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New Jersey Division of Youth v. J.C.G

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.C.G., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF D.C.G. AND L.N.G., MINORS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-65-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 5, 2012

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.

I

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.

II

A

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 action.

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.

B

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.

C

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."

D

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, and the judge denied the application.

The mother appealed.

III

Shortly after the appeal was filed, the boys' foster mother suddenly passed away. The foster mother had specified a back-up foster mother in the event she had adopted the children and passed away. The Division implemented that plan, although no adoption had occurred.

The mother moved in this court for a remand so the trial judge could reconsider the judgment in light of the foster mother's death. By order entered on June 24, 2010, we granted the motion for a remand; we also directed the judge's reconsideration in light of N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 509 (App. Div. 2009), which held that it is improper to enter default against a defendant in such an action merely because the defendant did not appear at trial, and that the defendant could appear through counsel without being physically present. The Supreme Court later reversed P.W.R., but on other grounds. 205 N.J. 17 (2011).*fn2

The trial judge heard argument on the remand issues and observed that the mother was a "different person" than she was at the last trial, based on progress she had made in an intensive outpatient program. The judge determined that the P.W.R. standard to be applied for vacating the default was a new one that now required consideration of the "fundamental fairness" of the default. The judge concluded that this concept and the totality of the circumstances, including the death of the boys' foster mother and the lack of a change in Laurel's circumstances, required that the default be lifted but only as to the boys.

The Law Guardian requested that Gregory be allowed visitation with his mother because he was over seventeen years old and planned to live with his mother when he turned eighteen. The Division said there had been contact among Gregory, David and the mother but argued that the prohibition against visitation should be continued. The Division asked that Dr. Jeffrey be permitted to conduct updated psychological evaluations of the mother and David.

The judge entered an order on September 13, 2010, which lifted the default against the mother as it related to the two boys only and re-opened those proceedings, but refused to vacate the default with respect to Laurel. The judge permitted the Division to obtain updated psychological evaluations and said he would determine whether to order bonding evaluations after the updated evaluations were received. The judge also ordered the mother to provide an updated substance abuse evaluation. He did not rule on the visitation issue.

IV

The mother amended her notice of appeal to challenge that portion of the September 13, 2010 order that declined to vacate the default with respect to Laurel.

The mother also moved for summary disposition, which we granted on January 11, 2011, reversing the trial judge's denial of the mother's application to vacate the default with respect to Laurel, vacating the termination judgment, and remanding for continuation of the trial from the point of the father's surrender of his parental rights.

V

At a case management conference on January 24, 2011, the mother's attorney requested that she have visitation with Laurel, whom she had not seen in two years. The Division opposed visitation and the Law Guardian said she did not know what Laurel wanted but believed the preclusion of visitation was reasonable given the circumstances. The judge made no ruling.

At another case management conference, which took place on February 7, 2011, the Division objected to any bonding evaluation between Laurel and her mother because Dr. Jeffrey believed it was not in the child's best interest. The Division asserted there was no point to a bonding evaluation because Laurel was not bonded to her mother two years earlier and had not seen her mother since. Laurel's new Law Guardian also opposed a bonding evaluation because Laurel had "little memory of living with her mother," having been removed from the home when she was five years old, and because Laurel wanted to be adopted by her foster parents.

The mother's attorney urged that bonding evaluations be done. The mother's expert in the first guardianship action had determined there was a bond with all three children and he pointed out that Laurel was now eleven years old and "not a child of tender years." He argued that Dr. Jeffrey's logic was "circular" and contrary to the requirements of the law.

Dr. Jeffrey had said that therapeutic intervention and services would be appropriate only if the court decided that reunification should occur but, the attorney argued, the court was required to consider bonding evaluations from the Division and from the defense to decide whether the mother and Laurel should be reunified. He notified the court that the mother would appeal any decision that denied her ability to obtain a bonding evaluation. He assured the court that the mother's expert, Dr. George Kapalka, would end the session at "the first palpable scintilla of distress" from Laurel.

The judge acknowledged that "an incompleteness of [the] record" on the bonding issue could result in a remand by this court and that "to just automatically exclude it" might be "problematic," but he denied the mother's application pending Dr. Jeffrey's testimony. The mother's attorney objected because he already had engaged Dr. Kapalka, who had "locked in" certain afternoons to testify, and that it was "going to slow things up" for Dr. Kapalka to conduct a bonding evaluation in the middle of trial. The judge responded that Dr. Kapalka would have to adapt to the court's calendar and, if he could not, "there better be somebody else waiting in the wings."

VI

As directed by our prior decision, the trial resumed soon thereafter.

A

Dr. Jeffrey testified on March 7, 2011. She had conducted psychological evaluations of the mother, David and Laurel on January 4, 5 and February 17, 2011, and conducted a bonding evaluation regarding Laurel's relationship with her foster parents. Dr. Jeffrey did not perform a bonding evaluation of the mother with either child and did not perform a bonding evaluation of David with his new foster mother.

Dr. Jeffrey testified that the mother had told her that she had completed a pharmacy technician training course and had been employed for one month. The mother reported that she had ended treatment in December 2010 but did not attend AA meetings. Dr. Jeffrey testified that she learned from other sources that the mother had had a relapse in July 2010, which she had not revealed, and the mother's house was in foreclosure; the mother reported to her a high level of stress, which indicated a potential for relapse. Dr. Jeffrey again provided her earlier diagnosis of the mother and concluded she was unable to provide a minimal safe level of parenting.

In testifying about David, Dr. Jeffrey said he "longs for a relationship with his mother." Despite that, Dr. Jeffrey testified that David had a "critical" need for stability and permanency and needed to be exposed to adults who could provide mature guidance that the mother could not provide because she did not "show a sense of responsibility about how she handles contact with the children." This was demonstrated, Dr. Jeffrey said, by the fact that the mother had her older daughter bring the children to her in contravention of the court order, suggesting to the children "that you don't have to follow rules" or respect the court -- "very poor things to be teaching a child." Dr. Jeffrey believed David's need for stability was more important than his longing for a relationship with his mother, although Dr. Jeffrey acknowledged she had no way of knowing whether David's "under the table" contact with his mother was "helping or hindering him."

Dr. Jeffrey found Laurel to be poised, self-composed, and "able to articulate her feelings and her thoughts" in a "reflective" way. According to Dr. Jeffrey, Laurel had "made an excellent adjustment," had "put down roots," was "excelling at school" and "functioning very well in her life." Dr. Jeffrey observed Laurel with her foster family and said they were "a healthy group of folks" with "good communication patterns." Laurel had a supportive foster brother and foster parents with whom she had "a secure attachment" and who "loved her and wanted to adopt her."

Dr. Jeffrey asked Laurel "directly how she felt about the possibility of seeing her birth mother again." According to Dr. Jeffrey:

[Laurel], in a very articulate manner, said that she was curious about seeing her mother. She talked about her own physical appearance. She's a very pretty young girl and she is relatively tall and she's very proud of that. And she wanted to see what her mother looked like now. And she also wanted to have her mother see how well she had turned out and how well she was doing.

When asked whether she "thought it would distress her to see her mother again," Laurel "said that she wasn't sure." Notwithstanding, Dr. Jeffrey did not think a bonding evaluation should take place because "[a]fter seeing her, as well as before, I felt that it would be likely to be stressful and disruptive to [Laurel] to undergo a bonding evaluation with her mother. That this is something that she would have to recover from."

Despite the judge's prior decision that he would rule on the mother's claimed right to obtain bonding evaluations once Dr. Jeffrey's testimony was heard, there followed Dr. Jeffrey's testimony no discussion, argument or decision on that issue.

B

The next day, March 8, 2011, the Division presented testimony from Heather Kaiser, who had supervised the Division workers in this matter for five or six years. She testified that the plan was for the current foster mother to adopt David, who "seem[ed] a lot more at ease" in the new foster home. David, however, had told his caseworkers "that if he could and the Division and the Courts would approve it, he'd rather go home." He also said that if that were not possible, "he's okay where he is and he'd be willing to stay there." Kaiser said that David had "a very loving, affectionate relationship" with his foster mother, that he "looks to her in a motherly way" and that he felt "he could talk to her about anything."

David was in counseling with Steven Rothrock, a licensed social worker at the YMCA, who also testified that day. Rothrock had supervised the visitation and the boys' therapists for the past five years and he became Gregory's therapist, and then David's, after their prior caregiver died. Rothrock testified that the loss caused by the former caregiver's death was "profound" for David and that the difficulty was caused in part by "the underlying neurological and cognitive defects" that David has. Rothrock asserted that David had learning disabilities and struggled with peer relations that made it "very hard for him to pick up on social cues" and "to identify what is risk and what is not." Rothrock testified that, in every conversation he had with David on the subject, "he's always said [']yeah, I'd go love [sic] with my mom[']"; Rothrock, however, opined that David "has no idea what that would mean." Rothrock believed David also had Facebook contact with his mother. He added that Gregory felt tremendous responsibility for David and asked if he could obtain custody of David if he moved out of foster care and obtained an apartment.

Rothrock also testified about a meeting he had with the mother in October 2010 during which she acknowledged that she had had Facebook and telephone contact with Gregory that, according to Rothrock, caused the boys "intrinsic harm." Rothrock also believed that even if the mother's comments to the boys were appropriate, "the contact has an overarching unhealthy impact on the children . . . [i]f for no other reason tha[n] the children are aware that there's a current court order prohibiting it and their mother is violating that court order and bringing them into that process." Rothrock additionally opined that continued contact with his mother would cause David more harm than it would cause his brother because David was "less equipped to deal with mom's significant mental health concerns."

At the end of Rothrock's testimony, the mother's attorney confirmed that she would not testify. He added: "I can also reconfirm that I am not offering an evaluation nor the testimony of Dr. George Kapalka who was solicited in this case to render same."

C

On March 9, 2011, the Division asked the court to reissue an order that the mother have no contact of any kind with the boys with the inclusion of sanctions. The mother opposed the Division's request.

The Law Guardian advised the judge that, if she had asked her clients their position on the Division's request, it was "fairly clear" that "they would say no, they would want continued contact with their mother." But the Law Guardian said she was unable to "advocate that . . . a litigant continue to be allowed to violate a court order." She also asserted her belief that the testimony was "uncontroverted" that the contact was "damaging" to her clients and she was unable to advocate that they be harmed.

The judge granted the Division's request.

D

The matter concluded with the parties' summations. The mother argued that the Division had failed to provide clear and convincing evidence on the fourth prong because of the absence of a bonding evaluation concerning the mother and the children.

Her attorney argued that the Division's "entrenched position," which it had held since the outset, that Laurel was so bonded to her foster parents that she should not even see her mother created a "glaring deficiency" in the evidence, because no bond could be assessed if mother and child were unable to see each other. With respect to David, the mother's counsel argued that Dr. Jeffrey's testimony included "nothing at all about a bond relative to [the mother] and the three children," and that the boys were older and wanted the family unit to continue. The mother's counsel also argued that the other prongs of the statutory test had not been met because the Division presented no testimony regarding the services it had provided and because the mother had engaged in treatment on her own; that she had improved substantially, attended school and was "a different person."

The boys' Law Guardian focused on David because Gregory would be eighteen years old approximately four months later. She acknowledged that David had expressed a desire to return home and that the judge had to consider those wishes. Nevertheless, the Law Guardian argued that the Division had met all four prongs required to terminate the mother's rights to David, relying on Dr. Jeffrey's testimony that David's need for permanency outweighed his longing for his mother, who would be unable to meet that longing, and on Rothrock's observation that David did not understand "what harm is." She said that David had "the best of both worlds" because he was in a safe and stable home with a woman who did not attempt to take his mother's place, and argued he should be freed for adoption by his current caretaker.

Laurel's Law Guardian also argued that the mother's rights should be terminated. She had asked Laurel "in many different ways" whether she wanted to return to her mother. The Law Guardian argued that Laurel did not want to have contact with the mother or participate in "a bonding evaluation with" her.*fn3 Laurel, according to her Law Guardian, was "a happy little girl" who had not lived with her mother since she was five years old, wanted to be adopted by her foster parents, and "didn't want to be bothered with her old life anymore."

E

In his May 12, 2011 written opinion, the trial judge incorporated "all of what was written" in his September 24, 2009 opinion because "not much has changed," other than that the children had grown older and additional evaluations were done. He found that Laurel had "a clearly identifiable and secure attachment and bond" with her foster family, "no relationship whatsoever with her birth mother," and her attachment to her foster family was "so profound that if it were severed this child would unquestionably suffer serious and enduring emotional or psychological damage."

The judge determined that the decision with respect to David was "more difficult" because he was "ambivalent about a return to his mother." Citing Kaiser's testimony, the judge stated that David "sees his foster mother as 'his mother'" and accepts adoption by her "although he is experiencing some yearning for his biological mother." The judge held that the mother "simply cannot parent minimally any child and can provide no child with a safe environment," and, also, that David was "safe where he is" and "adapting to his new home."

The trial judge found that the Division had proven all four prongs by clear and convincing evidence. With respect to the fourth prong, the judge concluded: "Termination will not do more harm than good. [David] has been able through his own resolve and with the help of others to overcome his birth mother's lack of parental capacity. [Laurel] has no relationship at all with her biological mother."

On May 26, 2011, judgment was entered terminating the mother's parental rights to David and Laurel.

VII

The mother again appeals, presenting the following arguments for our consideration:

I. ONCE AGAIN, THE TRIAL HAS YIELDED INSUFFICIENT EVIDENCE TO JUSTIFY TERMINATION OF [THE MOTHER]'S PARENTAL RIGHTS UNDER N.J.S.A. 30:4C-15.1a.

A. There was insufficient evidence to support the trial court's legal conclusion that termination of [the mother]'s parental rights will not do more harm than good to David where David clearly wanted to return to [the mother] and where there was no evidence in the record of a bond between he and his new caretaker and no evidence that he can even form the type of bond that would justify the loss of the relationship with [the mother].

B. There was insufficient evidence to support the trial court's conclusion that termination of [the mother]'s parental rights will not do more harm than good to [Laurel] where [the Division] did not offer into evidence comparative bonding evaluations and the trial court refused to allow the defense to perform a bonding evaluation between [Laurel and her mother].

II. TERMINATION OF [THE MOTHER]'S PARENTAL RIGHTS AS TO DAVID SHOULD NOT BE AFFIRMED WHERE DAVID'S LAW GUARDIAN ACTED OUTSIDE HER APPOINTED ROLE AND THE PROTECTIONS WHICH THE LAW INTENDED TO AFFORD TO DAVID FAILED.

Because we agree that the mother's parental rights to Laurel could not be terminated on this record in light of the absence of a current bonding evaluation, and that the fourth prong of the statutory test contained in N.J.S.A. 30:4C-15.1a was not met as to David, we reverse without needing to reach the argument contained in the mother's second point.

We turn, first, to the general but important principles that guide our disposition in parental termination matters.

A

An individual's rights to conceive and raise children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923), "basic civil rights," Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942), "far more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533, 73 S. Ct. 840, 843, 97 L. Ed. 1221, 1226 (1953). See generally Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558 (1972); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Yet, the state "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979). In short, "the right of parents to be free from governmental intrusion is not absolute," and the state "as parents patriae may act to protect minor children from serious physical or emotional harm"; the invocation of that power may, at times, permit "a partial or complete severance of the parent-child relationship." A.W., supra, 103 N.J. at 599 (quoting In re Dep't of Pub. Welfare, 421 N.E.2d 28, 36 (Mass. 1981)).

Every case is fact-sensitive. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 287 (2004). To terminate a parent's rights, the Division must prove by clear and convincing evidence each of four prongs of the best interest of the child standard as set forth in N.J.S.A. 30:4C-15.1a. E.P., supra, 196 N.J. at 103. Those four prongs are:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights;

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1a]

Each contest between a parent's rights and the state's interest in a child's welfare requires "scrupulous adherence" to the procedural safeguards adopted by our Legislature. A.R.G., supra, 179 N.J. at 286; see also N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 109 (App. Div. 2010). Our insistence on "scrupulous adherence" to procedural safeguards, and the statute's insistence that all four prongs be proven by clear and convincing evidence, reveals the overriding interest in the essential constitutional right that lies in the balance. See N.J. Div. of Youth & Family Servs. v. K.H.O., 161 N.J. 337, 347 (1999).

B

Turning to Laurel, the mother argues that the decision to terminate her parental rights should be reversed because it was fundamentally unfair to deny her the right to obtain her own bonding evaluation and because, in the absence of a current bonding evaluation between Laurel and her mother, there was insufficient credible evidence to support the trial judge's finding that termination would not do more harm than good. We agree.

Although not without limit, parents in custody matters possess a constitutional right to present their proofs because of the constitutional interest in their relationship with their children. Innes v. Carrascosa, 391 N.J. Super. 453, 496 (App. Div.), certif. denied, 192 N.J. 73 (2007). In Santosky v. Kramer, 455 U.S. 745, 763, 102 S. Ct. 1388, 1400, 71 L. Ed. 2d 599, 613 (1982), the Court imposed a requirement that there be an even playing field in such matters, recognizing that the state's "ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense . . . because the child is already in agency custody"; indeed, the state "even has the power to shape the historical events that form the basis for termination." Like Santosky, we observe that there was also here a "striking asymmetry" in the options available to the Division as compared to the mother. Id. at 764, 102 S. Ct. at 1400, 71 L. Ed. 2d at 613. We painstakingly reviewed the past litigation regarding this family to demonstrate how, whether intentionally or not, the Division was able to tilt the playing field in this case. As observed, in the proceedings over five years ago, the Division was unable to demonstrate that parental rights should be terminated because of the parental bonds then existing. Now, with the passage of time during which the children have been out of the mother's custody -- certainly in large measure due to the mother's own problems -- the Division was able not only to provide greater or better evidence of bonds between the children and their foster parents and the diminishing bond between the children and their mother. The Division was also able to convince the judge that the mother should be limited further in obtaining and presenting evidence to rebut the Division's case. This severely tilted the playing field in favor of termination.

We recognize that the experienced trial judge correctly addressed the potential that the mere conducting of a bonding evaluation between mother and Laurel could cause injury to Laurel. We are not satisfied, however, that the Division's contentions in this regard were so compelling as to preclude the mother's opportunity to at least begin the process of obtaining a bonding evaluation. Indeed, as noted earlier, Laurel indicated a healthy curiosity to meet with her mother; she stated to Dr. Jeffrey that "she wanted to see what her mother looked like now [a]nd . . . wanted to have her mother see how well she had turned out and how well she was doing." And Dr. Jeffrey stated that Laurel was "relatively unscathed" by her experience at the last bonding evaluation in 2009. These circumstances strongly suggested that Laurel would not have been traumatized by engaging in the bonding evaluation process. Moreover, any potential harm to Laurel would be ameliorated by the professionals' understanding that the evaluation would be discontinued if it proved distressful to the child. The mother should have been given the opportunity to at least try to have a bonding evaluation conducted.

Because the preclusion of the mother's right to a bonding evaluation rendered the termination of her parental rights to Laurel a fait accompli, we cannot permit the judgment to stand. The important constitutional principles discussed in Santosky and other cases cited earlier militate in favor of a reversal of the judgment insofar as it relates to Laurel. There is nothing in the record to support a decision that the mother's constitutional right to present evidence should have been sacrificed because of the potential for psychological harm if Laurel was compelled to take part in a bonding evaluation.

C

The mother argues that the termination of her parental rights to David should be reversed because the evidence was insufficient to support the trial judge's legal conclusion that termination would not do more harm than good for David. She argues that the evidence was insufficient because: the judge's decision was based on incorrect factual findings; the Division had submitted no bonding evaluation of David and his foster mother; and David clearly wanted to return to his mother.

Relying on the arguments in the mother's brief and David's expressed wishes, David's Law Guardian now argues that the decision to terminate the mother's rights should be reversed. Even though the mother has not contested that the Division satisfied its burden on the first three prongs, the Law Guardian is correct that the record undeniably demonstrates that David's close relationship with his brother "has been the only stable factor in [his] life," and that David "wants nothing more than to be reunited with his mother and brother."

The evidence was legally insufficient to terminate the mother's rights to David in light of his expressed preference. The Division never submitted the necessary expert evidence to establish whether David had bonded to his prospective adoptive mother and never engaged in the required balancing of the two relationships to determine whether termination would not do more harm than good.

The mother also correctly points out that, contrary to the trial judge's finding, Kaiser never said that David viewed his current caretaker as "his mother" or that he accepted adoption by her. Instead, Kaiser said that David looked to the caretaker "in a motherly way" and that he was "willing to stay there" in her home if he could not return to his mother. David's willingness to stay with the caretaker and Kaiser's characterization of his view of her was an insufficient basis to conclude that David "accepted" adoption by her, as well as the termination of his mother's rights, when he had expressed his clear preference for the opposite result. These circumstances may have been made more clear in the trial court had David's Law Guardian advocated his position rather than what she thought was in David's best interests.

The mother also is correct that, at the time of the hearing, there was no basis for the court's finding that David was "ambivalent about a return to his mother." Both Dr. Jeffrey and David's Law Guardian at trial expressed his wish to be returned to his mother. It was David's Law Guardian at trial who expressed her ambivalence because she believed she was obligated to argue against his return or further contact with his mother. Her obligation, however, was to make David's wishes known, to make recommendations as to how his wishes could best be accomplished, and to express her concerns regarding his well-being and safety, all in the service of assisting the court with the necessary information to make the termination decision. N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div.), certif. denied, 174 N.J. 39 (2002). The Law Guardian's personal expression of ambivalence was not evidence and could not form a basis for the trial judge's conclusion that David was also ambivalent; instead, the evidence suggests that David was adamant about his desire to return to his mother.

The mother also persuasively argues that the evidence was insufficient to support the trial judge's legal conclusion, because the Division offered no evidence of a bonding evaluation with David and his foster mother, and the comments from Kaiser and Rothrock based on their "casual and limited observation[s]" were insufficient to show that that "budding relationship" could compensate for David's loss of his relationship with his mother. The Division failed to present sufficient evidence to allow the trial judge to engage in the proper analysis required to find that termination of a parent's rights would not do more harm than good for the child.

The fourth prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). The Court has explained the necessary judicial inquiry on prong four:

The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents.

To determine whether the comparative harm is proscribed by the fourth prong in a case involving a child in foster care, such as K.H.O., the court must inquire into the child's relationship both with her biological parents and her foster parents. "Weighing the potential harm that terminating [the child's] relationship with her mother against that which might come from removing her from her foster home is painfully difficult, but it is a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship." [K.H.O., supra, 161 N.J. at 355 (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992))]

The issue to be determined in prong four "is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. Satisfaction of the fourth prong requires that the Division "offer testimony of a 'well-qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 442 (App. Div. 2009) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). It is not sufficient to show that a child has a strong relationship with foster parents or that the child "might be better off if left in their custody." J.C., supra, 129 N.J. at 19. Instead, the Division "must prove by clear and convincing evidence that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." Ibid.

To be sure, a family judge's decision to terminate parental rights should not be disturbed on appeal when there is substantial credible evidence to support the court's findings. E.P., supra, 196 N.J. at 104. But, in this case, that evidence is lacking on the fourth prong. The Division never submitted the required expert evidence that would allow the judge to consider and balance the two relationships and assess the comparative harm to David from the termination of his relationship with his mother. Kaiser and Rothrock were not offered as expert witnesses. The Division offered no evidence to demonstrate that separating David from his new foster mother would cause him serious and enduring psychological or emotional harm. J.C., supra, 129 N.J. at 19. On the other hand, there was substantial evidence of David's attachment to his mother and his continued efforts to remain in contact with her by telephone and the internet.

VIII

The judgment terminating the mother's parental rights to both David and Laurel is reversed and the matter remanded.

The trial judge is directed to enter an order dismissing the complaint as to the mother's parental rights to David. As for Laurel, we remand for further proceedings in conformity with this opinion.

We do not retain jurisdiction.


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