July 7, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF T.C. AND H.H., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-22-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 19, 2009
Before Judges Skillman, Graves and Grall.
Defendant L.H. appeals from an order terminating her parental rights. She is the mother of two children born of different relationships. T.C., her daughter, was born in December 2000, and H.H., her son, was born in March 2004. The fathers' parental rights have been terminated, but neither father has appealed. The plan for the children is adoption by their maternal grandparents, with whom they have lived since late January 2006. The decision terminating L.H.'s parental rights was issued on April 23, 2008.
There is no dispute that the four-year-old T.C. was sexually abused by her stepfather, J.H. The question is whether the statutory standard for terminating L.H.'s parental rights was met. N.J.S.A. 30:4C-15.1a(1)-(4). The Division and the law guardian for the children contend that the evidence is adequate.
L.H. and T.C.'s father lived together in Ohio but separated within months of T.C.'s birth. Their relationship involved domestic violence. In 2003, L.H., still living in Ohio, met J.H. through his sister who worked with L.H. They dated for about six months and married. When she married J.H., L.H. knew that he had a prior conviction for gross sexual imposition. He told her that the victim was an adult woman with whom he had a dating relationship and that she had filed charges against him after learning she was expecting his child. He said he opted not to contest the charges and had been sentenced to a term of probation and ultimately jailed for violation of the conditions. Members of his family confirmed J.H.'s account, and L.H. believed the explanation and did not consider J.H. to be a person who posed a threat to T.C.
After H.H. was born, the family moved to North Carolina for a brief period and then to New Jersey, where they lived with J.H.'s mother until L.H. found a job and rented a home for her family. J.H., who did not find work, cared for the children when L.H. was not at home.
On September 22, 2005, the Division investigated a report, filed by T.C.'s father, alleging that L.H. and her children were living with a man who was a convicted sex offender. There is no evidence that T.C.'s father had had any contact with L.H. or T.C. prior to filing that report.
T.C. was questioned, and the four-year old, using the term "no-no spots" to refer to genitals, readily gave a child-like but detailed description of J.H.'s conduct which included acts of cunnilingus and fellatio done while her mother was not at home. T.C. said she had told her mother and "they talked about it and then went to bed."
When L.H. was questioned she denied prior knowledge of any abuse of T.C. by J.H. She said that one night T.C. had come into the bedroom she and J.H. shared while they were having intercourse, and she explained that she talked to T.C. after that incident. L.H. also told the investigator that her daughter was educated about the private parts of her body, and she later volunteered that J.H. did not bathe T.C. There is no evidence that L.H. questioned the veracity of the account of J.H.'s conduct that T.C. gave to the investigators. L.H. admitted her knowledge of J.H.'s prior conviction for gross sexual imposition. She was aware that he registered as a sex offender in North Carolina and New Jersey. She later advised that he was ranked in the lowest-risk tier.
J.H. was not at home when the investigators arrived. L.H. and the children were taken to the police station pending his arrest.
J.H. did not deny T.C.'s account of his sexual abuse. He admitted that on one occasion, drowsy from medication, he had taken a nap and woke to find T.C. touching him. He told the investigators that T.C. had talked to L.H. about that incident days after it occurred. He further indicated that when L.H. confronted him, he denied it and L.H. took no action. J.H. was arrested and remained in jail until he pled guilty and was sentenced.
Following J.H.'s arrest, L.H. was permitted to take the children home on the condition she bring them to the New Jersey CARES Institute at UMDNJ for examination. Dr. Martin A. Finkel, Professor of Pediatrics and Medical Director, interviewed and examined the children on September 23, 2005. After speaking to and examining T.C., he credited her account of the abuse. Dr. Finkel also met with L.H. and a caseworker from the Division. Based on L.H.'s statements and "level of distress," Dr. Finkel did "not believe" that L.H. "was aware that anything inappropriate was happening." Noting that "a common response is for moms not to want to believe that inappropriate contact occurred," he discounted the significance of information that T.C. had told her mother about J.H.'s conduct. Dr. Finkel recommended against the removal of the children from L.H.'s care as "too traumatic" for H.H. and "unnecessary."
The Division did not allow L.H. to leave UMDNJ with the children. They were removed from her care and placed in foster care. L.H. agreed to do whatever was necessary to regain custody of her children; her commitment and determination to avoid contact with J.H. and keep him from her children has never been questioned.
L.H. commenced counseling at Salem County Women's Services (SCWS) on September 26, 2005. Through the program at SCWS, L.H. focused on "reducing anxiety and other symptoms of Post Traumatic Stress Disorder associated with losing custody of children, learning of child's sexual victimization, and an abrupt change of family structure." She also received individual counseling there from Rebecca C. LaFleur, M.A.
On September 27, 2005, the Division obtained a court order authorizing continuation of the removal of L.H.'s children on the ground that it was "necessary to avoid an ongoing risk to the life, safety or health of the child(ren)." See N.J.S.A. 9:6-8.28. The order to show cause the Division filed in support of its application includes a reference to Dr. Finkel's confirmation of T.C.'s abuse but not to his recommendation against removal.
On September 28, 2005, a caseworker employed by the Division met with L.H. and the children's maternal grandparents, who traveled from their home in Ohio. The grandparents were willing to care for the children, and L.H. favored placement with her parents over placement in foster care in New Jersey. On October 3, 2005, the Division obtained an order commencing steps for a priority placement with the maternal grandparents in Ohio.
After the children were removed from her care, L.H. was permitted only supervised visitation. She regularly saw T.C. and H.H. on a weekly basis when they were able to attend; one visitation was cancelled due to illness of one of the children. On several occasions, one or both of the children had cold symptoms. L.H. questioned the supervisors about the care her children were receiving. With the exception of a reference to L.H.'s difficulty in "splitting her attention between the" children, the supervisors' reports are positive. The children were happy to see their mother, and T.C. was reluctant to leave her. On more than one occasion, T.C. had to be carried from the room when visitation ended. Once, she attempted to hide under a table.
L.H. continued to work, accepted services offered by SCWS and additional counseling from Janet Barkowsky, LPC, CAC. In November 2005, Barkowsky described L.H. as "in a lot of pain, guilt and shame blaming herself for not 'seeing' what was happening to her daughter" and allowing "herself to be manipulated by her husband." L.H. expressed concern about the Division's delay in arranging counseling for her daughter and anger over what J.H. had done. She was also distressed by her father's recent criticism of her involvement in "poor relationships" and failure to make "good parental decisions." Barkowsky's concern was that L.H. would become over-protective.
On November 30, 2005, L.H.'s children were still in foster care. An order to show cause seeking immediate return of her children to her custody was filed on L.H.'s behalf. By order apparently dated December 12, 2005,*fn1 that application was denied without prejudice to a motion supported by a recommendation of a psychologist the Division retained to evaluate L.H., Dr. Douglas R. Crawford.
On December 13, 2005, Dr. Crawford provided a report based on his clinical evaluation of L.H. L.H. reported a positive relationship with supportive parents and sexual abuse by a cousin that she did not report to her parents. Based upon the interview and the results of diagnostic tests, Dr. Crawford found no evidence of personality disorder, indications of some defensiveness, lack of insight, "interpersonal difficulties," and depression and some evidence of "positive family relationships." He concluded that there was "no substantial evidence of maternal neglect or lack of parental protection" and recommended therapy to improve L.H.'s personality features and alleviate her depressive symptoms. In his opinion her therapy could be managed "without interfering with parenting."
On January 19, 2006, the Division was given a summary of L.H.'s progress in counseling at SCWS. LaFleur described L.H.'s "anxiety about her children's well-being," her regular attendance at weekly counseling sessions and the education provided by SCWS on recognizing signs of sexual assault in children and the "characteristics and tactics of perpetrators." She reported that L.H. was able to look back and identify J.H.'s behaviors that "coincided with those of perpetrators" but not to identify in retrospect changes in her daughter's behavior "that would have signaled abuse." LaFleur recommended continued therapy to deal with L.H.'s "symptoms of Post Traumatic Stress Disorder and feelings of guilt associated with [T.C.'s] victimization," but concluded that the therapy could be provided "concurrently with reunification efforts."
On January 24, 2006, the court entered an order authorizing placement of both children in the home of their maternal grandparents in Ohio. Pursuant to that order, L.H. was permitted a maximum of two six-hour visits with the children per week in her parents' home but was barred from staying overnight or being left alone with the children. That order, like earlier orders, prohibited discussion of J.H.'s abuse during visitation.
According to L.H.'s testimony at trial, which was not rebutted, after her first visit in late January or early February, L.H.'s mother refused to supervise her daughter's visits. Thereafter, L.H. called the children every night and spoke to them for ten to fifteen minutes if her mother answered the phone. Although the Division's plan for supervised visitation apparently failed at the outset, there is no evidence that any attempt was made to modify the order at that time.
Dr. Crawford evaluated L.H. for a second time in February 2006. He noted improvement. During the interview, L.H. "maintained an appropriate focus upon her children" and was able to report what she had learned about sexual predators and protecting children from them. L.H. acknowledged her need to "work on" her "intimacy issues" and past relationships with men in order to "learn how to be a stronger, more mature person and mother for [her] children." While Dr. Crawford was of the opinion that L.H. was in need of further treatment to address "depressive and posttraumatic symptoms," he found that "her symptoms [did] not appear acute enough to prevent a reunification with her children." In sum, he concluded that L.H. "knows how to parent, is aware of how to protect a child from sexual abuse and know[s] what she needs to work on [in] her counseling."
T.C. started counseling in Ohio in late March 2006. That is the first time the child was given counseling after being removed from her mother's custody. T.C.'s counselor, Kelly Schumann, noted the child's bond with her grandmother and described the grandmother as a person who provided the child with a sense of safety.
Schumann ultimately arranged for a joint counseling session with T.C. and L.H. After that session, the child reported "feeling happy to talk about the sexual abuse with her mother" even though she said that she knew her mother "did something wrong by not listening" to her. Although L.H. expressed interest in continuing to ask the child "why she is blaming her and making false statements" when the child was not present, afterwards she "was able to report to [T.C.] her responsibility in the current situation to assist [T.C.'s] need to view [L.H.] as a protective figure." Schumann had a "concern" regarding L.H.'s and T.C.'s grandmother's "negative feelings toward each other." She reported that the grandmother "underst[oo]d [T.C.'s] need to maintain consistent contact with her mother" but L.H. advised "on more than on[e] occasion . . . that when she obtains custody of both of her children they will no longer be in touch with" their grandmother.
By letter dated April 21, 2006, Barkowsky provided information on L.H.'s progress. She reported that L.H. continued to maintain that she did not know that J.H. was abusing her daughter, but "[t]hrough therapy, she realizes her blindness was due to her own abuse issues," resulting from her abuse by her cousin when she was a child. Barkowsky reported that L.H. "is constantly thinking of ways to make a smooth transition for her daughter" such as "rearrang[ing] furniture so her daughter is not upset by memories" and "what to say to the school about [T.C.'s] absence."
By letter of June 7, 2006, LaFleur reported: "[L.H.] is especially attuned to the needs of her children once they return home and is able to anticipate a significant adjustment period. She is also aware that her daughter may need to discuss her victimization and is learning how to respond appropriately."
On June 20, 2006, Barkowsky advised the Division of L.H.'s complaint about her mother blocking her contact with the children. A referral form completed by a caseworker on July 10, 2006, indicates the judge ordered the Division to provide supervision through "Stepping Stones," an Ohio organization, on June 28, 2006.
In her letter of June 20, 2006, Barkowsky reported that L.H. was "learning techniques to reduce stress" she experienced when her mother told her she had "ruined [her children's] lives" and her feelings of being "in a nightmare" and wondering "when [her] children [were] coming home" and "why [her] mother hate[s her] so much."
In August 2006, L.H. was "successfully discharged from counseling." LaFleur did not recommend "further services" at that time but noted that L.H. would be "eligible for services on a voluntary basis" if the need arose when she was reunited with her children.
In September 2006, the Division arranged "non-offending parent" therapy for L.H. A psychologist initially retained by the law guardian for L.H.'s children, Dr. Linda R. Jeffrey, first recommended non-offending parent therapy for L.H. in May 2006.
Visitation through Stepping Stones commenced on September 2, 2006. There is nothing in the record to indicate that L.H.'s family or the Division provided any opportunity for visitation between the first visitation supervised by her mother and visitation provided through Stepping Stones. The Division paid for this visitation service and gave L.H. money for travel expenses. At Stepping Stones, L.H. saw her children regularly under the supervision of staff. Over six hundred pages of the appendix consists of reports of their observations. In sum, the reporters recount positive interactions evidenced through displays of appropriate affection and play activity. There is one noteworthy exception, which is a reference to T.C.'s use of a "code word" she had been given to alert the supervisors if she wanted to end the visit. On two subsequent occasions, T.C. uttered the word and, after evoking a response, said she was joking.
Dr. Jeffrey conducted several evaluations in this case. She was the Division's primary witness at trial. She evaluated L.H. on May 27 and November 26, 2006 and May 19, 2007, T.C. on November 25, 2006, and did bonding evaluations of L.H. and both children in November 2006 and in June and November 2007. She also evaluated the bond between the children and their maternal grandparents.
During the first evaluation of L.H., Dr. Jeffrey obtained L.H.'s written responses to preliminary questions, interviewed her and administered diagnostic tests. In response to a request for information that L.H. wanted the doctor to know, she indicated she had not known what was happening to her daughter and was a good mother who "would never let anyone do anything to [her] children." L.H. also reported that she had cooperated with the Division from "day one" and did not understand why it was taking so long for her children to come home or why she and her children were "being punished for what [J.H.] did." L.H. was unable to identify anything negative about parenthood, noted that time spent with children is "important," and stated that they need to "always know that you love them."
L.H. described her plan following reunification. She would bring her children home, continue her current employment, "find the best counselor for [her] daughter" and attend "family counseling with both of [her] children so that [they could] get through this trauma together." Although she denied having any weaknesses as a parent, she said she would "continue counseling to make sure [she didn't] develop any." She indicated that she would be "very overprotective" and was not worried about protecting her children because she was not going to have anyone in her life "until they are grown."
Dr. Jeffrey gave her interpretation of the results of tests administered to L.H. They indicated that L.H. had a need to appear in a positive light, a possible deficit in personal insight, and a "pronounced tendency toward avoiding self-disclosure." Dr. Jeffrey found "high elevations" on scales indicative of "histrionic" traits and "anxiety" and "elevations" on scales reflecting depression, narcissism, and compulsiveness.
In the doctor's opinion, L.H.'s responses to questions on an anger expression inventory showed she "may be underreactive to anger and unaware of important events in her environment."
Dr. Jeffrey diagnosed L.H. with "depressive disorder NOS," "generalized anxiety disorder," and "histrionic personality disorder with narcissistic and obsessive compulsive personality features."
Referencing L.H.'s initial support for placement of her children with her parents and subsequent expressions of hostility toward her mother, the doctor found reason for "significant concern about [L.H.'s] parenting judgment and ability to engage in mature problem-solving related to her children's needs and safety." The doctor found it "perplexing" that L.H. would want her children to be placed in Ohio when she did not have the resources to visit them there regularly and stated that it was "unclear" why L.H. "did not detect more clearly the significance of" the "emotional and adjustment problems" of the fathers of her children. She also found it significant that L.H. had described abuse as a child that she had not disclosed but "at the same time appeared confounded" that T.C. had not done so.*fn2
Dr. Jeffrey recommended that T.C. and L.H. continue with counseling and supervised visitation. On June 20, 2006, Dr. Jeffrey reiterated her recommendations and urged steps to facilitate visitation in order to avoid "attachment problems."
Dr. Jeffrey evaluated T.C. on November 25, 2006. T.C. reported that when she told L.H. about J.H. touching her, L.H. said, "I don't care." T.C. said she wanted to tell her mother, "Mommy, you did a bad choice." The child said she missed her mother but was "forgetting about it."
When asked who her favorite person was, T.C. said, "Mawmaw," meaning her grandmother. And, in response to a request for a picture of her family, the child drew one depicting her grandparents. T.C. also told Dr. Jeffrey that she thought her grandmother "would have done the right thing" if she knew about J.H.
During her second evaluation on November 26, 2006, L.H. did not identify any problems she anticipated upon reunification but said she believed that she and T.C. would be in counseling for many months. L.H. "expressed intense hostility toward her" parents, indicated that she did not feel "responsible for her children being placed under the care of" the Division and noted that, apart from being "more informed on a lot of stuff," she had not changed as a parent.
In Dr. Jeffrey's view, L.H. did not hold herself responsible for the abuse her daughter suffered and with respect to T.C., took a position that could be characterized as "'I'm sorry that you feel Mommy didn't help you.'"
The tests administered during this evaluation yielded results substantially similar to those obtained from the initial round. In the doctor's opinion, L.H. had not "gain[ed] insight concerning the impact of her denial of [T.C.'s] disclosure" on T.C.'s recovery and had made little progress in addressing her personal, emotional and personality problems. The doctor recommended mental health counseling and continuation of both L.H.'s non-offending parent therapy and the children's placement with the grandparents.
After the third evaluation in May 2007, Dr. Jeffrey diagnosed L.H. with dysthymia and "personality disorder with narcissistic, histrionic and paranoid features." In her opinion, L.H. "displayed difficulty viewing circumstances from the perspective of" T.C. and had not developed any "deeper mature reflection, increased personal insight, or growth in emotional maturity" despite her "multiple counseling experiences."
Dr. Jeffrey concluded that L.H.'s "very serious continuing emotional and personality problems . . . significantly decrease her parenting capacity." In her opinion, L.H. was not "prepared to provide a minimum degree of parenting safety for her children, and they would be at high risk for harm if placed in her care."
Based on the bonding evaluations, Dr. Jeffrey concluded that T.C. "did not relate to [L.H.] as her primary caretaker," that H.H. "related to [L.H.] in an affectionate manner, but did not use [L.H.] as his secure base," and that both children were "insecurely attached" to L.H. In Dr. Jeffrey's view the children appeared to be going "through the motions" with their mother and demonstrated "a clear preference for proximity to their grandparents," with whom they had a secure attachment.
Dr. Jeffrey concluded that disruption of the stability and security the children had in the care of their grandparents was highly likely to place them at risk for harm, particularly if there was no resolution of the disagreement between T.C. and L.H. relevant to what L.H. knew and when she knew it.
At trial, Dr. Jeffrey elaborated on her opinion about L.H.'s diagnoses and their impact on her capacity to parent.
Dr. Jeffrey focused on her diagnosis of L.H.'s narcissism. She observed that persons who have that trait have difficulty assessing reality because they tend to view circumstances and others, not realistically, but in a way that meets their needs. In Dr. Jeffrey's opinion, L.H.'s discounting of the importance of J.H.'s prior conviction in deciding to entrust him with the care of T.C. was consistent with a view of reality L.H. adopted because it met a "need of hers." Like L.H.'s differing descriptions of her childhood and her parents, the perception was not based on a realistic assessment of the circumstances in light of the children's interests. Dr. Jeffrey further suggested that the prospects for improvement were limited, noting that persons with narcissistic tendencies have "difficulties engaging in a therapeutic process because they believe that they're fine and it's the rest of the world that has the difficulties." Thus, Dr. Jeffrey concluded that L.H. lacked and would continue to lack the ability to empathize with the children and minimize the enduring harm that would follow separation from their grandparents, address her weaknesses and protect them in future situations that posed a danger.
In reviewing a decision to terminate parental rights, we must defer to a trial judge's findings of fact when they are "supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). When, however, the error alleged involves the judge's "evaluation of the underlying facts and the implications to be drawn therefrom," the review is expanded but deference is still due unless the judge's findings are "so wide of the mark that the judge was clearly mistaken." Ibid. (internal quotations omitted). Though "this feeling of 'wrongness' is difficult to define" it may arise from the "manifest lack of inherently credible evidence to support the finding [and] obvious overlooking or under-evaluation of crucial evidence." State v. Johnson, 42 N.J. 146, 162 (1964). Legal error that leads to an unjust result must be addressed.
"The right of parents to raise their children is a fundamental one of constitutional magnitude." G.L., supra, 191 N.J. at 605; see Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558-59 (1972). Consequently, there are "strict standards for the termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The State's responsibility to protect children is sufficient to warrant termination when the parental relationship at issue poses "a risk of serious physical or emotional harm." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). The State must show 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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1a.]
The evidence on each of the four prongs must be clear and convincing. M.M., supra, 189 N.J. at 280. And, proof requires "particularized evidence that address[es] the specific circumstance[s] in the given case." Ibid.; see G.L., supra, 191 N.J. at 606. "Under the first prong of the best-interests standard, 'the harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" M.M., supra, 189 N.J. at 281 (quoting K.H.O., supra, 161 N.J. at 347). The harm must be significant and the threat cannot be "based on speculation" but must be established by "clear and convincing evidence." G.L., supra, 191 N.J. at 608; N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604 (1986).
Although J.H. visited unspeakable harm on T.C., "[p]arental rights are individual in nature and due process requires that fitness be evaluated on an individual basis." M.M., supra, 189 N.J. at 288. The issue is whether the "safety, health or development" of T.C. and H.H. "ha[ve] been or will continue to be endangered by the parental relationship" with L.H. Id. at 280 (quoting N.J.S.A. 30:4C-15.1a). "[A] parent's association with third-parties may be an appropriate consideration if those associations harm the child." Id. at 289. When that is the case, "[t]he crucial inquiries are whether the parent's association with others causes harm to the child and whether the parent is unable or unwilling to provide a safe and stable home." Id. at 289-90. No matter how reprehensible, the conduct of a parent's companion cannot be imputed to the parent. See G.L., supra, 191 N.J. at 599-606; M.M., supra, 189 N.J. at 290. "Presumptions of parental unfitness may not be used in proceedings challenging parental rights . . . ." K.H.O., supra, 161 N.J. at 347.
Here, the Division's case on the first prong of the termination standard depends upon the adequacy of the evidence that L.H.'s children have been and will continue to be endangered by their parental relationship with L.H. even though she has severed her relationship with J.H. There was no evidential support for reaching a conclusion that the children were at a risk based on any continuing relationship with L.H. The Division does not contend otherwise. Cf. M.M., supra, 189 N.J. at 288-90.
The judge determined that the Division established the requisite harm by showing that "L.H. is not able to function as a safe parent and significant proof was offered in this trial that clearly and convincingly demonstrates that fact."
That determination was supported with reference to "significant evidence that L.H. did not recognize the dangerous situation that T.C. was facing," her failure to recognize that the fathers of both of her children "had significant emotional, adjustment and/or criminal problems" and the conclusion that her "lack of realization of J.H.'s personality problems" was due to her "serious personality problems including narcissism," which caused her "to lack insight into the abusive tendencies of J.H. and ignore warning signs in T.C.'s behavior which allowed the abuse of T.C. to occur and continue."
Mindful of the standard that governs review, there is adequate support for the conclusion that there were "warning signs in T.C.'s behavior" and, a fortiori, an inference of the "abusive tendencies of J.H." that L.H. did not detect or ignored. L.H.'s reference to T.C.'s baths, the separate accounts of disclosures to L.H. given by T.C. and J.H. and the evidence of T.C.'s readiness to give a detailed description of the conduct permit the inferences that support the conclusion. Thus, disavowing and disapproving any reliance on a presumption based solely on a person's decision to marry someone with a prior conviction and stressing that there is absolutely no indication that the judge decided the case on the basis of a presumption of that sort,*fn3 we see no basis for disturbing the judge's determination that there were warning signs that L.H. missed and "abusive tendencies of J.H." about which she lacked insight.
The judge also determined that L.H. continued the initial harm by preferring placement of her children with her parents in Ohio, rather than foster care in New Jersey and by subsequently electing to stay in New Jersey and at a distance from her children. The judge found that L.H.'s view - that her children would be returned promptly - reflected a "lack[ of] insight as to how difficult it would be to repair the damage caused to T.C., and her role in causing that damage, because of her personality defects." He further found that L.H.'s choice was harmful to the children because it precluded L.H. from participating in T.C.'s therapy and made it more difficult for her to see the children regularly. And, the judge viewed L.H.'s failure to move to Ohio after the children were not returned when she expected as further exacerbating the harm by making reunification more difficult. He concluded that she made that decision only because it was "easier" for her to stay in New Jersey than move to Ohio.
The judge's evaluation of underlying facts relevant to the Ohio placement and their implication is sufficiently wide of the mark to compel us to conclude a mistake was made. The children were removed from L.H.'s care in September. She applied for return of the children in November. The records of her supervised visitations report T.C.'s distress at the end of visitations and that the children frequently had colds about which L.H. made inquiry. There is also evidence that she questioned and was distressed by the Division's failure to arrange counseling for her daughter. The Division's records establish that T.C. and H.H. related well to their maternal grandparents. Moreover, in January, when the children left for Ohio, L.H. had been evaluated by two experts retained by the Division, both of whom recommended return of the children to her and treatment for L.H. and T.C. Finally, when the children left for Ohio, it was pursuant to an order that permitted L.H. significant visitation in the home of her parents.
A view of L.H.'s decision to support placement with her parents as a product of her flawed insight is reasonable only if that decision is viewed in retrospect, in light of the subsequent diagnosis of narcissism affecting insight and without reference to the undisputed facts recited in the preceding paragraph. The conclusion is wide of the mark. The evidence is equally consistent with a realistic assessment of the problems facing the children, the disturbance they exhibited and her reasonable anticipation of prompt return of the children for continued treatment from her home, who would, in the brief interim, be better off with her parents than strangers. For that reason, the evidence is not clear and convincing.
With respect to L.H.'s decision to remain in New Jersey when the children were not promptly returned, we accept the judge's conclusion that L.H. was not truthful when she claimed that she did not think she was permitted to move. But we can find nothing in the record that supports the conclusion that she stayed only because it was easier for her and with indifference to the needs of her children. L.H.'s mother had refused to permit visitation in her home as initially ordered by the court, and L.H. was herself receiving services in New Jersey. We find nothing in the record that would give L.H. any reason to believe that she would have had more frequent and meaningful contact with the children if she had moved to Ohio and given up on her effort to maintain a stable home in New Jersey.
Accordingly, we reject the judge's conclusion that L.H. exacerbated the harm of the initial trauma inflicted by J.H. and her failure to recognize that threat by remaining in New Jersey.
The judge determined that L.H. continues to pose a risk of serious harm to the children due to her failure and inability to gain the insight and develop the empathy essential to avoid harm attributable to the children's relationship with her. The judge supported that determination largely with reference to L.H.'s diagnoses and her responses to questions recently posed by Dr. Jeffrey during the evaluation process. The responses upon which the judge relied were L.H.'s assertions "that she does not feel responsible for her children's placement and that she will not have any problems only challenges if the children are returned."
The judge accepted Dr. Jeffrey's opinion about the difficulty that persons who exhibit narcissism have in therapy, and he found that L.H. "has not engaged in work or shown this [c]court that she is capable of changing to be a safe parent for her children."
The critical and fundamental defect here is an apparent shift of the burden of persuasion. The Division had the obligation of establishing the continuing nature and extent of the risk of harm. M.M., supra, 189 N.J. at 280. L.H. was not obligated to show the court that she is capable of changing to be a safe parent. Moreover, the judge's conclusion that L.H. had "not engaged in the work" is inconsistent with the evidence of L.H.'s regular attendance at and successful discharge from the program offered by SCWS, her participation in additional counseling and her regular attendance at visitations during which she complied with restrictions on discussing J.H.'s abuse with her daughter.
After careful review of the record, we cannot conclude that there is adequate evidence to establish that the children's relationship with L.H. will put these children at risk of serious harm. Given her continued contact with the children prior to the termination decision on April 23, 2008, the positive report on the joint counseling session, her successful discharge from the SCWS program, the delay and abrupt termination of the non-offending parent therapy, the successful visitations and the evidence of some bond with the children, albeit weaker than the bond that has developed between the children and their grandparents, we cannot conclude that the Division established grounds for termination.
Concerns that L.H. will pursue her quest to understand why she and T.C. have a different perception of what T.C. said to her and when in a manner detrimental to the child are not supported by the record. L.H. has raised that issue with others, not with the child.
Further, it is important to avoid placing too much emphasis on isolated responses L.H. gave to Dr. Jeffrey at the time of that doctor's third evaluation of her parental capacity. As the Supreme Court observed in G.L., "a tactical error" does not "justify the loss of her parental rights." 191 N.J. at 608. When viewed in the context of the history of this case and with reference to L.H.'s repeated acknowledgements of the need for counseling for T.C., herself and as a family, her statement about her responsibility for the present circumstances and the significance of her distinction between "challenges" and "problems" cannot be assigned great weight.
With respect to the relative strength of the children's bond with their mother and grandmother, it results from the unjustifiable duration of the removal that should have ended, with appropriate supervision and assistance, no later than the date of Dr. Crawford's second report, which was before counseling in Ohio had even commenced. In that respect, this case is analogous to G.L., a case involving a bond between child and caregiver that developed after an improper removal. Id. at 609. In G.L., the Court recognized the strength of the bond but concluded that it did "not provide an independent basis for termination where the other standards have not been satisfied." Ibid. We see no basis for reaching a different conclusion in this case, especially given the regular contact between the parent and the children prior to termination. In G.L., the Court determined that reunification of mother and child was required. Ibid. The Court directed "a visitation schedule should be limned forthwith on an accelerating schedule, prepared and overseen by a psychologist with the assistance of such other counseling professionals . . . as necessary to help pave the way for prompt reunification." Ibid.
The disposition we direct substantially follows that model. In this case, there may be an additional complication due to L.H.'s move to Ohio that the judge must consider. In fashioning a schedule for visitation and reunification in accordance with G.L., the bond between the children and their maternal grandparents and any additional counseling necessary to address the children's needs and L.H.'s ability to meet them should be considered.
Reversed and remanded for further proceedings.