October 7, 2011
STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
C.M., DEFENDANT-APPELLANT, AND R.B., DEFENDANT. IN THE MATTER OF THE GUARDIANSHIP OF: L.B., K.B., C.B., J.B., AND G.B., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Warren County, Docket No. FG-21-104-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 26, 2011 - Remanded: Decided: March 23, 2011
Resubmitted: September 21, 2011 -- Decided: October 7, 2011
Before Judges Cuff, Sapp-Peterson, and Fasciale.
In this termination of parental rights appeal, defendant C.M. appeals from the order terminating her parental rights to her five children. In our March 23, 2011 opinion, we held that the record supported the finding by the trial judge that Cathy*fn1
caused harm to her children and could not remediate the harm. We also held that the record demonstrated that the Division of Youth and Family Services (DYFS) extended many offers of assistance to Cathy and R.B.*fn2 and provided many services to permit reunification of the family. We also held that DYFS demonstrated by clear and convincing evidence that the termination of Cathy's parental rights to Lori (L.B.), Carol (C.B.) and John (J.B.) would not do more harm than good to these children. We remanded, however, to allow supplementation of the record regarding the fourth prong of the statutory test, see N.J.S.A. 30:4C-15.1(a), as it applied to Kate (K.B.) and Gail (G.B.). This opinion addresses the June 22, 2011 order entered by Judge Goodzeit following the May 31, 2011 hearing.
We ordered supplementation of the record regarding the fourth prong of the statutory test because the record referred in an exceedingly opaque manner to an incident between the girls' designated adoptive parents that could bear on or preclude continued placement of the children with this couple. In fact, on the last day of trial, the Deputy Attorney General informed the trial judge that in July 2009 both girls had been removed from the pre-adoptive home. The Deputy Attorney General informed the judge the problem that caused their removal was reported to be unfounded, Kate had just been returned to the home, and Gail was expected to return to the home within days. The record was completely silent about the incident that precipitated the removal of the girls. We explained the need for supplementation of the record in the following passage from our March 23, 2011 opinion:
As to Kate and Gail, however, we find the record on this issue incomplete. The bonding evaluation between Kate and Gail and their foster parents was positive. Both psychologists reported a firm and suitable emotional relationship between the children and this family. The difference between Kate's interaction with her mother and her foster parents was markedly different. When she was in the company of her mother and siblings, Kate was oppositional and defiant. In the company of her foster parents, she was respectful, plainly at ease and comfortable. Given these evaluations, we hesitate to disturb the relationship between Kate and Gail and their future family; however, the record contains unresolved issues that should have been developed at the trial. On August 26, 2009, the case supervisor testified that the agency had received a report that required Kate and Gail to be removed from their foster home. The case supervisor informed the court she did not know the nature of the problem but that an investigation revealed no substance to the report. However, the case supervisor could offer no information about the problem because she had not seen the report. Nevertheless, she was sure the children would and could be returned to the foster parents' home.
Here, as in many cases, the prospect of an adoptive home is an integral part of the analysis of whether termination of parental rights will cause more harm than good. Faced with a situation in the designated home that required their removal and apparently caused particular emotional distress to Kate, we expect a more searching inquiry about the facts that required the removal. The case supervisor offered no information. The situation was compounded by representations from the attorneys a month later, who simply reported the return of the children but offered no admissible evidence, testimonial or documentary, to explain the circumstances requiring their removal for two months. We consistently respond to such situations by remanding to conduct an evidentiary hearing or to supplement the record with admissible evidence. N.J. Div. of Youth & Family Servs. v. S.S., 405 N.J. Super. 1, 7 (App. Div. 2008). We conclude such action is required here. We have repeatedly cautioned judges not to enter dispositive orders based on representations of counsel, inadmissible hearsay, and documents not admitted in evidence. Ibid. [N.J. Div. of Youth & Family Servs. v. C.M., No. A-2656-09 (App. Div. Mar. 23, 2011) (slip op. at 18-20).]
In our concluding remarks, we emphasized why the state of the record as to the circumstances of the girls' removal required supplementation of the record. We said:
Kate and Gail have suffered great harm due to their mother's use of cocaine, her penchant to discipline her children by hitting, punching, and pulling their hair, their father's excessive consumption of alcohol, and multiple incidents of domestic violence in their home. Kate lived in fear of further physical abuse; Gail could never reside with her family due to the harm imposed on her siblings. These children deserve more than representations from an attorney and a report from an uninformed supervisor. Kate's pre-removal history and the murky circumstances of their temporary removal from their foster family require further exploration at a hearing at which the circumstances that precipitated their removal are addressed by witnesses with actual knowledge of the incident and its impact on the children can be addressed. [Id. at 20-21.].
In her June 14, 2011 written opinion, Judge Goodzeit found that DYFS properly followed all procedures governing removal from and return of the children to their foster placement. The judge found DYFS implemented services to address the reason for the temporary removal, and the prospective adoptive parents willingly engaged in each service and benefited from the services. Kate and Gail returned to their prospective adoptive home, services were implemented, and the services continued to address the needs of both girls. Judge Goodzeit found that "[f]ailure to allow them to be freed for adoption by the [prospective adoptive parents] would be devastating and, thus, termination of [Cathy]'s parental rights will not do more harm than good. These girls deserve permanency and they deserve it soon."
In the course of formulating these ultimate findings, Judge Goodzeit addressed, as we ordered in our initial opinion, the circumstances that caused the temporary removal. The record reveals that, until the foster mother called the case supervisor on July 20, 2009, DYFS had no concerns about the placement with the prospective adoptive family. The children were reported as happy and thriving in the home. In fact, the case supervisor thought the foster mother may have suffered a stroke because her speech was so disorganized.
DYFS removed Kate and Gail because the foster mother requested their removal and because she made allegations of domestic violence. An interview with Kate on the day of the removal did not corroborate most of the foster mother's complaints, including the complaint that the foster father withheld food from the family. In fact, Kate was overweight and hoarded food.
Within three weeks, it became clear that the foster mother was experiencing a medical problem due to the cessation of thyroid medication prescribed for her. The foster father reported that his wife first complained of depression a couple of weeks before she called the case supervisor and asked for the girls to be removed. His wife told him she thought her thyroid was "working up." A week later, she reported to him that she believed she was being followed by police. The psychiatrist who evaluated the foster mother confirmed that an untreated thyroid condition can contribute to paranoid and delusional thoughts.
The foster father confirmed that he threw a videotape at the wall, but it did not strike Kate or her foster mother and that was never his intention. A risk assessment conducted by Catholic Charities determined there was a low risk of any future domestic violence in the home. Both parents presented a low to medium risk of failing as parents to the girls.
Reunification was conditioned on an in-home service to assist the family, individual and couples therapy, medication monitoring of the foster mother, parenting classes, and individual therapy for Kate. On September 11, 2009, Kate returned to the prospective adoptive home. The case supervisor described the reunion as follows: "[Kate] was ecstatic. I had never seen a kid happier. It was a very emotional moment. They were all crying. It was a very emotional reunification. She was very happy to be back home." On October 8, 2009, Gail returned to the home. The case supervisor described the reunion as follows: "That was great. She was very happy. [Gail] is very attached to [the foster mother]. You know, she was happy to see her mother." The record also reveals that Kate did not do well while she was away from her prospective adoptive home. The period can justly be described as tumultuous emotionally for Kate. In the two months she was not cared for by her prospective adoptive parents, she resided in two foster homes.
At the time of the hearing on remand, twenty or twenty-one months had passed since reunification. Kate had made significant strides. Kate, who had been classified as emotionally disturbed through the child study team process in her school, was doing well in school. There had been some discussions of declassifying her. She had experienced "some educational lag" due to differences between school districts but that lag was being addressed. Problems with lying seemed to have been resolved. At the time of remand, her therapist addressed principally issues related to lack of permanency. The adoption of some of her siblings caused her some upset.
At the time of the hearing on remand, DYFS had identified no problems between the prospective adoptive parents or between them and the girls. The foster mother had not experienced any episodes like the incidents leading up to the removal of Kate and Gail. She was working part-time and was the primary organizer of visits among the five siblings.
Our role in analyzing this supplemented record is no different than our review of the initial trial record, other than to also determine whether the trial judge faithfully discharged our mandate. We are satisfied that Judge Goodzeit fully complied with our mandate. We also conclude that the record as supplemented fully supports the findings that both girls require permanency of placement, that adoption by the prospective adoptive parents will obtain that goal, and that termination will not do more harm than good to Kate and Gail.