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New Jersey Division of Youth and Family Services v. J.L.


May 12, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-48-09.

Per curiam.



Submitted April 21, 2010

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 removal. She was immediately referred for a substance abuse evaluation, but failed to appear at the scheduled appointment.

In September 2007, defendant again tested positive for cocaine. She completed her substance abuse evaluation and was diagnosed with cocaine dependence, cannabis abuse, and alcohol abuse. That month, defendant was admitted to a twenty-eight-day drug rehabilitation program, completing it "with limited improvement." In late October, defendant enrolled in an intensive outpatient program, but was terminated for noncompliance the following month.

Defendant was also referred to the therapeutic supervised visitation program, but failed to appear for multiple scheduled intake appointments and was terminated from the program. She was also terminated from another program for supervised visits in March 2008 for noncompliance.

In January 2008, defendant was referred for an updated substance abuse evaluation, but failed to appear for a scheduled appointment. Once in February and once in March 2008, she tested positive for cocaine use. When an updated evaluation was completed in March, intensive outpatient treatment was recommended.

Defendant was referred for an updated psychiatric evaluation in February 2008. She was diagnosed with major depressive disorder; defendant reported to the evaluator that she was having premonitions and astrology powers. The evaluator recommended a treatment plan of medication and therapy.

By May 2008, defendant was making minimal progress in therapy and continued to test positive for drugs. The substance abuse evaluator reported defendant "has been making excuses for not going into" recommended treatment. By July 2008, defendant had attended twelve out of seventeen visitations and seven out of thirteen therapy sessions, and by September 2008, defendant had not attended therapy sessions since July and was in danger of being terminated from the program.

In October 2008, defendant was suspended from the supervised visitation program due to her inconsistent attendance. She was reinstated in December 2008 and attended eighteen of twenty-seven scheduled visits by March 2009. Her participation in substance abuse treatment was also spotty during this time frame. In December 2008, defendant became engaged to marry M.P., a divorced electrician with one child.

After a four-day trial in May 2009, at which the judge heard evidence regarding the circumstances we have outlined above, including expert testimony regarding the bond between Anna and defendant, and Anna and her foster parents, the judge found the Division proved by clear and convincing evidence that termination was warranted.

Defendant appealed, arguing the evidence was insufficient to support the four prongs of N.J.S.A. 30:4C-15.1(a); that statute requires that the Division prove by clear and convincing evidence the following:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm . . .;

(3) The [D]ivision 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.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

We recognize our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998).

Having closely examined the record in light of the arguments posed, we find no reason to question the judge's findings on the first two prongs and that part of the third prong that required proof of the Division's reasonable efforts to ameliorate the reasons for the child's placement outside the home. Although defendant took appropriate steps to separate from K.L. in order to protect Anna from further abuse, the record reveals defendant has had difficulties with substance abuse that she has been slow to address. The record clearly and convincingly demonstrates that the Division has made numerous reasonable efforts to help defendant address her problems with only partial and sporadic success. As the judge correctly observed, Anna has special needs and, throughout this time period, has required a "super parent," but only had defendant, whose efforts at addressing her own problems, let alone in meeting Anna's, proved woefully inadequate. In short, the judge's findings on the first two prongs, and much of what is relevant to the third prong, are entitled to our deference.

We do not reach the same conclusion as to the judge's findings on certain aspects of the third prong, as well as his findings on the fourth prong.*fn2 In essence, the trial judge misapplied the law and had insufficient evidence from which to conclude there was no better alternative than termination. Specifically, the judge mistakenly viewed the choices presented by the evidence as between either the child's unification with defendant or the termination of defendant's parental rights followed by adoption. And, in considering whether termination followed by adoption was in the child's best interests, we cannot agree the evidence was of sufficient weight to permit a finding on the fourth prong by clear and convincing evidence. We turn first to the judge's view of the legal question posed by this case.

To explain, we take note of the testimony of defendant's expert, Dr. Matthew B. Johnson, who opined there was no real permanency plan available because the aunt and uncle had not fully embraced the idea of adoption, and because an adoption by nonrelatives in light of the child's age and special needs was remote. In essence, Dr. Johnson proposed a continuation of the status quo, so the child could continue to have the benefit of her relationship with her mother along with the advantage of the safe, stable and nurturing home provided by the aunt and uncle. The judge's findings do not suggest he rejected Dr. Johnson's view on its merits; indeed, the judge expressed his "respect" for Dr. Johnson's opinion. However, the judge ultimately rejected Dr. Johnson's approach because he believed he was not empowered to permit such a plan and that for the sake of permanency, he was required to reject all interim solutions:

Now, in looking at the fourth prong, the question of whether termination of parental rights will not do more harm than good, and in considering going back to the third prong, alternatives to the termination of parental rights, I think the two questions overlap to a certain extent.

The alternative put forth by Dr. Johnson, and one that I have thought through is essentially not taking any decisive action at this point regarding permanency, but as he recommends . . . continued foster placement with the uncle and the aunt. And he also counsels that there should be an effort to continue to work with [defendant] to get things into a better place.

The problem that I have with that approach, is I think, in effect it runs directly counter to the philosophy of permanency in our system. I wish that in some sense we had an infinity of time to allow parents to get to a place they need to be, and get to a situation where everybody is satisfied that they can do the very, very difficult job of being a super mom in this context. But of course, our law does not allow it, and that is why the second prong talks about whether a delay in permanent placement will add to the harm.

So, in addressing the question of alternatives to termination, I just don't think that Dr. Johnson's plan is consistent with our law and the need for permanency. [Emphasis added.]

We certainly appreciate the difficulties of these cases in general and this case specifically. We also do not quarrel with the judge's recognition that achieving a permanent plan for each child is of great importance. But the test created by our Legislature ultimately requires a determination of what is in the best interests of the child. That is, while a child's need for permanency "is an important consideration under the fourth prong," N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007), the Legislature created "a comprehensive standard for deciding what is in a child's best interest," id. at 280 (emphasis added; internal quotation omitted). Because the judge felt bound to limit his findings to that which would provide a permanent solution, even at the potential cost of the child's best interests, we must reject the judge's determination on the fourth prong. We remand so the judge may further examine and make additional findings on whether "[t]ermination . . . will not do more harm than good" in light of the possibility --not considered on its merits by the judge -- that a continuation of the existing circumstances, even though not a permanent solution for the child, is better for the child than termination.

We also conclude that the judgment cannot rest on the judge's findings on the fourth prong because the evidence regarding adoption was too inessential to meet the requirement that the prong be proven by clear and convincing evidence. We discern from the judge's decision that he concluded termination would not do more harm than good because he expected that the aunt and uncle would adopt Anna. The record, however, reveals uncertainty about the commitment of the aunt and uncle to adopt. Indeed, the judge recognized that any commitment to adoption was conditional:

Now, there was reference to the current caretakers, [Anna's] maternal aunt and uncle, having reservations regarding adoption.

What I understood the testimony to be, and also comments by the experts to be that -- I think that notion is captured in Dr. Nelson's[*fn3 ] testimony and report.*fn4

What I pick up from that is the notion that the reservations of the caretakers are realistic and appropriate, and relate back to the very, very high needs of the child. And I don't see it as an indication that they are not committed to the task, but rather they are -- they understand that issues are going to come up in the future regarding funding for placement.

And they want to make sure that, I think, a governmental entity, like the Division . . ., will be providing the resources that will be necessary for [Anna]. So, I suspect that the process would be one of -- they will be willing to adopt if they are given assurances that the appropriate resources will always be available for a child, who, as testified to by the experts, may need monitoring for an extended time, if not, forever. So, in that context, I think their reservations, as Dr. Nelson said, are realistic.

We cannot agree that this uncertain commitment presents an adequate framework to support the termination of defendant's parental rights. In fact, the judge's finding only suggests other uncertainties not answered by his opinion or the evidence in the record, such as: (1) will funds actually be made available to answer the aunt and uncle's concerns about the financial impact of adoption?; (2) what funds, which the aunt and uncle are not prepared to bear, will actually be needed for Anna's care?; (3) what type of placement -- Dr. Jewelewicz-Nelson suggested placement in a therapeutic group home, but was not more explicit than that -- is needed in the future?; and (4) if Anna's full-time placement in a group home is the goal, then what is gained from either termination of defendant's rights or adoption?*fn5

Moreover, the judge's decision, at least as phrased, does not appear to contain clear findings about adoption. The judge's comments on this point, wherein he largely just quoted from Dr. Jewelewicz-Nelson's report, do not appear to be findings but mere observations. We may assume from this that the judge viewed Dr. Jewelewicz-Nelson as the most credible person to testify about this subject, but the judge only stated the aunt and uncle were willing to adopt because the judge had "pick[ed] up [on] the notion" that their willingness was conditioned upon future Division assistance. See n.4, supra. We are not satisfied from these comments that the judge actually found an unequivocal commitment to adopt, which seems to be essential to his findings on the fourth prong.

Indeed, it is quite surprising, in light of the importance of adoption to the Division's position and the judge's ruling, that the aunt and uncle were not called to testify. This left the judge with the task of deciphering their position regarding adoption by referring to the hearsay presented by others. This circumstance alone -- in light of the uncertainties suggested by the hearsay testimony on this point -- demonstrates the evidence was inadequate to support a finding that adoption will actually follow termination of defendant's parental rights. And, if adoption does not with certainty follow termination, then the question that has not been answered -- and which again negates any finding in favor of the Division on the fourth prong -- is: what reason is there for terminating defendant's parental rights?*fn6

As already mentioned, Dr. Jewelewicz-Nelson viewed the commitment of the aunt and uncle to adopt as conditional. Other reports rendered by Division representatives, which were admitted in evidence, reveal the aunt and uncle have three other children, who have experienced difficulties as a result of Anna's placement in their home. This caused the aunt and uncle, according to one Division caseworker's report, to express uncertainty about adoption and "sadness at having difficulty making this decision." The aunt and uncle were apparently sent for therapy to deal with these concerns.

In light of these past equivocal expressions about adoption, and the lack of certainty as to whether any conditions for adoption can or will be met, the judge -- at least in the absence of testimony from the aunt and uncle -- could reach no safe conclusion regarding the commitment to adoption. This was crucial because adoption by the aunt and uncle is clearly the linchpin of the judge's findings on the fourth prong and, in the final analysis, the judgment terminating defendant's parental rights.

To summarize, the judge's findings demonstrate he viewed his options -- in determining whether "termination of parental rights will not do more harm than good," N.J.S.A. 30:4C- 15.1(a)(4) -- as limited. The judge stated he "respect[ed] Dr. Johnson's willingness to give [defendant] an extended chan[c]e," which we interpret as his acceptance of the reasonableness of Dr. Johnson's proposal that the status quo be maintained so Anna might benefit from all these relationships, not just her relationship with her aunt and uncle, but also her relationship with her mother. Dr. Johnson thought this was not only the most optimal approach in light of all the circumstances, but it would also have the beneficial effect of providing defendant time to progress. The judge also agreed that defendant had improved, indicating he had the sense that [defendant has been] doing better as time goes on, and she hasn't been under the stress of caring for either [James] or [Anna].

But the judge concluded he could not follow Dr. Johnson's approach as a matter of law, stating immediately after the above-quoted comments:

I think she is doing better, but time is an enemy in these cases, and we're now at the point where a decisive decision has to be made. And there are, in my view, no guarantees that a reunification would be healthy and successful for [Anna].

And, as quoted earlier, the judge determined that he "just [did not] think that Dr. Johnson's plan is consistent with our law and the need for permanency."

As we have held, the judge was not limited to a choice between termination or reunification, as he appears to have concluded. The polestar is the best interests of the child. By excluding Dr. Johnson's opinion -- not on its merits but on the mistaken understanding that it was not legally feasible -- the judge took too narrow an approach to the fourth prong. In determining whether "[t]ermination of parental rights will not do more harm than good," N.J.S.A. 30:4C-15.1(a)(4), the judge should not have dismissed out of hand the defense expert's opinion that the child's interests could best be served without terminating her mother's parental rights.

We agree that the evidence does not remotely suggest that immediate reunification of defendant and Anna is in the child's best interests. We also conclude that the first and second prongs were met by clear and convincing evidence and that there was also clear and convincing evidence to support a finding, on the third prong, that the Division had made reasonable efforts to ameliorate the reasons the child was placed outside the home. However, the evidence was insufficient to support a finding in favor of the Division on the fourth prong, and that part of the third prong that overlaps.

We, thus, vacate the judgment terminating defendant's parental rights and remand for further proceedings on the question of termination. These additional proceedings should at least include testimony from the aunt and uncle, as well as any other witnesses who might possess relevant knowledge on the question of adoption and, if the alleged commitment of the aunt and uncle to adopt is conditional, whether those conditions can or will be met. The judge should also permit the presentation of other evidence that may provide an understanding of what has occurred in the interim with Anna, her current relationship with her foster parents, and her current relationship with defendant, and whether or to what extent defendant has continued to make progress. We also do not foreclose the judge's right to hear such other testimony or receive such other evidence that may have relevance to a determination on the ultimate questions posed by this case.

The judgment under review is vacated and the matter remanded for further proceedings in conformity with the letter and spirit of this opinion. We do not retain jurisdiction.

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