On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-48-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
In this appeal of a judgment terminating parental rights, we vacate and remand because the evidence failed to dispel uncertainties about the foster parents' willingness to adopt and because the judge mistakenly rejected, as a matter of law, the opinion of defendant's expert that the status quo was in the child's better interest than termination.
The evidence adduced at trial revealed that the child in question, A.L. (Anna, a fictional name), was born on October 5, 1998. Her mother is defendant J.L. (defendant). There is no question that Anna is a special needs child with significant language and memory issues, and cognitive impairment; she has also been diagnosed with attention deficit hyperactivity disorder (ADHD). Anna has an older brother, J.L. (James, a fictional name), born in 1991, who suffers from cerebral palsy.*fn1
The Division of Youth and Family Services (the Division) first became involved with this family when unsubstantiated referrals were made in 1998 and 2000 regarding James. The next referral, in 2004, concerned Anna's dental problems; neglect was not substantiated. On July 2, 2006, the Division received a referral from police regarding domestic violence in the family residence. The police advised the Division there were no known prior incidents. The Division ascertained that the family was engaged in therapy and the children were safe.
In November 2006, the school district made a referral to the Division that Anna was not regularly attending school. On December 5, 2006, defendant notified the Division that her husband, K.L., had been sexually abusing Anna. She advised that she confronted K.L., who admitted it. Defendant did not immediately report these circumstances to police, but instead left the marital home with the children to stay with relatives.
On December 6, 2006, K.L. admitted to sexually abusing Anna between January 1, 2006 and July 31, 2006, and was arrested. Psychosocial and medical evaluations of Anna confirmed a diagnosis of sexual abuse and post-traumatic stress disorder. In November 2008, K.L. was sentenced to a seven-year prison term and parole supervision for life as a repetitive and compulsive sex offender. He surrendered his parental rights to Anna.
On April 30, 2007, defendant agreed to an in-home case plan, which required that she provide Anna and James with a safe and stable home and ensure they receive numerous other services befitting their circumstances. Between February and July 2007, defendant cancelled several of the appointments required by the services the children were receiving. During this time frame, defendant also had difficulties following through on recommendations and obtaining eligible services for her and the children. She also declined Division offers for assistance with transportation and continued to cancel important appointments. Another case plan was executed on May 31, 2007. Among other things, defendant agreed to obtain appropriate services for James and to take Anna to weekly therapy to address the sexual abuse.
Anna was psychiatrically evaluated by Dr. Michael Gentile in June 2007. Dr. Gentile observed that Anna had been severely and chronically sexually abused over a two-year period by her father. His diagnostic impression was oppositional defiant disorder, expressive speech delay, and ADHD. Dr. Gentile recommended that Anna continue to receive specialized individual and play psychotherapies.
In June 2007, Dr. Gentile also completed a psychiatric evaluation of defendant, determining that she was suffering from post-traumatic stress disorder, major depression, ADHD, and a learning disability. In the report, defendant described her relationship with her husband; she reported K.L. would often come home intoxicated and subject her to physical, emotional, and sexual abuse. The report also revealed that defendant had been hospitalized at the age of eighteen for a suicide attempt.
In July 2007, Anna's therapist advised that defendant had cancelled a number of sessions. The therapist also reported that Anna was difficult to engage and repeatedly created chaotic scenes in play, opining that this might be a representation of the extreme chaos she experienced in her internal world. The therapist recommended that Anna be placed in a therapeutic foster home, which could provide her with a structured, caring environment to allow her to process her trauma.
The evidence further demonstrated that in July 2007 defendant had neglected to apply for New Jersey Kidcare and stopped receiving SSI benefits because she failed to complete the necessary form. Due to noncompliance, the Center for the Protection of Children closed its individual therapy case for James, and Atlantic Health Services Family Enrichment Program closed its outreach services to the family.
The Division commenced litigation and obtained an order, entered on August 23, 2007, granting it the care and supervision of Anna and James; legal and physical custody remained with defendant. However, quickly thereafter, defendant tested positive for cocaine and the children were removed from her custody; James was placed in a group home and Anna was placed with her aunt and uncle. Defendant again tested positive for cocaine a few days after the children's ...