April 23, 2009
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.S., O.S. AND K.S., MINORS.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.S., O.S. AND K.S., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-76-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 2, 2009
Before Judges Carchman and Sabatino.
In this consolidated matter, M.S. and M.M., the biological parents of three minor children, appeal the Family Part's termination of their respective parental rights following a guardianship trial. We affirm the final judgment with respect to the biological mother, M.M., but vacate as to the biological father, M.S., and remand for further proceedings.
We summarize the pertinent facts that emerged at trial. M.S. and M.M. had a lengthy unmarried relationship which resulted in the birth of three children:*fn1 a daughter, Kristen, born in February 1999; a younger daughter, Olivia, born in June 2001; and a son, Andrew, born in November 2003. The record does not indicate that the parties have any other children. M.M. and M.S. apparently cohabitated with one another for approximately nine years.
All three children have behavioral issues, and two of them have been classified with special needs. Kristen, the oldest child, has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Occupational Defiance Disorder. She has displayed sexualized behavior. At the time of the guardianship trial she was nine years old, but only had recently started to read. The son also has ADHD, as well as an attachment disorder and problems with his vision. At the time of trial, Andrew was enrolled in a special education preschool. Olivia, the middle child, has not been diagnosed with special needs but has received in-home counseling to address her behavioral issues.
The Division of Youth and Family Services ("the Division") first became involved with the children in April 2006, when they were living with M.M. and her boyfriend, W.R., at an apartment in New Jersey rented by M.M.'s mother. M.M. and the children had moved to that apartment in March 2006. Prior to that time, M.M. and the children had lived in Florida, at times cohabitating with the children's father, M.S.
During the time that the children and their parents were all living in Florida, the Florida Department of Children and Families ("the Florida DCF") had investigated reports of wrongful conduct within the parties' household. The Florida DCF first became involved with the parties on November 8, 2005. At the time, M.S., M.M., and the children were living with M.M.'s maternal grandfather. The Florida DCF came to the premises out of concern that the oldest child, Kristen, was "being exposed to violence in the home." According to the Florida agency's investigative report, it had received information that "on several occasions, from 2003 and 2005, [Kristen] has witnessed physical violence between the mother . . . and the father."
For example, the Florida DCF report indicated that on October 4, 2005, the police were called because M.S. had pushed M.M. to the ground during an argument and had begun to choke M.M. with a crowbar. M.S. also reportedly smashed the windows of his vehicle and attempted to attack the maternal great-grandfather with the crowbar. M.S. fled after the maternal great-grandfather fired "two rounds from a [.]22 [caliber] handgun to protect himself and his granddaughter." The report also noted an incident on November 22, 2005, in which M.M. hit Kristen in the eye with a fly swatter, allegedly because Kristen "didn't follow directions."
The Florida DCF also received allegations from the maternal great-grandfather that M.M. would be "gone all night" and would leave the children in the care of the paternal great-grandfather. The maternal great-grandfather further alleged that M.M. did not seek medical care for [Andrew] one night and instead "went out at 4:00 A.M." and smoked marijuana; and upon returning she screamed and yelled at the children and used profanity. The maternal grandfather also furnished documented evidence of injuries to the children allegedly caused by their mother hitting them with her shoe.
The Florida DCF also had concerns about the parents' criminal histories. According to the agency's records, the father, M.S., has an extensive criminal record dating back to 1992, including apparent convictions for: grand theft of two separate motor vehicles, possession and delivery of cocaine, battery, multiple burglaries, trespass, obstructive arrests, petty theft, possession of an open container, and driving with a cancelled license.*fn2 M.S. was subsequently convicted in 2006 of aggravated battery with a deadly weapon and was incarcerated in Florida. The mother also had a prior conviction for a marijuana offense.
The Florida DCF did not remove the children from M.M.'s care at the time of its initial involvement in November 2005 because it apparently felt that the risks of harm were tempered by the fact that M.S. was then in jail, and also because the paternal great-grandfather was then living with M.M. and was "protective of the children."
On March 2, 2006, M.M. was arrested for assaulting W.R., following an argument in which they were both intoxicated.*fn3 Nine days later, on March 11, 2006, M.M. was charged with evading arrest by giving the police a false alias.*fn4
On April 17, 2006, M.M. was arrested for aggravated assault after the Kearny Police Department received a report that she had stabbed her ex-husband, A.C. At the time of the stabbing, A.C. had been dating M.M.'s own mother. Evidently, M.M. had attacked A.C. after an altercation arose between A.C. and M.M.'s then-current paramour, W.R. The stabbing was observed by all three children.
The Kearny police notified the Division of M.M.'s arrest. The police observed that there were nine people, including the parties' three children, living in the two-bedroom apartment and there was only one bed on the premises. The police also noted that the conditions inside the residence were "filthy" and there was "trash all over the floors." A Division caseworker visited the apartment that same night, and he noted that the apartment was "overcrowded," although it "was not filthy as indicated in the [police] report." The caseworker also noted that "[t]he children were sleeping on [a] mattress laid out in the dining area of the apartment, while the other sets of mattress[es] were laid out in the floor of the living room."
Initially, the Division left the children with the maternal grandmother, who was then residing at the Kearny apartment. However, the children were removed the next day, on April 18, 2006, because the maternal grandmother disclosed a criminal history involving illegal drugs, and also because W.R., M.M.'s current paramour, admitted to drug use in the home. The maternal grandmother thereafter tested positive for cocaine, opiates and alcohol.
On April 20, 2006, the Division filed an order to show cause in the Family Part under an "FN" docket against M.M. and M.S., seeking protective custody of the three children. Initially, the Division was not aware of the whereabouts of M.S., who had been recently incarcerated in Florida. Several weeks later, the Division located M.S. in Florida. On May 17, 2006, a week before the return date on the order to show cause, the Division served M.S. with a letter notifying him of the pendency of the Division's application in the Family Part. The letter noted that M.S. had "advised [the Division] that [M.S.] was currently between residences," and it instructed M.S. that "it is very important that [he] remain in contact with [the Division] to discuss the progress of the case."
On May 24, 2006, M.S. confirmed receipt of the pleadings in the protective services case. He advised the Division that he was in jail at the time the children were removed. He stated that he had not talked to his children in nine months and requested a conference call with them. M.S. provided a telephone number where he could be reached.
In response, the Division told M.S. that "both of his concerns will be discuss[ed] with the DAG [Deputy Attorney General] and he will receive a call from the Division tomorrow." The next day, on May 25, 2006, the Division contacted M.S. and informed him that the DAG was not working that day and would not be in until the week after in order to discuss his concerns. The Division told M.S. that he would receive a call "as soon as the case is conference[d] with the attorney." The Division also provided M.S. with an 800 phone number. M.S. "thanked [the] worker for returning [his] call and stated [that] he can always be reached at [the phone number he had provided the previous day]."
Despite these initial communications in May 2006 and the commitment to get back to M.S., the record suggests that neither the Division nor anyone from the Attorney General's Office made contact again with M.S. until July 25, 2007, some fourteen months later. The purpose of the Division's July 2007 communication was to notify M.S. that a court date regarding the children was scheduled in August 2007, and that the Division had scheduled an appointment for M.S. to undergo a psychological evaluation in advance of that hearing.
The order to show cause on the protective services application was heard on May 24, 2006. At that time, M.M. appeared in court and stipulated through her counsel that the children had been removed because of the assault against A.C. for which she was arrested. The trial court granted the Division custody of the three children. It also ordered M.M. to undergo a psychological and substance abuse evaluation, and to attend domestic violence counseling and parenting skills training.
M.M. underwent a substance abuse evaluation in June 2006 and tested negative. In July 2006, she appeared for a psychological evaluation with Daniel Bromberg, Ph.D. In his lengthy report, Dr. Bromberg stated that:
[M.M.] presented as an emotionally unstable woman with a history of limited insight and poor judgment. [M.M.] has traits of antisocial personality disorder and histrionic personality disorder. She described her current emotional functioning as "depressed." She has limited frustration tolerance and difficulty inhibiting her aggressive impulses. She appears minimally attached to her three children and has, historically, placed her own needs before theirs. [M.M.] had an unstable and tumultuous childhood . . . . [M.M.]'s current parenting practices model those of her childhood in that she endorses the use of corporal punishment . . . . At this time, [M.M.] is not able to appropriately care for and protect her children. She is an emotionally labile and impulsive adult. Her aggressive and violent behavior poses a significant risk with her children until she demonstrates emotional stability via psychotherapy, medication management, and parenting classes . . . . Based on her limited insight into how treatment could be beneficial to her, her prognosis in therapy is poor.
M.M. subsequently enrolled in therapy, intensive parenting classes, and domestic violence training.
After initially failing to appear for three appointments, M.M. attended a psychiatric evaluation in August 2006 with Ernst Christian Gauderer, M.D. Dr. Gauderer reaffirmed the findings of Dr. Bromberg's earlier psychological evaluation. The psychiatrist noted that the "patient [M.M.] claims to be motivated, but at the same time, refuses to even consider the possibility of using medication that would help her to address her impulsive behavior." Dr. Gauderer concluded that "[t]he prognosis is poor." The psychiatrist recommended against reunifying the children with M.M.
Having failed to attend parenting courses, despite a warning that she must do so, M.M.'s registration in that program was cancelled in August 2006. That same month, M.M. moved back to Florida and took up residence with her grandparents.
M.M. eventually completed an intensive parenting program in Florida on February 1, 2007. By February 5, 2007, she had attended one psychological assessment and four therapy sessions, but had cancelled or not shown up for four other sessions. She also was suspended once from her domestic violence classes for lack of attendance, but was eventually reinstated. As of the time of trial, M.M. had completed fourteen out of twenty-six of such classes.
In January 2007, the Florida DCF approved reuniting the three children, who had been in various foster or treatment homes since the time of their removal in April 2006, with their mother in Florida. Specifically, the Florida DCF approved the maternal great-grandfather's house, where M.M. was then living, as a suitable residence for the children. The Florida agency notified the Division of its determination, and the Division made an appropriate application to the Family Part. Consequently, on February 14, 2007, the Family Part ordered that the children be returned to M.M. in Florida, finding that she had made sufficient progress at that point in complying with the Division's recommendations.
Unfortunately, the children needed to be removed from M.M.'s care a second time. The removal occurred in July 2007, five months after the February 2007 placement, following an updated home study conducted by the Florida DCF. The home study was prompted by reports that one of the children was not attending counseling or taking her medication.
The home study revealed that M.M. and the children had left her relative's premises and had moved into a two-bedroom apartment with W.R. The three children were all sleeping in the same bedroom. M.M. claimed that W.R. was not living in the home, but admitted that "he stays there sometimes." In addition, the Florida caseworker remained concerned that the oldest child, Kristen, was not attending counseling nor taking medication.
Moreover, the Florida DCF conducted a background check of W.R. and discovered that he had been charged by M.M. with committing domestic violence on May 24, 2007. According to the police report, M.M. was driving with W.R. and the youngest child, Andrew, who was then age three. M.M. and W.R. were arguing. W.R. then "escalated the confrontation by grabbing [M.M.] around the neck and pulling her hair. He then grabbed the steering wheel and tried to step on the accelerator trying to cause [M.M.] to crash[.]" According to the police report, W.R. then stated that he "would kill them all." The Florida DCF contacted the Division on July 11, 2007, and reported these revelations.
Having received this alarming information from Florida, the Division instructed M.M. that W.R. "must leave the home immediately" and move Andrew into her bedroom. The next day, July 12, 2007, the Florida DCF contacted the Division and requested that the children be returned to New Jersey. That same day, the Division sought and was granted an order of removal in the Family Part. At the ensuing trial, a Division caseworker testified that at the time of this second removal, W.R. was found hiding in the closet.
After the children were removed from her care a second time, the Division enrolled M.M. in several additional programs to focus upon anger management, domestic violence and parenting skills. M.M. did not attend these classes until several more referrals were made.
M.M. was also referred to the Family Service Bureau of Newark ("the Bureau") for a mental health assessment on November 21, 2007. Based on its evaluation, the Bureau recommended that M.M. attend individual therapy sessions, take prescribed psychotropic medication for depression and anxiety, and attend psychotropic medication management sessions. Subsequently, the Bureau terminated M.M. from its services, due to her lack of attendance.
M.M. attended an updated psychiatric evaluation in January 2008 with Dr. Gauderer. His assessment of M.M.'s capacity to parent continued to be unfavorable. In his report, Dr. Gauderer noted that M.M. was "again . . . involved with someone on whom she had to call the police, according to her, because he was drunk in her car. Basic issues that demonstrate well-functioning such as holding a job and being self sufficient has still not occurred, and she still lives at the expenses of others." Dr. Gauderer also noted that "therapy [for M.M.] might prove beneficial, but it is questionable [since] she has not shown significant change" and that "medication might prove beneficial as she herself stated, but she is noncompliant with treatment and is not motivated in being started or restarted on medications." The psychiatrist concluded that M.M.'s prognosis remained "poor," and that "[r]eunification with her children would not serve the best interests of those children and would only satisfy the patient's need [and] will most likely perpetuate the cycle of abuse, neglect and poor parenting."
At trial a Division caseworker related another disturbing incident concerning M.M. She testified that M.M. had visited the children shortly before trial and had asked the worker for paper and a pencil so that the children could write a letter to the judge. According to the caseworker, the DYFS supervisor who was at the scene advised M.M. not to tell the children what to write to the judge. M.M. then "became very explosive with the supervisor." M.M. asserted that the Division "doesn't need to tell her what to do." She subsequently called W.R. and told him to come over before she "killed" the caseworkers, "that she was going to go to jail today and she was upset."
According to the caseworker, M.M.'s outburst alarmed the children. Olivia hid behind the worker and asked her to, "please hide"; Kristen ran out the room, saying "I don't want to be in there"; and Andrew was trying to be as loud as his mother. After this particular visit was then terminated, the caseworker spoke to M.M. to try to calm her down. The worker explained to M.M. that it was inappropriate for her to be so angry to cause the children to become afraid. M.M. acknowledged to the worker that she was not aware of her surroundings when she had gotten angry.
By comparison, the record is sparse with respect to services extended by the Division to the children's father, M.S. As we have already noted, there was a fourteen-month gap between May 2006 and July 2007, in which there was no contact between the Division and M.S. During that interval, M.S. was not provided by the Division with any opportunity to have contact with the children. M.S. contends that between the children's first removal from their mother in April 2006 and their second removal in July 2007 he called the Division on several occasions, was allegedly told that they were unsure of his identity, and that they could not speak to him because the case was confidential.
In the meantime, M.S. attempted to stabilize his own life. He obtained a job with a food manufacturer, where he has worked for the past three years. He has resided with his present girlfriend, T.S., and her teenage son for the past three years. T.S. herself works full time, as a security guard. The Florida DCF did not raise any concerns about the ability of M.S. and T.S. to care for the teenage son. However, the Florida DCF rejected M.S. as a placement for his own three children because of his criminal record. M.S. contends that he has not had the financial resources to travel from Florida to New Jersey to visit the children.
About two or three months prior to the guardianship trial, the Division supplied M.S. with a reunification plan that required him to complete parenting skills classes, anger management training, psychological evaluations, and counseling. M.S. was unable to procure those services through the Florida DCF because it had found him ineligible for them due to his criminal convictions. Nevertheless, M.S. attempted to fulfill the Division's case plan by obtaining services in Florida at his own expense. In particular, M.S. completed parenting skills classes. He also received mental health counseling at a facility in Tampa Bay, where he has both an assigned counselor and a treating psychiatrist. The psychiatrist has diagnosed M.S. with schizophrenia.
M.S. provided the Division with copies of his treatment records, which indicated that he participated only twice in therapy in the three months preceding the trial. As of the time of trial, M.S. had not yet obtained anger management counseling, allegedly due to time constraints.
The Division funded a trip for M.S. to come to New Jersey for a pretrial psychological evaluation with Robert James Miller, II, Ph.D. That evaluation was conducted on August 30, 2007. Dr. Miller opined in his report that M.S. was not presently a suitable caretaker for the parties' children. Dr. Miller observed that M.S. demonstrates "a lack of insight, and externalizes blame for his own behavior onto others." Dr. Miller noted that M.S.'s "failure to pay child support, and his inability to provide a thoughtful custody plan for his children indicate that [M.S.] has not demonstrated a pattern of behavior that would indicate he can provide safety and emotional nurturance for his children." Noting M.S.'s acknowledged "long history of psychological disturbance and treatment," Dr. Miller concluded that M.S.'s anger problems would "likely compromise his ability to provide parental care and emotional nurturance for his children."
At trial, M.S. provided proof that he had attended therapy sessions from November 2, 2007 through March 14, 2008, and that he was scheduled to attend another therapy session on April 25, 2008. He also attended a psychiatric evaluation on February 28, 2008, in Florida, with H. Botros-Mikail, M.D., a psychiatrist who is on staff at the same clinic in Tampa Bay where M.S. has been receiving treatment.
Dr. Botros-Mikail diagnosed M.S. with schizoaffective disorder by history. The psychiatrist noted that M.S. had been first treated in the clinic in 2005 and had been prescribed medication. Dr. Botros-Mikail indicated that M.S. had since ceased taking the medication and reported that M.S. had been "looking well, with no psyche [sic] problems." The report further indicated that "since he [M.S.] was separated from his ex-girlfriend [M.M.], his life was getting much better and stable," M.S. did not relate "any psychotic, depressive or manic symptoms," reported "good mood," and "feels fine now and happy with his job." The psychiatrist further noted that:
[a]fter discussing various treatment options with the patient [M.S.], the patient chose to continue seeing his therapist for psychotherapy and counseling. He declines starting any psyche medicine at this time saying that he is feeling well, with no psychotic symptoms or mood symptoms, and he does not want to start any medication at this time. The patient was counseled to go [to] the ER or call 911 in an emergency and call the clinic in case of any problems or concern[s] and the patient does not need any follow[-]up appointment with the doctor at this time.
M.S. finished his parenting skills classes in January 2008, about two months before the trial began. The Division provided him with the opportunity to visit with the children when he came to New Jersey to be assessed by its mental health experts. It also arranged telephone contact for him with the children, who remained in foster care or treatment homes.
On January 28, 2008, the Florida DCF completed an interstate home study of the residence of M.S. and T.S. The assessment of the dwelling was generally positive, the only concern being its inadequate size. M.S. stated that he would "look for a larger three-bedroom home but would prefer assurances that the children would be coming home to him prior to the change of new placement." The study alluded to M.S.'s criminal history, but stated that "it should be noted that [M.S.]'s last offense was in 2005." The Florida caseworker also wrote that the Division's "goal may be changed to [a]doption and that the case will be going to [t]rial," and noted that "[i]f this is accurate, the purpose of this home study is unclear." Consequently, the Florida DCF denied M.S.'s home as a placement "due to [M.S.]'s criminal history and New Jersey seeking possible adoption."
The Division investigated various relatives, such as the children's maternal grandmother, maternal uncle, paternal aunt and the maternal great-grandfather, as potential resources to the children. None of these resources proved fruitful.
Dr. Bromberg conducted psychological evaluations of Kristen and Olivia for the Division on June 6, 2006. He noted that Kristen engages in a variety of inappropriate sexual behaviors [such as]: rubbing her foster parent's legs; kissing a peer after he had declined to be kissed; inquiring about the foster parent's sexual interactions; describing having witnessed her biological mother having had intercourse; masturbating in the bath; and spreading her legs in front of the foster father and pretending to masturbate.
Dr. Bromberg diagnosed Kristen with ADHD and Anxiety Disorder. Kristen also had frequent nightmares and had disclosed a history of physical abuse by M.M. Kristen had been diagnosed with ADHD when she was four years old. She had a neurological examination on July 7, 2005, following a "seizure-like episode." Subsequent re-evaluations showed no further neurological issues.
Regarding Olivia, Dr. Bromberg stated that she displayed "some traumatic symptomatology" due to her exposure to domestic violence. Olivia has also exhibited some behavioral problems, including a failure to follow rules and bullying. On September 7, 2007, it was also reported to the Division that "[Olivia] disclosed to her foster mom that she saw [Kristen] and [Andrew] having sex . . . that [Kristen] put [Andrew]'s penis in her vagina . . . and [Olivia] stated that they saw mom and dad do it before."
Dr. Bromberg also noted that Andrew exhibited "extreme acting out behaviors [such as] bit[ing], kick[ing] and throw[ing] objects at staff members and guardian." Andrew was diagnosed with Reactive Attachment Disorder.
On August 27, 2007, a psychological evaluation of Andrew was conducted by Dr. Miller. Andrew was four years old at the time. With respect to possible physical or sexual abuse, Dr. Miller reported that [Andrew] stated, "I get slapped on my face and hit with shoes, I am bad." He identified his mother as slapping and hitting him with "shoes and a belt." He showed the evaluator where on his body he was hit, pointing to his "bootie, legs and face." He began to hit himself in the face with his open hand in an aggressive way in an attempt to show the evaluator how his mother had hit him.
Dr. Miller concluded that it is probable that his biological mother [M.M.] has physically abused [Andrew and he] has been exposed to violent behaviors directed toward his body and exposed to aggressive behavior modeled by adults that has compromised his cognitive, affective and language development.
Dr. Miller also noted that Andrew "is delayed in his capacity to play and is overwhelmed by his anxiety related to insecure and disrupted attachments." Therefore, the doctor recommended that Andrew be placed in therapeutic home placement.
The three children have each resided in multiple and separate placements since the time of the Division's initial removal of them from their mother's custody in April 2006. We discuss them individually.
Kristen has been in five or six placements. Prior to the February 2007 failed reunification with M.M., Kristen had been placed with approximately four successive foster homes and a treatment home. After she was removed from her mother the second time, Kristen was placed back into the prior treatment home and remained there. The treatment home caretakers did not wish to adopt Kristen. However, in a footnote to its brief on appeal, the Division represents that Kristen has since been moved to a new treatment home in October 2008, and that the family in that home is allegedly interested in adopting her. There is no written corroboration of that contention, which substantially post-dates the trial proofs and the entry of final judgment in April 2008.
Olivia was placed in two foster homes before the February 2007 reunification with M.M. After she was removed from her mother in July 2007, Olivia was placed in another foster home which, as of the time of trial, was supposedly interested in adopting her. However, for reasons that are unclear from the post-trial record before us, Olivia was apparently placed with a different foster family in July 2008 and, according to the Division's appellate brief's footnote, that placement is considered an "adoptive" foster home.
Lastly, Andrew has been in five placements since the time of the Division's initial intervention. Before returning to his mother in February 2007, Andrew lived in two successive foster homes. After the reunification with M.M. failed, Andrew was placed in another foster home, but that arrangement also failed. Consequently, Andrew was placed in a treatment home in August 2007. The Division's footnote indicates that Andrew has since been placed in a new treatment home in July 2008, and that family allegedly wants to adopt him.
The court heard three days of testimony at the guardianship trial, which took place on March 31, April 1, and April 3, 2008. The court also considered numerous written reports and other exhibits. The Division relied upon the testimony of a caseworker and its adoption specialist, as well as the expert testimony of a psychologist, Frank Dyer, Ph.D., who had evaluated the parties and the children prior to trial. The mother, M.M., did not testify, but she presented psychological opinions from a defense expert, Albert Griffith, Ph.D., and brief testimony from the director of a child skills center where she had taken classes. The father, M.S., testified on his own behalf. As the result of circumstances we shall discuss, M.S. was unable to present an expert witness.
In their testimony, the caseworker and the adoptive specialist traced the pertinent chronology of the Division's involvement with the parties and their children. They discussed in particular the efforts made initially to reunify the children with their mother and, thereafter, to identify alternative placements for them. The caseworkers noted that both parents had each indicated a desire to raise the children. M.M. told the Division that she planned on marrying W.R., and that she and he would like to co-parent the children. M.S. likewise indicated to the Division that he wished to be the children's custodian, with the assistance of his live-in girlfriend, T.S., in Florida.
The Division's expert who testified at trial, Dr. Dyer, conducted psychological evaluations of M.M., M.S., their respective paramours (W.R. and T.S.), and the children. Dr. Dyer also performed bonding evaluations with the children and their respective parents. He did not, however, perform bonding evaluations as to the children's respective foster and treatment homes except for Olivia and her then-foster mother.
With respect to M.M., Dr. Dyer concluded that she was not able to provide a safe and appropriate home for any of the children to a reasonable degree of psychological certainty. Dr. Dyer stated that his opinion largely was based upon [M.M.]'s history of violent behavior, that she herself indicates was often facilitated by alcohol abuse either in the form of a structured rehabilitation program or a self-help group such as AA, and also the results of [M.M.]'s psychological evaluation that indicate that she has a very poor impulse control, that she has an extremely high level of anxiety, that she's prone to depression, and that she has a personality disorder and has both antisocial and borderline elements.
Dr. Dyer explained that M.M.'s psychological profile [a]dds up to an individual [who] tends to be preoccupied with her own needs, is unable to place the needs of a child above her own, is contemptuous of laws, rules, or any restrictions, and will go ahead and do something inappropriate anyway in spite of prohibitions, and also an individual who lacks the requisite degree of emotional stability and impulse control to be able to provide a consistently safe nurturing and appropriately structured environment for any child.
He also noted that, specifically for Kristen and Andrew, M.M. did not "possess adequate parenting capacity for . . . a special needs child who would necessarily be more demanding of a caretaker."
Dr. Dyer further concluded that M.M.'s paramour, W.R., was not capable of providing a safe and stable home for the children. He referenced in this regard the bonding evaluation that he had conducted of M.M. and W.R. with the three children. Dr. Dyer acknowledged that Kristen and Olivia showed affection for M.M. and showed a bond with her. On the other hand, Andrew showed "a highly conflicted relationship with his mother, and . . . that there was no evidence of much of an attachment at that point." Dr. Dyer further noted that W.R. "does not figure prominently in the emotional lives of [Kristen and Olivia]" but rather, "their father figure is [M.S.]."
Dr. Dyer likewise opined that the children's father, M.S., was not able to provide a safe and stable home for the children. Dr. Dyer referred to M.S.'s criminal history, his past domestic violence involving M.M., and incidents of violence where he had destroyed M.M.'s property, including windows in a car that he had purchased for her, as well as furniture and dishes. Dr. Dyer particularly noted a psychotic episode that occurred in November 2004, in which the police in Florida had "encountered [M.S.] ranting and raving about equations and other matters on the lawn of the house." That episode resulted in M.S.'s temporary psychiatric commitment.
Dr. Dyer noted that he had been unsuccessful in obtaining M.S.'s psychiatric records. However, based on his observations of M.S., a review of prior psychological reports, and M.S.'s overall history, Dr. Dyer offered the impression that M.S. "is suffering from schizophrenia, chronic undifferentiated type, and that he has little insight into his condition and is not apt to comply with treatment to the point where [Dr. Dyer] might be comfortable that his condition was being adequately managed through psychiatric care." Dr. Dyer's psychological testing of M.S. revealed that he was functionally illiterate and that he had a "compromised ego functioning." Based on these sources for analysis, Dr. Dyer concluded that M.S. presents a "poor prognosis for any kind of positive change in response to counseling, therapy, rehabilitation, training, anger management, or whatever other intervention might be attempted."
Dr. Dyer did acknowledge that M.S.'s girlfriend, T.S., was serving as an adequate parent to her own teenage son. Even so, Dr. Dyer expressed concern that T.S. was passive in her relationship with M.S., and that she had a "total incapacity to reign in any of [M.S.]'s aggressive behavior or psychotic behavior if he should suffer another regression in his ego functioning."
As to the bonding evaluation, Dr. Dyer conceded that all the children were happy to see M.S. and T.S. and that "they expressed a great deal of enthusiasm for this contact with their birth father." The psychologist particularly noted that Andrew "was enthusiastic to see his father . . . [and] did not display any of the oppositional or aggressive behavior" that he had exhibited during the separate bonding evaluation with his mother, M.M.
Dr. Dyer privately interviewed Kristen and Olivia. Both girls indicated a desire to live with their mother, M.M. During the bonding evaluation, Olivia expressed "a preference to return to either one of her birth parents, and that she does not want to be a foster or an adopted child." Kristen and Olivia prepared letters to the trial judge confirming their desire to live with M.M.
Dr. Dyer recognized that if defendants' parental rights were terminated, Kristen and Olivia would suffer "an unavoidable painful loss" because "they both have a very solid, well-defined idea of who their birth parents are to them [and] they have as part of their identities of being members of the respective birth parents' families." Dr. Dyer further acknowledged that Andrew also would "probably experience something of a loss if he could no longer have contact with his father [M.S.]. Dr. Dyer contended the impact from such a severance would not be as severe" because of his young age and his lack of prior attachment to M.M.
Dr. Dyer recommended adoption of all three children because the "safety of the children overshadows every other consideration in this case." Dr. Dyer recommended against any further delay because the "children have been moved around so many times, and have experienced such trauma and disruption, that the paramount need . . . for all three children [was] permanency."
In her own defense, M.M. presented the expert testimony of Dr. Griffith, also a clinical psychologist. Dr. Griffith conducted a psychological evaluation for M.M. on March 6, 2008. Dr. Griffith generally agreed with Dr. Dyer's overall psychological impression of M.M. However, Dr. Griffith opined that M.M. needed more oversight from the Division, and proffered that M.M. "could be given six months and reevaluated at the end of that time to see where she stood." Dr. Griffith's prognosis was that "there was some probability that [M.M.] could earn the reunification within the sixth-month period of time." With regard to W.R., Dr. Griffith noted that "assuming that [M.M.] deals with [W.R.] firmly, that is to say that he's either sober and working or he's out[,]" reunification was possible.
Dr. Griffith performed his own bonding evaluation with the children. He concluded that they were all attached to their mother. Dr. Griffith opined that each of the children would suffer from a permanent separation from M.M. He asserted that the Division was "rushing" in terminating M.M.'s parental rights, considering that the children were "already out of their original home . . . [and] since that permanency has already been violated[,]" M.M. should be given an additional six months to "get serious."
As noted, M.S. did not present any expert testimony at trial. M.S. was originally scheduled to meet in New Jersey with Dr. Gerald Figurelli, Ph.D, a proposed defense expert, on February 14, 2008. Because M.S. did not have the financial ability to travel to New Jersey at that time to meet with Dr. Figurelli, an initial psychological evaluation was conducted over the telephone. However, Dr. Figurelli was unable to complete a bonding evaluation with M.S., T.S. and the children in time for the trial.
During the pretrial hearing on March 27, 2008, M.S.'s attorney notified the trial court that a bonding evaluation by his client's expert had not yet been concluded. Counsel requested permission from the court to conduct a bonding evaluation on March 31, 2008, since M.S. and the children would all be present in court that day. After an extensive discussion, the trial court agreed to schedule an evaluation with Dr. Figurelli for April 2, 2008. The trial court stressed that this would be the "final" opportunity for such an expert assessment to occur.
Subsequently, at the beginning of trial on March 31, 2008, M.S.'s counsel notified the trial court that Dr. Figurelli would be unable to conduct a bonding evaluation on April 2, 2008 because the doctor was away and would not be returning until April 7, 2008. Counsel also stated that he was unable to procure another expert psychologist at the time. He requested that the trial court allow the bonding evaluation to take place some time later in April, so that appropriate rebuttal from his expert could be developed. The trial court denied counsel's request, noting that both counsel and Dr. Figurelli had known about the trial date for three-and-a-half months and that it was too late for counsel to ask for a further adjournment on the first day of trial.
Following the closure of proofs, the trial court issued a written decision on April 22, 2008. The court concluded that the Division had satisfied its burden of proving the statutory elements authorizing the termination of parental rights of both parents, M.M. and M.S. The court acknowledged in the opinion its empathy for both parents, and the sincerity of their desires to raise the children. In this regard, the court particularly recognized that M.S. is "a simple and hard working man," and its appreciation that he has suffered from "a diagnosed psychiatric illness." Nevertheless, the court found that it was in the children's best interests to grant the Division's request for termination as to both parents. Consequently, the court entered a final judgment of guardianship on that same date.
Both parents now appeal. The Law Guardian opposes the appeal by the mother, M.M., but supports, in certain respects, the appeal by M.S., the father.
When seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, each of the following four elements:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent 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 and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) [the Division] 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 the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a). See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
In applying these four elements, we are mindful that the termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992). We turn to the application of those standards as to each of the respective parents, M.M. and M.S.
Having considered the record as a whole, in light of the applicable law, we are satisfied that the proofs are sufficiently clear and convincing to sustain the trial court's termination of the rights of the biological mother, M.M. The mother does not challenge the trial court's finding that the first prong of the statute ------ past or prospective endangerment of the children's safety, health or development ------ was satisfied. The record clearly demonstrates such endangerment, both at the time of the children's initial removal from M.M.'s care in April 2006 and the harmful domestic environment that led to the second removal of the children in July 2007. The mother has committed many acts of domestic violence and antisocial behavior, including, most graphically, the stabbing of her ex-husband in the presence of the children on April 2006, and her dangerous altercation with W.R. in the automobile in May 2007. These dangers are compounded by M.M.'s underlying personality disorders and abuse of alcohol.
We are equally satisfied that the trial court had ample grounds to conclude that the second, third and fourth prongs of the statute have been demonstrated concerning M.M. An analysis of these latter elements is ably set forth in the trial court's written opinion, which we substantially adopt with respect to the mother. We add only a few comments relating to her.
As to the second prong, the trial court found credible Dr. Dyer's assessment that M.M. continues to suffer from psychological maladies and alcohol problems, and that, as summarized in the court's opinion, M.M. "is vulnerable to incapacitating depression which would interfere with her ability to care for young children." These mental health concerns were corroborated by the Division's expert psychiatrist as to M.M., Dr. Gauderer, who examined her at two different intervals, first in 2006 and again in 2008, and found that her prognosis remains "poor."
As the trial court rightly noted, M.M.'s own expert, Dr. Griffith, confirmed that she continues to have a borderline personality disorder with antisocial trends, manifesting in rapid mood changes and anger. Dr. Griffith agreed that M.M. was presently unable to serve as a fit parent and, at best, she "might" be able to stabilize herself sufficiently in six months. Dr. Griffith conceded that he was unaware of the children's special needs and of M.M.'s failures to complete various services recommended by the Division.
The record reflects that M.M. persisted in denying responsibility for her own behavior and the risks she has posed for the children. M.M.'s continued relationship with W.R., a man with an explosive temperament and an extensive criminal history, also poses serious concerns for the children's prospective welfare. In sum, prong two as to M.M. was adequately demonstrated by the trial proofs.
The Division manifestly fulfilled its obligation to provide reasonable services to M.M. under prong three of the statute.
The trial court's opinion aptly catalogues the visitation efforts, substance abuse programs, mental health evaluations, anger management training, counseling and other services that the Division afforded to M.M. from the time of the children's initial removal in April 2006 until the time of trial approximately two years later. The Division's cooperative efforts respecting M.M. are further illustrated by its willingness to allow her to be reunified with the children in Florida in February 2007, only to have that reunification ended by the reports of domestic violence and neglect in July 2007. M.M. failed to take full advantage of these opportunities. The trial court properly found that the Division carried out its responsibilities concerning M.M. before it finally moved to terminate her parental rights.
Lastly, the record suffices to support the trial court's finding that, under the fourth prong of the statute, the termination of M.M.'s parental rights will not do more harm to the children than good. The trial court recognized that at least two of the three children, Kristen and Andrew, were not in a pre-adoptive placement at the time of trial, and that the two daughters had expressed a preference to live with their mother. The court was also mindful of the difficulty, but not the impossibility, of finding a permanent placement for the two children with special needs.
Nevertheless, the trial court reasonably found credible Dr. Dyer's professional opinion that the risk of returning the children to the mother a third time far outweighed the potential harm that is likely to ensue from terminating their relationship with her. The mother chose not to testify in her own behalf to offer the court a competing assurance, one tested by cross-examination,*fn5 that another attempt at reunification with her promised more benefit from the harm caused in prolonging the children's quest for permanency. The Law Guardian's brief on appeal echoes the trial judge's sound determination on these points.
In sum, we are satisfied that the proofs at trial were sufficiently clear and convincing to justify the termination of M.M.'s parental rights.
We reach a different conclusion with respect to the final judgment issued against M.S. He argues on appeal that the Division failed to prove by clear and convincing evidence each of the four requisite prongs under N.J.S.A. 30:4C-15.1. The Law Guardian joins in that argument, except that it acknowledges that the trial court properly found under prong one that both parents, including M.S., had endangered the safety, health and development of the children.
The first prong of the statute, as applied to M.S., requires little discussion. We agree with the trial court that M.S., by his past behavior and circumstances, endangered the children in several respects. At the time of the children's removal from their mother's New Jersey residence in April 2006, M.S. was then incarcerated in Florida, although he was about to be released. He admittedly was then able to assume their care. He evidently has a criminal record of multiple offenses.*fn6
Moreover, M.S. has an admitted diagnosis of schizophrenia, and he committed several acts of domestic violence when he was living with M.M. These acts and underlying mental health conditions, which impaired M.M.'s ability to parent the children in the past, readily satisfy the first prong of the statute. N.J.S.A. 30:4C-15.1(a)(1).
The application of the other three prongs of the statutory analysis to M.S. is more troublesome. Even according the customary deference that we ascribe to the Family Part in guardianship matters, see, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007), the present record inadequately demonstrates, by clear and convincing proof, that the second, third and fourth elements have been established to justify the termination of M.S.'s parental rights.
The most critical shortcoming in the record as to M.S. relates to the third prong of the statute, i.e., whether the Division fulfilled its statutory obligation to make "reasonable efforts" to provide him with services before terminating his parental rights. N.J.S.A. 30:4C-15.1(a)(3). This obligation includes consultation and cooperation with the parent in developing a services plan; the provision of services agreed upon to further the goal of family reunification; informing the parent at appropriate intervals of the children's progress, development and health; and facilitating appropriate visitation. N.J.S.A. 30:4C-15.1(c); see also N.J.A.C. 10:133H-4.2.
As the Supreme Court has observed, the Division has an important duty to "encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family[,] . . . promote and assist in visitation[,] and keep the parent informed of the child's progress in foster care." In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). Although ultimate success in achieving reunification is not required for the Division's efforts to provide services to be found reasonable, id. at 393, the Division still must endeavor to provide such services in a "diligent" manner. N.J.S.A. 30:4C-15.1(a)(3). While the Division may reasonably focus its service efforts on the parent who had formerly served as the children's primary caretaker, it may not "ignore or exclude the non-custodial parent." Id. at 393.
The Division fails to justify the fourteen-month gap from May 2006 through July 2007, during which time it had no communications with M.S. and did not offer him a mechanism to visit or otherwise have contact with this children, or to provide him with the services that might have enhanced his capability to serve as their caretaker. We recognize that when the Division first located M.S. in May 2006 he was admittedly unable to assume custody of the children at that time. But that does not excuse the months of silence and inaction that followed.
The Division did not offer any evidence to rebut M.S.'s testimony that he had been promised a return call in May 2006 and heard nothing again until more than a year later. Nor does the Division refute M.S.'s assertions that he had made several telephone calls to the Division in the interim to gain the agency's attention, without success. The trial court did not make any finding that M.S.'s account of those attempted calls was incredible. To be sure, M.S. could have been more persistent by, for example, sending the Division an urgent letter or fax, or perhaps obtaining the intervention of an attorney.*fn7 Even so, it was the obligation of the Division to reach out to M.S. in a prompt and responsive manner, not only for his own personal benefit but for the benefit of the children that had been entrusted to the agency's protective care.
It is undisputed that the Division provided no services to M.S. until the fall of 2007, after more than a year had passed from the children's initial removal. The belated services afforded to M.S. were mainly evaluative in nature, essentially to accommodate the psychiatric and psychological assessments necessary to litigate the case, which, by that point, had evolved from a potential reunification matter to a guardianship.
The Division explains that it had relied upon the Florida DCF to interact with M.S., since he was residing there. We appreciate the practical need for such reliance by the Division on child welfare agencies from other jurisdictions. However, the system failed here to satisfy the Division's non-delegable statutory duty to offer services in a timely manner.
It took more than five months for the Florida DCF to complete its inspection of M.S.'s residence and the related background investigation. Ultimately, the Florida agency deemed M.S.'s residence ineligible as a placement because of his criminal background. In the meantime, M.S. was forced to procure various services on his own, and at his own expense. He was not afforded an opportunity to have contact with the children.*fn8 It is also unrefuted that M.S. lacked the financial means to travel from Florida to see the children in New Jersey. He was left in an exceedingly challenging position to safeguard his parental rights, without timely and meaningful assistance from the governmental agencies involved.
M.S. and the Law Guardian urge that we find, as a matter of law, that the Division improperly relied in this case upon the Interstate Compact on the Placement of Children ("ICPC"), codified in New Jersey at N.J.S.A. 9:23-5. They argue that the ICPC does not apply to the out-of-state placement of children with their biological relatives. See Div. of Youth & Family Svc. v. K.F., 353 N.J. Super. 623, 625 (App. Div. 2002); see also McComb v. Wambaugh, 934 F.2d 474 (3d Cir. 1991). The Division argues, in opposition, that the ICPC was applicable here because Regulation No. 3 thereunder defines a "placement" to include a parent, and because K.F. and McComb are, in its view, factually distinguishable.
We need not resolve the parties' legal dispute over the applicability or inapplicability of the ICPC in this case. Regardless of the ICPC's pertinence in this factual setting, the simple truth is that M.S. was not offered by either state agency the appropriate services to which he was entitled under N.J.S.A. 30:4C-15.1(c)(3). This deficiency must not be overlooked, despite the logistical impediments that existed and M.S.'s own failure to be more persistent in complaining to the Division. The record does not bespeak indifference or a lack of cooperation on M.S.'s part. On the contrary, he enrolled in skill-building programs at his own expense. The trial court found that M.S.'s desire to assume the care of the children, contrary to the testimony of Dr. Dyer, was sincere and was not simply motivated out of retaliation towards the mother, M.M. The Division should have done more to monitor the situation, particularly after the Florida agency had still not completed its home assessment after several months.
The problems respecting the services withheld from M.S. are compounded by the one-sided nature of the expert testimony as to him presented at trial. The record reflects that once the Division finally regained contact with M.S. in 2007, M.S. dutifully attended the psychiatric and psychological evaluations arranged by the Division. To the Division's credit, it funded M.S.'s transportation to New Jersey for these evaluations, and also arranged for M.S. to have some limited contact with the children on those trips. In the meantime, M.S. attempted with his counsel to muster competing expert proofs in anticipation of the guardianship trial. M.S. secured treatment records from his mental health provider in Tampa Bay, including the correspondence from Dr. Botros-Mikail of that facility confirming M.S.'s present diagnosis and stable mood.
Apparently because of financial problems and the difficulties of travel, M.S. was unable to be evaluated by a mental health expert in New Jersey who could render a timely defense report and testify at the trial. Such a defense expert might have rebutted, or at least might have tempered or qualified, the pessimistic opinions about M.S. advanced by the Division's experts, Dr. Dyer and Dr. Miller. M.S. and his counsel attempted to obtain such forensic support from Dr. Figurelli, who, in the interest of expediency, had performed a psychological evaluation over the telephone. However Dr. Figurelli understandably wanted to have an in-person opportunity to meet with M.S. and the children before preparing a bonding evaluation and finalizing his opinions. The bonding evaluation never was completed because, in essence, M.S. and his counsel ran out of time.
The trial court endeavored to accommodate Dr. Figurelli's expert review by granting a short extension to M.S.'s counsel at the March 27 pretrial conference, at which time the expert's bonding evaluation was scheduled for the following week, on April 2. As it later turned out, Dr. Figurelli was away on April 2 and not due to return until April 7. When the doctor's unavailability was brought to the court's attention on March 31, it rejected M.S.'s request for a further extension of time.
We recognize that trial courts rightly have considerable discretion in passing upon requests to adjourn ongoing proceedings. See State v. Garcia, 195 N.J. 192, 196 (2008). We also appreciate the trial court's laudable effort to have this matter tried expeditiously, mindful of the vital interests of these children in attaining a permanent home. See K.H.O., supra, 161 N.J. at 357. Nevertheless, in the idiosyncratic setting of this case, we perceive that the trial court misapplied its discretion in declining to adjourn the completion of the trial to a later date in April 2008*fn9 in order to enable Dr. Figurelli to complete his expert review and bonding evaluation.
To be sure, M.S.'s counsel should have confirmed (or re-confirmed) Dr. Figurelli's prospective availability at or before the March 27 pretrial conference. The mistaken assumption about Dr. Figurelli's availability to meet with the children and M.S. on April 2 was critical to the court's issuance of what it characterized on March 27 as a "final" adjournment. Had the trial court known on March 27 that Dr. Figurelli would not be returning to his office until April 7, we presume it would have agreed to postpone the completion of the trial for a short period beyond that April 7 date to accommodate the desired evaluations.
When the mistaken assumption about the defense expert's availability was brought to light by counsel a few days later, the court and the parties were left in a difficult position. However, we conclude that it would have been preferable for that difficulty to be resolved with a short additional extension of time. The potential for prejudice to M.S.'s rights as a parent, and the children's own potential interests in a possible reunification with him, justified a modest continuance, despite M.S.'s failure to abide by the previous court deadlines. See, e.g., State v. Gonzalez, 223 N.J. Super. 377, 383 (App. Div.) (noting the court's need to consider less severe sanctions, such as a trial continuance, to respond to a litigant's failure to abide by court rules in a timely manner), certif. denied, 111 N.J. 589 (1988); see also State v. Bradshaw, 195 N.J. 493, 509 (2008) (same).
The practical consequence of the adjournment denial on March 31 was to deprive M.S. of the chance to present Dr. Figurelli as a competing expert at trial. As the Supreme Court has recognized, "[b]ecause psychologists and psychiatrists play a critical role in reaching an ultimate decision in termination cases both sides should be able to present expert witnesses." In re Guardianship of J.C., 129 N.J. 1, 22 (1992). Although it was understandable that the trial court did not want to adjourn the case further because it had already granted M.S. an opportunity to reschedule and that request came on short notice, "[f]ew forms of state action are both so severe and so irreversible" as termination of parental rights. J.C., supra, 129 N.J. at 10 (quoting Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 1398, 71 L.Ed. 2d 599, 610 (1983)).
This was not a situation in which a parent had been living in New Jersey and was readily available to meet with a defense expert. Nor was it one where the parent had received consistent services from the Division after the removal of his children and had been given a lengthy opportunity to prepare for an eventual adversarial proceeding. The unusual chronological backdrop here warranted more indulgent consideration by the court of M.S.'s final request for an adjournment, one which the Deputy Attorney General apparently did not oppose, than what might have been warranted in an ordinary case.
Given these circumstances, and the significant hole in the record created by the absence of competing expert testimony from Dr. Figurelli, we cannot state with confidence, at least at this point, that the second and fourth prongs of the statute have been established respecting M.S. by clear and convincing proof.
Of course, we do not know exactly what Dr. Figurelli would have opined about the statutory factors. It may well be that his opinions about M.S.'s prospective ability to parent these children in a safe and secure home environment would be as unfavorable as those of Dr. Dyer and Dr. Miller. The defense expert might also have agreed with the Division's experts that, on balance, the risks to the children of terminating M.S.'s parental relationship are outweighed by the potential benefits of termination. Even so, a remand is warranted to explore these open questions in more depth.
The Division argues that the inability of M.S. to present expert testimony from Dr. Figurelli is inconsequential because the Division's own expert, Dr. Dyer, acknowledged that bonds existed between all three children and their father. Dr. Dyer's acknowledgment does not, however, make the bonding opinions of a defense expert necessarily cumulative. A defense expert might have offered even stronger opinions about bonding that could have affected the court's ultimate calculus of the children's best interests. We simply do not know because the defense evaluation was never finished.
With particular reference to the fourth prong, we are particularly hesitant to adopt, on the present record, the trial court's weighing of the relative harms and benefits of terminating M.S.'s parental rights, given the frequent changes in the children's interim placements. Each of the three children has been moved to at least five different placements in three years. None of the caretakers who have been identified on appeal by the Division as pre-adoptive parents were evaluated by the experts or by the trial court.
As the Supreme Court recently recognized, a track record of multiple failed foster placements raises serious concerns for the attainment of permanency for a child. N.J. Div. of Youth & Fam. Services v. E.P., 196 N.J. 88, 108-111 (2008) (addressing a situation in which a psychologically-fragile child had "bounced around from one foster home to another" and was in her seventh foster placement at the time of trial). We are mindful that here, unlike in E.P., the children might not have maintained an equally "enduring emotional bond" with their father, as the mother had in E.P. Id. at 109. Some of that may be the Division's own fault, by not assuring that M.S. received proper services once the children first were placed in foster care in April 2006. Nevertheless, the bonding evaluation by the Division's own expert, Dr. Dyer, recognized ties between the children and their father, particularly the son, Andrew.
We agree with the Law Guardian that on remand, the trial court should require updated bonding evaluations to take into account the bonds that the children may have acquired with the three new caregivers, with whom they were each placed while the present appeal was pending. With the benefit of such updated bonding evaluations, and the presentation of appropriate defense expert testimony, the fourth prong should be re-examined on a fuller and more complete record.
The Law Guardian further urges that the trial court on remand be directed to consider the prospect of reuniting the siblings, or at least two of them, in the same household. We do not comment on the feasibility of that suggestion, but instead leave it to the trial court's discretionary assessment of the children's best interests, once it has an updated and fuller record.
In ordering a remand, we appreciate the substantial impediments that ultimately may prevent M.S. from being a viable future caretaker for one or more of his children. Two of the children have special needs. The father himself has a history of schizophrenia and emotional disturbances. The challenges of raising these children and attending to their psychological needs may well prove to be insurmountable. On the other hand, he has apparently maintained a steady job for over three years, a steady relationship with an employed partner, and a crime-free life. Before he is permanently ruled out as a viable parent, M.S. deserves further consideration by the Division and by the trial court, with more expansive proofs that include a defense expert's testimony and updated bonding evaluations.
Lastly, we briefly comment on the suggestion of M.M.'s counsel that the mother be included in any remand necessitated by the father's own appellate arguments, and that she, too, be provided with another opportunity to gainsay the Division's position that her parental rights must be terminated. We reject the suggestion.
Unlike M.S., M.M. was provided more than ample pretrial services by the Division. She failed to take sufficient advantage of those services, and she was discharged from several programs due to her attitude and poor attendance. More importantly, unlike M.S., M.M. did have a fair chance to litigate the guardianship trial with competing testimony from her own defense expert, Dr. Griffith. Ultimately, the trial court found the Division's experts to be more persuasive and credible than Dr. Griffith. Notably, M.M. declined to testify herself and submit to questioning by the court and opposing counsel. Furthermore, M.M. has maintained a relationship with a paramour of questionable stability and parental capacity. This contrasts with M.S., who lives with a working mother who seems to be competently raising her own child and who has no apparent comparable history of criminal offenses and violence.
Although we share the trial court's empathy for M.M.'s desire to parent these children, we discern no reason to vacate the judgment against her, as her circumstances on appeal are materially different and far less compelling than those of M.S.
The remand we order therefore will be confined to the issues concerning M.S. alone.
For all of these reasons, the final judgment of the Family Part concerning M.M. is affirmed; the final judgment concerning M.S. is vacated; and the case is remanded, solely as to M.S., for further proceedings consistent with this opinion. We do not retain jurisdiction.