On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-19-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Messano and LeWinn.
These two appeals have been consolidated and we consider them together. M.D.C. is the birth mother and R.C. is the birth father of B.M.C., born on October 2, 2006. M.D.C. is also the biological mother of J.D., born on June 5, 2005; J.D.'s biological father is unknown. M.D.C. and R.C. were married in November, 2005. Defendants appeal from the June 6, 2008 judgments of the Family Part terminating their parental rights to B.M.C. and awarding guardianship to the Division of Youth and Family Services (DYFS).*fn1 For the reasons that follow, we reverse and remand.
DYFS first became involved with defendants on January 11, 2006, when it received a referral regarding a feeding incident with J.D., in which the child had choked on a piece of a paper towel left in the bottom of her bottle. An intake worker went to defendants' residence, a motel room in Barnegat, New Jersey. The worker found the room stocked with clean baby bottles and baby food as well as appropriate equipment. J.D. appeared to be healthy and content. M.D.C. denied any knowledge of J.D. having choked on a paper towel. R.C., however, admitted that a piece of paper towel had been "stuck [in] the bottle from cleaning it [and] got into [J.D.'s] mouth." Both defendants were required to submit to random urine screens for possible drug use on that occasion; their screens were negative.
DYFS ascertained that R.C. had prior involvement with the agency regarding his children from a previous relationship, which included allegations of sexual abuse of one of the children. R.C. claimed that the incidents had been initiated by his ex-wife. M.D.C. said that she was aware of R.C.'s "previous history with his ex-wife[,]" but stated that she trusted R.C. and had "consulted with the N[.]J[.] State Police to make sure he was truthful about the sexual assault charge being dropped."
As a result of the January 11, 2006 referral, DYFS recommended that all contact between R.C. and J.D. be supervised by M.D.C. until further notice. The caseworker concluded that allegations of neglect were unfounded on that occasion. However, DYFS maintained an open file on the family for "supervision." DYFS contacted St. Francis Community Center for in-home counseling; defendants were placed on a waiting list for that service.
On February 25, 2006, DYFS received a second referral regarding J.D. having a severe diaper rash that was bleeding; an intake worker responded and observed that J.D. had a diaper rash but saw no bleeding. Defendants signed a case plan agreeing to take J.D. to her pediatrician.
On March 7, 2006, DYFS received a referral that defendants were at the office of the Board of Social Services and "appeared to be under the influence of illicit substances." Defendants were observed to be restless, agitated and jumpy; the referral stated further that defendants had been noncompliant with recommendations of the Board of Social Services. A DYFS caseworker responded to the Board's offices and had both defendants submit to random urine screens which, once again, were negative.
On April 10, 2006, DYFS received a referral stating that the parties were about to lose their subsidized housing assistance due to noncompliance with the Work First Program "and other things that the Board of Social Services ha[d] recommended." The parties were informed by a DYFS caseworker that if they lost their housing, DYFS "would have to move toward litigation...."
On April 28, 2006, the Board of Social Services advised DYFS that defendants' housing assistance was going to be terminated due to their failure to comply with the Work First Program; in addition, the Board asserted that defendants had provided "falsified medical documentation."
The family relocated to another motel in Waretown. Notwithstanding this disruptive housing situation, a DYFS caseworker observed J.D. to be "clean[,] healthy, [and] happy" during this period.
During the month of May, DYFS continued to visit the family at their motel residence. Throughout this time J.D. was found to be in good health and "appeared to be well cared for... with no signs of abuse or neglect."
M.D.C. was pregnant with B.M.C. at this time and was incurring difficulties because she suffered from diabetes. During an in-home visit on May 10, 2006, a DYFS caseworker observed pre-natal vitamins at the residence, and M.D.C. advised the worker "that she was... put on insulin... to control the diabetes while going through th[e] pregnancy." M.D.C. gave the caseworker the name and telephone number of her "pre-natal doctor" and signed a release permitting DYFS to obtain "documentation indicating that [she] is receiving pre-natal care." M.D.C. told the caseworker that her next doctor's appointment was scheduled for June 6, 2006.
On May 17, 2006, DYFS filed a complaint and order to show cause seeking custody of J.D. in the event that defendants failed to "comply with services" that DYFS would provide.
On June 15, 2006, the Board of Social Services notified DYFS that it had officially terminated defendants' housing assistance. On June 22, M.D.C. requested a $2400 security deposit from DYFS, stating that she and R.C. would be able to lease an apartment with a monthly rent of $1100. DYFS, however, declined to advance those funds because it concluded that M.D.C. had not been "forthcoming" about where the family had been living. When DYFS denied her request, M.D.C. stated that the family would be forced to continue to rent a room at the Waretown motel.
A caseworker visited the family at that motel on the following day, and observed that supplies and food for J.D. were available. M.D.C. renewed her request for rental assistance, claiming that defendants were then paying $1800 per month to live at the motel and would not be able to save the amount required for a security deposit on the apartment.
On July 25, 2006, the court heard the return on DYFS's order to show cause. Following a summary hearing, the court entered two orders. The first found, by a preponderance of the evidence, that "defendants abused or neglected [J.D.]" as evidenced by "ongoing concerns of prenatal care and housing, along with allegations of substance abuse." The second order placed J.D. under the care and supervision of DYFS but continued legal and physical custody of the child with her parents. That order further required R.C. to submit to a psychological evaluation on July 27, 2006, and to provide income verification; both parents were to submit to random urine screenings on that day and were further ordered to attend parenting skills training or in-home therapy "as referred by [DYFS]."
On August 27, 2006, DYFS received a report that defendants were living in their car with J.D. A caseworker responded and observed J.D. to have a "diaper rash on her left leg[,] a rash on her lower back[,] a fungal infection on her hand [and] an ear ache[.]" The caseworker concluded that allegations of physical neglect had been substantiated, removed J.D. from defendants' custody and placed the child with her maternal grandparents in Little Egg Harbor.
In describing that removal at trial, DYFS caseworker Shannon Day stated that "the removal was based on the fact that [defendants] were living in a car and they had no know[n] residence and that [M.D.C.] refused to go with the child and we had no choice but to do an emergency removal." By "go with the child" Day explained that she meant that M.D.C. refused to leave R.C. Day acknowledged that if M.D.C. "had agreed to sign a case plan stating that she would go with the child, there would not have been a removal at that time."
Day further acknowledged that DYFS "did not see the problems that [M.D.C.] had... as an impediment to her raising the child." According to Day, DYFS considered R.C. to be "more of an issue" because of his "history" with the agency, involving his older children from his prior relationship.
Regarding R.C.'s prior "history[,]" Day acknowledged that although DYFS records indicated that R.C. "had been substantiated" for abuse, she did not know the ultimate outcome of that case or whether his children were ever returned to his custody. Day stated that DYFS's main "concern" regarding defendants in August 2006 was "the dishonesty and the inability to get a straight answer from anybody about job employment, about residence, about prenatal care."
On September 12, 2006, the court entered an order granting physical custody of J.D. to her maternal grandmother, A.M.D.
The court again ordered defendants to receive parenting skills training and in-home therapy.
In late September 2006, M.D.C. was admitted to the hospital "for her blood levels." On October 2, M.D.C. gave birth to B.M.C. who was premature at thirty-three weeks. At the time of her birth, B.M.C. was hypoglycemic and had cardiac and respiratory issues as well as "[g]eneralized sepsis."
An assessment conducted by a child health nurse a few days after B.M.C.'s birth, noted that notwithstanding "some congenital cardiac anomalies[,]... [a] cardiac consult was done and the heart was found to be functioning well without concern." The assessment noted further that B.M.C. would "need to be monitored by a cardiologist. This condition may resolve within the first six months of life."
The assessment also noted that immediately after birth, B.M.C. "did suffer some respiratory distress which required intervention." However, the assessment continued that the baby's "oxygen concentration has been stable and she is now weaned to room air."
The assessment concluded that B.M.C., "if discharged into foster care, meets the DYFS criteria for medical fragile status[,]" and "should be placed into a SHSP [Special Home Service Provider] home where... she will have a full-time CPR certified caregiver." The assessment recommended that B.M.C. be followed by a DYFS nurse case manager and that her medically fragile status be "re-evaluated in six months[,]" noting further that "[i]f her cardiac issues have resolved and she is not having any more problems, she may be declassified at that time."
On October 12, 2006, the court entered an order placing B.M.C. in the care of DYFS "due to imminent danger to the child" because the "mother did not have proper pre-natal care: child born with hypoglycemia and suffers from congenital cardiac anomalies." This order reflects that it was based upon the testimony of DYFS caseworker Day and the court's review of "documents" which are not identified in the order.
DYFS placed B.M.C. in foster care and arranged visitation for defendants. At trial, DYFS caseworker Megan Clemente described the visitation schedule as every other Monday from 11:00 a.m. to noon, at DYFS's offices. Defendants' first visit with B.M.C. was in December 2006. Defendants' second visit with B.M.C. was in May 2007. Their next visit was in December 2007; the reasons for the delay are not clear from the record, but are likely related to the fact that defendants moved to at least three different locations in 2007. Between December 2007, however, and the time of trial in April 2008, defendants had made every scheduled visit. Clemente noted that defendants always visited B.M.C. together.
DYFS presented psychological evidence at trial through the testimony and reports of Dr. Margaret Beekman, Ph. D., and the ...