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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...