On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-202-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 14, 2009
Before Judges Lisa, Alvarez and Fall.
Defendant M.Y. appeals from a judgment of guardianship entered on August 26, 2008, terminating his parental rights to his biological daughters, N.Y. and P.Y., and placing the children in the care and guardianship of plaintiff, New Jersey Division of Youth and Family Services ("DYFS" or "Division") for the purpose of adoption by M.S., the children's maternal grandmother. The guardianship judgment also terminated the parental rights of E.Y., the children's biological mother; E.Y. has not appealed. Because the findings of the trial judge were insufficient to support the termination of either M.Y.'s or E.Y.'s parental rights to these children by clear and convincing evidence, we vacate the guardianship judgment and remand this matter for further proceedings consistent with this opinion.
N.Y. was born on July 3, 1996, and was age twelve (12) at the time the guardianship judgment was entered; P.Y. was born on January 5, 2001, and was age seven (7). Their parents, M.Y. and E.Y., are married and were ages forty-eight (48) and forty-five (45), respectively, when the judgment was entered. M.S., E.Y.'s mother and maternal grandmother to N.Y. and P.Y., was age sixty-five (65) at that time. M.Y. and E.Y. also have an adult child, M.Y., Jr., who was born on July 23, 1987; at the time of the guardianship judgment, M.Y., Jr. was residing with his parents.
Although married, M.Y. and E.Y. have had marital problems. They separated in or about September 2005 as a result of some domestic violence issues.*fn1 In October 2005, E.Y. and the children went to live at a domestic violence shelter in Irvington, New Jersey, known as Turning Point Community Service Center; M.Y. was then residing in Newark. It should be noted that at the time of the guardianship trial, M.Y. and E.Y. had reconciled; their present marital circumstances, however, are not reflected by this record.
DYFS initially became involved with this family when M.Y. telephoned the Division on January 3, 2006, during his separation from E.Y., stating that E.Y. had left N.Y. and P.Y in his care for a few days, was supposed to return, but had not done so, and his attempts to locate her had been unsuccessful. M.Y. also informed the DYFS intake worker that E.Y. had a history of dropping-off the children and not returning for them in a timely fashion, and that E.Y. was addicted to crack cocaine and needed help with her addiction. When asked, M.Y. denied any history of domestic violence.
On January 4, 2006, DYFS workers responded to the Turning Point Community Service Center seeking to speak with E.Y., but she was not there. The Executive Director of Turning Point informed the workers that they had had no problems with E.Y, and that E.Y. had been living at another shelter prior to becoming a resident of Turning Point. The DYFS workers visited N.Y.'s elementary school, and were informed the child was not there.
On January 5, 2006, DYFS workers visited P.Y.'s pre-kindergarten school, and determined that P.Y. had not been there since December 22, 2005, but that there had been no problems with P.Y., who was one of the better-behaved children in her class. When contacted that day by a DYFS caseworker, M.Y. stated he wanted to rescind his report regarding E.Y.'s behavior because he now believed E.Y. had a legitimate reason for her absence. M.Y. informed the DYFS worker that he would be returning the children to E.Y.'s care that night, and they would be returning to their schools the next day.
In the evening of January 5, 2006, DYFS workers again visited Turning Point and found E.Y. in her apartment with the two children. Upon questioning, E.Y. stated she had used cocaine and marijuana in the past, but had been sober for the last five (5) months; she agreed to undergo a drug assessment, and a referral for same was made. The children were interviewed and the apartment inspected. The DYFS workers found the report of child neglect by M.Y. to be unfounded, and that the children were safe.
The Division also received follow-up reports from the schools of the children. N.Y.'s fourth-grade teacher reported that she was a pleasant child and good reader but had significant problems with math, and the school's attempts to contact a parent to discuss same had been unsuccessful. P.Y.'s pre-kindergarten teacher reported no problems and age-appropriate performance by the child, describing P.Y. as a very sweet, manageable child who plays well with others. Medical reports from the children's pediatrician, Dr. Anthony Albanese noted he had last examined the children on November 4, 2004, and they were in need of a routine physical and, as to P.Y., required vaccinations.
E.Y. failed to keep a scheduled January 24, 2006 appointment for her drug assessment. Follow-up visits by DYFS workers to the children's schools and E.Y.'s residence at the Turning Point shelter determined that the children had been repeatedly absent from school, and that E.Y. had been leaving the shelter for periods of time with the children being left in the care of M.Y.
A home visit by DYFS workers on February 9, 2006, found E.Y. and the children at her apartment in the Turning Point Shelter. It was determined that E.Y. had brought the children to Dr. Albanese for an examination and P.Y. had received her vaccinations, but that E.Y. had still not kept her scheduled appointments for a drug assessment. The children were interviewed and found to be safe.
On February 23, 2006, after finding that E.Y. had still not completed the drug assessment, the DYFS worker was instructed by her supervisor to "reach out" to M.S., the children's maternal grandmother, to determine whether M.S. would be willing to file a complaint in the Family Part for custody of N.Y. and P.Y. "versus the division going to court for custody of the two children because of her daughter's non-compliance." The supervisor also determined that a drug assessment of M.Y. should be completed. On February 24, 2006, M.S. was advised by the DYFS caseworker that it was important for her "to file for custody on Monday and she should get back to [the] worker once she does so."
On or about February 28, 2006, M.S. filed a complaint against M.Y. in the Family Part, Essex County, under docket number FD-07-4383-06-A, seeking custody of N.Y. and P.Y., and a hearing date was scheduled for March 27, 2006.*fn2
The DYFS worker and her supervisor met with M.Y., E.Y. and M.S. on March 9, 2006 in the offices of the Division for the purpose of completing the substance abuse assessments of M.Y. and E.Y. At that meeting, it was explained that psychological evaluations of the parents and children by Dr. Mark Singer, Ed.D., a licensed psychologist, would be arranged, and that the Division would be providing E.Y. with a parent-aide to assist her in managing her time to assure the children attended school, that meals were prepared, and that the children's homework assignments were completed. M.Y. and E.Y. signed case plans agreeing to comply with all recommendations contained in their substance abuse assessments and psychological evaluations. E.Y. also agreed that when M.S. babysits the children, E.Y. will pick them up from M.S.'s home by not later than 6:00 p.m. so they can prepare for school the next day. On March 10, 2006, M.S. contacted the Division to advise that E.Y. had picked-up the children from her house at 11:30 p.m. on March 9, 2006.*fn3
A substance abuse assessment report of M.Y. was issued on March 10, 2006. M.Y.'s urine sample tested negative for illegal substances, but M.Y. admitted to a history of alcohol and drug abuse, with heroin use as recent as January 2006, and a last-reported marijuana use on December 25, 2005. M.Y. also reported three prior arrests for use or possession of controlled dangerous substances, and stated that he had been incarcerated in the past for a period of seven years on drug-related offenses. The assessment recommended that M.Y. undergo intensive outpatient treatment at New Directions Behavioral Health Center in Newark.
The substance abuse assessment report of E.Y. was issued on March 9, 2006. A sample of her urine collected on that date tested positive for the presence of both cocaine and marijuana. E.Y. also reported a long history of alcohol and substance abuse. On March 13, 2006, E.Y. was admitted to the Project FREE, a DYFS substance abuse outpatient treatment program.
On March 20, 2006, DYFS filed a Title 9 child abuse and neglect verified complaint in the Family Part against E.Y. and M.Y. under docket number FN-07-515-06, alleging that they had subjected N.Y. and P.Y. to neglect, and seeking an order placing the children in the custody, care and supervision of the Division. The Family Part issued an order to show cause on March 20, 2006, temporarily placing the children in the custody, care and supervision of DYFS and required E.Y. and P.Y. to show cause on April 19, 2006 why the relief sought in the complaint should not be granted. The children were placed by the Division with M.S., with liberal parenting time for E.Y. and M.Y. under M.S.'s supervision. The permanency plan of DYFS at that point was reunification of the children with their parents following completion of psychological evaluations of M.Y., E.Y., and the children, as well as the successful completion of substance abuse treatment programs by both parents.
Although M.S. and M.Y. were present for the March 20, 2006 court hearing, E.Y. was not. M.S. informed DYFS that E.Y. had left New Jersey for North Carolina on March 17, 2006, to live with her godfather and attend a drug-treatment facility in that state, as arranged by the family's church. However, when the DYFS caseworker visited M.S.'s home on April 17, 2006, E.Y. was there visiting the children and stated that there had been no openings for the drug treatment program in North Carolina, and she was on the program's waiting list.
On April 19, 2006, the return date of the order to show cause, the Family Part entered an order continuing legal custody, care and supervision of the children with the Division, with physical custody remaining with M.S. M.Y. and E.Y. were ordered to undergo psychological evaluations as arranged by DYFS, and to complete substance abuse treatment programs as recommended in the substance abuse assessment reports. The parenting time of M.Y. and E.Y. with the children was to be liberal, but arranged and supervised by M.S. A compliance review and fact-finding hearing was scheduled for July 12, 2006. The April 19, 2006 hearing was attended by M.Y., but E.Y. did not appear. A urine sample taken from M.Y. on that date tested negative for illegal drugs.
Psychological evaluations of the children were conducted by Dr. Singer on April 21, 2006. Dr. Singer found the children had been exposed to domestic violence between their parents; that N.Y. has a significant emotional attachment to her mother and P.Y., with unmet dependency needs and feelings of anxiety that may, in part, be a response to being separated from her mother; that P.Y. presented as a sad, shy child who tended to idealize her mother and devalue her father; and that both children appeared to be content living with their grandmother. Dr. Singer recommended psychological evaluations of E.Y. and M.Y. be completed to assess any treatment needs and risk factors; therapy for the children to assist them in addressing family of origin issues while supporting their current placement with their grandmother; that M.S. insure she does not use inappropriate techniques in disciplining the children; and that M.S. explore community-based recreational and social activities for the children to assist them in developing the ability to establish and maintain appropriate peer relationships.
A fact-finding hearing was conducted in the Family Part on July 12, 2006. M.S. and E.Y. were present, but M.Y. was not in attendance because he was working on a job in Niagara Falls, New York. At that time, E.Y. had returned to New Jersey and informed the court she was living in a room in Newark and attending a substance abuse treatment program at St. Michael's Hospital. However, a urine sample given by E.Y. on that date tested positive for the presence of cocaine and marijuana, and neither parent had complied with the court's prior order to submit to a psychological evaluation. The Family Part judge entered an order finding that M.Y. and E.Y. had subjected their children to neglect in that they have failed to provide appropriate care, shelter or stability for the children, noting E.Y.'s continued involvement with illicit drugs. A separate order was entered on July 12, 2006, continuing the children in the legal care, custody and supervision of DYFS with the children residing in the physical custody of M.S., and directing that the parents enter into substance abuse treatment programs and complete their psychological evaluations. Parenting time for E.Y. and M.Y. with their children was to be arranged through M.S.
A compliance review hearing was conducted in the Family Part on October 11, 2006. Other than M.Y. keeping a rescheduled initial appointment with Dr. Singer on October 3, 2006, neither parent had complied with the court's requirement that they submit to psychological evaluations and participate in substance abuse programs. Since the July 12, 2006 hearing, visitation by the parents with the children had been sporadic, with the last known visit to have occurred in July 2006. A urine sample provided by E.Y. at the October 11, 2006 hearing tested positive for the presence of cocaine; a urine sample given by M.Y. at that time tested negative for the presence of illicit drugs. An order was entered continuing the prior orders, but directing that the parents' visitation with the children be conducted at the Division's district office in Maplewood. A compliance review hearing was scheduled for January 10, 2007.
Dr. Singer conducted a psychological evaluation of M.Y. on October 3, 2006, and November 7, 2006; although E.Y. had also been scheduled for evaluation on those dates, she had failed to appear. M.Y. reported that he and E.Y. were living together; his employment required him to frequently travel out of town; he had used illicit drugs as recently as July 2006; he had discontinued substance abuse treatment due to work; and he believed E.Y. continued to use illicit drugs. Dr. Singer issued a report, concluding that the data "does not support reunification at this time," recommending that E.Y. be evaluated by a qualified psychologist; M.Y. participate in a parenting skills training program, a substance abuse program, and individual psychotherapy; and supervised visitation with the children continue. Dr. Singer summarized his findings, as follows:
The above recommendations, if followed, are anticipated to assist [M.Y.] in becoming a more viable placement option for his children. The ultimate prognosis is dependent upon [M.Y.'s] ability to engage in the recommended services and to benefit from these services. The prognosis is also greatly impacted by [E.Y.'s] willingness, or lack of willingness, to be evaluated in order to assess any treatment needs or risk factors that may be present.
Should [M.Y.] comply with and benefit from the above recommendations, this case may be revisited in 4-6 months. At that time, treatment updates should be obtained from all treating professionals. Should [M.Y.] be unable or unwilling to comply with the above recommendations, or should any evidence exist suggesting that reunification would continue to create a risk of harm to these children, alternative placement options may be explored.
The children and M.S. had been receiving family counseling and therapeutic services from Final Stop Family Services "to address the children's adjustment to living with their grandmother and their feelings of loss and grief as it relates to the separation from their birth parents." A report was issued by Juanita M. Taylor, M.A., of Final Stop dated December 19, 2006, noting, inter alia, that N.Y. and P.Y. "have consistently expressed a strong desire to maintain contact with their parents while living with their grandmother." Ms. Taylor also stated that M.S. "has noted that she is unsure as to whether she will commit to providing permanent care for the children, as she knows that the parents will want ongoing contact with them and that such an arrangement will cause disruption in her home." That same observation is contained in Ms. Taylor's January 19, 2007 report.
A compliance review hearing was conducted in the Family Part on January 10, 2007. Urine samples provided by the parties on that date disclosed that E.Y. tested positive for the presence of cocaine, but M.Y.'s sample was negative for the presence of illicit drugs. The court issued an order continuing the prior orders; directing DYFS to explore the possibility of weekend visits for M.Y. at M.S.'s residence; requiring M.Y. to comply with recommendations contained in Dr. Singer's psychological evaluation; and ordering E.Y. to sign releases to enable DYFS to confirm her participation in a substance abuse program. A permanency hearing was scheduled for March 7, 2007.
On February 28, 2007, the DYFS contact sheets reflect that the caseworker explained to M.S. the differences between kinship legal guardianship and adoption. M.S. first informed the worker that she would agree to kinship legal guardianship "with the understanding that if the parents do not get their lives together she wants to adopt the children." After the worker informed M.S. that DYFS was trying to establish a permanent goal and that it would be either kinship legal guardianship or adoption, M.S. told the "worker that she would be interested in adoption."
In February 2007, the Division referred M.Y. to Johnson & Associates Counseling and Consultation Group for parenting skills training, individual therapy, and substance abuse treatment. On March 7, 2007, Johnson & Associates issued a report, finding that although M.Y. appeared to be free of any substances his history of substance abuse required twelve weekly sessions of substance abuse counseling with random urine screenings.
A permanency hearing was conducted in the Family Part on March 7, 2007. A urine sample obtained from M.Y. on that date tested positive for the presence of cocaine. E.Y. did not appear at that hearing and her whereabouts were unknown, as she and M.Y. were no longer cohabiting. DYFS informed the court that its permanency plan had changed from reunification to termination of parental rights and adoption of the children by M.S. After considering the matter, the court issued a permanency order approving the Division's plan, and directed that a guardianship complaint be filed within sixty days. In a separate order entered on that date, the court directed that all prior orders were to remain in full force and effect.
A subsequent random urine sample taken from M.Y. on March 22, 2007, tested positive for the presence of cocaine.
On May 10, 2007, DYFS filed a guardianship complaint against E.Y. and M.Y. under docket number FG-07-202-07, seeking an order terminating their parental rights as to N.Y. and P.Y. and placing the children in the care and guardianship of the Division for all purposes, including placement for adoption. The court issued an order to show cause on that date directing E.Y. and M.Y. to show cause on June 7, 2007, why the relief sought in the complaint should not be granted. The order also provided for legal representation of E.Y. and M.Y.; continued care, custody and supervision of the children with DYFS pending the outcome of the guardianship proceeding; and dismissed docket number FN-07-515-06.
In a report dated May 21, 2007, Ms. Taylor of Final Stop recommended that resuming supervised visitation with M.Y. would not be in the best interests of the children, noting that they "have verbalized feelings of fear with regard to their father and his history of domestic abuse against their mother." As a result of that report, DYFS requested the court to suspend visitation of the children by M.Y.
At the June 7, 2007 hearing on the return date of the order to show cause, the court issued an order vacating the prior order permitting visitation by M.Y., and required him to undergo a psychological evaluation to assess his emotional stability and ability to interact appropriately with the children. Although M.Y. was present at the hearing, E.Y. did not appear, and the order provided for the temporary suspension of her visitation with the children pending further order. Custody, care and supervision of the children was continued with DYFS and a case management conference was scheduled for June 27, 2007.
Dr. Singer issued a report dated June 19, 2007, recommending supervised therapeutic visits for M.Y. with the children. At the case management conference conducted on June 27, 2007, the court entered an order directing the Division to establish visitation for M.Y. in accordance with Dr. Singer's report, and to provide M.Y. a case plan for reunification with the children. DYFS referred M.Y. and the children to Final Stop Family Services in Maplewood to arrange for the supervised visitation.
Prosline Baptiste, a Therapeutic Visit Counselor with Final Stop, issued a report to the Division dated July 30, 2007, concerning the initial visitation session between M.Y. and the children that had occurred on July 28, 2007. Ms. Baptiste reported, in part, as follows:
During the visit, the children expressed that they are uncomfortable at their place of residence. [N.Y.] and [P.Y.] stated that they spend a lot of time in their room due to favoritism. It would appear to this intervention specialist that there is some rivalry between the girls and their cousins. As per [N.Y.] and [P.Y.] they are constantly reprimanded for trivial things. [M.Y.] seemed to be supportive and encouraging as he listened to his daughters' complaints. [M.Y.] was then asked to express some positive statements about his daughters. They responded favorably to each other as they interacted.
In my professional opinion, [N.Y.] and [P.Y.] seem to be well bonded to their father. [M.Y.] seems genuine in expressing his affection and concerns for his daughters. . . .
Another case management conference was conducted in the Family Part on August 16, 2007, resulting in entry of an order requiring the Division to investigate the issues raised by the children as contained in the July 30, 2007 Final Step report, and a case management review was scheduled for October 24, 2007. On August 13, 2007, the DYFS case worker conducted a home visit and spoke to N.Y. and P.Y. concerning the issue raised in the July 30, 2007 report, and the children informed her they were not uncomfortable in M.S.'s home, but sometimes argue with their cousins and get sent to their rooms when they do something bad.
During a home visit on September 11, 2007, M.S. informed the DYFS caseworker that she had been recently hospitalized for a minor heart attack, but was doing well. The DYFS worker informed M.S. that E.Y. had been admitted into the one-year inpatient drug treatment program at Straight and Narrow. Reports issued by Final Stop on September 30, 2007, and October 6, 2007, concerning M.Y.'s visits with the children, were positive in terms of M.Y.'s interaction with the children, but expressed concern that because M.Y. had been more than an hour late for one session, and had cancelled another, there was inconsistency that "affects his children and sends mixed messages of high hopes of him coming to the visit and then not showing up." In a letter to DYFS dated October 24, 2007, Johnson & Associates Counseling and Consultation Group reported that M.Y. had failed to comply with appointments as scheduled, that attempts to contact him had failed, and he was being terminated from their programs.
The case management conference scheduled for October 24, 2007 was postponed to October 31, 2007. A case management order issued on October 31, 2007, provided for M.Y. to continue supervised visitation with the children through the Final Stop program on a bi-weekly basis; directed E.Y. to complete her drug treatment program at Straight and Narrow and approved supervised visitation for her with the children; required DYFS to assess M.Y., Jr. as a possible supervisor for M.Y.'s visitation with the children; and ordered the Division to determine, with input from the children's therapist, whether M.Y. could take the children to North Carolina for the Thanksgiving or Christmas holidays.*fn4 Another case management order was entered on December 20, 2007, requiring the Division to assess M.Y.'s home, and to determine whether it was appropriate to permit M.Y., Jr. to supervise supplemental visits between M.Y. and the children.
A case management conference was conducted in the Family Part on January 31, 2008. The DYFS contact sheets contained in the record concerning that hearing reflect the judge had initially determined that M.Y. would begin weekend unsupervised visitation with the children once he had secured an apartment and told M.Y. "how proud he was of him and he's doing a great job." The judge directed DYFS to provide M.Y. with a deposit for his apartment, noting that M.Y., Jr. would also be living there to assist M.Y. with the care and transportation of the children. However, upon the request of the DYFS caseworker, each parent was ordered to provide urine samples. The sample provided by M.Y. tested positive for cocaine.*fn5 The DYFS contact sheets reflect that the judge went back on the record, rescinded his prior order, and entered an order requiring E.Y. to inform the Division when she leaves or is discharged from the Straight and Narrow program, and that M.Y. inform DYFS when he moves into his new apartment. The DYFS contact sheets reflect that the judge scheduled another case management conference for February 28, 2008, for the purpose of "setting a trial date and going forward with this case."
On February 28, 2008, the Family Part issued an order approving the permanency plan of DYFS to seek termination of parental rights, followed by adoption by M.S. A separate case management order was entered scheduling expert evaluations of the parents and children; requiring M.Y. to provide a urine sample and to submit an affidavit concerning his contention that his use of prescription drugs had caused the cocaine-positive reading at the prior hearing; and directing E.Y. to notify the Division when she leaves the Straight and Narrow program. Dr. Singer was retained by DYFS to conduct psychological and bonding evaluations, and Dr. Matthew B. Johnson, Ph.D., a licensed psychologist, was retained on behalf of the parents to conduct psychological and bonding evaluations.
When the Family Part was informed by the Division that P.Y. was not doing well in school and was in danger of having to repeat first grade, an emergency ex parte order was issued on March 12, 2008, directing the Irvington Board of Education to begin a child study team evaluation of P.Y. within thirty days. The record on appeal also contains a March 20, 2008 report from Ms. Taylor, the children's therapist at Final Stop. With respect to N.Y., Ms. Taylor reported, in part:
Also during this treatment period, this therapist has continued to assist [N.Y.] in processing her feelings about the therapeutic visits with her birth father and mother being discontinued. [N.Y.] has indicated that she enjoyed the time she was able to spend with her parents and feels disappointed that visits were discontinued with her father because he did not attend regularly and with her mother because she is no longer in inpatient. This therapist has assisted [N.Y.] in processing her feelings about this matter and has explained the reasons for visits with her mother being discontinued (required to complete outpatient program). [N.Y.] has consistently expressed feeling happy and excited that her mother has stayed in treatment and is becoming healthier. This therapist has continued to talk with [N.Y.] about the reunification process and the responsibilities of the adults in her life. [N.Y.] is aware that she may not be able to return to her mother's care and has expressed feeling sad and disappointed about this matter. This therapist has talked with [N.Y.] about the reasons for this possibility and the final decision process which occurs in court. This matter will continue to be addressed in future sessions.
With respect to P.Y., Ms. Taylor discussed her poor performance in school and relationships at ...