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New Jersey Division of Youth and Family Services v. D.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 2, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.H., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF T.J.L.H., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-82-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2009

Before Judges Cuff and Fisher.

In this appeal, we review a judgment terminating the parental rights of defendant D.H. to T.J.L.H., her daughter. Because the judgment was not supported by clear and convincing evidence, we reverse.

I.

Defendant D.H. (hereafter "Donna"*fn1 or "the mother") gave birth to T.J.L.H. (the child) on February 2, 2005. Although neither Donna nor the child tested positive for drugs at birth, plaintiff Division of Youth and Family Services (the Division) commenced an action seeking custody of the child because of Donna's history of substance abuse and an open case regarding one of her other children.*fn2 The child was removed from Donna's care and placed with her oldest daughter, S.H., who was then twenty years old. Three weeks later, the child was removed from S.H.'s care and placed in foster care, where she presently resides.*fn3

At a fact finding hearing in March 2005, the judge found Donna was addicted to cocaine and had refused to address her substance abuse problem despite services provided by the Division. Donna was psychologically evaluated by Dr. Alan Gordon, who concluded that she was then not capable of caring for her children. She certainly needs services. She has to complete those services before she can be considered as an individual who is capable of caring for children. . . . She does not have a job. . . . She does not have stability in her life at this time.

Dr. Gordon further observed that the mother had reported to him domestic violence involving the child's named father.*fn4 Although the Division's brief couches this domestic violence as something Donna was "involved in," as if suggesting she may have been a combatant, in fact the report given to Dr. Gordon by Donna indicated the child's father hit her in the ribs, bent her arm back, broke three of her teeth and generally "beat the hell out of [her]" on one occasion. In short, the information provided to Dr. Gordon revealed that Donna had been a victim of domestic violence.

In November 2005, Dr. Vivian Chern Shnaidman conducted a psychiatric evaluation and concluded that Donna's "substance abuse and personality disorder are the most salient features of her overall makeup," and that it was unlikely that [she] will benefit from an inpatient [substance abuse] program [because] she does not have the insight into the necessity for rehabilitation. Rather she presents as defiant, and appears to prefer to relinquish custody of her children rather than relinquish her substance-abusing lifestyle.

Following these evaluations, a permanency hearing occurred on December 15, 2005, and the matter was then placed on a dual track of reunification and termination. That is, the judge found it appropriate to proceed with reunification but also held that termination should be sought if the mother failed to complete the recommended substance abuse and mental health treatments.

By the time of that permanency hearing, Donna was engaged in a substance abuse program that was not the program recommended by the Division. Donna also began a therapeutic relationship with Dr. Blanche LeVere on January 17, 2006.

Donna graduated from her drug treatment program in August 2006. By the time of the trial in this termination action, she had been drug free for approximately three years.

The record also reveals that, in August 2006, the mother's therapeutic relationship with Dr. LeVere ended on bad terms. In addition, on June 26, 2006, Dr. Jaime Gordon-Karp provided a psychological reevaluation of the mother and recorded that the mother continues to face difficulty in managing her anger in court. While she recognizes she has problems with her anger, she does not appear to recognize how her behavior is perceived by others. This continues to be an area of concern.

Dr. Gordon-Karp recommended that Donna continue with individual therapy and participate in anger management classes.

In a September 8, 2006 addendum to her report, Dr. Gordon-Karp opined that Donna's problems with anger have not subsided. In fact, her aggressive and explosive behaviors are pervasive in numerous settings and encounters.

Although, [Donna] has remained drug free, her behaviors have remained consistent. Based on the updated information*fn5 provided to this [p]sychologist, I have serious concerns regarding her ability to protect her daughter from harm.

On September 13, 2006, Dr. Gordon-Karp declined to perform the bonding evaluations required in the case because of what she referred to as the mother's "history of volatile behavior and her frustration directed toward me with regard to the [September 8, 2006] addendum."

Two days after Dr. Gordon-Karp's last comments, Dr. LeVere provided a summary which indicated that the mother's behavior makes it extremely challenging to help her work through her difficult issues.

Until [Donna] is willing to trust, let down her guard, and do the hard work needed to improve her attitude, appropriate long term change will be minimal. [Donna] has to desire to make these mental and behavioral changes.

[She] had not established a plan goal for reuniting with [the child]. . . . The one time that she was asked to identify plans for [the child], she responded in a hostile and angry mood.

Based on all this information, the judge concluded at a permanency hearing on December 15, 2006, that the Division's permanency plan that the child not be returned to her mother was appropriate and should be pursued.

II.

On March 15, 2007, the Division commenced this action. At the conclusion of a nine-day trial, the trial judge rendered an oral decision and, thereafter, entered a judgment terminating the mother's parental rights to the child. The mother has appealed, arguing that the judge's findings were not supported by clear and convincing evidence.

Appellate review of a decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because trial court findings "are considered binding on appeal when supported by adequate, substantial, and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), we will not intervene unless the findings "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). See also Matter of Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

This standard of review requires that we defer to trial judges' findings of fact because trial judges are in a better position to evaluate the witnesses' credibility, qualifications, and the weight to be accorded their testimony. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). In other words, a trial judge's "'feel of the case' . . . can never be realized by a review of the cold record." Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396 (2009). We also will give special deference to the fact findings of Family Part judges because of their special expertise in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

At the same time, we must always remain cognizant of the constitutional right of parents to "maintain a relationship with their children." Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007). And, although we must keep in mind that these rights are "fundamentally important," we remain mindful that "they are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" G.M., supra, 198 N.J. at 397 (quoting Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)). Accordingly, while we owe deference to the factually-supported findings of trial judges in such matters, in balancing the competing interests, we must "ensure that the statutory and constitutional rights of the parent or guardian are scrupulously protected." G.M., supra, 198 N.J. at 397 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

III.

In reaching his decision, the trial judge correctly turned to N.J.S.A. 30:4C-15.1a, which mandates that, in order to obtain the termination of parental rights, the Division is required to prove by clear and convincing evidence that:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm . . .;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

See also Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

A.

In finding that the requirements of the first prong had been satisfied, the judge relied upon Donna's longstanding substance abuse problem. There was ample clear and convincing evidence in the record to support the judge's finding in that regard.

In moving to the second prong, which constitutes the main battlefield in this appeal, we recognize that often there is a close relationship, or overlap, between the first and second prongs. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999); N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). However, in this case, the judge's finding on the first prong was based upon the mother's history of substance abuse. Although we agree the evidence was overwhelming that "[t]he child's safety, health or development has been . . . endangered" by Donna's past conduct, N.J.S.A. 30:4C-15.1a(1), there is also no dispute that those issues no longer constituted an obstacle to reunification. The difficulty with this case lies elsewhere.

After close examination, we conclude for the reasons that follow that the record does not contain clear and convincing evidence to support the judge's findings on the second prong. We reverse for that reason and, because the Division must prove all four prongs to obtain termination, G.L., supra, 191 N.J. at 606, we need not discuss the judge's findings on the third and fourth prongs.

B.

While, as we have mentioned, there is no question that Donna's past conduct was inimical to the best interests of the child, things greatly changed after the child's birth. The judge recognized that concerns about the mother's past drug abuse, as well as the issues surrounding her lack of a sufficient education, employment and a stable home, have evaporated:

There's no question that [Donna] previously led a life involved with substance abuse and she was a user during the pregnancy with [the child] and earlier. There's also no question or factual dispute that she is now and has been drug free for an extended period of time, two years or so. She's graduated from a [substance abuse] program and did that on or about April 1st, 2006. She's repeatedly been tested and she's passed all those tests. [Donna] initially had issues of stability with respect to employment and with housing, but as of now, she's had an apartment for over a year, which according to the testimony causes the Division no concerns. It's neat and clean according to Aubrey Lutz, the Division worker who testified on behalf of the Division.

[Donna] now holds steady employment with a mortgage and finance agency. She graduated from high school, having received her GED, in 2006. [Donna] was afforded the opportunity to visit with [the child] and has been[n] doing so for almost all of [the child's] life. She did miss visits in February 2008 and she missed on[e] in January of 2008 and some prior to that. The visits have been supervised. The testimony is that all the visits have been appropriate with no concerns raised. No anger issues were seen during visits with [the child].

Obviously, the turnaround in the mother's life after the child's birth was nothing short of extraordinary.

Nevertheless, the Division took the position that other attributes or defects in the mother's character supported a finding that she was or remained "unwilling or unable to eliminate the harm facing the child . . . ." N.J.S.A. 30:4C-15.1a(2). Although the judge agreed that Donna had "anger" or "emotional" issues that created potential harm for the child should mother and child be reunified, we conclude after a careful review of the record that the evidence in support of that finding does not meet the clear-and-convincing standard. In examining the evidence, we find that: (1) Dr. James Loving's opinions, upon which the judge relied, were not stated with sufficient firmness to warrant a finding that the conclusions were true pursuant to the clear-and-convincing standard; and (2) many of the specific events cited in the judge's opinion in adopting the Division's theory are not supported by the record.

1. Dr. Loving's Testimony

In making his findings on the second prong, the judge placed great reliance on the testimony of Dr. Loving. In agreeing with the Division that Donna's anger and emotional problems constituted a continuing danger to the child and, thus, supported a finding in the Division's favor on the second prong, the judge cited to Dr. Loving's testimony that Donna "was discharged from Diane's House[*fn6 ] . . . for what [Dr. Loving] characterized as aggressive behavior." The judge also referred to Dr. Loving's opinion that although Donna "is essentially drug free and will likely stay clear of drugs[,] . . . she must learn to control her anger."

In considering these findings, it is important to observe that Dr. Loving never viewed the anger issues as conclusive regarding the mother's ability to parent; instead, Dr. Loving expressed uncertainty about the issue. Dr. Loving's meeting with Donna reveals much about his opinions, as he acknowledged.

Dr. Loving indicated that he had Donna take certain written tests, following which he met with her and initially found her "gruff and unpleasant." However, he noted a marked change over the course of that single interview: she really did appear to be able to build a rapport with me. We spent a lengthy interview talking about a lot of sensitive topics. And my impression was that over time by the end of that interview she was a lot more cooperative, she was a lot more engaging, she was receptive to feedback that I gave even though some of that feedback was negative.

And so there was a real contrast that I pointed out in my report of first impression versus interactions over time.

Also by the way in terms of mental status, things that we would look for in an interview that might be signals of mental health issues. There was nothing remarkable. There were no signs of depression, there were no signs of psychosis and so on.

Dr. Loving's testimony also revealed that Donna was receptive to treatment for any lingering concerns:

She's completed treatment and she gave plenty of indication throughout my evaluation that she has bonded with the treatment, she has used it, she's internalized information that's been given to her, and that she's taken a lot of steps to ensure that she'll stay vigilant about staying drug free.

It is certainly worthy of note that this testimony from Dr. Loving reveals a significant change in Donna from what was revealed by Dr. Shnaidman's opinion, quoted earlier, which predicted it was likely Donna would not be able to successfully combat her drug addiction because she was "defiant." We, thus, view the judge's reliance on both Dr. Shnaidman and Dr. Loving to be inherently inconsistent because the former found it unlikely that Donna could overcome her "defiant" attitude and Dr. Loving, while suggesting concerns about her attitude, recognized that she had overcome her "defian[ce]" to a large degree because she had successfully completed drug treatment, had remained drug free, and turned around her life and living conditions.

In a single sitting with Donna, Dr. Loving's initial concern about her demeanor waned and, before the session was over, he had determined she had "bonded with treatment" and "internalized information that's been given to her" in staying free from drugs. His observations suggest a person much changed from the person examined by Dr. Shnaidman or the person who engaged in a physical confrontation upon which the Division heavily relies in asserting the importance of termination here.*fn7

Indeed, Dr. Loving refers to the past "physical violence" but recognized that the "main area of concern" has to do with Donna's "ability to interact with people in a way that's cooperative without becoming verbally or physically aggressive." As a result, Dr. Loving expressed his concerns that she does not recognize how she comes across to people so that she genuinely feels justified in how she interacts with people but that other people see it very differently than that and perceive her at times as being hostile or threatening.

Dr. Loving was also quick to indicate that he "did not find any evidence of violence or aggression directed towards [the child] and so I'm not focusing on a risk for physical child abuse." In short, Dr. Loving expressed concern for the child being exposed to a mother who has "a world view that involves seeing the world as being a hostile place where people are threatening and where she expects to be abused again, if not physically then emotionally."

It is readily apparent that Dr. Loving's views provided the centerpiece for the judge's decision. In considering whether the judge could find from that testimony that Donna remained "unable to eliminate the harm facing the child," it is important to focus on the clear-and-convincing standard of proof that N.J.S.A. 30:4C-15.1a imposes on the Division.

Clear and convincing evidence is that which is "so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the precise facts in issue." Matter of Seaman, 133 N.J. 67, 74 (1993) (quoting In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), modified, 90 N.J. 361 (1982)). The clear and convincing standard thereby requires that the judge possess "a firm belief or conviction as to the truth of the allegations sought to be established." Matter of Purrazzella, 134 N.J. 228, 240 (1993) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)).

In applying this standard, we conclude that the judge could not have reached "a firm belief or conviction" about the extent or weight of the mother's anger and emotional issues. We reach that conclusion with confidence, even though we did not have the opportunity to witness Dr. Loving's testimony, because Dr. Loving indicated he was less than certain. Although he provided the ultimate opinion the Division sought, Dr. Loving also stated there were "some question marks in terms of [Donna's] ability to maintain stability and address the issues that might be risks to her child," and "some uncertainties including how effectively [Donna] is able to manage her anger and have relationships with people around [the child]." An expert's conceded "question marks" and "uncertainties" about such highly relevant facts would hardly permit a factfinder to reach a "firm conviction" of the truth of the matter.

Indeed, Dr. Loving summed up his views in the following way, revealing he has firm convictions favorable to the mother's capability in some areas to parent the child, and in other areas of concern -- that is, those areas relied upon by the Division in support of termination -- he indicated he could not provide a conclusive opinion:

Q: . . . Do you think at this stage, and we're talking about this stage in reference to this litigation, do you think at this point [Donna] is able to properly parent [the child] based on all the evaluations that you've completed?

A: I would say that there are some areas where I can offer a firm opinion and that she is capable of parenting. And as examples I have no concerns about [the mother's] parenting knowledge. And so that if there were a question of needing parenting skills, training or parenting education at this point I would disagree.

As another example I would have no concerns with her ability to nurture [the child] as they interact with each other. And that's based largely on my observations that we haven't talked about yet from the bonding evaluation but also professional descriptions.

So in some areas I have no concern about her ability to parent. In other areas I can't offer an opinion to say conclusively that she can't. And where the uncertainty comes in is in a couple of areas that I've already mentioned.

Number one, her ability to cooperate with professionals as [the child] needs; school, medical, possibly mental health professionals. There are serious concerns about how well [the mother] is able to work with professionals for her daughter's needs.

Based on the pattern of interaction so far there will always be a potential threat of a new referral being made or something else that could cause her to be suspicious and defensive and not cooperative.

And the other area that I have strong concerns about her ability to parent is the ability to provide safety in terms of verbal abuse or exposure to verbal conflicts as I discussed earlier. [Emphasis added.]

Dr. Loving's inability to provide certainty about the impact of Donna's alleged anger problem is not revealed by this testimony, which was elicited during direct examination. During cross-examination, Dr. Loving again revealed he had no firm conviction about the concerns he listed toward the end of the testimony quoted immediately above:

In my opinion my view of [Donna's] stability and her level of cooperation, my opinions there are very mixed. I readily acknowledge that there are strengths and that the issue of stability is an issue that she has taken important steps to remedy.

I didn't focus any of my evaluation really in any depth on the issue of stability because by the time of this evaluation it was my opinion that she had made significant steps in that area.

The issue of cooperating with professionals. I was aware at the time of my evaluation that [the mother] had been involved with a large number of professional contacts so -- and that she had carried out those contacts without always having the kind of conflicts that might be a problem.

I took that into account just as I took into account other instances where problems had been raised before I reached those conclusions.

So my opinion as to the personality traits is essentially as it was that I already described. My concerns about her ability to cooperate with professionals are essentially unchanged.

I did not conclude, and I wouldn't conclude, that she won't cooperate with professionals. I've raised the possibility that it might be an issue especially in the context of needing to interact with professionals where there's the possibility of another referral being raised or sent to the Division or another situation where custody might be jeopardized. I raised those as possibilities. [Emphasis added.]

In short, Dr. Loving's testimony, upon which the judge greatly relied, was far from conclusive regarding the areas of concern that informed the judge's decision. He was certain about Donna's strengths but not at all certain about the concerns upon which the Division's theory was based. Because Dr. Loving was uncertain and had viewed those concerns as mere "possibilities," the judge could not view this testimony as clear and convincing evidence.

2. Specific Incidents of Anger Found By the Trial Judge

Of course, Dr. Loving's testimony was not the only evidence upon which the judge relied. In concluding that the child would be endangered by the mother's anger and emotional problems, he relied upon past incidents, stating that "anger manage[ment] continued to be a concern for the case workers," that Donna and Dr. LeVere "parted company for similar reasons," that Donna had an angry response to Dr. Gordon-Karp's sudden change in opinion in this matter, and that Donna was "discharged from [Diane's House] for what [Dr. Loving] referred to as aggressive behavior." The problem with these findings is that when based on the record they lack sufficient specificity and when specific they do not find support in the record.

As noted, the judge referred to a conflict between Donna and M.B.D., the Division caseworker assigned to this matter, and a conflict between Donna and Dr. LeVere. His findings implicitly suggest that these two circumstances reveal that Donna's issues are not with a single individual but with the world in general. Upon closer analysis, the evidence reveals a close relationship between these two situations that does not support the judge's finding.

The record certainly suggests the existence of personality conflicts between Donna and M.B.D. That problem, in fact, caused M.B.D. to distance herself from the matter. As the judge said, "[M.B.D.] made little or no attempts to contact [the mother], she testified, because of threats made to her." It is noteworthy that the judge did not find that Donna made threats to M.B.D. but that this is what M.B.D. said in her testimony. Indeed, the judge made no findings of fault for this conflict or that Donna had ever threatened M.B.D. The judge referred to the testimony of both M.B.D. and the mother, both of whom, in the judge's words, "denie[d] that there was really a problem."*fn8 He merely concluded from these denials that "[o]ne again might wonder that if there was no problem why there was a breakdown" in the relationship between M.B.D. and Donna. If, as these statements suggest, the judge did not believe there was no problem, but could not identify the origin of the problem, we do not understand how -- in the application of the clear-and- convincing standard -- this circumstance redounded against the mother.*fn9

Similarly, the judge referred to the conflicts between Donna and Dr. LeVere as evidence of the former's alleged anger and emotional problems. Dr. LeVere did not testify, but her progress notes, which were admitted in evidence, reveal that she felt Donna was making progress as early as their second session in February 2006 and in all the sessions that followed until June 2006. The June 13, 2006 session started with Dr. LeVere's indication that "[s]igns of growth were apparent with regards to self-analysis," that Donna was "enthusiastic[]" about having completed her drug program and obtaining her GED, and that she was looking forward to obtaining employment. The notes then indicate that Toward the end of the session [Donna] was notified that [M.B.D.] had inquired about her progress[, and that M.B.D.] had indicated the Division's concern with [Donna's] verbally aggressive behavior, and asked that this issue be addressed during the therapeutic process.

When this request was mentioned, [Donna] became furious and defensive. She expressed feeling resentment towards the Division. Stating, "They (the Division) keep bringing up old things." "They (the Division) always find faults with me." "They (the Division[)] is always looking for things. But I'm just going to do what I have to do."

The notes indicate that the session ended with Dr. LeVere encouraging Donna "to concentrate on her attitude and practice appropriate communications skills"; notwithstanding, Donna left "in an irritated mood." The sessions that followed over the next few weeks reflected Donna's unhappiness over the turn that her therapeutic sessions had taken. Absent any alternative explanation from Dr. LeVere, it is difficult to draw any conclusion other than Donna was angry over M.B.D's indirect intrusion into the therapeutic process.

We must acknowledge there are two ways of looking at what happened with Donna's relationship with Dr. LeVere. Its disappointing conclusion could either be evidence of the concerns expressed by Dr. Loving, and adopted by the trial judge, regarding the mother's "world view" and anger management problems, or it could be viewed as evidence of the extent of the conflict between M.B.D. and Donna, i.e., that Donna believed M.B.D. was intent on frustrating or inhibiting her progress and reunification. In examining these two potential approaches toward these circumstances, we note that the evidence does not sit well with the former theory; if Donna is prone to becoming angry in all similar circumstances, then what would explain the progress Donna was making prior to the June 13, 2006 session? Every note that Dr. LeVere made with regard to the earlier sessions reveals nothing but a positive outlook on Donna's progress. Only when Dr. LeVere mentioned M.B.D.'s desire that she explore Donna's "verbally aggressive behavior" did things change. On the other hand, this evidence fits better the theory that there was a conflict between M.B.D. and Donna, and when Donna was advised that M.B.D. had inserted herself into the sessions by asking Dr. LeVere to inquire about some past "verbally aggressive behavior," Donna felt betrayed and lost her trust in Dr. LeVere as someone who would help her rather than act as an advocate for the Division's allegations.

Again, we emphasize that it is not our role to draw our own conclusions about the persuasiveness of the evidence. To the contrary, we are required to examine the record and determine whether the judge's findings are supported by clear and convincing evidence. In his findings, the judge generally refers to Donna's angry tone with Dr. LeVere, but what the judge said did not reveal whether he engaged in a deeper exploration to determine whether the reasons for Donna's anger were linked to some unsatisfactory "world view," which would call into question her parenting abilities, or merely a personality conflict with M.B.D., which would not.*fn10 Absent a more definitive and contrary finding as to the cause of Donna's anger toward Dr. LeVere that would discount M.B.D. as its cause, these circumstances do not clearly and convincingly support the Division's theory for termination, i.e., that the mother's "world view" would be inimical to the child's best interests. In short, we are satisfied that this evidence was not capable of producing a firm conviction that Donna's general attitude, or her purported inability to deal in the future with other professionals during the course of caring for the child, would be injurious to the child.

The judge also referred to friction between Donna and Dr. Gordon-Karp as evidence of Donna's inability to manage her anger, providing the following finding: "Although Dr. Gordon-Karp initially opined that reunification was an appropriate goal, based on [Donna's] actions she changed her opinion and got 'abused' for it, holding that [Donna] would not be appropriate as a parent." The judge provided no finding as to why Donna may have gotten angry with Dr. Gordon-Karp. The doctor's testimony, however, provides an explanation that is not necessarily supportive of the Division's theory.

In her testimony, Dr. Gordon-Karp first observed that she received a telephone call from M.B.D., who indicated that the mother "had been terminated from Diane's House . . . due to unauthorized visitors in the halls, argumentativeness, and 'a total disregard for the rules of the house.'" Although that may be what Dr. Gordon-Karp was told by M.B.D., it does not accurately reflect the reasons for Donna's discharge from Diane's House. In fact, the executive director wrote to M.B.D. on September 8, 2006 -- the same day Dr. Gordon-Karp authored her addendum, which changed her view regarding reunification --to advise that the mother was discharged due to violation of rules. The Family Afterward has 7 rules that are ground for immediate discharge and [Donna] violated 1 of those.

No other specifics were then given.

The executive director of Family Afterward, which operates Diane's House, was also called to testify and confirmed that the reason for Donna's discharge was that she had "unauthorized visitors." As a result, either M.B.D. embellished the cause for discharge in her communication with Dr. Gordon-Karp when advising that the discharge was also due to Donna's "argumentativeness" and "total disregard" of house rules, or Dr. Gordon-Karp was inaccurate in making a notation as to what was reported; in either event, the record does not support part of the factual basis -- the mother's "argumentativeness, and '[her] total disregard for the rules of the house.'" -- for Dr. Gordon-Karp's immediate decision to change her former recommendation of reunification in this case.

Dr. Gordon-Karp also based her change in recommendation on what she referred to in her testimony as "three separate incidents of aggressive behavior" in Donna's sessions with Dr. LeVere. We have already commented on that relationship. In her progress notes, Dr. LeVere observed that the sessions turned sour once she sought Donna's response to M.B.D.'s desire to learn, through Dr. LeVere, about some prior "verbally aggressive behavior" in which Donna had allegedly engaged. In that session and the few sessions that followed, Dr. LeVere noted "the aggressive nature of [the mother's] communication style." Although Dr. Gordon-Karp labeled Donna's response as part of her "aggressive behavior," which would suggest broader conduct, there is nothing about Dr. LeVere's notes that would indicate that Donna's attitude took any form other than verbal. Dr. Gordon-Karp's response also reveals little more than a superficial understanding of what may have occurred between Donna and Dr. LeVere; she apparently gave no consideration to the possibility that Donna viewed M.B.D.'s intrusion in the process as a breach of trust. And, as for her comment about there being "three" separate incidents of "aggressive behavior," Dr. Gordon-Karp appears to have done nothing more than count the times in Dr. LeVere's notes in which the word "aggressive" was used. Considering that the addendum was issued simultaneously with M.B.D.'s report of Donna's dismissal from Diane's House, we also question the extent to which Dr. Gordon-Karp actually considered the significance of the events that suddenly prompted her to alter her opinion.

In addition, Dr. Gordon-Karp referred to Donna's "continued anger in court"; the judge made no reference to any inappropriate conduct in any of the court proceedings, and we have not been referred to any evidence of angry outbursts or improper behavior during the course of court proceedings that would support Dr. Gordon-Karp's descriptions.

The judge's opinion further reveals his reliance on Donna's expressions of frustration with Dr. Gordon-Karp about the sudden change in her recommendations in September 2006. However, Dr. Gordon-Karp's testimony revealed nothing about the content of those communications. Indeed, Dr. Gordon-Karp testified that she did not have any conversations with Donna about her recommendations -- her secretary did:

Q: But certainly you were never the recipient of any inappropriate behavior by [Donna], correct?

A: I did not have the opportunity to talk to her. According to my secretary she was frustrated and somewhat demanding. That's what she told me. I wasn't -- I didn't actually speak with her directly.

Moreover, the testimony on this point does not suggest that Donna's communications with Dr. Gordon-Karp's secretary were inappropriate, let alone angry or abusive. To the contrary, Dr. Gordon-Karp acknowledged that Donna was frustrated and, in her experience, it was "not unusual for parents that are dealing with the Division to express a certain level of frustration."

Dr. Gordon-Karp concluded from these various sources that Donna's "anger was pervasive to all settings including, you know, it's at home, it's in the court, within interpersonal settings." As with the other evidence regarding the anger issues attributed to the mother, Dr. Gordon-Karp appears to have taken certain circumstances, which could very well have been attributed only to a conflict with one person -- M.B.D., and extrapolated an undesirable pattern of conduct that would, if reunification were to occur, prove injurious to the child.

C.

To summarize, the judge concluded from the broad and often unsupported generalizations of the experts relied upon by the Division that Donna "remains angry and hostile to those whose jobs are to help her" in finding that the Division met its burden of proving that the second statutory prong had been met. In analyzing the evidence upon which the judge based that conclusion, we cannot ignore that much of the behavioral problems related during the trial stem from difficulties that existed between the mother and M.B.D. The mother viewed M.B.D.'s indirect intervention in her therapeutic sessions with Dr. LeVere -- perhaps accurately or perhaps inaccurately -- as subversive, justifying her loss of trust in Dr. LeVere as someone to help her through her problems. Dr. Gordon-Karp gathered from the problems that accrued between Donna and Dr. LeVere, as well as from her misunderstanding about the reason for Donna's discharge from Diane's House, that Donna could not curb her "aggressive behavior." And the judge, in relying upon the conclusions reached from this evidence, concluded that Donna was an "angry and hostile" individual who could not be trusted to properly parent the child.

Having thoroughly reviewed the record and having closely examined the facts upon which the conclusions of Dr. Loving, Dr. LeVere, and Dr. Gordon-Karp were based, we cannot agree that the Division presented clear and convincing evidence as to the second prong of the statutory test. As a result, because the Division was obligated to prove that all four statutory prongs support termination, we need not examine whether the judge's findings regarding the third and fourth prongs were supported by clear and convincing evidence.

Accordingly, we reverse the judgment terminating Donna's parental rights to the child and remand the matter for further proceedings geared toward reunification of mother and child. We do not retain jurisdiction.


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