On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-69-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez, Sabatino, and Fasciale.
Defendants, A.S. and H.F., the birth parents of A.A.S. ("Alice"),*fn1 now age nine, each appeal the Family Part's entry of a final judgment of guardianship terminating their respective parental rights. Their appeals are opposed by the Division of Youth and Family Services ("DYFS" or "the Division") and the Law Guardian. For the reasons that follow, we affirm the judgment as to the birth mother, A.S., but remand for further proceedings as to the birth father, H.F.
The proceedings in the Family Part, including the three-day guardianship trial in May and June 2010, developed the following relevant proofs. In general, they depict a birth mother beset by a variety of behavioral and dependency issues, unable to fulfill her responsibilities as a parent, and a birth father who has had drug and alcohol problems of his own, and who did not begin to establish a relationship with his daughter until she was nearly four years old.
Defendant A.S., Alice's biological mother ("the mother"), was born in 1986. She has given birth to two children -- Alice, who was born in August 2002, and M.P., who was born in December 2004. A.S. did not marry either Alice's biological father, defendant H.F., or her son M.P.'s biological father, M.T.P.*fn2
Alice's biological father, defendant H.F. ("the father"), was born in 1976. He is more than nine years older than A.S. In addition to his youngest child Alice, the father has three other children. His first child, a son, was born in April 1995, to M.R., a woman that he did not marry. The father thereafter developed a relationship with another woman, I.F., whom he eventually married. The father had two children with I.F. -- a son born in June 1997 and a daughter born in March 2000.
In 2001, the father was working in Detroit and living there with I.F. and their two children. That holiday season, he visited his parents in Perth Amboy, New Jersey. During that brief trip, the father met and impregnated A.S., who was then just fifteen years old. The father returned to Detroit in February 2002. At that point he knew that A.S. was pregnant, but he and A.S. did not maintain contact with each other.
Initially, when Alice was born in August 2002, the identity of her birth father was omitted from her birth certificate. The birth certificate was subsequently amended in September 2004 to erroneously name M.T.P. as Alice's father.*fn3
In December 2002, shortly after Alice's birth, the father married I.F. The father and I.F. eventually separated in early 2006.*fn4
According to the father's trial testimony, he visited Perth Amboy "frequently" and each time he was in town, he would look for the mother and their child. The father also contended that he attempted to contact the mother's family members in order to find out where she was, but was unsuccessful in his attempts.*fn5
In 2005, while the father was still living in Detroit, the Division contacted him and requested that he take a paternity test. According to a Family Service Specialist with the Division ("the testifying caseworker"*fn6 ), the father told her that he had performed his side of the test but that the mother had not brought Alice in to have her DNA analyzed.
The father met Alice for the first time in the summer of 2006, when she was nearly four years old. At that point, he acknowledged paternity. At his request, paternity was confirmed by genetic testing in December 2007.
The father testified that after he discovered Alice was his daughter, the mother, Alice, and Alice's half-brother M.P. all visited him in Michigan from the summer of 2006 until about November 2006. He recalled that they visited a second time thereafter for about a month, during which time he saw Alice every day. During those visits, according to the father, he "took [Alice] to the park, to the beach, to the movies, to the mall," and he would cook meals for her. He recalled discussing with the mother the prospect of him moving to New Jersey, so that he could "help raise [Alice] and get to know her."
In January 2007, the father lost his auto industry job in Detroit, a job that he had held for seven years. The father thereafter relocated to New Jersey, where he has since resided. Upon returning to New Jersey, the father initially moved in with his brother. Subsequently, the father moved in with his parents.
As the father recounted, after his relocation to New Jersey, from early 2007 until September 2007, he saw Alice "every weekend." When he was "doing a driving job" he also would see Alice "every day" on his commute to work. As the Division was not yet involved with the family, the father would arrange these visits directly with the mother.*fn7
At around 4:00 a.m. on October 23, 2007, the Carteret Police Department responded to a reported domestic violence incident at the mother's home. When the police officers arrived, they found three children -- Alice (then age five); M.P. (then age two); and Alice's cousin (then age three) -- wandering around the home, seemingly unsupervised. The police then searched the home and discovered F.G., the mother's boyfriend at the time, hiding under the sink. F.G. was later arrested on various warrants. The police immediately notified the Division of the children's circumstances.
When the police located the mother later that day, she was wearing a ripped t-shirt and appeared to be "very emotional, crying, sobbing and sniffling." She admitted that she had been drinking with F.G. She told the police that her relationship with F.G. was marked by ongoing abuse and that she had run away from the home because she thought that F.G. was going to hurt her.
The mother was unable to provide a satisfactory safety plan for her children. She revealed that she was not on speaking terms with her own father; that she was unable to provide the Division with her sister's last name; and that M.P.'s father, M.T.P., was then confined at the Wagner Youth Correctional Facility. She claimed that she did not know where Alice's father was living, and she could not identify any relatives who could care for Alice in her stead. Given these circumstances and the mother's emotional and physical state, the Division intervened and placed Alice and M.P. in foster care that night.
In late 2007, the Division placed Alice in the care of her present foster parents, T.C. and H.G., with whom she has resided since that time. After his paternal grandmother passed away in early 2010, M.P. was also placed with T.C. and H.G.
At the time of Alice's removal from her mother's care in October 2007, the father happened to be in Detroit. The father testified that he attempted to contact the mother by phone upon his return to New Jersey, but he was unsuccessful.
According to the testifying caseworker, the father contacted the Division a few days later after he learned that Alice and M.P. were in foster care. The caseworker stated that the father eventually offered himself as a caregiver. However, he was unable to serve as Alice's caretaker because at that time he was living with his mother, who had a confirmed history of physical abuse.
The emergency removal led the Division to file an order to show cause in the Family Part on or about October 25, 2007. The court approved the application, granting the Division care, custody, and supervision of Alice. Eventually, the mother stipulated that (1) she had been involved in a domestic violence incident in October 2007; (2) following the incident, she had left her children alone with the perpetrator; and (3) her conduct constituted abuse or neglect.
Around January 2009, Alice began attending therapy sessions with Roberta Gold, a social worker at the Children's Home Society. The Division referred Alice to Gold because she was suffering from anxiety and adjustment issues related to her placement in foster care.
At trial, Gold testified that Alice did not suffer from any behavioral problems and that "[s]he just seemed to be a frightened child about new  experiences, making friends, that  sort of thing." Gold noted that Alice was "slow to talk about her parents" and that she did not mention her father for the first six to eight months that she was in therapy. Gold also noted that Alice "would become anxious and tense before the visits [with her mother,] and she would kind of have trouble settling back down again after the visits[.]" However, Gold acknowledged that Alice would likewise become upset if a visit with her mother was cancelled. Although Gold criticized the mother for bringing F.G., who Alice thought was in jail, to a visit, Gold did acknowledge that Alice showed an attachment to her mother.
According to Gold, Alice told her that she would be "comfortable with either staying with her aunt and uncle or living with her mom." Alice once told Gold that she "hated" her father, a sentiment that Gold described as "the most forceful expression of feelings that [Alice] had ever made[.]" However, Gold admitted at trial that Alice's feelings about her father ultimately softened and that Alice later retracted her comments about hating her father.
In addition to granting the Division care and custody of Alice, the Family Part judge ordered that the mother obtain stable housing before her children could be returned to her care.*fn8 The court also required the mother to engage in a substance evaluation, parenting classes, and psychological evaluations. The mother continued to reiterate that the children could not be placed with any of her relatives.
The Division arranged for a social services agency, known as Multi-Cultural Services ("MCS"), to help the mother obtain counseling, attend drug treatment, and find a job.*fn9 MCS helped the mother obtain "any kind of services that she was eligible for, including Medicaid." MCS provided the mother with transportation to visitations with Alice. Additionally, the Division provided the mother with bus passes so that she would be able to get to and from various programs.
The Division further arranged for the mother to undergo substance abuse and psychological evaluations. The mother's substance abuse evaluation was performed in October 2007, resulting in a recommendation that she receive outpatient treatment. The Division then referred the mother to numerous substance abuse treatment programs. According to the caseworker notes in the record, one of those programs advised the Division in October 2008 that the mother had "hardly participate[d]" in substance abuse treatment. The mother did not complete alcohol treatment until July 2009, nearly two years after Alice was removed from her care. About three-and-a-half weeks before the start of the trial, the Division received a referral from the police in which the mother admitted that she had "been drinking several beers" that night with her boyfriend F.G. and that they "had gotten into an argument."
In December 2007, the mother was arrested after she went to retrieve her belongings from F.G.'s house. The caseworker notes indicate that subsequently the Division provided the mother with a referral to Woman Aware, a women's shelter that could assist her with finding a new place to live.
Shortly after the mother's arrest in late December 2007, she was evaluated by two psychologists, Dr. Melissa Zarin, Ph.D. and Mark H. Seglin, Ph.D. Both psychologists diagnosed the mother as having adjustment disorder with mixed disturbance of emotions and conduct and histrionic personality disorder with avoidant features. The psychologists did not recommend reunification of Alice with her mother, given what they perceived to be A.S.'s impulsiveness, paranoia, and "her deficiencies on all of the parenting measures," with respect to an ability to empathize.
The testifying caseworker recounted that the mother did not complete parenting skills classes until June 2009, nearly two years after Alice was placed in foster care. The caseworker notes in the record indicate that the mother at one point said that she would like to have her son M.P. placed with her but that the father could "take" their daughter Alice.
The caseworker notes further indicate that in January 2008, an MCS case manager helped the mother call the Perth Amboy Section 8 housing agency in an effort to help her obtain subsidized housing. Ultimately, MCS closed the mother's case in November 2008 because she had not taken advantage of the services offered to her, including substance abuse treatment, counseling, and parenting skills classes.
The testifying caseworker related that the mother attended counseling sessions through a program at Raritan Bay Mental Health Clinic for about four months from January 2008 until May 2008, but she did not complete the program. The mother was then referred to At Home Marital and Family Therapy ("At Home"), where she attended counseling sessions from October 2008 through January 2009. She also did not complete that program. The mother was referred once again to the At Home program in July 2009 and was discharged on August 30, 2009. Reports from the At Home program reflect that the mother did not speak during the program sessions and that she would not engage in therapy. Shortly before the trial, the mother was referred to yet another agency, Jewish Family Services, for therapy.
In September 2009, a permanency hearing was held in the Family Part, at which time the court approved the Division's plan to terminate the birth parents' rights in anticipation of Alice's adoption by her foster parents. In its permanency order, the trial court noted that such a plan was appropriate because neither Alice's mother nor her father was "currently in a position to care for [her]."
Thereafter, in November 2009, the Division filed a complaint for guardianship of Alice. Both the mother and the father were named as defendants in the Division's complaint.
As the guardianship case progressed toward trial, the mother remained in a stormy relationship with F.G. According to the caseworker's testimony, the mother stayed involved with F.G., at least intermittently, throughout the pendency of the litigation. The caseworker noted that the couple's relationship continued to be marked by domestic violence. In particular, the mother reported three incidents of domestic violence by F.G. to the police between March 2009 and May 2010; she also procured a temporary restraining order against him.
The father's personal history and his course of conduct leading up to the trial are also troublesome, but less so than those of the mother. In particular, the father has his own history of substance abuse issues and violations of the law. The record reflects that in 2001 the father was convicted of cocaine possession. In 2007, the father was convicted of a disorderly persons offense, again involving cocaine. He was on probation for the disorderly persons offense through late 2010. More recently, it appears that the father has been drug-free, and he testified at trial that he last took drugs in July 2007.
As a result of the father's history, the Division requested a substance abuse evaluation, which was completed in November 2007.*fn10 The Division then requested an "extended" substance abuse evaluation, but it was not conducted. The father explained that after encountering difficulty in reaching an employee at DYFS to arrange such an evaluation, he instead provided urine samples to his probation officer for ongoing drug screening.
At the Division's request, Victoria Larsen, Ed. D., completed a psychological evaluation of the father in December 2008. In her written report, Dr. Larsen noted that the father had not been "aggressive" in maintaining his supervised visitation with Alice. It was Dr. Larsen's impression at that time that the father "greatly underestimate[d] the level of responsibility and level of dedication required to raise a child." Dr. Larsen recommended that the father be allowed to continue visiting Alice but that, among other things, he also engage in short-term counseling for six months "to focus on developing his skills as a parent."
Following Dr. Larsen's report, the Division referred the father in January 2009 to counseling through At Home. The father consistently engaged in that therapy for several months, which the caseworker confirmed in her trial testimony. According to the caseworker, Sean Magnun, the father's therapist, advised that "he would encourage or recommend that [the father] develop some empathy for [Alice's] situation and his role in why she remained in that situation."
The Division also referred the father to Catholic Charities for parenting classes. The father did not attend those classes due to conflicts with his school and work schedule. As a result, the Division requested that Magnun incorporate parenting skills into the therapy sessions, which he did. Magnun discharged the father from therapy in May 2009 ...