the cognitive assets at his disposal." Dr. Brown concluded that "[w]ith adequate provision of parenting education [defendant]'s prognosis for satisfactory parenting are [sic] good."
Defendant secured expert reports on his own behalf for use at trial, including one from Powell, who began treating him on September 12, 2007. In a report prepared on December 12, 2007, Powell stated he had seen defendant for eight psychotherapy sessions with the last session on December 5, 2007.*fn18 Defendant did not miss any therapy sessions. Powell noted in his report that defendant "entered therapy in a very pleasant and cooperative manner." He did not raise his voice or demonstrate any anger or resentment. Defendant stated that he was unprepared for the situation relating to his daughter, as it had been twenty-five years since he lived in the community and interacted with people and agencies and had not known what to expect. He believed that I.M.M. was taken illegally by the State because he was never given a Dodd*fn19 notice and he was never given an opportunity to parent his child.
When asked about the problem he had with Dr. Johnson, defendant took responsibility for his behavior. He stated that he became upset and angry after Dr. Johnson "said or intimated that he would not have his daughter returned to him." In regard to the mother, defendant stated that he ended this relationship in June 2007. He admitted that he became involved with her too fast, that he meant well and really wanted to help her, but that he now realized that "she was too far gone to be helped."
Powell noted that defendant's "memory for minute details and events is incredible and suggests his obsessive compulsive personality as described by Dr. Singer." Defendant was able to verbalize his thoughts and feelings well with Powell. There was never any issue with trust, and Powell felt that "if he can obtain at least one trusting relationship, he can use it to help catapult to other positive relationships." Powell also noted that:
His ability to terminate his relationship with [the mother] for the benefit of he [sic] and [I.M.M.] is proof positive of his ability to change. He is able to learn from mistakes given the proper time and processing of his own behavior through reality in a therapeutic relationship. [Defendant] has the ability to improve his insight and judgment over time. He has now been out of jail almost four years. During this time, he has been a model citizen and member of the community. He still has [a] lot to learn after twenty-five (25) years of incarceration, and needs to be in a long term therapeutic relationship in order to monitor his behavior and give him guidance and support. Additionally, he needs to keep his job support system that includes people who really care about him and have his best interest at hand.
As to whether defendant could effectively parent I.M.M., Powell noted that twenty-five years of incarceration would impact anyone. Because anger was a human emotion, which "can be unearthed at any[ ]time due to conscious and unconscious material," Powell expressed that "we must err on the side of caution . . . at this time," as there had not been sufficient time in therapy to deal with anger issues. However, Powell noted that defendant successfully completed a sixteen-week parenting class in September 2006 and presumably could parent. The issue was whether defendant had "the emotional necessities to parent and can he nurture a child." In that respect, Powell observed that defendant had attended all of his supervised visits with I.M.M. Also, defendant had had no violent or dangerous behavior in almost four years, had complied with every request made of him by the Division, and had been extraordinarily responsible with I.M.M. since her birth. Thus, Powell concluded that "[a]ny deficit [defendant] has [as] a result of his twenty-five (25) years of incarceration can be effectively monitored and deal[t] with individual and conjoint sessions with [I.M.M.] overtime [sic]."
Defendant also secured a report from Dr. Arnaldo Apolito, who conducted a psychiatric evaluation on November 13, 2007. In his report, Dr. Apolito, like Dr. Iofin, concluded that his evaluation "did not detect any symptoms or signs of a major psychiatric disorder." Defendant displayed a genuine interest and affection for I.M.M. and was proud of his achievements, including his success at the homeless shelter where he had been promoted to the position of manager. Dr. Apolito opined that the efforts defendant made in rehabilitating himself were due, at least in part, to his affection for his daughter and his desire to raise her. Dr. Apolito felt that defendant's plans were realistic and appropriate. He believed, within a reasonable degree of medical certainty, that defendant was fit to parent I.M.M. He suggested that the length of his supervised visits with I.M.M. be increased, that he then be allowed to have over- night unsupervised visits with her at his apartment, and if they went well, he should be granted custody of I.M.M.
The guardianship proceeding was reached for trial on December 10, 2007. Green testified that the Division had provided defendant with psychological evaluations, random urine screenings, psychotherapy, parenting-skills classes, and visitation. The urine screens were always normal. Defendant "was compliant with all services" and "has always been in compliance with the Division services." Green related a conversation with Dr. Johnson in December 2006 or January 2007 in which she stated defendant should see a male therapist four times a month and she was no longer going to provide services to defendant because she felt intimidated. Green stated that he contacted several male therapists, but no one was able to accommodate the necessary schedule. At that time, defendant "was doing everything" the Division asked and the only concern it had was his ongoing relationship with the mother, who was then residing with him. Nevertheless, once the Division learned about defendant's criminal record, Green received word from "Trenton" that he could not continue the plan for reunification with the father until defendant met the Division's requirements. He testified that "I got pulled in with my [District Office] Manager and . . . they told me that I couldn't do it."*fn20
Hazel testified that I.M.M. had been in her current foster-home placement since March 2006, and that her foster parents had expressed an interest in adopting her.*fn21 Defendant had completed all services required by the Division, with the exception of individual psychotherapy. After becoming aware of Dr. Johnson's recommendation, Hazel began making calls to find an available male therapist. She contacted approximately four or five agencies before identifying Powell and finding that he was available.*fn22 Hazel testified that defendant attended all the visits with I.M.M. and brought her food and other things. She never saw defendant act moody, disruptive, or violent.
The Division then called Dr. Brown and his testimony largely mirrored his report. He explained that his conclusion regarding defendant's prognosis for satisfactory parenting was made only in respect to defendant's cognitive functioning. His conclusion did not speak to defendant's "personality, level of parental stress, [or] level of parental knowledge."
Dr. Iofin, who was also called by the Division, testified consistently with his report. He also opined that defendant had not been out of prison long enough to create a supportive network. He acknowledged that defendant may have "some support" in the community, "but it will not be really strong support, because it's not really strong ties with the community." For example, "he do [sic] not have pastor who know him and he do [sic] not go to church for 20 years. He do [sic] not have neighbors who live in the same neighborhood who knew him for 10 or 15 years. He do [sic] not have any of this strong community support because of the circumstances."
Defendant called Powell, who explained that he believed anger to be a natural emotional response, but he had not seen defendant display any anger in his therapy sessions with him. Powell noted that Dr. Johnson's report was the only place he had seen any indication that there were some anger issues with defendant. Powell felt that defendant became angry with Dr. Johnson because of his relationship with his daughter and what he perceived was being said by Dr. Johnson. He also testified that if the court were to return I.M.M. to defendant that day, defendant was in a position psychologically to parent I.M.M.
However, he recommended a more gradual process of returning I.M.M. to defendant's custody.
Dr. Apolito also testified for defendant and stated that Dr. Singer's diagnosis of defendant as having obsessive-compulsive disorder did not concern him regarding defendant's ability to parent. He noted that "this diagnosis came . . . as a result of psychological tests[ a]nd not from clinical observation, which to me . . . means that [these] obsessive-compulsive features . . . have not, actually, come into play in his everyday behavior." Dr. Apolito also noted that obsessive-compulsive disorder, unless very severe, has never been considered a condition that would automatically prevent someone from parenting his or her child. He observed that, had defendant not been previously incarcerated, the personality traits described by Dr. Singer would not have become an object of observation by the Division and the courts. Dr. Apolito recommended that custody of I.M.M. be transferred to defendant gradually and that defendant be observed and counseled during this transition.
Defendant also presented the testimony of his employer, Rev. Dan Lowery. Rev. Lowery was CEO of Gospel Services Benevolent Society, Inc., a nonprofit organization that runs a homeless shelter and provides other services in Essex County. He testified that at the time of trial, defendant, who had been employed there for two-and-a-half years, was the manager of the homeless shelter. He excelled at his work and Rev. Lowery had received no complaints about him during his employment there. Lowery noted that people "love coming into the group settings where you speak to them, and give them food for community issues." Defendant worked eighty-four hours a week, including a twenty-four hour overnight on site. The administrative office includes a bedroom and this area could be designated for defendant and his daughter during his overnight shift.
Rev. Lowery had observed defendant interact with children. When Gospel Services began a summer program, Rev. Lowery gave defendant the responsibility of watching and monitoring his own two daughters, ages nine and five, for a two-month period. Rev. Lowery also attended several visitations with defendant and observed him with I.M.M. He saw defendant "interact with her lovingly" and noted that "she took to him real well, under the circumstances."
In answering questions from the court, Rev. Lowery stated that Gospel Services would be a resource for defendant and would provide him funds for I.M.M.'s daycare. He also testified that if defendant had an emergency situation where he was unable to care for I.M.M. for a few days, for example, if he was hospitalized, Rev. Lowery would take I.M.M. into his home and care for her until defendant returned. Defendant also presented the testimony of his co-worker, Calvin Harris, who largely reiterated that defendant was "very good" when interacting with Harris's children and had never became angry or upset in his presence.
Defendant testified on his own behalf and explained that he waited until June 2007 to make the mother leave because "everybody deserves a chance." However, he realized that "[t]here's not healing, you know. She's wrapped up in her own pain. So get out, you're a danger to me and you're a danger to I.M.M." Regarding the incident with Dr. Johnson, defendant explained that he asked her if she thought he could regain custody of I.M.M. and, when she did not respond positively, he became upset and questioned why, if she was the person providing therapy for him, she was negative about the outcome. He denied yelling at her, testified that he "broke down emotionally" even though she did not make note of that, and walked out of the session.
At the end of the trial, the Law Guardian stated that she supported the Division's position in favor of terminating defendant's parental rights.
The trial judge placed an extensive oral opinion on the record in which he found the facts and stated his conclusions of law. He determined that the Division had satisfied the statutory four-prong criterion for termination of parental rights under the best-interests-of-the-child standard enunciated in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1(a). Preliminarily, the judge found that Green, Hazel, Powell, and Drs. Brown, Singer, Iofin, and Apolito all were witnesses whose testimony in all respects, save one or two instances not particularly relevant here, was credible and reliable. As to defendant, the judge rejected some of his testimony as not reliable, carefully specifying the evidence that supported his conclusion, and accepted other testimony as credible and reliable.
In applying the first factor, N.J.S.A. 30:4C-15.1(a)(1), namely whether "the child's safety, health or development has been or will continue to be endangered by the parental relationship," the court found that I.M.M.'s mother had a background of drug use and used drugs during her pregnancy. He found that defendant and the mother lived in separate shelters during her pregnancy and credited defendant's testimony that he was unaware of the mother's prenatal drug relapse. Additionally, he found that defendant brought the mother to monthly prenatal clinic appointments on at least three or four occasions, despite suggestions to the contrary in the record. He found that defendant "did not offer immediate relative placement resources" other than S.P. in order to avoid foster care, but concluded defendant did not do so because his thinking was always that he himself would take responsibility for I.M.M. and care for her. The judge ultimately concluded that the harm caused by defendant was his inability to "provide proper and appropriate housing for the child."
Considering the second prong, N.J.S.A. 30:4C-15.1(a)(2), that defendant "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," the judge acknowledged that by November 2005 defendant could provide a safe and stable home because he found an apartment near his work and had steadily maintained his work and apartment since that time. However, he found that defendant was unwilling to eliminate the harm facing the child from the mother, whose presence in defendant's home until June 2007 rendered it unsafe.
Specifically, the judge found that both parents had been advised on October 27, 2005, of the time constraints that existed for reunification and the permanency needs of I.M.M. Also, he found that on February 27, 2006, the Division advised defendant that the presence of the mother in his home placed I.M.M. at high risk of harm and defendant should think in terms of caring for I.M.M. alone, but that defendant replied that he still wanted to help the mother so she could be part of the family. The judge found this conference was "most important time wise . . . because it emphasizes the notice that was given to [defendant] as to the reunification process, and the time lines necessary in terms of I.M.M.'s need for permanency." The judge also noted that defendant was again advised on March 23, 2006, of the time constraints on reunification and the permanency needs of I.M.M.
The judge further found that as of March 22, 2007, when the permanency order was entered, the mother was back in defendant's home, although he noted that the Division "was still caught up in locating . . . a male therapist to take on reunification efforts for him with his daughter [I.M.M.]." He also found that even after the guardianship complaint was filed on May 22, 2007, the mother remained in defendant's home and was an obstacle to reunification. Although the judge credited defendant's testimony that he and the mother completely ended their relationship by June 2007 at the latest, he found "his inability to evaluate and make that critical relationship choice" was a "central problem" in the case.
The judge did note that "[t]he argument could be advanced that today [defendant] is able to foster and maintain an environment leading to normal child development for I.M.M." Defendant had a steady job, an apartment, and two friends who testified that they would help defendant in an emergency situation and otherwise assist in parenting I.M.M. The judge also found that defendant could use daycare and, hopefully, adjust his workday employment hours. However, the court dismissed these considerations as "technical" and instead likened defendant's situation to "cases where a person is a recovering addict."
In this respect, the judge considered the expert testimony and reports admitted into evidence. He highlighted Dr. Singer's recommendation on April 27, 2006, that defendant should have individual psychotherapy interventions so that defendant's personality features would not limit his ability to respond effectively to demands placed upon him as a parent. The judge adopted his opinion that defendant had a narcissistic personality disorder, that he was likely to engage in public displays of compliance, and to have little desire for meaningful contact. The judge noted examples of defendant's behavior in the record that he found consistent with this opinion.
The judge then turned to the reports from Dr. Johnson, who did not testify at trial. He found that the evidence of the mother's view of defendant as wanting everything to be "his way or no way" was consistent with Dr. Johnson's opinion that defendant "has special difficulties or problems when it comes to females," as did the disagreement defendant had with Dr. Johnson and with a female corrections officer while he was in prison.*fn23
The judge found this led Dr. Johnson on December 6, 2006, to suggest a male therapist for defendant. Nonetheless, the judge noted that Dr. Johnson "did continue into 2007" to provide therapy to defendant.
The judge took note of Dr. Johnson's review of defendant's prison record, "which d[oes] not show [defendant] to be in a favorable light with respect to his conduct and infractions and penalties that were referenced in same." He discounted these records to some extent because of their "bureaucratic" nature, but adopted portions where prison professionals concluded that defendant had poor judgment and coping skills, a cynical attitude, and high anger levels. He also noted Dr. Johnson's concern about the ring tone on defendant's cell phone and adopted her opinion that defendant had ongoing, albeit subtle, anger issues, but found that he had the ability to work on these issues in psychotherapy.
The judge accepted Dr. Brown's conclusion that defendant appeared "capable of establishing a considerable degree of functional normalcy utilizing the assets available to him. His ability to sustain employment and housing exemplify his capacity to compensate well for his deficits as he derives maximal benefits from the functional assets available to him." The judge also took note of Dr. Brown's opinion that defendant would benefit from individualized and repetitive parenting education.
The judge noted that Dr. Iofin observed that defendant did not verbalize any empathy or remorse for the fate of the victims of the fire, "irrespective of whether or not he was the cause of those deaths." Dr. Iofin diagnosed defendant with antisocial behavior and adjustment disorder, along with provisional post-traumatic-stress disorder. Dr. Iofin also diagnosed him with obsessive-compulsive personality disorder, but the judge did not believe that clear and convincing evidence of this had been proven. The judge concluded that a need for psychiatric follow-up had not been proven by clear and convincing evidence.
The judge observed that Dr. Apolito did not detect any signs of a major psychiatric disorder and concluded that defendant had no cognitive impairments. The judge, however, rejected this latter conclusion, given the contemporaneous report of Dr. Brown. He did, however, agree with Dr. Apolito's opinion that the obsessive-compulsive diagnosis did not interfere with defendant's everyday functioning and made note of Dr. Apolito's recommendation for increased visitation prior to reunification.
As to Powell, the judge found his report and testimony "most considerate" of defendant, with whom he had developed a sound rapport. He adopted Powell's opinion that defendant had not had sufficient time in therapy "to deal with the anger issue, which is always a component of any successful therapy." The judge adopted Powell's observation that defendant was in the beginning stages of counseling and the judge stated that defendant needed to be in a long-term therapeutic relationship "in order to monitor his behavior and give him guidance and support." While the relationship defendant had developed with Powell "bodes well for the future," the judge found this similar to someone in addiction treatment and concluded that it did not demonstrate that defendant was able to eliminate the harm facing I.M.M. Ultimately, the judge concluded that defendant's long-term need for therapy made him unable to eliminate the harm to I.M.M.
Turning to the second aspect of the second prong, that "the delay of permanent placement will add to the harm," including "evidence that separating the child from [her] resource . . . parents would cause serious and enduring emotional or psychological harm to the child," N.J.S.A. 30:4C-15.1(a)(2) (which also constitutes and informs the fourth statutory prong),*fn24 the judge addressed Dr. Singer's undisputed bonding evaluations. The judge found that a parenting relationship with the foster parents had been created over an extended period of time.
The judge also adopted Dr. Singer's conclusion that the foster parents were the central parental figures in I.M.M.'s life. The judge found that I.M.M. had thrived in her foster home and "would, likely, experience significant enduring harm if the relationship with the psychological parents were severed." The judge also found that I.M.M. would, in such a case, experience long-term "feelings of sadness, loss, insecurity and have difficulty in establishing and maintaining meaningful relationships." He found this was particularly so because I.M.M. was at an age where her primary relationship becomes the prototype for future relationships and that severing her attachment to her foster parents would likely do more harm than good. In balancing the harm from the loss of the psychological-parent relationship against the loss of the biological-father relationship, the judge concluded that a greater harm would result from the permanent disruption of I.M.M.'s relationship with her current caregivers. Thus, he concluded that the Division had proven the second and fourth prongs by clear and convincing evidence.
The judge also addressed the third prong, which requires the Division to prove by clear and convincing evidence 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 which requires the court to consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The judge found that the Division acted promptly to set up a psychological evaluation for defendant on January 6, 2006, but when the Division went to the address defendant provided, he was not there and the evaluation was cancelled.*fn25 He concluded that the Division made reasonable efforts vis-à-vis defendant in offering weekly visitation, of which defendant consistently availed himself; psychological evaluations; parenting-skills classes, which defendant entered and competed; and neuropsychological and psychiatric services based on recommendations from other professionals.
The judge raised a concern as to the timing of defendant's therapy, noting that Dr. Johnson recommended that defendant be seen by a male therapist in December 2006 and an appointment with a male therapist was not scheduled until August 21, 2007. However, the court found that the Division had first referred defendant to Dr. Katz, a male therapist, before he was referred to Dr. Johnson. After Dr. Johnson recommended that defendant see a male therapist, the judge found that the Division made a good faith effort to locate one, first reaching out to Powell on January 9, 2007, who could not fit defendant into his schedule at the time, and also contacted Dr. Brown on February 3, 2007, and Dr. Crawford on February 9, 2007, neither of whom were available more frequently than biweekly. He also found that Hazel began in May 2007 to seek a therapist for defendant and again contacted Powell, who was by then available. The judge found that the first date defendant and Powell were available was August 21, 2007, though unfortunately defendant was not able to locate Powell's office despite his efforts to do so. The initial session was quickly rescheduled and therapy began on September 12, 2007. The judge found that the delay in locating such a therapist "cannot be attributed to the Division's making." He concluded that the delay was a far cry from the resource problems criticized in New Jersey Division of Youth & Family Services v. F.M., 375 N.J. Super. 235 (App. Div. 2005). Rather, he concluded that weekly appointments "were delivered as soon as possible."
Regarding alternatives to termination of parental rights, the judge found that the Division was unable to find any relative placements. Defendant had not provided the Division with any names or addresses of relatives for possible placement of I.M.M. On the maternal side, the mother's family also was not able to accommodate I.M.M.
In concluding that the four prongs of N.J.S.A. 30:4C-15.1(a) had been satisfied, the judge found that defendant had permitted the development of disproportionately stronger ties between I.M.M. and the foster parents due to his prolonged inattention and that severing that bond would cause profound harm, citing In re Guardianship of J.C., 129 N.J. 1, 18 (1992). Although he observed that defendant displayed fervor in trying to make reunification happen, "he made a big mistake" in not "cutting the mother adrift" until June 2007, when too much time had gone by. The judge observed that "we don't have the luxury of providing services to a birth parent for an indefinite period of time" due to federal mandates. Thus, he terminated defendant's parental rights to I.M.M., but continued visitation once every four weeks pending this appeal.
Defendant contends that the Division failed to prove by clear and convincing evidence that I.M.M.'s health and development were endangered by her relationship with him and that he was not able and willing to eliminate the harm facing the child. He urges that the Division also did not prove by clear and convincing evidence that it provided services to correct the circumstances that led to I.M.M.'s placement outside the home. Finally, he argues that the judge erred in concluding that termination of his parental rights will not do more harm to I.M.M. than good.
Where a judge has complied with his fact-finding duties under Rule 1:7-4(a), as the trial judge clearly did here, our appellate review is limited by well-settled, controlling principles. Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). "We are not to review the record from the point of view of how we would have decided the matter if we were the court of first instance." Ibid. (citation omitted). It is not our function to weigh the evidence. Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434, 440 (1965). Neither do we "determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein." Penpac, Inc. v. Passaic County Utils. Auth., 367 N.J. Super. 487, 507 (App. Div.) (quotation omitted), certif. denied, 180 N.J. 457 (2004). This is so because we are not in a good position to judge credibility and ordinarily should not make new credibility findings. Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). "Rather, our aim is to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Sebring Assocs., supra, 347 N.J. Super. at 424 (quotation omitted).
"Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted); see also Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004). We only disturb those findings when "we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963); see also Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005). Indeed, we exercise our original fact-finding jurisdiction sparingly and only in a clear case where there is no doubt about the matter. Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b. 33 N.J. 78 (1960). "While we will defer to the trial court's factual findings so long as they are supported by sufficient, credible evidence in the record, our review of the trial court's legal conclusions is de novo." 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Parents have a constitutionally protected right to enjoy a relationship with their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed on the termination of parental rights. See id. at 347. However, 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." Ibid. 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). When applying for guardianship, DYFS 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 a clear-and-convincing-evidence standard. Ibid.; see also In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); J.C., supra, 129 N.J. at 10; A.W., supra, 103 N.J. at 611-12.
"Evidence is 'clear and convincing' when it produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] [sic] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In [r]e Jobes, 108 N.J. 394, 407 (1987) (citing State v. Hodge, 95 N.J. 369, 376 (1984) (citations omitted)). [In re Commitment of W.H., 324 N.J. Super. 519, 524 (App. Div. 1999); see also Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 App. Div. 1960).]
"In particular, 'parental fitness is the key to determining the best interests of the child in parental rights termination cases.'" J.N.H., supra, 172 N.J. at 471 (quoting In re Guardianship of B.L.A., 332 N.J. Super. 392, 402 (Ch. Div. 2000)).
The four factors codified in N.J.S.A. 30:4C-15.1(a) 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." State Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007); K.H.O., supra, 161 N.J. at 348. The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). 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 88 (quotation omitted).
The transfer of guardianship to the Division terminates all parental rights of the natural parent, permanently cutting off the relationship between the child and her biological parents, and is a prerequisite to having a child adopted. See J.C., supra, 129 N.J. at 5-10. When the child's biological parent resists termination, the court's function is to decide whether the parent can raise his child "without causing them further harm." Id. at 10 (emphasis added). The proof focuses on past abuse and neglect and on the likelihood of it continuing. Ibid. "The burden falls on the State to demonstrate by clear and convincing evidence 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. (citation omitted).
Under the first statutory prong, "[t]he harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. "That requirement is reinforced by the second prong of the statutory standard, which focuses on the parent's ability to overcome the harm to the child." Ibid. "The primary focus of the court should be upon harm for which there is 'unambiguous and universal social condemnation.'" A.W., supra, 103 N.J. at 604 (quoting Developments in the Law - The Constitution and the Family, 93 Harv. L. Rev. 1156, 1319 (1980)). The judge must also consider whether the "potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605.
Physical harm is not the sine qua non of endangerment; our Supreme Court has recognized that the potential for emotional injury can be a crucial factor. Ibid.; see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). The "psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Ses v. Baber, 74 N.J. 201, 222 (1977). The attention and concern of a caring family is "the most precious of all resources." A.W., supra, 103 N.J. at 613. A parent's withdrawal of that solicitude, nurture, and care for an extended period is in itself a harm that endangers the health and development of the child. See K.H.O., supra, 161 N.J. at 352-54; see also D.M.H., supra, 161 N.J. at 379. "Harm" in the context of the first statutory prong was defined by the K.H.O. Court in the following manner:
Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship . . . . [T]he best interests standard does not concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development. [K.H.O., supra, 161 N.J. at 348.]
Although the judge made findings of harm caused by the mother, the only harm he found to have been caused by the father prior to removal was his failure to "provide proper and appropriate housing for the child." We have found no case in which a court has found that a temporary lack of housing constituted harm to the child supporting termination of parental rights. Were that so, the parental rights of innumerable homeless parents would be subject to termination. To the contrary, it has only been when the parents have been unable to secure proper housing for an extended period of time that termination of parental rights has rested, in part, on this ground. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004); see also J.N.H., supra, 172 N.J. at 472; D.M.H., supra, 161 N.J. at 379, 383 (father compounded mother's neglect by not providing adequate housing and care for the children, satisfying the first and second elements of the statute); N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 79 (App. Div. 2003). Indeed, we have reversed a termination of parental rights based on the mother's lengthy lack of housing where it had been remedied before the guardianship trial. F.M., supra, 375 N.J. Super. at 262. Rather, "[p]arents, 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." J.C., supra, 129 N.J. at 21; see also Doe v. G.D., 146 N.J. Super. 419, 430-31 (App. Div. 1976) (substandard housing and inadequate sleeping conditions "do not establish child neglect or abuse"), aff'd, 74 N.J. 196 (1977).
This is consistent with other statutes governing the welfare of children. See, e.g., N.J.S.A. 9:6-8.54(a) (before taking custody of a child, the Division must make reasonable efforts to prevent placement). Such reasonable efforts include housing assistance. See N.J.S.A. 9:6B-4 (stating that a child has the right "[t]o placement outside his home only after the applicable department has made every reasonable effort, including the provision or arrangement of financial or other assistance and services as necessary, to enable to child to remain in his home"); see also N.J.A.C. 10:133-1.3 (defining "emergency maintenance service" as the "provision of food, clothing, shelter, furniture, appliances and similar necessities, needed by a client in crisis, and not available elsewhere"); N.J.S.A. 30:4C-11.1 ("[T]he [D]ivision shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home. After placement, the [D]ivision shall make reasonable efforts to make it possible for the child to safely return to his home.").
The Division did not comply with N.J.S.A. 30:4C-11.1, but defendant's initial protestations--that psychological and drug-abuse evaluations of him were not supported by the facts--fell on deaf ears. Indeed, none of the initial findings in the abuse-or-neglect proceedings related to defendant at all. See infra pp. 4-5. But even if the temporary lack of housing could harm a newborn child, such harm was remedied before I.M.M. was even three months old and long before this guardianship proceeding was instituted. Indeed, the lack of housing was remedied before the Division began to provide any services to defendant except visitation.
The Division argues that the first prong was established because defendant was recently released from prison. We have found no case holding that a parent's criminal history qualifies as per se first-prong harm. If that were so, criminals who have paid their debt to society and are available to parent their children would not be permitted to do so. Instead, the Division was required to show actual harm to I.M.M. from the relationship with her father by virtue of his criminal record. K.H.O., supra, 161 N.J. at 348. It did not show any such harm in this case.
Indeed, defendant's prison records did not disclose any violence at all in that institutional setting, which was the concern expressed by the judge in the abuse-or-neglect proceedings and which led him to order the Division to secure these records. Instead, the prison records remarkably showed only six minor infractions--such as posting meeting minutes without permission, unexcused absence from work, failing to lock his cell door, and refusing to report for extra duty--and those records cover an incarceration that lasted almost a quarter century. Thus, the concern expressed by the judge in the abuse-or-neglect proceeding was proved not to be the case, yet these prison records seemed to take on a life of their own in the minds of the Division and the experts who considered them at its behest, even though defendant never inflicted any harm on I.M.M., much less any physical harm.
Because a temporary lack of shelter does not qualify as first-prong harm, because defendant's criminal offense inflicted no harm upon I.M.M., and because he has not demonstrated any propensity toward violence at any time after 1980, we conclude that there was no evidence to support the judge's conclusion that prong one had been proven by clear and convincing evidence. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 615-16 (App. Div.), certif. denied, 192 N.J. 68 (2007).
The second statutory prong is aimed at "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348; N.J.S.A. 30:4C-15.1(a)(2). In that respect,
[w]hile 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 interests of the child.
[D.M.H., supra, 161 N.J. at 379.]
"In other words, the issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
The second prong may be met 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. [K.H.O., supra, 161 N.J. at 353.]
Of course, we have already determined that there was no evidence of an initial harm caused by defendant. Although it is true, as the judge found, that defendant had not had sufficient time in psychotherapy to address any issues that he might have, he should not have been required to do so in the first instance because his prison record was completely nonviolent and there was no evidence of any displays of anger at any time after his parole in 2004 with the one exception of his upset with Dr. Johnson in November 2006 over an issue that might likely upset any parent in his situation. That incident was not a source of harm to I.M.M., was never identified as prong-one harm, and cannot be said to justify a conclusion that the second statutory prong had been proven by clear and convincing evidence. Additionally, defendant's need for psychotherapy never once impacted on his visitation with I.M.M., which was consistently reported by the supervisors as going very well with real affection displayed by each for the other.
Alternatively, the Division can show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. Here, the judge recognized that defendant was able to foster and maintain an environment leading to normal childhood development for I.M.M. He had a steady job and an apartment since November 2005, and two friends to help in parenting I.M.M. Indeed, from a penal viewpoint, he appears to have been rehabilitated. He could use daycare and adjust his workday employment hours. Yet, the court dismissed these considerations as "technicalities." They are nothing of the sort. Rather, they were precisely the evidence demonstrating that the Division could not meet its burden of proof by clear and convincing evidence under the second prong because defendant was willing and able to eliminate any harm from the initial lack of shelter and he had in fact been successful in doing so and had consistently sought reunification from the very beginning of the abuse-or-neglect proceedings to no avail. In fact, he complied with all of the services that the Division provided.
Despite defendant's success, the judge found that defendant "made a big mistake" in not "cutting the mother adrift" until June 2007, when too much time had elapsed, which became the "central problem" in the case even though defendant's relationship with the mother had ended. In reaching this conclusion, the judge did not discuss New Jersey Division of Youth & Family Services v. G.L., 191 N.J. 596 (2007), which had been decided five months earlier.
In G.L., the parents had an older child who had died from Shaken Baby Syndrome. Id. at 600. The father, who was home alone with the child when the incident occurred, denied culpability but was charged with manslaughter and endangering the welfare of a child. Id. at 599-600. While the criminal proceeding against the father was pending, the mother became pregnant with another child. Id. at 600. Although the mother was not convinced that the father had shaken their older child to death, she agreed to submit to any restrictions imposed by the Division to maintain custody of her new baby, including not allowing the father to have unsupervised visitation. Ibid. The mother complied with all recommendations by the Division, including a psychiatric evaluation and therapy. Id. at 601.
When the baby was two months old, the Division filed a complaint for care and supervision of the infant due to its concern that the mother would allow the father to have access to the infant, based on the notion that the mother could not be trusted to keep the baby safe. Ibid. Eventually, the Family Part judge terminated the mother's parental rights, finding that the mother's unwillingness or inability to sever ties with the father posed a serious risk to the baby. Id. at 604.
The Supreme Court reversed, finding that the Division had failed to show by clear and convincing evidence that the mother was unwilling or unable to eliminate the threat posed by the father. Id. at 607. The record showed that the mother never allowed the father to see the baby without supervision. Ibid. The Court distinguished G.L. from the situation in M.M, supra, 189 N.J. 261, where the father insisted on continuing to live with his substance-abusing wife, whose parental rights had already been terminated. G.L., supra, 191 N.J. at 607. The G.L. Court noted that N.J.S.A. 30:4C-15.1(a) is conduct-based and, so long as the mother was an able mother and conducted herself in a way that secured her child's safety, the statutory standard for terminating her rights was not met. G.L., supra, 191 N.J. at 608. While the gravamen of the trial court's decision was a threat posed by the continuing relationship between the mother and father, that threat "is based on speculation and not on clear and convincing evidence." Ibid.
The same must be said here. The Division never gave the defendant an opportunity to demonstrate that he would protect I.M.M. from the mother by not permitting her to have unsupervised contact with their child. Although, as the judge found, the Division advised defendant as early as February 27, 2006, that the presence of the mother in his home placed I.M.M. at high risk of harm, four months later the judge in the abuse-or-neglect case rejected these concerns, remarking: "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).
Defendant would certainly have been justified in concluding that the court was not requiring him to make the mother homeless. In fact, N.J.S.A. 30:4C-15.1 would not mandate the end of his relationship with the mother, but would only require that defendant not permit the mother to have unsupervised visits with I.M.M. See G.L., supra, 191 N.J. at 609. When it was clear in March 2007 that the court was requiring that he make the mother homeless and defendant was certain that the mother was not going to end her drug habit, he ended the relationship, which is exactly what he said he would do from the very beginning. Furthermore, it cannot fairly be said that this was a "central problem" in the case because it was made abundantly clear throughout all of the proceedings in the abuse-or-neglect case and the guardianship action that custody of I.M.M. would not be returned to defendant until he progressed in psychotherapy based on the reports from Drs. Singer and Johnson.*fn26 Here, the evidence showed that defendant acted in a way to secure I.M.M.'s safety and any concern about the relationship between defendant and the mother was never more than speculative, G.L., supra, 191 N.J. at 608; see also F.M., supra, 375 N.J. Super. at 262, because he was not required to choose between the mother and I.M.M. for eighteen months and never had an opportunity to supervise the mother's contact with I.M.M.
The judge also concluded that defendant's long-term need for therapy made him unable to eliminate the harm to I.M.M., but he did not relate this to the initial lack of housing, nor can we do so. There are undoubtedly thousands of parents who could benefit from therapy and become better parents, and defendant is among them, as the judge found. However, the need for therapy in this case is not akin to a recovering addict because the need for therapy was not tied to any harm suffered by I.M.M. Thus, it cannot be the basis for termination of defendant's parental rights. See G.L., supra, 191 N.J. at 608 (harm based on presumptions about future conduct not grounded in past harm "have no place in a termination analysis").
To summarize, the Division failed to present clear and convincing evidence to support the finding that defendant was unable to eliminate the harm to the child from not having a safe and stable home. K.H.O., supra, 161 N.J. at 348-49. Although defendant had not had sufficient time in therapy to deal with his anger issues, that should not have been an impediment to reunification. See F.M., supra, 375 N.J. Super. at 263 (the need for six months of additional therapy "did not support terminating . . . parental rights"). As in F.M., defendant cannot be blamed for not having services the Division failed to provide. Ibid.*fn27
Under the third prong of the best-interests standard, the Division must "ma[ke] reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3); see K.H.O., supra, 161 N.J. at 354.*fn28 "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. See N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. 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 & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002).
Such "reasonable attempts" at reunification include "providing services that have been agreed upon, to the family, in order to further the goal of family reunification." N.J.S.A. 30:4C-15.1(c)(2). Evaluation of the Division's efforts to reunite a particular family must be done on a case-by-case basis because
[s]ervices that may address one family's needs will not be helpful to another. Whether particular services are necessary in order to comply with the [reasonable] efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort.
[D.M.H., supra, 161 N.J. at 390.]
Therefore, the reasonableness of the Division's "efforts on behalf of a parent is not measured by their success." Id. at 393; see K.H.O., supra, 161 N.J. at 354 (requirements satisfied where DYFS attempted to find relatives or friends who would care for the child, encouraged continued parental visits, informed the mother of the child's progress, monitored the mother's visits, and provided drug treatment programs).
Despite acknowledging that there was a delay in providing therapy, the judge found that the Division made reasonable efforts in offering weekly visitation; psychological, neuropsychological, and psychiatric evaluations; and parenting skills classes. As to the timing of defendant's individual psychotherapy, the court found that the Division made a good faith effort to locate a male therapist and that it was not responsible for the delay in locating one. Of course, we have already held that the various evaluations were not factually warranted, but the record does not support the judge's finding that the Division was not responsible for the delay in finding a male therapist.
The psychological evaluation of defendant, first scheduled for November 7, 2005, was not conducted until April 27, 2006, a delay caused solely by the Division--a waste of almost eight out of the twelve months allowed for a parent to cure circumstances that led to the removal of a child before the Division is required to institute termination proceedings. See N.J.S.A. 30:4C-15(d); see also K.M., supra, 126 N.J. at 556. The Division admitted on January 12, 2006, that the delay up to that point was not at all the fault of defendant. Then, in February 2006, it learned of defendant's conviction, instructed Green to abandon any reunification plan, and provided no services other than visitation until the April 27, 2006, evaluation.
The Division also took no action on Dr. Singer's May 9, 2006, recommendation that defendant receive individual psychotherapy until it was ordered to provide these services on July 13, 2006--a loss of over two months. That therapy did not begin until I.M.M. was almost one year old and had been in foster care for her entire life--a loss of another two months. Nor did it provide parenting-skills classes until the psychotherapy began, despite defendant's plea to the judge that the Division should accomplish at least that much before the first permanency hearing and despite the judge's order to provide such classes.
The Division then took no fruitful action on Dr. Johnson's recommendation on December 6, 2006, for more frequent therapy and her further recommendation on March 15, 2007, for weekly psychotherapy with a male therapist. Indeed, before the recommendation for weekly therapy was even made, Green rejected an opportunity to schedule twice-monthly therapy in early February 2007 with Dr. Brown, Powell, or Dr. Krampton--all male therapists. It was not until the June 27, 2007, order that Hazel scheduled defendant with Powell, and then not until August 21, 2007, and then only on a biweekly basis, which could have been done six months earlier. Yet, throughout this period of time, the Division knew that Dr. Johnson stopped providing therapy altogether on February 20, 2007. Surely, biweekly therapy, which Green could have scheduled in February 2007, was better than no therapy at all.
Other services were also not provided in a timely manner. The Division never complied with the judge's January 12, 2006, order to inspect and assess defendant's apartment. Although the Division on December 12, 2005, referred defendant for parenting-skills classes, it did not schedule those classes until about September 2006 when I.M.M. was a year old. The Division then completely ignored Johnson & Associates' recommendation on November 28, 2006, that defendant receive individual counseling to emphasize and reiterate what he had learned in the parenting-skills classes. It also took the Division over ten months from February 22, 2006, when it first learned of defendant's criminal conviction, to secure defendant's prison records, which it did not even request until July 20, 2006. Finally, the neuropsychological and psychiatric evaluations in 2007 were not services to assist in reunification but rather to secure expert testimony to support termination of defendant's parental rights.
It is, of course, true, as the judge remarked in placing his decision on the record, that "we don't have the luxury of providing services to a birth parent for an indefinite period of time." But the problem here was not that services were provided for too long; instead, other than visitation, services were not provided within any reasonable amount of time or not provided at all. It was conceded by everyone involved in this case that defendant was at all times compliant with every service provided by the Division, the only factual distinction between this case and F.M., supra, 375 N.J. Super. 240-56, yet services here were unreasonably delayed by the Division. The judge's conclusion that the Division proved by clear and convincing evidence that it made reasonable efforts to provide services is factually contradicted by the record. It seems clear from this history of foot dragging that defendant's criminal conviction became an irremediable impediment to reunification in the view of the Division and that no amount of compliance on the part of defendant would divert the Division from its ultimate plan for termination of defendant's parental rights and for adoption of I.M.M.
Finally, under the last prong of the best-interests standard, that the termination 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. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. See K.H.O., supra, 161 N.J. at 357; see also A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the foster parents does not, alone, justify the termination of parental rights. In re K.L.F., 129 N.J. 32, 44-45 (1992); F.M., supra, 375 N.J. Super. at 260-62. However, a child's need for permanency is an important consideration. See K.H.O., supra, 161 N.J. at 357-58. In meeting the fourth prong, the Division 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. J.C., supra, 129 N.J. at 19.
The court assesses "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "This criterion is related to the first and second elements of the best interests standard, which also focus on parental harm to the children." D.M.H., supra, 161 N.J. at 384. The child's need for permanency and stability emerges as a "central factor" in guardianship cases. K.H.O., supra, 161 N.J. at 357. In fact, "[t]he trend over the last thirty years has been towards foster care reforms that place limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification." Id. at 358.
We find no error in the manner in which the judge balanced the harm to I.M.M. from the loss of her relationship with the foster parents and the loss of her relationship with her natural father, where there is clearly a bond, although we consider it a close question. His conclusion is supported by Dr. Singer's bonding evaluations. However, the judge's fact-finding that this case is similar to J.C. because of "prolonged inattention by a natural parent" is unfounded. Instead, the evidence showed that defendant paid constant attention to I.M.M., hardly missed any visits with her over more than two years, and complied with all of the Division's requests.
Most importantly, our Supreme Court has held that the fourth prong alone does not provide an independent basis for termination of parental rights.
[T]he trial judge considered the lack of a strong bond between [the biological mother] and [her daughter] as supporting termination. To be sure, the bond was thin as the direct result of the improvident removal of [the daughter] from her mother's custody in 2003. Because she has lived with others for most of her life, [the daughter] has naturally become attached to them and her bond with her mother was weakened. That conclusion merely satisfies the fourth prong of the statute -- that termination would not do more harm than good. That prong serves as a fail-safe against termination even where the remaining standards have been met. It does not provide an independent basis for termination where the other standards have not been satisfied. [G.L., supra, 191 N.J. at 608-09 (emphasis added); see also F.M., supra, 375 N.J. Super. at 263 (holding that "[a]lthough the bonds these children have developed with their foster parents are strong, those bonds alone are an insufficient basis on which to terminate [the mother]'s parental rights").]
Thus, the trial court's decision to terminate defendant's parental rights cannot be affirmed solely because termination will not do more harm than good.
Although we reverse the termination of defendant's parental rights, immediate reunification would be unwise and the judge should be mindful of our admonitions in F.M.:
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 [children] 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." [State v. T.C., 251 N.J. Super. 419,] 433 [(App. Div. 1991)].
We recognize that [the Division's] expert believes that the harm to [the children] that will flow from their separation from their foster parents will be extreme and that their removal from that placement will be ill-advised. We recognize that [the mother] will need assistance and support if she is to be reunited with her children. We also recognize that the best interests of the children must be the focus of all future proceedings. We leave to the sound discretion of the trial court how best to serve these competing considerations. [F.M., supra, 375 N.J. Super. at 263-64.]
The Division is to immediately increase defendant's visitation to weekly two-hour sessions supervised by Tri-City or some other approved agency and the matter is remanded to the judge to consider a plan for reunification that will be in I.M.M.'s best interest, including ongoing therapy for defendant with Powell, conjoint therapy with him for defendant and I.M.M., unsupervised daytime visitation and subsequent overnight visitation as recommended by Powell and Dr. Apolito, and such further services as are necessary to ensure that the trauma to I.M.M. of separating from her foster parents will be minimized as much as possible. A reunification plan must be formulated within three weeks of this decision. We also note that the judge's determination to continue visitation pending appeal, although limited as it was, was entirely appropriate in a case such as this one where defendant vociferously resisted termination and was compliant with all services provided by the Division, although such relief would not be warranted in most cases.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.