NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.Y. and A.J.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1841-08T41841-08T4

A-1858-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.Y. and A.J.,

Defendants-Appellants.

IN THE MATTER OF THE GUARDIANSHIP

OF

B.Y., E.M. and J.M.,

Minors.

__________________________________________________

 

Argued May 28, 2009 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-0055-07.

Michael C. Wroblewski, Designated Counsel, argued the cause for appellant J.Y. (Yvonne Smith Segars, Public Defender, attorney; Mr. Wroblewski, on the brief).

Carol M. Willner, Designated Counsel, argued the cause for appellant A.J. (Yvonne Smith Segars, Public Defender, attorney; Ms. Willner, on the brief).

Jeffrey Koziar, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Koziar, on the brief).

Jeffrey R. Jablonski, Designated Counsel, argued the cause for the minors (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Jablonski, on the brief).

PER CURIAM

This is the second time we review a judgment terminating the parental rights of these defendants. In our unpublished decision ten months ago, we found the trial judge's findings to be inadequate and remanded. The trial judge thereafter filed a supplemental written decision and defendants have again appealed. We now reverse and remand for a new trial with respect to defendant J.Y., but affirm the judgment insofar as it applies to defendant A.J.

I

Defendant J.Y. is the natural mother of all three children involved in this matter, namely, Bobby (born on June 17, 1995), Ethan (born on February 10, 1997) and Jane (born on March 31, 1998). Defendant A.J. is the natural father of Bobby; E.M. is the father of Ethan and Jane. Because E.M. has surrendered his rights, we focus on the parental rights of J.Y. (the mother) to all three children and of A.J. to Bobby.

A

To use the phrase frequently employed in such matters, the family has been known to plaintiff Division of Youth and Family Services (the Division) for many years, apparently starting with a referral stemming from the mother's 1996 domestic violence complaint, which alleged A.J. attempted to kill her and Bobby. A series of other referrals followed. For example, in September 1996, the Division received a referral from a hospital that Bobby had been treated for second-degree burns, which resulted from his showering with E.M. in water that was too hot. The Division then additionally learned that Bobby had previously been treated for a sprained shoulder, which apparently occurred when E.M. bathed the child. The Division concluded these incidents did not appear intentional and closed its investigation a few months later.

When a referral was received in August 1997 that E.M. had struck Bobby, the Division reopened its file. After providing services, such as parenting skills training and assistance in securing housing, in August 1999 the Division again closed its file.

The Division received another referral in September 1999 as a result of Jane's fall down a flight of stairs that resulted in a fractured femur. Allegations of neglect regarding this incident were not substantiated and the Division closed its case after the mother and E.M. consented to a case plan. A June 2000 referral regarding sexual abuse of Bobby and Ethan by E.M. was also determined by the Division to be unfounded.

In October 2000, the Division received a report that two of the children had multiple bruises, which they attributed to corporal punishment meted out by E.M. These allegations were substantiated. Consequently, the mother consented to Bobby's placement with his maternal aunt and uncle, and the placement of the other two children with their maternal grandparents. The mother later consented to a sixty-day extension of that arrangement.

The Division commenced Title 9 litigation in June 2001 and the trial court ordered that the children be placed in the Division's custody. This resulted in the placement of the three children with the maternal aunt and uncle, and the dismissal of the suit. The mother and E.M. appealed the custodial aspects of the final order.

In reviewing the matter, we observed that although the verified complaint contained "sixteen separate paragraphs purporting to establish a pattern of abuse or neglect, a careful review of the allegations in the complaint reveals only one substantiated incident of neglect." J.Y. I, supra, 352 N.J. Super. at 249-50. As we then noted, "substantiated" in this context is defined as occurring when the available information, as evaluated by the Division, indicates a child has been abused or neglected. Id. at 250 n.3 (citing N.J.A.C. 10:129A-3.3(a)(1) and N.J.A.C. 10:133-1.3). Considering its incorporation of only one substantiated allegation, we concluded the complaint otherwise "chronicled a history of repeated DYFS involvement with this family, based on third party referrals or complaints." Id. at 250.

In reviewing the complaint's allegations and the rationale for entering the order in question, we recognized that the judge merely referenced the complaint itself, which, as noted, consisted mainly of unsubstantiated allegations:

The transcript of the order to show cause proceedings reflects that all three parents were present. J.Y. was represented by counsel. E.M. and A.J. were not. No witnesses were sworn, questioned or cross-examined. No documentary evidence was marked, properly admitted or considered by the reviewing judge. The entire procedure was more like an informal chat than a court proceeding.

[Id. at 254.]

When the mother and E.M. agreed to "stipulate to a single unspecified allegation in the complaint," the judge "did not question the parties directly to determine if they understood the legal significance of this stipulation nor did the judge inquire as to which allegation of abuse or neglect was the subject of the stipulation." Id. at 256-57. Instead, the judge simply concluded that the Division's "actions and involvement up to this point were justified and that all statutory requirements had been met." Id. at 257.

When the parties later returned to court in that same matter, the mother and E.M. objected to the Division's request that legal custody of all three children be transferred to their maternal aunt and uncle. A different judge, "without the benefit of an evidentiary hearing," accepted the Division's representations that the parents had been uncooperative with the Division's efforts to stabilize the family's conditions, entered an order granting legal and physical custody of the children to the maternal aunt and uncle, and dismissed the complaint. Id. at 258.

We held, as more fully explained at the time, that the proceedings were inadequate to support the relief granted. We emphasized that:

only one out of the sixteen allegations listed in the complaint was actually substantiated by DYFS. Ironically, although DYFS confirmed that the children were sub-jected to deplorable living conditions, it did not initiate any legal action to remove them from their parents' custody or assist the family to find suitable housing. The event triggering DYFS involvement, [the mother's] hospitalization, is totally lack-ing in crucial details and does not, on its face, support a finding of abuse or neglect . . . .

[Id. at 263.]

We also concluded that the stipulation given by the parties was lacking in specificity and precluded a determination of abuse or neglect, and, therefore, remanded for "such proceedings as may be required under the current circumstances." Id. at 268.

Following our remand in J.Y. I, an order was entered by the trial court that memorialized the placement of Bobby with his maternal aunt and uncle and the return of Ethan and Jane to the custody of their parents.

B

In February 2004, the Division received a referral from Jane's school that indicated Jane had complained about a lack of food or heat in her home; she also complained that E.M. had hit her. The former was substantiated; the latter was not. At that time, the Division also learned Jane suffered from seizures. The Division reopened its file.

A month later, Jane told a school therapist that E.M. made her leave her bed and sleep on the couch in the middle of the night so that he could use the bed; this allegation proved unfounded. In fact, the Division learned that, in order to monitor Jane for seizures during the night, Jane sometimes slept on the couch with her mother and E.M. sometimes slept on the floor near Jane's bed.

On September 23, 2004, local police reported to the Division that Ethan and Jane were locked out of their home, unsupervised, from 3:30 p.m. to 7:00 p.m. This referral was substantiated, there having been a miscommunication between the mother and E.M. regarding childcare arrangements.

In December 2004, the Division received a referral resulting from the fact that Ethan arrived at school with bruises on his arm. The allegation of abuse could not be substantiated; the injuries were attributed to physical fights between the children. However, concerned by the condition of the home, the Division secured the parties' agreement to a case plan, which provided that the Division would assist in obtaining benefits to improve the family's living conditions.

In March 2005, a school psychologist reported that Jane advised that E.M. hit Ethan with a belt on his face and feet. This allegation was substantiated; a Division caseworker reported that E.M. "admitted . . . he beat his children with a belt and . . . had them kneel[] . . . in a position . . . described by [Bobby] [as] includ[ing] placing their hands on top of their head while he hit them on the feet with a belt and/or a backscratcher." The same Division report revealed the mother was in a different room at the time and later stated that she "tried to intervene but . . . was too late." The report also indicated that the Division had "concerns regarding [the mother's] ability to provide for the needs of the children," and concluded the mother was "unable to effectively maintain the safety of her children." As a result, the Division immediately removed the children from the home.

C

Following removal, the mother regularly attended supervised visitation with the children. The mother and E.M. regularly attended a parenting training program and expressed a commitment to be reunited with the children.

Dr. Kenneth M. Schulman psychologically evaluated the mother, E.M., and the children. In his July 30, 2005 report, Dr. Schulman found the mother to be "an emotionally immature woman who experiences and expresses affect dramatically and intensely but also shallowly and superficially." He felt she "takes in too little information and examines her life experiences less thoroughly than would be considered," and that she "is at risk for coming to conclusions too hastily, for working carelessly and for feeling satisfied with final products that do not reflect the full measure of her ability." He concluded she was "often unable to set aside her needs for those of her children" and "clearly in need of psychotherapy," as were the children.

In August 2005, the children were placed in the care of S.M., a paternal cousin. Meanwhile, the mother and E.M. completed domestic violence counseling. The family was also referred to the Audrey Hepburn Children's House (AHCH) for therapy. According to the testimony of a Division caseworker, the mother complied with counseling "to an extent," as she was "somewhat" inconsistent in attending meetings or therapy sessions.

II

The Division commenced this action for the termination of parental rights on August 9, 2006. We have already outlined the status of the mother's relationship and involvement with the children up until that point in time. When the action was filed, Bobby's father, A.J., was still serving a fourteen-year prison term for the aggravated manslaughter of a two-year-old child.

A

At the outset of the action, AHCH issued a progress report, dated October 5, 2006, which indicated the children "continue to flourish emotionally and behaviorally" under the care of S.M., whose home was described as "one of safety, stability, and educational enrichment." In further reports, AHCH continued to recommend that the children remain in S.M.'s care, concluding that she was "an insightful and caring guardian." In May 2007, AHCH informed the Division that the mother had been "non-compliant with her individual therapy, which has had a negative impact on the children," and that the children were experiencing a "sense of instability and a lack of closure, which [could not] be therapeutically addressed due to [the mother's] termination of therapy." AHCH recommended that the mother's visits be decreased to once a month.

In late 2007, Dr. Rachel Jewelewicz-Nelson conducted a psychological evaluation of the mother for purposes of the termination action. She also conducted bonding evaluations of the relationships between the mother and children, and between S.M. and the children. Referencing the mother's "history of disturbed and disrupted attachments, homelessness, and victimization," Dr. Jewelewicz-Nelson found the mother did not have "a concrete plan of care for the children if they could be re-unified with her," failed to "recognize the harm that her children have experienced as a result of their lack of permanency," and had "no clue of a timetable by which she might be ready to provide a home and financial support for her children." Although recognizing that the mother was no longer living with E.M., Dr. Jewelewicz-Nelson concluded "it [was] not clear that [the mother and E.M.] have totally disengaged from their relationship"; as a result, in the doctor's view, "it was not clear that [the mother could] protect her children from future contact with, or abuse at the hands of, [E.M.]."

As for S.M., Dr. Jewelewicz-Nelson found that although the children "have an emotional and psychological attachment" to their mother and had expressed a desire to live with their mother, they also asserted that if they could not live with their mother they wanted to remain with S.M. Dr. Jewelewicz-Nelson found that the relationship between the mother and the children "is not a healthy parent-child relationship," and, by contrast, S.M.'s relationship with the children is "excellent," exhibiting "an obvious mutuality and reciprocity among the foursome with a clear sense of who is in control." Dr. Jewelewicz-Nelson therefore agreed the Division should continue to pursue the termination of the mother's parental rights in order to free the children for adoption by S.M.

On March 30, 2007, Dr. Robert Kanen conducted a psychological evaluation of A.J. This evaluation revealed that A.J. has had three children by three women. When asked for Bobby's birth date, A.J. responded he did not know and, in fact, indicated that he did not know Bobby was his son until he took a DNA test. When asked if he knew Bobby, the father responded: "I'm not sure. I've seen him two times when on the street." He also admitted to seeing Bobby only approximately seven times in his life. Dr. Kanen noted that A.J. "has made little to no attempt to establish a relationship with [Bobby]," and observed that A.J.'s conviction for aggravated manslaughter "strongly suggests poor impulse control, poor judgment and temper control problems." Dr. Kanen determined that "[A.J.] is not available to provide a permanent, safe and secure home for [Bobby]" and concluded that "returning [Bobby] to his care would expose the child to an unnecessary risk of harm."

B

The trial in this matter took place on July 9 and 11, 2007, during which the court heard the testimony of Dr. Jewelewicz-Nelson, S.M., a Division caseworker, and the mother. No other witnesses were called, but the trial judge was provided with considerable documentation generated by the Division's contacts with this family over the years.

In a four-page written decision, the trial judge concluded that the parties' parental rights should be terminated. The opinion described the lack of contact between A.J. and Bobby throughout the child's life, due to A.J.'s incarceration, and concluded that "[t]he evidence is clear and convincing that [A.J.] has neglected [Bobby]," whose "best interests would be served if his father's parental rights were terminated to free him for adoption."

The judge then referred to the family's "chaotic history of domestic violence, child abuse, and homelessness causing the children's out of home placement in foster-care and with relatives for periods of time." He noted that the Division has been involved with the family for more than ten years and, despite the Division's efforts, the mother "has been unable to provide a safe, nurturing home for her children."

The judge's decision contained lengthy quotations from psychological reports, and noted the harm suffered by the children due to their constant movement and instability. The decision then discussed S.M. and concluded that adoption "would not cause the children more harm than good" because the children's bond with their mother was "[outweighed] by her inability to properly parent them, to overcome her mental health problems, and provide a home for them in the foreseeable future."

In conclusion, the judge wrote:

The evidence is clear and convincing that: (1) [the mother] neglected her children and they would be at great risk if returned to her custody; (2) the Division offered and provided her services to assist in her overcoming the causes of her neglect and inability to care for her children; (3) the Division made reasonable efforts to find relatives to care for the children; (4) it would be in the best interests of the children if their mother's parental right[s] were terminated to free them for adoption; (5) termination of their mother's parental rights will not do more harm than good.

With that, a judgment was entered terminating the parental rights of A.J. to Bobby and the parental rights of the mother to all three children. Both appealed.

C

After considering the arguments of the mother and A.J. that the evidence was insufficient and the judge's findings inadequate, in J.Y. II we found we were unable "to adequately review the matter in light of the trial judge's failure to render adequate findings of fact and conclusions of law." Slip op. at 6. We determined that the trial judge's opinion only "parroted the statutory language, and without any additional amplification, drew the conclusion that each of the four [statutory] prongs . . . had been met by clear and convincing evidence." Id. at 10.

Regarding the trial judge's recitation of what was contained in the psychological evaluations in the record, we questioned whether the judge had made adequate findings:

Although it is arguable that the judge found credible the expert opinions he quoted even though he never expressly stated so, we note that the judge heard the testimony of only one of those three experts. Moreover, the judge quoted only the experts' broad conclu-sions; we cannot ascertain from these mere quotations the particular facts upon which the experts drew those conclusions, let alone the particular facts found by the judge in his apparent embracing of the experts' conclusions.

[Ibid.]

In addition, we determined that "the mere adoption of the conclusions of others without greater specificity is not what is required of a judge in making findings of fact." Ibid. And, even if that were acceptable, the judge's adoption of the conclusions was "not entirely persuasive," as "[i]mmaturity and a need for therapy are not alone sufficient reasons for the termination of parental rights." Id. at 11.

We then noted that "the situation is exacerbated by the judge's general reference to [the family's] prior history [with the Division], without specifying the factual events that he may have had in mind . . . ." Id. at 12. This general reference "render[ed] the situation even more problematic because many of the referrals regarding this family, as we noted in [J.Y. I], were not substantiated." Ibid. As such, we stated that the trial judge's "general reference to the family's past history, without further definition or elaboration, d[id] not negate the possibility that the judge ha[d] relied on circumstances and allegations that were never substantiated." Ibid.

As a result, we remanded for further findings and conclusions on (1) the merits of the guardianship action as it related to both the mother and A.J., and (2) the mother's assertion on appeal that she had been denied the effective assistance of counsel because her trial counsel had not referred the judge to J.Y. I.

D

In response to our mandate, the trial judge issued, on October 6, 2008, a nine-page supplemental decision. Following a brief overview of the Division's involvement with the family, and references to some of the specific referrals, the judge found the mother neglected the children by failing to provide a home for them from October 20, 2000 to September 2004. He found that E.M. had inflicted corporal punishment on the children, that the mother "was aware of [this] and did nothing to protect them," and determined that the children's statements to a Division caseworker that "they and their mother were afraid of [E.M.] [we]re creditable [sic]."

The judge then referred to the testimony of Dr. Jewelewicz-Nelson and alluded to the fact that neither defendant provided expert testimony. Without stating whether he found Dr. Jewelewicz-Nelson's opinions worthy of being credited, the judge concluded:

The evidence is clear and convincing that [the mother] neglected her children, the Division offered and provided services over a period of several years to help to overcome the causes of her neglect, and that she has been and is unlikely to be able to do so.

The judge then discussed how the children were prospering in the care of S.M. and drew this conclusion:

The evidence is clear and convincing that the children's best interests will be served by the termination of their mother's parental rights to free them for adoption. Adoption will not do more harm than good as they have come since August 9, 2005, to see [S.M.] as their psychological parent.

As for the mother's allegation of ineffective assistance of counsel, in which she argued that her attorney failed to inform the trial judge of J.Y. I, the judge acknowledged he "was unaware of [J.Y. I], was unaware of any findings or lack of findings in the earlier action, and did not rely upon any orders enter[ed] by the court in [the] earlier decision." However, in response to the mother's argument that she was denied the effective assistance of counsel due to that fact, the judge stated:

Apparently, there must have been some agreement between the parties in the earlier case as to how the court proceeded after the remand as a second appeal was not filed. [The mother] offered no evidence at trial of this case disputing the essential elements of the Division's evidence concerning events that occurred while the earlier case was before the court.

If the court had been aware of the earlier Appellate Division decision [in J.Y. I], it would not have made any difference in the court's findings and conclusions in either its initial decision or its decision on remand.

The judge lastly addressed A.J. -- his incarceration, his lack of involvement in Bobby's life, and the unsuitability of Bobby's paternal grandmother as a potential caretaker -- concluding that "[t]he evidence is clear and convincing that [A.J.] has neglected [Bobby] and [Bobby's] best interest will be served if his father's parental rights are terminated to free him for adoption."

Both parents again appealed, requiring that we again examine the sufficiency of the evidence and the adequacy of the judge's findings.

III

A

Appellate review of a decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because trial court findings "are considered binding on appeal when supported by adequate, substantial, and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), we will not intervene unless the findings "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). See also Matter of Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

This standard of review requires that we defer to trial judges' findings of fact because trial judges are better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded their testimony. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). In other words, a trial judge's "'feel of the case' can never be realized by a review of the cold record." Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396 (2009). Moreover, we normally give special deference to the fact findings of Family Part judges because of their special expertise in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

At the same time, we must always remain cognizant of the constitutional right of parents to "maintain a relationship with their children." Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007). By the same token, these rights are "fundamentally important," but "they are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" G.M., supra, 198 N.J. at 397 (quoting Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)). Accordingly, although we owe deference to the findings of trial judges in such matters, in balancing the competing interests, we must "ensure that the statutory and constitutional rights of the parent or guardian are scrupulously protected." G.M., supra, 198 N.J. at 397 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

B

In turning first to the case against the mother, we again express our chagrin over the lack of depth in the judge's fact findings. Following what we found to be a wholly inadequate description in the original four-page opinion of the bases upon which the judge decided to terminate parental rights, the judge produced a written opinion of nine pages that represents only a slight improvement.

As observed in J.Y. II, we were concerned about the judge's great reliance, with little specification, on this family's "history" with the Division. Because we recognized at the time of this court's first involvement with this family in our 2002 opinion, that much of that history was unsubstantiated, J.Y. I, supra, 352 N.J. Super. at 263, we remanded in order to have the judge identify the specific past events upon which he relied. We also previously expressed our concern in this matter with the fact that the judge had quoted from expert opinions without expressing whether he found any of those experts to be credible, and observed that only one of those three experts had been called to testify. We remanded in J.Y. II in order to obtain a thorough discussion of the facts found by the judge on each of the four statutory prongs and an explanation of why the judge found those facts by clear and convincing evidence. And we lastly directed the judge to consider the mother's argument that, by failing to refer the judge to J.Y. I, her trial attorney was ineffective.

Having carefully examined the marginal improvement in the judge's fact finding represented by his nine-page decision over the prior inadequate description of his findings in his original four-page decision, we must again express our lack of confidence that the issues posed in this case have been adequately weighed or that the judge's conclusion that the four prongs were met by clear and convincing evidence is worthy of our deference.

As we have already observed, the judge exclusively relied in his first opinion on the family's "chaotic history of domestic violence, child abuse, and homelessness causing the children's out of home placement in foster-care and with relatives for periods of times," and on the Division's "involve[ment]" with the family "for more than ten years" as a result of various referrals, which the judge did not then precisely specify, as the factual predicate for the first and second prongs.

Following our remand -- and the concern that this prior "finding" may have been based on allegations never substantiated at the time or proven during the trial in this case -- the judge focused on the corporal punishment meted out by E.M. on the children and what he referred to as the mother's failure to provide a safe and suitable home from October 20, 2000 to September 2004. Although the judge's finding regarding corporal punishment would appear sufficient, the finding regarding the sustained period of an unsuitable home appears, once again, to have been based upon the judge's possible reliance on unsubstantiated allegations.

The judge's entire finding on the first aspect consists of the following:

[T]he Division investigated and learned from [the children] that [Bobby] had been punished by [E.M.] by being struck on the bottom of his feet and in the face with a belt. [Bobby] had a bruise on his right cheek and a laceration under his right eye. The children said they were punished from time to time by [E.M.] having to kneel on the floor facing a door with their hands behind their heads for protracted periods of time and at times were hit with a belt or backscratcher on the soles of their feet. They said both they and their mother feared [E.M.].

[E.M.] admitted he had struck [Bobby] and punished the children in this manner. [The mother] was present in the apartment when [Bobby] was hit and at times when the children were punished in this manner but neither made any effort to protect them from [E.M.] or move with them from the residence. She made no effort to seek the protection of a domestic violence restraining order.

[The mother] has consistently main-tained she was never present when the children were punished by being compelled to kneel on the floor with their hands behind the head and struck on the soles of their feet. But the court finds she was aware of the children being physically abused by [E.M.] and did nothing to protect them. The court finds the children's statements to a Division caseworker that both they and their mother were afraid of [E.M.] are creditable [sic].

We would ordinarily defer to such a finding. The judge specified the triggering event in question -- E.M.'s corporal punishment of the children -- and found that the mother was not credible in her denial of any knowledge about this manner of punishment. Indeed, we are also satisfied that such a finding could support a conclusion that the first prong of the statutory test was met by clear and convincing evidence. See N.J.S.A. 30:4C-15.1a(1) (requiring clear and convincing evidence that the children's "safety, health or development has been or will continue to be endangered by the parental relationship"). But our willingness to defer to such a finding must stop here.

In again referring to the family's past involvement with the Division, the judge may have again relied upon unsubstantiated allegations. In dealing with the mother's argument regarding the effectiveness of her trial counsel, the judge observed that the mother "offered no evidence at trial of this case disputing the essential elements of the Division's evidence concerning events that occurred while the earlier case was before the court." We take this to mean that because there are references in the Division's file to earlier referrals, and because the mother did not provide evidence to rebut these unsubstantiated allegations, the judge concluded they were true. From this, the judge then stated in his supplemental decision that there was no substance to the effective assistance of counsel argument because, "[even if he] had been aware of [J.Y. I], it would not have made any difference in the court's findings and conclusions in either its initial decision or its decision on remand."

We interpret these comments to mean that the judge was satisfied that the Division met its burden of proving the other allegations of abuse or neglect, which had not been substantiated, because the Division's references to these unsubstantiated allegations in its file were not rebutted by the mother. Such an approach mistakenly shifted the burden of persuasion to the mother, and the conclusions drawn therefrom cannot be sustained. The fact that the Division's file was admitted in evidence does not mean that everything in it must be deemed true until rebutted. To the contrary, Rule 5:12-4(d) directs only that "[c]onclusions drawn from the facts stated [in the Division's records] shall be treated as prima facie evidence, subject to rebuttal." Applied literally and sensibly, this Rule only leads to a conclusion that when the Division's records indicate that the Division was not able to substantiate allegations contained in a referral, that the prima facie evidence thereby presented is that the allegation is not true. In other words, if the content of the Division's file is to be deemed as true, what must be deemed as true here is that these allegations, as reported and examined by the Division, were not substantiated.

Despite the opportunity provided by our remand to clear from the record any unsubstantiated claims of abuse or neglect, the judge has merely reaffirmed the mistake made in his first opinion by relying upon these unproven allegations. Accordingly, we cannot give deference to the judge's other factual finding that the mother neglected the children by failing to provide a home for them from October 20, 2000 to September 2004, because we are not satisfied that this broad finding is not based, at least in part, on unsubstantiated allegations.

Indeed, because the judge's decision on the first prong, as well as the other prongs, is necessarily infected by the judge's consideration and incorporation of unsubstantiated allegations, we cannot sustain the judgment terminating the mother's parental rights. Even if we were to divorce the incorporation of the body of unsubstantiated allegations from the finding on the first prong regarding the mother's failure to intervene in the corporate punishment meted out by E.M., we cannot safely do so with regard to the second prong. That is, we are not satisfied in considering the second prong that the judge's view of the past allegations of abuse or neglect was limited to E.M.'s corporal punishment of the children, and the mother's failure to effectively intervene. Instead, following the judge's determination of those facts, as well as his indication that the mother did not refute the other unsubstantiated events documented in the Division's file -- as a basis for finding those events to be true -- the judge then provided a non-specific conclusion that the mother is "unwilling or unable to eliminate the harm facing the child[ren] or is unable or unwilling to provide a safe and stable home for the child[ren] and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1a(2). We cannot tell from the judge's cursory opinion whether the judge found this to be so because of the corporal-punishment circumstance or because of having incorporated all or part of the body of unsubstantiated allegations referred to in the Division's file.

Moreover, the corporal punishment of the children occurred in March 2005, and the mother separated from E.M. by May 2006. The question regarding the second prong was whether, by the time of trial more than one year after the mother separated from E.M., there was reason to believe -- by clear and convincing evidence -- that the mother was unable or unwilling to protect the children from that harm. Her separation from E.M. was suggestive of a finding that she was willing to eliminate the harm posed by E.M. However, the judge did not explain why that action on the mother's part was not sufficient. Instead, he simply drew a broad conclusion that the second prong was met. We do not mean to suggest that a nexus could not be drawn from the facts regarding E.M.'s abuse of the children, coupled with the mother's failure to more appropriately respond to the danger he posed, and a finding in favor of the Division on the second prong; we merely indicate that the judge has not explained how he reached that conclusion. And, again, if the judge's finding on the second prong was based upon other concerns beyond E.M. and corporal punishment, it must, a fortiori, be based on the other collection of mostly unsubstantiated allegations that have proved problematic in the trial court's dealing with this family since our decision in J.Y. I in 2002. Consequently, we cannot confidently sustain the judge's finding on the second prong.

In light of our view of the judge's findings on the first two prongs, no point would be served by moving forward to the judge's similar, conclusory findings on the third and fourth prongs. As we have mentioned, although the judge's finding of neglect on the first prong regarding the mother's failure to intervene in E.M.'s punishment of the children would be capable of being sustained were it not coupled with the judge's reference to other unsubstantiated events, the judge's remaining findings do not represent any substantial improvement over the judge's prior decision in this matter.

In reversing as to J.Y., we conclude that it is appropriate to remand to another judge for all further proceedings. Because in taking up the matter another judge will not have had the opportunity to evaluate the witnesses and assess their credibility, we direct that the trial court's future decision not be based upon the existing record but upon the evidence adduced at a new trial. It is too much to ask another judge to make the findings required in these important cases and to attempt to judge the credibility of witnesses or assess whether the evidence was clear or convincing on a static record. For the very same reason, we must decline the parties' invitation that we exercise original jurisdiction; we too are only able to view a static record and have had no opportunity to sit and judge the credibility of the witnesses as they testified. Appellate courts exercise their original fact-finding jurisdiction only "sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms, supra, 65 N.J. at 484; see also Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd, 33 N.J. 78 (1960). Such is not the case here.

C

Although we have determined that the judge's ultimate decision to terminate the parental rights of the mother cannot stand, we have no similar qualms in considering the action brought against Bobby's father, A.J.

The record reveals that A.J. is presently serving a lengthy prison term for the aggravated manslaughter of a two-year old child. As revealed by the evaluation conducted by Dr. Kanen, A.J. has only seen Bobby on a few occasions and not since he started his prison term in 1997. He never contributed anything toward Bobby's welfare nor was he even aware the child has special needs. In essence, A.J. has had no involvement in Bobby's life and the termination of his parental rights would do no harm at all.

The trial judge observed in his decision that A.J. appeared at the time of trial but he did not testify or provide any evidence. In addition, the record reveals that the evidence adduced against A.J. was purely documentary. Dr. Kanen did not testify, but the statements he attributed to A.J. regarding his "involvement" in Bobby's life were not refuted, and A.J.'s current circumstances are beyond dispute. Even though we are satisfied with the adequacy of the judge's findings regarding A.J., we have also examined the evidence and were it necessary we would, in this instance, exercise original jurisdiction to come to the same conclusions for the reasons we have just provided.

We held in our earlier opinion in this action that A.J.'s arguments regarding the alleged deprivation of procedural due process were of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Other than our comments regarding the case against A.J. immediately above and throughout this opinion, we conclude that the arguments he has posed on appeal are also without sufficient merit to warrant discussion in a written opinion. Ibid.

IV

For these reasons, we affirm that part of the judgment terminating the parental rights of A.J., but reverse that part of the judgment terminating the parental rights of J.Y. and, in the latter regard, remand for a new trial before a different judge.

Affirmed in part; reversed in part. We do not retain jurisdiction.

 

We will refer to our prior unpublished opinion remanding this matter for adequate findings of fact, Division of Youth and Family Services v. J.Y., Nos. A-0641-07T4 and A-0654-07T4 (App. Div. August 6, 2008), as J.Y. II. We will refer to our earlier published opinion in Division of Youth and Family Services v. J.Y., 352 N.J. Super. 245 (App. Div. 2002), when we reversed a custody order based upon a finding of abuse or neglect in a Title 9 action involving this family, as J.Y. I.

The names of the children in this opinion are fictitious. To avoid confusion, we use the same fictitious names used in J.Y. I.

We do not mean to suggest that the adequacy of findings is measured by the length of the opinion. Experience dictates, however, that in such matters -- which turn on the weighing and consideration of numerous factual events and the testimony of experts regarding the defendants' ability to parent effectively and meet the needs of one or more children -- a thorough and searching examination of the evidence and the application of the found facts to the four statutory prongs cannot possibly be adequately presented in a mere handful of pages.

We would observe that on this point Dr. Jewelewicz-Nelson concluded "it [was] not clear that [the mother and E.M.] have totally disengaged from their relationship" so it was "not clear that [the mother could] protect her children from future contact with, or abuse at the hands of, [E.M.]" (emphasis added). We question but need not presently decide in light of our disposition of the appeal how an expert's opinion that certain things were "not clear" could support a finding that the same things were proven by clear and convincing evidence.

(continued)

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33

A-1841-08T4

RECORD IMPOUNDED

June 23, 2009