NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.L.

(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NOT FOR PUBLICATION WITHOUT THE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-3753-07T43753-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.L.,

Defendant-Appellant.

_________________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

T.J.B., J.J.B. and J.J.B., minors.

_________________________________________________

 

Submitted January 26, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FG-02-76-07A.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anna F. Patras, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lisa B. Landsman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent minors (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

C.L. appeals from an order of the Chancery Division, Family Part, entered on February 29, 2008, that terminates her parental rights to three of her four biological children: T.J.B., born on June 17, 2003; J.J.B., born on September 15, 2005; and J.J.B, born on August 7, 2006. A fourth child J.B., born to C.L. on September 3, 2007, is also in the custody of the Division of Youth and Family Services (DYFS or the Division), but he is not a subject of this appeal. The parental rights of J.B., the biological father, were also terminated by the February 29, 2008 order, however, J.B. did not join in this appeal.

DYFS first became involved with C.L. in July 2003, when it received a referral from Birth Haven Shelter to help C.L. and her one-month-old infant obtain permanent housing. No other concerns were raised at the time and DYFS closed its file on that referral in January 2004. In September 2005, DYFS received a referral from the hospital where C.L. delivered her second child. C.L. had told one of the nurses of a domestic violence incident with J.B., her live-in paramour and the father of her children. There were also concerns that C.L. and the infant had morphine in their systems when C.L. gave birth. Upon further investigation, however, DYFS confirmed that the trace of morphine in C.L.'s system was administered by the hospital five days earlier for C.L.'s migraine headache.

In a report dated September 16, 2005, a DYFS caseworker who visited the family home, observed that T.J.B "appeared well taken care of and very happy. He was age appropriate, and the apartment was neat and clean." The domestic violence C.L. had disclosed earlier involved a quarrel with J.B. that had resulted in the two of them hitting each other with an umbrella. T.J.B. was in the apartment when the altercation took place. At that time, DYFS determined the allegations were unfounded; it closed the file on October 7, 2005.

On October 9, 2005, two days later, C.L. and J.B. quarreled again. J.B. attempted to "choke" C.L., who called the police. This incident resulted in a temporary restraining order against J.B., that barred him from the home.

Two days later, on October 11, 2005, DYFS received another referral concerning C.L. from Hackensack University Medical Center. Suffering from clinical postpartum depression, C.L. had called a crisis line because she was severely depressed. She reported having thoughts of harming herself and her child. DYFS determined that since C.L. could not care for the children, J.B. was barred from the home, and no other suitable option could be identified, both children would have to be placed in foster care.

C.L. was an inpatient at the Psychiatric Unit at Hackensack University Medical Center for one week. Upon discharge, she immediately began out-patient treatment for postpartum depression at Quest under the care of Dr. Khadijah Watkins. Three months later, on January 18, 2006, Dr. Watkins informed DYFS of C.L.'s progress, reporting that "she does not appear to be a danger to herself or others as she is not suicidal or homicidal, nor is she depressed or psychotic." DYFS also referred C.L. to numerous programs, all of which C.L. participated in, or completed. C.L. was allowed to visit her two children once weekly for one hour through the DYFS visitation program.

The DYFS plan at that time was reunification. In fact, after seven months in foster care, the two children were returned to C.L. on May 25, 2006, where she was a resident of Shelter Our Sisters. DYFS kept the file open for services and continued to supervise C.L. Then, in July 2006, C.L. was accused of stealing jewelry from another resident, and she was no longer attending therapy sessions at Vantage Health System. She was asked to leave Shelter Our Sisters, at which point, she and her two boys moved back into J.B.'s apartment. When DYFS learned of that housing arrangement, it grew concerned that more episodes of domestic violence would take place, as J.B. had not complied with all of his referrals for services. Due to her living arrangements with J.B., the two children were again removed from C.L.'s care on July 19, 2006. They were placed in separate foster homes.

On August 7, 2006, C.L. gave birth to her third child, J.J.B. The infant was placed in foster care upon his release from the hospital. C.L. continued to cooperate and participate in DYFS services and completed the twenty-six session course in Alternatives to Domestic Violence in November 2006. Nevertheless, in November 2006, DYFS changed its plan from reunification to adoption. At the time DYFS transferred the case to the adoption unit, C.L. was employed, had secured her own apartment, and continued to be engaged in therapeutic services and one hour weekly visitation with her children.

The oldest child, T.J.B., remained in his first foster placement from July 2006 until June 2007. He was placed in a second foster home from June 2007 until August 2007. The second foster parents requested that T.J.B. be removed due to behavioral problems. In September 2007, T.J.B. was placed in a third foster home where he remained until trial. C.L.'s second son, J.J.B., remained in his first foster placement from July 2006 until August 2007. At the time of trial, J.J.B. was still in his second foster home. The third child, J.J.B. has been in the same foster home since he was released from the hospital in August 2006 after his birth.

When Priscilla Valentin, a caseworker in the DYFS adoption unit, received the file in April 2007, C.L. continued to be employed, maintained her apartment, and was engaged in therapy. During that time, C.L. became pregnant and in due course gave birth to her fourth child on September 3, 2007. In the latter part of her pregnancy, C.L.'s attendance at therapy sessions became sporadic. C.L. had considered giving up her baby to a private adoption agency but then changed her mind. The adoption agency had been paying C.L.'s rent during her pregnancy. Consequently, when she changed her mind about the private adoption, the agency withdrew its support and C.L. lost her apartment.

When her fourth child was born, C.L. was informed that if she did not go through with the private adoption, DYFS would place a hospital hold on the baby, and she would be placed in foster care. Not wanting to give up her parental rights, C.L. then asked DYFS to place the baby in the custody of her great aunt, V.B., who lived in North Carolina. That request was granted and the fourth child is not a subject of this appeal. In December 2007, C.L. moved to North Carolina to be closer to her aunt and her fourth child.

In the termination proceedings, Dr. Michael J. Fiore testified as a mental health expert for DYFS. Dr. Fiore's psychological evaluation report was remarkably negative in comparison to opinions of other mental health professionals who had occasion to provide treatment to C.L. Nonetheless, in his written decision, rendered on February 29, 2008, terminating C.L.'s parental rights, the Chancery Division judge accepted Dr. Fiore's opinion and quoted extensively from Dr. Fiore's assessment, noting as follows:

This assessment concluded that [C.L.] has not made sufficient progress in psychotherapy to assume parenting responsibilities. She continues to be a high risk parent for child neglect and has made no significant progress regarding her potential to respond to parenting stress by feeling an urge to harm her child. [C.L.] is a narcissistic, antisocial, histronic adult who is characteristically deceptive and irresponsible. Her judgment regarding self-protection and child protection is poor. [C.L.] exhibits anger management difficulties, parenting skills deficits, and difficulty placing the needs of others before her own. [C.L.] denied active symptoms of depression. She stated that she could not explain or recall what she has learned in psychotherapy and reluctantly admitted that her attendance has been problematic. Given the length of time [C.L.'s] children have been in out-of-home placement and the absence of significant change on [C.L.'s] part, it is recommended that DYFS seek an alternate permanent plan for the children. Reunification is not likely to occur in the near future as [C.L.] has not yet articulated goals for herself in therapy and is not committed to change. Given her history, her prognosis is poor. [C.L.] continues to be in need of long term, ongoing psychotherapy. She is not likely to comply with therapy if it is not required. She is also likely to be deceptive in therapy rather than genuinely interested in taking responsibility and making changes.

Based, in large part, upon that assessment and for reasons stated in a written opinion issued with its February 29, 2008 order, the trial court terminated the parental rights of C.L. and J.B. and awarded DYFS guardianship to consent to the adoption of the three children. This appeal followed.

The applicable standards are well established. "Parents have a fundamental constitutional right to raise their children." N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). However, such right is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). Rather, parental rights are "tempered by the State's parens partiae responsibility to protect the welfare of children." Id. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The best interests of the child governs this balance, and that standard, originally articulated in N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), has been codified in N.J.S.A. 30:4C-15.1. Ibid. Thus, a court can terminate parental rights when the Division shows by clear and convincing evidence that:

(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; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

The burden of proof in all guardianship cases is by clear and convincing evidence. In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). The "four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Termination of parental rights is a severe State action in that it permanently severs "the relationship between children and their biological parents." J.C., supra, 129 N.J. at 10. Thus, when biological parents oppose the termination of parental rights, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. The considerations involved in this inquiry are "'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.

Notably, the best interests standard is applied in light of "New Jersey's strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all . . . guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid. In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' [and] . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1(a)(2)); (citing J.C., supra, 129 N.J. at 10).

The constitutional liberty interest of a biological parent in "the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982). "When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id. at 753-54.

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and the judge's "feel of the case" based upon his or her opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will not disturb the judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

In return, a trial court's determination that the four prongs of N.J.S.A. 30:4C-15.1 have been met in a termination case must not state its findings of fact in general and conclusory language. Rather, a trial court must meet the requirements of Rule 1:7-4(a) which provides: "The court shall, by opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury." Naked conclusions will not satisfy the underlying purpose of Rule 1:7-4(a). Curtis v. Finneran, 83 N.J. 563, 570 (1980). Therefore, the trial court "must state clearly its factual findings and correlate them with the relevant legal conclusions." Ibid. Findings not clearly derived from the supporting evidence are "insufficient to permit review by this court." Gordon v. Rozenwald, 380 N.J. Super. 55, 78 (App. Div. 2005).

Here, the trial court's opinion is rather conclusory and does not address separately the State's proof in meeting the four prongs under N.J.S.A. 30:4C-15.1 in any meaningful way. Additionally, some of the facts the judge relies upon are not supported by the record. For example, DYFS, the Law Guardian and the trial court rely prominently on the "domestic violence" that occurred in the family home as the basis for finding that the children were abused and/or neglected. We recognize that the physical insecurity and risk of harm to a parent who is subject to domestic violence may adversely affect the well-being of children in the home. However, the burden of DYFS is to demonstrate harm to the children, as opposed to harm to the parent, arising from the domestic violence that had occurred. N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 25 (App. Div. 2004) (observing that "[w]e thus cannot assume (as did DYFS and the family court judge) that the present case was one in which witnessing domestic abuse had a present or potential negative effect on the child sufficient to warrant a finding of abuse against appellant--the battered victim."). Id. at 26.

In S.S., we were concerned that the trial court adopted and relied on the unsubstantiated assumptions by the DYFS case worker and the Child Placement Review Board that harm to the child inevitably occurred as a result of witnessing domestic violence between the parents. Id. at 22. There, we found "absolutely no evidence in the record to support that assumption." Ibid. "No witness stated as a matter of fact that evidence of emotional injury to the child appeared, either as demonstrated by changes in the child's willingness to socialize, or observations of excessive crying, aggression or passivity, clinging, separation anxiety, sleep disturbances or any other change in the child's behavior that could be associated, in a non-verbal infant, with stress, distress or emotional difficulty." Ibid. We further found that "[a]ll evidence indicates that the child remained a happy, healthy, emotionally secure twenty-one-month-old baby." Ibid.

Similarly, in this case, T.J.B. was eighteen-months-old when he witnessed an incident of physical abuse between his mother and father. Subsequently, on September 16, 2005, a caseworker noted that T.J.B. "appeared well taken care of and very happy." Importantly, here, just as in S.S., "no psychological evidence was introduced to support, even as a general matter, a causal relationship between witnessing domestic violence and emotional distress in the young, and no expert sought to balance any harm found to exist as the result of domestic violence with evidence of emotional harm arising as the result of the removal so as to permit an assessment of whether removal served the best interests of the child." Id. at 22-23 (emphasis added). In S.S., we found "these evidential gaps to have been fatal to the underpinnings of the trial court's conclusion that appellant abused her child." Ibid. (citing Rova Farms, supra, 65 N.J. at 483-84; Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We come to that same conclusion in this case.

In his opinion, the trial judge recites Dr. Fiore's report summary in its entirety and then conclusively holds that C.L. "neglected the needs of her children causing them great harm." That holding by the trial court fell short of its obligation under Rule 1:7-4. "As we have often said, failure to perform the fact-finding duty 'constitutes a disservice to the litigants.'" Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990).

"Judicial findings based on unspecified allegations, hearsay statements, unidentified documents and unsworn colloquy from attorneys and other participants erodes the foundation of the twin pillars upon which the statute rests: (1) that no child should be exposed to the dangers of abuse or neglect at the hands of their parent or guardian; and, commensurately, (2) that no parent should lose custody of his/her child without just cause." J.Y., supra, 352 N.J. Super. at 265.

The facts of this case are troubling and not clearly determinative. Defendant experienced periods of homelessness, but there was no finding that this condition was insurmountable, with appropriate assistance from DYFS. C.L. suffered from postpartum depression at one time, but she underwent psychological treatment as a result of which she made progress and did "not appear to be a danger to herself or others . . . ." C.L. was not always consistent in her ability to provide housing for herself and her children, but in general, she strove to comply with and to take advantage of the services made available by DYFS. We recognize our obligation to accord deference to the assessments and findings of the trial judge, however, after a careful review of the record, we find the trial court's opinion was so general and conclusory that we cannot conclude with confidence that the requisite fact sensitive and particularized analysis has taken place. K.H.O., supra, 161 N.J. at 348. Accordingly, we remand for more detailed findings upon the criteria of the best interests standard, and for articulation of the facts with particularity to demonstrate that each prong of the best interests standard has been met by clear and convincing evidence. Ibid.

Reversed and remanded for more detailed findings of fact and for further proofs, if necessary. We do not retain jurisdiction.

 

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A-3753-07T4

RECORD IMPOUNDED

May 6, 2009