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New Jersey Division of Youth and Family Services v. M.Y.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 22, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.Y., DEFENDANT-APPELLANT, AND E.Y., DEFENDANT.
IN THE MATTER OF THE GURADIANSHIP OF N.Y. AND P.Y., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-202-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 home, noting, as follows:

However, during this treatment period [M.S.] has noted that [P.Y.] appears to be engaging in overly anxious behavior in that she has been pulling her hair out around the edges. [P.Y.] has denied feeling worried or nervous about anything but has continued to express feelings of sadness with regard to her being separated from her birth parents. She has also noted [that] she continues to desire reunification with her mother. [P.Y.] has expressed feeling sad and disappointed that the visits with her mother have been discontinued due to her need to complete outpatient drug treatment. This therapist has continued to assist [P.Y.] in processing her feelings about being separated from her birth parents and has validated [P.Y.'s] feelings of sadness and disappointment. This therapist has also continued to talk to her about the responsibilities of her parents to demonstrate that they can be good parents and the court's responsibility of making a final decision regarding her permanency plan. Future sessions will continue to address these issues.

Similar comments and observations were contained in Ms. Taylor's report dated May 23, 2008.

E.Y. left the Straight and Narrow program sometime in March 2008, and went to reside with M.Y. and M.Y., Jr. at their apartment. In an interview of E.Y. conducted by the DYFS caseworker at M.S.'s home on April 15, 2008, E.Y. stated she was not enrolled in an outpatient program but had been attending Narcotics Anonymous (NA) meetings three or four times per week.

The DYFS contact sheets reflect that on May 5, 2008, the caseworker was contacted by Dr. Johnson, who disclosed that during her bonding evaluation, E.Y. had "told him that when she was five years old she was molested by her stepfather, Mr. [S.] [and] she just remembered him touching her." Dr. Johnson further informed the caseworker E.Y. had stated "that she did not remember what happened until now and she also spoke with the counselor at Straight and Narrow where she was inpatient for substance abuse treatment." On May 7, 2008, the DYFS caseworker informed M.S. and Mr. S. concerning E.Y.'s allegation; they denied it. The caseworker then interviewed all the children in the household, and none of them reported any inappropriate conduct by Mr. S.

A case management conference was conducted on May 8, 2008, and an order issued, scheduling the trial for June 12 and 13, 2008; continuing the discovery period until May 30, 2008; and requiring the parents to submit to drug urinalysis testing. At the conference, E.Y. repeated her allegation against Mr. S., but stated "she doesn't think that [Mr. S.] will ever harm her children and that they are safe." The DYFS contact sheets further reflect that a urine sample taken from E.Y. on May 8, 2008, tested negative for the presence of illicit substances.

A final case management order was entered on May 30, 2008, extending the discovery period until June 6, 2008; requiring drug urinalysis testing of E.Y.; and scheduling the trial for June 12, 13 and 30, 2008.

The record contains the results of several other urinalyses conducted as a result of court orders. A urine sample collected from M.Y. on April 17, 2008, tested positive for the presence of cocaine. A urine sample collected from M.Y. on June 3, 2008, tested positive for the presence of cocaine. A urine sample collected from M.Y. on June 12, 2008, the first day of trial, tested negative for the presence of illicit substances; however, a urine sample collected from E.Y. on that date tested positive for the presence of cocaine. A urine sample collected from M.Y. on July 30, 2008, tested negative for the presence of illicit substances; however a urine sample that he provided on August 18, 2008, the last day of trial, tested positive for the presence of both heroin and cocaine. The record also contains an undated letter from Family Connections, sent by facsimile transmission to DYFS on June 13, 2008, concerning the failure of M.Y. to attend individual sessions in its Strong Fathers Program, noting that he had attended eight of fourteen group sessions, but had tested positive for the presence of cocaine on both urine samples he had submitted while in that program.

The guardianship trial in this matter was conducted in the Family Part on June 12, 2008, August 14, 2008, and August 18, 2008. Testimony was given by the DYFS caseworker and adoption specialist, Michelle Gill; Dr. Mark Singer; and Dr. Matthew B. Johnson. Neither parent testified.*fn6

Ms. Gill identified the DYFS records, they were entered into evidence, and she outlined the history of the Division with the family as well as the services provided by the Division to E.Y., M.Y., M.S. and the children. Ms. Gill testified that E.Y. had failed to attend parenting skills training scheduled by the Division; failed to attend scheduled outpatient drug programs; failed to keep several appointments for psychological examinations; failed to attend many of the scheduled supervised visitation sessions; and that several urine samples she had provided had tested positive for the presence of illegal substances. Ms. Gill stated that E.Y. did attend the one-year Straight and Narrow inpatient substance abuse program but had left the program in March 2008, after six months and prior to its completion, and then had failed to enter into an outpatient care program, as recommended.*fn7

With respect to M.Y., Ms. Gill testified that in 2006 he failed to attend The Bridge outpatient drug treatment program arranged by the Division; failed to complete the substance abuse treatment program, parenting classes and individual therapy arranged for him at Johnson & Associates; that his attendance at the supervised visitation sessions arranged by DYFS was sporadic; and that several urine samples he has provided have tested positive for the presence of illicit substances. Ms. Gill noted that M.Y. did enroll in the Family Connections program in 2008.

Ms. Gill described her observations of what she described as a "good relationship" between the children and M.S., stating that M.S. has expressed a desire to adopt the children, which was the Division's permanency plan if parental rights were terminated and DYFS awarded guardianship. Ms. Gill stated that the children expressed a desire to be reunified with their parents, but that had not been possible because M.Y. and E.Y. continued to use illicit substances, despite intervening periods of abstinence.

Dr. Singer testified concerning his psychological and bonding evaluations of E.Y. completed on May 14, 2008; his bonding evaluation of M.S. completed on June 11, 2008; and his psychological and bonding evaluation of M.Y. completed on June 23, 2008 and August 6, 2008; his written reports were entered into evidence.

In his evaluations of E.Y. and M.Y., Dr. Singer focused on their ability to parent, and the nature and quality of attachment between each parent and the children. He concluded that largely due to significant substance abuse and marital issues, neither E.Y. nor M.Y. were able to provide the children with an appropriate home environment, and it was not likely that either would be able to parent their children in the foreseeable future.

Dr. Singer noted there had been domestic violence issues between M.Y. and E.Y., and that E.Y. had "indicated that she and her husband really don't have a relationship, although they live together." The record is replete with comments by the children relating arguments and disputes they had observed or heard between M.Y. and E.Y. Dr. Singer concluded that both parents are at a high risk to relapse concerning their use of illicit drugs, and that "the level of marital strain between [M.Y.] and [E.Y.] would likely have a negative impact upon the quality of life of any child in the house." Clinically, Dr. Singer found M.Y. to be a rigid individual which he found consistent with the results of various personality tests he administered.

Dr. Singer explained that "[p]ermanency psychologically is consistency[,]" and that "[c]hildren need to know that [their] environment is going to respond to them in a consistent, stable manner, and is going to help the child to develop physically and emotionally, as well." Dr. Singer concluded that the children would be best served by remaining with their grandmother, even though they have developed a bond with E.Y. as a significant parental figure in their lives. He noted that being bonded to an ineffective parent results in the children having to deal with a lot of ambiguity in their lives, which adds to their anxiety. During the following cross-examination by the law guardian, Dr. Singer elaborated:

Q: And I guess my last question is . . . does it harm my clients - - to first believe that they are going home to mom - -mommy and dad - - not going home, maybe going home? And to see mom and dad not doing what they have to do to be able - -for them to come home?

A: It's very harmful. Again, these children need consistency in their lives. Either purposely or unconsciously, sending children mixed messages, verbally or behaviorally, does not do children any good.

Dr. Singer then described the children's bond with their parents, as follows:

The children's behaviors with [E.Y.] were qualitatively different than that with dad. The children's behavior suggest[s] that they have come to see [E.Y.] as a - -consistent figure in their lives. Where, with [M.Y.], they clearly recognize him as, quote, "daddy."

However, the children's behavior with . . . [M.Y.] suggested that they don't necessarily see him as a consistent figure, which is very consistent with . . . the disruption in visitation.

Clearly, the girls' interaction with their dad suggest that a foundation has been laid for a secure attachment[,] [b]ut that it hasn't evolved to that point.

Dr. Singer also testified concerning his observations of the children's bond to M.S., stating:

[T]hey understand that she's nanny. At the same time, the data suggests that they've developed a secure parent/child attachment using . . . grandma as their central parental figure. You know, it was very similar to that of [E.Y.] . . . [two] significant attachment figures in their lives.

In discussing the issue of whether severing the bond between E.Y. and the children would do more harm than good, Dr. Singer stated:

In and of itself, if there was nothing else available for these children, I would suggest that severing that bond would do more harm than good. But that's not the case here.

We have . . . two children who have significant attachments to two parental figures. So we're not talking about the children losing a parental figure period. We're talking about the children possibly losing a parental figure, but still having a consistent parental figure in their lives.

It's like, you know, a husband and wife get divorced, wife is fortunate enough to move to California, her husband kind of gets stuck here in New Jersey, and the children go to California. The loss of dad will likely have a significant impact on that child. But, at the same time, the presence of mom is likely to mitigate that . . . harm.

Dr. Singer addressed the issue as to whether severing the bond between M.Y. and the children would do more harm than good, as follows:

With their father, it's a little different. You know, I would . . . suggest, based upon the data, that they would experience an adverse reaction if they were never to see their father again. They clearly recognize [M.Y.] as being, quote, "daddy[,]" [a]lthough they don't necessarily see him as a consistent figure in their lives.

The data suggests that . . . if the relationship were severed, that the type of harm that the children would experience in losing [M.Y.] would be a lesser degree than that experienced if they were to lose [E.Y.,] [o]r, if they were to lose grandma.

Dr. Singer testified that the children view [M.S.] as their central parental figure, and severing that bond between M.S. and the children would result in significant enduring harm for the children. He explained:

At the same time, if mom were capable of parenting, her relationship with the children - - may mitigate the harm that the children experience losing grandma. And I think I spoke to that in my . . . recent evaluation of [E.Y.]

The dilemma that we have here is that, if you were to lose grandma, the data suggests that you have no place for these children. Placing the children in . . . the home of the [Y's] with the . . . characteristics that we spoke about earlier would, number one, not likely be in the children's best interest. But, number two, would likely create a risk of harm to these children.

So, if you were to . . . sever the girls' relationship with their grandma and plop them in a foster home that would be detrimental to the children. And, unfortunately, the data does not suggest that [M.Y.] and [E.Y.] are capable of kind of absorbing the children at this point in time.

On cross-examination by E.Y.'s counsel, Dr. Singer asserted that termination of the parental rights of E.Y. and M.Y. was in the best interests of the children, explaining:

As of today, based upon the data that I have, the data supports termination in order to provide these children with permanency and consistency.

Now, again, in an ideal world, [M.Y.] and [E.Y.] may still be able to have contact with their children, if [M.S.] permits that. But, clearly, the need for the children to have a stable, consistent, healthy figure in their [lives], kind of outweighs the rest.

Upon cross-examination by the law guardian concerning the option of kinship legal guardianship, as opposed to adoption, Dr. Singer testified that a kinship legal guardianship "would continue the harm over time[,]" and that adoption would afford the children the kind of permanency and consistency they need. In the following re-cross by counsel for M.Y., Dr. Singer elaborated:

Q: Now, Dr. Singer, if I were to tell you that a . . . kinship legal guardianship could provide those same things, stability, the decision-making of the grandparent, and, in essence, would provide the parents access to information and visitation, would that -- assist you in your decision?

A: Right. Well, that's actually . . . part of the dilemma with [kinship legal guardianship], is that, you know, you do get into the area where parents do have access to the children through visitation, and where parents have a level of involvement that, with adoption, they would . . . be precluded from.

The data that I have suggests that this situation, meaning the family situation, is likely to keep going the way it's been going historically. And that . . . [kinship legal guardianship] would not be in the best interests of the children.

Dr. Johnson testified concerning his psychological examinations of M.Y. and E.Y., completed on March 31, 2009; his bonding evaluation of the children completed on May 15, 2008; and his summary report dated August 16, 2008; his written reports were entered into evidence.

During his direct testimony, Dr. Johnson described his observations of the relationship between the children, M.S., E.Y., and M.Y., as follows:

The children were responsive to the grandmother's direction, but they were not very animated or visibly affectionate toward the grandmother. They were much more animated and affectionate in a very direct and obvious way to their father and mother.

When . . . the father and mother came in, [the children] initiated hugs and kisses with the . . . father and mother[,] [s]at very close to them in the examination room on the couch, and expressed their . . . concerns about wanting to see them more and things of that sort.

So, their behaviors were . . . certainly . . . related to the grandmother, but they were much more animated and affectionate in their interaction with . . . both the father and the mother.

In addressing the issue of harm to the children if parental rights were to be terminated, Dr. Johnson stated:

And one of the factors that . . . is very important has to do with the children's age. I believe the oldest child is 12, and the younger child is 7 years old. And these children have lifelong bonds of affection and loyalty toward their parents. And they view their parents as being . . . viable care providers, and they have distinct memories of the care and affection that they received from their parents when they were in parental care, as well as since they have been out of their parents' care, the contact they have had with their parents.

So, they're very much attached to their parents and have positive feelings towards their parents. This is not to say that they don't have positive feelings towards their grandmother, but they do have these very strong bonds to their parents.

And their . . . positive relationship that they have with their grandmother, which is certainly beneficial, does not supersede or does not interrupt or replace their care and affection for their parents.

It's very clear in this case that they have two parents, and they also have a grandmother . . . and all these three parties have been involved in their care. But it's not a case where . . . some children were placed when they were very young and they established an attachment to someone other than their parents that might supersede what we typically consider to be a parent relationship. That . . . set of facts does not present itself in this case.

So, they have . . . these strong ties of affection and concern and loyalty to their parents. They're at an age where . . . if they were to lose contact with their parents that . . . it would be distressful, potentially harmful.

Dr. Johnson recognized that both parents have problems with substance abuse, but stated they have not abandoned their children, and the children want to be reunited with them. Dr. Johnson emphasized that these children are at an age where they recognize the value and significance of their parent-child relationship, and to terminate that relationship "would likely precipitate distress on their part, and possibly symptoms and/or behavioral problems."

Dr. Johnson also expressed concerns regarding their current placement, stating, in part:

Now, another consideration in terms of the harm has to do with the fact that their current placement in . . . the home that they share with their grandmother and their aunt and their other cousins, that there are difficulties that the children encounter in their home that they expressed when I . . . interviewed them with their parents.

They feel as though . . . there's favoritism in the home by the adults in the home, against them in favor of the other children in the home. They have expressed that, as I indicated, when I examined them. There are also notations of that in several records, which I can denote if you would like me to.

Their . . . grandmother is not really the head of the household. It's an aunt who is head of the household. There have been concerns about how they're regarded and how they're treated.

Ms. Gill had reported to me that at one point the aunt asked one of the two girls to pack her clothes and leave, or something to that extent. But that's in my report.

So, [there are] concerns about the stability, about the care that they believe they are receiving, and how they're regarded in . . . the foster home. And . . . it's my opinion, based upon these different sources that I have referenced, that if they were to be told that they no longer have contact with their parents that they would feel even more vulnerable in . . . the current home where they're placed.

So, these different considerations that I looked . . . at, indicate to me that there's a good likelihood that if they were to lose contact or be . . . sent a message that legally their parents have been erased from their lives, this would be an assault. It would be disturbing. It would hurt them. It would - - whether it would give them long term harm, I certainly can't predict that long term. But it certainly would be disruptive for them, particularly as they're approaching, you know, adolescence and pre-adolescence.

And, particularly, I believe that the foster mother's status is somewhat compromised there.*fn8 The foster mother told me - - when I examined her, that she felt that she was too old to take . . . care of the kids, but she was [going to] try to hold on and take care of them as long as she could, given the . . . circumstances.

So, there [are] a variety of risks that are inherent in . . . a judgment that would divorce these children . . . certainly legally divorce them . . . or convey to them that their parents will no longer be in their lives.

When questioned as to whether the bond that the children have with their parents outweighs any benefit that termination of those parental rights would give them, Dr. Johnson testified, as follows:

I'm not aware of any benefit that the termination of parental rights would give them. They're benefitting now from receiving the care and affection that they receive from their grandmother, being removed from their parents given these difficulties their parents are having right now. I mean, that's a benefit that is provided at present[,] that they're in the grandmother's home. They have periodic visits with their parents.

I know there have been issues . . . with the visits off and on with both parents, but they have access to their parents. They get to see their older brother, and so forth and so on, that they get benefits from this current placement.

But, I don't see that there's an additional benefit that they're [going to] derive or receive from being told that their parents have been legally severed from them, and that . . . their parents can't check on them. That their parents can't console them. . . . they can't have the companionship of their parents. I don't see that they get any benefit from that.

Dr. Johnson recommended that the children remain in the home of M.S.; that the children be evaluated by a sexual abuse trauma expert because of the report by E.Y. that there had been some sexual abuse on the part of the step-grandfather; and that the children continue to have visits with their parents monitored by the Family Part or the Division in some type of therapeutic supervised environment. Dr. Johnson emphasized that the termination of parental rights is something to be provided when there is a possibility that the children can reattach and develop a new psychological parent relationship. He explained:

These kids are old now. They have cherished memories of when their parents were together and they went places, and their brother went with them. And things that their parents did for them, and . . . things the parents have continued to do with them. And their parents have made efforts to continue maintaining contact with them while they're in the grandmother's care.

So, you know, . . . there may be some desire on the part of the court to be finished with the case, or . . . the people who are . . . managing the case.

But, what is the parental rights termination [going to] do for the children? What does that give the children? There are children who are infants and 2 years old and 4 years old who want to be adopted, and whose parents have abandoned them. And . . . they want . . . to be part of a family. That doesn't apply in this case.

And there shouldn't be this sort of formula with these deadlines and these abstract notions of 12 months and 15 months and all this sort of stuff . . . you have to look at the facts of the case.

The facts of this case [are] that these children are psychologically bonded to their parents. They have a strong relationship with their grandmother, but their grandmother is not a substitute for their parents. And, you know, we have to come up with some other carrots and sticks to use, you know, with the parents.

If the parents aren't following their . . . case plans, . . . maybe there's some other things we can use to deter the parents or punish the parents.

But, certainly, parental rights termination is not something to . . . punish the parents. I mean, . . . it's something . . . you can use to punish the parents, but essentially it's having an adverse affect on the children in this case. Not in every case, but in this case. As I see it.

Following closing arguments by counsel, the trial judge reserved decision. On August 28, 2008, the judge issued a written decision, and a judgment terminating the parental rights of E.Y. and M.Y. as to their children, N.Y. and P.Y., and placing the children in the care, custody and guardianship of the Division, directing that the complaint for adoption of the children by M.S. be filed by March 9, 2009. In the written decision, the judge recited, at length, the findings and conclusions contained in the reports of Dr. Singer and Dr. Johnson, and summarized their testimony. The judge also outlined a long history of non-compliance by both parents with court-ordered evaluations and other services provided by the Division, citing to the positive drug screenings and noting that neither parent had successfully completed a drug treatment program.

In evaluating the expert testimony, the judge stated, in pertinent part:

Dr. Singer left the court with the impression that he is a competent, honest expert whose views as to why termination would be preferable to kinship legal guardianship are not unreasonable.

The court believes that Dr. Johnson is an extremely thoughtful, intelligent professional. It is not, however, able to state whether Dr. Johnson is more or less credible than Dr. Singer on the only disputed issue in this case: whether the court should order adoption or kinship legal guardianship. As set out above, Dr. Singer believes that adoption would give the children permanency, while Dr. Johnson believes the children would consider termination and adoption to be an assault. The court cannot determine who is correct because neither expert pointed to any data or study supporting his position. In the usual guardianship case, experts can point to data or studies on whether termination would be better or worse than returning the children to the parents. The court can then decide which data or studies most clearly fit the facts of the case. On the other hand, no one has any data or studies on whether termination or kinship legal guardianship is better for the children, or more precisely whether having "permanency" outweighs a sense of "assault" the children might feel. In the absence of any data or studies, [the] court concludes that two excellent professionals are not doing much more than speculating. In that situation, the court cannot determine who is correct.

The judge then went on to discuss whether the Division had proven each of the four prongs set forth in N.J.S.A. 30:4C-15.1(a) for the termination of parental rights by clear and convincing evidence. The judge found that the Division had established by clear and convincing evidence that the safety, health and development of the children has been and will continue to be endangered by the parental relationship; that the parents have failed to eliminate the harm facing the children and delaying permanent placement will add to that harm; and that the Division had made reasonable efforts to provide services to help the parents correct the circumstances which led to the placement of the children outside the home. See N.J.S.A. 30:4C-15.1(a)(1-3). In addressing the fourth prong, N.J.S.A. 30:4C-15.1(a)(4)("[t]ermination of parental rights will not do more harm than good") the judge stated:

The only real dispute in the case is on the fourth prong. Both experts want the children to live with the maternal grandmother. Dr. Singer believes that the legal status of the grandmother should be that of an adoptive parent. Dr. Johnson, on the other hand, advocates having the Division remain involved to monitor and provide the parents with visitation once they are off illegal substances. (Dr. Johnson did not use the phrase "kinship legal guardianship," but, legally, that status describes the relationship of visitation and monitoring he is advocating for).

Dr. Johnson's arguments are not without merit. He believes termination would be a psychological "assault" to the children and make them feel more "vulnerable." Termination, he argues, would be "disruptive," although he says one cannot predict the long term harm. He contrasts the case with others where two parents (a) have no close bonds with their children, or (b) abused or abandoned the children. In those latter cases, he argues termination would make more sense.

The court does not know if the harm caused by the termination would be more or less great than the harm caused by the uncertainty of kinship legal guardianship -- will [M.Y.] show up for his visits or disappoint again . . . will either parent overcome the drug habit . . . will either parent (or both parents) try to regain custody, and if so, will that parent (or both parents, if they remain married) succeed in regaining custody?

Another factor making the calculation difficult is that it is virtually inconceivable that termination will totally sever the children from their parents. [N.Y.] is 12. No one believes she will not contact her parents, by cell phone, if necessary. Further, the caretaker is [E.Y.'s] mother. Except for the sexual abuse allegation, discussed, supra, she and her daughter have always got along, and she has allowed visitation. She has even allowed [M.Y., Jr.] to arrange for visitation with [M.Y.] She has stated that she will continue to allow visitations, even if adoption is granted. No one believes that she will not continue to do so.

Furthermore the court is not aware of any data demonstrating that children who live with their relatives under a [kinship legal guardianship] feel any less "assaulted" or deserted than children who live with their relatives under an "adoption." Indeed, most lawyers and even non-family jurists are barely familiar with the difference between [kinship legal guardianship] and adoption. It is far from clear that the difference in legal nomenclature would change the attitudes of a 12 year old and a seven year old. One suspects that [N.Y.'s] and [P.Y.'s] attitude toward their life and parents will be primarily affected by whether their parents can cure their drug habit and play a role in their lives, not whether a judge did or did not enter a "termination" order.

The adoption versus kinship legal guardianship issue, as a psychological or philosophical matter, is not easily answerable. But the Legislature has foreclosed kinship legal guardianship when the caregiver has stated, as has the caregiver here, that she wants to adopt. See N.J.S.A. 3B:12A-6d which states that in a Division case, kinship legal guardianship may only be awarded where "adoption of the child is neither feasible nor likely." The grandmother has unequivocally stated that she wants to adopt. If a responsible adult chooses to be legally free from two active cocaine users, one of which also uses heroin and is an ex-convict, this court has no right to overrule the decision. In this case, adoption is not "unfeasible", which means that [kinship legal guardianship] is not an option.

Since kinship legal guardianship is not an option, it is clear that termination is far better for the children than the only other conceivable option: return to two active cocaine users who are in an unstable marriage, and who have exhibited little reliability. Neither Dr. Singer nor Dr. Johnson favors this outcome; the court cannot disagree.

Regretfully, the court must concede that termination of parental rights is the only outcome which will cause no more harm than good for the children. To mitigate any conceivable harm, therapy should be put in place. Finally, while the court cannot order visitation, she has stated that she intends to do so, and it is obvious that both children will do better if they are allowed to see their parents when their parents finally become drug free. [Footnote omitted.]

On appeal, M.Y. presents the following arguments for our consideration:

POINT I

THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15 AND 30:4C-15.1.

A. THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT EITHER N.Y.'S OR P.Y.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER FACTOR 1.

B. THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING EITHER N.Y. OR P.Y., OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR HIS CHILDREN, AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM, UNDER FACTOR NUMBER 2.

C. DYFS HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO HELP M.Y. CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT WITH THE MATERNAL GRANDMOTHER, AND THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF HIS PARENTAL RIGHTS.

D. THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF THE DEFENDANT'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, UNDER FACTOR NUMBER 4.

We begin our inquiry by restating applicable legal principles. These principles bear replication in light of the remedy ordered by the Family Part judge.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. New Jersey Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed. 2d 551 (1972)); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S.Ct. at 121-13, 31 L.Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point. . . ." Id. at 602, 99 S.Ct. at 2504, 61 L.Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S.Ct. at 2504, 61 L.Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible[,]" Santosky, supra, 455 U.S. at 759, 102 S.Ct. at 1398, 71 L.Ed. 2d at 610, and "all doubts must be resolved against termination of parental rights," K.H.O., supra, 161 N.J. at 347.

When the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.

The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through application of the best interests of the child standard. E.P., supra, 196 N.J. at 103; K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(1) The child's health and development have 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 foster 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-15.1(a).]

These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. K.H.O., supra, 161 N.J. at 348. The considerations involved in determining parental unfitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon the opportunity of the judge to see and hear the witnesses, as long as there is substantial credible evidence in the record to support the court's findings. E.P., supra, 196 N.J. at 104; In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." New Jersey Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Applying these principles, we are satisfied that there is clear and convincing evidence in the record supporting the trial court's findings on the first three prongs of the "best interests" test set forth in N.J.S.A. 30:4C-15.1(a)(1-3). There is overwhelming evidence supporting the conclusion that the health and development of N.Y. and P.Y. have been endangered by the continued drug use by both parents, with their failure to successfully complete drug-treatment programs and their repetitive relapses, coupled with their resultant inability to provide a safe and stable home for their children. The proofs are equally clear that M.Y. and E.Y. have been unable to eliminate this harm facing the children, and that the delay of permanent placement will only add to, or continue, that harm. The children have been living exclusively in the home of M.S., their grandmother, since March 2006, and the evidence in the record clearly supports a conclusion that it is not likely this will or can change in the foreseeable future, given the continued use by the parents of illicit drugs.

The record also clearly discloses that the Division has made reasonable efforts to help and assist both E.Y. and M.Y. to correct the circumstances which led to the children's placement with M.S. DYFS arranged for drug treatment programs for both parents. M.Y. failed to complete any of the outpatient substance abuse programs scheduled for him by DYFS. For many months following placement, E.Y. avoided enrolling in outpatient programs arranged by the Division. Then, with the assistance of DYFS, E.Y. enrolled in the one-year Straight and Narrow inpatient program in September 2007, but voluntarily left that program in March 2008, prior to its completion; thereafter, she failed to enroll in an outpatient treatment program, and urine samples provided by both parents thereafter tested positive for illegal substances. The Division also arranged for supervised visitation for M.Y. and E.Y, and their attendance at the scheduled sessions was sporadic. The court did consider, as an alternative to termination of parental rights, kinship legal guardianship, but rejected same because M.S. had expressed, through the DYFS caseworker, her preference for adoption.

The focal issue in this appeal is whether the Division has proven, by clear and convincing evidence, that "termination of parental rights will not do more harm than good to the child[ren]." N.J.S.A. 30:3C-15.1(a)(4). As the Court has recently noted:

Prong four "serves as a fail-safe against termination even where the remaining standards have been met." New Jersey Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 608 (2007). The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent. It has been "suggested that [a] decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for . . . a more promising relationship . . . [in] the child's future." A.W., supra, 103 N.J. at 610 (alterations in original) (quotation omitted). It also is widely understood that a "child deeply needs association with a nurturing adult" and that "permanence in itself is an important part of that nurture." Ibid. [E.P., supra, 196 N.J. at 108.]

The opinions advanced by each expert on this issue were markedly different. Specifically, Dr. Johnson opined that this case should be contrasted with those cases where parents have no close bonds with their children, have abused or abandoned their children, or where the children have stronger bonds with foster parents, circumstances where the termination of parental rights would make more sense. Here, he concluded that termination of parental rights would constitute an "assault" upon the children, would be "disruptive" to them, make them feel "more vulnerable," and that "the children will not derive any benefit from the parental rights being . . . terminated." Dr. Johnson noted that even though the parents were not presently capable of assuming the role of custodial parents, it did not mean they were unable to provide any parenting, and they remain significant figures in the children's lives. On the other hand, Dr. Singer contended that termination of the parental rights of M.Y. and E.Y. would not do more harm than good because it would provide the children with permanency and consistency, would eliminate the continual harm suffered by the children as a result of their parents' continued drug use, and any harm occasioned by the termination could be ameliorated through therapy and counseling. Additionally, each expert assessed the strength of the bonds between the children and M.Y., E.Y., and M.S. differently. Dr. Johnson found the parental bond between the children and both M.Y. and E.Y. to be stronger and different from their bond with M.S. Dr. Singer equated the parental bond between the children and E.Y. with the bond between them and M.S., while finding a lesser degree of attachment between the children and M.Y.

The trial judge credited the testimony of both experts on the issue of whether termination would do more harm than good, if the choice to be made were between adoption and kinship legal guardianship. The judge found that the children were bonded to their parents and M.S.,*fn9 but concluded that M.S. would likely continue to allow contact between the children and their parents, even though such contact could not be required upon termination of parental rights and adoption.

In the end, the judge found that a kinship legal guardianship was not available because "[t]the grandmother has unequivocally stated that she wants to adopt[,]" citing to N.J.S.A. 3B:12A-6d(3)(b) (stating that the court shall appoint the caregiver as a kinship legal guardian in cases in which the Division is involved when the Division has exercised reasonable efforts to reunify the children with the birth parents and those reunification efforts have been unsuccessful or unnecessary, and "adoption of the child is neither feasible nor likely"). With the unavailability of kinship legal guardianship as a permanent placement option, the judge found "it is clear that termination is far better for the children than the only other conceivable option: return to two active cocaine users who are in an unstable marriage, and who have exhibited little reliability." The judge stated he "[r]egretfully . . . must concede that termination of parental rights is the only outcome which will cause no more harm than good for the children."

These conclusions by the trial judge assume that M.S. would not agree to continue as a placement for the children if she was unable to adopt them. There is no evidence in the record to that effect. In fact, although the record on appeal reflects that the DYFS caseworker explained to M.S. the difference between kinship legal guardianship and adoption, the record is also clear that, at first, M.S. stated she would agree to kinship legal guardianship as long as the parents were addressing their addiction issues. When informed by the DYFS caseworker that the Division was seeking a more permanent option, M.S. agreed to seek adoption of the children. However, during the subsequent May 15, 2008 bonding evaluation with Dr. Johnson, M.S. expressed that she was comfortable with the children returning to their mother's care and she hopes it does not return to the prior situation. M.S. added that she was becoming too old to care for the children, and that the father was welcome to come to the home to see the children, but does not. M.S. summarized by stating, "I'm hoping everything works out for their sake because [the children] want to be with their parents." The evidence in the record also reflects that M.S. is now sixty-six (66) years old and, in September 2007, had reported to the DYFS caseworker that she had just been hospitalized due to a mild heart attack. It is also notable that her husband, Mr. S., has stated he is not interested in adopting the children, but would support M.S.'s adoption of the children. Moreover, D.M., the daughter of M.S. and Mr. S., resides in household with her three children, and Dr. Johnson testified it was his understanding that D.M. was the head of that household, not M.S., and that the children had expressed "concerns about how they're regarded and how they're treated." It is unclear from the decision whether these factors were evaluated and weighed in the context of determining whether the termination of parental rights would do more harm than good.

We recognize that "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." New Jersey Div. of Youth and Family Servs. v. P.P. and S.P., 180 N.J. 494, 513 (2004); see N.J.S.A. 3B:12A-6(d)(3)(b). Here, however, M.S. did not testify at the termination hearing, and given the conflicting information in record, it is not fully clear as to either her understanding of the difference between adoption and kinship legal guardianship, or her acceptance of one option as opposed to the other. Moreover, the children in J.P. and B.P., supra, 180 N.J. at 513, were ages four and five, and had resided with their paternal and maternal grandmothers, respectively, almost from birth, whereas E.Y. and P.Y. were ages twelve and seven, respectively, have lived most of their lives with their parents, have significant bonds with them, and have expressed a desire to live with them. See E.P., supra, 196 N.J. at 113-14 (noting that in the sound discretion of the judge in termination cases, "in appropriate cases, the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion").

In light of the judge's conclusion that he was unable to accept or reject either expert opinion on the issue of whether "termination of parental rights will not do more harm than good to the child[ren,]" N.J.S.A. 30:4C-15.1(a)(4), the fact that prong four of the statutory best interests test "serves as a fail-safe against termination even when the remaining standards have been met[,]" K.H.O., supra, 161 N.J. at 354-55, and that "all doubts must be resolved against termination of parental rights," K.H.O., supra, 161 N.J. at 347, we conclude that the Division has failed to prove by clear and convincing evidence that the termination of the parental rights of M.Y. and E.Y. will not do more harm than good. The question to be answered by the court under the fourth prong "is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. In these circumstances, that question remains unanswered by the court's findings.

Accordingly, we vacate the judgment of guardianship, and remand the matter to the Family Part for further proceedings, to include testimony from M.S. concerning her understanding of the issues of adoption and kinship legal guardianship, and her position concerning same. Since more than a year has passed since the now-vacated judgment of guardianship was issued, updated psychological and bonding evaluations should also be undertaken to determine the current status of the children, the parents, and the maternal grandmother. Pending the remand proceedings, the children shall continue in the care, custody and control of the Division with the placement of the children remaining with M.S. We hasten to add that we commend M.S. for undertaking the responsibility to care for and nurture N.Y. and P.Y. during this difficult period of their lives, and should the remand proceedings disclose the presence of proof by clear and convincing evidence of the requisite criteria for termination pursuant to N.J.S.A. 30:4C-15.1(a)(1-4), and M.S.'s clear, unequivocal desire to adopt, as in P.P. and S.P., supra, 180 N.J. at 514, the trial court should not consider kinship legal guardianship.

Reversed and remanded.


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