On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-52-11.
The opinion of the court was delivered by: Guadagno, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2013
Before Judges Graves, Espinosa, and Guadagno.
The opinion of the court was delivered by GUADAGNO, J.A.D. (temporarily assigned).
In these consolidated appeals, L.M. (Laura)*fn2 appeals from a November 9, 2011 judgment of guardianship, terminating her parental rights to three of her children, M.M. (Martin), born September 25, 2001; S.M. (Sally), born October 2, 2002; and N.M. (Norman), born July 8, 2009. Sally's father, P.T. (Peter), appeals from the same judgment which terminated his parental rights to his daughter. Martin's father voluntarily surrendered his parental rights and Norman's father was never identified.
We affirm the judgment as to the termination of Laura's parental rights to Martin and Norman, but because the Division of Youth and Family Services (DYFS or the Division) failed to prove all four prongs of N.J.S.A. 30:14C-15.1(a) by clear and convincing evidence as to Sally, we are compelled to vacate that judgment of guardianship as to both parents. In addition, because the Division has failed, after almost six years, to identify any resource likely to afford permanency for Sally, and because the proofs on the third and fourth prongs as to Peter were so profoundly deficient, our remand is not for a new trial but requires the reopening of the Title Nine litigation.
We derive the following facts from the trial record before us.*fn3 DYFS first became involved with this family on March 21, 2006, when Laura and her newborn baby, T.M. (Terry), who is not a party to this litigation, tested positive for marijuana shortly after Terry's birth. Laura was offered services and evaluations, but failed to follow through voluntarily. On April 2, 2007, the Division commenced an action for the care and supervision of Terry and Laura's other two children, Martin and Sally, under Title Thirty of the New Jersey statutes, N.J.S.A. 30:4C-1 to -40. At the hearing on the Division's order to show cause, Laura was present with counsel but Peter was incarcerated and did not appear.
On the next court appearance, April 16, 2007, the deputy attorney general (DAG) informed the court that Peter was incarcerated in Trenton, but he was not produced. Laura agreed to comply with services and a fact-finding hearing was scheduled for August 6, 2007. On that date, in lieu of a hearing, Laura stipulated that her use of drugs and failure to follow through with services placed her children at risk of harm. Laura had submitted to a psychological evaluation and the psychologist felt the children would be at risk if they remained in Laura's custody. The DAG informed the judge that the Division would apply for custody on the next court date. Peter had been assigned counsel, but again he was not produced. His attorney informed the judge that Peter would be moving to a halfway house, and the judge indicated that Peter should attend the next court appearance.
On November 14, 2007, the Division sought custody of the three children. By then, Peter had been transferred to a halfway house, but did not appear for the hearing. At the conclusion of the hearing, the judge granted the Division's application for custody.
On February 11, 2008, both Laura and Peter appeared, but Peter's counsel was before another judge and the court proceeded without him. The DAG reported that Martin and Terry had been placed in the same foster home and Sally had been placed with a paternal relative.
At a compliance review on May 12, 2008, Peter appeared with counsel for the first time since the litigation began. The DAG noted that both Peter and Laura had submitted to psychological evaluations and the Division was "extremely pleased" with the progress that Laura had made. The Division recommended transition of the children for reunification with Laura, subject only to her obtaining appropriate housing. Although Peter was still in a halfway house, the DAG reported that Peter was following through on recommendations made by the psychologist and "working to address his parenting deficiencies." The judge indicated that if the halfway house did not transport Peter to the next appearance, the court would produce him.
A permanency hearing was held on August 7, 2008, and DYFS recommended a goal of reunifying the children with Laura. Peter had been removed from the halfway house for violating their policies and returned to the correctional institution. He was not produced for the hearing.
On November 10, 2008, Laura failed to attend a compliance review. The DAG reported that Laura remained unemployed and had not obtained housing. Peter again was not produced and his counsel failed to appear.
In January 2009, Peter was released from prison. On March 19, 2009, the court held a compliance review. Both Laura and Peter appeared with their attorneys. The DAG reported that Laura was non-compliant and requested a new permanency hearing as the Division no longer supported reunifying the children with her. Peter initially offered himself as a resource for Sally and the court ordered an updated psychological evaluation of him, a urine screen and a home inspection of Peter's uncle's residence, where he was temporarily residing.
On May 11, 2009, a permanency hearing was held and the judge approved the Division's plan to change the permanency goal for all three children from reunification to termination of parental rights followed by adoption. The DAG reported that Peter had submitted to an updated psychological evaluation but claimed he had "a long way to go" before he could be considered for placement of his daughter, citing "severe parenting deficits" and "antisocial behavior."
DYFS filed a guardianship complaint on June 22, 2009, seeking the termination of Peter's parental rights to Sally and Laura's rights to Martin, Sally and Terry. On July 8, 2009, Laura gave birth to Norman, and on July 17, 2009, the Division was granted custody of him.
The first guardianship trial began on January 27, 2010, and Laura executed an identified surrender of her parental rights of Terry to the child's foster parents. The trial continued as to Martin and Sally for seven days over the course of four months.
On May 26, 2010, the judge rendered an oral decision finding that, as to Laura, DYFS had not met its burden by clear and convincing evidence under the four-pronged best interests test. In the judge's decision, only Laura was discussed. Not until the end of the proceedings was Peter even mentioned. The judge explained that since he was dismissing the guardianship complaint, he was declining to make any findings as to Peter. The judge indicated that he was ordering the reopening of the Title Nine litigation and requiring services for the defendants.
Even though Peter was represented by counsel during the initial care and supervision litigation, the subsequent Title Nine litigation, and throughout the guardianship trial, he apparently did not fill out the paperwork, commonly known as Form 5a, which was necessary for his appointed counsel to continue to represent him. As a result, Peter remained unrepresented over the next ten months until March 7, 2011, when the Division filed the second complaint for guardianship and the judge terminated the Title Nine litigation. During this period, Peter continued his visits with Sally, which were supervised by the Division. He also obtained housing and employment as a mechanic.
Another permanency hearing was held on October 15, 2010. Although Sally's placement and permanency were discussed, Peter had not been assigned counsel and was not present. The DAG indicated that Sally wanted to be reunited with her mother, and since Laura had successfully completed a substance abuse treatment program and found employment as a home health aide, the Division supported reunification of Sally with Laura, but sought termination of Laura's parental rights as to Norman. Peter was never mentioned during the proceeding.
At the next permanency hearing, on January 24, 2011, Peter again was not present. The DAG reported that, although Laura had not tested positive for any illicit substances, she was again unemployed. The judge approved a permanency plan of termination of parental rights followed by adoption for both Martin and Sally. On March 7, 2011, the Division filed an amended guardianship complaint seeking to terminate the parental rights to Martin, Sally, and Norman.
The second guardianship trial began on September 21, 2011. Peter again was represented. DYFS called Dr. Robert Kanen, a clinical psychologist, who conducted interviews and bonding evaluations of Laura, Peter, and the children, at the request of DYFS. As to Laura, Dr. Kanen found "serious parenting deficits" and concluded that "she would not be able to provide a permanent safe and secure home over an extended period of time or, you know, for a brief period of time."
During a bonding evaluation, Norman avoided Laura and was afraid of her. Dr. Kanen concluded that Norman would not suffer any harm if Laura's parental rights were terminated. Dr. Kanen also noted that Norman's current caretakers had already adopted Norman's sister, Terry, and that they were interested in adopting Norman as well. Dr. Kanen concluded that Norman had formed a secure attachment with his foster parents and would suffer serious harm if separated from them.
Dr. Kanen evaluated Peter, who expressed a desire to provide for Sally. Dr. Kanen testified that Peter's mental status was normal and he saw no evidence of drug or alcohol abuse, but found that Peter lacked an understanding of Sally's disabilities. Dr. Kanen diagnosed Peter with features associated with antisocial personality disorder as a result of his conviction and incarceration. Dr. Kanen also noted that, while he was incarcerated, Peter was not available to provide for Sally.
Dr. Kanen reported that during a bonding evaluation, Sally addressed Peter as "daddy" and told him she was having fun playing with him but was angry that he missed their last visit. At the end of the evaluation, Sally hugged Peter and gave him a kiss. Dr. Kanen concluded that Peter would have "great difficulty" parenting Sally because of her special needs, and that Sally would not suffer serious harm if Peter's parental rights were terminated.
Sally was very affectionate with Laura during their bonding evaluation, addressing her as "mommy." Laura interacted appropriately and was attentive to Sally, displaying "maternal warmth." When Laura discussed the recent death of her brother, whom Sally knew and liked, Sally's mood shifted dramatically from elevated to somber, and the child sought comfort with her mother. Sally rested her head on Laura's lap and fell asleep there while her mother comforted her. Dr. Kanen saw this as evidence that Sally was attached to Laura, but viewed the attachment as insecure due to the inconsistency of care provided by Laura. Dr. Kanen found Sally to be much more comfortable with her mother than with her foster parents and concluded that Sally would suffer harm if Laura's parental rights were terminated and "she would be very prone to become depressed."
On cross-examination, Dr. Kanen conceded that Sally's foster parents were no longer interested in adopting her and that the child had recently attempted suicide. Dr. Kanen also conceded ...