NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.D. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2189-05T42189-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Appellant

v.

C.D. and E.S.,

Defendants-Respondents.

IN THE MATTER OF THE GUARDIANSHIP

OF S.D.,

A Minor.

______________________________________

 

Argued May 24, 2006 - Decided July 18, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Hudson County, Docket No. FG-09-280-05.

Lisa N. Brown, Deputy Attorney General,

argued the cause for appellant (Zulima V.

Farber, Attorney General, attorney; Andrea M.

Silkowitz, Assistant Attorney General, of

counsel; Ms. Brown, on the brief).

Patricia Nichols, Assistant Deputy Public

Defender, argued the cause for respondent C.D.

(Yvonne Smith Segars, Public Defender, attorney;

Ms. Nichols, on the brief).

Philip Lago argued the cause for respondent

E.S. (Yvonne Smith Segars, Public Defender,

attorney; Mr. Lago, Designated Counsel, of

counsel and on the brief).

Noel C. Devlin, Assistant Deputy Public Defender,

argued the cause for S.D. (Yvonne Smith Segars,

Public Defender, Law Guardian; Mr. Devlin

on the brief).

PER CURIAM

The Division of Youth and Family Services ("DYFS" or "Division") appeals from the order of the Family Part dismissing its Guardianship complaint that sought to terminate the parental rights of defendants, C.D. and E.S., the biological mother and father, respectively, of the child, S.D. At the close of the Division's case in chief, defendants and the Law Guardian moved to dismiss the complaint pursuant to R. 4:37-2(b), arguing that the Division had not established a prima facie case as to prongs two, three, and four of the test, codified in N.J.S.A. 30:4C-15.1, used to determine whether termination of parental rights is warranted.

In granting the motion to dismiss, the trial court specifically found that DYFS had failed to provide a plausible explanation for not placing the child with a maternal cousin who resides in New York. Although this individual had been investigated by the New York child welfare authorities, and approved as a suitable alternative placement approximately one year prior to the trial, this information did not come to light until after the commencement of the trial. Once DYFS contacted the maternal cousin, the court found that DYFS compounded the error by failing to provide accurate and complete information as to the child's medical needs and the governmental assistance available to defray the associated costs.

The court also found that DYFS had not provided sufficient services to address C.D.'s substance abuse problem and psychological needs. After questioning the Division's expert witness, the court concluded that if C.D. "continued with her drug rehabilitation and in fact was given help with regard to any of the depression or other personality disorders that she has . . . she [could] be considered a person that could parent. . . ." Finally, the court found that the medical evidence presented was not sufficient to establish that separating the child from her foster parents would do more harm than good.

DYFS now argues on appeal that the trial court did not apply the correct standard of review in deciding to dismiss the Guardianship complaint at the end of its case in chief. Specifically, DYFS contends that because the dismissal came about pursuant to defendants' and the Law Guardian's R. 4:37-2(b) motion, the court was obligated to accept as true all the evidence that supported the Division's position and accord it the benefit of all inferences that could reasonably and legitimately be deduced therefrom. If reasonable minds could have differed, the motion should have been denied. Verdiccchio v. Ricca, 179 N.J. 1, 30 (2004). We agree. We will structure our analysis by addressing each of the issues relied upon by the trial court in dismissing the case.

Elimination of the Harm

Prong two of N.J.S.A. 30:4C-15.1a(2) requires the court to find, as a prerequisite determination, that:

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.

The trial court reviewed the progress that both parents had made in addressing and overcoming their substance abuse problems. In so doing, the court recognized that:

[T]he [S]tate's own witness indicates that there is still room for the biological mother to keep improving and to be in a position, perhaps even in the near future with continued help and further resource[s], to be able to parent.

That's not something that this court is willing to decide today however.

[Emphasis added.]

As this passage illustrates, the trial court explicitly declined to address the question of whether the biological parents had reached a point in their recovery that would enable them to provide a safe and secure environment for this special needs child. The court also acknowledged that DYFS had presented evidence indicating that defendants' progress was incomplete, and as a result, they remained incapable of safely parenting their young child. Thus, this record is insufficient to support the granting of a R. 4:37-2(b) motion.

The New York Placement

It is undisputed that DYFS mishandled the investigation required to ascertain the suitability of an out-of-state placement with the maternal cousin, S.T., who resides in New York. After a careful review of the record, however, we conclude that, despite its initial oversight, DYFS' subsequent efforts in reaching out to the maternal cousin provided a sufficient evidential basis to deny defendant's motion. We cite the following evidence in support of this conclusion.

On March 29, 2005, the judge who presided over the initial Title 9 abuse and neglect case ordered DYFS "to explore relatives provided by [C.D]." On April 18, 2005, William Lareneggo, the DYFS worker assigned to this case, made a "Contact Sheet" entry, described below, regarding a conversation between S.T. and himself.

The first Contact Sheet documents the interaction that occurred on April 18, 2005. DYFS contacted S.T. as a preliminary step to ascertain her willingness to care for S.D. In the course of this conversation, Lareneggo indicated that "caring for [S.D.] is a 24 hour a day job," and that S.D. requires "constant supervision." Lareneggo emphasized that S.T. "should be aware of these things before she decides to accept the responsibility of taking in [S.D.]." The entry concludes with Lareneggo advising S.T. that S.D. "is in a very good home where she gets all of the necessary care she requires." Although Lareneggo agreed to call S.T. back within a week, the record shows that the next contact occurred when S.T. called Lareneggo two weeks later.

The second Contact Sheet documents the interaction that occurred on May 2, 2005. It refers to S.T.'s call to Lareneggo, advising him that she had decided "to let the foster mom take care of [S.D.] because she is getting the best possible care with the foster parents." According to this entry, S.T. believed that taking care of S.D. "will be to[o] much for [her] at this point." Lareneggo concluded by reassuring S.T. that "she made a decision with [S.D.'s] best interest at heart."

At trial Lareneggo testified, during cross-examination, as follows:

I had contacted [S.T.] to see if she was interested as a placement resource for [S.D.] and I explained to her what [] services [S.D.] was receiving at this time, the physical therapy, the occupational therapy, the speech therapy. And at that time -- in the initial conversation I had told her that if she wanted to be considered as a placement resource that she should think about it and contact me --

* * * *

Q. Okay. At that initial conversation did you ever tell her that those services would be available to her since she was an approved interstate placement through ACS in New York?

A. At the time -- during the initial conversation . . . I informed her of the services that the child needed.

* * * *

THE COURT: That's not the question, sir.

* * * *

Q. Did you ever tell her that she was approved as a placement resource in New York? Did she -- you ever tell her that?

A. No I did not. That was not part of our conversation.

Q. Okay. Did you ever tell her that the services that the child was receiving in the foster home in New Jersey, similar services would be available to her by a -- because she was an approved interstate placement through ACS in New York?

A. Our conversation did not -- did not go down that road. I did not talk to her about that, no.

Q. Okay, why not?

A. At the time, I would just inform her of the services that she needed to --

Q. But sir, I -- again with all due respect, why did you not tell the woman that those services would be available to her through ACS in New York?

A. That was something I wasn't sure of myself. I needed to confer with my supervisor [about it] and when I had spoken to Ms. Taylor the first time [] all I told her was . . . the services that [S.D.] was receiving at this time in New Jersey and that when I had spoken -- was going to speak to her the next time I would have -- you know our conversation would have went down the road of, if she had said yes to me, then we would have explored different services that she could have used to replicate the services that [S.D.] was receiving right now.

Q. But sir, isn't it fair to say that you did not paint a complete picture for the woman, on the basis of your own case notes on the conversation?

A. I only informed her of the services that she was receiving at this time.

Q. But you never told her that she could get them through New York?

THE COURT: Asked and answered.

Prong three under N.J.S.A. 30:4C-15.1a requires the trial court to consider alternatives to termination. As the record cited shows, the evidence presented by DYFS in its case in chief clearly establishes that the Division contacted S.T., informed her that she was being considered as a placement for S.D., and, after having had the opportunity to consider whether to accept this offer, S.T. declined. In this light, the trial court did not have a sufficient evidential basis to conclude that DYFS had not established a prima facie case as to this prong.

The trial court was highly critical of the manner in which DYFS communicated with S.T. Specifically, the court found that DYFS gave S.T. "erroneous information with regard to what she would have to do to accept this child. . . ." It is true that the DYFS case worker was not forthcoming in his conversations with S.T. in providing a complete and accurate account of S.D.'s needs and of the governmental support services available to address those needs.

In the process of deciding a R. 4:37-2(b) motion, however, the trial court must accept as true all the evidence that supports the Division's position, and accord it the benefit of all inferences which can reasonably and legitimately be deduced therefrom. Here, the testimony of the DYFS worker, to the effect that when he spoke with S.T. he was not sure himself of the extent of the governmental support services that would be available to her, provided a sufficient basis for DYFS to survive such a motion. At this point in the proceedings, the court was not entitled to question the credibility of the witness.

Reasonable Efforts

We next address the other aspect of the third prong under N.J.S.A. 30:4C-15.1a, which requires the trial court to find that DYFS has "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home. . . ." S.D. was exposed to illicit drugs prior to her birth. C.D. admitted that she had used cocaine on the day before her daughter was born. The evidence also shows that C.D. has had a serious and chronic poly-substance abuse problem with cocaine, marijuana, and alcohol. C.D. has also been diagnosed with depression. E.S., the child's biological father, has habitually used crack cocaine.

N.J.S.A. 30:4C-15.1c requires DYFS to engage in "reasonable efforts" to bring about family reunification. Under the statute, such efforts include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

 
(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1c.]

Here, the record reflects that over the course of two years, DYFS provided biweekly supervised visitation for both parents, parenting classes, psychological evaluations and both outpatient and inpatient drug rehabilitation. We acknowledge that DYFS rejected C.D.'s request to have S.D. live with her while she participated in the inpatient program offered by Straight and Narrow. We are satisfied that reasonable minds can differ as to whether the Division's decision in this respect was correct. As such, given the applicable standard of review, the trial court was legally required to accept the soundness of the Division's rejection.

Bonding

In considering the last statutory prong, the trial court was required to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). In addressing this prong, the trial court's findings were contained in the following comment:

And lastly, the impact on the child, yes, I am quite sure that as in all cases of bonding that there will be some psychological damage to the child if removed from the foster parents. However, again the parents themselves have been bonding. The bonding reports with regard to the parents have not been deleterious I don't believe. They may seem to be you know progressing.

It is not unlikely that if that kind of visitation or increased visitation continues, that there could be a relatively not easy but certainly a transition that would not do any further harm as far as the child is concerned.

To meet its burden of proof as to this prong, DYFS presented the testimony of Dr. Charles Hasson, a licensed psychologist in this State. The parties stipulated to admit Dr. Hasson as an expert witness in this field. In the course of his testimony, Dr. Hasson opined, within a reasonable degree of psychological certainty, that the bond between the foster parents and the child was "stronger" than the bond between the child and her biological parents. Thus, according to Dr. Hasson, if separated from her foster home, S.D. would "have a disruption in terms of [her] attachment, the child's attachment profile and would feel lost in terms of who the child would be relating to in the future."

Dr. Hasson's opinion was the only direct evidence before the trial court on the question of bonding. Although the record included testimony from the DYFS worker describing interactions between S.D. and her biological parents during supervised visits, neither parent testified at trial. Again, given the standard of review involved in a R. 4:37-2(b) motion, the court was legally obligated to accept Dr. Hasson's opinion, for purposes of determining whether the Division presented a prima facie case, as to the harm that would be caused to S.D. if she was separated from her foster home, the only home she has had since eleven days after her birth.

Standard of Review

The determinate factor guiding our analysis is the relevant standard of review which the court was required to apply in deciding defendants' motion. On remand, once the court has received all of the evidence, and both sides have rested, the standard is obviously different. At that point in the trial, the court should carefully consider the standard articulated by the Supreme Court in In re Guardianship of J.C., 129 N.J. 1, 18-19 (1992):

In cases in which DYFS seeks termination of parental rights, not on grounds of current unfitness but because of potential harm to the child based on separation from a foster parent with whom the child has bonded, the quality of the proof adduced must be consistent with the interests at stake. To the extent that the quality of the child's relationship with foster parents may be relevant to termination of the natural parents' status, that relationship must be viewed not in isolation but in a broader context that includes as well the quality of the child's relationship with his or her natural parents . . . . [P]rolonged inattention by natural parents that permits the development of disproportionately stronger ties between a child and foster parents may lead to a bonding relationship the severing of which would cause profound harm - a harm attributable to the natural parents and cognizable under the standards [established by our Supreme Court]. To show that the child has a strong relationship with the foster parents or might be better off if left in their custody is not enough. DYFS 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. Such proof should include the 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 the foster parent. In hearing a petition for termination in which the fitness of natural parents is neither relied on nor disputed by the agency, the trial court must also consider parallel proof relating to the child's relationship with his or her natural parents in assessing the existence, nature, and extent of the harm facing the child.

 
[Ibid. (citations omitted).]

Conclusion and Recapitulation

The judgment of the trial court granting defendants' and law guardian's motion to dismiss this Guardianship complaint pursuant to R. 4:37-2(b) is reversed. The complaint is reinstated and the matter is remanded for such further proceedings as may be required. Although DYFS had rested its case when the court granted the Rule 4:37-2(b) motion, on remand, DYFS shall be permitted to reopen its case solely to present evidence of events and circumstances since that dismissal. The burden of coming forward with evidence will then shift to defendants to present any evidence supporting their defenses. At the conclusion of the defense, DYFS should, of course, be permitted to present any rebuttal evidence. We reverse the dismissal because we conclude that DYFS presentd a prima facie case for termination. We express no opinion, however, as to whether DYFS has met its burden of proof under the clear and convincing standard applicable at the end of the trial.

Given the passage of time and the child's tender age, we expect that this matter will be given scheduling priority by the trial court. We encourage the Presiding Judge of the Family Part, if at all possible, to assign this case to the original trial judge, in light of her familiarity with the matter.

Reversed and remanded. We do not retain jurisdiction.

 

(continued)

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15

A-2189-05T4

RECORD IMPOUNDED

July 18, 2006