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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...