On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-44-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Rodríguez and Waugh.
K.M., the birth mother of J.J., a girl born on September 11, 1996, appeals from the termination of her parental rights. The birth father, J.J.J., did not appear in the guardianship trial and does not appeal from the termination of his parental rights. The Law Guardian urges reversal arguing that the judge's decision "to terminate the parental rights of K.M. based on the 'best interests' of [J.J.] was incorrect and must be reversed" because: K.M. was willing and able to eliminate the harm facing J.J. and was willing to provide a safe and stable home. Moreover, in failing to return J.J. to K.M.'s care, a delay of permanency will result and more harm will be done than good.
We reverse, concluding that the record does not support the judge's findings that K.M. is unwilling or unable to eliminate the harm to J.J. We also conclude that DYFS did not meet its burden of proving that termination will not do more harm than good. In reaching this conclusion, we focus on four facts that are established by the evidence. First, as J.J. grows older, her special needs require less maternal scrutiny. Second, K.M. is making good progress. Third, J.J., who is old enough to express her views, wants to be with her mother. Fourth, J.J. was placed with her foster parents at an age when there was no significant bonding, such that termination of the relationship with the foster family would not cause more harm than good. Our conclusion is bolstered by the fact that the trial judge, although ordering termination of the parental relationship, nevertheless expressed the view that continued contact, by way of visitation with K.M., would be very beneficial to J.J.
These are the salient facts. J.J. is now twelve-years-old and was removed from K.M.'s care for the second time in February 2006 when she was nine-years-old. J.J. is a special needs child. She has been on medications for seizures and has been diagnosed with bipolar disorder with psychotic features and a sensory processing disorder. The action for termination comes after years of involvement by the Division of Youth and Family Services (DYFS) with K.M. and J.J.
Shortly after J.J.'s birth her parents separated. The father has not been involved in raising J.J. DYFS first became involved with the parties pursuant to a referral twenty-one days after J.J. was born.*fn1 The referral indicated that J.J. was born e with a low birth weight and had reflux and apnea. The referral also noted that K.M. had a mental health history and could not understand the training for the apnea monitor or the extent of J.J.'s health problems. K.M., however, received private apnea and CPR training with positive results. Nursing care was retained to supervise. J.J. was discharged to K.M. eighteen days later.
The second DYFS referral occurred when J.J. was approximately eight-months old. The referral noted that K.M. was leaving J.J. in the front of the beauty salon while she went to the back to have her nails and hair done. K.M. denied being inattentive. J.J.'s pediatrician reported that J.J. was in good health with normal growth and development.
Three referrals were received in 2001 indicating injuries sustained by J.J. while in K.M.'s care. On May 2, 2001, it was reported that J.J. had multiple bruises and scratches on her arms and legs. It was determined that the new family dog had scratched J.J. On May 25, 2001, there was a report that J.J. had suspicious bruising to her inner thighs. However, an investigation found only slight bruising to J.J.'s outer right thigh and that K.M. had not acted inappropriately. On October 10, 2001, it was reported that J.J. had a bruise on her forehead. J.J. and K.M. reported that the bruise occurred at Pizza Hut when J.J. ran into a wall. None of the referrals were substantiated. However, after the October incident, DYFS opened a case on K.M. as she reported feeling overwhelmed in caring for J.J., who was described as learning disabled with ADHD (Attention Deficit Hyperactivity Disorder) and ODD (Oppositional Defiant Disorder).
Five referrals were received in 2003, leading to J.J.'s first removal from K.M.'s care. On January 9, 2003, K.M. voluntarily sought hospitalization for herself as she was feeling overwhelmed. K.M. asked DYFS to place J.J. in a group home. Nicholas House was discussed as an option. However, when it came time for the interviews, K.M refused and J.J. remained in her care.
On April 25, 2003, J.J. left two voice mail messages for DYFS and dialed 9-1-1. It was later learned that K.M. was asleep during the telephone calls and J.J. had not been able to wake her. There was a substantiation of neglect. Approximately a week later, on May 3, 2003, the Dover Township police called in a referral that J.J. was left unsupervised in a movie theater lobby while K.M was watching a film. J.J. admitted that K.M. did not come out to check on her and that J.J. had befriended an "adult," who played video games with her. Neglect again was substantiated for lack of supervision.
On June 9, 2003, DYFS received a referral that J.J. was often outside by herself. The caller reported that J.J. was often unsupervised and would walk into people's homes without permission. The referral remained unsubstantiated. However, three days later, there was a referral that J.J. was wandering through her neighborhood alone. K.M. admitted J.J. was out of her sight for twenty minutes. Neglect was substantiated based on lack of supervision. The following day, J.J. was placed in foster care.
Six months later, J.J. was returned to K.M.'s care. J.J. complained that, while in the foster home, one of the children would touch her private parts and get on top of her and "hump" her. However, this sexual contact could not be conclusively determined.
J.J. was admitted to Trinitas CCIS Hospital on December 11, 2004, as a result of her out-of-control behavior. It was reported that J.J.: hit and kicked K.M.; tried to jump out of a car; and started to bite a fence. At the time, J.J. was not sleeping well and had rapid mood swings. J.J. also reported having nightmares and past suicidal behavior was noted.
In February 2005, J.J. was transferred to the Children's Transitional Residence (CTR) for further stabilization of behavioral and emotional difficulties, including aggressive and oppositional behavior. Medications were adjusted and initial progress was reported. K.M. insisted J.J. did not have ADHD and that Ritalin should be discontinued. Against medical advice, the Ritalin was discontinued. Thereafter, J.J. began to decompensate remarkably in the classroom.
During J.J.'s hospitalization, K.M. was provided with family therapy. It was noted that K.M. presented as limited developmentally and had an incongruent affect with visible anxiety. K.M. was unable to make decisions and had difficulty asserting herself in the parental role. Crises episodes were reported following J.J.'s visit to K.M. on overnight passes.
In September 2005, at K.M.'s request, but against CTR's recommendation, J.J. was discharged from CTR to K.M.'s care. CTR recommended that for J.J. to remain with K.M., arrangements should be made for a supervised housing situation, daily professional monitoring visits, or transition to a therapeutic foster home. Upon discharge, the Ocean County Care Management Organization (CMO) provided a parent mentor to assist K.M. with daily living and a behavior assistant for J.J.
J.J. was again hospitalized for three days in November 2005 for aggressive behaviors and suicidal ideations. Three weeks later, the behavioral assistant called DYFS to report that J.J. was at imminent risk because K.M.'s competency to deal with J.J. was questionable. J.J. had made threats to harm herself by spraying Windex in her eyes and drinking nail polish remover.
J.J. also had head-butted the dog and kicked K.M. and the behavioral assistant. It was further noted that J.J. was allowed to speak with her father, against whom a statutory rape charge was pending, on the telephone. DYFS had previously ordered that J.J. should have no contact with her father. The Dover Police Department escorted J.J. to the hospital. However, K.M. opted for J.J. not to be admitted. J.J. was returned home to K.M.'s care.
The following day, a psychiatric screener at Kimball Medical Center informed DYFS that he had received a call from J.J.'s elementary school reporting that J.J. was walking around the school stating that she was going to hurt herself and her mother. There was another referral on December 1, 2005, from Bayada nurses, reporting that they had concerns for K.M.'s mental health and that K.M. had forgotten that J.J.'s medication requirements had changed.
A DYFS representative visited the family home on January 20, 2006. It appeared to the representative that K.M. had not bathed in at least a couple of days. K.M.'s CMO case manager was present and stated that she was no longer pursuing a treatment home for J.J. because she felt K.M. was showing progress with the Individual Service Plan in place and had become a much stronger advocate for J.J. When asked by DYFS whether K.M. could care for J.J. on her own ...