May 5, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
A.M.H. AND G.L., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF C.L., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Ocean County, Docket No. FN-15-134-05 (A-0132-07) and FG-15-47-06 (A-1926-07; A-2876-07).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 25, 2009
Before Judges Cuff, Fisher and C.L. Miniman.
In these consolidated appeals, a mother and father appeal from orders terminating their parental rights to their daughter born in September 2004. The child was removed from their care in March 2005. The father also appeals from the order allowing the initial removal of his daughter, the order finding he abused or neglected his child, and the order approving termination of parental rights as a suitable permanency plan. We reverse.
Clare*fn1 was born on September 26, 2004, to Ann and George. At the time of her birth, Ann was forty-two and George was fifty-four. The parents are unmarried but had lived together for some time prior to Clare's birth and they remain a couple.
At the birth, Ann tested positive for cocaine; Clare did not. Ann admitted to using two "lines" of cocaine three days before Clare's birth. The hospital informed the Division of Youth and Family Services (DYFS) and it conducted an investigation. George asserted that he was unaware of Ann's cocaine use prior to Clare's birth or at anytime in the two years they were together. His urine screens were negative. DYFS released Clare to the care of her parents on the condition that Ann's contacts with the child be supervised by George or a family friend.
In the days and weeks that followed, DYFS learned that Ann had been involved with the agency regarding her two teenage children from her prior marriage. The agency also learned that Ann had a history of alcohol and cocaine abuse, and was on probation for drug possession, possession with intent to distribute, conspiracy, and violation of a restraining order. With this knowledge, Ann was counseled and strongly encouraged by a DYFS caseworker to obtain a substance abuse evaluation and enroll in an intensive outpatient substance abuse program. Ann began drug treatment at St. Barnabas three mornings a week in late October 2004.
During periodic visits to Ann and George's home, the DYFS caseworker verified that Clare was healthy, content, and her parents had cared for her well. The caseworker described George as "doting" on the baby.
In February 2005, Ann, George, and Clare moved into George's mother's home on a temporary basis. Ann's caseworker at St. Barnabas reported that Ann attended the program regularly. The DYFS caseworker learned that counselors at St. Barnabas were trying to stabilize Ann's bipolar disorder and were evaluating different drug combinations. Counselors reported that Ann may have used substances in the past to self-medicate. George was described as very supportive of Ann and very involved with the care of the baby. Counselors also reported that they expected Ann to complete the program in several weeks, after which the program would arrange an appropriate aftercare program.
On March 3, 2005, George and Ann attended a wake in northern New Jersey. They brought Clare with them. As they drove home, Ann and George became embroiled in a verbal disagreement that seemed to revolve around Ann's desire to stay for dinner after the wake and George's insistence that they go home. Ann was seated in the backseat with Clare, who was in her car seat. During the course of this disagreement, Ann reached for an unopened can of beer located on the floor of the backseat, opened the can and poured it over George, who was driving the car.
What happened next was never completely resolved. Based on the complaint filed by DYFS, the police report, caseworker's reports, subsequent court proceedings, and statements to evaluators, it seems that George pulled the car to the side of the road. George got out of the car, attempted to clean himself, reentered the car, and continued on his way to his mother's house. Ann exited the car and did not return before George went on his way. Clare remained in the backseat of the car. Ann called the police and informed them George had driven away with her baby and she wanted the baby returned to her.
At 4:57 p.m., Manchester Township Police Officer M. Juralewicz stopped George. Not surprisingly, the car and George smelled of alcohol, and the officer suspected that George was operating the car under the influence of alcohol. He found Clare in the backseat in the car seat. He also found the car seat was not properly secured and Clare was not secured in it. Field sobriety tests quickly revealed that George showed no signs of intoxication.
The officer, George, and the baby proceeded to police headquarters. Following a breathalyzer, the police definitively determined that George was not intoxicated. Moreover, after talking with Ann and George, police determined that the incident was not "a Domestic." Nevertheless, DYFS had been called and a Special Response Unit (SPRU) worker arrived at the police station. Believing that the case plan required the child to live in the home of the paternal grandmother, under the direct supervision of the paternal grandmother and George, and having learned from George that the family had been living independently, he assumed that the family was out-of-compliance with the DYFS discharge plan. Citing the departure from the case plan, the failure to properly secure the child in her car seat, and a strong odor of alcohol about Ann, the SPRU worker effected an emergency removal of Clare pursuant to N.J.S.A. 9:6-8.29. The SPRU worker presented each parent with a notice of court hearing on March 7, 2005. Notably, the form provided to George and Ann did not inform them that they had a right to counsel and a right to have counsel appointed if they lacked the funds to retain attorneys.
On March 7, DYFS filed a complaint alleging that George and Ann had abused or neglected Clare. The complaint incorrectly alleged that George and Ann had departed from the September 2004 discharge case plan and that George was driving erratically. The complaint also alleged that the police officer detected a strong odor of alcohol when he stopped George's car, that Clare was not properly secured in her car seat, and that George had a history of domestic violence.
At the March 7 hearing, at which Ann and George appeared without counsel, the SPRU worker reiterated that the couple was not in compliance with the discharge plan for care and supervision of their child. Rather than informing the judge that initial suspicions of driving while intoxicated were unfounded, the SPRU worker repeated Ann's report that George was driving erratically and the officer's report that George smelled of alcohol when stopped. Notably, the report filed by the police officer does not contain any observation of erratic driving by George. The SPRU worker also reported to the judge that George left the child with the mother in the car when he left the car to mop up the spilled beer. The SPRU worker reported that he did not seek to place the child with her paternal grandmother because that placement was already part of the plan, and the grandmother had allowed George and Ann to depart from the plan.
Although George was able to secure a concession from the SPRU worker that he had passed the sobriety test and was not charged with driving while intoxicated, the judge interrupted stating, "We agree, sir, you weren't charged with driving while intoxicated." Nevertheless, as George attempted to have the caseworker clarify the factual basis for his allegations, the judge interrupted and stated "there's a concern as to whether or not you were under the influence of alcohol." The judge also stated "There's the possibility that there are allegations of domestic violence here. . .," notwithstanding the determination by the police that "there was no domestic violence." Citing "a lot of conflicting facts," including the allegations of substance abuse, driving while intoxicated with the child in the car, the failure to properly supervise the child, violations of the existing case plan, and domestic violence allegations, the judge entered an order continuing the removal of the child from the custody of her parents.
On March 29, 2005, another hearing was conducted. By this time, a law guardian had been appointed for Clare, George and Ann had obtained representation, and Clare was in a long-term foster care placement. At this time, the Deputy Attorney General (DAG) reported that DYFS wanted Ann to continue to attend Ocean Mental Health, comply with the recommendations from St. Barnabas, and wanted both parents to complete anger management programs and attend psychological and substance abuse evaluations. Weekly one-hour visits were to begin that week. Ann and George sought greater visitation with their daughter. The law guardian suggested that the parents be placed on the waiting list for the Best Interests program that would allow two hours of visitation each week.
On June 2, 2005, the parents entered stipulations in lieu of a fact-finding hearing. Ann stipulated that on or about the 3rd of March of 2005, she was in a vehicle with [George]. The baby, [Clare], was present in the vehicle at the time. They had an argument which escalated.
She opened a can of beer and threw it all over [George]. And she understands that that constitutes -- the baby was at risk of harm during that incident, and she understands that that constitutes abuse or neglect within the meaning of the statute.
At the same time, George entered the following stipulation: on March 3, 2005 of this year, you were in a motor vehicle. You were there with [Ann].
You were there with the young child. There was an altercation between yourself and [Ann]. The child was not appropriately fastened in a seatbelt. That exposed the child to the risk of harm rising to the level of abuse or neglect as defined in our statute.
The judge accepted the stipulations and found that the stipulations constituted abuse and neglect.
Having so found, the judge accepted an oral report from the DAG. She reported that George had appeared for his substance abuse evaluation on April 15. She informed the judge that "it was recommended that he continue for random urine screens." Actually, the evaluation recommended only two random urine screens to rule out substance abuse. The DAG also reported that psychological evaluations were scheduled two days later.
At this time, a discussion ensued about the status of the paternal grandmother and George's sister as caregivers or supervisors. DYFS expressed concerns about the paternal grandmother's vision; George contended that his mother had some vision restrictions but lived independently. Rather than trying to resolve the issue at that time, the judge instructed the DAG to "look into" it. If either woman was suitable as a caregiver or supervisor, Clare could leave foster care or the visits could occur at a place other than a DYFS office or supervised visitation center.
George and Ann appeared for the scheduled psychological examination on June 7, 2005, with Alan J. Lee, Psy.D. In his discussion and recommendations, Dr. Lee opined that he had identified no reason why George could not be an independent caretaker of his daughter. He wrote:
He revealed no compelling evidence at this time to contraindicate him being a caregiver to a minor child, although various therapeutic services should either be completed or implemented prior to returning the child. [George] should have completed a comprehensive substance abuse evaluation with some random urinalysis to monitor for illicit drug abuse or alcohol abuse, with the obvious expectation that he abstain from the same and have complete[d] any and all substance abuse treatment recommendations that may have been made. He should complete the Division approved parenting education program to ensure an appropriate basic foundation of childrearing and parenting practices. He should complete a Division-approved anger management program to help improve his emotional and behavioral controls and appropriate expression of his feelings. These should be completed prior to return of the child. [George] and his paramour might also be recommended to participate in some couple[']s counseling, although this does not need to be completed prior to returning the child. He should demonstrate stable and appropriate residence, relationships, and employment or financial resources. . . . Some brief period of in-home family support services such as Family Preservation Services are also recommended if the child is returned to the home.
Dr. Lee evaluated Ann on the same day. Although he identified more challenges for reunification for Ann than he did for George, he did not consider any of her identified problems as posing an imminent risk to her child and he did not rule out possible future reunification. Dr. Lee stated:
While she shows some salient and sometimes maladaptive aspects of her personality functioning, these do not necessarily appear to be so remarkably severe or problematic as to result in any kind of imminent risk to the child. . . . She has completed an intensive outpatient program, but seems to still struggle to take full responsibility and awareness of her substance abuse relapse. She has not yet started any type of aftercare following the IOP [Intensive Outpatient Program] substance abuse program. This suggests that she would be at a still heightened risk for illicit drug usage, which would in turn contribute to a potentially dangerous or unsafe situation for the child. She concedes that her two older children have largely been out of her care for the last four years, . . . Overall, while [Ann] needs further services it appears reasonable that she work towards possible future reunification.
Dr. Lee recommended a psychiatric examination and this was performed by Alexander Iofin, M.D., on August 15, 2005.
Dr. Iofin recognized that Ann had a significant history and problems associated with illicit drug use. He also identified a significant history of psychiatric problems in the Affective range, although he expressed some doubt that Ann should be diagnosed as bipolar. In any event, he opined that as long as [Ann] continues to follow up with her treatment modalities as a MICA [Mental Illness Chemical Abuse] patient, including treatment of her psychiatric problems as well as making appropriate arrangements to follow through with drug abuse services to prevent reoccurrence of relapses on drug and/or alcohol use, and being capable to follow with stipulations of her probation, this individual generally will have no overt psychiatric contraindications toward eventual reunification with her children. . . . Consequently, the fact that she and [George] have a history of conflicting relations needs to be carefully evaluated.
Based on review of the current sources, there appears to be some improvement in the overall relations of this couple.
Unfortunately, the reports prepared by Dr. Lee following the June 7 evaluations had not been transmitted to the judge or counsel before the September 27, 2005 compliance hearing. The DAG, however, had access to these reports because she provided an oral synopsis of Dr. Lee's report, but unfortunately omitted Dr. Lee's opinion that George could serve as an independent caregiver of his daughter and that Ann did not pose an imminent threat to her daughter as long as she followed prescribed treatment modalities. The DAG also reported that she was waiting to see the results of Dr. Iofin's evaluation. At this conference, there was a discussion about three missed visitation appointments and the level of aftercare required of Ann. A letter from St. Barnabas dated August 11, 2005, reported that mental health treatment on an individual basis was more appropriate than the IOP. Nevertheless, another appointment had been scheduled for October 3, 2005.
At the end of September 2005, Ann tested positive for cocaine.*fn2 In December 2005, she tested positive for alcohol. George never tested positive for alcohol or drugs. St. Barnabas reported on October 28, 2005, that Ann began treatment in the IOP on October 18. St. Barnabas reported that it was trying to stabilize her medications, have her attend recovery groups, and attend NA/AA meetings in the community. A later report stated that Ann remained in the program until January 6, 2006, and all her drug tests were negative. On January 26, 2006, Ocean Mental Health Services reported that Ann entered their Co-Occurring partial care program on January 11, 2006. St. Francis Center reported on January 11, 2006 that Ann had been a participant in its parenting and anger management group sessions since April 7, 2005. She had attended twelve parenting sessions and twelve anger management sessions.
The record reveals that Ann developed respiratory problems in early 2006. These health concerns interrupted her aftercare programs. Nevertheless, all subsequent random urine screens were negative. As required, George submitted to random urine screens and always tested negative.
George was referred to anger management and parenting classes. He attended twelve anger management sessions between March 17, 2005 and July 6, 2005, and twelve parenting sessions between May 4, 2005 and August 11, 2005. In 2006, George attended a second round of parenting and anger management sessions.
The record contains two reports of couple's counseling with disparate results. In a termination summary dated April 24, 2006, family therapist Madeline Skalitza reported that the partnership counseling for George was unsuccessful. On the other hand, Pastor Chris Sayer of King of Kings Community Church wrote on August 15, 2006, that George and Ann had participated in couple's counseling since the beginning of June, and the meetings "ha[d] all gone great." The pastor related that George and Ann "are open to and willing to work on issues in their relationship [whether] they are tough or easy."
Visitation proceeded throughout 2005, 2006, and until November 2007, when the judge entered the termination orders. The records of the various supervised visitations demonstrate that some of the visits during 2005 were successful and some were less successful. In early 2006, there was a period of time when Clare resisted leaving daycare for visits. However, by March or April 2006, George, Ann and Clare had generally fallen into a pattern in which the child recognized them, actively engaged in play with them, and seemed quite comfortable and affectionate with them. Clare was also always delighted to see her foster mother or foster father at the end of a visit.
The record reveals that commencing April 29, 2005, twenty-nine visits were scheduled and sixteen visits occurred. Of the missed visits, George and Ann cancelled seven visits, the caretaker cancelled two, and the visitation center cancelled two sessions. Between November 2005 and March 2006, ten visits were scheduled and four visits occurred. George and Ann cancelled one visit and failed to confirm one visit; the caretaker cancelled two visits; and DYFS cancelled two visits.
In late 2005, DYFS requested, and Ann and George agreed to, a further evaluation by Dr. Lee. Scheduling these follow-up evaluations proved difficult and some angry exchanges occurred between Dr. Lee and George. Following the February 23, 2006 evaluations of Ann and George, Dr. Lee revised his opinion about George's ability to serve as an independent caregiver for Clare. As to Ann, Dr. Lee reported that he still had reservations about her ability to be a caregiver for Clare. Although Dr. Lee phrased his recommendations as a reaffirmation of his earlier opinions, the second opinions are strikingly more negative than the June 2005 opinions.
By April 2006, the case plan had been amended from reunification to termination of parental rights. The judge commenced a permanency hearing on April 11, 2006, DYFS filed a complaint for termination of parental rights on June 2, 2006, and visitation proceeded. Indeed, visitation actually increased. The record reveals that the case was "dual-tracked," that is, services were provided and efforts undertaken to reunify the family and the termination case was prepared for trial.
Consistent with that treatment, Ann, George and Clare were referred to Dr. Andrea Lynn Sollitto, a psychologist, for therapeutic visitation. These visits occurred between October 18, 2006 and November 9, 2006. Initially, the visits did not go well. However, by October 26, 2006, Clare became more outgoing. At the November 2, 2006 session, Clare sat comfortably on Ann's lap and was comfortable with George when Ann had to leave the room. Then Clare started to speak spontaneously. Dr. Sollitto described the change "as if a dam has burst open and [Clare] is now talking freely." Ultimately, Dr. Sollitto opined that Clare was comfortable with her birth parents, had the ability to adapt to a change of custody, and recommended reunification.
Visitation proceeded throughout 2007. George and Ann saw Clare at least twice a week. However, after the judge concluded the April 5, 2007 permanency hearing and held that termination of parental rights was appropriate, visits were reduced from twice a week to once a week, and George and Ann complained of frequent cancellations and encountered other difficulties obtaining consistent weekly visits with Clare. Significantly, throughout this entire period, i.e. April 2005 through November 2007, there is not a single reference in any record of any visit of abnormal or aberrant behavior by either parent.
Almost simultaneous with the initiation of therapeutic visits with Dr. Sollitto, Margaret Beekman, Ph.D., another psychologist, rendered a report in which she recommended that Clare remain with her foster parents. As to the birth parents, she opined that they would not intentionally harm their child, but that "if [Ann] continues the historical pattern, . . . [Ann] and [George] might create a very negative and contentious, and unstable atmosphere for a child."
George and Ann refused to allow Dr. Lee to perform a bonding evaluation. He performed one of the foster parents and Clare on August 9, 2006, about six weeks before Clare's second birthday. She had been in the care of her foster parents since the end of March 2005. Not surprisingly, Dr. Lee opined that Clare seemed very comfortable and at ease with her foster parents and that she had developed a very positive and significant relationship or psychological attachment with her caregivers. He stated that there was a significant likelihood of severe, enduring or irreparable psychological harm to Clare if her relationship with her foster parents was severed.
At the April 5, 2007 permanency hearing, the judge issued his decision, one year after the hearing commenced and over two years after Clare had been removed from the care of George and Ann. Applying an undefined "best interests" standard, he approved the DYFS permanency plan for termination of parental rights. In doing so, he found that DYFS had made reasonable efforts to provide services to Ann and George. The judge's factual findings incorporated some of the same findings that he found supported the emergency removal in March 2005, such as, the child was discharged from the hospital at birth to reside with her parents who would reside in the home of the parental grandmother and who, along with George, would supervise the care of Clare. Moreover, the judge ignored DYFS records that demonstrated that Clare was not discharged from the hospital until after the agency had obtained a criminal record check for George. The judge's findings also ignored the records of DYFS contacts with the family between discharge and February 2005, which demonstrated that George and Ann were living in an apartment in Lakewood rather than with his mother.
The judge found that George was largely compliant with services and had always produced negative urine screens. He found that one counselor had terminated the pair from couple's counseling because the effort was unsuccessful. He made no note of the report of progress by a second couple's counselor.
As to Ann, the judge found that she, too, had been "largely compliant with the services." He acknowledged that Ann had been to two or three intensive outpatient programs but had not completed the MICA program. He cited the two positive urine reports: one for cocaine in September 2005, and the other for alcohol in December 2005.
The judge acknowledged that Dr. Lee initially did not rule out either parent as an independent caretaker for Clare but revised his opinion by Spring 2006. Dr. Lee had questioned whether the various services had been effective. The judge also found Dr. Beekman's report highly probative. He cited the extensive material provided to her and compared it negatively to the paucity of information provided to Dr. Sollitto, the psychologist who oversaw the therapeutic visitation.*fn3 He also discounted the opinion of Dr. Jesse Whitehead, who conducted psychological evaluations of George and Ann, because he did not believe the parties' criminal backgrounds should alter his opinion that reunification should and could be achieved.
The judge also found that George minimized his criminal background and had a selective memory of three events that had occurred in Manchester Township between late 2001 and 2003. The judge also found that George minimized Ann's substance abuse involvement and rehabilitation challenges.
Citing the opinions of Drs. Lee and Beekman, the risk of recidivism regarding Ann, the uncertainty of whether she had completed her MICA program, the inability of George to protect Clare from Ann due to his lack of knowledge of Ann's drug involvement, and the length of time it would take to phase in more visitations and reunification, the judge found that DYFS had proven by a preponderance of the evidence that its plan for termination of parental rights was appropriate and in the best interests of the child. He found that it would be unsafe to return the child to her birth parents in the foreseeable future because they were still in the supervised visitation stage. He also found that the efforts offered by DYFS to effect a reunification and address the substance and interpersonal relationship issues of the birth parents were not perfect but reasonable.
The court notified George and Ann that it intended to rely on all of the evidence submitted during the permanency hearing but permitted George to obtain a bonding evaluation. At this time George interrupted the judge and complained vociferously that he was not a criminal and the proceedings had taken far too long.
Following entry of the April 5, 2007 order, further testimony was taken to conclude the guardianship matter. On May 29, 2007, George's attorney advised the judge that, contrary to his order, a bonding evaluation had not occurred because visitation had become sporadic since entry of his permanency decision. He complained that the child was often not available, they were offered three-hour make-up visits once a week, and the contraction from twice weekly to once weekly visits would negatively influence any bonding evaluation.
George resisted single three hour visits. He believed it was unfair to expect a two-and-one-half-year-old child to remain content for three hours in a small supervised visitation room. When offered a three-hour visit in a park, George and Ann readily accepted and it was a "happy time." George also noted that visits were cancelled because the agency lacked personnel to transport the child and for staff meetings.
Ann also expressed concerns to DYFS that the child might have been physically mistreated because the child resisted Ann's efforts to change her and she had red cuts and welts in her vaginal area. George reiterated to the judge the concerns expressed by Ann to the agency.
The next hearing occurred on July 9, 2007, at which time the foster mother advocated for a reduction in visits to once a week. She testified that the child had become clingy, resisted going to school, and stated that she did not want to see "Mommy [Ann]." The judge refused to modify the visitation order due to the absence of an expert opinion in support of such a modification.
A bonding evaluation among George, Ann and the child was conducted on July 5, 2007, by Dr. Whitehead. He testified on August 13, 2007, that the child seemed overjoyed to see George and Ann, seemed comfortable in their presence and affectionate, and referred to them as mommy and daddy throughout the evaluation. Whitehead found that the attachment between the child and her biological parents was "progressing . . . amazingly well, considering that they don't have her all of the time." He concluded that "the parents are quite capable of managing her care and of providing safety and protection for her." He also opined that the child would not be "significantly harmed" if she was returned to the care of Ann and George. He believed that steps could be taken to minimize any harm to her during the transition from her foster parents to George and Ann.
In response, the law guardian presented rebuttal testimony from Dr. Sean Evers, Ph.D. On November 6, 2006, the foster parents consulted him regarding their concerns about Clare's behavior after visits with George and Ann. This consultation occurred three weeks after Dr. Sollitto began her therapeutic visits and four days after Sollitto observed that the child had become much more relaxed. The foster parents advised Evers that the visits with George and Ann were intermittent and caused the child "some upset."
Having observed the child and her foster parents for an hour, Dr. Evers concluded that the child had a "psychological bond to the foster parents which was both strong and positive" and the visits "were causing her some difficulty." He recommended a full bonding study of all parties.
The foster parents again consulted Dr. Evers a week after Dr. Whitehead performed his July 5, 2007 bonding evaluation. They informed Dr. Evers that the child's behavior "was becoming more agitated" and that they believed this behavior was related to the increased visits with George and Ann. Dr. Evers found that the child was not as comfortable and calm as during her first visit with him. He opined that visits should be reduced or eliminated if reunification was not the goal.
After this second consultation, the law guardian retained Dr. Evers. He was supplied with Dr. Lee's second report, Dr. Beekman's report, and Dr. Whitehead's report. He also received reports from the child's daycare provider. Dr. Evers never issued a report in which he cited or relied on these reports, and he was barred from testifying about them. He was permitted to respond to questions posed by the DAG about his custodial recommendations and testified that he did not recommend a custodial change due to Clare's strong bond with her foster parents and the longevity of the placement.
The foster mother also testified on August 28, 2007, about the child's behavior. She related that Clare had been in daycare since she was placed with them. The foster mother commuted to a job in Manhattan from the time Clare was placed with them until April 2006, when she began to work in Monmouth County. Clare was in daycare from 8 a.m. until 5 p.m. daily.
According to her foster mother, as Clare became older (she was almost three at the time of the testimony), Clare began to "have some issues" with the other children "pushing, hitting, kicking, spitting, biting, pinching, just taking toys away and then smacking the child and children that are her friends in daycare." Her "behavior would get better and then it would get worse . . . and it's on and off."
Clare also began to experience "night terrors" when she was approximately thirteen or fourteen months old, at the same time she "started having issues with the caseworkers" who picked her up for visits. A pediatrician told the foster parents that "some of it is typical for her age" and "some of it is . . . other environmental factors." Clare developed asthma while living with them, and she had eczema which was "under control."
The foster mother testified that Clare's behavior problems began in November 2005, which she contended was three weeks after visitation had been reinstated after having been suspended in September 2005. In fact, Clare did not see George and Ann at all in November 2005. According to the foster mother, Clare had almost daily tantrums where she covered her ears, pulled her hair and threw things, and sobbed, which had mitigated to once or twice a week by the time of the foster mother's testimony. Afterwards, she would want to be held. The foster mother said "[t]he episodes were always between a Wednesday and a Sunday" when the visits occurred Tuesdays and Thursdays. The foster mother denied that she ever yelled at Clare or punished her when she had an accident while potty training.
The law guardian also presented rebuttal testimony telephonically from two of Clare's daycare teachers. One had been Clare's daycare teacher for nine months from August 2006 to May or June 2007. She said that Clare's behavior "wasn't actually so bad" from August 2006 until January or February 2007. Around that time, Clare began to engage in "a lot of hitting" and "aggressive" behavior towards her friends. The daycare teacher "noticed it mainly either right before a visit or pretty much after."
The teacher also testified that when Clare saw the man who drove her to visitation, she became very nervous and wanted her teacher rather than the driver to place her in the van. This teacher never saw Clare refuse to leave for a visit in 2006, and said that "[a]s long as she knew that I was going to put her in the car, she was fine."
In January 2007, Clare began refusing to leave for visits. The teacher ascribed the behavior to an increase in visits from once a week in December 2006 to twice a week in January 2007. Actually, the twice weekly visitation had begun the first week in October 2006.
Another of Clare's teachers said that Clare was generally "well behaved", with "some days where she's a little more active or cranky." She said on those days, Clare "doesn't follow the directions or she'll hit the other kids," and "[i]f it's something she doesn't want to do, she'll throw the chairs down." But this teacher was not concerned because it was typical behavior of many children Clare's age and she never expressed any concerns to the school director. She also noted no behavioral changes after visits.
The judge rendered his guardianship decision on November 16, 2007, two years and eight and one-half months after Clare had been removed from George and Ann's custody. The judge observed that the complaint had been filed "in the middle of the permanency hearing," and therefore "[w]e ran both hearings on the same track for a period of time" until the court rendered its decision "approving a plan of termination of parental rights followed by adoption by the current caregivers."
The judge made the following factual findings of the March 3, 2005 incident:
The couple was coming from a wake or a funeral. The child was in the car. [George] was driving the car. [Ann] was a passenger in the car. There was some sort of verbal dispute between the biological parents in the car which resulted in [Ann] pouring a cup or a can of beer over [George]'s head. That upset [George]. The car was pulled over. [Ann] was asked to exit the car. [George] left with the child.
[Ann] called the police. The Manchester Police responded and stopped [George] in the vehicle. There was suspicion that he was operating under the influence based upon the beer I guess that had been thrown on him and the odor of alcohol about him. Sobriety tests were administered. There was not any DWI charge. There was no indication that he was in fact intoxicated. There was suspicion that [Ann] was intoxicated. The investigation revealed that [Clare] was not properly belted into the vehicle when this was taking place. . . .
The allegation was that there was a failure to comply with the case plan that was entered into. There was a substantiation of neglect against both of the biological parents.
The judge expressly rejected the initial allegation of George's intoxication, domestic violence, and non-compliance with the case plan. The judge listed the services offered and stated: "It would appear that perhaps [Ann] did not complete all of her programs. It would appear that [George] did complete everything . . . asked of him. He was negatively discharged from some individual counseling by . . . a counselor referred by the Division."
Regarding Ann, the court said that "[s]he was participating in a MICA program, a combined mental health substance abuse program, which I do not believe she has successfully completed." He also found that Ann had two positive urine tests "during a period of time while she was theoretically engaged in a substance abuse program." The judge acknowledged that George had no substance abuse problem, but said he had missed "some urines."
The judge found that George's mother had been ruled out based on her age and sight problem. In addition, the court found: "There were also concerns with regard to the paternal grandmother with regard to her ability to protect [Clare] from her father, [George]. There was testimony, there was an indication that at one point in time the paternal grandmother indicated that she was afraid of her son."
The judge found that George's sister was ruled out because "[s]he did not express a desire to be a full-time caretaker for [Clare]," but rather "proposed" what the court called "a sharing arrangement wherein she would be the caregiver for [Clare] when she was not working" and George's mother would care for Clare while she was working. DYFS found the plan unacceptable.
The judge reviewed the various opinions proffered by the several psychologists involved in the case over the years. He noted that Dr. Lee initially had not ruled out the parents as caretakers, but found that they "had basically deteriorated" by his second evaluation. They "minimized the issues that they had" and Dr. Lee believed there was an increased risk of recidivism for Ann based on her two positive urine tests.
The judge reviewed the issues raised by the police records. The records were "primarily . . . with regard to for lack of a better term tumultuous conduct on the part of [George]." The judge described the content of the records as "allegations of domestic violence, indications that there was an axe in the bedroom, that there was damage done to personal property with a snow shovel, that there was a general threatening behavior, there was a concern, evidence with regard to consumption of alcohol with regard to [George] and basically the records indicated that there was somewhat of a tumultuous relationship between [George] and [Ann]." The judge acknowledged "that that situation existed pre-birth, pre-removal" and that the "record did not indicate that there was any reoccurrence of that type of conduct subsequent to the removal of [Clare] or the birth of [Clare]."
But based on those records, Dr. Beekman concluded "both defendants had [what] she characterized as chronic behavioral liabilities," and the police records "were not isolated incidents but . . . were part of a pattern of conduct that reflected poorly on the biological parents." Dr. Beekman had found "credibility issues" based on the parents' denials during the interviews that were inconsistent with the police reports.
The judge noted that "[a]ll of the Division's experts" agreed that Clare "would suffer psychological and emotional harm if separated from the foster parents." The judge initially did not acknowledge Dr. Sollitto's opinion that such harm could be remedied, but noted that Dr. Whitehead "was more optimistic that the harm could be cured by way of a transition period and a course of counseling" so as not to be permanent.
He also noted that Dr. Whitehead did not have all of the information that had been provided to Dr. Beekman. The judge observed: "In spite of being confronted in cross-examination by all of this new information he indicated that that would not change his opinion and that he really didn't have any concern with regard to the ability of the biological parents to be independent caregivers."
The judge acknowledged that Dr. Sollitto had concluded that the parents were "appropriate" and that Clare could be reunified with them "without any serious consequences," but discounted her opinion because it was based exclusively on her observations during the therapeutic visitation process. She did not have the parents' entire history and did not perform a clinical interview or testing.
The judge found that George "had some credibility issues with the Court." During his extensive cross-examination regarding the police records, "he had no recollection of the incidents or a limited recollection or a very selective memory with regard to the incidents." George "appeared to minimize the incidents between he and [Ann] that required police calls." The judge also surmised that George appeared somewhat paranoid.
Although Ann did not testify, the judge questioned her credibility because she denied or minimized her criminal history, her substance abuse history, and her mental health history to evaluators. The judge said that Ann also did not disclose or minimized DYFS's involvement with her two older children.
The judge found that this was "a very difficult case." Prior to the child's birth, the parents had "a history of allegations of domestic violence, a history of assault, of consumption of alcohol requiring a number of police responses." Ann had "a history not too long before the birth" of being arrested on drug-related charges.
The judge acknowledged, however, that since Clare's birth and the March 2005 incident "the biological parents have for lack of a better term been largely on good behavior." There was no evidence of any new charges or restraining orders, and the March incident had not resulted in any charges. The parents were residing in appropriate housing, and they had participated in services, although "not in a perfectly timely manner." The judge said: "I guess the question is whether or not their history should supersede their lack of history during the last couple of years. That's one of the issues that has to be addressed."
The judge then reviewed the four prongs set forth in N.J.S.A. 30:4C-15.1a. Regarding the first prong, that the child's safety, health or development has been or will continue to be endangered by the parental relationship, the judge found there was "no question" that Clare was endangered by the March 2005 incident. He cited the incident between George and Ann as a domestic violence incident. He also resurrected the allegations of intoxication by George.
He also found that Ann's failure to obtain professional treatment for her bipolar disorder endangered Clare's health, safety, and welfare prior to removal. Further, Ann's failure to complete services and her two relapses in September and December 2005 posed a certain risk of future relapse. In conjunction with Ann's prior involvement with DYFS and the use of supervised visits exclusively, the judge found that "a continued relationship between [Clare] and her mother would endanger [Clare]'s safety, health or development."
As to George, the judge found that he had failed to protect his daughter prior to her birth because he "failed to appreciate [Ann's] substance abuse weaknesses and take the appropriate steps to protect . . . [Clare] form those weaknesses." Furthermore, his denial of any criminal history caused the agency to entrust his daughter to his care.
Finally, the judge found that George failed to protect his child in March 2005 because Clare was not properly secured in her car seat and he participated in a "verbal incident of domestic violence." The judge dismissed George as "largely incredible." The judge also cited several incidents during the proceedings when George became agitated, angry, paranoid, and oppositional. He found that George's good behavior of the last two years provided no assurances of future law-abiding behavior.
With respect to the second prong, that the parent is unwilling or unable to eliminate the harm or unwilling or unable to provide a safe and stable home and the delay of permanency will add to the harm, the judge relied on the statutory provision that such harm may include evidence that the child would experience serious and enduring harm if separated from her foster parents. Although the judge believed the parents truly loved Clare and wanted to be reunited with her, the judge had "concerns with regard to the safety of [Clare] if that were permitted to happen." The judge concluded that the biological parents were "well-intentioned" and "sincere in their desire for reunification," but the court "d[id] not feel that they really appreciate the shortcomings that they have" or "that they have really sincerely addressed those shortcomings" and that they did not "really appreciate the damage, the potential damage to the child that could result of those shortcomings." The judge also rejected the opinion offered by Dr. Whitehead following the bonding evaluation because he had not been provided with important information.
Regarding the third prong's requirement that DYFS prove that it made reasonable efforts to help the parents correct the circumstances which led to the placement, the judge found that the evidence was clear and convincing that DYFS had met this burden. The judge found that "[a]ll of the services" that he had "detailed earlier in this opinion" rose to the level of reasonable efforts. DYFS had considered alternatives to termination, but the relatives were ruled out and those decisions were not appealed.
As to prong four, that the termination of parental rights would not do more harm than good, the judge found that termination "will only bring good things to [Clare]." She was "clearly bonded to everybody involved here," but the judge found that she was "more bonded to the foster parents," to whom she looked "for direction, for stability, for support." The foster parents were "the only . . . de facto parents that the child has known." They had provided her with nurturing, love, and support and the court found that they were able to continue that in the future.
The judge entered judgment terminating George's and Ann's parental rights and denied their motion for a stay pending appeal.
George argues that the April 5, 2007 order approving the permanency plan of termination of parental rights and foster parent adoption is based on incompetent and unreliable evidence, DYFS failed to comply with its statutory obligation to attempt to place the child with family, and DYFS failed to promptly follow and implement directions contained in various court orders. As to the November 16, 2007 order terminating his parental rights, George argues that DYFS failed to establish any of the four statutory prongs by clear and convincing evidence. Here, we must review the entire record supporting the permanency and termination decisions because the termination findings are derived from the same record. As noted, the court commenced the permanency hearing in April 2006, continued that hearing even after DYFS filed its complaint seeking termination of parental rights in June 2006, and the court ruled that the record adduced during the permanency hearing would be used as the record in the termination proceeding.
Ann contends that DYFS failed to establish by clear and convincing evidence that her parental rights should be terminated. Specifically, she argues her conduct did not constitute evidence of harm to Clare, she can eliminate the circumstances that may cause any harm to her child, DYFS failed to implement visitation orders and effected a "unilateral displacement" of her parental role, and the trial judge used an improper "better interests" test in his evaluation of the fourth statutory prong. Ann also argues that the judgment of guardianship terminating her parental rights should be reversed under the doctrine of collateral estoppel because DYFS failed to comply with the timeline mandated by N.J.S.A. 30:4C-15.2. This issue was not raised at trial. Although both parties contest the permanency and termination orders and George contests several orders, we focus our attention on the November 16, 2007 order terminating both parents' parental rights.*fn4
Parents have a fundamental constitutional right to raise their children. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). But that right is balanced against the State's parens patriae obligation to safeguard the welfare of its children. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To achieve this balance, the Court requires that termination of parental rights, when in the best interests of the child, may be accomplished only by clear and convincing evidence that:
(1) The child's health and development have 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 foster parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made diligent 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.
[K.H.O., supra, 161 N.J. at 347-48.]
See also N.J.S.A. 30:4C-15.1a(1) to (4).
This analysis requires "particularized evidence" that is "clear and convincing" for all of the prongs. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Presumptions have no place in this judicial determination of parental fitness. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007); K.H.O., supra, 161 N.J. at 347. The threat of harm facing a child must be based on clear and convincing evidence, not speculation. G.L., supra, 191 N.J. at 608. Moreover, "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347.
Appellate review of a decision to terminate parental rights generally is limited by the deference afforded to a trial court's findings of fact when supported by adequate, substantial, and credible evidence in the record. J.N.H., supra, 172 N.J. at 472. But the scope of review is expanded when the issue on appeal is an "'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom.'" G.L., supra, 191 N.J. at 605 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 189 (App. Div. 1993)). Moreover, a trial court's decision will be reversed when it is clearly mistaken in holding that DYFS has met its burden of proof on any one of the prongs. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 111 (2008). No deference is afforded to factual findings based on matters that cannot be sustained objectively. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259-60 (App. Div. 2005).
The standards applied in a best interest test analysis must "reflect the constitutional significance of the interest being protected." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 603 (1986). In evaluating the harm perpetrated by the parent, the court's "primary focus . . . should be upon harm for which there is 'unambiguous and universal social condemnation.'" Id. at 604 (quoting Developments in the Law-The Constitution and the Family, 93 Harv. L. Rev. 1156, 1319 (1980)). The harm must be one that threatens the child's physical, mental or emotional health. Ibid. It also must be of a nature that "will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. While "the potential for emotional injury can be the crucial factor" in some cases, the Court has cautioned that "[n]ot every injury-real or imagined-to the child's psyche satisfies the test." A.W., supra, 103 N.J. at 605.
Parental rights are individual in nature; therefore, whether a person is fit to parent must be evaluated on an individual basis. M.M., supra, 189 N.J. at 288; F.M., supra, 375 N.J. Super. at 259. In other words, one person's parental rights may not be terminated simply because the other parent is found unfit. M.M., supra, 189 N.J. at 288. We, therefore, concentrate first on the decision to terminate the parental rights of the father.
The entirety of the trial court's specific findings on how George had endangered his child for purposes of the first prong of the best interests test consisted of the following three paragraphs:
With regard to the defendant/father the Court has concern with regard to his failure to protect the child prior to the birth of the child and after the birth of the child. [George] was aware of [Ann's] substance abuse issues prior to the birth of the child yet [Ann] was ingesting drugs minimally three days before the birth. Who knows whether there was ingestion of drugs prior to that. The defendant/father, [George], failed to appreciate [Ann's] substance abuse weaknesses and take the appropriate steps to protect the then unborn child from those weaknesses.
He was in denial with regard to his history with law enforcement. When the child was permitted to leave the hospital and return to the care of the biological parents and the paternal grandmother, there was an inquiry with regard to whether [George] had any type of background involving the police and he denied that and I can only assume that the Division did not pursue that. They took him at his word based upon what happened here and that causes me concern.
He failed to protect the child in the vehicle in March of 2005 and failed to protect the child from the evidence of drinking by [Ann], having the child appropriately belted and participating in this verbal incident of domestic violence with the beer being thrown while the child was in the car that causes me concern. It's my finding that the child's safety, health or development was endangered by the relationship with [George] prior to the removal.
The above findings simply do not provide a predicate for the level or type of harm that will support a termination of parental rights. Furthermore, because the gravamen of George's shortcomings focuses on his inability to anticipate Ann's sporadic substance abuse since they have been a couple and his failure to protect his daughter from these occurrences and any future relapse, we review the law governing when the active conduct of one parent allows termination of the parental rights of the passive parent.
In M.M., supra, the Court acknowledged that "[p]arental rights are individual" and each parent's fitness must be evaluated separately. 189 N.J. at 288. On the other hand, the Court emphasized that "the conduct of one parent can be relevant to an evaluation of the parental fitness of another parent," id. at 288-89, if the circumstances of the parental relationship cause harm to the child, id. at 289. For example, if a mother does not interfere to prevent physical harm to her children inflicted by another, her inability or unwillingness to protect them from harm will support termination of her parental rights. See N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 80 (App. Div. 2003) (the defendant's boyfriend abused her children). Similarly, this court held that a mother who refused to cease cohabitation with the man who physically abused her and her son supported termination of her parental rights. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 587, 592 (App. Div. 1996). In B.G.S., however, the mother had a three decade long history of substance abuse marked by only one year of sobriety and almost as long a history of mental illness, id. at 586, and had been counseled that she must cease cohabitation with the father of her son, id. at 590.
In M.M., supra, the father had "overcome a troubled past," worked several jobs to support his family and had been drug free for seven years before DYFS assumed custody of his son. 189 N.J. at 272. On the other hand, M.M. remained "deeply committed" to the mother of his son. Ibid. This posed a significant risk of harm to M.M.'s son because the mother abused alcohol and often left the house to binge drink. Id. at 271. She had stolen family savings to finance these binges. Ibid. She had a history of making false allegations against M.M. to gain attention and sympathy. Ibid. Moreover, every psychologist who evaluated the mother opined that she could not care for a young child because her limited intelligence and erratic behavior posed a great risk of harm to that child. Id. at 270.
In G.L., supra, the Court revisited the questions of when one parent's parental rights may be terminated for failing to eliminate harm to the child posed by the other parent or a third party. 191 N.J. 599. In that case, the mother, G.L., contested termination of her parental rights to her daughter born after the death of her son. Her son, who was in the care of her husband while she worked full-time as an accountant, died under suspicious circumstances. Ibid. Eventually, the cause of death was attributed to Shaken Baby Syndrome, and G.L.'s husband was charged with and convicted of endangering the welfare of their child. Id. at 600. 603 n.2. While the criminal proceedings were pending, G.L. became pregnant; it is this child that became the focus of DYFS's attention following her birth. Id. at 600-01.
G.L. refused to acknowledge that her husband had caused the injuries that took their son's life. Id. at 600. She adhered to the opinion that her husband was guilty only of extremely bad judgment in not pursuing emergency assistance for their son. Id. at 601. This persistence led to the removal of her second child from her care and placement with relatives. Ibid. DYFS never alleged or proved that G.L. had caused any harm to her child; in fact, the agency conceded that she was an attentive mother and followed every recommendation, including psychological treatment. Id. at 602. G.L.'s psychologist opined that she should be permitted to raise her daughter. Ibid. Her continued support of her husband, however, caused the trial judge to discount the recommendations of psychologists and to alter the case plan from reunification to termination. Ibid. Soon thereafter, DYFS filed a complaint seeking termination of parental rights. Id. at 603.
The Court reversed the order terminating G.L.'s parental rights because there was no evidence that the child's health or safety was endangered by her mother or that G.L. was unwilling or unable to protect the child from any threat posed by her father. Id. at 607. The Court said:
Under the first prong, DYFS must make a showing that [the child's] safety, health or development was endangered by [G.L.]. There is simply no proof of that. As far as this record reveals, [G.L.] is an accomplished person: an accountant with a responsible job, the assistant pastor of her church, and an able and loving mother who successfully raised another child. Moreover, [G.L.] never harmed [her daughter]. She complied with every requirement imposed on her by DYFS and satisfied both DYFS and the experts as to her ability to function as [her daughter's] mother. . . .
More importantly, given what this case is really about, DYFS also failed to show by clear and convincing evidence that [G.L.] was unwilling or unable to eliminate the threat posed by [her husband] to [their daughter]. The record underscores that [G.L.] never allowed [her husband] to see his daughter without supervision and covenanted to maintain that stance. She also underwent numerous psychological and psychiatric evaluations and participated in whatever counseling DYFS requested with the result that reunification was DYFS's goal. [Ibid.]
Although the Court acknowledged that G.L.'s refusal to accept the autopsy results and assign blame to her husband was "unrealistic and a tactical error, it did not justify loss of her parental rights." Id. at 608. In addition, the threat posed by the father that so concerned the trial judge was based on speculation rather than clear and convincing evidence. Ibid. Finally, continuation of a relationship with a loved one is not a basis for interference with a person's parental rights; it is the failure to protect a child from harm caused or threatened by the loved one that provides a basis for such intrusion. Ibid.
We turn then to evaluate the case against George. It is undisputed that Ann tested positive for cocaine when Clare was born. Ann admitted drug use three days before the child was born. Clare did not test positive. There is no proof of any nature that George knew that Ann used cocaine that day or should have been aware that she would do so. There is no proof of any nature that she used cocaine at any time since they began to live together. Admittedly, a court may find that a parent's drug use during pregnancy has harmed a child when the child suffers the effects of that use. K.H.O., supra, 161 N.J. at 349. However, "[d]rug use during pregnancy, in and of itself, does not constitute a harm to the child" under the first prong of the best interests standard. Ibid.
As to the events of March 3, 2005, the day Clare was removed from George's care, the record supports only a finding by clear and convincing evidence that Clare was not properly secured in her car seat. George was not intoxicated; he did not drive erratically. George and Ann engaged in a verbal dispute and Ann's subsequent actions created a risk of harm to all occupants of the vehicle. Significantly, however, George was able to control the vehicle at all times, thereby minimizing, if not alleviating in its entirety, the risk of harm created by Ann. Moreover, the police, who interacted with both parents, did not consider this unfortunate incident an act of domestic violence. Thus, we are left with the fact that Clare was not properly restrained. Admittedly, the child was at risk of harm but no harm occurred to her.
The gravamen of DYFS's case and the judge's decision is the fear that Ann would relapse and George would not be able to protect Clare from the effects of such an occurrence. If drug use by a mother cannot constitute harm by itself, then George's lack of awareness of his partner's single incident of prenatal drug use was not a basis for terminating his parental rights to the child. There is no evidence that during her pregnancy Ann had engaged in regular drug use or had used drugs at all aside from that one occasion. George said Ann had received regular prenatal care, and no evidence was submitted to show that any of those examinations revealed illegal drug use. The court's "who knows" speculation that there were other incidents is no more than just that, speculation. Yet, it is clear that the court relied on that speculation to fault George for failing to protect Clare from the single documented instance of Ann's use of drugs during her pregnancy.
To be sure, a urine screen in September 2005 revealed cocaine use by Ann. This was the first positive urine screen since the child's birth a year earlier. The next positive urine screen revealed alcohol use in December 2005. Without specifically referring to these two positive urine screens as relapses, it is clear that the trial judge considered these results as evidence of relapse. It is also clear that George minimized these incidents, that he was unable to prevent them and that these incidents bolstered the professionals' and the court's fear of relapse.
This is not, however, a case where the mother repeatedly tested positive for drugs while pregnant or while under treatment or DYFS supervision. This is not a case in which the mother regularly disappeared for days only to return with no explanation of her behavior. This is not a case where the mother has behaved inappropriately during visits with her child because she was under the influence of illicit substances. In short, this is not a case where the mother's use of substance was open, obvious and unremitting, and her spouse or partner did nothing to alleviate the chaos that reigned in the household. Rather, this seems to be a case in which the mother, whether she completed the MICA program or not, accrued no credit at all for providing negative urine screens and maintaining sobriety for a period of twenty-three months (January 2006 to November 2007). Moreover, the record is bereft of any admonition or direction that George should sever his relationship with Ann.
Similarly, the finding that George harmed Clare when he denied the existence of any criminal history at the time of Clare's birth does not support the termination of his parental rights. The record demonstrates that DYFS conducted an investigation of George at that time. Moreover, the record does not support that his criminal history, such as it is, caused any harm to the child.
The relationship between George and Ann from January 2002 through February 2004, based simply on the police reports, can be described as tumultuous. Police responded to George's home two times in 2002, twice in 2003, and twice in 2004. George's mother complained that Ann made harassing telephone calls to her in January 2004. On two occasions, Ann obtained domestic violence restraining orders against George. On each occasion, she dismissed the orders. In December 2003, George refused to pursue a temporary restraining order against Ann. On this occasion, simple assault charges were filed against Ann; George had sustained multiple lacerations to his face. When the police responded to George's house in April 2003, the responding officer believed George, Ann, and a friend had been drinking. This is the only instance in which police suspected George had been drinking.
We recognize that this history of loud verbal disagreements that cause one of the participants or a neighbor to call the police is an indicator of domestic violence. The record reveals, however, no calls for assistance and no police response to any place where George and Ann resided from February 2004 to November 2007.
The record also reveals that George was charged with three criminal offenses: two in October 2003 and one in February 2004. The February 2004 charge for obstructing government operations was dismissed. An October 2003 charge for narcotics was downgraded and remanded to municipal court. The documentary evidence does not reveal the final disposition of this charge or a second charge filed against George in October 2003, which was also downgraded and remanded to municipal court. At trial, George testified that he had been convicted of driving while intoxicated in 1984. He also pled guilty to a noise complaint on one of the cases remanded to municipal court. There is nothing in the record to refute this testimony.
The trial judge identified no harm that befell Clare from George's alleged concealment of prior criminal conduct. This is not an instance where a parent concealed his history as a sexual abuser and then proceeded to sexually abuse his child, or where a parent with a history of assault and aggression physically hurt his child. To the contrary, under the circumstances here, the court was able to express no more than "concern" because DYFS had been allegedly unaware of George's history when it placed her with him.
But "concern" over DYFS's alleged investigatory lapse provides no support for a finding that George harmed Clare in any way. In the absence of any link between George's past criminal record and some identified harm to Clare, DYFS's lack of information about George's criminal history was irrelevant to the first prong analysis.
Another basis for the court's finding that George had endangered Clare within the meaning of the first prong of the best interests test was the incident of March 2005. First, it found that George had failed to protect the child "from the evidence of drinking by [Ann.]" But there was no evidence anywhere in the record that Ann had been drinking in the car or before the incident. Moreover, the only evidence of Ann's intoxication on that day came from the SPRU worker, whose testimony and conclusions were replete with inaccuracies.
Second, the court's characterization of George's role as having "participat[ed]" in a "verbal incident of domestic violence" in March 2005 when Clare was removed is also unsupported by the record. There was no basis for the court's depiction of George as a perpetrator of domestic violence in front of Clare. George did not throw the beer; it was thrown at him. The extent of his participation was limited to engagement in a verbal disagreement, with no evidence that his part of the argument involved the type of verbal abuse, threats, or offensive language that might create a situation of domestic violence. See Sweeney v. Honachefsky, 313 N.J. Super. 443, 447 (App. Div. 1998) (the absence of physical or verbal abuse, threats, or offensive language does not fit comfortably into the rubric of domestic violence).
The sole evidence of harm inflicted by George upon his daughter, either prenatally or after her birth, for which there is factual support in the record, was his failure to notice that she was not appropriately secured in her car seat. Although his conduct was negligent in this day and age where such precautions are mandated,*fn5 this is not the type of harm that is so widely condemned in a society where such behavior was normal for many of us as children, that it can support a finding of harm necessary to justify termination of parental rights, particularly in the absence of any physical harm to the child.
Finally, the judge's finding that George was "a very volatile individual" does not account for the circumstances in which the judge had direct experience with George's impatience. In March 2005, George persisted in explaining to the judge that he had not been drinking, and was certainly not intoxicated on March 3, 2005. The judge acknowledged that fact and then proceeded to continue DYFS's custody of Clare because of the suspicions and allegations, rather than proof, of his intoxication. Despite acknowledging that neither parent had any further involvement with law enforcement since the March 2005 removal, the court was "not comfortable" that there would be no "recidivism" to the behavior described in the domestic violence reports.
Although George's method of expressing his frustration with DYFS's and the court's decision was ill-advised, he was faced again and again with continual misrepresentations from DYFS's representatives, which resulted in the removal of his daughter and prevented his reunification with her. George never directed his anger towards his daughter; in fact he was repeatedly criticized by DYFS for leaving a single visit early so as not to expose her to it. In the complete absence of any evidence of George's physical aggression toward Clare (or anyone else), his verbal outbursts of frustration were an improper basis to support a finding of continuing harm under the best interests test.
George had never harmed Clare within the meaning of the best interests test. He had participated in every service asked of him, provided numerous urine tests despite the absence of any history of substance abuse. In the end, the trial judge allowed the history of domestic difficulties that appears to have ceased in January 2004 to override "their lack of history during the last couple of years." The issue was whether DYFS had established by clear and convincing evidence that George was unable or unwilling to eliminate the harm that caused the child's removal. A "lack of history" was precisely the type of evidence that supported his claim. Instead, the court credited mere allegations from prior to the child's birth and accorded them more weight than the undisputed absence of any further allegations, arrests or convictions after the birth. There was no legal or factual basis for the court's decision to do so. The court's finding that George was unable or unwilling to eliminate the harm to Clare associated with domestic violence was not supported by substantial credible evidence in the record.
George also contends that DYFS failed to provide reasonable services to effect a reunification and to prevent termination of parental rights. We have recited some of the instances in which DYFS tardily implemented various orders calculated to effectuate a timely reunification. We are troubled that DYFS made no effort to rebut George's sister's testimony that DYFS never contacted her to inform her that her mother had been approved as a babysitter, and that a caseworker told her a couple of months after Clare had been placed with her current foster family that the child had bonded with them. We recognize, however, that DYFS's efforts need only be reasonable.
Sadly, the fourth prong is the only prong for which this record establishes by clear and convincing evidence that termination will not do more harm than good. This is not surprising due to the time the child has been in the care of others, a situation we have found unwarranted, and the extraordinary long time for this matter to proceed through the trial court. However, while the four criteria enumerated in the best interests standard relate to and overlap with one another to form a comprehensive standard, K.H.O., supra, 161 N.J. at 348, we know of no case in which termination of parental rights has been allowed where only the fourth prong has been established. The Court in G.L. supra, acknowledged that the understandably weak bond between mother and child could not justify termination of parental rights, particularly when the child should never have been removed from G.L.'s care. 191 N.J. at 608-09. Indeed, the Court has cautioned that parental rights cannot be terminated because a better placement exists for the child than the home and care provided by her parents. J.C., supra, 129 N.J. at 19. The government may exercise its formidable power to sever parental rights only when the harm threatened or caused to the child rises to such a degree that intervention is permitted. Ibid.
Ann argues that the decision to terminate her parental rights is not supported by clear and convincing evidence. We agree.
The trial judge identified as justification for terminating Ann's parental rights the beer-throwing incident, the domestic violence history of the parties, Ann's bipolar diagnosis and her failure to participate in programs designed to address this condition, and her failure to complete programs to address her substance abuse. In fact, the judge continually returned to this latter omission.
The March 3, 2005 incident in the car in which Ann threw a beer on George exposed all of the occupants of the car to harm. It was a negligent, indeed foolish, act. Ann has a mental health condition and a substance abuse history that require treatment. Following the March 2005 removal of her daughter, Ann tested positive for cocaine in September 2005 and for alcohol in December 2005. Ann never tested positive again, and she was not been hospitalized in 2006 or 2007 due to mental health and/or substance abuse. There is no record of aberrant or inappropriate behavior during visits with her daughter.
We do not mean to minimize Ann's prior involvement with DYFS concerning her teenage children from her prior marriage. That her conduct was attributable to her untreated substance abuse in uncontroverted. So, too, are her criminal convictions. Indeed, Ann's prior history was troublesome and warranted DYFS's concern and investigation. Her prior history, however, cannot entirely negate subsequent treatment and years of sobriety.
We do not mean to minimize her abuse of illicit substances, but this case simply does not provide an evidential record to support a finding by clear and convincing evidence that Ann is in the thrall of illicit substances and cannot protect and nurture her daughter. As noted in our discussion of George's purported minimization of Ann's substance abuse history, this record supports only two instances between September 2004, when Clare was born, and November 2007, when the opinion terminating her parental rights was issued, that Ann tested positive for cocaine and only one instance when she tested positive for alcohol. She, like George, did everything DYFS asked her to do.
Moreover, the domestic violence history cited by the judge occurred well before the birth of the child. In a curious turn of events, the absence of any positive urine samples and domestic violence incidents or reports was turned against Ann and George. Their "good behavior" was discounted as fake rather than insight and reform. In short, this case simply does not present the evidential record by which a judge can find by clear and convincing evidence that the harm posed to the child is of the magnitude to satisfy either prong one or two in order to invoke the ultimate sanction of termination of parental rights.
As noted in our discussion of the evidence in support of termination of George's parental rights, DYFS has established the fourth prong by clear and convincing evidence, which has occurred due to the passage of time and the unfathomable failure of both trial and appellate counsel to seek visitation pending appeal. To be sure, under the last prong of the best interests standard, that the termination of parental rights will not do more harm than good, N.J.S.A. 30:4C-15.1a(4), the overriding consideration is the child's need for permanency and stability. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. See J.C., supra, 120 N.J. at 19 (it must be shown that a child will suffer serious and enduring emotional or psychological harm; a demonstration of a strong relationship with the foster parents is not enough). The mere fact of a bond with the foster parents does not, alone, justify the termination of parental rights. G.L., supra, 191 N.J. at 609; In re Guardianship of K.L.F., 129 N.J. 32, 44-45 (1992). However, a child's need for permanency is an important consideration. See K.H.O., supra, 161 N.J. at 357-58 (the State has a strong public policy in favor of permanency).
Although we reverse the termination of Ann and George's parental rights, immediate reunification would be unwise and the judge should be mindful of our admonitions in F.M., supra:
Plainly, [the mother] will need to engage in the therapy that [DYFS] previously failed to afford her and that was an impediment in the view of both experts to reunification. Both [children] will also need therapy in order to assist them with reunification with [the mother] as well as with the inevitable disruption to their lives that leaving their foster parents will entail. We echo, however, our observation in T.C. that "[t]here is much that is disquieting about this case." [N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419,] 433 [(App. Div. 1991)].
We recognize that [DYFS's] expert believes that the harm to [the children] that will flow from their separation from their foster parents will be extreme and that their removal from that placement will be ill-advised. We recognize that [the mother] will need assistance and support if she is to be reunited with her children. We also recognize that the best interests of the children must be the focus of all future proceedings. We leave to the sound discretion of the trial court how best to serve these competing considerations. [375 N.J. Super. at 263-64.]
The matter is remanded to the trial court to fashion reinstatement of visitation and consideration of a plan for reunification that will be in Clare's best interest, including therapy for defendants, individually, and jointly, as required, for defendants and Clare, and such further services as are necessary to ensure that the trauma to Clare of separating from her foster parents will be minimized as much as possible. Due to the lapse in visitation, we are loathe to prescribe a timetable for reunification. We will not tolerate, however, the type of delays and excuses already encountered in this matter. Furthermore, because the trial judge heard the evidence and made findings of fact that we have found unsupported or not justifying termination of parental rights, a judge previously unassociated with this case should be assigned to oversee the proceedings in remand. A.W., supra, 103 N.J. at 617-18.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.