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State of New Jersey, Division of Youth and Family Services v. C.M

October 7, 2011

STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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] ...


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