March 24, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF A.R. AND A.N.M.P., MINORS.
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RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 9, 2011
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 assistant. Defendant also testified about the disturbing comments and behavior of the then two-year-old Anna during visitation.*fn6
In addition, defendant sought to present K.R.'s testimony but was successfully blocked by the Law Guardian. When K.R. was called, the Law Guardian argued that if defendant's intent was to have her testify about her willingness and ability to be Anna's caretaker, the prior rule-out determination precluded its consideration. The judge asked for a description of K.R.'s anticipated testimony, and defense counsel represented that K.R. would testify that she "was available throughout this case to provide care for both of the children" and that she did answer the rule-out letter but had not "gotten a response." Defense counsel sought to present K.R.'s testimony in order to present her as "a viable candidate for placement of the child" and to demonstrate that "she remains a person that's interested in being a placement resource." The judge agreed with the Law Guardian's argument and prevented K.R. from testifying.
Following the parties' summations, the trial judge rendered a lengthy oral decision on January 20, 2010, explaining why he determined that the Division made reasonable efforts to improve the circumstances that led to the child's removal and that the best plan called for the termination of parental rights. An order memorializing this determination was entered the same day.
Defendant immediately moved for a best interests hearing in seeking a change in Anna's placement from the foster parents to K.R. This application was heard by a different judge, who ruled that the issues defendant was desirous of pursuing about placement of the child with K.R. would be rolled into the guardianship trial.*fn7 With the entry of an order dismissing this action on June 16, 2010, defendant filed this appeal.
In this appeal, defendant argues:
I. THE DIVISION . . . FAILED TO PREVENT [ANNA'S] PLACEMENT OUTSIDE THE HOME AND MAKE REASONABLE EFFORTS TO PROMOTE A RETURN HOME UPON REMOVAL PURSUANT TO N.J.S.A. 30:4C-11.1(b).
A. [Defendant] Was capable of caring for her Daughter, if Not Immediately After Transplant, then Shortly Thereafter with the Assistance of the Division.
II. THE COURT ERRED WHEN IT FAILED TO CONSIDER RELATIVE PLACEMENTS AND POTENTIAL KINSHIP LEGAL GUARDIANSHIP WITH [K.R.].
III. THE COURT ERRED IN NOT HOLDING A DISPOSITIONAL HEARING TO CONSIDER WHETHER [ANNA] COULD BE RETURNED, AND IF SHE COULD NOT BE, WHETHER THE APPROPRIATE ALTERNATIVE WAS WITH A RELATIVE RATHER THAN THE CURRENT CARETAKER GIVEN THE TODDLER'S SEXUALIZED BEHAVIOR AND DEMEANOR AND FOUL DEMEANOR AND LANGUAGE SINCE IN PLACEMENT.
Both the Division and the Law Guardian contend that the proceedings enveloped all relevant allegations and that the judge's approval of the Division's plan of having Anna remain in the foster home followed by the termination of parental rights and adoption was supported by the evidence. The Division also argues that the relief sought has been rendered moot by the current judge's direction that defendant's contentions regarding placement with K.R. be revisited during the guardianship trial; the Law Guardian separately claims that defendant should be left to pursue her claims regarding placement of Anna with K.R. in a different forum. We reject both arguments, and after close examination of the record in light of all the parties' arguments, we remand to the trial court for the following reasons: (a) the judge erroneously prevented defendant from calling K.R. to testify about her availability and capability to care for the child, a circumstance that was certainly relevant to the child's placement; (b) the evidence did not support the judge's conclusion that the Division provided reasonable efforts; and (c) the Division's proofs in support of its permanency plan were largely based on defendant's dire financial circumstances and not on any unwillingness on her part to improve her circumstances in order to care for this medically-fragile child.
We preface our examination of these issues by first adverting to the well-accepted constitutional principles that an individual's rights to conceive and raise children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923), "basic civil rights," Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942), "far more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533, 73 S. Ct. 840, 843, 97 L. Ed. 1221, 1226 (1953). See generally Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Yet, the state "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979). In short, "the right of parents to be free from governmental intrusion is not absolute," and the state "as parents patriae may act to protect minor children from serious physical or emotional harm"; the invocation of that power may, at times, permit "a partial or complete severance of the parent-child relationship." A.W., supra, 103 N.J. at 599 (quoting In re Dep't of Pub. Welfare, 421 N.E.2d 28, 36 (Mass. 1981)).
Every case is fact-sensitive. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 287 (2004). And each contest between a parent's rights and the state's interest in the child's welfare requires "scrupulous adherence" to the procedural safeguards adopted by our Legislature. Id. at 286; see also N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 109 (App. Div. 2010). Our insistence on "scrupulous adherence" to procedural safeguards leads to our examination of the first reason for reversing -- the judge's barring of K.R.'s testimony.
In ensuring that a parent is afforded the procedural safeguards enacted by the Legislature, a trial court must also allow for the exploration of all issues probative of the essential question posed, which here concerned the removal of a child from a mother's custody and placement with a stranger. It is in that vein that we find error in the judge's refusal to hear K.R.'s testimony and examine the accuracy of the Division's claim that K.R. declined or expressed disinterest in caring for Anna.
In enacting the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, the Legislature recognized that when there is a need to place a child outside the home -- in furthering the "paramount concern" for the child's safety, N.J.S.A. 9:6B-2b -- the state's "best efforts" must include "the provision or arrangement of financial or other assistance and services as necessary, to place the child with a relative." N.J.S.A. 9:6B-4b (emphasis added); see also In re E.M.B., 348 N.J. Super. 31, 34 (App. Div. 2002) (recognizing it is the Division's "policy to place children with relatives when possible").
Here, defendant sought to demonstrate that, if there were reasons why the child should not be returned home, K.R. was fit and available to act as the child's interim caregiver. In opposing admission of this relevant evidence, the Law Guardian suggested an obstacle that placed defendant into an unwarranted Catch-22 in her attempts to defend against the Division's claims. That is, the Law Guardian argued that the Division had ruled out K.R. as a potential caregiver, that K.R. had sought to administratively appeal that ruling, that the administrative matter was still somewhere pending, and that, as a result, any consideration of K.R. would interfere with that process. Notwithstanding the rule-out letter was issued on May 19, 2009, more than six months prior to the judge's decision to bar K.R.'s testimony, and notwithstanding the lack of any evidence -- even now -- to suggest the Division ever deigned to provide K.R. with a hearing on her administrative appeal, the judge expressed concern that his consideration of K.R. as a potential placement would interfere with those phantom proceedings:
I don't think I need to hear from her. She's applied. She's been ruled out. Her appeal is pending. That's the best that can be said. Obviously, I'm not reviewing that decision. That would be a direct appeal to the [A]ppellate [D]ivision after the Division's administrative review, so there's nothing I need to hear about that that's going to affect that rule-out.
I mean -- so I don't think I would need to hear from her other than to state that she did, was and is interested, was ruled out and has appealed, and that that's pending. That's really the only material facts about her that I guess can be elicited at this point.
I wouldn't have a mini trial on the reason for her rule-out. That's going to be done at the administrative level or the
[A]ppellate [D]ivision if she goes that far. So, I don't need to hear from her for that purpose.
By way of this reasoning, defendant was relegated to whatever might come -- if ever -- from an administrative proceeding that seemed to have never been commenced and, because of the alleged administrative proceeding, could not elicit testimony at the hearing that was highly relevant to Anna's placement.
Because the child's interests are paramount, and because placement with a relative is preferable to placement with a stranger, the judge should not have so narrowly viewed his authority. Indeed, to view a pending administrative rule-out appeal as a shield against the admission of evidence relating to that rule-out would provide the Division with an effective but wholly inappropriate weapon that could be used to preclude a court's consideration of any potential caretaker that the Division unilaterally viewed as unacceptable. The Division could simply rule out any potential caretaker not to its liking in advance of the hearing and then urge, as here, that the court could not consider that potential caretaker because of the pending appeal.
Here, there was not only a lack of certainty as to whether an administrative appeal was even pending at the time but, as the record reveals, the rule-out was based upon a caseworker's assertion that K.R. had indicated she did not want to be the child's caretaker, a fact that was vehemently disputed. In these circumstances -- and particularly because of the overriding importance of the child's best interests -- the judge should not have excluded anything of relevance that might have illuminated the way to the most appropriate disposition.
The prejudice caused by the trial judge's mistaken preclusion of K.R.'s testimony is revealed by the judge's findings. The judge determined that, after a family meeting, K.R. spoke to the caseworker in the hallway and "said that she could not be considered as a placement resource" because even though she was a certified nurse assistant, K.R. "had several other children in the home." The judge recognized there was "a material factual dispute" about K.R.'s alleged position that she "not . . . be considered as a possible placement" but went on to resolve that dispute against defendant based on the caseworker's testimony as to what K.R. told him. On this point, the judge recognized that defendant testified there could not possibly have been a discussion between the caseworker and K.R. in the hallway outside the meeting because the entire family left together and the caseworker had no opportunity for a one-on-one discussion with K.R. The judge in other aspects of his findings found defendant to be credible but nevertheless discounted defendant's testimony without indicating whether or why he believed she was not credible on this point:
And, I accept [the caseworker's] testimony as credible. The letter of [May 9, 2009], would corroborate his testimony. It says that you're being ruled out based on your request not to be considered.
[Defendant] testified that would have been impossible because she left the meeting with her family and, therefore, suggesting there was no opportunity for [K.R.] to speak to [the caseworker]. I really do not have any reason not to believe that that took place, and [the rule-out letter] would be supportive of [the caseworker's] testimony that, in fact, she had asked to be ruled out, or not to be considered. And, this letter was reflective of that.
And, as we have already mentioned, the judge did not permit K.R. to testify, so defendant was precluded from presenting relevant evidence about what the caseworker claimed to have transpired in his alleged discussion with K.R.
We, of course, do not disregard a trial judge's findings unless convinced 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); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). The problem here, however, is that the judge did not permit K.R. to testify about this very relevant incident. In fact, the judge precluded her testimony because he deemed it irrelevant in light of her alleged challenge to the rule-out. And then --without her testimony -- agreed with the Division's presentation on K.R.'s alleged communication to the caseworker. The judge deemed K.R.'s testimony barred by the alleged administrative proceedings, and yet, the caseworker testified to the same issues that were allegedly being decided in the administrative proceedings. As a result, the judge's findings on those facts are not entitled to our deference because they resulted from a proceeding that erroneously -- and unfairly -- precluded material and highly relevant evidence.
In this same vein, the judge excluded an exhibit (D-3) offered by defendant to suggest that the Division was determined to prevent the child's placement with defendant or any of her relatives. The document is disturbing, as even the Law Guardian -- also a fervent advocate for the child's placement outside the home -- acknowledges. D-3 is an internal Division email in which the writer provided to the Division supervisor, in advance of the family meeting, with "a few pointers to try to eliminate the need for [Anna] from going to her aunt [K.R.]" (emphasis added). After defining nine areas of inquiry to build such a case against K.R., the writer concluded with: "Hopefully this is it. If you can think of anything else please ask her. We want to be sure that we have enough to rule [K.R.] out if possible" (emphasis added). In sustaining the Division's objection to the admission of this email, the judge concluded that the email (and other similar documents also excluded) "relates to [K.R.]" and for the same erroneous reason he gave for excluding K.R.'s testimony, he barred admission of D-3. We find troubling not just the exclusion of this document but its very existence.
The child was entitled to the judge's consideration of all potential placements, particularly one with a family member, and not just that which was proposed by the Division. The judge's ruling that K.R. could not testify -- followed by his actual decision on the very issue lying at the heart of the alleged rule-out challenge -- without K.R.'s testimony or other highly probative evidence, such as D-3, unfairly skewed the placement determination. In the absence of this highly probative evidence, the trial court's decision to endorse the placement of the child outside the home and with a non-relative cannot stand.
Our Legislature declared in N.J.S.A. 30:4C-11.1(b) that whenever accepting a child in its care or custody, the Division "shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home[,] [and] [a]fter placement, the [D]ivision shall make reasonable efforts to make it possible for the child to safely return to his home." The record does not support the judge's finding that the Division made the reasonable efforts required by law.
In seeking our agreement with the dispositional order and permanency plan, the Division and Law Guardian have urged that their view of defendant's inadequacies was appropriate because Anna's situation was unique, requiring defendant's intensive efforts. We do not disagree with that assertion nor do we disagree that the evidence supported the judge's conclusion that defendant's efforts left much to be desired, but the efforts of the Division in this difficult situation were hardly reasonable. Here, as observed earlier, the Division's efforts consisted of little more than providing defendant with train tickets to cover part of defendant's required twice-weekly trips to CHONY. A bus pass was provided only when ordered by the trial court, and as for the third leg of the trip -- a subway ride from midtown Manhattan to CHONY -- the Division caseworker left it to defendant to "get the money" required and seek reimbursement later. Considering defendant's extreme impoverished state --exacerbated by the loss of SSI income with the removal of Anna from her care and repeated eviction proceedings -- the Division's "efforts" were hardly reasonable.
The Division faulted defendant for failing to complete SHSP training. But, as the record revealed, the judge also found that many of the Division's letters were "on a days notice" to defendant or were "on short notice," which we assume constituted the judge's recognition that the Division had not adequately advised defendant of appointments or other requirements that defendant failed to attend and which became a basis for the ultimate determination of approving the permanency plan.*fn8
The difficulties confronting defendant were obvious. It could hardly have been surprising that when psychologically evaluated, defendant was found to be depressed and overwhelmed by her circumstances. Defendant was faced with a challenging situation -- among other things, she was required to travel to CHONY from her Trenton apartment twice a week in order to arrive by 8:30 a.m., to obtain SHSP training, and deal with her other financial difficulties while facing eviction proceedings*fn9 -- that could not be significantly alleviated by the minimal support provided by the Division. In contrast, the Division offered the example of the foster mother to the trial judge as evidence of defendant's inadequacies. Yet, as the record demonstrates, the foster mother was required to end her own employment, was paid $1100 per month to be the child's foster parent, and was advised by the Division of the availability of medical transport for the child, something the Division seemed not to have told defendant.*fn10 Indeed, in light of these circumstances, it is difficult to reach any conclusion other than the Division formed an early opinion that foster care was preferable to the child remaining in the care of either defendant or any relative and, as a result, provided only the barest of efforts in making it appear that it had assisted defendant, while essentially ordaining defendant's failure. Illustrative of this was one brief but sad and telling exchange during the caseworker's testimony:
Q. Okay. Were you aware she was on welfare? That was your testimony earlier, correct?
Q. And you were aware that she was a single parent?
Q. And that she was parenting two children?
A. One at a time.
Q. And it didn't occur to you to ask her if there are things that we can do to help you as a family?
A. I didn't ask her that.
The Division's disregard for defendant's circumstances revealed by that testimony permeates much of the record.
What constitutes the "reasonable efforts" required by N.J.S.A. 30:4C-11.1(b) is dependent upon the context that prompts their need. As the Division recognized and continues to argue, this was a unique circumstance and intensive efforts were required. We agree. But the Division seems to view that circumstance as warranting only defendant's extraordinary efforts and has evinced a studied indifference to its own obligations. The efforts put forth by the Division -- to be reasonable in the circumstances -- should have been far more intensive than suggested by the few minimal things it did for defendant here.
In reviewing the matter on this point, we are mindful of the applicable standard of review and have not disregarded the judge's findings. He recognized, as do we, that the Division gave her train tickets and eventually a bus pass, provided counseling to deal with her depression and feelings of being overwhelmed, and offered SHSP training. We defer to those findings. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). But we are not obligated to defer to the conclusion that the judge reached from those facts -- that the Division's efforts were reasonable. That is a conclusion that we review de novo. See Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010). In considering the few services found by the judge to have been provided --services that might have been satisfactory and reasonable in many cases -- we cannot concur in the judge's determination that the Division's efforts were reasonable in these difficult circumstances. The matter, as the Division insists on urging --and correctly so -- required intensive efforts; the burden of facing up to these difficult circumstances was not only on defendant but also on the Division. We reject the conclusion that the Division made reasonable efforts commensurate with these circumstances. Defendant was placed in an extraordinary position, difficult for a person of wealth and means let alone someone in defendant's impoverished situation and limited education. The Division should have done more; in expecting defendant to move mountains, it only handed her a shovel. In light of the Division's failure to make reasonable efforts to either prevent removal of the child from defendant's care or to make it possible for the child's safe return to defendant's care, N.J.S.A. 30:4C-11.1(b), the ultimate determination of approving the permanency plan of terminating parental rights cannot stand.
Dovetailing with our conclusion that the Division's efforts were not reasonable is the fact, which permeates the determination under review, that the placement of the child and the acceptance of a permanency plan, which calls for the termination of parental rights and adoption by the foster parents, has turned largely on defendant's poverty.*fn11 Important decisions of this nature cannot rest solely on that circumstance, otherwise, as has been recognized, such determinations would result in "mass transfers of children from ghettos and disadvantaged areas into more luxurious living accommodations but with resultant destruction of the natural parental bond." Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976), aff'd, Doe v. Downey, 74 N.J. 196 (1977).
In short, close examination of the judge's findings and the evidence put before him propels the inevitable conclusion that the placement decision here was impermissibly based on a finding that the foster home was better for the child than defendant's home. A.W., supra, 103 N.J. at 603 (holding that "the 'best interests' of a child can never mean the better interests of the child," and such determinations do not turn on "a choice between a home with all the amenities and a simple apartment, or an upbringing with the classics on the bookshelf as opposed to the mass media, or even between parents or providers of vastly unequal skills"); see also N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 109-10 (App. Div.), certif. denied, 180 N.J. 456 (2004). With the Division's failure to meet its obligation to make reasonable efforts commensurate with the circumstances, defendant's impoverished circumstances destined her performance for failure.
In essence, the judge's determination was strongly influenced by defendant's poverty*fn12 and by her unfavorable comparison to the foster mother, who was compensated in the amount of $1100 and, thus, had the luxury to terminate her employment in order to care for Anna.
For all these reasons, we conclude that it cannot be said that the Division's permanency plan, which calls for the termination of defendant's parental rights, "satisfies the legislative goals and objectives of the [Child Placement Review] Act by providing a stable, safe and healthy environment for the child considering all of the circumstances surrounding the placement." State In Interest of L.L., 265 N.J. Super. 68, 79 (App. Div. 1993); see also N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 530 (App. Div. 2003). In addition, defendant was disadvantaged by the exclusion of K.R.'s testimony, which deprived her of the ability to contend that K.R. represented an appropriate temporary placement until defendant was better able to provide for Anna.
The order dismissing the action and the order approving the permanency plan of termination of parental rights are reversed and the matter remanded for further proceedings in conformity with this opinion.
As observed earlier, after the judge approved the permanency plan, the proceedings relating to this family were assumed by another judge. In remanding, we assume that the future proceedings will be handled by the second judge and, indeed, conclude that the proceedings required by today's judgment should not revert back to the original judge because a commitment to his earlier findings would put that judge in the uncomfortable and untenable position of trying to reassess the evidence or consider such other new evidence not previously presented in conformity with this opinion. See A.W., supra, 103 N.J. at 617-18; State v. Gomez, 341 N.J. Super. 560, 579 (App. Div.), certif. denied, 170 N.J. 86 (2001); In re Guardianship of R., 155 N.J. Super. 186, 195 (App. Div. 1977).
Reversed and remanded. We do not retain jurisdiction.