On appeal from the Superior Court of New Jersey, Chancery Division, Family Part Ocean County, Docket No. FG-15-07-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges Parrillo, Lihotz and Messano.
This is an appeal from a final judgment of the Family Part terminating the rights of a mother, S.A., and father, J.A., to their eight minor children. Appellants argue that the court erred in terminating their parental rights because the New Jersey Division of Youth and Family Services (DYFS) did not prove each of the four statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. They also contend that the trial court erred in finding that aggravated circumstances of abuse existed to warrant an exception to the requirement that DYFS use reasonable efforts to prevent placement of the children under N.J.S.A. 30:4C-11.3, and, further, that their due process rights were violated because they did not receive sufficient notice of DYFS' intention to seek this finding. In addition, J.A. also argues that the trial court erred in not allowing a bonding evaluation between him and the children. Lastly, the children appeal, as well, and the law guardian argues that the court violated their due process rights by not admitting a sibling bonding evaluation into evidence. He also argues that, as to S.A., DYFS did not show aggravated circumstances, and, as to J.A., the court erred in excluding a bonding evaluation between J.A. and the children.
For the following reasons, we hold as to S.A.: (1) that her due process rights were violated by a lack of sufficient notice of the State's intention to seek a finding of aggravated circumstances; (2) that the court erred in finding aggravated circumstances of abuse because she did not use excessive corporal punishment on the children and J.A.'s actions cannot be imputed to her; and (3) that DYFS did not prove the four statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Therefore, we reverse the finding of aggravated circumstances of abuse and would require DYFS to make reasonable efforts to reunite her with her children. We also reverse the judgment of termination of S.A.'s parental rights and dismiss the guardianship complaint as to her.
As to J.A., we hold: (1) that his due process rights were violated by a lack of sufficient notice of the State's intention to seek a finding of aggravated circumstances; (2) that the trial court abused its discretion in refusing to allow a bonding evaluation between J.A. and the children; and (3) that DYFS did not prove the four statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, because the trial court did not have adequate information to make a determination under the fourth prong of the best interests test. Therefore, we remand for J.A. to prepare a meaningful defense and present evidence at a hearing to determine if aggravated circumstances of abuse exist, and also remand on the issue of the termination of J.A.'s parental rights, in order for the trial court to consider evidence of the bond between J.A. and the children as well as evidence of the bond amongst the children themselves.
S.A. and J.A. were married in September 1997 and are the parents of A.L.A., born November 14, 1996; S.S.A. and D.L.A., born April 17, 1998; J.N.A., born November 24, 2000; A.A.A., born January 2, 2002; J.L.A., born December 7, 2003; and J.D.A., born October 7, 2004. S.A. has two other children, J.M.S., born February 6, 1994, whose father is unknown, and N.C., born September 19, 1995, who is presently in the custody of her father, R.S., and is not part of this litigation.
At the outset, we point out that S.A. has not been diagnosed with a psychiatric, physical or mental disability. There is no documented proof that she has physically abused any of her children, and she has left an abusive relationship with her husband, J.A., on several occasions in the past in compliance with DYFS case plans and of her own volition. She sincerely desires reunification with her children, who were removed from her care and custody on January 30, 2006, and dispersed to three separate households where they remain to date. S.A.'s problems stem from her failure to protect the children from the excessive corporal punishment meted out by J.A. to one or more of their children over time, due, no doubt, to personality deficits for which she has consistently sought treatment, having successfully completed the programs and therapies recommended by DYFS and ordered by the court. Despite her earlier lapses, there is apparently substantial affection between her and her children. S.A. remains gainfully employed as a certified nursing assistant in a hospital and has a stable living arrangement.
DYFS' involvement with this family began on February 3, 1997 and continued well beyond the children's removal from appellants' home on January 30, 2006. In all, there were twelve referrals necessitating DYFS intervention, most of them involving claims of excessive corporal punishment inflicted by J.A. upon J.M.S., S.A.'s eldest child, who has a host of behavioral, academic and emotional problems of his own. In only five instances, however, was abuse by J.A. substantiated, and in only one of them was S.A. implicated by virtue of her inaction. In fact, following the very first referral, DYFS closed the case less than twelve months later, on March 24, 1997; offered no services to the family; and concluded that J.A.'s "punishment did not rise to the level of abuse, and there was no significant risk to the child."
Over the next two years, there were three referrals wherein abuse by J.A. was substantiated. On May 30, 1997, S.A. reported that J.A. choked her three times while she was holding four-month old A.L.A., and told her that he would get his daughter back from her even if he had to kill her. Although S.A. had obtained a restraining order against J.A., she apparently withdrew it because of financial concerns. DYFS substantiated emotional abuse of J.M.S., N.C. and A.L.A., obtained a food basket for S.A., but offered no further services.
On September 14, 1997, DYFS received a referral that N.C. had been brought into the hospital emergency room with a bruise on her buttocks, which appeared to be a hand print. J.A. admitted he had hit N.C. for running into the street. DYFS substantiated physical abuse by J.A. As a result of this finding, S.A. signed a case plan dated November 14, 1997, which stated that both parents would be psychologically evaluated and attend parenting classes, and that J.A. would attend anger management and would not be alone with N.C. The couple participated in these services.
The third such referral occurred on June 9, 1999, when J.M.S., who was five years old, stated that J.A. had beat him on the chest and left a small red mark. Some of the other children also reported that J.A. beat them with books on their feet, though no injuries were noted. DYFS substantiated abuse and advised that J.A. would have to leave the home. When J.A. refused to leave, S.A. agreed to take the children to live with her mother. On June 16, 1999, the couple signed a case plan, agreeing that J.A. would not live at home with the children and that all visits be supervised by DYFS; that he attend anger management classes and both parents attend parenting classes; and that family preservation services would be set up in the home.
The next referral wherein abuse was substantiated did not occur until almost five years later, on February 23, 2004.*fn1 In the meantime, however, the parties engaged in counseling and therapy and J.A. completed classes in anger management and parenting. In fact, in September and October 1999 alone, DYFS provided them with over thirty-five hours of counseling services over twenty-one sessions. The report of this therapy indicated that, while the parents had a strong belief in corporal punishment, they agreed not to use any objects on the children and to use spanking as a last resort. The therapist recommended that the family participate in outpatient counseling and that DYFS assist the family with a housing voucher or security money.
In accordance with a case plan, entered into with DYFS on November 29, 1999, the parties "participat[ed] in parenting and worked with Family Preservation [Services]." At the time, the parties were not living together, and S.A. and the children were residing with the maternal grandmother. By April 2000, the family received a housing voucher to assist in obtaining subsidized housing, and DYFS was providing day care services for the children. By December 2000, DYFS had closed the file on this family, and, apparently, J.A. returned to the home.
Six months later, on June 4, 2001, S.A. signed another case plan with DYFS, agreeing that J.A. would not reside in the home until further notice, pending the agency's investigation of another referral that later proved to be unsubstantiated. An amended case plan on November 8, 2001 provided that S.A. was to supervise all contact between J.A. and the children, that the family would participate in counseling through Family Preservation Services, and that DYFS would pay for childcare for the children through December 31, 2001.
Family Preservation Services worked with the family in November and December 2001 for more than fifty-one hours, divided over twenty sessions on anger management, parenting, and communication. The therapist noted that both S.A. and J.A. "worked hard and made progress toward each of their goals."
S.A.'s stress level had stabilized, and J.A. "no longer has the strong belief in corporal punishment, as he did at the beginning of this intervention." The parents began using the parenting skills taught to them and saw an increase in the children's compliance. Also, J.A. was using his new anger management skills to avoid violence and verbal abuse. The therapist recommended that DYFS continue to offer daycare and homemaker services and in-home counseling through the Children and Family Services (CAFS) program, and that J.M.S. get individual therapy to address his impulsivity, anxiety and depression. The therapist also noted that J.A. would benefit from individual therapy.
J.A. apparently returned to the home, as the parents engaged in CAFS in-home counseling beginning in January 2002. In a report dated June 24, 2002, the therapist noted that the parents had been "overall compliant with CAFS services." The parents' receptiveness to services "had been mixed, as the family questions the need for DYFS involvement, lacks insight regarding parenting issues and has other priorities." Both parents expressed good intentions toward their children; however, they had difficulty understanding the negative impact of their discipline. While there were no known incidents of inappropriate physical discipline, non-physical discipline remained a concern, "with the duration, severity, or method being inappropriate for the particular situation and/or the parenting expectations being unrealistic." The therapist recommended that marital counseling continue.
In a report dated September 11, 2002, the CAFS therapist noted that the parents remained cooperative with CAFS services. They continued to be "rather rigid and resistant to make changes, particularly when given directives." However, the parents did make gradual changes "as a result of their own processing session discussions and through their own motivation." While there was one incident when J.A. hit J.M.S. with a spatula, and some concern about the excessive duration of time-outs imposed by J.A., the therapist reported that "[t]hese instances of inappropriate/excessive discipline appear to be sporadic rather than the norm."
While both parents expressed positive intentions and care for their children, "[t]he father, in particular, lacks insight regarding the negative emotional impact of his parenting methods and self-centeredness on his children." There remained a risk of physical abuse, as J.A. indicated that "no one can tell me how to raise my children." The therapist concluded that the family had utilized CAFS to their optimum benefit level after eight months of in-home counseling, and, thus, treatment was terminated. The therapist recommended continued marriage counseling.
The fourth incident of substantiated abuse, on February 23, 2004, did not occur until about five years after the last one reported on June 9, 1999, and over two years after J.A. returned to the home. Within six months of his return home, however, there were two home visits by DYFS in July and August 2002. During the first visit, J.A. remained adamant about raising his children without outside interference, but, by the second visit, J.A. "vowed not to use physical force or corporal punishment on the children, and, in fact, apologized for his behavior and statements during [the] last home visit." There were also, in the meantime, referrals to DYFS that proved unsubstantiated, including one on November 4, 2002, in which DYFS closed the case one month later, and one on February 12, 2003, wherein the agency found that, in response to J.M.S. stealing $600 from his parents, J.A. "was very appropriate in his reaction to the current situation."
Because J.M.S. continued to exhibit serious behavioral problems, on June 2, 2003, S.A. discussed with DYFS the possibility of residential placement for her oldest child. She reported that he was stealing money from her again and was punching his siblings to the point that she was fearful he would hurt one of them. Although J.M.S. was not placed in residential placement, it appears that DYFS made application on the family's behalf. In a case summary dated July 30, 2003, a DYFS caseworker noted that:
The mother and stepfather are at their wits [sic] end and are requesting DYFS help place him in a facility to have him evaluated. [J.M.S.] also disobeys authority and has been having difficulty in school including his academics and behavioral problems. He also was stealing from school and getting into physical fights. [J.M.S.] often lies to adults when confronted with his misbehaving and then manipulates the situation into making the adults feel guilty for confronting him. [J.M.S.'s] problems at home are now having a significant impact on his siblings, as they are starting to act as he does, making it impossible for these parents to control the house. This family is reaching out for help and DYFS is requesting Nicholas House review his file for placement for evaluation. [J.M.S.] needs to be in a structured environment and learn to socialize and behave in an appropriate way with adults and other children.
As noted, the next referral wherein abuse was substantiated occurred on February 23, 2004, when the children's elementary school reported that A.L.A. had a mark on her right arm, D.L.A. had a mark on his left arm, and S.S.A. had a bruise on her left thigh. The children indicated that their father hit them with a belt, because they would not go to bed. Indeed, J.A. admitted that he had hit the children with a belt. According to the Referral Response Report:
He stated that their neighbor Rhonda was baby-sitting the children. Rhonda aloud [sic] the children to go to the park down the street. Rhonda told [J.A.] that she witnessed the children defecating in the park. [J.A.] stated that he got upset hearing that his children were taking "shits" in the park so he decided to hit them on the butt with the belt. [J.A.] started to get upset and cry in the interview. It appeared that the family is under a large amount of stress due to financial assets and the amount of children in the home.
S.A. denied witnessing the abuse of the children. She stated that she had told the babysitter to tell her when the children are bad and to keep her husband out of it because "he has a temper."
As a result of this incident, the parents signed a case plan agreeing that J.A. would not be unsupervised with the children, and that he would attend parenting and anger management classes. DYFS agreed to provide daycare services for the children until J.A. completed his parenting classes. The case was referred to the prosecutor's office but was closed with no criminal charges filed against J.A.
The final incident of substantiated abuse preceding the children's removal occurred about two years later, on January 27, 2006. J.M.S. claimed that he had been physically abused by J.A. "very often," and that J.A. punches him in the chest with a closed fist and throws him across the room. J.A. stated that the last time he had been hit was on January 24, 2006, when J.A. punched him in the chest about fifteen times and left red marks. J.M.S., however, did not exhibit any marks or bruises at the time of the agency's investigation.
J.M.S. further stated that his mother did not know about the incident, and that he never told her about the abuse because he was afraid the beatings would get worse. J.M.S. reported that all of his siblings were present for the punching and that his mother was not at home.
DYFS' interview of the children, N.C., A.L.A., S.S.A., D.L.A., essentially corroborated J.M.S.' account, including the fact that S.A. was not usually home when these incidents occurred, and the children did not tell her about them. In fact, J.A. admitted that he "popped" J.M.S. in the chest and that was something he did with his boys, and S.A. denied knowing anything about the abuse. DYFS substantiated abuse, finding that J.A. had punched J.M.S. in the chest, and, despite S.A.'s denial and her children's representations, also found that S.A. "knew about the abuse and allowed it to happen and failed to protect her children."
Consequently, DYFS established a case plan providing that J.A. would remain in the home, but had to be supervised by S.A. or by C.S., the maternal grandmother. Since most of the referrals related to abuse of J.M.S., the plan also provided that J.M.S. would stay with his maternal grandmother for the weekend to ensure that he was safe from retaliation. However, because of the parents' refusal to allow C.S. to supervise the home as they had agreed to in the case plan, DYFS determined that all of the children were at imminent risk of harm and removed them from the care of their parents on January 30, 2006.
Upon removal from the home, N.C. was placed with her birth father. J.M.S. was initially placed with his maternal grandmother, but, at the time of trial he had entered residential placement at Ewing Residential and is presently again living with C.S., who is committed to adopting him.
At the time of trial, A.L.A. and S.S.A. were placed together in a foster home. While their foster parents expressed a desire to adopt them, they felt it would be more appropriate for the girls to be placed in a home willing to adopt their brother, D.L.A., as well. Apparently, in June 2007, all three children were placed in a foster home willing to adopt them.
J.N.A. and J.D.A. reside together in a foster-adopt home, and their foster parents wish to adopt them. J.L.A. and A.A.A. reside together in a foster-adopt home about three miles from where J.D.A. and J.N.A. reside, and their foster parents wish to adopt them, as well.
At the time of their removal, the children were physically examined by Dr. Steven Kairys, a pediatrician. Kairys found no permanent injuries on the children, but voiced concern over marks on some of them. His medical examinations revealed that J.M.S. had a number of old bruises and three scars; D.S.A. had two scars, and A.A.A. had "long, linear, parallel injuries" on her back. Kairys also noted a burn on A.L.A.'s arm; however, DYFS had investigated this injury and found no substantiated abuse. The skeletal surveys of all the children were negative, meaning there were no new or old bone injuries. Kairys based his findings of abuse not only on the physical markings he observed on several of the children, but, as to the other children, on historical records or his interactions with them during the office visit, even though statements made by the child relating to any allegations of abuse or neglect, if uncorroborated, "shall [not] be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4).
Although the court, upon removal, initially denied both parents visitation, S.A. was soon granted such rights in March 2006, and she has since consistently abided by the schedule set by DYFS. On the other hand, J.A. has been continually denied visitation by the court, even on a supervised basis, and, to date, has not had visitation with his children since their removal. In fact, the court twice rejected requests by both J.A. and the law guardian for a bonding evaluation between J.A. and the children. In denying the first request, the court stated that "I'm not sending the children with, you know, in a room with him at this point in time." The judge's second denial, at a hearing on March 26, 2007, was no more elucidating, concluding only that she saw "absolutely no basis for it." The judge even rejected the law guardian's request that a psychologist be allowed to testify as to why a bonding evaluation with J.A. was critical and as to the absence of any harmful effect it would have on the children. Consequently, no bonding evaluations were completed between the children and their father; nor were any bonding evaluations completed between the children and their foster parents.*fn2 The November 8, 2006 report of the family's therapist noted that the children were experiencing separation problems.
Shortly after removal, the parents arranged counseling on their own with Marsha Gelb, a therapist at the Marilyn Moorehead Center for Counseling. In a December 5, 2006 letter to the court, Gelb noted that S.A. had begun weekly counseling sessions on August 14, 2006. They developed a treatment plan "to address her enabling patterns in her marriage and her inability to control her children's behaviors." She noted that S.A. "is implementing the therapeutic recommendations to make changes in her personality to improve her daily functioning."
Gelb reported that J.A. had consistently attended weekly individual sessions with her since October 5, 2006. He had "verbalized his desire to develop his parenting ability and improve his relationship with S.A." He "exhibits the desire to improve his past distorted beliefs and how they contributed to his past poor behaviors. [J.A.] displayed good progress in implementing changes in his ability to handle stress and anger." He "has taken responsibility for his poor choices and past dysfunctional verbal and physical behaviors." Gelb concluded that:
[J.A.] and [S.A.] understand the parental concern DYFS has and their past dysfunctional household. They both demonstrate the desire to learn new skills and are focused on changing their approach to anger, anxiety, and raising children. [S.A.] has visited her children every week and both have completed DYFS recommendations for parenting classes at St. Francis. They both have expressed deep pain around DYFS [sic] plan to end their parental rights. The [parents] love their children and want the courts to give them a second chance. It is my opinion that both [J.A.] and [S.A.] can change. They have demonstrated excellent progress in implementing new cognitive, communication and assertive skills.
Gelb thus suggested the court delay the guardianship proceeding to allow the parents to prove that they had changed.
Throughout the agency's ten year involvement with this family, S.A. and J.A. have submitted to a series of psychological evaluations, either DYFS-directed or court-ordered. As early as October 31, 1997, Dr. Richard Klein assessed S.A. to be "functioning within the high average range of measurable intelligence" and to "appear to be free of significant psychopathology." Klein concluded that S.A. was "competent to protect her children within the context of a normal risk." He noted, however, that "there is a history of domestic violence between [S.A.] and her current husband." He concluded that "[o]bviously, the family is in need of DYFS supervision as well as numerous support services." He specifically recommended that S.A. be referred to an outpatient mental health center for supportive psychotherapy.
As a result of his November 21, 1997 evaluation of J.A., Dr. Klein found him to be "functioning within the mild mentally retarded range of measurable intelligence." Klein concluded that J.A. "does not represent any threat to his children's safety. However, he does require extensive counseling in the inappropriateness of corporal punishment and the use of more productive methods of parenting and discipline." Klein recommended that J.A. be referred to Shore Line Behavioral Health, and that DYFS provide support and counseling concerning corporal punishment and parenting techniques. DYFS did not put these services into place.
In December 2001, in response to a referral to DYFS, Dr. Roger Raftery conducted psychological evaluations of both parents. J.A. admitted to an incident in which he had choked his wife after she confronted him about his cheating. J.A.'s test results indicated numerous problems with controlling anger and trusting others. In addition, he had numerous responses on the Child Abuse Potential Inventory (CAPI) that indicated he shared attitudes and beliefs associated with an increased risk to be physically abusive. Dr. Raftery concluded that J.A. had a significant anger management problem and needed "on-going (long-term) professional counseling, preferably individual, to address his issues and to learn more effective coping strategies." But DYFS did not make a referral for individual counseling for him.
Dr. Raftery noted that S.A. stated she was not sure what to believe about the referral incident, in which J.A. was accused of striking J.M.S. with a fishing pole, and he found this reaction "remarkable," surmising that S.A. may have been fearful of J.A. Raftery also recommended couples' therapy.
The parents also submitted to more recent psychological evaluations conducted in anticipation of the guardianship proceeding. S.A. was evaluated by Dr. Alan Lee, the State's expert; her own expert, Dr. David Bogacki; and the law guardian's expert, Dr. Maureen Santina. J.A. was also evaluated by Drs. Lee and Santina, as well as by his expert, Dr. Jesse Whitehead. We first discuss S.A.
Lee conducted two evaluations of S.A., on April 17, 2006 and again on November 17, 2006. In her first interview, S.A. described her relationship with J.A. as "okay," although she acknowledged that, in the past, it was "horrible." She reported his multiple instances of infidelity, controlling tendencies, and treating her two children from past relationships differently than their own children. When questioned why she is not separated from her husband, "she explained financial concerns and reservations and also her general fears that she cannot do it alone raising the children." Significantly, however, while she said she intended to continue her relationship with J.A., "[s]he indicated upon questioning her willingness to end her relationship with [J.A.] to preserve the opportunity to have the children returned."
S.A. had generally adequate cognitive and intellectual functioning and no evidence of severe overall deficits or disease. But "she presents as rather limited in terms of her personal insight and awareness and shows a number of rather immature personality and emotional traits." She often felt "helpless, passive, and unable to function on her own without more seemingly powerful or domineering individuals such as male partners."
Lee noted that, despite conceding a history of domestic violence and her husband's excessive physical punishment of the children, S.A. still appeared reluctant to end her relationship with him. She "continues to exercise poor judgment and decision making," and she "would likely re-expose the children to further traumatic experiences if returned to her care." Therefore, Lee did not support her as an independent caregiver to the minor children.
Lee recommended individual and group psychotherapy to address her history of domestic violence victimization, poor self-esteem, extreme emotional neediness and poor judgment. She should complete a DYFS-approved parenting education program, anger management program, and domestic violence victim education program. Lee recommended that any contact she have with the children be supervised.
In his second psychological evaluation, Lee found that, while S.A. had participated in some services, "it remains rather equivocal and even doubtful as to how much progress she may have genuinely had." Lee still had concerns about her functioning, "especially in her apparent minimization of [J.A.'s] inappropriate physical punishment and aggression towards the children." In addition, the Child Abuse Potential Inventory suggested that she resembled other known child abusers, raising additional concerns. Even if she were not inclined, herself, to inflict physical harm on the children, Lee had significant concerns about her inability to protect the children. He did not currently support her as an independent caregiver to the children.
Contrary assessments were rendered by Drs. Bogacki and Santina. Bogacki found no evidence of a thought disorder or an incipient psychotic process, although S.A. was socially withdrawn and thought in simplistic and concrete terms. Bogacki diagnosed her as narcissistic and paranoid and having general anxiety disorder. He opined that she had no enduring emotional characteristics that would prevent her from protecting her children.
In her psychological evaluation on March 21, 2007, Dr. Santina administered two tests to S.A.: the personality assessment inventory (PAI) and the child abuse potential inventory (CAPI). S.A.'s PAI profile did not indicate any clinically significant elevations on any of the scales. There were no indications of psychotic or manic symptomatology, antisocial personality traits or substance abuse problems. She produced elevated scores on the CAPI, "indicating that her response pattern resembled that of known child abusers."
S.A. displayed some difficulties concentrating and appeared mildly depressed. However, she showed no psychopathology or cognitive limitations that would interfere with her ability to care for her children. According to Dr. Santina, S.A. had cooperated with treatment providers and evaluators for a substantial period of time and showed a strong motivation to be reunited with her children. Dr. Santina recommended delaying the ...