On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-65-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
Defendant J.C.G. appeals the termination of her parental rights to her two youngest children, David and Laurel (both fictitious names). We reverse.
On June 7, 2005, the Division of Youth and Family Services (the Division) filed a complaint alleging the abuse and neglect of four children, who were born in 1991, 1993, 1997 and 1999. Beginning in 1999, the Division had investigated both parents for alcohol abuse and domestic violence on numerous occasions, leading to the placement of the children, at various times, with their maternal grandmother and aunt. The 2005 complaint was based on the father's arrest for assaulting the mother that was witnessed by a police officer who had gone to the home to report that the mother's father was dying. At that time, both parents were staggering; their speech was slurred and they were screaming at each other while the children were present.
In January and February 2006, separate referrals alleged: the father beat the mother; the mother beat the grandmother; and, at one point, the mother had been drinking "for six days straight" and was found "in and out of consciousness and babbling incoherently." Police were called to the home on March 3, 11 and 24, and April 4 and 9, 2006, to investigate domestic violence matters; each time, police found the parents intoxicated and belligerent.
On July 12, 2006, the Division filed a guardianship complaint, seeking to terminate the parties' parental rights to their four children. The following month, the court ordered that the abuse/neglect litigation be terminated. In February 2007, the mother obtained psychological and bonding evaluations from Dr. Jesse Whitehead, who described an extremely positive and affectionate session where the mother and children warmly interacted "as if this was a regular day in the life of the family." The mother brought a "feast" and gifts for all the children, and she led a discussion of American History and other group activities. Dr. Whitehead's report observed that Laurel: was the most affectionate of all the children both with her mother (I love you mom quite frequently) and her siblings. She asked to be held several times by her mother and [the two older children] held her as well. . . . During the course of this evaluation [Laurel] came over and hugged her mother several times; it should be clear  to even the most casual observer that she misses her mother. . . . There can be no doubt about bonding and cohesiveness within this family unit as it relates to [Laurel] . . . . It's rather apparent that the affection shown by these youngsters for their mother, while somewhat exaggerated given the circumstance[s], is an ingrained part of the relationship between this mother and her children.
Dr. Whitehead found strong evidence of complete bonding and a positive attachment among and between the siblings and their mother. He concluded that "the possibility of irreparable psychological harm is most likely over the developmental years" if the children experienced "a total loss of contact" from being legally removed from their biological family.
Dr. Whitehead found that the mother was competent to assume independent care of her children but it was unclear whether she could adequately and safely parent them because her husband's role was unknown. Dr. Whitehead stressed that he did not recommend reunification with both parents because the father had been uncooperative and would require at least two years of services.
At a hearing on December 14, 2007, the trial judge determined that the parents' rights should not be terminated. As a result, the judge dismissed the guardianship action and reopened the abuse/neglect case. The following month, however, the judge suspended the mother's visitation because she had missed two appointments for services in one week. She never regained visitation rights to the three younger children.
On October 7, 2008, the Division filed a new complaint for
guardianship and termination of the parental rights of both parents to
the three youngest children -- Gregory, David and Laurel.*fn1
The complaint detailed the Division's involvement with the
family since 1999, and the circumstances alleged in the earlier
action. The judge dismissed the abuse/neglect action with respect to
the three children who were the subject of the guardianship complaint
but continued monitoring the oldest child under the abuse/neglect
At that time, the mother informed the court that she had filed for divorce. She declined to enter an in-patient program because, she said, she was in an outpatient program and could not leave her house and animals alone for twenty-eight days. The mother asserted that there was "really no basis for" her entry into a program because she had not used alcohol for one month. At a case management conference and compliance review hearing in December 2008, the Division objected to the mother's request for a bonding evaluation with her children, arguing that the Division's psychologist already had deemed the mother unfit, the children were in turmoil and the mother might say something inappropriate during the evaluation. The Deputy Attorney General argued, "We've got a 15 year-old child. Why do we need a bonding evaluation for any of these children, with their mother and subject themselves to this contact?" The Law Guardian expressed a concern that the failure to afford a bonding evaluation would create an appealable issue and suggested that it occur as part of a therapeutic visit. The mother agreed that the evaluation could occur in a therapeutic setting but claimed she was entitled to have one done by her own expert.
In January 2009, the Division's expert, Dr. Linda Jeffrey, conducted a bonding evaluation of Gregory and David with their foster mother, with whom they had been living for one and a half years, and with Laurel and her foster parents. That month, Dr. Jeffrey also conducted a psychological evaluation of the mother, and a bonding evaluation of the mother with the three children, who had not seen her in a year.
The trial began in June 2009. Defendants were represented by counsel but did not personally appear. The Law Guardian and the Division asked for the entry of default. Over objection, the judge entered default against both parents, precluding them from presenting any evidence and limiting them to cross-examination of the Division's witnesses. The father later appeared telephonically on the first day of trial but the judge provided no relief from the default entered against him, stating there were "just too many variables here."
Dr. Jeffrey was the only witness on the first day of trial. She testified about the mother's significant issues with alcohol abuse and domestic violence. Dr. Jeffrey testified that the mother had also reported during the evaluation that she: had not had a drink since July 2008; had attended seventy "12-step" meetings in the previous ninety days; and was on the third step. According to Dr. Jeffrey, the mother scored "very high" on tests that measured narcissism, defensiveness, self-deception, and social desirability reporting. The mother's scores indicated she had problems with self-reporting that made it hard to determine her actual status.
Dr. Jeffrey testified that in 2008 she had diagnosed the mother with: alcohol dependence disorder with "rule out depressive disorder NOS"; histrionic personality disorder with dependent and compulsive features; and a global assessment score of 40 out of 100, signifying she had "major impairment in several domains" and significant adjustment and interaction problems that impacted her mental health functioning. Her 2009 diagnosis was similar.
Dr. Jeffrey testified that the January 2009 bonding evaluation was "particularly difficult . . . emotionally" for Gregory and David, who were fifteen and eleven years old, respectively. Gregory had told his mother he loved her, and he "played a parentified role of running interference for his mother" by "in effect [emcee]ing the session by asking his brother and sister questions so that he could enhance the conversation that they were having with their mother." David was largely silent but went and sat on his mother's lap. Dr. Jeffrey said that "[Laurel] appeared relatively emotionally detached," but she "was pleasant and responsive" and chatted with her mother and brothers during the session. The mother's conversation with the children was "relatively superficial" for much of the time; she spent "an inordinate amount of time . . . talking about cats and kittens."
According to Dr. Jeffrey, the mother did not exercise appropriate parenting skills because she made negative observations regarding the children's father, whom they had just seen. The mother spent a great deal of time emphasizing that she had provided a home-cooked meal and "gone to great lengths" to prepare Easter baskets for the children. When Gregory asked to take some of the food home in the Tupperware containers the mother had brought, "she immediately said to him that he could not have her Tupperware"; as a result, according to Dr. Jeffrey, Gregory "looked so crestfallen." The mother, according to Dr. Jeffrey, displayed no "attunement or sensitivity" when Gregory explained how he had to obtain baby pictures from a magazine for a school project because he had none of his own. The mother ended the session with a list of topics from her own life that did not address what the children were experiencing. Dr. Jeffrey thought the session was "very emotionally difficult" for Gregory and David and "harmful . . . for that reason." She did observe, however, that Laurel "was relatively unscathed by this session and did not appear to be significantly engaged in the interactions."
In their private conversations, both boys stated to Dr. Jeffrey that "they wanted to return to the care of the birth mother" and "they expressed they loved her." If not allowed to do so, however, they expressed a desire to remain in the care of their foster mother, "who expresse[d] a strong commitment to caring for both boys." Laurel told Dr. Jeffrey that she loved her mother but would rather stay with her foster parents.
Dr. Jeffrey concluded that the children would be at risk of harm if returned because their parents were not prepared to provide safe parenting. She explained that David "displayed emotional vulnerability concerning" his mother and "presented as having an insecure attachment to her." Laurel had a secure attachment to her foster parents and her removal and return to her parents would, in Dr. Jeffrey's view, "have a strong likelihood of being detrimental." Dr. Jeffrey also opined that none of the children appeared "to derive [a] sense of security" from their mother. Dr. Jeffrey did not recommend that they be returned to the mother's care.
At the end of Dr. Jeffrey's testimony, the mother's attorney placed on the record that he had "instituted" a bonding evaluation with Dr. Whitehead, but that he would notify Dr. Whitehead that those efforts would have to be abandoned because the judge had precluded the mother from presenting a defense.
On the second day of trial, both parents appeared with their attorneys and moved to vacate the defaults; the mother also sought additional time to obtain a bonding evaluation. The Division and the Law Guardian objected, and the judge continued the default status of both parents but allowed the father to enter an identified surrender for the children to be adopted by their existing caregivers. The mother left the courtroom after witnessing her husband's surrender.
The Division then presented the testimony of Sara Dewan, the family's caseworker since December 2008. Among other things, Dewan testified that she had received no regular contact from the mother about the children's welfare and that the mother had not followed up with the substance abuse programs provided to her by the Division, thereby losing her right to general assistance welfare. Police records, which indicated domestic violence incidents in the mother's home on August 13 and December 6, 2008, during which the mother appeared intoxicated, were identified.
Dewan also testified about her observations of the children's foster care situations. Although she was able to testify regarding her observations of Laurel, whom she described as "very bonded to the foster parents and their biological son," Dewan said David would not discuss his situation with her and so she related what she had been told by his therapist -- that David was doing well in school, and his foster mother was "a strong advocate for him" and "definitely committed to adopting him."
On September 24, 2009, the judge rendered a decision and entered judgment terminating the mother's parental rights.
On October 21, 2009, the mother moved to vacate the default on the basis of excusable neglect. The Division and the Law Guardian objected, ...