November 12, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
D.M.B., DEFENDANT-APPELLANT, AND A.J.B., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.D.B., J.A.B. AND J.M.B., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-13-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
In this opinion, we address challenges to a Family Part judgment terminating the parental rights of defendant D.M.B., the mother of three children identified as J.D.B., J.A.B. and J.M.B. The judgment also terminated the parental rights of the children's father, A.J.B., who has not filed an appeal. Consequently, we omit from our opinion any discussion regarding A.J.B.'s parental capacity, psychological health and relationship with the children, and confine our review to the portion of the Family Part judgment as related to D.M.B. that awarded plaintiff, the Division of Youth and Family Services (the Division), guardianship of the children to effectuate their adoption by their respective caregivers.
D.M.B. argues the facts are insufficient to sustain the judgment of guardianship by clear and convincing evidence. Her primary challenge, however, asserts the judgment must be vacated because the trial court utilized much of the Division's post-trial submission in its Memorandum of Decision, abrogating its responsibility to make findings of fact and conclusions of law.
Following our review of the record, we agree the trial court's wholesale adoption of much of the Division's trial submission without attribution is highly inappropriate and fails to conform with the requirements of Rule 1:7-4(a). Nevertheless, we decline to remand this matter for retrial by another judge and discern this record appropriately lends itself to our exercise of original jurisdiction.
We are permitted to exercise original jurisdiction when necessary for the complete determination of any matter on review. R. 2:10-5; see also N.J. Const. art. VI § V, par. 3, (authorizing the exercise of original jurisdiction "as may be necessary to the complete determination of any cause on review."). In this matter, the exercise of our original review is warranted because the importance of resolving the status of these three children and noting that the unavoidable passage of significant time pending appeal mandates no further delays occur. Pressler & Venerio, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2011) (the appellate court may opt "in appropriate circumstances and particularly where there has been considerable litigation delay, to decide the legal issues clearly raised despite lack of findings of fact").
Following our examination of the trial record, we determine the Division has presented clear and convincing evidence to support the four-pronged statutory test for an award of guardianship, N.J.S.A. 30:4C-15.1(a)(1) to (4). Accordingly, we affirm the judgment terminating the parental rights of D.M.B.
The facts are not disputed. Our focus is limited to D.M.B.'s three children fathered by A.J.B.*fn1 After his birth on October 6, 1997, J.D.B. was placed in foster care directly from the hospital. The Division removed the child after receiving a referral from a nurse, who identified concerns with D.M.B.'s ability to care for her newborn son. When D.M.B. began psychiatric treatment and counseling, and her mother agreed to assist in J.D.B.'s care, the Division returned the child to his mother and continued to supervise the family.
J.A.B. was born on November 29, 1998. Two days before Christmas, D.M.B. called the Division asking that her sons be placed in foster care, admitting she had used alcohol and marijuana during her pregnancy. D.M.B. later withdrew her request when her brother agreed to stay with her to assist in the children's care. In a follow-up visit on January 26, 1999, D.M.B. reported everything was fine and she was involved with the Treatment Alternatives for Children at Risk program. The Division offered counseling and parenting classes, which D.M.B. declined.
Shortly thereafter, D.M.B. threatened her mother, claiming she would cut out her heart with a knife. The episode was prompted by D.M.B.'s mistaken belief that her mother and boyfriend were engaged in a sexual liaison. The Division suggested, and D.M.B. agreed, J.D.B. and J.A.B. would be placed in foster care while she was treated at Our Lady of Lourdes Crisis Unit. The hospital prescribed medications including Depakote and Cogentin, with which D.M.B. remained compliant. She also revealed five prior psychiatric hospitalizations. D.M.B. was discharged on May 3, 1999. Shortly thereafter, J.D.B. and J.A.B. were returned to her care, assisted by her mother.
Prior to the Division's final removal of the children, these additional referrals were received and investigated. On December 11, 2001, D.M.B. telephoned the Division stating she was three months pregnant, not taking her medication, overwhelmed and afraid she might hurt J.D.B. and J.A.B. She requested the Division remove the boys. When a caseworker arrived, D.M.B. explained she feared she would be unable to care for the boys, as her mother had been hospitalized and A.J.B. threatened to leave her. D.M.B. reconsidered the need for the Division's assistance when A.J.B. agreed he would remain in the home until her mother returned.
In 2002, D.M.B. contacted the Division alleging J.D.B. had been sexually abused while in the care of D.M.B.'s niece. The Division requested that Martin Finkle, M.D. examine the child. Dr. Finkle found no signs of sexual abuse.
On October 14, 2002, Bellmawr Police Department Sergeant Gordon Muller called the Division when he encountered D.M.B. at a local convenience store with the children. The boys wore underwear and diapers, "no coats, no shoes, [and the] mother refused to take the children inside [the store]." D.M.B. admitted the children were shoeless and coatless, stating the boys were being punished. D.M.B. conceded she did not know how to control her sons and felt overwhelmed.
On October 4, 2004, Regina Andrews-Collette, a Bellmawr Public School (BPS) social worker, wrote to the Division seeking "intensive services" for D.M.B. and J.A.B. because the child's school behavior was "very dangerous and out of control." In her letter, Andrews-Collette described six-year-old J.A.B.'s disruptive and alarming behaviors to include, "bang[ing] his head on the floor for 20 minutes, screaming and hollering during the entire period[,]" stealing objects from his teacher and standing on his "desk screaming at the top of his lungs." When the child's teacher discussed these concerns with D.M.B., she laughed and stated "no one is going to tell her how to raise her kid."
On May 13, 2005, the Division substantiated D.M.B.'s educational neglect because the children were not attending school. BPS reported J.D.B. missed forty unexcused days of school, and was late an additional twenty-five times. The school initiated municipal court charges against D.M.B. for enabling the children's truancy. When a Division worker visited D.M.B.'s home, which was clean and orderly, the children appeared to be in good health. D.M.B. revealed she had been diagnosed with paranoid schizophrenia and was prescribed appropriate medication. D.M.B. agreed to see to it that the children attended school on time, every day. Because D.M.B.'s mother was living in the home and D.M.B. did not appear to be a physical threat to the children, the Division recorded no immediate safety concerns.
Shortly after J.M.B. was born on June 17, 2005, D.M.B. lost her housing. On July 28, 2005, the Welfare Department arranged for her and the three children to be placed in the Howard Johnson Motel in Blackwood. Two weeks later, the Division received a referral from a motel office worker reporting D.M.B. was using drugs and often left the three children with "inappropriate babysitters," referring to a couple who physically assaulted, yelled and cursed at each other while watching the children.
When the Division investigated, D.M.B. maintained she had been abstinent for six years and was attending the Berlin Partial Care program, supervised by the Steininger Center, four times a week. She expressed some difficulty coordinating the children's school and activity schedules with her own. At the Division's request, D.M.B. submitted to a drug screen and the allegations of abuse and neglect were determined unfounded.
On July 2, 2006, the Division received a referral from a childcare coordinator for a single mother's group, who reported D.M.B. had called for assistance, stating she was under the influence and not able to handle her children. When the Division responded to the home, eight-year-old J.D.B. answered the door. He was alone with his two younger siblings, and did not know his mother's whereabouts or how to contact his grandmother. J.D.B. told the worker D.M.B. was upset after learning her boyfriend cheated on her and stated she would be back in three weeks. The children were crying and hungry. When the Division finally reached D.M.B. by telephone, she said she was not returning home because she could not care for the children. D.M.B. also commented that she did not care if the children were placed in foster care, as "[s]he grew up under [the Division] and she [wa]s fine." D.M.B. did request the Division not separate the children, yet offered no possible relatives who might provide temporary care. D.M.B. also admitted she was again pregnant.
The Division contacted the police and exercised an emergency removal. On July 25, 2006, the trial court granted the Division's request for care, custody and supervision of J.D.B., J.A.B. and J.M.B.
After more than a year of unsuccessful efforts to resolve the problems causing the children's removal, the Division filed its complaint for guardianship on September 11, 2007. We review the Division's efforts toward reunification made prior to requesting the termination of parental rights.
D.M.B. was first evaluated on July 20, 2006 by the Center for Family Services (CFS). D.M.B. admitted she had abused alcohol within the past thirty days, and had, at other times, used marijuana, cocaine, amphetamines and methamphetamines. CFS diagnosed D.M.B. as suffering from "Alcohol Dependence in partial remission," and "mental health issues[.]" D.M.B. was referred to the substance abuse program at NewPoint Behavioral Health (NewPoint).
CFS modified its referral to provide services directed to D.M.B.'s combined needs of mental illness and chemical addiction (MICA). She enrolled for intensive outpatient services at the Kennedy Hospital Behavioral Health Center. In November 2006, D.M.B. was arrested for driving under the influence and again was admitted to the Family First Treatment Program (FFTP). In January 2007, although D.M.B. reported she was pregnant and substance-free, she tested positive for cocaine. By February 2007, D.M.B. had relapsed and FFTP discharged her for noncompliance.
Norman D. Schaffer, Ph.D., interviewed D.M.B. in the course of a parental fitness evaluation, conducted on August 25, 2006. Dr. Schaffer noted D.M.B. needed to address her "complex set of mental problems," history of trauma, her failures as a parent and the lack of insight and understanding regarding the problems faced by her children. He recommended D.M.B. immediately commence counseling, closely supervised by an experienced psychotherapist, ideally once per week and no less than twice a month.
Edward Baruch, M.D., conducted a psychiatric evaluation on February 22, 2007. D.M.B. admitted she was noncompliant with her mental health medications, and challenged the accuracy of the positive drug test the month before, reporting she was three months pregnant so she "had not used drugs." Dr. Baruch diagnosed D.M.B. as suffering "Alcohol Abuse early remission"; "Cocaine Abuse in early remission"; "Substance Induced Mood Disorder"; "Major Depression"; and sought to "Rule Out Bipolar Disorder[.]" His offered treatment recommendations included intensive outpatient drug treatment, attendance at alcohol anonymous (AA) meetings and the possible use of an anti-depressant, if approved by her obstetrician.
From April 14, 2007 to June 5, 2007, D.M.B. attended an eight-week parent education program through Famcare. She declined to complete the out-of-class work and only reluctantly participated in classroom activities and discussions. D.M.B. often left the classes "for unexcused periods of time" to smoke cigarettes and "on one occasion was observed leaving the building" to get something to eat. Famcare reported "her behavior and lack of participation in class was unacceptable, and did not allow for a proper learning opportunity." Prior to consideration of reunification, Famcare recommended D.M.B. enroll in a more intensive parenting course to address the "many inappropriate expectations [she has] of children, and the inability to understand her role as a parent."
During this period, the Division contact sheets recorded "bizarre and inappropriate behavior during the [supervised] visits." D.M.B. ignored the supervisor's instructions to limit topics of conversation with the children. Instead, she discussed her alcohol and drug abuse and sex, made derisive comments about their sibling's father and suggested to the children they would soon be returned to her care.
On September 11, 2007, D.M.B.'s tenth child, B.B.B., was born. The Division immediately intervened, removing the child and filing a separate action for B.B.B.'s care, custody and supervision. The Division contemporaneously filed its complaint in this matter to terminate D.M.B.'s parental rights in order to allow the adoption of J.D.B., J.A.B. and J.M.B.
D.M.B. participated in a psychological evaluation conducted by Dr. Martha Boston to discern her ability to care for B.B.B. The interview reflected D.M.B. was functioning within the average intellectual ability range and was not clinically depressed. Dr. Boston discerned D.M.B.'s cognitive abilities likely had been affected by her extended drug use and concluded her mental health issues precluded her reliable care of B.B.B.
On November 19, 2007, D.M.B. attended a psychiatric evaluation by Michael Friedman, D.O., who noted "[o]verall, [D.M.B.] was defensive and frequently tried to rationalize her mental illness symptoms[.]" Dr. Friedman stated D.M.B. tended to "minimize responsibility and externalize blame regarding her predicament with the Division's involvement regarding all of her children." Further, she was "clearly mistrustful and... especially suspicious of the Division, and perceived intentions... regarding her children."
Dr. Friedman's diagnosis included post-traumatic stress disorder (chronic), panic disorder with agoraphobia, depressive disorder, alcohol dependence and poly-substance abuse. He concluded D.M.B.'s "history of tumultuous relationships and erratic behavior in combination with her current level of suspiciousness and rationalization, cause[d] concern... regarding her ability to provide an emotionally stable environment for her children." Dr. Friedman recommended D.M.B. participate in continued outpatient psychiatric medication monitoring, attend partial-care counseling, enroll in a MICA program and continue weekly psychotherapy and AA attendance.
D.M.B. again enrolled in NewPoint on January 2, 2008. A staff psychologist concluded D.M.B.'s post-traumatic stress disorder, alcohol and cocaine dependence, and possible borderline personality disorder seriously impeded her level of functioning. D.M.B. was prescribed ten milligrams of Lexapro. Unfortunately, she made little progress toward long-term sobriety, seemed ambivalent about her relapses, and continued to blame others for her problems. While in treatment, she abused alcohol and smoked crack-cocaine.
D.M.B. underwent a psychological evaluation with Genevieve Chaney, Psy.D., who was designated as the Division's trial expert. In her eighteen-page report, Dr. Chaney recited comprehensive findings.
Dr. Chaney noted D.M.B.'s self-report of her situation and substance abuse "tended to downplay areas of difficulty" and "declined outright to discuss certain aspects of her background." D.M.B. presented "highly maladaptive personality features," specifically "longstanding and chronic" symptoms of "Borderline Personality Disorder, which lead to significant impairment in her daily functioning." She "has general difficult[y] in modulating her impulses" and "is vulnerable to frequent, intense fluctuations in mood" causing difficulty in "maintaining consistency in her everyday life" and making her "prone to crises and dramatic encounters." Dr. Chaney noted D.M.B.'s "cognitive abilities are not of concern[;]" instead, "her overall level of psychological stability" was disturbing.
In her report, Dr. Chaney further stated D.M.B.'s "ability to implement parenting skills and knowledge on a consistent basis [wa]s poor" because her "personality functioning [wa]s such that she bec[ame] quickly taxed and overwhelmed in parenting, leaving her at risk for utilizing poor judgment and decision making." Additionally, D.M.B.'s history of trauma and unresolved psychological conflicts inhibited her ability to engage in a secure and consistent relationship with her children.
Another significant risk factor, identified as a "major concern" for her children, was D.M.B.'s "history of substance abuse and drug involvement[,]" which had "greatly interfered with numerous aspects of her life." D.M.B.'s heavy alcohol use and illicit narcotic experimentation combined with her personality problems contributed "to impairments in her ability to accomplish stability in many areas of her life" and prevented her ability to consistently care for her children. Finally, D.M.B. had difficulty accepting responsibility for her behavior, which prevented her from "recognizing areas in need of improvement for herself in caretaking and taking needed steps towards change."
Dr. Chaney summarized D.M.B.'s prognosis as follows:
This evaluation has raised serious concerns about [D.M.B.'s] overall psychological stability. [D.M.B.] presents with symptoms of Borderline Personality Disorder and unresolved feelings regarding past traumatic events, both of which are negatively impacting her daily functioning. A diagnosis of Post-traumatic Stress Disorder (PTSD) cannot be ruled out. While [D.M.B.] is clearly passionate about resuming care of her children this evaluation does not currently recommend that she serve as an independent caretaker. She does not demonstrate the ability to provide a safe and stable home for her children at this time. Unfortunately, this evaluation also finds [D.M.B.'s] overall prognosis for being capable of caring for her children safely and effectively in the foreseeable future extremely poor.
Dr. Chaney separately conducted bonding evaluations between D.M.B. and each child, as well as each child and his or her respective caregivers. Dr. Chaney found ten-year-old J.D.B. was bonded to both D.M.B. and his foster mother, but the child's need for consistent and reliable care was "better served in his current placement with his foster parent [rather] than with [D.M.B.]." During D.M.B.'s bonding evaluation, Dr. Chaney observed that "while there were moments when [her] intentions seemed positive[,] she would then do something to weaken or spoil it." Dr. Chaney often needed to interject cautionary instructions and redirect D.M.B.'s inappropriate conversations, such as interrogating J.D.B.'s feelings towards his foster family, asking "Would you have Mommy as a good Mommy or a bad Mommy?" and questioning "Did I love and care for you?" D.M.B. also made statements that were confusing for the young child. For example, when J.D.B. commented about his foster sister, his mother said, "Girls are girls. I know I drove my boyfriends crazy. We say one thing and do another. It's just something we do. A women likes control sometimes. When you grow up you'll understand. Women are always right."
Dr. Chaney's observations during the foster parent bonding evaluation reflected J.D.B. was positively bonded to his foster mother, had become "an integral part of the household" and the two mutually displayed physical affection for one another. Although J.D.B. would likely experience feelings of grief and loss from the severance of his relationship with D.M.B., the effects of that separation could be endured because of the support of his consistent and nurturing caretaker. Conversely, D.M.B. was unable to mitigate the grief and loss J.D.B. would experience as a result of severing the relationship with his foster mother.
J.A.B. required several mental health interventions and psychiatric hospitalizations to address his impulse control issues, agitated and aggressive behavior and ADHD. The child appeared at ease in the evaluation with his foster parents, who had provided for his care since January 2007. J.A.B. demonstrated signs of a "significant and positive attachment" and the foster parents effortlessly addressed the child's specialized emotional, behavioral and academic needs. The foster parents expressed their commitment to pursue adoption.
Dr. Chaney concluded J.A.B. seemed to "be enjoying a stable, nurturing, and reliable home environment."
Dr. Chaney's findings regarding the results of the bonding evaluation between J.A.B. and D.M.B. were not unlike those of his brother. Dr. Chaney found a bond between J.A.B. and D.M.B., but the attachment was not enduring and "the nature and quality of this relationship [wa]s of concern." Dr. Chaney reported J.A.B. initiated physical affection towards his mother during the session, but D.M.B. did not demonstrate sensitivity toward J.A.B.'s emotional needs, and did not provide the structure and support J.A.B.'s special needs require, even stating to him, "Mommy is going to help you because you have a brain injury and that's what makes you a little off-the-wall."
D.M.B. posed numerous intrusive, confusing questions to the nine-year-old, including inquiring about his religion and God, his opinion on whether she was a bad mother (e.g., "Did I hit you?" or "Does Mommy love you?"), and his recollection of things she had told him about her or his father. D.M.B. also made inappropriate statements. For example, when discussing their separation she stated: "It's not your fault and Mommy's. It's the government. Mommy's talking to the government."
Dr. Chaney concluded D.M.B. could not provide a safe, stable, nurturing, and reliable home environment for her special needs child as "[o]verall, the session had an extremely disjointed and chaotic feel to it." On the other hand, J.A.B.'s foster family appeared well-equipped to meet the child's need for consistency and proved able to mitigate any emotional trauma he might endure following the severance of the child's relationship with his mother.
Finally, Dr. Chaney determined J.M.B. too was positively bonded to her foster parents, who had cared for her exclusively since removal in July 2006. The five-year-old exhibited "a level of comfort and ease with them" and the foster parents were "clearly interested in continuing to care for [J.M.B.]" and did not present or report symptoms of psychological distress. Dr. Chaney opined J.M.B. saw her foster parents as her primary caregivers.
Although D.M.B.'s bond with her daughter was present, its strength and the quality of attachment was limited. D.M.B. was affectionate, but inappropriate. She questioned J.M.B.'s feelings towards her and tested her memory of times they spent together. She inappropriately instructed J.M.B. that her policeman-foster father was called "a P-I-G" and asked whether her foster mother "gets stopped by police." D.M.B. repeated a series of questions regarding her care as a mother previously posed to the two boys, asking: "Did mommy ever hit you, [J.]?" and "Did you like living with mommy?" D.M.B. even asked J.M.B. whether she wanted "to come home to live with her."
Dr. Chaney characterized the relationship in this way: "Given her young age and their lengthy separation, [J.M.B.] likely conceptualizes her mother in a role that is secondary to her relationship with her foster parents[.]" As she found with the older two children, Dr. Chaney also determined J.M.B.'s need for a consistent and reliable caregiver was better served by her placement with the foster parents. D.M.B. was limited in her ability to place J.M.B.'s needs before her own and could not effectively mitigate J.M.B.'s feelings of loss and grief if separated from her foster parents. J.M.B. would suffer grief and loss from the severance of her relationship with D.M.B., however her foster parents could effectively assuage this trauma.
Over a four month period, from October 2007 to January 2008, the Division had arranged for D.M.B. to attend psychotherapy with Dr. Juanita Blakney. Dr. Blakney focused her treatment toward mitigating D.M.B.'s post-traumatic stress, alcohol dependence and depression. By January 9, 2008, Dr. Blakney recommended the resumption of therapeutic visitation with the children, which she supervised. Unfortunately, during the first visit, D.M.B. walked out, leaving J.D.B., J.A.B., and J.M.B. alone so she could see what was happening in another room, where B.B.B. was visiting her father. As visits continued, Dr. Blakney noted D.M.B. had a complete lack of understanding of the impact her actions and statements had on the children. In her progress reports, Dr. Blakney noted D.M.B. allowed other personal relationships to affect her parenting; continued inappropriate inquiries and whispered inappropriate comments to the children; seemed more concerned with what Dr. Blakney was writing than with the children; at times, read or talked on her cell phone rather than interact with the children; reflected no warmth towards her children; left visits early; and became "frustrated with the children's behavior and [wa]sn't quite sure how to respond to some of their inappropriate behavior(s)." D.M.B. also uttered threats toward the therapist, "constantly mak[ing] comments such as 'I'll get you back'; 'they don't know who they're messing with[.]'"
Dr. Blakney's final report in July 2008 stated:
I certainly do not feel that, at this point and time, [D.M.B.] is ready to receive her children back into her life as a full time parent. I am told that after each visit the children's behavior regresses. If this is the case, then it certainly is not beneficial to continue these visits.
The Division's case notes reported that following visits with his mother, J.A.B. experienced recurrence of encopresis and the other two children were having behavioral issues, including clinging behaviors and inability to sleep.
At this time, D.M.B. relapsed, turning again to alcohol and drug abuse. Consequently, an order dated September 12, 2008 terminated all future visitations with her children. D.M.B. has not had contact with the children since.
The guardianship trial commenced on June 23, 2008 and continued on three nonconsecutive days. The Division advanced its request to allow the children's respective caregivers to adopt them because, despite ongoing treatment, D.M.B.'s unabated psychiatric and substance abuse problems posed continued harm to the children, who had become unavoidably attached to their foster parents, warranting the termination of D.M.B.'s parental rights.
The Division presented testimony from caseworker Lauren Keebler, who recited the factual circumstances causing placement, the services extended to D.M.B. and the children, the children's current status in school and their adjustments to their foster placements. Additionally, documents were moved into evidence including the Division contact sheets, progress reports, health evaluations, psychological assessments, counseling reports, drug screens, school records, medical and expert reports.
The Division also presented Dr. Chaney, whose expert qualifications were unchallenged. Dr. Chaney's testimony mirrored her reported findings and opinion.
Dr. Chaney opined the parental capacity of the adults and the relational bonds secured with the children. Dr. Chaney emphasized the overriding harm to the children posed by D.M.B.'s substance abuse, in combination with her mental illness. The children's harm remained heightened and D.M.B. could not offer a stable environment because of her inconsistent compliance with her medication regimen, her lack of commitment to therapy and her indifference to achieving sobriety. D.M.B.'s recent relapse illustrated and reinforced the continued dangers presented if the children were returned to their mother. Dr. Chaney noted that every expert who had examined D.M.B. concluded intervention had not been successful. She concluded the likelihood of success of any future efforts by D.M.B. to remain substance-free was "poor or guarded[.]"
D.M.B. testified on her own behalf. She asserted she loved her children and "want[ed] them back." D.M.B. denied she engaged in inappropriate inquiries during visitation and suggested problems could be resolved by replacing the Division supervisor. In an effort to show she was able to provide the type of care the children needed, she responded affirmatively to leading questions posed on direct, probing her understanding of the difficulties experienced by the children after visits, including J.D.B.'s inability to eat and J.A.B.'s regressive behavior. When asked how she would resolve these difficulties, D.M.B. said she would kiss her son's cheek and "tell him eat."
D.M.B. admitted she dealt with problems by "walking away," but argued her requests for the Division's intervention was appropriate and did not result in harm to the children. D.M.B. asserted she did not "like working with people" so she received Supplemental Security Income and lived with her boyfriend who also contributed to living expenses.
D.M.B. advised she had been prescribed Paxil and saw a psychiatrist each month. As to her alcohol abuse, D.M.B. characterized her relapses as "slip-ups," acknowledging she's "been in every program" and "finished programs[.]" She testified she was currently enrolled, "off and on" for "two years," in "an awesome program that teaches her so much," called "Fresh Start," which was a "cognitive therapy" program. On cross-examination, however, D.M.B. admitted she had been discharged from Fresh Start thirty days earlier for noncompliance.
D.M.B. admitted that in 2006, she engaged in violent conduct with her boyfriend, smashing the windows of his van with a bat because she "felt like doing [it]." D.M.B. maintained she could not be held accountable for something that she did while under the influence. D.M.B. denied that she smoked crack, claiming the Division "wrote it all wrong."
She blamed the Division for not helping her and for "destroying her family," as it "want[ed] to adopt [her] children away [sic]" and "just get rid of [her]." When asked whether she understood the nature of the court proceeding, D.M.B. stated, "To destroy me as a parent."
On March 20, 2009, the trial court entered a judgment terminating D.M.B.'s parental rights and awarding the Division guardianship of J.D.B., J.A.B. and J.M.B. No oral or written findings of fact or legal conclusions to support the entry of judgment were rendered. D.M.B. appealed.
Normally, our review is limited, In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); see also In re Guardianship of Jordan, 336 N.J. Super. 270, 273 (App. Div. 2001), as we are obliged to accord deference to the trial judge's factual findings and credibility determinations, and respect the judge's "feel of the case" based upon the opportunity to see and hear the witnesses. N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)), aff'd in part and modified in part, 179 N.J. 264 (2004); see also N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) ("When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support."). Here, however, the court merely entered a judgment terminating parental rights without making any supporting findings or conclusions.
Following appeal, on D.M.B.'s motion to settle the record, we temporarily remanded the matter to the trial judge, ordering her to provide the necessary findings of fact and conclusions of law. The judge complied by submitting a "working copy" of her "Memorandum of Decision." She retracted this document replacing it with a "correct and final" thirty-eight page "Memorandum of Decision" filed on November 13, 2009.
The "Memorandum of Decision" recites a chronological history of the Division's intervention, beginning with a discussion of D.M.B.'s oldest child P.B. in July 1986. The detail expressed in the twenty-eight pages of facts lists information that is unnecessary and of only limited relevance to the matter at hand. The second section, entitled "Conclusions of Law," accurately relates the statutory prongs and applicable case law. The Memorandum identified those facts of record that clearly and convincingly supported each statutory prong and concluded termination of parental rights was warranted.
Had this document been the court's independent work, our review would easily affirm the court's conclusion as the record reveals the Division submitted clear and convincing evidence, amply proving the best interests test. What is disturbingly certain, however, is the submitted memorandum is not an original writing by the court; regrettably, when the court's "Memorandum of Decision" is aligned with the Division's post-trial submission, they are, with few exceptions, the same. Our examination of the soundness of the trial court's judgment is, therefore, hampered by what we consider the trial judge's failure to make independent findings and conclusions.
We have repeatedly stressed the importance of a trial judge's predominate responsibility: that is, to provide findings of fact and conclusions of law in matters decided by the court. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). Rule 1:7-4(a) denotes the trial court's explicit obligation, instructing that "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury[.]" The oft-cited holding of the Supreme Court regarding a trial court factfinding obligation bears repeating:
Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. [Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]
See also, Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, 384 n.8 (2010). Without factual findings relevant to the legal standards governing the trial court's action, the litigants and the reviewing court "can only speculate about the reasons" for the court's decision, preventing informed appellate review. Rosenberg, supra, 214 N.J. Super. at 304.
We have noted that Rule 1:7-4(a) is silent in directing how a court accomplishes its task. Further, we have concluded the presentation of findings and conclusions is "vested in the sound discretion of the trial judge." In re Trust Created by Agreement Dated Dec. 20, 1961, by & between Johnson, Hoffman, Lienhard & Perry (Johnson Trust), 399 N.J. Super. 237, 253 (App. Div. 2006), aff'd by In re John Seward Johnson 1961 Charitable Trust, 194 N.J. 276 (2008).
Our holding in Johnson Trust is instructive on this issue. In that matter we examined the trial court's findings following a plenary hearing to discern the intent of a trust instrument following the transferor's death. Id. at 252-53. The trial judge's bench opinion made certain findings, including credibility determinations, and also adopted the findings of fact submitted in the brief of one party. Id. at 253. The appellant challenged the court's adoption of the party's submission as insufficient factfinding, precluding appellate review. Id. at 253.
Following our review, we rejected the appellant's position and concluded a judge may rely on the findings proposed by a party, "as long as the judge makes such reliance explicit." Id. at 253-54 (citing Pressler & Vererio, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2011)); see also Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 612, (App. Div. 1984) (holding a judge may grant or deny a new trial motion "for the reasons posited by the parties" rather than issue a statement of its grounds as long as that reliance is disclosed).
We noted "[t]he purpose of the rule is to make sure that the court makes its own determination of the matter." Johnson Trust, supra, 399 N.J. Super. at 254. Therefore, where appropriate, in addition to its factual findings, including the discernment of the credibility of witnesses, a trial court may adopt the statements proffered by one party if the court (1) identifies which findings it chooses to adopt and (2) clearly sets forth why the statements accurately reflect the court's determination, following its reasoned review. Without providing attribution and the basis for accepting one party's statements, it is impossible to know whether a court "decision" reflects its application of judgment, or reiterates the position of the recited party.
In limited instances when a trial court sees fit to adopt a party's submission, compliance with these two requirements comports with "the bedrock principle articulated in Canon 1 of the Code of Judicial Conduct that '[a]n independent and honorable judiciary is indispensable to justice in our society.'" DeNike v. Cupo, 196 N.J. 502, 514 (2008) (quoting Canon 1 of the Code of Judicial Conduct); see also Rule 1:14 (providing "the Code of Judicial Conduct of the American Bar Association, as amended and supplemented by the Supreme Court and included as an Appendix to Part I of these Rules... shall govern the conduct of... the judges... of all courts in this State"); In re Mathesius, 188 N.J. 496, 501 (2006).
Applying these principles to this matter, we note that unlike Johnson Trust, nothing in this record hints of the trial judge's articulated adoption of the Division's findings. As we discuss in more detail below, this was not a close case and the body of evidence supporting the termination of D.M.B.'s parental rights was overwhelming. Despite the lopsided nature of the proofs that supported the Division's requests, it is hard to imagine the rationale for "copying" the Division's submission. Accordingly, we conclude the Memorandum of Decision issued by the trial judge, which merely mirrored the Division's submission, fails to "provide clear evidence that the trial judge carefully considered the evidentiary record and did not abdicate h[er] decision-making responsibility[,]" id. at 254, and must be set aside.
We can think of no more important matter than the court's review of the status of a child. The impact of the court's decision on a parent's rights, the child's future and the public interest, demand that every trial judge assiduously comply with the extraordinary responsibility of the office. We are cognizant of "the constant demands for intervention placed upon our Family Part judges." Parish v. Parish, 412 N.J. Super. 39, 53 (App. Div. 2010). Nevertheless, neither the demands of the workload nor the constraints of time excuse the failure of a trial court to perform its designated functions. Judges must do their own work and the non-attributed utilization of a party's legal submissions is an unacceptable substitute. Justice demands no less from those appointed to serve the public as members of the judiciary; he or she assumes not only the responsibility to fairly preside over trials but also to independently evaluate the evidence and render a decision. See Id. at 54 ("The business of the courts is to finalize disputes."). The public's confidence in the judiciary is eroded when, as here, it appears the court simply reiterated the arguments advanced by the Division, rather than independently reaching its conclusion to award guardianship.
With that said, we examine D.M.B.'s challenges to the sufficiency of the trial evidence supporting guardianship. Prior to undertaking our independent review of the record to discern whether the Division has sustained its burden of proof, we recite the well established principles that guide our analysis.
"[A] parent's right to raise a child and maintain a relationship with that child is constitutionally protected under the federal and state Constitutions." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 434 (App. Div. 2009) (internal quotations and citations omitted). See also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, those rights "are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). In order to balance parental rights and the State's interest in protecting the welfare of children, courts are to apply the "best interests of the child standard." K.H.O., supra, 161 N.J. at 347. Pursuant to N.J.S.A. 30:4C-15.1(a), parental rights may be terminated when the following standards are met:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]
These four prongs are not "discrete, but rather relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." A.R., supra, 405 N.J. Super. at 434 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008) (citing K.H.O., supra, 161 N.J. at 348)) (internal quotations omitted). The Division has the burden to prove by clear and convincing evidence that the parental rights should be terminated. E.P., supra, 196 N.J. at 103; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); A.R., supra, 405 N.J. Super. at 434; N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 287 (App. Div.), certif. denied, 196 N.J. 347 (2008).
The first prong of the statute requires a finding of harm, resulting from the parental relationship, which endangers the child's health and development. K.H.O., supra, 161 N.J. at 348. "[T]he harm shown... must be one that threatens the child's health and will likely have continuing deleterious effects on the child." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting K.H.O., supra, 161 N.J. at 352). Satisfaction of this standard does not necessarily require an act of physical abuse but encompasses psychological and developmental injury. In re Guardianship of R., G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977). Moreover, it is not necessary to wait "until a child is actually irreparably impaired by parental inattention or neglect" before action should be taken. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
A specific example of the type of harm envisioned by the Legislature includes the extended withdrawal by the parent of solicitude, nurture and care, as well as a pattern of inattention to a child's needs, which frequently leads to bonded relationships with foster parents, the severance of which would cause psychological trauma. Id. at 379; N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).
In this matter, the Division's first involvement with D.M.B. in 1986 resulted from her consistent abuse of alcohol and drugs. D.M.B. correctly recited she has attended many substance abuse programs. Unfortunately, she never fully embraced rehabilitation other than during short periods of sobriety. Likewise, D.M.B. inconsistently complied with mental health treatment. Her approach to her mental health needs was similar to her substance abuse rehabilitation: after a crisis, she briefly would be compliant, then abandon her medication regime, resume substance abuse and disregard her medication. Management of the dual demons of mental illness and addiction proved overwhelming for D.M.B. At trial she again had abandoned substance abuse treatment and was not attending counseling.
Regrettably, the children were at risk each time D.M.B. moved from medication to alcohol or drugs. She repeated a pattern of behavior, leaving them alone, unconcerned for whether they were safe or fed and demonstrated an exceedingly limited understanding of their needs.
D.M.B.'s alcohol abuse, mental illness and personality disorders caused her to lack the capacity to care for her children. In fact, among the numerous evaluations performed over the course of the Division's involvement with D.M.B., not one proposed a plan leading to the likelihood D.M.B. could timely provide a safe and stable home for the children. The substantial and credible evidence clearly and convincingly supports a conclusion that the children's health, safety and development were harmed by their relationship with D.M.B.
The second statutory prong focuses our inquiry to determine "not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." A.R., supra, 405 N.J. Super. at 434-35 (quoting N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006)), certif. denied, 190 N.J. 257 (2007). This prong "is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child[.]" K.H.O., supra, 161 N.J. at 348.
The cycle created by D.M.B.'s unmonitored mental illness -- becoming overwhelmed, discarding prescription compliance and turning to alcohol or drugs -- impeded her recovery. D.M.B. asserts she should not be held responsible for this difficulty. While we agree D.M.B.'s mental illness, for which she "may be morally blameless," is an unfortunate situation, which is "not conclusive" of whether she should be denied permanent custody, N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001) (quoting R.G. and F., supra, 155 N.J. Super. at 194-95), certif. denied, 171 N.J. 44 (2002), however, we cannot ignore her repeated failure to maintain medication and psychiatric monitoring in favor of substance abuse. This combination of conduct belies D.M.B.'s current assertion of willingness to remedy her substance abuse and resume parenting.
Even during trial, D.M.B. minimized the impact of her behavior on the children, calling her substance abuse relapses "little slips." Dr. Chaney confirmed D.M.B.'s relapse and resumption of substance abuse would "have a detrimental impact on [D.M.B.'s] parenting, [and] could be disinhibiting... [and] impair [D.M.B.'s] judgment in regards to parenting[,]" resulting in harm to the children. Despite the services offered, D.M.B. failed to understand her parenting deficits.
She admitted she "just leaves" when unable to control the children, conduct which she thought admirable.
The children have been in foster care for four years. Their need for a permanent placement is of paramount concern. K.H.O., supra, 161 N.J. at 352. We conclude the substantial and credible evidence in the record shows D.M.B. cannot demonstrate an ability to eliminate the harm facing J.D.B., J.A.B. and J.M.B. Moreover, based on the current attachment to their foster parents, the Division has clearly and convincingly shown that additional delay in securing the children's permanent placement will further add to that harm.
As to the third prong, the general rule is [i]n any case in which the Division accepts the care or custody of a child, "the [D]ivision shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home." N.J.S.A. 9:6-8.8(b)(2). Even after placement, "the [D]ivision shall make reasonable efforts to make it possible for the child to safely return to his home." Ibid. [G.M., supra, 198 N.J. at 398.]
The inquiry focuses on what efforts, if any, the Division has undertaken to facilitate family reunification and assist a parent in "correct[ing] and overcom[ing] those circumstances that necessitated placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. The statute lists four non-exclusive methods by which "reasonable efforts" may be established:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c).]
The Division's efforts are to be reviewed in light of the facts and circumstances of each particular case. D.M.H., supra, 161 N.J. at 390. Likewise, they are not to be judged on the success or failure of a parent to respond to the offered services. Id. at 393.
The Division introduced evidence showing it had extended services to D.M.B., including: medical and psychiatric examinations and treatment; individual psychotherapy, psychological evaluations and services; family and in-home counseling; substance abuse treatment, aftercare services and MICA group therapy; and parent education classes, supervised visitation through Robin's Nest, ARC, and the Division. There is no doubt this prong has clearly and convincingly been satisfied.
Lastly, we address the fourth prong, which "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The Court has noted that it "is widely understood that a 'child deeply needs association with a nurturing adult' and that 'permanence in itself is an important part of that nurture.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (2007)).
The strong public policy of New Jersey favors permanency of child placement. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.), certif. denied, 180 N.J. 456 (2004). See, e.g., N.J.S.A. 30:4C-11.1. We have previously observed, Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. In response to the reforms resulting from the Federal Adoption and Safe Families Act of 1997, the emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement. [N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209-210 (App. Div.), certif. denied, 192 N.J. 293 (2007) (internal quotations, footnotes and editing marks omitted).]
We must review whether a child will "suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. Although temporary foster-parent bonding is generally insufficient to justify termination of parental rights, In re Guardianship of J.C., 129 N.J. 1, 19 (1992); N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419, 432 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992), exceptions are made where separating the child would "threaten 'serious and enduring emotional or psychological harm.'" B.G.S., supra, 291 N.J. Super. at 593 (quoting J.C., supra, 129 N.J. at 19).
In this regard, we rely on Dr. Chaney's uncontroverted, unwavering trial testimony. See J.C., supra, 129 N.J. at 25 (holding that in assessing the comparative harm, we consider expert evaluations of the strength of the children's relationships both with their biological parent and with their foster parents). Dr. Chaney made clear D.M.B. is unable to provide a safe home for her children; each child had formed stable, nurturing relationships with their respective caregivers, with whom they were attached; and the respective foster parents met the children's needs for permanency. Dr. Chaney opined, to a reasonable degree of medical certainty, the children would suffer significant grief and loss if separated from their foster parents. D.M.B. was oblivious to this harm or had no ability to lessen its impact. The prong has clearly and convincingly been met.
Following our independent review of the trial record, we determine the proofs submitted by the Division clearly and convincingly satisfy each of the four statutory prongs. We conclude the best interests of J.D.B., J.A.B. and J.M.B. are served by terminating D.M.B.'s parental rights. The judgment of guardianship will be affirmed. B.G.S., supra, 291 N.J. Super. at 592.
We briefly discuss D.M.B.'s additional arguments. First, we are not persuaded that termination is unwarranted because it did not consider its impact on sibling relationships. In N.J. Div. of Youth and Family Servs. v. S.S., 187 N.J. 556, 560 (2006), the Court instructed trial courts should consider the strength and importance of sibling relationships when assessing possible guardianship. Without question, maintaining sibling unity of the related children in foster placements is preferable. See In re D.C., __ N.J. __, __ (2010) ( "Clearly, if sibling bonds are important in healthy families, they are critical to children who experience chaotic circumstances."). Sadly, this goal is not always possible. S.M. v. A.W., 281 N.J. Super. 63, 71 (App. Div.), certif. denied, 142 N.J. 571 (1995). A change in sibling relationships will not defeat the objective for terminating parental rights, which is to achieve for an individual child the "paramount need for a permanent and defined parent-child relationship as well as a deep need for a nurturing adult[.]" C.S., supra, 367 N.J. Super. at 119 (internal quotations and citations omitted).
Second, we reject as meritless D.M.B.'s argument that the court misinterpreted the evidence and relied on documents not entered into evidence. R. 2:11-3(e)(1)(E). Any effect of the trial judge's incorrect recitation of past events or reference to documents evidencing the remote events unrelated to these three children is inconsequential as a result of our original review. R. 2:10-2. Similarly, any references to plaintiff's exhibit three, alleged not to have been moved into evidence, in no way led to an unjust result as the facts contained in the exhibit were presented by Keebler's testimony and contained in D.M.B.'s mental health records.
Third, arguments challenging the court's discretion to admit evidence or consider past contacts between D.M.B. and the Division, even though they did not result in a report of substantiated abuse, are rejected as lacking merit. R. 2:11-3(e)(1)(E).