On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-129-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically June 4, 2012 -
Before Judges Reisner, Simonelli and Hayden.
The Division of Youth and Family Services (DYFS or Division) appeals from a Family Part order dated April 19, 2011, dismissing its guardianship complaint against Y.Z. (mother) and S.M. (father) on the grounds that the Division failed to satisfy the fourth prong of the best interests test, N.J.S.A. 30:4C-15.1(a), and from a February 27, 2012 order denying the Division's motion to reopen the judgment, R. 4:50-1(b), after we temporarily remanded this case to the trial court. We reverse.
The issue before us is whether, on the current record, there is substantial credible evidence to support the trial judge's conclusion that termination of Y.Z.'s parental rights to her son D.Z. would do the child more harm than good. There is no dispute that Y.Z. is incapable of functioning as D.Z.'s parent, because of her psychological problems, her borderline intelligence, her unwillingness to accept services, and her history of dysfunctional relationships with men who abused her and abused D.Z.*fn1 She does not appeal from the trial judge's finding that the Division satisfied the first three prongs of the best interests test. The sole issue in this case concerns the fourth prong. Therefore, we focus on the evidence pertinent to that prong.
The child, who was born in April 2001 and is now eleven years old, has significant special needs. Due to his serious behavioral problems, he has been through four different foster homes since 2008. However, since January 2011, he has been living with specially trained foster parents, who now wish to adopt him. At the time of the guardianship trial in April 2011, he had been in their home for only a few months, and while he was thriving there, it was not yet known whether the family would want to adopt him.
At the guardianship trial, DYFS presented testimony from case worker Debbie Gomez, who explained that the child had been through several foster placements, all but the most recent of whom had asked that he be removed from their homes due to behavioral problems. However, his most recent foster parents, who were trained to deal with special needs children, appeared to be much more successful in managing the child's behavior. According to Gomez, because the child had only been with this foster family for a few months, it was too early to tell whether the placement would ultimately succeed and whether they would want to adopt D.Z. Later in the guardianship trial, Gomez was re-called as a witness by the Law Guardian to give more specific testimony about her observations of the relationship between D.Z. and his current foster parents. She testified that D.Z. referred to the foster parents as "mommy and daddy." She also heard D.Z. call the foster father "coach," because the father coached basketball; she perceived this as a term of endearment.
A second DYFS caseworker testified that terminating the mother's parental rights would give the Division a broader range of options for locating an adoptive family for D.Z. Those options would include a nationwide search for an adoptive home.
The Division also presented expert testimony from Dr. Frank Dyer, who explained the extreme importance to D.Z. of having a permanent home, and the destructive consequences to a child of remaining permanently in foster care. Dr. Dyer also found that D.Z. had a strong bond with his mother, who at that time was his only "love relationship." Therefore, he recommended that even if the court terminated her parental rights, the court should provide for continuing visitation with Y.Z. until a permanent adoptive home was found for the child. Dr. Dyer opined that the child would be able to form an attachment with an adoptive family.
The Law Guardian presented expert testimony from Dr. Elizabeth Smith, who interviewed the child and also performed a bonding evaluation between the child and his mother. She found that the two had "a very warm, caring relationship." She also opined that the child believed it was his fault that he could not live with his mother:
When I spoke with him privately, he told me that he was aware of what adoption meant. That he was very clear that he did not want to be adopted by another family. He wanted to go home to his mother.
He also told me that the reason that he had not gone home was because of his behavior. So it was clear to me that he had internalized what was happening and formulated to himself that the reason that he couldn't go home was because he was a bad kid in some way.
She testified that this frequently happened to children in foster care. "[M]any times . . . in children, it's a defense. Because the child rather than blaming the parents . . . in their mind they protect the parent and they put all the blame on themselves."
Dr. Smith testified that D.Z. "is a child who's capable of making additional attachments to other caregivers." She opined that if the court terminated his mother's parental rights the child "could be placed with another family." However she explained the danger to the child of terminating contact with his mother at a time when there was no prospect of a permanent adoptive placement for him:
The only problem would be that right now [D.Z.'s] only attachment is to his mother. And to cut that off until there's another person in his life who could provide at least the promise of permanence in the future ...