On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-67-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Winkelstein, Fuentes and Gilroy.
D.N., the biological mother of N.Q.N., appeals from the August 10, 2007 order of the Family Part that terminated her parental rights to her son. The parental rights of A.C., the named biological father, were also terminated, but he does not appeal. For reasons that follow, we reverse and remand to the trial court for further proceedings consistent with this opinion.
This is the second termination action filed by the New Jersey Division of Youth and Family Services (DYFS) seeking to terminate D.N.'s parental rights to N.Q.N. On January 30, 2004, DYFS filed its first complaint for guardianship. The case was tried in October 2004. On December 13, 2004, the trial court entered an order, supported by a written opinion, determining that DYFS had failed to prove the third and fourth prongs of the best interests of the child standard. N.J.S.A. 30:4C-15.1a. Accordingly, the court dismissed the termination complaint and reopened the prior protected services litigation, concluding that D.N. "should be given a chance to demonstrate whether she can parent her son [N.Q.N.]."
On October 4, 2006, the court granted DYFS's emergent application to remove N.Q.N. from D.N.'s custody because of D.N.'s pending dismissal from the residential placement where she and her son had been residing. On September 26, 2006, DYFS filed its second complaint for guardianship. The matter was tried in July 2007. On August 10, 2007, the trial court entered an order, supported by an oral decision, determining that DYFS had proven the four prongs of the best interests of the child standard. On the same day, the court denied D.N.'s oral application for a stay pending appeal to allow for continued visitation.
Although there were two separate termination proceedings before the trial court, the evidence presented during the second trial overlaps the evidence presented during the first. Accordingly, it is necessary to review the first proceeding to bring the second proceeding into context.
The facts pertaining to the first termination proceeding are as follows. D.N., born August 1986, struggled through her formative years. DYFS first became involved with D.N. in September 1987 when it investigated referrals involving physical abuse, neglect, and substance abuse on the part of her parents. After D.N.'s mother died of an HIV-related illness in October 1991, having lost contact with her father, D.N. first lived with her maternal grandmother and afterwards with her maternal great aunt. Because of behavioral problems, D.N. remained under the supervision of DYFS, with the agency providing her counseling services and monitoring.
On August 18, 2000, while detained in the Essex County Juvenile Detention Center at the age of fourteen on a charge, which if committed by an adult, would have constituted aggravated assault, D.N. was evaluated by Dr. Gary Madriss, a psychologist. During the interview, D.N. admitted to committing acts, which she described as "wilding out," that is, "frequent episodes in which she cuts people with razor knives." At the time, she had been suspended from her eighth grade class in school because, having become bored, she often started arguments and fights. Nevertheless, in the previous grade, she was found eligible for the gifted and talented class. Madriss described her as "an enigma for the school personnel." He opined that D.N. "requires a strong supportive female therapist who can attend to her needs and allow her to both work through closure regarding her mother as well as to work on gaining anger management skills."
N.Q.N. was born on April 14, 2002, while D.N. was incarcerated in the Juvenile Female Secure Care and Intake Facility in Bordentown. D.N. had been committed to the facility for one year on October 24, 2001, for possession of a controlled dangerous substance. On April 15, 2002, DYFS received a referral from the juvenile facility, informing the agency of N.Q.N.'s birth. A DYFS caseworker immediately contacted the Capital Health System at Mercer Hospital in Trenton and confirmed that D.N. had given birth to N.Q.N. the previous day, and that the baby was healthy.
On April 23, 2002, DYFS filed a complaint seeking legal custody of both D.N. and her son. The court granted the relief requested.*fn1 On May 8, 2002, N.Q.N. was discharged from the hospital to a Project Babies foster home after DYFS had explored D.N.'s relatives for her son's placement, but found none of them appropriate to care for the child. On July 2, 2002, D.N. was released from the juvenile facility and moved in with a twenty-year old female friend, L.M.
On July 12, 2002, at DYFS's request, D.N. underwent a psychiatric evaluation by Dr. Alvaro Gutierrez, M.D. He diagnosed D.N. with conduct disorder, NOS and R/O post-traumatic stress disorder. He found that D.N. was intelligent, not psychotic. He opined that she "may be able to take care of her son if she receives intensive and extensive support." The doctor also recommended that D.N. undergo psychological testing, be referred to a parental skills training class, receive random drug-screening tests, and be referred to a community mental health clinic for psychotherapy. Lastly, he stated that D.N. should have "unsupervised visitation rights and if she follows the above recommendations and shows interest, she may be able to take care of her son if she has the appropriate support."
On July 9, 2002, following Gutierrez's recommendation, DYFS requested that D.N. undergo a psychological evaluation by Dr. Leslie Williams, a psychologist. After reviewing D.N.'s history of antisocial and acting-out behavior, Williams concluded that D.N. "was probably neglected as a child and may have been abused herself. She undoubtedly has unmet nurturance needs as well as unresolved anger and sadness over the abandonment by her parents, one of them by death." The doctor opined in his report of August 9, 2002, that:
[D.N.] is not capable of providing adequate parenting of [N.Q.N.] independently. While she may not be intellectually limited, she has severe emotional and behavioral problems that have not gone away just because she was incarcerated (particularly since [D.N.] did not appear fazed by her time in detention). [D.N.] has not demonstrated the ability to effectively meet her own needs let alone those of a child who would be dependent on her. She needs intensive psychotherapy including anger management, interpersonal problem solving and impulse control training. [D.N.] also needs therapy for her grief and anger that may still be motivating her behavior. She needs substance abuse treatment for alcohol abuse. [D.N.] would most benefit from a residential treatment facility where she would have structure and guidance along with treatment and education.
It might be feasible for her to have [N.Q.N.] with her if she were in such a program . . . . [D.N.] will undoubtedly resist treatment and test limits; it is better if she does that without [N.Q.N.] in her care where he would be at risk for at least neglect. She should have regular contact with [N.Q.N.] but it will take a minimum of one year before [D.N.] can be considered stable enough to have a child in her care.
Commencing at the end of July 2002, DYFS arranged for D.N. to receive parenting classes and counseling through Project Babies at Youth Consultation Service (YCS). During that time, D.N. was permitted to visit her son daily through Project Babies. In September 2002, after D.N. engaged in a verbal confrontation with L.M. over D.N.'s failure to follow L.M.'s house rules of cleaning up after herself and not staying out late at night, L.M. requested that she leave her home. D.N. then moved in with her sister and her maternal grandmother.
In October 2002, DYFS was advised by YCS that D.N. had attended only one of seven counseling sessions. Nevertheless, YCS suggested that if D.N. and her son were placed in a residence together, it would foster their relationship. In November 2002, DYFS filed a request seeking Interstate approval for placement of D.N. and N.Q.N. with A.W., D.N.'s maternal great aunt in Maryland, after the great aunt had expressed an interest in caring for them. In the interim, D.N. remained in the care of relatives in New Jersey. While waiting for placement approval with A.W., DYFS simultaneously sought residential placement in New Jersey. Unfortunately, none of the placement programs were suitable for D.N. and her son. For example, while one program only accepted pregnant teens, another only accepted mothers over eighteen years of age.
On May 7, 2003, Tanya Holland, a clinical extern, and Dr. Jennis Hanna, a psychologist, issued a joint treatment summary of D.N. on behalf of YCS. They noted that D.N. "shows care and concern for her son and [N.Q.N.] appears to be at ease with his mother. [N.Q.N.'s] attachment to his mother is evident in the way he is comforted by her, seeks her out when she leaves the room and smiles when he sees her." Acknowledging that D.N. is eager to leave her current living situation and to reunite with her son, Holland and Hanna found that: "[p]lacement in a residence that allows the two of them to be together is an ideal way to foster their relationship. Reunification should still be considered a viable option."
Meanwhile on April 28, 2003, D.N. underwent another psychological evaluation at the request of DYFS for the purpose of assessing her parenting capabilities. The evaluation was performed by Dr. Albert Griffith, a psychologist. He diagnosed D.N. with conduct disorder and oppositional defiant disorder. As for D.N., he recommended that if placement with her maternal great aunt in Maryland did not come into fruition that she should be placed with another relative or person who would be agreeable to accept co-parenting. He opined that "[g]iven [D.N.'s] level of maturity it is not likely that she will be able to parent independently for the foreseeable future. Thus placing her in sole custody of a child is contra-indicated."
In the interim, N.Q.N. remained at Project Babies for one and one-half years before being placed in foster care. On August 13, 2002, N.Q.N. underwent an evaluation for early intervention services. The evaluation determined that he had a 25% delay in all areas. The clinician who performed the evaluation recommended that he be enrolled in an Early Intervention Program with parent education and support. On April 3, 2003, N.Q.N. was placed in foster care with the M's. On May 10, 2004, he was placed with new foster parents, the D's. While there, he continued to require early intervention services in the area of his communication skills.
On October 23, 2003, DYFS was advised by D.N.'s great aunt in Maryland that, because of personal medical reasons, she would be unable to care for either D.N. or her son. During this time period, D.N. maintained weekly visitation with her son through Tri-City Peoples Corporation (Tri-City). On November 21, 2003, the court approved DYFS's permanency goal of adoption. The order also provided that DYFS was to provide D.N. an opportunity to enter a residential program. On January 30, 2004, DYFS filed its complaint for guardianship.
On January 6, 2004, D.N. was placed in the Isaiah House's Community Creche Program. While there, D.N. completed parenting classes, maintained regular visitations with N.Q.N., and attended General Equivalency Diploma (GED) preparatory courses. DYFS also referred D.N. to Johnson and Associates for individual counseling. After an interview with Newark Renaissance House, D.N. was found not to need substance abuse treatment. In fact, D.N. never tested positive for controlled dangerous substances after her son's birth.
When D.N. was initially placed in the Community Creche Program, it was DYFS's intention to place N.Q.N. with D.N. within one or two months of her admittance into the program. However, on April 5, 2004, the Community Creche Program notified DYFS that D.N.'s ability to remain in the program was dependent on her emancipation because the program was not licensed to serve minor mothers unless they were emancipated. As a result, D.N. was transferred to Isaiah House's Teen Map Program for teenage girls, but N.Q.N. was not placed with her.
On March 17, 2004, Dr. Williams conducted a second psychological evaluation of D.N. and a bonding evaluation of D.N. and N.Q.N. In his report dated April 13, 2004, Dr. Williams stated as to D.N.:
I continue to believe that [D.N.] is not capable of independently caring for [N.Q.N.]. She still needs psychotherapy to address the issues noted in my last report and the current one; she still needs to address her history of alcohol/drug abuse. If [D.N.] and [N.Q.N.] were placed together in a program such as Isaiah House, it would need to be a long-term program of at least one year in length. Such a program should address her educational and vocational needs as well as actively work on her parenting skills. The program would need to be attuned to [D.N.'s] significant psychological issues that undoubtedly interfere with her ability to care for a child. I believe that she would need supervision on a daily basis to help her address the stresses of caring for a young child.
After noting in his bonding evaluation that D.N. was attentive to her son and her son appeared to enjoy being with his mother and liked her attention, Williams opined:
With regard to the bond between [N.Q.N.] and [D.N.], I believe that [N.Q.N.] is forming a positive bond with her but, due to his developmental age and the fact that he has never lived with [D.N.], I do not believe that the bond is a permanent one at this time such that [N.Q.N.] would experience severe and enduring psychological harm if his contact with [D.N.] were to end. [D.N.] has a long way to go before she would be able to provide adequate parenting to a child. She needs much help in every area of her life (e.g., emotional/psychological, educational, financial, and vocational). Unfortunately, it remains to be seen whether she can actually make and sustain positive changes in her life. Her prognosis would have to be considered guarded at best, and this is based on [D.N.] actively cooperating with all of the above recommendations.
D.N. retained Dr. Matthew Johnson, a psychologist, to evaluate her, focusing on her parenting competence and the placement needs of her son. As noted in Johnson's report of July 12, 2004, he conducted the examination on July 7, 2004, when D.N. was seventeen years old and her son was two years old. During the examination, the doctor conducted an at-length interview of D.N., reviewed various prior reports including the August 9, 2002 initial psychological report of Dr. Williams and records from Tri-City concerning D.N.'s visitation with her son on a weekly basis from November 26, 2003, to January 6, 2004.
Dr. Johnson also conducted several psychological tests of D.N., including the Wide Range Achievement Test, for the purpose of assessing her academic skills; the Beck Depression Inventory, to assess for evidence of depressive systems; the Beck Anxiety Inventory, to assess for evidence of anxiety symptoms; and the Parent-Child Relationship Inventory, to assess D.N.'s parenting attitudes and approaches. Johnson opined that his examination did not reveal any signs of psychiatric symptoms or psychological impairment. He found that her academic skills were adequate, with indications that she was advanced in some areas. Lastly, he determined that her responses indicated that she was "adequately knowledgeable to provide custodial care to her son," but he qualified that determination with the need to conduct further parenting skills and bonding evaluations.
On August 30, 2004, Johnson conducted a bonding evaluation of D.N. and her son. Following the evaluation, Johnson stated in his report of September 3, 2004, that his "[o]bservation of their interaction indicates attachment, apparent in [N.Q.N.'s] recognition and response to his mother as well as the mutual displays of affection. Available records indicate that [D.N.] has provided a consistent presence in her son's life through regular visitation and reports indicate her behavior with him during the visits has been appropriate and nurturant." Dr. Johnson opined:
The findings indicate that [D.N.] is a viable permanent placement for her son if she is provided supportive housing (such as that offered through Isaiah House) and/or other social supports. It is recommended that [D.N.] continue to receive mental health counseling and receive social service support from DYFS. It is also noted that delaying this child's placement with his mother may have adverse effects given [N.Q.N.'s] tender age.
Following a seven-day trial in October 2004, the trial court determined that, although DYFS satisfied the first two prongs of the best interests of the child standard, it failed to prove the third and fourth prongs. The court found that DYFS failed to meet the third prong because it had not made reasonable efforts toward reunification in that it failed to secure a common residential placement for D.N. and her son. The court reasoned that D.N. "should have been given an opportunity to truly demonstrate whether she was capable of parenting her son in a structured environment." Accordingly, the court dismissed DYFS's guardianship complaint and reinstated the prior protected services litigation. In so ordering, the court directed that N.Q.N. be immediately placed with his mother in a residential program "for a six-month period in order to assess her ability to parent." On December 17, 2004, N.Q.N. was placed with D.N. at Isaiah House.
The second termination action was tried before another judge. Testifying at the trial on behalf of DYFS were: Dr. Elayne Weitz, a psychologist; and Helen Saliman and Nancy Kimaru, DYFS caseworkers. Testifying on behalf of D.N. were Dr. Johnson and D.N.
On placement at Isaiah House, N.Q.N. was enrolled in the facility's on-site daycare. By the time N.Q.N. was placed with D.N., D.N. had completed her second parenting class; received her GED; studied and received a certificate in food handling; registered herself for welfare; and was interviewing for job placement.
Initially, when N.Q.N. arrived, D.N. failed to address all his needs. For example, D.N. failed to attend breakfast with her son on time; failed to provide him with his medication; and failed to properly dress him. She was also cautioned by staff that she was not spending sufficient time with her son, but rather was leaving him at the daycare center. As described by one of the clinicians in Isaiah House, "[a]lthough she would not admit it, D.N. is slightly overwhelmed by the new expectations of her, now that she is in a position to demonstrate her ability to parent. She has had difficulty getting herself up on time to provide bathing and unhurried breakfasts for [N.Q.N.] (and herself)."
By March 2005, D.N. had re-engaged in counseling and anger management. In addition, she was granted weekend pass privileges to stay at the home of B.S., her aunt, whose home was found appropriate for overnight stays by DYFS. Unfortunately, according to Saliman, N.Q.N.'s then caseworker, Isaiah House subsequently reported several incidents concerning D.N.'s violations of the program's behavioral rules.
The first occurred on August 30, 2005, when Isaiah House reported that D.N. was associating with a former resident of the program and "that they might be drinking." D.N. admitted that she had befriended the former resident but denied drinking. The second incident occurred on September 9, 2005, when D.N. and her son were away from Isaiah House on a weekend pass. D.N. returned to Isaiah House around 12:30 a.m. to pick up some personal belongings. When asked where N.Q.N. was, D.N. replied that he was in the car outside. However, a security guard reported that when he checked the car, N.Q.N. was not in it. D.N. explained that the security guard probably looked in the wrong car, and Saliman never followed up by questioning the guard further.
The third incident involved D.N.'s abuse of her weekend pass privileges. In October 2005, Isaiah House reported that it had discovered that D.N. was not always staying overnight at the approved home of her aunt, B.S. D.N. denied the allegation. However, when Saliman visited B.S.'s home to confirm that D.N. stayed there on weekends, B.S. told her that, although D.N. and N.Q.N. visited her sometimes, they never stayed overnight, but instead slept at D.N.'s grandmother's house. Saliman visited the grandmother's house and described it as a "mess" with no lights, and smelling of cat urine.
Contrary to D.N.'s version of events, the grandmother confirmed that D.N. and N.Q.N. slept there. When confronted, D.N. again denied that she slept there, insisting she slept at B.S.'s home, even when Saliman called B.S. in front of D.N. to confirm her story. D.N. stated that she did not always spend the night at B.S.'s house because N.Q.N. would fall asleep somewhere else and she did not want to move him, but that she and N.Q.N. did sleep at B.S.'s sometimes. As a result of this incident, D.N.'s weekend passes were revoked.
According to D.N., the loss of her weekend passes prevented her from attending her four-hour Saturday class at Essex Community College, resulting in a failing grade. D.N. stated that when she tried to speak to Saliman about the class, Saliman "would say something like, 'You're not the only person that I have on my caseload' . . . or something like that." However, Saliman denied that D.N. told her that she was unable to attend the class after her weekend passes were revoked, and that no one would have prevented her from going to school for any reason.
Other difficulties continued between D.N. and the Isaiah House staff. The program workers reported that D.N. did not "maintain a clean environment for herself and [her son]." D.N. contended that she did keep her room clean, but that the "staff want[ed] her to do things in a certain way, and if she doesn't do it [the] way they want her to . . . they fail her room inspection." According to Saliman, D.N. told her that she will not "do it that way" and described it as "a constant battle between [D.N.] and the staff in trying to keep her ...