June 2, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
D.R., DEFENDANT-APPELLANT, AND C.F., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF E.R., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-41-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Axelrad, Sapp-Peterson and Espinosa.
D.R. appeals from the January 9, 2009 order terminating his parental rights to E.R. born to C.F. and D.R. on November 5, 2005, and granting guardianship of E.R. to the Division of Youth and Family Services (Division). Because we do not agree that there was clear and convincing evidence the Division satisfied at least two of four prongs of the best interest test, we reverse and remand for further proceedings.
The Division's first involvement with E.R. occurred on November 3, 2005, when it was contacted by a hospital official who reported that E.R. tested positive for drugs at birth. C.F. was also tested at that time and the results were negative for drugs. Based upon this contact, a Division worker went to the hospital on November 3, where, in addition to information about the drug test results for E.R., the worker learned that there had been a prior incident of domestic violence between C.F. and D.R., who at the time were both twenty years old. As a result of that incident, they were both later incarcerated for failure to attend anger management classes and to pay the fines associated with the incident. The worker interviewed the couple, who admitted to drinking alcohol and smoking marijuana. C.F., however, denied using drugs during her pregnancy. E.R. was again tested for drugs a few days later and the test results were negative. The hospital released E.R. to C.F.'s custody. The Division referred C.F. and D.R. for substance abuse evaluations. Preferred Children's Services (PCS) evaluated C.F. and discharged her with no treatment recommended. PCS also reported that it closed its file on D.R. due to lack of cooperation. The Division's January 24, 2006 case plan, signed by C.F., stated that D.R. was not allowed unsupervised visits with E.R. and that C.F. would be attending anger management and parenting classes as well as domestic violence counseling. Also during January, C.F. apparently moved and the Division had difficulty locating her and E.R.
On April 10, 2006, the court filed a dismissal order based upon "a finding of insufficient facts to substantiate the allegations of abuse and neglect in the complaint[.]" Neither C.F. nor D.R. appeared at the April 10 proceeding. The Division's last contact with C.F. had been earlier in the year. It continued its efforts to locate C.F. in April and May through an Inter-Agency Police Service Request on May 3. In early June, the Division attempted to contact D.R., but the number on file for him was no longer in service. Also at that time, the Division requested the discontinuation of WIC*fn1 and Medicaid until C.F. was located. C.F. contacted the Division in August, and those services were reinstated. At that time, the Division learned that C.F. had not kept medical appointments for E.R. or complied with recommended treatment, including keeping him current on immunizations.
Because E.R. suffered from macrocephaly and neurofibromatosis, which reportedly could have life-altering effects, the Division filed an order to show cause (OTSC) and verified complaint for care and supervision without restraints on October 19. Neither parent appeared at the November 9 return date for the OTSC. The court entered an order that only directed C.F. to participate in certain services. The following month, the court issued a case management order dated December 21, in which the only reference to D.R. was that his visits with E.R. be supervised. Also in December, the Division learned that C.F. was no longer living with her aunt.
Over the next several months, the Division continued its efforts to provide services to C.F., which included arranging for psychological and substance abuse evaluations for her and communicating with social service agencies such as the Office of Temporary Assistance, who advised the Division that C.F. was not meeting its program requirements. In May 2007, the Division filed another Inter-Agency Police Service Request to locate C.F. because she was not maintaining contact with the Division. Neither C.F. nor D.R. appeared at the May 17 compliance review hearing. There is no evidence in the record that D.R. had notice of this proceeding. The Division finally made contact with C.F. on May 31. She told the Division that E.R. was with D.R. in New York City. The Division telephoned D.R. at a number provided by C.F. and left a message for him to contact the Division. D.R. called the next day and expressed his concern about C.F.'s living conditions. He reported that E.R. had been diagnosed with bronchitis, was on medication, and that E.R. had been staying with him for over two weeks. D.R. returned E.R. to C.F. and advised the Division of this fact on June 5. The Division conducted an emergency Dodd removal*fn2 of E.R. from C.F. on June 6 and left a voice mail message for C.F. that there would be a hearing the next day. The Division left a similar voice mail message for D.R. on his cell phone. D.R. did not appear for the hearing.
The Division filed an amended complaint seeking protective services as well as "legal and physical custody" on June 7. A compliance review order of the same date required, among other things, that (1) E.R. remain in the custody of the Division, (2) D.R. attend a substance abuse evaluation, and (3) submit to urine screenings. In a supplemental order of the same date, the court determined that reasonable efforts to prevent placement prior to removal were made, including "psychological evaluations, referrals to anger management, parenting skills classes, VISTA*fn3 program through JBWS,*fn4 NORWESCAP,*fn5 as well as assistance with [E.R.'s] medical treatment and care." The order refers to "defendant" rather than defendants. Thus, it is unclear whether it was directed at D.R. or C.F. or both.
On June 11, a Division worker took E.R. to a pediatrician who reported that the CT scan of his head came back normal. D.R. visited with E.R. on June 25, and his interactions with him were reportedly positive. On July 2, D.R., his mother, N.R., and his aunt, E.V., visited with E.R. The worker reported that E.R. was focused on D.R., did not engage N.R., and that D.R.'s interactions with E.R. were positive. The Division reported that D.R.'s July 23 visit with E.R. was very positive.
The Division checked on E.R. in his foster home on July 24, and noted that E.R. seemed "very happy with the foster parents" and they are "very responsive" to E.R.'s needs. That same day, the Division issued a Child Placement Review Board report in which the Division expressed that the permanency goal was to return E.R. to his mother. The report noted that E.R. was doing well in foster care.
D.R. attended the August 2, 2007 compliance review hearing. At the conclusion of the hearing, the court issued an order that, among other provisions, required D.R. to (1) undergo psychological and substance abuse evaluations, (2) submit to random urine screenings, (3) attend anger management/domestic violence counseling, and (4) complete parenting skills training.
On September 11, D.R. met with Dr. Heidi Jacobsen at the Family Enrichment Program (FEP) for his psychological evaluation. The evaluation was not completed that day. D.R. attended the placement review hearing on October 19, as scheduled, during which the Division expressed that the permanency goal was that E.R. would "Return Home to one or both parents" and that the "[c]oncurrent permanency plan is Adoption." Under "FATHER'S NEEDS & SERVICES," the Division raised the need for him to complete a psychological evaluation, undergo a substance abuse evaluation, and submit to a visitation evaluation performed by FEP for the Therapeutic Supervised Visitation Program (TSVP).
On October 29, the Division made a referral for an Interstate Compact on the Placement of Children (ICPC) home study to be conducted on D.R.'s mother, N.R. On October 30, D.R. completed his psychological evaluation at FEP from which the following recommendations were made:
1. It is recommended that [D.R.]'s contact with his son occur in a therapeutic, supervised setting until he has engaged in substance abuse treatment, has achieved a documented period of sobriety, and unsupervised contact is recommended by both his therapist and the visitation worker.
2. It is recommended that [D.R.] complete a substance abuse evaluation and follow treatment recommendations in order to address his continued marijuana use and his reliance on substances in order to cope with distress.
3. It is recommended that [D.R.] receive individual therapy in order to address his judgment, to improve his ability to take responsibility for the choices and behaviors that led to his son's removal, to address his anger and domestic violence history with [C.F.], and to further assess his mood and psychiatric issues. It is recommended that his therapist make a referral for a psychiatric evaluation if needed in the future.
4. It is recommended that [D.R.] attend parenting classes in order to improve his understanding of child development, of appropriate family roles, and to improve his repertoire of parenting skills including in regard to discipline.
On November 13, the Division sent the court its report for the compliance review hearing scheduled for November 15. D.R. attended the hearing. The court issued an order that once again directed D.R. to undergo psychological and substance abuse evaluations, participate in anger management/domestic violence counseling, and complete parenting skills classes. The order also directed the Division to arrange for a "home study/interstate referral" regarding N.R. and scheduled a permanency hearing for February 21, 2008. D.R.'s drug screening on November 15 was positive for marijuana, as it had been at an earlier August 20 test.
On December 3, the Division referred D.R. for a substance abuse assessment. On December 7, the Division, for a second time, referred D.R. to FEP for the TSVP evaluation. He attended visits with E.R. on December 5 and 12, 2007 and January 22, 2008, all of which were reportedly positive.
In January 2008, D.R. commenced individual therapy at FEP. Also in January, the Coalition for Hispanic Family Services confirmed that D.R. was attending parenting classes in New York. Finally, on January 30, he commenced visitation with E.R. through TSVP.
On February 7, the Division sent a letter to N.R. indicating she was no longer being considered as a potential resource placement for E.R. because D.R. lived with her. On February 8, FEP advised the Division that D.R. had attended two out of four TSVP visits but that the foster mother had cancelled two visits. FEP indicated that D.R. "needs to focus on appropriate parenting techniques and his role as a parent." On February 21, D.R. again tested positive for THC (marijuana).
On March 25, the Division advised D.R. that he had an appointment for a complete substance abuse evaluation on April 7. D.R. underwent the substance abuse evaluation as scheduled, during which he admitted to smoking marijuana the previous weekend. On April 9, the FEP report indicated that D.R. was continuing to visit E.R. through TSVP. The report also noted that "D.R. continues to participate in a parenting program for fathers that has weekly two-hour group meetings and also provides weekly meetings with a caseworker to discuss parenting and fatherhood."
The Division held its ten-month placement review on April 16. Both D.R. and N.R. attended the conference as well as N.R. D.R. requested that the Division reconsider his mother as a placement resource because he was moving out of her home. Following this meeting, the Division submitted a report to the court in which it changed its recommendation for reunification with one or both parents to termination of parental rights. As to D.R., the May 8 report stated:
[E.R.] would be at risk if reunified wit[h] [D.R.] at this time as he continues to struggle with his sobriety. [D.R.]'s visitation with [E.R.] [is] reported positive but not always consistent. He most currently canceled his visit on April 23, 2008 and he failed to show [up] for the substance abuse intake... appointment at St. [Clare's]. [D.R.] has recently relocated to New Jersey. He works [p]art-time at the local store, Pathmark. [D.R.] needs to cooperate with the [VISTA] [P]rogram for anger management and he also needs to engage in substance abuse treatment.
On April 28, D.R. completed the parenting skills class at the Coalition for Hispanic Family Services. The next day, FEP sent the Division an updated TSVP visitation report advising that D.R. attended five of thirteen scheduled visits, noting, however, that six of the unattended visits were cancelled by the foster mother or the Division.
D.R. moved back to New Jersey the first week in May and reported his move to the Division on May 11. On May 14, D.R. attended a substance abuse intake appointment at St. Clare's Hospital in Boonton Township and was scheduled to begin participating in its Intensive Outpatient Program (IOP) on May 16, 2008. D.R.'s drug screens on May 14, 15 and 19, were positive for marijuana. The court's May 15 compliance review order directed D.R. to comply with substance abuse treatment, submit to random urine screenings, attend anger management/domestic violence counseling, and attend parenting training. The order continued D.R.'s supervised visits with E.R.
On June 27, St. Clare's issued its progress report relative to D.R.'s participation in the IOP and reported that from May 16 through June 27, D.R. had attended seventeen group sessions, three individual sessions, and submitted five urine screens with four reporting positive results for marijuana. Notwithstanding the positive drug screens, the report indicated that D.R. had "demonstrated progress towards identified treatment goals."
On July 14, TSVP issued an updated report that indicated that D.R. had made minimal progress in his parenting abilities and maintaining his sobriety, and had made "some progress" in understanding E.R's developmental stages. The report noted that while D.R.'s drug screens continued to be positive, the level of his usage declined with each test and there had been three consecutive negative urine drug screens before he relapsed in July when he consumed alcohol at a holiday event. FEP issued its treatment summary report on July 15, and reported that D.R.'s attendance at therapy had been consistent, his marijuana use ceased in April 2008, and that he continued to work on anger management issues.
Despite evidence of D.R.'s substantial compliance with all of the court's orders issued between July 2007 and April 2008, along with its knowledge that N.R. was still interested in becoming a resource placement as D.R. continued to work through his issues, the Division filed its complaint for guardianship and termination of C.F.'s and D.R.'s parental rights on July 16. The complaint alleged that D.R. continued to use marijuana and has tested positive for cocaine*fn6 in May 2008 and has been inconsistent in complying with [c]court[-]ordered services and visitation with [E.R.] [D.R.] has failed to make a permanent plan for the child, has abandoned E.R. to the care of others, and has substantially failed to perform the regular and expected functions of care and support for the minor. To place [E.R.] in the care of D.R. would expose the child to an unacceptable level of harm or risk of harm.
On October 6, St. Clare's advised the Division that D.R. had successfully completed its Outpatient Relapse Prevention Program and it was therefore closing its case. In a November 6 report, the Division noted that D.R. continued to comply with individual therapy and parenting classes.
Dr. Rachel Jewelewicz-Nelson conducted psychological and bonding evaluations of D.R. during October and November 2008. She observed positive interaction between father and E.R., with E.R. spontaneously referring to D.R. as "daddy." She noted that D.R. was gentle in his interactions, utilized teachable moments effectively, and was "overly cautious" with respect to safety "but not stifling of [E.R.'s] play." She nonetheless concluded that he was not ready to accept custody of E.R. In her report, she explained:
Although he has successfully completed all the programs required of him, he is still only marginally employed and does not have his own housing. He readily acknowledges that he is not ready for these reasons. He says that he has goals and aspirations for his life that preclude his ability to accept full-time care of a young child at this point in time which is why he would like a KLG [Kinship Legal Guardian] arrangement with his mother. Aside from the objective factors of lacking [a] stable financial situation and stable housing, however, [D.R.] also lacks the maturity to accept full-time responsibility for a child. While he has an excellent relationship with [E.R.] during weekly visits, playing with a child is not the same as parenting him. Weekly play sessions do not place demands for security, stability, and consistency that are inherent in a parental relationship. [E.R.] can enjoy his play time with [D.R.] precisely because he knows he is returning to his foster home afterwards, where he has a sense of security and stability. [D.R.] is a naïve and immature young adult who has the potential to become a good parent in the future, but he is not there yet. His therapist reported that while he has made great progress, he continues to be immature and to have trouble juggling all the different aspects of commitment that therapy and DYFS have required.
Dr. Jewelewicz-Nelson did not include any recommendations in the report as to what additional services the Division could provide that would assist D.R. in becoming a "good father in the future."
As to the bonding evaluation of N.R., with whom both C.F. and D.R. had expressed a desire for KLG or an identified surrender, Dr. Jewelewicz-Nelson conducted the evaluations on November 12 and 19. She opined that despite the fact that E.R. had a relationship with his grandmother, referring to her as "Grandma," and that the grandmother "has the necessary concrete features to provide [E.R.] with a stable home" and has "stable employment[,]" she had not demonstrated "emotional attunement to [E.R.] or the psychological understanding of the nature of relationships and how to build them."
The guardianship trial took place on December 9 and 15, 2008. C.F. and D.R. advised the court that they were prepared to do an identified surrender to N.R., but the Division's counsel responded that its expert opined that N.R. would not be an appropriate caregiver. The court responded: "I'm sorry it can't work out on that basis. I don't know all of the details and the history but unfortunately, it sounds like it can't work out on the basis that is proposed." [emphasis added.]
The case supervisor in Morris County testified that she supervised E.R.'s case and first became involved on November 3, 2005, the day after E.R.'s birth. She testified that between E.R.'s birth in 2005 and his removal in 2007, the Division was not sure where D.R. was living. She recounted that the Division's initial concerns regarding D.R. were domestic violence and substance abuse. She explained that in June 2008, the Division was still concerned about D.R.'s drug use and the fact that he was "minimally compliant" with the services offered. The case supervisor also testified as to the Division's consideration of N.R. as a resource placement. She explained that in October 2007, the Division initiated an interstate study of N.R. However, that study was withdrawn because D.R. was living with N.R. She stated that once D.R. moved out, a new study on N.R. began in May 2008, but as of trial, the Division had not received final approval for N.R.'s home. She explained that the Division also considered placement with two of C.F.'s aunts, several of C.F.'s sisters, and friends of C.F., but they were all ruled out or withdrew.
The case supervisor told the court that the Division had no concerns about the foster parents. She believed they were committed to E.R. and had met all of his needs, both medical and emotional. She explained that the Division's plan was for the foster parents to adopt E.R. if he became legally free.
On cross-examination, the case supervisor noted it was significant that D.R. had completed substance abuse treatment but had "not made that same progress" with "the other things that would make a parent a parent." She admitted that visits with D.R. and E.R. "have always been good, positive, favorable[,]" but it's the "other things," which she identified as housing, full-time employment, and more parenting classes, which concerned the Division.
The Division caseworker assigned to the case in July 2008, after the Division had filed the guardianship complaint, also testified. She stated the Division was also concerned with N.R. as a potential placement because her home had only two bedrooms and N.R. had an adult son living with her, so someone would have to sleep in the living room. She indicated that she visited the foster home monthly and observed the foster parents having "excellent interaction" and "good bonding" with E.R. She confirmed that the Division's plan was for the foster parents to adopt E.R. She acknowledged that at the time of trial, D.R. had completed substance abuse and anger management treatment, as well as the parenting skills course.
The Division's expert, Dr. Jewelewicz-Nelson, did not testify. Both defense counsel objected to the admissibility of her report, arguing that there was no opportunity to cross-examine Dr. Jewelewicz-Nelson and further noting that Dr. Jewelewicz-Nelson was available on the first day of trial for a de bene esse deposition, but neither the Division's attorney nor the law guardian would agree to proceed with the deposition without the presence of a judge. The Division opposed any further delay in the trial that would result from an adjournment to depose Dr. Jewelewicz-Nelson and argued that her testimony would essentially mirror her report. The court admitted the report over the objections of defense counsel. The court ruled that the report was admissible pursuant to Rule 5:12-4(d).
D.R. then testified on his own behalf. He explained that he worked full-time after E.R. was born and used that money to help C.F. support E.R. D.R. said he "didn't know enough" about what was going on with the Division in the beginning because he believed almost everything C.F. told him and didn't realize "what was really at hand" until E.R. was taken away.
He testified that he saw E.R. almost every weekend during the first six months after E.R. was born. During the next year, he explained, C.F. was moving around frequently, so D.R. would have E.R. for anywhere from three days to a week at a time.
D.R. testified that he was the primary caretaker when he had E.R., but his mother (N.R.) would also help out while he was at work. D.R. believed the total time he cared for E.R. amounted to about six months out of the first year and a half of E.R.'s life.
D.R. related his history of drug use to the court. He said he began using marijuana when he was thirteen or fourteen years old. He began using it regularly - daily or every other day -in high school through April 2008, including while C.F. was pregnant, although he stopped smoking as frequently from November 2005 when E.R. was born until E.R. was taken away.
He told the court he had attended seventeen out of twenty-four TSVP visits with E.R., but not all of the seven missed were his fault, including E.R. being sick and needing surgery. D.R. also testified that he had completed anger management and parenting classes in Brooklyn. He explained that because he was taking these courses in Brooklyn, he did not move out of his mother's house until he completed the courses. He testified further that he had attended drug rehabilitation at St. Clare's three times a week for six weeks.
D.R. testified that the daycare facility across the street from N.R.'s house was ready and waiting for E.R. and that he would have his job transferred back to New York. On cross- examination, D.R. indicated he was unaware that he had been scheduled for a substance abuse evaluation after E.R. was born or at any time in 2005.
N.R. also testified. She confirmed that she was willing to raise her grandson and explained the logistical difficulties she had in visiting E.R. when the location changed from the Division's offices to TSVP. She indicated that she had a bond with her grandchild. She told the court that she had considerable interaction with him prior to his removal from C.F.'s custody in 2007. She explained the living arrangements she had in place as well as the child care provisions that she had made in the event she was awarded custody.
The court issued its decision on January 9, 2009. The judge found there was no evidence of direct abuse in the classic child abuse sense, "but there are a variety of categories of concern that trigger neglect concerns, housing, employment, the stability of the relationship in the historical context of the case...." Focusing upon D.R., the court, while acknowledging that D.R. had been sober since the spring of 2008, made note of D.R.'s substantial marijuana use for about eight years. The court found E.R.'s "health and development had been endangered by the parental relationship and situation." The court believed "the chemical effect of substances on users has a tendency to undermine the capacity to live competent lives for themselves or certainly as parents, and that is shown here." The court considered D.R.'s marijuana use as "part of the background that supports a finding that prong one [of the best interests of the child test, N.J.S.A. 30:4C-15.1] has been established by clear and convincing evidence." As to prong two, the court found it wasn't so much that C.F. and D.R. had decided they were not willing to provide a safe place for E.R., but that "[i]t ha[d] more been a case of life circumstances and problems for the parents making them unable to eliminate the harm facing the child and being unable to provide a safe and stable home for the child."
The court believed D.R. was "starting to get some traction in his life," including progress in therapy and sobriety. However, D.R. acknowledged in his meeting with Dr. Jewelewicz-Nelson that he was not, at the time of the interview, in a position to take custody of E.R. The court compared D.R.'s eight years of substance abuse with his eight-month remission, which the court noted Dr. Jewelewicz-Nelson considered "an insufficient period to be considered in remission of cannabis abuse." The court expressed other continued concerns with respect to D.R. that "go directly to the question of his ability to provide, [including] issues of employment, which as I understand it[,] is still a part-time situation, and housing, which go to the question of an ability to provide a financial[ly] secure, safe and stable home."
With respect to the next half of the second prong, the court noted:
[A]n additional delay to attempt to give the parents additional time to deal with the issues that have been in - - in the case[,] considering [C.F.]'s situation as I articulated and a fairly late start given the actual birth date of [E.R.] and the time line of the case by [D.R.], that those underlying features establish also by clear and convincing evidence that given this time line[,] a further delay of uncertain extent in permanent placement would add to the harm.
The court considered that E.R. had been with the same foster parents since his removal in June 2007, and that they were willing to adopt him. It also considered Dr. JewelewiczNelson's report, which stated that D.R. "has the potential to become a good parent in the future but he is not there yet[,]" which the judge considered to be an accurate assessment of his situation. Considering prong three, the court found:
[A] fair reading of the record establishes that the Division tried very, very hard to avoid the removal. The record is replete with situations where they're trying to track down and maintain contact with [C.F.] in the period prior to the removal and at the same time, trying to engage and get [D.R.] involved in the case.
The judge then listed the specific exhibits which demonstrated the reasonable efforts made by the Division relating to D.R. He noted that "reasonable efforts on behalf of parents are not, of course, to be measured by their success or failure. Efforts must be assessed... in light of all the circumstances of a given case. Consistent efforts to maintain and support the parent/child bond are central to a [c]court's inquiry." The court found that, "in context[,] the reasonable efforts were beyond the minimum that would be sufficient to establish that element of prong three."
The court then considered the available alternatives. It found that the Division had considered placement with N.R., the paternal grandmother, but ultimately decided against it based on evaluations of the home situation, her psychological status, and other factors. The court noted that "there is not and was not established a strong connection between the child and the paternal grandmother[,]" particularly since she only saw E.R. three or four times in 2008.
The court also considered Dr. Jewelewicz-Nelson's report in which she found that the foster parents were E.R.'s psychological parents and "[s]eparating [E.R.] from these primary attachment figures is likely to cause him deep and enduring harm due to an overwhelming and pervasive sense of loss." He credited Dr. Jewelewicz-Nelson's opinion that N.R. would not be able to mitigate that harm "given her limited connection and bond to the child." Finally, the court analyzed the fourth prong, crediting Dr. Jewelewicz-Nelson's opinion that removal from the foster parents would result in "deep and enduring harm" and that there would be nobody in a good position to mitigate.
Because of this[,] the termination of parental rights will do more good than harm rather than vice versa. The termination of parental rights maintains and continues the connection of the child with the persons identified as his psychological parents. It avoids the causing of deep and enduring harm.
On January 9, 2009, the court entered an order terminating C.F.'s and D.R.'s parental rights and granting guardianship, but the court then ordered post-termination visitation for D.R. pending appeal. On May 5, D.R. filed the present appeal. On May 26, we granted D.R. leave to file his notice of appeal as within time.
On October 1, the trial court conducted a post-termination review from which it entered an order suspending visitation pending further order of the court "[d]ue to [D.R.'s] failure to consistently utilize the scheduled visitation as well as his admission to recent marijuana use," which led the court to conclude that "continuation of the father's visitation is not in the child's best interest." On January 6, 2010, we issued a supplemental order permitting the Division or the Law Guardian, appointed to represent E.R.'s interest during the termination proceedings, to seek "a limited remand so that the [trial court] may consider any circumstances that may warrant termination of visitation." The Law Guardian filed an application for a limited remand and to stay our January 6 order so as to prevent the trial court from ordering visitation prior to the remand the Law Guardian was requesting in her motion. We granted the stay of our January 6 order but denied the motion for a limited remand "as the case [was] calendared for February 24, 2010."
On appeal, D.R. raises the following points for our consideration:
THE TRIAL COURT'S TERMINATION OF THE FATHER'S PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF ADMITTED EVIDENCE AND TESTIMONY.
A. THE TRIAL COURT ERRED IN CONCLUDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE FATHER'S RELATIONSHIP WITH HIS SON HAS CAUSED OR WILL CAUSE ENDURING HARM AND THAT THE FATHER IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILD.
B. THE TRIAL COURT ERRED IN CONCLUDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT IT HAD MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO THE FATHER.
C. THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
D. THE TRIAL COURT ERRED IN CONCLUDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
The balance between parental rights and the State's protective interest over the welfare of children is achieved through application of the statutory "best interests of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), now codified in N.J.S.A. 30:4C-15.1. The statute provides:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child"... if the following standards are met:
(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. Such harm may include evidence that separating the child from his resource family 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).]
The four statutory criteria "are not discrete and separate." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.
Judicial determinations of whether the Division has satisfied the statutory prerequisites to termination of parental rights are "fact sensitive." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (citations omitted). For the trial judge, who sits as the fact-finder, this process involves assessing credibility, which means that the trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses under both direct and cross-examination, consider any potential bias or prejudice of the witnesses, and then arrive at a determination of whether the Division, by clear and convincing evidence, has met the four- part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).
On appeal, the factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As a reviewing court, our task is not to disturb the "'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
When reviewed under this analytical framework, we are satisfied that the Division proved by clear and convincing evidence that C.F. and D.R. endangered E.R.'s safety, health and development by consistently failing to attend to his medical needs and provide stable housing for him. D.R. admitted that he relied upon C.F.'s assurances that she was handling matters with the Division. However, given his testimony as to the extent to which he was involved with E.R. and his knowledge of C.F.'s transient living circumstances from the time E.R. was approximately six months old, his reliance upon C.F. to totally attend to E.R.'s needs evidenced poor judgment and immaturity which Dr. Jewelewicz-Nelson discussed in her psychological evaluation of D.R.
We are not, however, persuaded that the evidence supports a finding, by clear and convincing evidence, that the Division satisfied the second and third prongs of the best interest test. We separately discuss each of these prongs although recognizing that they overlap. K.H.O., supra, 161 N.J. at 348.
As to the second prong, as noted earlier, the court expressly stated that it was not so much that the evidence demonstrated an unwillingness to provide a safe place for E.R., but "[i]t ha[d] more been a case of life circumstances and problems for the parents making them unable to eliminate the harm facing the child and being unable to provide a safe and stable home for the child." The record not only demonstrates D.R.'s willingness to provide a safe and stable home for E.R. but also an ability to do so, albeit with in-home services and supervision from the Division.
It was D.R. and N.R. with whom E.R. resided for three weeks just prior to his removal from C.F.'s custody in June 2007. It was also D.R. who, unsolicited, reported his concerns for E.R.'s well-being during his telephone conversation with the Division worker on June 4, 2007. It was because of his concerns for E.R.'s well-being that D.R. took E.R. to the hospital in New York where E.R. was diagnosed with bronchitis and prescribed medication. When the Division removed E.R. from C.F.'s custody on June 6, he was subsequently examined and there were no medical issues noted and no evidence that he had been neglected while living with D.R. and N.R.
Over the next ten months following E.R.'s removal, most of D.R.'s actions were directed towards gaining custody of E.R. The Child Placement Review Board review report of July 24, 2007 noted that D.R. had been consistent with his visitation. Although yielding positive drug test results for marijuana, D.R. started submitting to drug screens in August as he had been ordered to do. While he did not visit with E.R. between August and October 2007, he told the Division that he believed his visits had been suspended until he underwent the court-ordered evaluations. In September, he began a psychological evaluation. On October 19, he appeared at the Division's office to participate in an administrative placement review. The case plan set forth a permanency goal that called for E.R. to return home to "one or both parents" with a "[c]oncurrent permanency plan [of] [a]doption." Under the "needs and services" section of the review report, the Division stated:
Father resides with his mother in Brooklyn, New York. He holds a minimum wage job with variable work schedule and relies on others or on public resources for transportation. [He] was scheduled for a substance abuse evaluation but left before compl[e]ting the evaluation and after giving a urine sample, which tested positive for marijuana. He needs to complete the evaluation.
Father needs to complete psychological evaluation with FEP and is scheduled to do so 10/30/07.
Father was referred to TSVP for visitation but was non-compliant and service was terminated. He has not had contact with [E.R.] for about a month and a half. DYFS has arranged to supervise a visit on 10/31/2007 and will assist father with transportation from bus station in Dover if needed.
The case plan called for a six-month time frame during which D.R. was expected to address the "needs and services" outlined in the report.
On October 30, D.R. completed the psychological evaluation and, based upon the psychologist's recommendations set forth in her November report, D.R. enrolled in anger management and parenting classes in early 2008. By April 15, he had attended thirteen of the fifteen scheduled parenting classes and received his certificate of completion on April 28. In December 2007, he completed his evaluation for his therapeutic visitations with E.R. and commenced TSVP in January. Also in January, D.R. started individual therapy. Three months later, he finally underwent a substance abuse evaluation and entered an intensive out-patient drug treatment program the next month. The program consisted of a minimum of three hours of treatment, three times per week, as well as random urine testing. D.R. successfully completed the program.
The Division notified N.R. in February 2008 that she could not be considered as a resource placement because D.R. was living with her. D.R. remained with his mother long enough to complete the court-ordered programs that he was taking in Brooklyn and moved out in early May, as he had advised the Division he would do at the April 16 family meeting.
Thus, by April, D.R. had substantially complied with every goal established in the October plan. While he had not progressed to the point that he was no longer in need of these services and was not drug-free, there was significant evidence of D.R.'s positive steps towards addressing the Division's and court's concerns. Rather than reinforcing D.R.'s efforts with continued services or developing new goals such as housing and full-time employment, the Division, in its May 8, 2008 report to the court, changed the goal from reunification to termination. Despite this change in goals, the report made four recommendations relating to C.F., one of which included "secur[ing] stable housing." The report made no recommendations regarding D.R., although the report noted his request that his mother be reconsidered as a resource placement.
In addressing whether a further delay in permanent placement will add to the harm under the second prong, the court pointed to two factors regarding D.R.: "[E.R.'s] fairly long time in an out-of-home placement... and a fairly late start given the actual birth date of [E.R.] and the time line of the case by E.R." As we previously observed, the Division's records reflect that it failed to develop a case plan with D.R. before October 2007 and there is no proof in the record that D.R. was aware of any Division-recommended or court-ordered services prior to E.R.'s emergency removal. Hence the court's expressed concern for D.R.'s fairly late start was a circumstance caused more by the Division's focus upon C.F. for the first sixteen months of E.R.'s life than D.R.'s willful failure to comply with the recommended or court-ordered services. We note further that during this sixteen-month period, the Division, although unaware of D.R.'s whereabouts, was aware that he was paying child support through the probation department. We therefore cannot agree that there is substantial credible evidence in the record to support the trial court's finding that the record was "replete" with evidence, prior to D.R.'s removal, of the Division's efforts of "trying to engage and get [D.R.] involved in the case."
As for the "fairly long time in an out-of-home placement[,]" there was no evidence how this factor was impacting E.R. Division records report that the foster parents claimed that E.R. was having nightmares and behavioral issues following visits with his father and had expressed to them a desire not to see his father. There is, however, not one entry in the Division's records from the worker who transported E.R. to visits with his father noting any reluctance by E.R. to attend the visitations. There are entries noting that E.R. was reluctant to leave from his visits with D.R. At least two entries report that E.R. told his father that he missed him. On July 16, 2008, the same day the Division filed its complaint for guardianship and termination of C.F.'s and D.R.'s parental rights, E.R. visited with D.R. The worker reported: "At the end of the visit this writer had difficulty getting [E.R.] to leave.... He stated he didn't want to go[.]" Moreover, the Division took no steps to investigate the foster parents' allegation by having a psychologist explore this issue with E.R. and, if necessary, to make recommendations that could possibly ameliorate this situation.
Dr. Jewelewicz-Nelson opined that emotional or psychological harm would result if E.R. was separated from his foster parents but, other than the passage of time, she did not point to any other factor to support this contention. More importantly, she did not analyze the passage of time factor in the context of the loving relationship that she found existed between D.R. and E.R.
Given all of these factors, we are not persuaded the record supported a finding that a further delay in permanent placement to afford D.R. additional time to progress with his treatment would have resulted in additional harm to E.R.
Turning to the third prong, as the Court stated in In re Guardianship of D.M.H., the Division is required to "provide services to the family according to a case plan, including enlisting the assistance of relatives, providing direct services, or providing referrals to community service providers." 161 N.J. 365, 387 (1999). In addressing the Division's reasonable efforts, the court stated:
With respect to [D.R.], the efforts were I think on target in terms of identifying issues and attempting to deal with them. The efforts were compromised by the fact that it really took [D.R.,] by his own acknowledgement[,] a long time to engage in the case[,] as he I think expressed[,] that he came to the plate a little further along in the case than we would have preferred. There were in the documentation many missed appointments certainly earlier on in the case, P-53 and P-77, documents of missed appointments by [D.R.] There were also parenting classes, obviously counseling which I've already noted. The reasonable efforts that bear particularly with respect to [D.R.] can be found documented in P-6, P-45, P-41, P-63, P-79, P-68, P-89, P-42.
The exhibits the court referenced and relied upon in finding reasonable efforts on the part of the Division were the following:
1. P-6, a termination notice from PCS notifying the Division that D.R. was being terminated from its program because after receiving the referral from the Division on November 10, 2005, D.R. did not reach out for services despite attempts to schedule an evaluation four times between November 21 and December 22.
2. P-41, an Uncompleted Assessment Notification Form dated July 30, 2007, from PCS, advising the Division that D.R. was a "no show" for a July 30, 2007 scheduled substance abuse evaluation.
3. P-42, an August 8, 2007 Request for Clinical Services from the Division to FEP seeking a psychological evaluation for D.R. "to asses[s] his ability to effectively care for his child and level of functioning[,]" and noting further that D.R. had not complied with services.
4. P-45, a September 19, 2007 letter to D.R. notifying him that there would be a review regarding the placement of E.R. on October 19, 2007 at the Division's offices in Randolph.
5. P-53, an undated letter from FEP regarding D.R., advising the Division that TSVP was referring D.R. back to the Division because he was unresponsive to the numerous efforts it undertook to schedule an intake appointment with him between July 11 and October 2, 2007.
6. P-63, a Division Substance Abuse Assessment Referral Form dated December 3, 2007.
7. P-68, a December 7, 2007 Request for Clinical Services the Division submitted to FEP to again schedule TSVP with E.R. for both parents.
8. P-77, a February 20, 2008 letter from FEP advising the Division that D.R. began TSVP with E.R. on January 30 and attended two out of the four scheduled visits, with the foster mother canceling two of the scheduled visits because E.R. was purportedly ill and needed to go to the doctor.
9. P-79, a Division Substance Abuse Assessment Referral Form dated February 26, 2008.
10. P-89, a Certificate of Completion of a parenting skills class conducted by the Coalition for Hispanic Family Services dated April 28, 2008.
The court concluded that the Division's efforts to provide services to D.R. were "compromised" by D.R.'s delay in coming into the case. While D.R. acknowledged that he was not involved with the Division in the beginning, he never testified that it was because he ignored the Division's efforts. Rather, he testified that he relied upon C.F.'s representations that she was working with the Division and indicated that he was unaware that the Division had scheduled any services for him in 2005. That testimony was consistent with the case supervisor's testimony, who acknowledged that the Division did not initially know of D.R.'s whereabouts. The October 19, 2006 OTSC and verified complaint for services and supervision without restraints stated that "D.R.'s whereabouts were unknown." Moreover, the record reflects no reasonable effort on the part of the Division to find D.R. between 2005 and 2007 in order to develop a case plan with him. As we have previously noted, the first case plan the Division developed with D.R. was in October 2007.
On the other hand, despite C.F.'s repeated history, over a two-year period between 2005 and 2007, of non-compliance with the recommended services that included housing, health care and counseling, and numerous instances of not keeping in contact with the caseworkers assigned to the case and not keeping medical appointments for E.R., the Division made consistent efforts to work with C.F., to locate her when she was missing, including enlisting the services of the police, and preparing case plans for her. No such efforts were undertaken on behalf of D.R. The sole entry in Division records regarding its attempt to locate D.R., other than an occasional inquiry to C.F., is the March 23, 2007 entry that indicates a search was being requested for D.R., presumably by the Human Services police. The results of that inquiry were not reflected in the Division records admitted into evidence.
Because E.R. was living with C.F., it is understandable that the Division's primary focus initially was to direct its attention to assisting C.F. This focus, however, may not be to the exclusion of the non-custodial parent. D.M.H., supra, 161 N.J. at 393. That is what occurred here, at least for the first sixteen months that the Division was providing services to the family. Once E.R. was removed from C.F.'s custody, the Division developed a six-month case plan in October 2007 that did not include a requirement that D.R. acquire separate housing or a full-time job. Yet, at trial, the case supervisor testified that despite D.R.'s progress, there were housing and employment issues, factors the court accorded considerable weight, but factors the Division did not raise with D.R. until the fall of 2008.
In a court report completed September 27, 2008, the Division, in discussing safety and risk factors, for the first time refers to D.R.'s need to "demonstrate his ability to maintain stable housing and employment before unsupervised visitation or reunification with E.R. can occur." That recommendation did not include any referrals for D.R. in the area of employment and housing. As discussed earlier, prior to this recommendation, there is not one entry in the Division records admitted into evidence recommending that D.R. attempt to find housing suitable for himself and E.R. or that he find full-time employment as a condition for reunification. However, as to C.F., the records are replete with efforts on the part of the Division to assist C.F. with housing for herself and E.R., and there were numerous court orders directing C.F. to secure stable housing.
E.R. was never removed from C.F.'s custody because of her apparent unemployment status. It is therefore questionable why D.R.'s part-time employment status became an issue for the Division. Nor did the Division seek an emergency removal of E.R. when the Division learned that C.F. and E.R. were living in a homeless shelter. Instead, the Division attempted to provide services for C.F. under those living arrangements. It was only after the Division learned that C.F. had been asked to leave the homeless shelter for non-compliance with the shelter's rules and had no knowledge of her whereabouts that it commenced to take steps to remove E.R. from her custody. D.R.'s living arrangements, whether with his mother in New York or with his aunt in New Jersey, were presumably more palatable than a homeless shelter. For more than one year following E.R.'s emergency removal, the Division, as to D.R., repeatedly focused upon his parenting skills, substance abuse, anger management, and individual therapy. D.R. was addressing these concerns and was making progress, which both the Division and the court, in its factual findings, recognized.
In short, the Division made no effort, for the first sixteen months of E.R.'s life, to engage D.R. in any services because it chose not to make diligent efforts to locate him. In October 2007, it developed a six-month case plan that did not include, as it had repeatedly done with C.F., a requirement that he obtain stable housing. Nor did the case plan include a requirement that D.R. obtain full-time employment. When it did raise housing and employment as areas of concern in September 2008, it offered no services to D.R. to assist him in these areas.
Likewise, as to the second part of the third prong, the court's consideration of alternatives to termination of parental rights, the Division did not affirmatively enlist the services of D.R.'s mother as a resource placement at the time of E.R.'s removal as the case supervisor testified at trial. She told the court that "at the point we placed this child in foster care we went to the grandmother and we asked her to make a decision pro[E.R.] And at that point she -- she had an inability to ask her adult son to leave the home so we can make that placement." The court, in making its findings as to N.R. as an alternative to termination of C.F.'s and D.R.'s parental rights, apparently credited this testimony:
The problem that was articulated was first of all[,] that there was a time in the case when it would have been plausible to place the child with the [paternal] grandmother on the condition that [D.R.] move out of the home. Now, this problem illustrates a couple of dynamics in the case. [D.R.] was apparently not in a position to live independently because of financial and obviously housing limitations. And the Division articulated and I accept the proposition that the family never made the commitment to in effect have [D.R.] move out of the home so that the child could be moved in.
Now, what has happened is that again, fairly late in the game after a substantial period of placement in the foster home, which has been the placement throughout the case history, there was what I'll characterize as a push to advance the [paternal] grandmother so that if there were a termination or other adjudication... involving a removal from the parents[,] there would be a so-called family solution to the problems of the case. The problem with that is that there is not and was not established a strong connection between the child and the [paternal] grandmother.
Contrary to the case supervisor's testimony, there is no entry in Division records that reflects a request from the Division in June 2007 that D.R. move out of his mother's home so that E.R. could remain there with her rather than being placed with a foster family. Nor is there any record between June and December 2007 that reflects such a request. What the records do report is an October 2007 submission from the Division's Boonton office, where the case was assigned, to the Division's Trenton headquarters, that an interstate request for investigation of N.R.'s home be undertaken. This was one month after the assigned caseworker had traveled to Brooklyn and met with D.R. in N.R.'s home. The worker knew that D.R. was living with his mother and this same worker proceeded to make the request for the home investigation. It is doubtful that the worker would have proceeded with the request if the worker considered this living arrangement as a disqualifying factor. Further, there is nothing in the record before the court that the Division discussed its decision to withdraw its ICPC request for N.R.'s home investigation with N.R. or D.R. before the rule-out letter was sent to N.R. in February 2008. Moreover, although the ICPC for N.R. was court-ordered, there is also no evidence in the record that the Division alerted the court of its decision to withdraw the investigation referral.
What the evidence in the record reveals is that it was during the April 16 meeting between the Division, C.F., N.R. and D.R. that N.R. "was told that as long as her son lived with her, this placement could not happen. It was agreed that if and when he moves out, ICPC request would be made; however, given the length of time this process could take, it may need [sic] be feasible." However, during that same meeting, D.R. informed the Division that he planned to move out of his mother's home in two weeks and he asked the Division to reconsider N.R. as a resource placement. Given the concern the Division expressed to the family during the meeting, that the twelve-month period of out- of-home placement was fast approaching, there was no reason why the Division, based upon D.R.'s representation, could not have immediately forwarded the ICPC request to New York and requested that the investigation be expedited. It did not do so, however, until June 3, just a few days shy of the anniversary of E.R.'s emergency removal. Moreover, despite the Division's representation during the April 16 meeting that the process could be lengthy, N.R. was preliminarily approved for E.R.'s placement by August 15.
At trial, during cross-examination, the case supervisor insisted that, contrary to the August 15 report from New York approving E.R.'s placement with N.R., the Division received another document that stated the placement had not yet been approved. She was unable, however, to produce this document at trial. She claimed that New York authorities were waiting on fingerprints, although the October 21 updated report indicated that fingerprinting of N.R. had been completed on July 23, and for her other son who resided in the home, on August 4. Both received their criminal clearances on August 20. The case supervisor testified that she "had not seen the [October 21] document[,]" but then a short time later in her testimony, she stated that on the basis of the October 21 report, "we requested a new psychological and we tried to make an assessment as to if we could do anything else."
Having finally received approval for E.R.'s placement with his paternal grandmother, rather than proceed in that direction, the Division injected two other hurdles. The Division requested more information about N.R.'s living arrangements: (1) who was on the lease, (2) whether N.R. had permission to have E.R. in the home, and (3) a copy of the lease. We do not suggest that these inquiries were inappropriate. These are questions, however, that could have been posed to N.R. one year earlier when N.R. expressed a desire to care for E.R.
Apart from the fact that an ICPC does not apply to a relative placement, "ICPC was intended to remove, not to create, obstacles to out-of-state placements that are in the best interests of children." Div. of Youth & Family Servs., v. K.F., 353 N.J. Super. 623, 635 (App. Div. 2002). The Division's actions relating to ICPC here were unnecessary and unreasonably delayed.
A further delay occurred in placing E.R. with N.R. when the Division then ordered a psychological evaluation of N.R. because the case supervisor questioned N.R.'s motives for wanting to become the caretaker for her grandchild:
After this child has been in his -- in his foster home for a year bonded, connected, attached to these people, I would like to know what her motivation is, her motivation, because her son now wants her to do it and now he is willing to help in that process but before she was invested? I want to know what the motivation is. I want to know that she's not gonna adopt our -- this kid and then turn around and give him back to the parents who have not already reunited because the Court finds that it's appropriate.
Dr. Jewelewicz-Nelson, however, never addressed this issue. Also, she did not testify at trial and was not deposed. In her report, she concluded that N.R. would provide a safe home and would not neglect E.R., but ultimately found that she lacked the emotional attunement, had no understanding of the developmental stages of a child, and would be unable to assist E.R. with issues of grief. The underlying facts she considered in reaching these conclusions were not discussed in her report.
Additionally, she found that there was no bond between N.R. and E.R. Dr. Jewelewicz-Nelson did not discuss whether the fact that N.R. had developed a bond with E.R. prior to his removal and that E.R. still referred to her as "Grandma" would be of value and helpful in a re-bonding process if N.R. was awarded custody. The Division's records implicitly reflect an acknowledgement that bonding is an evolving process. When it was considering another relative as a resource placement, A.V., the Division records report that it planned to set up specific visits between A.V. and E.R. in order to facilitate bonding. Given the limited contact between N.R. and E.R. during 2008, the fact that E.R. was three years old at the time of the bonding evaluation, the absence of a bond between E.R. and N.R. at that point should not have been surprising, just as the fact that having lived continuously with his foster parents since June 2007 would undoubtedly have created a bond between E.R. and his foster parents.
In essence, the conclusory nature of many of the opinions expressed by Dr. Jewelewicz-Nelson in her report illustrate why the admission of this report as substantive evidence was a mistaken exercise of discretion, particularly when Dr. Jewelewicz-Nelson was available for a de bene esse deposition, but the Division would not agree to proceed without the presence of a judge. There is no requirement under Rule 4:14-9 that a de bene esse deposition be conducted in the presence of a judge. Rather, a party objecting to any testimony given may file a motion for a ruling on the objection. R. 4:14-9(f). Given the weight the court accorded Dr. Jewelewicz-Nelson's entire report, we believe affording defense counsel an opportunity to cross-examine Dr. Jewelewicz-Nelson was critical to a fair resolution of the issues before the court.
Further, the fact that the defense did not produce an expert witness does not mean that the opinions reached by Dr. Jewelewicz-Nelson are unchallenged, as the Division argued. Here, they were unchallenged solely because D.R. was deprived of the opportunity to have those opinions viewed under the lens of cross-examination. We do not construe Rule 5:12-4(d) as limiting rebuttal evidence to the production of an expert report or testimony that is adverse to the opinions expressed in another report. See In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969) ("the answering parent [must] be given the fullest possible opportunity to test the reliability of the petitioner's essential evidence by cross-examination.").
Parents have a "fundamental liberty interest... in the care, custody and management of their child," which is protected by the Due Process Clause of the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982). Hence, "[a] parent's interest in the accuracy and justice of the decision to terminate his or her parental status is... a commanding one[,]" and that "'[i]ncreasing the burden of proof is one way... to reduce the chances that inappropriate terminations will be ordered." Id. at 759, 764-65, 102 S.Ct. at 1397, 1400-01, 71 L.Ed. 2d at 610, 614.
In discharging its statutory obligation, the Division, like courts in termination proceedings, is always guided by what is in the child's best interest. In Re K.H.O., 161 N.J. 337, 348 (1999). "The strong public policy of New Jersey favors permanency of child placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.), certif. denied, 180 N.J. 456 (2004). See, e.g., N.J.S.A. 30:4C-11.1. Children must not be held hostage in foster care, lacking permanency in their lives because parents have not moved expeditiously to correct the conditions that resulted in the out-of-home placement.
In response to the reforms resulting from the Federal Adoption and Safe Families Act of 1997, the emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. That being said, however, our Legislature has recognized that statutory time frames for permanency placement are not inflexible. The Legislature has created an exception to the requirement that guardianship petitions be filed where a child has been in an out-of-home placement for "fifteen of the most recent 22 months" and falls within subsections (a) through (f) of N.J.S.A. 30:4C:15.
N.J.S.A. 30:4C-15.3(c) provides that the Division is not required to file a petition seeking termination of parental rights if "[t]he [D]ivision is required to provide reasonable efforts to reunify the family but the [D]ivision has not provided to the family of the child, consistent with the time period in the case plan, such services as the division deems necessary for the safe return of the child to his home." [emphasis added.] In our view, the record here fails to reflect, by clear and convincing evidence, the Division's compliance with its obligation to provide D.R. with the requisite services, namely, housing and full-time employment assistance, which at trial, it deemed, and the court accepted, as a further barrier towards reunification.
In summary, the record here was replete with inaccuracies. The testimony of the Division's primary witness, the case supervisor, who supervised the case from its inception and signed off on many of the documents that we have referenced in this opinion, was inconsistent with the Division records. She was permitted, over defense counsel's objection, to rely on notes she apparently prepared for trial rather than the specific documents referenced in her testimony. While this approach is understandable, given the volume of documents admitted into evidence, there are dangers inherent in this approach as evidenced by the record here. We are convinced that her testimony was so manifestly unsupported by the Division's records, that we are led to conclude that the findings as to the second and third prongs were not supported by competent, credible evidence. Rova Farms, supra, 65 N.J. at 484. Our findings as to the second and third prongs impact upon meaningful evaluation of the fourth prong. We therefore reverse and remand for further proceedings to be completed within ninety days of the date of this decision.
The proceedings must include an updated evaluation of D.R. to determine his present fitness to provide a safe and stable environment for D.R. as well as an inquiry to determine whether N.R. continues to desire to raise E.R. in the event that reunification with D.R. is not in the best interests of E.R. If N.R. is still willing to parent E.R., the Division is to conduct an updated investigation of N.R. and, assuming no change in those findings, the court is to conduct further proceedings to determine whether under these circumstances, termination of D.R.'s parental rights remains in the best interests of E.R.
Additionally, because the trial court previously ordered psychological evaluations of the foster parents on May 15, 2008, we direct that these evaluations be completed. We further order that during the pendency of these proceedings, that weekly supervised visitation be restored to D.R. and N.R., and not necessarily jointly, to take place at a mutually convenient location. Upon review, if the Division determines that assistance with transportation costs is necessary to effectuate visitation, the Division shall provide such assistance.
Reversed and remanded. We retain jurisdiction.