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New Jersey Division of Youth and Family Services v. D.M.

June 11, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-45-07.

The opinion of the court was delivered by: Gilroy, J.A.D.




Argued March 23, 2010

Before Judges Skillman, Fuentes and Gilroy.

On remand, the trial court entered an order terminating the parental rights of D.M. and F.M., the biological mother and father, respectively, to S.M., their daughter born September 2001. D.M. appeals, but F.M. does not.

The issue presented on appeal is whether a parent's parental rights may be terminated when the New Jersey Division of Youth and Family Services (DYFS or Division) fails to prove all prongs of the best interests of the child standard, but nevertheless, the child may suffer serious psychological or emotional harm by severing the bond between the child and his or her foster parents. We conclude that any harm the child may suffer from severing that bond cannot, in and of itself, serve as a legally sufficient basis for termination of the parent's parental rights. We hold that in such a case, DYFS must still prove by clear and convincing evidence that the parent's actions or inactions substantially contributed to the forming of that bond to where any harm caused to the child by severing the bond rests at the feet of the parent. Because we find an absence of that proof, we reverse and remand for further proceedings consistent with this opinion.

Because the procedural history and statement of facts were discussed at length in our prior consolidated unreported opinion, Division of Youth & Family Services v. D.M., Nos. A-6125-06 and A-6128-06 (App. Div. August 11, 2008) (slip op. at 2-37), it is unnecessary for us to fully detail them here; rather, a summary of the procedural history and statement of facts will suffice to place this appeal in context. However, before stating that summary, it is appropriate to review the general legal principles governing termination of parental rights.


"[T]he right of parents to raise their children is a fundamental one of constitutional magnitude." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). That right, however, is not without limits. In re K.H.O., 161 N.J. 337, 346-47 (1999). Rather, the parents' rights "must be balanced against 'the State's parens patriae responsibility to protect the welfare of children.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 294-95 (2007) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "[P]resumptions 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.

To terminate parental rights and obtain guardianship of a child who has been placed in foster care, DYFS may file a complaint under N.J.S.A. 30:4C-15(c) alleging that termination is in "the best interests" of the child, or under subsection 15(d) alleging that the parents abandoned the child. In re Guardianship of K.L.F, 129 N.J. 32, 36-37 (1992). Where the complaint is brought under the best interests of the child section of the statute, "[g]uardianship cannot be awarded . . . unless the court itself determines that it is in the child's best interests under N.J.S.A. 34:4C-20." Id. at 37. Such actions require proof by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. C.M., ___ N.J. ___ (2010) (slip op. at 30); N.J. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002).

Termination actions brought under N.J.S.A. 30:4C-15.1(a) are decided under a four-prong "best interests of the child" standard, first enunciated by the Court in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and now codified in N.J.S.A. 30:4C-15.1(a). Under that standard, parental rights may be terminated only when:

(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 [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

The "four [prongs] enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. With these principles in mind, we now state the summary of the procedural history and statement of facts leading to this appeal.


The Division first became involved with D.M. and her family in June 2004, when it received a referral concerning an alleged incident of domestic violence between D.M. and F.M. During his involvement with D.M., caseworker Nicholas Mangold learned that D.M. suffered from multiple sclerosis and took medication for the illness. She also suffers from severe scoliosis. Although Mangold responded to several other referrals between June and October 2004, he never substantiated abuse or neglect by either parent.

On March 28, 2005, another DYFS caseworker transported D.M. to the Morris County Courthouse to obtain a temporary restraining order against F.M. Because the caseworker observed what she described as D.M. displaying "inappropriate and bizarre behavior," DYFS removed S.M. from her parents' care that day. On July 12, 2005, following a fact-finding hearing, the court found that D.M. had placed S.M. at risk for abuse and neglect because of D.M.'s emotional instability and erratic behavior. On the same day, the court ordered DYFS to return S.M. to the family home to the physical custody of D.M.'s mother.

On August 23, 2005, DYFS removed S.M. from the family home a second time after learning that D.M.'s mother had left S.M. in the care of D.M. who DYFS believed was unable to properly care for the child because of health issues. On that day, the court entered an order placing S.M. into foster care with Mr. and Mrs. H., where S.M. has remained since. Mr. and Mrs. H. have three children: two girls, ages nine and eleven; and a boy, age five.

On August 23, 2006, DYFS filed a guardianship complaint seeking to terminate the parents' parental rights. The matter was tried over four days in May 2007. Much of the case centered around the parties' experts.

Dr. Rachel Jewelewicz-Nelson, a psychologist, testified on behalf of DYFS. Dr. Jewelewicz-Nelson determined that D.M. and F.M. "would not be able to parent S.M. in the reasonably foreseeable future" and that "S.M. would be harmed if she were to wait any longer for permanency." D.M., supra, slip op. at 18. The doctor concluded that S.M. should be "'freed for adopting by her foster parents.'" Id. at 15.

Dr. Frederica Brown, a psychologist, testified on behalf of the Law Guardian. Although Dr. Brown determined that S.M. was "happier" with her biological parents than with her foster parents, she did not recommend reunification. Id. at 21. Instead, the doctor "advocated for an 'open adoption' with some 'monitored supervision with the parents.'" Id. at 23.

Dr. Susan Herschman, a psychologist, testified on behalf of D.M. and F.M. Dr. Herschman determined that a strong bond existed between S.M. and her parents, but that S.M. also "'feels comfortable'" with her foster parents. Id. at 25. The doctor "opined that termination of parental rights would do more harm than good, based upon the bond she observed between S.M. and defendants, and the fact that there had never been 'any obvious abuse or neglect of [S.M.].'" Ibid. Ultimately, Dr. Herschman concluded that with additional services provided to S.M. and her biological parents, reunification would be successful. Id. at 26. After finding the opinions of Drs. Jewelewicz-Nelson and Brown more persuasive than that of Dr. Herschman, the trial court entered an order on May 22, 2007, terminating D.M.'s and F.M.'s parental rights. Both parents appealed.

We reversed, determining that DYFS had "failed to present clear and convincing evidence that S.M.'s 'safety, health or development' has been or will continue to be endangered by the parental relationship," as required by N.J.S.A. 30:4C-15.1(a)(1). Id. at 39. We concluded that "[i]n the absence of such proof, termination of appellants' parental rights was improper." Id. at 39-40. In reaching that conclusion, we "noted, the 'conduct' upon which the trial judge relied in weighing the first statutory factor was F.M.'s drug abuse history, D.M.'s multiple sclerosis, and some domestic violence incidents between appellants." Id. at 45-46. However, as stated infra, we determined that "there [was] no clear and convincing evidence of record that any such conduct 'endangered' S.M." Id. at 50.

We also concluded that the trial court erred in finding that DYFS had satisfied the second and fourth prongs of the best interests of the child standard. Id. at 47-51. As to the fourth prong, we stated:

S.M. has been in her current foster care placement since August 23, 2005. We are, therefore, mindful that our reversal of appellants' termination order will require additional proceedings in the Family Part. We note that the trial evidence of S.M.'s bonding with her foster parents was mixed, at best. By contrast, as noted, all experts acknowledged that S.M. maintained a loving relationship with appellants. Dr. [Jewelewicz-Nelson] described S.M. as "very quiet and very constricted" during the bonding evaluation with the foster parents. The doctor emphasized S.M.'s need for permanency because, "for almost two years[,]" the child "has been living with a sense of uncertainty and lack of affiliation[.]"

Defendants may have "personality deficits that have a negative impact on their capacity to parent[,]" as Dr. [Jewelewicz-Nelson] opined in her report. Notwithstanding these deficits, the record contains evidence of a strong loving bond between S.M. and her natural parents as well as evidence of the lack of such a bond with her foster parents. Once again we note the lack of any evidence of abuse, neglect or endangerment of S.M. resulting from her parents' "personality deficits[.]"

Dr. Brown testified that S.M. showed no "enthusiasm" towards her foster mother; they engaged in no eye contact and no make[-]believe play which the doctor regarded as "not a good sign." Dr. Brown described S.M.'s foster care placement as a "caretaker arrangement" and recommended it "in the absence of something better[.]"

On remand, the Family Part must examine the present state of S.M.'s bond to her foster parents as well as appellants' current situation. We have concluded that there is not clear and convincing evidence to support the decision to terminate appellants' parental rights. "That does not mean, however, that termination may not be an appropriate resolution." J.C., supra, 129 N.J. at 25. If DYFS presents "substantial evidence of the harm that may come to [S.M.] if separated from [her] foster parents[,] . . . that evidence may not be disregarded, even though, as the record now stands, it does not meet the strict statutory and constitutional standards that govern the termination of parental rights." Ibid.

If, however, DYFS is unable to offer clear and convincing evidence that, at present, "moving [S.M.] . . . will, to a reasonable psychological certainty, cause serious harm," In re K.L.F., 129 N.J. 32, 44-45 (1992), then appropriate steps must be taken to return S.M. to her natural parents.

"The standard is not that the end result cause no pain or trauma but that the child be kept from [her] parents only to avoid serious and lasting harm." Id. at 45. "We are compelled to note that much of the bonding that has taken place in this case could have been avoided if" S.M. had not been improperly removed from appellants' custody in the first place. Ibid. [Id. at 50-52.]

Accordingly, we remanded to conduct an expeditious evidentiary hearing as to whether S.M. had bonded with her foster parents, and if that question was affirmatively answered, to further determine whether the breaking of that bond would cause the child serious psychological or emotional harm. Id. at 52. We also directed the trial court to evaluate the biological parents' current situation and the present relationship between them and S.M. Id. at 51-52. Recognizing that S.M. last visited with her parents on June 12, 2007, when she was permitted a "goodbye" visitation following the trial court's order terminating parental rights, we directed the court on remand to permit D.M. and F.M. to have sufficient visitation with their daughter for the experts to determine the relationships between S.M. and her biological parents and between S.M. and her foster parents. Ibid.

On remand, the court entered orders directing that D.M. and F.M. undergo psychological evaluations, S.M. undergo therapy, DYFS permit TSVP*fn1 supervised visitation between S.M. and her parents, and bonding evaluations be conducted of S.M. and her biological parents and of S.M. and her foster parents.*fn2 D.M. attended visitation sessions on a weekly basis with her daughter between February 24 and April 21, 2009.

At the Division's request, Dr. Jewelewicz-Nelson conducted bonding evaluations between S.M. and members of her foster family on December 8, 2008. The doctor also conducted a psychological evaluation of D.M. on February 17, 2009, and March 3, 2009, and a bonding evaluation between D.M. and S.M. on April 1, 2009. The doctor opined that "[S.M.] is definitely emotionally bonded to her foster family" and that her "bond with her foster parents has increased and strengthened since" her last evaluation approximately one year prior. She opined that adoption was appropriate and in S.M.'s best interests because "[t]he psychological and emotional risks to [S.M.] should she not be adopted [by her foster family] are significant." She stated that S.M. "does not have a relationship with [her biological parents] that is based on nurturing, trust, security and stability." The doctor concluded that another transition for S.M. would increase the probability of "irreparable and enduring harm" to her.

D.M. again engaged the services of Dr. Susan Herschman. Dr. Herschman conducted a bonding evaluation between S.M. and her foster mother on March 16, 2009, a psychological evaluation of D.M. on April 16, 2009, and a bonding evaluation between D.M. and S.M. on April 20, 2009. As to D.M., the doctor noted that D.M.'s "health has improved and she has become increasingly more independent and responsible for her own health and physical care." Elaborating on D.M.'s independence, the doctor stated that "[w]hile, in the past, she was dependent on [F.M.], she now realizes that she cannot let his issues interfere with the reunification of [S.M.]. [D.M.] has proven that she is able to reside on her own, cook, shop, and organize transportation to get her to different appointments." Concerning her illness, the doctor noted that "[w]hile [D.M.] remains on ...

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