June 28, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF T.W.A., T.M.P., AND T.W.P., MINORS.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
L.M.A. AND T.P., DEFENDANTS-RESPONDENTS.
IN THE MATTER OF THE GUARDIANSHIP OF T.P. AND N.P., MINORS.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF T.P., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-201-07 (A-4986-07, A- 4987-07, and A-3979-08) and FG-07-24-09 (A-4127-08 and A-0217-09).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 5, 2010
Before Judges Cuff, Miniman and Waugh.
In this opinion, we address five appeals that have been consolidated for the purposes of the opinion. Three of the appeals (A-4986-07, A-4987-07, and A-3979-08) were argued, while two (A-4127-08 and A-0217-09) were submitted on the papers. All of the appeals involve the parental rights of L.M.A. (fictitiously Lillian) and T.P. (fictitiously Todd),*fn1 who are the biological parents of seven children. The children, to whom we refer by fictitious names, are Tony, born in June 1996; Nancy, born in February 1998; Tom, born in September 1999; Tim, born in April 2002; Tara, born in December 2003; Ted, born in July 2005; and Teresa, born in August 2007.
Tom is not directly involved in these appeals because Lillian and Todd voluntarily surrendered their parental rights to Tom in March 2002. In two separate proceedings, the Family Part terminated Lillian and Todd's parental rights with respect to the four youngest children; Tim, Tara, Ted and Teresa. Lillian and Todd have appealed those decisions.
Tony and Nancy, the two oldest children, were returned to Lillian's custody after the Family Part judge determined that the Division of Youth and Family Services (Division) had not met the burden of proof required to terminate Lillian and Todd's parental rights as to them. The Division has appealed that decision.
Although we will address each case separately with respect to the trial judge's application of the four prongs that compose the best interests of the child test, N.J.S.A. 30:4C-15.1(a); New Jersey Division of Youth & Family Services v. M.M., 189 N.J. 261, 280 (2007), we make the following preliminary observations. Although Lillian and Todd are the parents of all seven children, they resided together for relatively brief periods of time due to Todd's several incarcerations and an extended separation before his most recent incarceration. There were no allegations of direct abuse of the children by Todd, and the case, as it related to him, turned primarily on his extended absences and unwillingness to parent or protect the children from abuse or neglect by Lillian.
There were three removals in this case. The first was in 1999, when the three oldest children, Tony, Nancy, and Tom, were removed as the result of Lillian's serious physical abuse of Tom. Lillian pled guilty to endangering the welfare of a minor, N.J.S.A. 2C:24-4, with respect to that incident. Todd was incarcerated at the time of removal.
The second removal was in 2006, after the two oldest children, Tony and Nancy, had been returned to Lillian and three more children, Tim, Tara, and Ted, had been born into the family. The removal was premised on Lillian's physical abuse of Nancy, as well as her neglect of all five children. She pled guilty to aggravated assault, N.J.S.A. 2C:12-1(b), with respect to that incident involving Nancy. Todd was incarcerated at the time of the second removal. The third removal, in 2007, followed almost immediately upon the birth of the seventh child, Teresa, who was born while Todd was incarcerated and the other children were in foster care.
In our view, the most difficult issue presented in these appeals was not whether the terminations were warranted, but whether the return of Tony and Nancy to Lillian was appropriate. Given Lillian's history of two separate and significant episodes of abuse, between which she was the recipient of services from the Division, as well as doubts about Lillian's ability to parent by the two mental health experts whom the trial judge found to be most reliable, we would not ordinarily have expected that any of the children would be returned to her custody, especially a child who was physically abused and the sibling who participated in that abuse at Lillian's direction. As was the trial judge, we were required to balance legitimate and well-founded concerns that the stress resulting from the return of any child would prompt another episode of abuse against the opinion of the expert whom the judge found most reliable that Lillian would be able to parent Tony and Nancy, and only those two, and that the termination of her parental rights as to them would most likely cause them more harm than good.
For the reasons set forth in this opinion, we affirm all of the orders on appeal with respect to Lillian. However, in affirming the return of Tony and Nancy to Lillian, we do so with the understanding that there is ongoing Title 9 litigation. In addition, we affirm without prejudice to the Division's ability, acting in good faith, to seek termination in the event there are new facts that, taken together with the facts that underlay these appeals, would justify such action. As to Todd, we affirm the orders terminating his parental rights as to the younger children, but reverse the order that denied termination of his parental rights to Tony and Nancy. We do so because, after a careful review of the record, we have concluded that the Division proved by clear and convincing evidence that Tony and Nancy's best interests require such termination.
The record reveals the following facts and procedural history. Although we appreciate that the case of each parent and child must be decided on its own merits, we have concluded that they cannot be reviewed without reference to the entire history of the family unit, and Lillian and Todd's relationship to all of their children and to each other.
Lillian became known to the Division as a minor in April 1981, after the death of her three-year-old sister. The Division again became involved with her family when Lillian and her other sister were allegedly sexually abused by their stepfather, at which time Lillian entered foster care. The charges against the stepfather were later dismissed, and he continued his relationship with Lillian's mother. Lillian eventually returned home, and the Division closed the case in June 1996.
By 1999, Todd had a criminal history, having pled guilty to various offenses, including theft by unlawful taking (October 12, 1994, and January 30, 1996), criminal restraint (November 12, 1997), and possession of cocaine (December 11, 1998). He was incarcerated at the time of the Division's initial involvement with his children.
The Division received its first referral on October 25, 1999. A social worker at the University of Medicine and Dentistry of New Jersey reported that Lillian had brought her one-month-old child, Tom, to the emergency room two days earlier because of dehydration, vomiting, and diarrhea. Tests revealed that Tom had bilateral skull fractures of different ages, multiple bleeds in the brain, and two possible rib fractures. Lillian denied any knowledge of the injuries, and could not explain how they occurred. She claimed that Tom had stayed overnight with her mother two weeks earlier. The Division substantiated the physical abuse allegations and effectuated a removal of the three children. On October 29, 1999, Tony (then age three) and Nancy (then age one) were placed in foster care, although Tom physically remained in the hospital.
Lillian was arrested and charged with child endangerment. On November 1, 1999, she signed a case plan and agreed to attend parenting classes and to submit to a psychological evaluation.
On November 12, 1999, the hospital discharged Tom to his foster family. On November 17, 1999, the Division's pediatric consultant submitted a report which concluded that Tom's multiple injuries had been inflicted and were potentially serious.
On November 18, 1999, Diane W. McCabe, Ed.D., performed a psychological evaluation of Lillian, who, at the time, was unemployed and enrolled in a GED class to attain her high school diploma. McCabe reported: "The profile of this parent argues for caution in granting parental rights. The possibility of cognitive slippage impairing judgment and diminishing adequate control over labile personality features is sufficient to warrant discretion." She recommended Lillian receive counseling on anger management and impulse control.
On December 10, 1999, the Division filed a Title 9 action against Lillian, seeking the care, custody, and supervision of Tony, Nancy, and Tom. An order to show cause was also entered by the Family Part.
On December 29, 1999, Alvaro Gutierrez, M.D., conducted a psychiatric evaluation of Lillian. She continued to deny any knowledge of Tom's injuries, and blamed the hospital. Gutierrez diagnosed Lillian with a personality disorder, and recommended that she receive psychotherapy, complete a psychological evaluation, and submit to random drug screening. He also recommended supervised visitation if she followed those recommendations. The Division subsequently arranged for biweekly one-hour visits.
On February 24, 2000, Lillian completed an eight-week parenting skills training program at the WISE Women's Center of Essex County College. On February 28, 2000, she began psychological treatment with Linda S. Cameron, Psy.D. In her first progress report dated May 21, 2000, Cameron noted that the results of Lillian's parenting stress inventory did not suggest a profile typically associated with risks of abuse or neglect. Nevertheless, she observed that Lillian isolated herself from her feelings, disassociated herself from her emotional life, misread her environment, and maintained a distorted view of reality. Cameron recommended that Lillian continue individual counseling and participate in an incest and sexual abuse support group. She also recommended a session with Todd, who had recently been discharged from prison.
Cameron met with Lillian and Todd on August 1, 2000. In a report dated September 20, 2000, she noted that Lillian understood the extent of Tom's medical problems, and was willing to make the necessary behavioral changes to parent her children effectively. She noted, however, that Lillian had an "emotional, protective defense" that was complicated by her cognitive limitations. Cameron found Todd "to be a supportive partner who expressed a sincere interest for his children." She recommended that Todd receive a psychological and child abuse/neglect risk assessment, and that plans proceed "for family re-unification with intensive in-home supports and brief family counseling (possibly with [Todd]) during [the] adjustment period."
On September 8, 2000, Lillian pled guilty to endangering the welfare of a child. In October 2000, she was sentenced to probation for five years.
Meanwhile, on September 29, 2000, Daniel E. Williams, Ph.D., saw Todd for a psychological evaluation. He concluded that Todd had the intellectual and emotional resources to meet his children's needs. In his opinion, the children would not be at risk if placed in Todd's custody, provided he completed parenting skills training.
On November 8, 2000, at the Division's request, Andrew P. Brown, Ph.D., conducted a psychological evaluation of Lillian. She continued to claim that she was unable to explain what had happened to Tom and maintained her innocence with respect to any abuse, even though she had pled guilty to child endangerment in September 2000. Brown found that Lillian had personality characteristics consistent with mania and paranoia, that she suppressed the magnitude of critical events, and that she exercised poor judgment which placed her and her children in potentially harmful situations. He recommended that Lillian attend an incest survivors group prior to consideration of reunification, and, if reunited, that the Division monitor the family closely for at least six months.
On February 6, 2001, the Family Part judge apparently held a permanency review hearing at which time the judge found that the Division's plan for termination of parental rights was appropriate and acceptable for Tony, Nancy, and Tom.
On February 20, 2001, Brown conducted a psychological evaluation of Todd. Todd admitted to past drug use and involvement in criminal activities starting when he was sixteen-years old. Brown concluded that Todd had difficulty controlling his impulses, and recommended that he attend classes on parenting skills, anger management, and substance abuse. Brown believed that if Todd completed these programs, engaged in no further episodes of anti-social activities, and demonstrated employment and adequate housing, the children would be at minimal risk of abuse and neglect in his custody. According to Todd, he attended counseling and treatment, but there is no evidence in the record that shows Todd successfully completed any of Brown's proposed programs.
In June 2001, the Division filed an order to show cause and a Title 30 complaint to terminate parental rights as to Tony, Nancy, and Tom.
On February 26, 2002, Robert Raymond, Ph.D., saw Lillian and Todd for psychological evaluations. In his report dated March 5, 2002, he wrote that little had changed in Lillian's life even though she had attended the mandated programs. Raymond expressed concern about Lillian's ability to sustain herself in a mature and independent manner, and to provide for her fourth child whose delivery was due the following month. He believed that the return of the three existing children would exacerbate the challenges Lillian already faced.
Raymond concluded that Todd lacked the maturity and responsibility to sustain a parenting role with young children, even without the introduction of a newborn child. He noted that Todd had been in jail during the births of his three children, and that neither their births nor removals motivated him to change his behavior.
The next month, Todd was arrested and charged with receiving stolen property and possession of a handgun. On November 22, 2002, he pled guilty to burglary, and was eventually sentenced to five years in State prison.
On March 26, 2002, Lillian and Todd voluntarily surrendered their parental rights to Tom and, on April 12, 2002, the Family Part judge filed an order terminating those rights.
Tim was born on April 17, 2002. The Division received a referral about Tim's birth two days later. The caller suggested that the Division perform a home assessment before the baby's release from the hospital. The Division concluded that "child welfare/protective service concerns" existed, and sought care and custody of Tim. However, it placed him in Lillian's physical custody.
On April 25, 2002, Raymond advised the Division that he had reconsidered his negative view of Lillian's ability to meet the goal of reunification based on his re-interview of Lillian, his interview of her mother, his consultations with Cameron, Lillian's voluntary surrender of Tom, and the birth of Tim. In his revised opinion, he stated that reunification might still be possible if Lillian received more intensive therapy and support from Cameron and the Division provided a home attendant or parenting aid.
On May 16, 2002, the Division filed a Title 9 complaint and an order to show cause seeking temporary custody of Tony and Nancy while their parents continued to receive services. On May 28, 2002, the Division amended the Title 9 complaint to include Tim, who was living with his mother at that time.
On December 10, 2002, the Division changed its goal to reunification for Tony and Nancy with the condition that the family receive numerous services. On January 9, 2003, the Division reunited Tony and Nancy with Lillian. The Title 9 case remained open for supervision. Lillian and Todd were married on February 14, 2003.
On November 20, 2003, the Division received a referral from an unidentified caller about Lillian's children. The caller stated that Lillian was pregnant, that she treated Tony differently from her other children, that she beat Tim, and that on one occasion she had given Tim a "busted lip" when she pushed him off her leg. The Division's investigation failed to substantiate the allegations. The next month, Lillian gave birth to Tara.
On March 11, 2004, the Family Part judge dismissed the Title 9 complaint with respect to Tony, Nancy, and Tim. The judge ordered that Todd notify the Division when he was released from prison and the halfway house, and that he have no unsupervised contact with his children until he successfully completed substance abuse and psychological evaluations. On July 21, 2004, the Division closed its case.
In July 2005, Lillian gave birth to Ted.
On March 24, 2006, the Division received a referral from a social worker at Madison Avenue School, stating that a teacher had noticed a substantial amount of blood on Nancy's hair and hair ties. The school nurse also observed blood on Nancy's sternum area and old burn marks on her back. Nancy, then eight years old, told the social worker that her mother had punished her by hitting her on the head with a belt buckle. She said blood from the beating "flew" onto the walls, the doorknob, and her clothing. Nancy also said her mother told Tony, then nine, to "get on" her, meaning to beat her. Tony punched her, "busted" her lower lip, and twisted her leg. Her mother told her not to tell anyone about what happened, or "it would be her last day alive." She also explained that her mother and Tony had previously burned her back with an iron.
The school notified emergency medical services, which transported Nancy to the hospital for further evaluation. The medical report noted that she had sustained an ulnar fracture in November 2005, and had old scars on her forehead from another belt buckle incident. The Division was notified, and the worker who went to the hospital noticed that Nancy's underwear was black from dirt, her clothes and socks were visibly filthy, and she smelled like "poop."
Later that day, the Division removed Tony, Nancy, Tim, Tara, and Ted from their mother's care pursuant to a notice of emergency removal, N.J.S.A. 9:6-8.29 and 9:6-8.30. A Division worker who observed their home described its condition as deplorable. The children's medical examinations revealed that they all had scabies.*fn2 Tony was described as obese and malodorous, with poor hygiene. Tim had lead poisoning, multiple bruises of various ages, and was "extremely unkempt." Tara had asthma.
Lillian was arrested and charged with aggravated assault and endangering the welfare of a child. She denied burning or hitting Nancy, and denied telling Tony to punch his sister.
On March 24, 2006, Nancy wrote to her "Mommy":
I hope you stop hitting me and stop telling bub to hit me [too]. I know you get mad but you can't do this to me so I hope when I go home you don't hit me. I hope you be nice to me because you wouldn't like if somebody hit you and tell your brother to hit you, burn you, and hold you down when you is getting hit with the belt. Love Nan.
What I will like for you to do for me is protect me, save me from getting killed because I don't deserve it, I help clean up the house, I help cook, and I help you clean up [other] rooms.
She also wrote to Todd:
I wish you could come home because there are terrible things that are happening to me. Can you stay home? I don't want nothing else to happen to me. Even [now] that your leg hurts I know you could make it.
Please come home!
Lillian subsequently claimed that Division personnel forced Nancy to write the letters.
The Division initially placed the children with their maternal grandmother, D.E., and her husband, N.E., but subsequently determined that the home was unsafe because of the history of N.E.'s alleged sexual abuse of Lillian and her sister. On March 31, 2006, the Division placed Tim, Tara, and Ted in the foster home of a couple we will refer to fictitiously as the Moores. On April 3, 2006, the Division placed Tony and Nancy in separate foster homes.
On March 28, 2006, the Division filed a Title 9 complaint seeking the care, custody and supervision of Tony, Nancy, Tim, Tara, and Ted. On April 20, 2006, Lillian entered into a stipulation that she had beaten Nancy with a belt on March 22, 2006.
On June 8, 2006, Kendra Haluska, Psy.D., conducted a psychological evaluation of Lillian to assess her parenting ability. Lillian explained her family problems as follows:
I was going through so much. I had to get another place for the kids, and trying to get help from welfare, and constantly running every single day, so many things to have to do and then can't get the help I need. I wanted parenting classes because I don't ever want to touch my kids again. I can't see life without my kids.
At the time, Lillian was living with her mother. She described her mother as supportive, and said she could also turn to her church for help.
Haluska concluded that Lillian had difficulty coping with stress caused by caring for five children in substandard living conditions. She recommended Lillian receive a psychiatric evaluation, complete an anger management program, attend weekly individual psychotherapy to address parenting issues, and continue supervised visitation. She also recommended that the Division continue to monitor the family closely.
In June 2006, supervised visitation began at a Division office through the Tri-City Peoples Corporation (Tri-City) Supervised Visitation Program. After June 2007, the visits took place at Tri-City. Tri-City reports reflect that the family interacted well and the children were happy. The supervised visits continued every other week through October 2007, and then weekly at least through October 22, 2008.
Meanwhile, in the summer of 2006, Lillian began attending anger management and parenting skills classes at the WISE Women's Center. While transporting Nancy to a parenting skills observation session on August 10, 2006, a Division worker noticed several healed stitches on her arm. Nancy told the worker that her mother had hit her with a bat, and that it had happened on more than one occasion. Nancy said her mother also told Tony to hit her, and that her mother asked her brother to hold an iron behind her "so that every time she tried to run or jump back she would get burned."
On October 10, 2006, Lillian completed the sixteen-hour parenting skills program. She also attended individual therapy sessions with Joyce Mierzejwski at the Family Center in Verona from September 2006 to August 2008. The sessions addressed issues of anger, parenting, and self-esteem. They continued on a regular basis except for a temporary gap arising from a delay in the Division's payments. Mierzejwski issued a series of reports which noted Lillian's compliance with therapy, motivation to meet the Division's goals, efforts to understand her past mistakes, and attempts to provide a safe and healthy home for her children.
The Division also provided services for the children. From June 21 to September 21, 2006, Tony attended therapy sessions at ASun Star Consulting. From October 11 until December 20, 2006, Nancy attended the Children's Socialization and Abuse Training Group at the Regional Diagnostic and Treatment Center at Newark Beth Israel Medical Center. The purpose of the training group was to assist physically or sexually abused children in developing self-esteem along with self-protection and social skills.
Meanwhile, on August 2, 2006, the Family Part judge entered an order directing the law guardian to obtain an independent evaluation of Lillian and her children, and also directing Lillian to attend a psychiatric evaluation and psychotherapy. According to a Division report, Todd was released from prison around this time.
In August 2006, Susan Cohen Esquilin, Ph.D., the law guardian's expert, conducted a psychological evaluation of Lillian and bonding assessments of Lillian and her children. In her report dated September 10, 2006, Esquilin stated that the three younger children were living with the Moores, who expressed an interest in adopting them. She noted that Nancy's foster mother had requested her removal and, during the course of the evaluation, Nancy was transferred to another foster home. The report also stated that Tony's foster parent was not committed to adoption.
Nancy understood that she had been placed in the Division's custody until her mother learned how to calm down and take care of her. She also told Esquilin that Lillian assaulted her more than once. Nancy said that she received stitches after her mother hit her arm with a bat, and had marks on her legs and face where her mother hit her with a belt. She described her mother as "funny, nice at times... can be mean," and her father as nice. Nancy considered herself as a primary caregiver for her younger siblings.
Tony told Esquilin that he tried to keep his younger siblings with him so they would not get "in trouble." He said Lillian sometimes spanked them with a belt or her hands, if they were "really, really bad." He said Nancy was "picked on," but denied that her arm injury was caused by a bat. When confronted with the fact that his story differed from his sister's account, Tony became tearful but did not respond. Tim also told Esquilin that his mother and father would "whup" him with a belt on his "booty" and legs, and that his mother hit Nancy and him with a bat. In Esquilin's opinion, Tony and Nancy were "quite parentified," meaning that Lillian "relied on them to support her and help care for the younger children."
At the bonding sessions, Esquilin observed that the foster parents were more aware of potential danger to the children than Lillian, explaining that they removed certain objects from the play area whereas Lillian failed to notice Tara and Tim putting marbles in their mouth. She noted that Tony and Nancy had a primary attachment to Lillian.
Esquilin believed the realities of Lillian's life were overwhelming, noting that she was raising five children between the ages of one and ten with very limited financial resources in substandard housing, while her husband was often absent. She identified several risk factors which contributed to Lillian's problems, including: an inability to identify her own stress; lack of external supports; parentification of her older children; and lack of adequate recognition of potential danger to her children. She concluded that Lillian lacked the competency to provide a safe environment for her children at that time or any time in the near future. She recommended termination of parental rights as to the three younger children based on their ages, their attachment to the foster parents, and the fact that they were in a foster home with parents who wanted to adopt them.
Esquilin considered the situation with respect to Tony and Nancy more complicated, citing their expressed wishes to return to Lillian, the decreased importance of safety issues given their ages, their placement in foster homes that were not interested in adoption, and that adoption at their ages was less likely to occur. For those reasons, she recommended that (1) Tony return to his mother's home; (2) the Division consider placing Nancy in the Moore foster home and work towards reunification; and (3) Lillian, Tony, and Nancy participate in family therapy. She further recommended that Lillian receive therapy to develop (1) an awareness of her own reactions to stress, (2) healthy supportive relationships with other adults, (3) a plan to get her high school diploma and a job, and (4) a cordial relationship with the adoptive parents of her younger children.
In September 2006, Lillian was arrested and incarcerated a second time for the pending March 2006 endangering and assault charges because of a missed court date. As a result, Esquilin prepared an addendum dated September 13, 2006, in which she recommended postponing for six months any decision regarding Lillian's reunification with Tony and Nancy.
At the Division's request, on October 6, 2006, Yasir Ahmad, M.D., performed a psychiatric evaluation of Lillian. He reported that she had shown an earnest and strong desire to care for her children, and recommended continuation of individual therapy. He did not believe Lillian posed a danger to her children.
On October 24, 2006, the Family Part judge held a hearing on the Division's application for an exemption from the reasonable efforts requirement as to Lillian. The judge reserved decision, pending Todd's appearance once the Division was able to locate him, and the presentation of expert testimony on behalf of Lillian and Todd.
On November 2, 2006, Todd appeared at court, but tested positive for heroin.
On November 8, 2006, Lillian pled guilty to third-degree aggravated assault. She subsequently received a sentence of three years probation.
In a report dated December 26, 2006, Mierzejwski opined that Lillian was capable of caring for her children and that she posed no immediate danger to them.
On January 9, 2007, the judge placed Tony, Nancy, Tim, Tara, and Ted under the continuing care and custody of the Division, directed Todd to attend substance abuse evaluation and treatment, and ordered Lillian to continue to attend counseling. He also made a preliminary finding that it would be against the children's best interests to return them to Lillian based on the "overwhelming evidence and uncontroverted documentation" that her home was roach and rodent infested and that two of the children had scabies. However, the judge reserved his final decision.
On February 2, 2007, at the Division's request, Lillian saw Frank J. Dyer, Ph.D., for a psychological evaluation. After administering psychological tests, Dyer concluded that neutral findings contrasted starkly with documented reports of Lillian's behavior. Despite her compliance with services and "a good deal of psychotherapy," he found she was still unable to offer any credible explanation for her children's injuries or acknowledge the seriousness of her actions. For example, he noted that Lillian admitted hitting Nancy with a belt, but explained that she struck her on the "butt" and the belt buckle must have unraveled and hit Nancy's head.
In Dyer's opinion, Lillian's behavior suggested a "dangerously sadistic pattern" and "fundamental defect in [her] capacity to experience normal maternal feelings of affection." Given Lillian's extremely poor prognosis for change, and the high degree of risk of injury to any child returned to her care, Dyer did not consider her a viable candidate for ongoing custody of the children.
On February 6, 2007, at the Division's request, Vivian Shnaidman, M.D., evaluated Lillian to determine her fitness as a parent. She diagnosed Lillian with intermittent explosive disorder, and a personality disorder with narcissistic features. Despite Lillian's expressed good intentions to refrain from abusing her children, Shnaidman found she had repeatedly hurt them. In her report dated March 1, 2007, she noted that the children feared their mother and did not want to live with her. She further noted that Lillian continued to make excuses for her behavior. Shnaidman believed that, as long as she remained in denial about any wrongdoing, Lillian would continue to abuse her children whenever she felt stressed. She did not recommend that Lillian regain custody in the foreseeable future.
Meanwhile, on February 19, 2007, Lillian saw her expert, Gerard A. Figurelli, Ph.D., for a psychological evaluation. In Figurelli's opinion, Lillian was capable of adequate parenting, provided she was not overwhelmed by stress.
On February 27, 2007, the judge entered a permanency order approving the Division's plans for termination of parental rights with the goal of foster home adoption for Tim, Tara, Ted, and Nancy, who was to be placed with her younger siblings. Because Tony was not in a home committed to adoption, the judge directed the Division to determine if the Moore foster family would consider adopting him. In reaching his decision, the judge relied on Lillian's history and Dyer's report, and noted that Todd, who was still in default, had tested positive for heroin at his November court appearance.
The same day, the judge entered a compliance review order directing that Todd, once he was located by the Division, attend substance abuse evaluation and treatment, that Lillian continue counseling, and that Tony and Nancy receive treatment with ASun Star. He granted both parents weekly supervised visitation. He denied the Division's motion for a no reasonable efforts order, finding that it would be fundamentally unfair to stop services for Lillian when she had been compliant. The judge ordered the Division to file a Title 30 complaint, and to continue to provide Lillian with services.
On March 30, 2007, the Division placed Nancy in the Moore foster home. According to the foster mother, Nancy arrived with adjustment issues because her self-esteem was very low. Nancy had "meltdowns," hid under the covers, and would not express her feelings.
On May 3, 2007, the Division filed a Title 30 complaint and order to show cause, seeking to terminate Lillian and Todd's parental rights to Tony, Nancy, Tim, Tara, and Ted. The case goal for Nancy, Tim, Tara, and Ted was foster home adoption. The case goal for Tony was select home adoption.
On May 10, 2007, Lillian filed a domestic violence complaint against Todd, and obtained a temporary restraining order. The complaint alleged that on the previous day, Todd had entered Lillian's apartment with another woman and proceeded to push Lillian onto the couch, punch her in the face, "bust" her lip, and choke her. Lillian also alleged that Todd threatened to push her through a wall and knock her out, and pulled out a razor blade after asking if she wanted to die. She was six months pregnant at the time. According to Lillian, there were other unreported incidents of abuse, and one reported incident in 2002 or 2003.
On May 29, 2007, Tony told a Division worker that his foster mother was moving and, if he could not return to Lillian, he wanted to live with his siblings.
On June 12, 2007, Lillian obtained a final restraining order against Todd. However, on July 27, 2007, Lillian successfully requested that the final restraining order be dismissed so that the parties could attend counseling.
In May and June 2007, Dyer conducted bonding evaluations of Nancy, Tim, Tara, and Ted with Lillian and their foster mother. He also conducted a bonding evaluation of Tony and Lillian. In his report dated August 2, 2007, Dyer stated that Nancy liked the Moore foster home, but wanted to return to Lillian. Although he believed Nancy was profoundly attached to Lillian and would suffer a severe loss if completely separated from her, Dyer nevertheless recommended termination of Lillian's parental rights given her poor prognosis for parenting Nancy in a non-abusive manner. He also advised against reunification of Lillian with Tony because of Lillian's poor parenting history. However, he recognized that Lillian had never physically abused Tony and that the separation would cause Tony severe psychological harm.
The Moore foster mother informed Dyer that she wanted to adopt the five children. If Tony did not join her household, she wanted the other children to have contact with him. She expressed a willingness to consider supervised post-adoption contact between Lillian and the children.
On July 27, 2007, Figurelli conducted his second psychological evaluation of Lillian, and again concluded that she was able to act adequately in a parenting role when not overwhelmed by stress. On August 14, 2007, Lillian gave birth to Teresa. Figurelli was informed of the birth and noted, in his subsequently released report, that he believed Lillian could adequately care for her infant child "with the assistance of an in-home therapeutic monitor, formal therapy services, and ongoing parenting instruction."
The Division placed Tony in the Moore foster home on August 16, 2007.
On August 22, 2007, the Division received a referral that Lillian had given birth to Teresa eight days earlier. The same day, the Division placed the baby in its custody by means of an emergency removal, based on the mother's history of child endangerment. The Division subsequently placed Teresa in the foster home of a couple we refer to fictitiously as the Minors.
On August 24, 2007, the Division filed a Title 9 complaint and order to show cause, for the custody, care and supervision of Teresa. The Division alleged that Teresa was at risk due to Lillian's previous history of child endangerment and negative mental health reports.
Esquilin conducted an updated evaluation of the family and released her findings in a September 16, 2007 report. Lillian continued to deny responsibility for Tom's injuries, claiming she had left him with her mother four days before the Division was notified. Esquilin found no substantive change in any of the risk factors she had previously identified in 2006. In her opinion, the continued presence of those factors and Lillian's history of abuse made the children's return "a highly risky option." Because of their weak attachments to Lillian, Esquilin believed Tim, Tara, and Ted would not suffer any enduring harm if parental rights were terminated.
Esquilin described Nancy's attachment to her mother as insecure and ambivalent, noting Nancy's removal from Lillian's care at age one-and-a-half and the following four-year separation, the history of physical abuse after Nancy's return, and Nancy's second removal. Nonetheless, she believed it was in Nancy's best interests to work towards reunification provided she received therapy to repair the mother-daughter relationship. Esquilin described Tony as highly parentified. She did not believe he would suffer any physical harm if returned to Lillian, but would suffer enduring psychological harm if parental rights were terminated.
On September 25, 2007, Teresa's foster parents, the Minors, expressed an interest in adoption. The same day, the Division transported Teresa to her first visit with Lillian. On September 26, 2007, Dyer advised the Division that, based on his extremely negative conclusions about Lillian's parenting capacity and her poor prognosis for change, Teresa would be in danger if placed in Lillian's care.
On October 8, 2007, Figurelli saw Lillian for a bonding evaluation with Tony, Nancy, Tim, Tara, and Ted. He found Tony and Nancy maintained "a significant positive reciprocally emotionally bonded relationship to their mother" and wanted to return to her. The same day, he conducted a bonding evaluation with the foster parents. He observed that Tony and Nancy had adjusted adequately to their foster placement, but recommended reunification given their attachment to Lillian, their recognition of Lillian as their mother, and their developing sense of family connectedness. He concluded that Tony, Nancy, and Tim could separate from their foster parents without experiencing severe or enduring harm, and that termination of their relationship with Lillian would do more harm than good. While recommending that Tara and Tim's relationship with Lillian not be terminated, Figurelli noted that termination of their relationship with the Moores would result in significant emotional loss.
On October 21, 2007, Esquilin prepared an addendum regarding Teresa. She expressed concern about placing the infant in Lillian's care because the same factors which led to her abusive behavior remained. Esquilin, however, believed reunification of the two oldest children with Lillian was possible for several reasons: (1) Tony and Nancy were "less likely to produce high levels of stress for [Lillian] because they [were] so competent in a variety of daily activities and they would be there without having the task of caring for younger children, a task they could possibly fail"; (2) there was no history of abuse against Tony, who seemed the "preferred child"; (3) there was the possibility of improving the relationship between Lillian and Nancy in therapy; (4) the oldest children were more capable of protecting themselves, escaping, or seeking help if Lillian became abusive; and (5) Tony and Nancy would suffer the most emotionally from termination of Lillian's parental rights. She found that the other children had developed a "solid relationship" with the foster parents, and that Teresa had not bonded with Lillian because she was not being raised by her.
The law guardian filed a notice of motion with respect to Teresa on October 23, 2007, seeking a waiver of reasonable efforts under N.J.S.A. 30:4C-11.3(c).
The Division contact sheets for October and November 2007 reflect that Tony and Nancy were happy in their foster home, supportive of their three younger siblings, groomed appropriately, and their needs were being met.
On December 14, 2007, the judge granted the motion for a no-reasonable-efforts order with regard to Teresa, finding that Lillian "had multiple convictions for severe injuries to her child, had a prior history of receiving services," and had her children returned to her followed by subsequent injuries. However, the judge ordered the Division to continue to provide Lillian with services, so she could "present her best case in the guardianship trial for her older children." Those services included psychological and psychiatric evaluations, anger management, counseling, weekly visitation, and transportation.
Following a permanency hearing on January 14, 2008, the judge entered an order approving the Division's plan for termination of parental rights as to Teresa. He determined that it was not safe to return Teresa because of Lillian's history of physical abuse. He further ordered the Division to amend the existing Title 30 complaint to add Teresa.
A Division contact sheet prepared in January 2008 reflected that Tony and Nancy were happy. Nancy told the worker that she would like to return to Lillian, but did not like to be hit and no one hit her in the foster home. She and Tony did not want to be separated from their siblings, and were glad that they could continue to write and call Lillian. In February 2008, a Division worker reported that Nancy and Tony were doing well at home and in school.
On January 18, 2008, Todd pled guilty to aggravated assault charges, burglary, harassment, and unlawful possession of a weapon.
On March 10, 2008, the Division filed an amended Title 30 complaint and order to show cause, which added Teresa. The same day, the judge entered a case management order continuing Tony, Nancy, Tim, Tara and Ted in the custody of the Division pending the outcome of the guardianship proceeding.
Dyer saw Todd at the Essex County jail for a psychological evaluation on March 11, 2008. Todd said he was incarcerated on charges of assaulting Lillian's stepfather, and faced a possible seven-year jail term. He said he "kicked the heroin habit in jail." Todd told Dyer that he was separated from Lillian, and that he wanted the five children in foster care returned to her.
Dyer reported that Todd was of average intellect with "an extremely prominent antisocial dimension to his personality." He believed Todd had a significant problem with drugs, a mood disorder including manic and depressive elements, and an extremely troubled relationship with Lillian. In Dyer's opinion, Todd was not a viable candidate for custody of any of the children given his emotional volatility and aggressive behavior, his denial of wrongdoing, his physical unavailability due to the likely sentence he faced as a repeat offender, and his use of heroin.
On March 22, 2008, Dyer reported on the results of bonding evaluations of the Moore foster parents and Tony (then age eleven), Nancy (then age ten), Tim (then age five), Tara (then age four), and Ted (then age three). At that time, the three younger children had been living with the Moores for more than two years, Nancy for one year, and Tony for seven months. The foster mother said all the children made improvements at home and at school, that Tony was doing well, and that the children visited Lillian every two weeks. Both foster parents expressed their desire to adopt the five children, with the foster father stating that he would consider inviting the children's mother and maternal grandmother to have contact with the children and taking them on family vacations.
Dyer recommended that the Division pursue foster home adoption for the five children. Because Nancy was removed from Lillian's care at approximately eighteen months old, and returned four years later, he believed she lacked the opportunity to form a deep attachment with her mother. Although Nancy indicated her preference to return to Lillian, Dyer did not believe reunification would undo the emotional wounds caused by severe physical abuse. While recognizing Tony's strong bond to his mother, and the enormously painful loss he would feel if contact ceased between them, Dyer recommended that it would be ideal for him to remain with his siblings in foster care and maintain some ongoing contact with Lillian.
On March 28, 2008, Todd was sentenced to seven years in prison with an eighty-five-percent parole ineligibility period, along with several concurrent sentences.
On five days between March 31, 2008, and April 8, 2008, the Family Part judge conducted a trial involving Lillian and Todd's parental rights to Tony, Nancy, Tim, Tara, Ted, and Teresa. In a decision dated April 23, 2008, the judge concluded that the Division established by clear and convincing evidence each prong of the best interests of the child test as to Tim, Ted, and Tara, and terminated Lillian and Todd's parental rights as to those children.
The judge found that Lillian had stipulated to physical abuse, and that Todd's incarceration did not relieve him of the obligation to protect his children from abuse and neglect. He noted that the Division provided extensive services to Lillian and that it was difficult to provide services to Todd due to his incarceration, disinterest, and unavailability. The judge found that neither parent was able to provide a safe home for the children, and that multiple factors established that termination of parental rights would not cause more harm than good.
However, the judge did not terminate parental rights as to Tony and Nancy. Instead, he ordered these children to remain in the Moore foster home with their siblings under long-term foster care, also known as kinship legal guardianship (KLG), and to visit Lillian once a month. He dismissed without prejudice the complaint with respect to Teresa, finding that the Division failed to assess the bonds between the child and her biological and foster parents.
On April 30, 2008, the judge entered a judgment of guardianship as to Tim, Tara, and Ted. The judgment also ordered the Division to (1) offer Lillian three months of biweekly counseling and transportation; (2) keep Tony and Nancy in their foster home, allow them to visit Lillian once a month, and offer them individual counseling; (3) arrange for bonding evaluations of Teresa and submit the results to the court before re-filing a complaint for termination of parental rights; and (4) allow Lillian to continue weekly visits with Teresa.
That same day, the judge entered a permanency order
approving the plan proposed by the Division for adoption of Tim, Tara and Ted. He found the Division had made reasonable efforts to reunify, including psychological, psychiatric, and bonding evaluations, and offering parenting classes, individual therapy, visitation, and transportation. However, he concluded that, based on the evidence from the Division's experts, neither parent had become fit to care for those three children and that the children deserved permanency. In a separate permanency order, the judge denied the Division's plan for Teresa because it failed to produce bonding evaluations.
On June 30, 2008, Dyer conducted bonding evaluations with nine-month-old Teresa and Lillian, and with Teresa and her foster parents. The foster parents and Lillian were affectionate with Teresa, and Teresa seemed happy with all of them. Dyer explained that generally children did not acquire the capacity to form attachments and develop a sense of traumatic loss until they approached eighteen months of age. In his opinion, Teresa, who had lived with her foster family since she was eight days old, would not suffer a traumatic loss if removed from their home within the next several months. Nonetheless, he recommended the Division pursue foster home adoption given Lillian's history of child abuse.
On August 5, 2008, the Division filed a second Title 30 complaint with respect to Teresa.
In August 2008, a Division caseworker reported on visits between Lillian, Tony, Nancy, and Teresa. He noted that Tony and Nancy were very excited to see their mother, and that Lillian cuddled and nurtured Teresa. He wrote that he "couldn't help but envy... the way [Lillian] and her children interacted together."
Leslie A. Trott, Ed.D., a psychologist who saw Tony and Nancy on sixteen occasions from August through December 2008, reported that she reviewed adoption and KLG with the children, and both remained firm in their desire to be adopted by the Moore family. Both children denied telling anyone that they wanted reunification with Lillian. Trott believed the visits with Lillian were "disruptive and disconcerting."
Meanwhile, on August 7, 2008, Figurelli conducted a bonding evaluation with Lillian and Teresa. He also interviewed Lillian and asked her to respond to "certain individual items" in the Child Abuse Potential Inventory, to assess her parenting capacity. He noted that Lillian "was loving and physically affectionate" with Teresa, and that Teresa appeared comfortable and secure. Given their limited contact, he believed that Lillian and Teresa did not manifest a fully bonded relationship, and if reunification was still an option, it would be in Teresa's best interests to develop the relationship further. In his view, termination of Lillian's parental rights would have a severe and enduring impact on Teresa by preventing her from developing an "adequate and independent sense of personal identity" and the ability "to form trusting and stable interpersonal relationships."
On August 20, 2008, Division caseworker Eloise McDonald reported that, during a visit at the Moore foster home, the foster parents claimed Lillian was trying to undermine any progress they made by telling Tony and Nancy that they would be going home after the court hearing in November 2008.
On October 30, 2008, Figurelli observed a second bonding session between Lillian, Tony, and Nancy. At that time, Lillian was working at a restaurant in Newark. She was also attending night school for her high school diploma, and was moving to a new four-bedroom apartment with housing assistance. As in the prior session, Figurelli observed that both children actively engaged their mother in ongoing verbal interactions, they were comfortable together, they referred to Lillian as "mommy," and they made spontaneous displays of physical affection.
Figurelli also observed that Lillian provided appropriate guidance and displayed "a caring, supportive, affectionate and nurturing attitude toward both children." His interviews with the children revealed that they wanted to return to Lillian even if it meant separation from their younger siblings. Given the children's "significant positive emotional attachment" to Lillian, Figurelli again concluded that it was not in their bests interests to sever the parental relationship, whereas they could be separated from their foster parents without severe or enduring harm.
On November 6, 2008, Esquilin re-evaluated Tony and Nancy. In her report dated December 11, 2008, she found that when asked to draw a family picture Tony and Nancy drew their birth family. Esquilin believed that they wanted to return to Lillian, but they thought the judge had decided against reunification. Their primary wish was to put an end to their involvement with the Division. They preferred adoption over KLG because it would make them feel more a part of the foster family. Tony and Nancy, however, believed they would continue to have contact with Lillian if adopted, and expressed the wish to see their biological mother more often than once a month.
In Esquilin's opinion, Tony and Nancy had a "fundamental attachment and identification" with Lillian, and they would be "significantly damaged" if adoption occurred and contact with Lillian was severed. She recommended that Lillian and Nancy begin joint therapy, as originally suggested in 2006, and individual therapy for both children. Esquilin also recommended weekly visitation. If the court terminated parental rights, she recommended that the children receive individual therapy, that the foster parents restrain from changing their first names, and that continued efforts be made to invite Lillian to special events.
Around this time, Tony began stealing money from the foster mother. On December 2, 2008, Tony and Nancy resumed therapy at the Youth Consultation Service (YCS) Bridge Program. In light of Tony's stealing, and Nancy's "meltdowns" and belligerence, they reentered the program to build a level of trust with their foster parents. The sessions apparently continued through March 2, 2009.
Meanwhile, on December 11, 2008, the foster parents told McDonald that they were going on vacation and requested a "respite placement" for the children. When they returned, they planned to ask for the children's removal because Lillian's involvement in the children's lives was destroying their family. They claimed that Lillian secretly established an e-mail account so that she could communicate with Tony and Nancy. They also claimed that Tony and Nancy exhibited "stealing, lying, [and] defiant behaviors" after visiting with Lillian. Both foster parents told McDonald that the adoption process was taking too long.
However, on December 15, 2008, the foster mother told McDonald that she and her husband had agreed to keep all the children. Nevertheless, they still wanted respite care for Tony and Nancy, as they were only planning to take the younger children on vacation with them. Then, in a letter dated December 17, 2008, the foster parents explained that they had invested a great deal in the children, and believed their absence would cause a void in their lives. They wanted to adopt, not seek KLG for, Tony and Nancy. They agreed to take their vacation with all five children if the Division provided financial assistance for transportation.
On December 18, 2008, Dyer reported on the results of his updated interviews with Tony and Nancy. He found that both children preferred to live with Lillian, but otherwise would choose adoption by their foster parents. Given Nancy's history of abuse and Lillian's related denials, Dyer recommended that the Division pursue adoption for Nancy, explaining that permanency would be the most powerful therapeutic factor in her life. He also believed that the permanency of Tony's adoption by the Moores would outweigh the emotional harm caused by his separation from Lillian.
The judge entered a compliance review order on January 6, 2009, directing the Division to implement family therapy for Lillian and Nancy, to assess Lillian's apartment, and to have Lillian attend an updated psychological evaluation with Dyer. He found that the foster parents did not want to be KLGs for the children, but wished to adopt them.
McDonald and her supervisor, Adrienn Caldwell, went to Lillian's apartment in Newark on January 22, 2009, to complete the court-ordered assessment. They found the apartment clean and appropriate, and partially furnished. Lillian advised the workers that she moved into the apartment in November 2008 with federal housing assistance. She told them that she worked in the mornings at a restaurant, and attended school in the evenings.
Dyer reevaluated Lillian in January 2009. In his report dated February 23, 2009, he noted that Todd was in prison, Lillian continued to write to him, and they were still married. He also noted that Lillian had stabilized considerably. The report states that she finished therapy with Mierzejwski in August 2008, worked at a restaurant since September 2008, moved into a four-bedroom apartment in November 2008, and expected to obtain her high school diploma in June 2009.
Dyer, however, expressed great concern over Lillian's failure to acknowledge the seriousness of her actions against Nancy and to admit using Tony as an accomplice. She also left open the possibility of reuniting with Todd after his release from prison, which Dyer believed raised serious questions about her judgment. Because Lillian tended to displace her anger and aggression against her husband onto her children, he believed she could function appropriately only if she was not in a daily relationship with him and was not caring for minor children. In his opinion, Lillian still had not achieved the potential to appropriately parent a child on a long-term basis.
The Division contact sheets from September 2008 to February 2009 confirmed that the Moore and Minor foster homes wanted to adopt the children in their care. On several occasions, the five children in the Moore home, including Tony and Nancy, told the Division worker that they wanted the Moores to adopt them. The Division's notes also indicated that Teresa seemed loved and well cared for, and that her needs were being met in a "safe, nurtured home." During this time, Tony and Nancy had monthly supervised visits with Lillian, and Teresa had bi-weekly visits.
On February 19, 2009, Mary E. Coogan, the guardian ad litem for Tony and Nancy, advised the court of her interviews with the children. She observed that they were tired of talking to professionals, wanted their case resolved, and wanted to be part of a family. If they could not return to Lillian, they preferred adoption by their foster parents. She noted, however, that the Moores believed Tony would be "okay" if reunified with Lillian given their strong bond, but that Nancy, who did not have as strong a bond with Lillian and whose self-esteem had improved tremendously in their care, would regress.
Meanwhile, in January and February 2009, Denise M. Williams Johnson, Ph.D., held four therapy sessions with Lillian and Nancy for the purpose of rebuilding their relationship. At one session, Johnson described Nancy as "uncharacteristically oppositional and defiant and provocative." In her report dated February 26, 2009, Johnson concluded that neither mother nor daughter were ready for reunification, both needed to learn more about each other, and Nancy needed to gain trust in Lillian. Johnson recommended that family therapy continue, and that Nancy attend individual sessions.
The same judge presided over a second trial on March 3, 4, and 9, 2009. It was originally intended to serve as the guardianship trial for Teresa and a permanency hearing for Todd and Nancy. At the start of the trial, however, the judge granted the Division's request to reinstate the prior guardianship proceedings as to Tony and Nancy because the Moores' had rejected KLG as a permanency plan, and converted the permanency hearing into a guardianship trial. None of the parties objected to that procedural change.
The Division presented four witnesses: McDonald, Dyer, Johnson, and the Moore foster mother. The law guardian presented one expert, Esquilin, and Lillian presented her expert, Figurelli. Todd, although incarcerated, attended the trial and testified. Lillian appeared, but did not testify. The judge admitted Dyer's prior trial testimony from March 31, 2008. He also took judicial notice of the prior proceedings. See N.J.R.E. 201(b)(4).
McDonald, who had been assigned to this case in June 2007, testified that Tony and Nancy repeatedly told her that they liked the foster home and wanted to be adopted. She also acknowledged that both children had expressed a desire to return to Lillian.
The foster parents had agreed to consider long-term foster care. According to McDonald, however, problems arose when Lillian told the children to write to their father in prison, when Tony exceeded the texting limit on his cell phone by texting with Lillian, and when Lillian told Tony that he would be coming home soon. The foster mother said the children often returned from their visits with Lillian defiant and refusing to do their chores, and sometimes had "meltdowns."
McDonald noted that Lillian was attending night school, but had missed about four or five days of classes in the last month. She confirmed that Lillian attended visitations, scheduled makeup visits, and complied with the Division's services and court orders.
McDonald also testified that Teresa was doing well in the Minor foster home. The Minors wanted to adopt Teresa, and their two adopted sons, ages seven and eight, interacted very well with her.
Dyer's testimony was consistent with what he told the court at the 2008 trial. He reiterated that Tony and Nancy had a continued attachment to Lillian, whereas Teresa was too young to form a bond that, if terminated, could have serious psychological effects. In his opinion, however, none of them should be returned to Lillian because the same risk factors were present even though she had made some progress. For example, he expressed concern that oppositional conduct by Nancy, such as her recent inappropriate behavior during a family therapy session with Lillian, could trigger an "inappropriate parental disciplinary response."
Dyer acknowledged that Nancy would suffer "an extremely painful and conceivably traumatic loss" if she had no contact with Lillian. Nonetheless, he predicted that "an adoption scenario" would provide her with the security and stability to offset the harm caused by the severed relationship. In his opinion, neither termination nor adoption offered a chance for Nancy or Tony to emerge unscathed.
Dyer believed it was important for Lillian to admit her past mistakes, but did not recommend joint therapy. Overall, he would have liked to have seen evidence that Lillian gave up her posture of denial, stopped projecting blame and responsibility on the children, obtained housing and financial security earlier, and no longer talked about continued involvement with Todd. Even if she made progress in those areas, it would be "far too little too late." In his view, Lillian's history and psychological characteristics trumped any efforts towards rehabilitation. On the other hand, Dyer found the foster parents mature and responsible, and able to provide Tony and Nancy with a stable and structured setting.
Johnson, who saw Lillian and Nancy four times, testified that Nancy wanted to live with Lillian, but believed her only options were adoption by, or KLG with, the Moores. Nancy preferred adoption because she saw no point to short visits with her mother if placed in long-term foster care. Johnson believed that, for Nancy, seeing her mother but not being able to live with her was "destructive and devastating[ly]" painful.
Johnson believed Lillian had accepted responsibility for seventy-five to eighty percent of her actions. Unlike Dyer, she believed joint therapy would continue to improve the mother-child relationship. Nevertheless, Johnson did not recommend reunification until (1) Lillian and Nancy came to a better understanding of each other; (2) Nancy learned how to control her recent provocative behavior; and (3) there was some monitored supervision in Lillian's home to see if she disciplined the children without aggression.
The Moore foster mother testified that she and her husband always wanted to adopt Nancy and Tony. Adoption was important to them because they wanted to create a stable family, and wanted all of their children "on the same level." She explained that it was important for all the children to have permanency and the same last name.
After the 2008 trial, the Moores had agreed to consider KLG and made an effort to engage Lillian. They purchased a cell phone for Tony so he could call his mother, let the children make cards for their parents, and invited Lillian to Tara's graduation in 2008 and to their church. Lillian, however, started attending the church without advance notice to the Moores and brought candy for the children, which the foster mother considered inappropriate. Lillian also telephoned Tony and invited him to Great Adventure, and only later asked the foster family to join them. The foster mother last spoke with Lillian sometime in the summer of 2008. While recognizing that Tony and Nancy were bonded to Lillian, she was only willing to allow them to have e-mail contact with her, not in-person or telephone contact.
The foster mother also testified that her husband had asked the Division to remove the children in December 2008. She said that he became frustrated after Tony started stealing money from them and lying about it, and that there were "a lot of other things going on, like I had just been in a car accident." But after talking with her husband, they were reminded that they answered to a "higher calling" and the children were their "ministry." They increased the children's allowance in return for completing their chores, and the bad behavior stopped.
Esquilin testified as the law guardian's expert witness. She recommended reunification for Tony, and continued joint therapy for Nancy and Lillian so they could address issues impeding reunification. For example, she noted Nancy's difficult behavior at one session with Johnson and the likelihood that such behavior would continue if Nancy was returned to Lillian too soon.
Esquilin said Tony and Nancy wanted to return to Lillian, but otherwise preferred adoption. She was puzzled by Trott's findings to the contrary. She believed that the children felt they had little hope about returning to Lillian, and were trying to find a safe and secure alternative. They understood that a KLG situation would be difficult for the Moores, and did not want to disrupt their placement.
In Esquilin's opinion, the children had become more "defended" and denied any problems, which she considered a typical response of children who were tired of intrusions. She expressed concern about the foster mother's complaint that Nancy was becoming more difficult to manage and would not wear a school outfit that she bought her. Esquilin explained that such behavior should not be seen as defiance. Rather, a ten or eleven-year-old girl should be given freedom to make reasonable choices about how to dress for school. Furthermore, given Nancy's difficulty in social relationships, Esquilin understood Nancy's refusal to wear the outfit because "other kids would make fun of her." Esquilin was also concerned about the foster mother's complaint that Tony was becoming more preoccupied with himself, explaining that he should focus more on himself given his history of taking care of the younger children.
Esquilin was very concerned over the foster parents' request for the children's removal. She was concerned that such instability could arise so quickly without any warning to the children, and that it suggested they could not stay in the foster home if they did not behave.
Esquilin believed Tony and Nancy identified with their extended family, including their mother, siblings, maternal grandmother, two aunts, and uncle. In her opinion, reunification presented Tony with the opportunity of "nurturance and attention in an individualized way." Although he would miss his siblings, Esquilin believed that parental termination as to Tony would do more harm than good.
Esquilin, however, did not recommend reunification for Nancy at that time, explaining that Lillian had not spent enough time in joint therapy to show how she would handle difficult behavior from her daughter. While the stress would be considerably less without the presence of Todd and the younger children, other risk factors were still present, such as the lack of external supports and Lillian's "psychological makeup." She also expressed concern that Todd's release from prison could add another element of stress into Lillian's life, and that element would affect Nancy more than Tony. Additionally, she was concerned that if Teresa returned home, Nancy and Tony would immediately move into caretaking roles, especially in light of her observations that Lillian was not appropriately attentive to safety issues with the younger children.
Esquilin believed Nancy had sufficient maturity to express her opinion that she wanted to live with Lillian. She did not agree with Dyer that Lillian had shown a history of sadistic abuse towards her children, and instead believed that stress had overwhelmed Lillian and caused her to react in bad ways.
Esquilin, therefore, recommended continued foster placement for Nancy, with intensive weekly joint therapy. She estimated that six more months of sessions with Johnson could be sufficient for Nancy to return to Lillian. Unlike Dyer, Esquilin believed such therapy was important even if Lillian had not yet acknowledged the extent of the abuse she inflicted on Nancy. She also recommended longer, and gradually less supervised, visits with Lillian that would test the mother-daughter relationship.
Even so, when asked if she had to choose between termination or reunification for Nancy at the time of trial, Esquilin recommended termination given the uncertainty "about safety issues in that home with her mom." She agreed with Dyer that neither child would be unscathed by either of the two options. As to Teresa, whom she did not see, Esquilin noted that a child with a secure base in a good foster home was likely to be friendly to a lot of people, and that might explain why Dyer and Figurelli reported positive bonds between Lillian and Teresa.
Figurelli reaffirmed his earlier conclusions. While Teresa had not yet developed a "fully reciprocally bonded relationship" with Lillian, he believed that termination of parental rights would likely cause severe and enduring harm. In his opinion, Teresa could cope with the stress imposed by a transition from her foster parents to Lillian, if the transfer took place over time. Figurelli, however, did not perform a bonding evaluation with Teresa and her foster parents.
Based on his review of Johnson's reports, Figurelli believed Lillian had benefited from counseling and made constructive use of joint therapy with Nancy, despite its short duration. He also believed that she would have made even more progress if the Division had ordered more joint therapy. Figurelli acknowledged, however, that he had never recommended joint therapy.
In Figurelli's opinion, Lillian had changed her parenting attitudes and learned to address difficult emotional issues in a mature manner. She had obtained housing and work, had found local daycare for Teresa, and had support from members of her church.
Figurelli testified that termination of parental rights would likely cause Nancy and Tony to engage in "acting out" and "oppositional behavior," which would make foster parenting more difficult. The fact that the Moores attempted to return the children in December 2008 suggested their ambivalence about parenting them. In his opinion, these children should return to Lillian, provided she continued to participate in joint therapy with Nancy.
Finally, Todd testified that he supported reunification of Tony, Nancy, and Teresa with Lillian. Although he said Lillian had not visited him since August 2007, he anticipated release from prison in June 2012, he wanted to renew his relationship with Lillian, and said he had communicated with her about his interest in returning home.
The trial judge issued his opinion on March 18, 2009. He described the "perplexing case development" that resulted in the reinstitution of the guardianship case concerning Tony and Nancy. In 2008, he had terminated Lillian and Todd's parental rights as to three of their children, rejected the application as to Teresa as premature, and ordered KLG for Tony and Nancy. He noted that the Division did not pursue KLG for the two oldest children because of the foster family's rejection of that avenue.
After reviewing the testimony and exhibits, the judge found that Lillian was conscientious with regard to visitation, attended evening high school classes, was employed, and was living in a partially furnished apartment. He further found that the Division had stopped providing therapeutic services to Lillian after July 2008.
With regard to Todd, the judge found that he was still incarcerated on his latest conviction for aggravated assault on his stepfather-in-law. He noted Todd's wishes for Lillian to resume the care and custody of all of their children, and for the resumption of their marital relationship upon his release.
The judge expressed concern over the sudden demand by the Moores in December 2008 to remove all five children. However, he considered it significant that they never told the children about their intentions. He accepted the foster mother's testimony that the issue of changing the children's first names was resolved, and noted her testimony about limiting the children's contacts with Lillian.
The judge pointed to the extensive number of evaluations and therapists in this case. He compared the conflicting testimony of Dyer, who held firm that no child should be returned to Lillian, with that of Figurelli, who believed Lillian was ready and able to resume parenting all the children, and concluded that Figurelli's conclusions were erroneous. Referring to his 2008 decision, he continued to consider Esquilin's testimony of "paramount importance," particularly because of her rich detail on household conduct and past abuse incidents. The judge found that Johnson's testimony was responsive, thoughtful, and impressive, and her reactions were measured and balanced. Although Johnson had held only four sessions with Lillian and Nancy, the judge found the continued pessimism of Dyer in his December 2008 report was not reflected in their actual interactions.
The judge concluded that the Division established by clear and convincing evidence all four prongs of the best interests of the child test as to Teresa, and terminated Lillian and Todd's parental rights. However, he concluded that the Division failed to satisfy the second and fourth prongs of the test as to Tony and Nancy, and denied the Division's application for their guardianship.
With regard to Tony and Nancy, the judge referred to the April 2008 decision in which he had seriously considered the children's statements that they preferred reunification. Since that time, the evidence suggested the children came to believe their only option was adoption or KLG. The judge found that, based on the expressions of Tony and Nancy, they wanted to maintain a relationship with Lillian and favored reunification.
The judge found Tony was not at risk if he returned to Lillian, that he would not assume the role of caretaker or surrogate parent if he returned by himself, and that he longed for the nurturance he lost after separation from his mother. He also found that Tony's age and maturity would allow him to understand Lillian's parenting responsibilities, and would abate any issues concerning parental competency or safety. Consequently, the judge directed the Division to return Tony to Lillian at the end of the school term, to inspect Lillian's residence to make sure the necessary living accommodations were in place, and to arrange for an appropriate summer day camp for Tony while his mother worked. Additionally, he ordered Lillian to complete her high school diploma. Finally, the judge ordered bi-weekly visitation until Tony's placement.
The judge determined it was not yet safe for Nancy to return to Lillian. Instead, he ordered more intensive joint therapy with real-life interactive experiences to evaluate and test Lillian's coping mechanisms and ability to handle the parenting stressors of daily life. The judge directed that the sessions with Johnson take place weekly, and that they probe "the depths of the multiple events of [Nancy's] past with her mother." While recognizing the trauma of a failed reunification, the judge noted that Nancy was becoming increasingly difficult in the foster home and was likely to present more difficulties as a teenager in either placement. Finally, the judge directed that Tony and Nancy continue to attend individual counseling. Noting that their current counseling sessions with Trott and YCS might be duplicative, he determined that one provider would be sufficient.
The judge memorialized his decision as to Teresa in a judgment of guardianship filed on March 19, 2009. The same day, he entered an order denying the Division's application for guardianship of Tony and Nancy for the reasons set forth in his bench decision. On April 1, 2009, he entered a permanency order approving the Division's plan for foster home adoption with respect to Teresa.
On June 24, 2009, the judge entered a compliance review order transferring physical custody of Tony to Lillian by his birthday on June 29, 2009, and continuing physical custody of Nancy with the Division's resource parents. He further ordered Lillian to attend counseling with Johnson and comply with her recommendations, Tony to continue therapy with Trott until October 2009, and Nancy and Lillian to continue joint therapy with Johnson. The judge directed the Division to provide Lillian and Nancy with weekly supervised visits in Lillian's home, and to explore the possibility of allowing visits in the community.
On December 21, 2009, after the pending appeals were filed, the judge ordered that Nancy be reunited with Lillian. We have been advised that the reunification has been accomplished.
Following the reunification, Lillian moved to dismiss the Division's appeal with respect to Tony and Nancy, arguing that it had become moot. We deferred the motion to oral argument. We now deny the motion on the grounds that the transfer of physical custody of Nancy from the foster parents to Lillian did not moot the Division's appeal from the trial judge's decision that it had failed to prove two of the four prongs necessary to terminate parental rights.
Before addressing the merits of the case before us, we outline the law that must inform our decision.
The scope of our review of a Family Part judge's termination of parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293.
As recently as March of this year, the Supreme Court reiterated the language it first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), that the Court "recognize[s] that '[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 343 (2010). Arguing that many Family Part judges are newly appointed, counsel for Todd in the appeal concerning the termination of his parental rights to Tim, Tara, and Ted (A-4987-07) has urged us to disregard that language from Cesare, which he characterizes as dicta not supported by the factual record in Cesare. However, we note that in the cases before us the trial judge was a veteran jurist and that, because some of his decisions were favorable to Lillian and Todd, deference to his factfinding does not clearly favor one side over another.
We have held that, "where the focus of the dispute is... alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (internal quotation marks omitted); see also, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is still appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Parents have a constitutionally protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. C.M., ___ N.J. ___ (2010) (slip op. at 26); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by a clear and convincing evidence standard. Ibid.; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best-interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(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).]
These four factors are not independent of each other; rather, they are "interrelated and overlapping... designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citation omitted), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).
Under the first prong of the best-interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown... must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. The absence of physical abuse or neglect is not conclusive; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. Moreover, trial courts must consider the potential psychological damage of reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").
Under the second prong of the best-interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care,... with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the third prong of the best-interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
Under the last prong of the best-interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. Ibid.; A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45; F.M., supra, 375 N.J. Super. at 263-64.
In meeting the fourth prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations omitted). Yet, "the Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
We turn first to the appeals filed by Lillian with respect to her parental rights to Tim, Tara, and Ted (A-4986-07), and with respect to Teresa (A-4127-08), as well as the appeal filed by the Division with respect to Lillian's parental rights to Tony and Nancy (A-3979-08).
With respect to the termination of her parental rights to Tim, Tara, and Ted, Lillian does not challenge the judge's finding that the Division satisfied the first prong of the best-interests standard by clear and convincing evidence.*fn3 She argues that the judge's determination as to the remaining prongs was in error and that he failed to apply the required clear and convincing evidence standard.*fn4
Lillian argues that her participation in services recommended or provided by the Division demonstrated her willingness to improve her parenting skills and her eagerness to parent her children. Her intent, however, is not really in dispute, nor is it really the primary focus of the second prong in this case. Instead, the issue at trial was whether she was able "to eliminate the harm facing the child[ren]" and "to provide a safe and stable home for [them]." N.J.S.A. 30:4C-15.1(a)(2).
In finding the second prong satisfied, the trial judge relied primarily on two factors: first, the concerns of the mental health professionals, whom he found to be most reliable, that Lillian would not be able to parent her younger children effectively in the future; and second, the strong bond between Tim, Tara, and Ted and their foster parents. The latter factor is specifically mentioned as an appropriate second prong consideration in N.J.S.A. 30:4C-15.1(a)(2) ("[s]uch 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").
Dyer was of the opinion that none of the children should be returned to Lillian because, despite her compliance with services supplied by the Division and her apparent progress through therapy, she was not capable of being a suitable parent and the risk of harm to the children was too great. During cross-examination at the first trial, he explained:
I am of the opinion that the rehabilitation of [Lillian] was a central issue during the initial phases of the case, but that [it] became increasingly apparent that this rehabilitation is now speaking not necessarily of rehabilitating [Lillian] to the point where she does not experience any symptoms, where she can negotiate her own path in terms of independent living in the community, but rehabilitation in the sense of bringing her to the point of adequate parenting capacity, that particular goal, it became increasingly apparent [was] really not within realistic expectations.
I would say that there is still a predominating element of risk, given the history, that even though a therapy client may achieve some common understanding of what is necessary to restrain one's temper, to offer more appropriate disciplinary behaviors toward a child misbehaving and alike, that a common understanding is not sufficient to [engender a] great deal of trust and confidence that there won't be a recurrence of what has already now happened on two occasions with this birth parent.
And on one of those occasions, it's my understanding that the injuries to the child were actually life threatening. Not [Nancy], the other child, [Tom].
Although Esquilin took a different approach with respect to Tony and Nancy, she reached essentially the same conclusions as Dyer with respect to Tim, Tara, and Ted. During cross-examination, she explained:
I felt that the combination of circumstances that have led to the abusive incident in March of '06 was not going to be totally alleviated, even with services; that there were a range of circumstances having to do with her economic position, her lack of social supports, the number of children involved, her difficulties in being able to monitor everything that was happening with the children, her difficulty in being able to monitor herself.
Even with a lot of help that had been given over the years, that would not allow her to have all of those children back safely.
Lillian argues that the trial judge failed to apply the clear and convincing evidence standard correctly because he did not give sufficient weight to Mierzejwski's testimony that Lillian was in a position to parent all of her children. While the trial judge acknowledged Mierzejwski's recommendation, he chose not to follow it for reasons we find are supported in the record.
The trial judge characterized Mierzejwksi's initial recommendation of reunification with the children, made early in her treatment of Lillian, as "a somewhat premature opinion." He was also very concerned that Mierzejwski was not aware that Lillian had voluntarily vacated the domestic violence restraining order against Todd when she prepared her subsequent report. In that report, she had relied on the restraining order as evidence that Lillian had "learned to set limits for herself and boundaries with others." The judge reasonably viewed Lillian's failure to disclose the removal of the restraining order as a "serious issue of trust violation" between therapist and client, because "one might conclude that such a step or consideration to vacate a restraining order should have or would have been shared with Ms. Mierzejwski for her views." Indeed, he expressed the view that, going forward, Mierzejwski would "wish to refocus" the therapy on the issue of trust.
Appellate courts will generally defer to a trial court's decision as to the credence given to an expert's testimony because "the trial court is better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded [the] testimony." D.M.H., supra, 161 N.J. at 382. The trial judge's decision to discount Mierzejwski's recommendation of reunification is supported in the record.
Lillian argues that the trial judge's subsequent decision that she should be permitted to parent Tony and Nancy is inconsistent with his decision that her parental rights with respect to Tim, Tara and Ted should be terminated. We disagree.
There was considerable agreement among the mental health professionals that a significant cause of Lillian's problem with parenting, including her abusive conduct, related to her inability to deal with stress. Dyer related his concern to the return of any of the children, as the following discussion with the trial judge illustrates:
[Trial Judge:] Do I understand from your evaluation that... if there were, in fact, termination of one, two, three children, for example, even though... mathematically there's only one or two children left, that there is something as to her makeup? Meaning, [Lillian's] characterological makeup that will find her back in a stress mode, even with one or two children?
[Dyer:] That is exactly my concern, Your Honor. Not so much that she would find herself in a stress mode, but that she would be at risk for inappropriately discharging her anger or hostility or aggressive impulses onto these children and have little insight into her behavior and have little control over her impulses if she were flooded with emotion, with or without a great deal of external environmental stress. That is my concern, Judge.
[Trial Judge:] So even, politely, if she did have adequate, safe and appropriate housing as one example or one component, that it still could happen.
[Dyer:] My concern, Judge, is that there is a risk there and that it is not a negligible risk, but it is a risk that is of such significance that it causes me to recommend against a return of these children even though they may be older.
Esquilin was of the opinion that it was likely that Lillian would be able to care for the two older children, Tony and Nancy. She did not take the same view with respect to the younger children because their presence would elevate Lillian's stress to a point at which there would be a significant potential for the abusive conduct to reappear. Even Figurelli attributed the events that led to the second removal as being due, in large part, to the stressors that confronted her at the time.
In his findings with respect to the second prong, the trial judge also relied on the relative strength of the bonds between Tim, Tara, and Ted and Lillian on the one hand and the Moores on the other, concluding that they would be harmed more by severing their relationship with their foster family than they would by termination of Lillian's parental rights. For reasons that will be discussed at length when we come to the fourth prong, we have determined that his conclusion in that regard is supported by the record.
Consequently, we uphold the trial judge's determination that the Division proved the second prong by clear and convincing evidence.
Lillian next argues that the trial judge erred in finding that the Division had satisfied the third prong of the best-interests test, which concerns its "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home" and consideration of "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The third prong requires a fact specific inquiry into the reasonableness of the services provided to the family as a whole. D.M.H., supra, 161 N.J. at 390. The appellate court is bound by the factual findings of the family court, "unless they are so wholly unsupportable as to result in a denial of justice, and are upheld wherever they are supported by adequate, substantial and credible evidence." F.M., supra, 375 N.J. Super. at 259. Although Lillian is critical of the Division's efforts, the trial judge's contrary finding is fully supported by the record.
Because Lillian was compliant with most if not all of the services offered to her, she argues that the Division "should not be permitted reprieve where its own plan could not lead to successful reunification." The Supreme Court, however, has rejected that type of argument. "The diligence of [the Division]'s efforts on behalf of a parent is not measured by"