On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-56-09.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Simonelli.
S.R. (defendant) is a single mother, whose youngest child, Anna (a fictitious name), encountered serious medical difficulties soon after birth necessitating a heart transplant when she was two years old. Believing defendant's involvement with and devotion to the child's care prior to the transplant surgery was inadequate, the Division of Youth and Family Services (the Division) removed Anna from defendant's care and commenced this action. After a hearing, the trial judge approved a permanency plan that called for the termination of parental rights and adoption by the child's foster parents. We reverse because: the trial judge erroneously excluded testimony from defendant's sister regarding her availability and capability as a potential caregiver; the Division's efforts to preserve the family and prevent the need for removal, or to make it possible for the child to safely return home in this difficult situation, were minimal and hardly reasonable; and the judge's determination appeared to be based largely on defendant's impoverished circumstances.
The evidence adduced in the trial court revealed that defendant is the mother of three children. The first child was born in 2000, when defendant was fifteen years old, the second, Alice (a fictitious name), was born in 2003, and Anna was born on February 5, 2007. The action involved only Alice and Anna, and this appeal concerns only Anna.
Anna had severe medical problems that manifested soon after her birth. In June 2008, defendant was concerned about Anna's complexion, which seemed pale, and took her to the hospital. She was told the child had asthma, and defendant and the child were sent home to Trenton with a nebulizer. Defendant soon returned to the hospital when the child's complexion seemed blue; this time the child was diagnosed as having a congenital disease, which prevented sufficient oxygen from reaching the left side of her heart. In August 2008, Anna was admitted to a hospital in Philadelphia for a catheterization. The child's difficulties, however, continued and, on September 4, 2008, she was transported to Children's Hospital of New York (CHONY), where it was determined that her condition would best be resolved by a heart transplant.
Anna was placed on a transplant waiting list and CHONY assembled a transplant team, which recommended defendant's presence at the hospital at 8:30 a.m., every Monday and Friday, so she could learn to emulate the post-transplant requirements. A CHONY pediatric nurse practitioner testified she told defendant that following the surgery Anna would need blood work twice a week and explained to her that children who undergo transplants are admitted to the hospital an average of four or five times a year because of the possibility of rejection or infections. She also explained to defendant that the medication regime was "very intense," necessitating timely delivery of daily medications.
In the middle of September 2008, approximately a week or two after the child's admission, the transplant team became concerned that defendant was not consistently present and available. Defendant explained her difficulties, which included a pending eviction proceeding, to a CHONY social worker. On October 28, 2008, CHONY contacted the Division to advise of defendant's inconsistent appearances and of CHONY's concern that, when present, defendant was not sufficiently involved. Two days later, the Division served defendant with notice of an emergency removal of the child from her care and, on November 3, 2008, filed a verified complaint, alleging that defendant had abused or neglected Anna, as well as Alice. At the same time, CHONY took Anna off the active transplant list ostensibly because it viewed defendant unfit to care for Anna if the surgery were to take place. The trial judge concluded that the emergency removal was appropriate and that it "would have been contrary to the welfare of the child" if the Division did not intervene because an opportunity for a heart transplant could have been lost and her life jeopardized otherwise. The judge recognized there were factual disputes about the circumstances that warranted CHONY's actions and that in the brief interim before the return date of the order to show cause the situation might "get back on track."
On the return date of the order to show cause, December 2, 2008, the
Division sought the continued care, custody and supervision of Anna,
as well as Alice.*fn1 The Division also
recommended that defendant engage in SHSP training.*fn2
The brief discussion on the record at that time revealed the
confusing situation faced by defendant in these difficult
circumstances, and the Division's alleged minimal efforts to assist
her. As for the SHSP training, defendant asserted that the caseworker
had mentioned it but failed to provide her with the paperwork required
for her attendance. In the discussions regarding defendant's need to
be at CHONY twice a week, the Division explained that it provided
defendant with train tickets.
Overlaying this difficult situation was defendant's impoverished circumstances. She was, at that time, a single mother in her early twenties,*fn3 who had not graduated from high school and was living on welfare. Her financial inability to make the trip twice a week from her Trenton apartment to CHONY at 165th Street and Broadway in New York City was apparently assumed, and correctly so. Besides the fact that the tickets provided by the Division would only take defendant to midtown Manhattan,*fn4 the brief discussion on the record also revealed confusion as to whether the tickets were only for a one-way trip from Trenton to New York without a return. The caseworker suggested at the brief hearing on the return date that defendant was mistaken about the train tickets and, as for the rest of defendant's trip -- from midtown Manhattan to CHONY -- the caseworker explained to the judge that he told defendant she should "get some money, buy the Metro ticket, and . . . bring me your receipt because the Division . . . agreed to reimburse" her. The judge directed that defendant and the caseworker later meet and work out these logistical difficulties.
When asked whether she was "in touch with the hospital," defendant explained to the judge the difficulties she had in discussing the matter with hospital staff by phone. Defendant had been given a telephone number to call; she described how her frequent calls would either go unanswered or, when answered, she was told a message could not be taken. No findings were made about these assertions, and the judge suggested to defendant that she keep a record of when she telephoned the hospital. The judge then scheduled the matter for a fact-finding hearing.
Anna underwent heart transplant surgery on February 23, 2009. Defendant was present in the hospital during the surgery and visited the child on March 9, 11, and 24, 2009.
On March 18, 2009, defendant submitted to a psychological evaluation during which she revealed to Dr. Jamie Gordon-Karp certain facts about her life. Defendant reported: that she had been incarcerated for six months in 2004 on a drug charge; that, as a high school student, she had given birth to her first child and never completed her high school education; and that the fathers of her children were incarcerated. Defendant also told Dr. Gordon-Karp she had little support from her own mother or her six siblings in dealing with Anna's situation or with regard to Alice, who was diagnosed as having attention deficit hyperactivity disorder. Dr. Gordon-Karp found defendant was experiencing symptoms of anxiety and feelings of depression and that she was bitter and felt victimized, overburdened, and mistreated. Although Dr. Gordon-Karp recognized that defendant loved her children and wanted the best for them, she also believed defendant's lack of family support and her own failure to take the initiative contributed to her difficulties. Dr. Gordon-Karp concluded defendant was so overwhelmed by her situation that she had difficulty communicating her needs and expressing her intentions; she described defendant as moody and unpredictable with a pattern of self-pity, negativism, fault-finding, and pessimism, accompanied by periodic angry outbursts followed by expressions of guilt and remorse. Dr. Gordon-Karp found defendant's attempts to comply with the hospital visitation schedule to be abysmal but that defendant also had the intelligence to benefit from training to improve these circumstances.
On April 9, 2009, the Division conducted a family meeting with defendant, as well as her sister (K.R.), mother, and grandmother. Also in attendance were a nurse, a Division caseworker, and the caseworker's supervisor. A contact sheet prepared by the caseworker asserted that K.R. was willing to care for Anna following her release from the hospital, but "due to [K.R.] having [four] children of her own [aged twelve, six, two, and seven months], it was decided that [Anna] could not be placed there" and that, instead, she would be placed in a SHSP foster home. On May 19, 2009, the Division sent letters to K.R. and other family members ruling them out as possible caretakers; the letters also indicated how a hearing could be sought to review those determinations.
A Division caseworker testified at the fact-finding hearing that SHSP training was recommended to the family members. The record on appeal contains copies of the Division's letters, dated May 27, 2009, which purported to advise defendant, K.R., and the other relatives that attended the family meeting that they could attend SHSP training on June 1 through 4, 2009 in Trenton. Only defendant underwent training, attending three of the four sessions.
In August 2009, the Division referred defendant for group therapy with the Children's Home Society. In a December 2009 report, the therapist observed that defendant felt overwhelmed by her circumstances but had begun to share with other members of the group. The therapist noted that defendant's "compliance with services is inconsistent," which did not generate "much confidence in making a recommendation for reunification with either child" and compelled the therapist's suggestion that the Division "work on a current plan for [Anna] that involves an alternative permanency plan."
These and other facts were elicited over the course of a multi-day hearing. The court also heard from Anna's foster mother, who testified she had undergone SHPS training before taking Anna home from the hospital approximately two months after the transplant surgery. She testified about the medications Anna required, the use of a halter to monitor the child's heart function, and the need to take the child to CHONY twice a week for blood tests and biopsies to ensure her body's acceptance of the heart. From the time the child was discharged from the hospital until the date of the foster mother's testimony -- slightly less than one year -- the foster mother had been required to take Anna to the hospital approximately thirty-five to forty times.
The foster mother testified that Anna's needs were so extensive that she was required to terminate her employment in order to stay home full-time with Anna.*fn5 On cross-examination, the foster mother acknowledged she received $1100 per month from the Division to care for Anna and that the Division also advised her of its ability to provide medical transport for the child.
Defendant testified. She spoke of her living arrangements -- that she was a single mother not quite twenty-five years old, living in a two-bedroom subsidized apartment in downtown Trenton, and that she had not completed her high school education -- and described her severe financial problems, which were exacerbated by her loss of SSI benefits for Anna when she was placed in the Division's custody. Defendant received $322 per month in public assistance from which she was required to pay rent; she had faced multiple eviction attempts. Despite advising the Division of these circumstances, little assistance was provided to help her meet the transplant team's requirement that she be at the hospital two times a week, except for the providing of train tickets, which covered a large portion but not the entire round trip between Trenton and CHONY.
In response to inquiries about her attendance at certain events, defendant provided multiple examples of the Division caseworker leaving letters at her apartment setting appointments in New York City for the following day. Due to her financial difficulties and the unavailability of money to travel to New York, such short notice practically guaranteed her inability to attend. Even when ample notice was given, defendant had difficulties in traveling to CHONY twice a week. Although the Division provided train tickets from Trenton to midtown Manhattan, defendant also had to take a bus from her neighborhood to the Trenton train station as well as a subway from Penn Station to CHONY, and at times she simply did not have the cash to pay for those additional legs of her trip. She testified that she told the caseworker about this, and his response was that she would "have to get the money," and the Division would reimburse her. As noted, although the Division advised the foster mother of the availability of medical transportation, defendant testified that the caseworker never so informed her.
As for the future, defendant testified about her intentions to obtain a high school diploma and to learn a trade. She expressed her belief that she had matured during this crisis and that her relationships with family members had improved, resulting in her receiving emotional support not previously available. Defendant testified to her plan of having Anna returned to her home or, in the alternative, that Anna be placed with defendant's sister, K.R., who was a certified nurse ...