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New Jersey Division of Youth and Family Services v. C.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 8, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.W., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF: A.R., H.W. AND D.W., JR., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0023-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically May 13, 2010

Before Judges Payne, Waugh and Fasciale.

Mother, C.W. (fictitiously Carol), appeals from a trial court order of April 29, 2008 terminating her parental rights to her two biological daughters, A.R. (fictitiously Anne) and H.W. (fictitiously Helen), ages sixteen and seven, respectively, at the time of trial. The daughters have different fathers. Anne's father is R.C.; Helen's father is D.W. (fictitiously Doug). R.C. has not been located. At the time of the trial of this matter, Carol was married to Doug, who had two other children, a daughter, B.McE., and a son, D.W.Jr., as the result of a relationship with another woman. Prior to the trial of this matter, Doug had given up his parental rights to B.McE., who has been adopted by an aunt. Doug's rights to D.W.Jr. were terminated in this proceeding, but are not the subject of this appeal. Doug has not appealed from the order terminating his parental rights to any of his children.

I.

The family first came to the attention of the Division of Youth and Family Services (DYFS) in 1996. Over time, various complaints about Doug were submitted to DYFS including complaints of his domestic violence, sexual abuse and drug addiction. In 2001, Carol and Doug were married. In May 2006, Carol and Doug signed a DYFS safety protection plan, in which they agreed that Carol would supervise all contact between Doug and the children. However, on June 14, 2006, Carol was arrested for forging a prescription for Oxycontin. She remained in custody from approximately 1:00 p.m. to 6:00 p.m. that day, and during that time, Doug had sole custody of the children. No harm befell them during this period. DYFS learned of these circumstances on June 26, 2006, and following an investigation, substantiated neglect of the children by Carol and Doug. It was agreed that Carol, Anne and Helen would live with Carol's mother and that the mother would supervise Carol's contact with her children. Additionally, the parents were ordered to submit to urine screening, and Doug's results were positive. The record contains no reference to the resolution of any charges against Carol.

On July 6, 2006, Carol and the two girls moved in with Carol's mother. However, the mother alleged that, while living there, Carol stole her prescribed Oxycontin and check book and used her credit card without authorization to do so. It appears that Carol left her mother's residence in July 2006, but that the girls remained.

On August 1, 2006, the court entered an order to show cause and appointed a law guardian with temporary custody in the matter. The order provided that the removal of the children was required due to imminent danger to their life, safety or health arising from Carol's arrest for forging a drug prescription and from Doug's continuing use of cocaine.

Although Carol had not tested positive for drugs during her first assessment, it was recommended that she undergo an extended substance abuse assessment. That assessment took place on August 24, 2006, and at that time, Carol tested positive for cocaine. Thereafter, Carol cancelled appointments for further assessment on August 31 and on five occasions in September, but appeared on September 18, 2006, and agreed to begin Level II outpatient drug treatment in the WARN program at Preferred Behavioral Health on September 20, 2006. According to DYFS, at the time, Carol was "in pre-contemplation stage of change and at this point [she] does not appear to recognize the need to change her [behavior] and is unaware of the severity of her problem."

In October 2006, Carol's grandmother, who lived in Maryland, became terminally ill. Because she could not find adequate relative care in New Jersey, Carol's mother took the girls to Maryland while she cared for the grandmother. Although DYFS had, on a prior occasion, authorized Carol's mother to take the girls out of state on a temporary basis, on this occasion, it refused to do so. On October 30, 2006, custody of the two girls was transferred from Carol's mother to Carol's step-brother and his wife in Maryland. Carol and Doug were permitted to have a brief visit with their children that day, prior to their departure. The children have remained with their maternal aunt and uncle since that date. Carol has visited them infrequently, but the record reflects that she spoke to them by telephone once or twice every week.

Additionally, on October 30, 2006, Carol and Doug entered a Title 9 stipulation admitting that they committed acts constituting abuse or neglect of their children. The stipulation provided that Carol "wrongfully used prescription drugs, having been arrested for forging a prescription and using other illicit substances while [in]*fn1 a [care]taking role. Father [Doug] [illegible] used illicit substances and children were placed at risk."

At the end of November 2006, Carol was terminated from the WARN program for tampering with her urines and for excessive absences.

In December 2006, DYFS investigated a referral in which it was alleged that Doug had sexually abused his daughter B.McE. The abuse was substantiated. Additionally, at that time, DYFS confirmed the report of the children that they had seen Carol wearing a top that exposed her breasts, together with a collar and leash.

In January, 2007, in-home counseling that had been provided to Carol and Doug through the CAFS program was terminated because the couple's children remained in placement outside the home and because the parents were inconsistent in their attendance in the program. In a letter to DYFS dated January 9, 2007, the CAFS therapist stated that CAFS was supportive of the recommendation by DYFS that the girls continue in their placement with their aunt and uncle in Maryland as the result of "concerns regarding [Carol] and [Doug's] ability to adequately care for and meet the needs of their children." Additionally, the counselor noted the recent allegations of sexual abuse of B.McE. by Doug and "concerns regarding substance abuse, parenting skills, anger management, marital discord, and communication skills."

On February 1, 2007, Carol was psychologically evaluated by Dr. Chester E. Sigafoos, Ph.D. In a report dated May 30, 2007, four months after the evaluation, the doctor found Carol suffered from "numerous psychopathological disorders and conditions that interfere with her ability to effectively parent her children, and pose a significant risk of harm to the children if untreated. Dr. Sigafoos found the prognosis for her to be "guarded." He recommended treatment through psychotherapy of six months to one year in duration, attendance at sexual abuse victims' meetings and intense supervision and monitoring for the abuse of illicit substances. However, he expressed considerable reservations as to whether the recommended treatments would be successful, since Carol appeared comfortable with her current psychological state, was unlikely to seek psychological assistance and was likely to be resistant to change.

On February 21, 2007, Carol received a substance abuse evaluation by Counseling and Referral Services of Ocean. At the time, she tested positive for use of marijuana. It was recommended that she receive Level II intensive outpatient treatment with three sessions per week. Although Carol agreed to participate in treatment, she tested positive for marijuana on March 19 and 26 and for opiates on April 16 and 23. As a consequence, on April 27, 2007, Carol was terminated from the program for noncompliance.

In May, DYFS offered to refer Carol to Preferred Children Services - CPSAI Group for another substance abuse evaluation. She appeared for that evaluation on June 20, 2007, and at that time, admitted abusing marijuana, cocaine and Oxycontin. CPSAI recommended that she obtain inpatient substance abuse treatment. However, on June 25, 2007, Carol signed a refusal for such treatment, stating that she would only undergo Level II outpatient treatment. Carol commenced outpatient drug treatment at Healy Counseling on July 23, 2007, completing its sixteen-week program seven months later. No urine monitoring was performed by that entity during the course of treatment.

In early July, a caseworker traveled to Maryland to interview the two girls and their aunt and uncle. At that time, the worker spoke to both Anne and Helen. The elder, Anne, stated that she wanted her mother to get help, that she did not wish to go back home, and that she was happy where she was. Helen, likewise, stated that she liked where she was and wished to stay. The aunt and uncle reported that Carol had made several attempts to visit her girls in Maryland, but had cancelled at the last minute, either because of work, illness, or lack of money. They informed the DYFS caseworker that they would be willing to adopt the two girls.

On July 27, 2007, DYFS referred Carol to parenting skills classes at the St. Francis Community Center. She completed its program on February 4, 2008.

On July 30, 2007, the court entered an order approving DYFS's permanent plan of termination of parental rights followed by adoption. The court noted that it would not be safe to return the children to Carol and Doug's care, because they were still engaged in services. A return date of October 3, 2007 was provided.

A DYFS caseworker returned to the Maryland home of the girls' aunt and uncle in late January 2008. At that time, the girls reported that Carol had not joined them at Christmas, despite an invitation to do so. They stated, however, that they speak to her on the telephone, and had told her that they did not wish to return to her care, but instead, wished to remain in Maryland.

In February 2008, Carol received a second psychological evaluation by Dr. Alan J. Lee. Carol reported to Dr. Lee that she had been sexually abused as a teenager by her step-father. She had completed her G.E.D. and had received an Associate's Degree in computer science. For the past two years, she had been steadily employed as a waitress. Although she remained married to Doug, at one time she stated that she planned to separate from him in the next couple of months, but at another point she stated that she hoped to reconcile with him.

Dr. Lee found that Carol had no obvious signs of acute psychosis or prominent thought disorder. However, while she was agreeable, "she seemed to be very superficial, defended, and minimizing of personal problems." The doctor wrote in his report:

[Carol] presents as an adult mother of two children from two different relationships who on interview denied any history of prominent or major mental health problems. She did report some history of substance abuse, but largely denied this in recent times and purported her involvement in substance abuse services. She presents as an adult who generally functions at an emotionally less mature level and who is still rather primitive and psychologically underdeveloped. She presents as a rather dependent and at times helpless individual who shows some significant overall coping deficits and problems in her problem solving and judgment. She is both characteristically and situationally guarded, defended, and lacking in accurate personal insight or awareness. She presents as being somewhat impulsive, self-absorbed and hedonistic, and can also be rather submissive and has poor coping and problem solving.

Additionally, Dr. Lee found Carol still to be at heightened risk for substance abuse relapse. He did not support her as an independent caregiver of any minor child.

No evaluation of the bonding of the girls with their parents and their aunt and uncle was conducted.

A trial of this matter occurred on March 31 and April 1, 2008. The State offered testimony by Stephanie Noss, the adoption specialist assigned to the matter on August 16, 2007, and Dr. Lee. Dr. Sigafoos did not testify,*fn2 and neither parent testified. It appears that the trial judge interviewed the two girls. However, the interviews were not recorded as they should have been. Testimony by Noss was limited in scope and short in duration, and there was no meaningful cross-examination. Dr. Lee testified in accordance with his report and, likewise, was not subjected to any extended cross-examination.

The trial judge issued an oral decision on April 29, 2008, terminating Carol's and Doug's parental rights to their children, determining that the four prongs of the best interest test had been met.

II.

In order to terminate the parental rights of Carol to her two girls, the State was required to prove, by clear and convincing evidence, that termination would be in the children's best interest under the four-prong test set forth in N.J.S.A. 30:4C-15.1a, demonstrating as to each child*fn3

(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.

It is well established that these four criteria are not discrete and separate, but instead they relate to and overlap with one another in order to provide a comprehensive standard that identifies a child's best interests. New Jersey Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007); In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Moreover, "when a trial judge applies the statute, [s]he must be cognizant that 'the considerations involved are extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case.'" G.L., supra, 191 N.J. at 606 (quoting New Jersey Div. of Youth and Family Servs. v. M.M. 189 N.J. 261, 280 (2007)).

On appeal, Carol argues that the trial judge provided no basis for the satisfaction of the first prong other than that she had been arrested for forgery and had a drug problem. No evidence was presented of a criminal conviction or of negative effects upon the children as the result either of her criminal conduct or drug addiction.

We note in this regard that, although unmentioned by the judge in her opinion, Carol had stipulated to committing acts of abuse or neglect in connection with the Title 9 proceeding, admitting that she had forged a prescription and used other illicit substances while in a caretaking role, and that stipulation was introduced at the termination trial. Nonetheless, Carol did not stipulate to the manner in which her behavior caused harm to her two girls, and there are no findings of fact with respect to this issue in the judge's opinion. We are thus unable to determine whether the judge simply presumed harm as the result of Carol's illegal conduct and substance abuse. If that were the case, then reversible error occurred, because "'presumptions of parental unfitness may not be used in proceedings challenging parental rights and all doubts must be resolved against termination.'" G.L., supra, 191 N.J. at 606 (quoting M.M., supra, 189 N.J. at 294-95). We therefore remand for clarification of this point. In doing so, we do not foreclose the potential for termination on the basis of this record. We merely require in a matter so deeply affecting a parent's rights that the trial judge demonstrate a clear and convincing factual basis for her decision.

Carol argues further that, because the State failed to prove that she harmed the girls, or the judge failed to articulate the harm, the second prong of the best interest test, which is interrelated with the first, cannot have been proven. We find merit in this argument and remand for a further articulation of the factual basis for the judge's order terminating Carol's rights.

We note as well the absence of any bonding evaluations in this case. On this issue, DYFS argues that such evaluations were not required. If termination was based upon present parental unfitness, we agree. In re Guardianship of J.C., 129 N.J. 1, 18 (1992). However, it is unclear to us whether termination in this case was premised upon unfitness or upon prolonged inattention by Carol, manifesting in her failure to visit the girls in Maryland on a consistent basis, thereby permitting the girls to bond with their aunt and uncle. If the latter is the case, then J.C. mandates that bonding evaluations take place. Id. at 18-26. We have further concerns that the judge's conclusions appear to have been impelled by the wishes of the girls, expressed in in camera interviews as to which no record was made, contrary to Rule 5:3-2(a). We cannot meaningfully review matters as to which a record is lacking.

In connection with the third prong of the best interest test, Carol argues that DYFS never engaged in reasonable efforts toward effecting family reunification as specified in N.J.S.A. 30:4C-15.1c. Rather, Carol claims that DYFS made a unilateral determination to place the girls out of state with relatives in Maryland, and it engaged in no efforts to consult with Carol on its plan or to facilitate visitation on a reasonable schedule. Carol further argues that the record is devoid of any evidence that reunification was ever considered, and that adoption was the predominate goal of DYFS from the outset.

Again, our evaluation of this case is hampered by the lack of initial factfinding with respect to the first two prongs of the best interest test. If we assume that Carol's drug use was the source of harm to the girls - a matter that does not appear to have been adequately demonstrated - then DYFS acted appropriately in repeatedly offering her substance abuse treatment. If, however, parental neglect is found to have been the cause of harm, it is less clear to us that appropriate services were provided to foster family reunification. Without an articulation of how Carol's conduct caused her daughters harm, we cannot determine whether the services that DYFS provided to Carol were appropriately focused on ameliorating that harm and facilitating reunification. Nor can we meaningfully review whether termination of parental rights in this case will do more harm than good.

In summary, we find troubling the cursory approach taken by DYFS, counsel and the court in this case. Prior to the June 14, 2006 incident, Carol was regarded by DYFS as sufficiently responsible to act as her husband's supervisor in his interactions with his children. She had a stable work history, a stable residence and no history of child abuse. To all appearances, Carol had successfully parented children for a period of fourteen years. Following DYFS's discovery of Carol's single act of forgery, custody of her children was given to Carol's mother, and in short order, to an aunt and uncle in Maryland. It is unclear to us what harm to the children transpired that would require so drastic a remedy. Thereafter, reunification became a physical impossibility as the result of the geographic separation between Carol and the girls. The girls appear to have bonded with their relatives, although we do not have record evidence of that fact.

As we stated previously, evidence may well support the termination of parental rights that occurred in this matter. Nonetheless, we seek more definite evidence that such was required, and for that reason, we remand the case for further proceedings in accordance with this opinion. The court may engage in further factfinding based on the current record, or it can reopen the record, should that appear warranted.

Reversed and remanded.


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