NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.V. and E.R.

(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NOT FOR PUBLICATION WITHOUT THE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-4110-07T44110-07T4

A-4229-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.V. and E.R.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.R., a minor.

_________________________________

 

Argued May 4, 2009 - Decided

Before Judges Coleman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-03-08.

Anna F. Patras, Designated Counsel, argued the cause for appellant J.V. (Yvonne Smith Segars, Public Defender, attorney; Ms. Patras, of counsel and on the brief).

Beatrix W. Shear, Deputy Public Defender, argued the cause for appellant E.R. (Yvonne Smith Segars, Public Defender, attorney; Celeste Dudley-Smith, Designated Counsel, on the brief; Ms. Shear, of counsel and on the brief).

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Anne Milgram, Attorney General, attorney; Lewis Scheindlin, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).

Patricia A. Dulinski, Designated Counsel, argued the cause for the minor child C.R. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Dulinski, on the brief).

PER CURIAM

Defendants, J.V. and E.R., the biological mother and father of Cynthia, a three-year-old child, appeal the Family Part's order of March 26, 2008. The order terminated defendants' parental rights and granted guardianship of Cynthia to the Division of Youth and Family Services ("the Division" or "DYFS"). We vacate the guardianship order and remand for further proceedings, including but not limited to a comprehensive bonding evaluation that covers both parents.

I.

The record presents the following facts that are relevant to our consideration of the issues raised on appeal.

Cynthia was born on September 28, 2005, to J.V., who was then sixteen years old. Cynthia's father, E.R., was then nineteen. At the time of Cynthia's birth, the family lived with J.V.'s father, L.V.

A few months after Cynthia's birth, she developed a severe skin irritation on her face. Her parents noticed the facial marks while bathing her on December 27, 2005. When the baby's condition persisted the following day, defendants took Cynthia to the Community Health Center in Toms River. The Community Health Center transferred Cynthia to the Jersey Shore University Medical Center for further evaluation. DYFS was also notified.

At the University Medical Center, a pediatrician, Dr. Steven W. Kairys, evaluated Cynthia along with other doctors. Dr. Kairys is the Chairman of Pediatrics and Director of the Child Protection Center for the Center. He concluded that the large mark on Cynthia's face, which measured approximately three inches, and the irritation to the child's nose, most likely resulted from burns. This assessment was part of a report issued by Dr. Kairys on December 28, 2005, in which he opined that Cynthia suffered from first and second degree burns on her face. Although he could not identify what actually caused the burns, Dr. Kairys could not rule out the application of a chemical agent.

Dr. Lobono, a dermatologist who attended Cynthia, believed that the child's injuries were the result of some agent being applied to her face. Defendants had stated that they had washed her with "Playtex Baby Magic Wash," and surmised that the product had caused Cynthia's condition. Dr. Lobono felt that the baby wash could not have caused the injuries because it was applied to the baby's entire body and no other burns or rashes were found other than on her face.

Thereafter, the Ocean County Prosecutor's Office was notified of the baby's injuries and an investigation commenced. The water at L.V.'s home was tested and it was determined that the water was of a normal temperature. No charges of abuse, neglect or wrongdoing were filed at that time. DYFS, however, followed up with a Poison Control Center, which advised that Playtex Baby Magic Wash is not known to cause burns on a child.

As a result of the pronounced nature of the child's facial marks, and the parents' failure to provide a satisfactory explanation, DYFS removed Cynthia from the care of J.V. and E.R. on December 30, 2005.

On January 4, 2006, DYFS filed an order to show cause and verified complaint seeking the protective custody of Cynthia. The Family Part promptly granted that application and immediately placed Cynthia with M.V., a maternal aunt who resides in Ocean County. Initially, defendants were granted liberal visitation with Cynthia, but after a few months, only saw the child infrequently. During this period of separation, the parents underwent random urine screens and substance abuse evaluations, which did not produce any positive test results.

Chester E. Sigafoos, Ph.D., a psychologist retained by DYFS, evaluated J.V. and E.R. in March 2006. Dr. Sigafoos conducted clinical interviews and he also administered various psychological tests (the Bender-Gestalt Perceptual Motor Exam, Roschach Ink Blot test, and the Millon Adolescent Clinical Inventory). The doctor concluded at the time that J.V. and E.R. could effectively parent Cynthia. He was unable to find any impairment that would interfere with defendants' ability to parent Cynthia. Dr. Sigafoos recommended, however, that both parents complete parenting skill classes.

As a result of Dr. Sigafoos's favorable initial evaluation, on April 10, 2006, DYFS returned Cynthia to her parents. The following day, Cynthia was evaluated by her pediatrician at Lakewood Pediatrics Association and no injuries were noted in the report.

Approximately one week later, on April 18, 2006, DYFS received a referral that Cynthia had bruises on her right cheek, under her chin, and on her right hand. As a result, DYFS case workers made an unannounced visit to L.V.'s house on that day and observed the reported bruising. Upon being questioned by the case workers, J.V. remarked that perhaps the baby's pacifier may have caused the marks while she rolled over on it in her sleep. J.V. further stated that some of the marks were present when the baby had been returned to her custody.

Following the case workers' inspection, DYFS requested that Cynthia be evaluated by Dr. Kairys again. E.R. became agitated and insisted that the DYFS workers leave the home.

J.V. and Cynthia accompanied the DYFS workers to the Jersey Shore Medical Center, where Cynthia was seen again by Dr. Kairys. The doctor determined that someone---he was unable to identify who--had inflicted the bruise marks on Cynthia. Subsequently, Cynthia was removed from defendants' home and placed temporarily with M.V., a relative.

On April 20, 2006, the Division filed an amended and supplemental verified complaint seeking protection for Cynthia. However, this time, J.V. and E.R. advised the Division that they wanted Cynthia placed with J.V.'s aunt and uncle ("the C. Family") in Virginia.

On May 10, 2006, the trial court conducted a fact-finding hearing with respect to the allegations of child abuse. During the hearing, the court heard testimony from Dr. Kairys. The doctor recalled first seeing Cynthia on December 28, 2005. He testified that another doctor was the treating physician, but that he had been called in due to concerns of potential child abuse. He recalled seeing what he described as three "lesions" on the baby's face. As a result of the lesions, she received Bactroban, a topical treatment, and an IV.

Dr. Kairys opined that the lesions could not have been the result of bullous impetigo. His opinion was based in part because such skin disorders do not surface very quickly and, according to statements made by the parents, the lesions did not appear until the evening of December 27, 2005. Dr. Kairys also noted, on cross-examination, that impetigo could have formed as a secondary infection, due to the protective layer of the skin being removed.

The Division again consulted Dr. Kairys following Cynthia's bruising in April 2006. It was his opinion that some of the bruises were approximately ten days old. However, he admitted that he would have a "tough time" dating the bruises. Upon being confronted with the fact that the baby also had a blister visible on her palm the day after his examination, the doctor stated that either (1) both he and the nurse had missed it, or (2) it was not there when he saw Cynthia on April 18, 2006.

Following the testimony at this particular hearing, the trial court found, by a preponderance of the evidence, that defendants had committed abuse and neglect concerning their daughter. The judge was particularly swayed by the photographs of the bruises and the doctors' opinions that the bruises, whatever their precise origins, were not accidental.

The court then ordered DYFS to make a priority referral of Cynthia to the C. Family in Virginia, consistent with defendants' preference for those relatives as alternative care takers. The court also ordered defendants to undertake random urine screens, anger management counseling, individual counseling, and parenting skills classes.

In July 2006, DYFS determined that the C. Family was an appropriate placement for Cynthia. Accordingly, Cynthia was relocated to live with them in Virginia. Defendants also moved to Virginia to a residence of their own. The Department of Social Services for James County in Virginia was assigned to manage the case, with DYFS maintaining oversight jurisdiction. By way of that oversight, a DYFS case worker visited defendants in Virginia at least once every three months.

In October 2006, DYFS made its first inspection of defendants' premises in Virginia. The DYFS worker found that defendants were being compliant with services and were living in a clean, two-bedroom apartment. Both parents completed parenting skills courses and anger management training, as well as the required drug testing.

About three months later in January 2007, DYFS learned that J.V. and E.R. were no longer residing together. Rather, J.V. was residing with the C. Family. The couple's separation, which ended up being temporary, was the result of an alleged incident of domestic violence inflicted by E.R. against J.V. The aggressive conduct apparently was prompted by E.R.'s belief that J.V. had been intimate with another man. By this time, J.V. had also left her job.

Upon learning of these developments, a DYFS worker met with J.V., E.R., and a case manager from Virginia's Social Services. Over the next two months, representatives from the Virginia agency attempted to meet with J.V. and E.R. to ensure that they were complying with DYFS's case plan. According to the record, J.V. and E.R. failed to respond to those requests. As a result, DYFS attempted to pursue a plan of Kinship Legal Guardianship, ("KLG") for Cynthia, with defendants and the C. Family.

In February 2007, the court conducted a permanency hearing. At that hearing, E.R. denied any domestic violence incident in Virginia.

As time passed, the relationship between J.V. and the C. Family strained. Consequently, J.V. did not maintain consistent visitation with Cynthia at the C. Family's residence. As a result, the Virginia Child Protective Services agency began providing defendants with supervised visits at their offices.

In May 2007, Cynthia's Law Guardian requested the court to consider adoption as a permanency goal rather than KLG, recognizing the friction that had developed between J.V. and the C. Family. The trial court agreed, and in May 2007, changed the permanency goal for Cynthia to her potential adoption by the C. Family.

In the summer of 2007, another domestic incident occurred involving the defendants. Local police were called; but no charges were filed. The parties were thereafter ordered to complete domestic violence programs, respectively, a victim's program for J.V. and an offender's program for E.R.

On September 26, 2007, DYFS advised the court that Cynthia and the C. Family would be traveling to New Jersey to participate in bonding evaluations scheduled with defense experts. The bonding evaluations were to take place on November 5 through November 7, 2007. DYFS advised defendants of these dates by hand-delivered mail, as well as follow-up phone calls.

J.V. appeared at the November 5 bonding evaluation with a Dr. Whitehead, a psychologist, her intended expert witness. For reasons that we will discuss, infra, the doctor did not complete the evaluation, and the C. Family members left with Cynthia.

J.V. and E.R. then departed from New Jersey prior to the scheduled November 7 evaluation involving E.R. and Cynthia. E.R. contended that he had nowhere to stay in New Jersey, which forced him to return with J.V. to Virginia.

As a result of these events, DYFS re-scheduled the bonding evaluations with Dr. Whitehead for December 21, 2007. Defendants were unable to make that appointment, contending that their car broke down en route to New Jersey from Virginia.

The guardianship trial nevertheless went forward in January 2008, without the bonding evaluations of J.V. and E.R. being completed. The trial took place on four intermittent days in January and February 2008. The court heard testimony from two DYFS case managers, Angela Sarantinoudis and Patricia Niosi, as well as testimony from defendants. The court also heard expert testimony from Dr. Kairys as to Cynthia's facial marks and bruises; from Dr. Sigafoos, the Division's expert psychologist; and from Dr. Frederick Bogacki, a psychologist who had evaluated E.R. for potential behavioral issues.

Dr. Kairys focused upon Cynthia's facial marks from December 2005 and her bruises from April 2006. His testimony generally replicated the findings in his written report and in his prior testimony at the abuse and neglect hearing, which we have already described.

However, Dr. Kairys acknowledged at trial two significant deficiencies in his earlier findings concerning the April 2006 bruises. First, Dr. Kairys conceded that during his visit with Cynthia in which the bruises to her body were discovered, he did not make any findings with respect to Cynthia's hand. The following day, while Cynthia was in the custody of a resource parent, a burn was found on Cynthia's hand. That discovery prompted the child to be taken to the hospital. Dr. Kairys admitted that he had not seen the burn during his earlier examination.

Second, Dr. Kairys admitted that some of the bruises were "at least eight to ten days old." Consequently, the doctor agreed that at least some of the bruises had been created before the time that Cynthia was returned to the care of J.V. and E.R.

Dr. Sigafoos testified that he first met with defendants on March 16, 2006. At that time, he noted that J.V. was na ve but that the psychological testing protocols administered to her did not show any problematic areas. Dr. Sigafoos conducted a second evaluation of J.V. in February 2007. He stated that she was much more open with him on this occasion. She admitted that E.R. was a controlling person. Dr. Sigafoos also found that J.V. showed emotional disturbance due to E.R.'s abusive tendencies. After this second evaluation, the doctor recommended that J.V. attend therapy and a victim's group on physical abuse.

Dr. Sigafoos then discussed his meetings with E.R. He described E.R. as both "quiet" and "gregarious." The expert acknowledged that no "red flags" were raised as a result of his first meeting with E.R. However, as a result of their second meeting, which occurred after the domestic abuse incident in Florida, Dr. Sigafoos opined that E.R. had "angry feelings that he trie[d] to repress." The doctor expressed concern that E.R. continued to present the risk of domestic violence. He concluded that E.R. needed anger management training.

Next, Dr. Sigafoos discussed a bonding evaluation he had conducted between the C. Family and Cynthia. He noted that Cynthia had developed "sibling" bonds with her foster siblings (an eighteen-year-old brother; twenty-three-year-old sister; and thirteen-year-old sister). He indicated that the child interacted well with the C. Family. He opined that she would suffer an enduring harm if she were separated from their care.

On cross-examination, Dr. Sigafoos acknowledged that J.V. had completed the domestic violence victim's program recommended by DYFS. The doctor also conceded that J.V. could manage the child if E.R. were not involved. He further acknowledged that E.R. could benefit from psychotherapy.

On the third day of trial, Dr. Sigafoos was recalled to the stand after he had conducted a third update evaluation of each defendant. He informed the court that J.V. now denies ever being abused by E.R. Additionally, he noted that although J.V.'s "psychopathology" score had dropped, she was still above a "normal functioning" level. He further noted that J.V. suffers from "situationally-related angers and problems with control," and "anxiety." Lastly, he admitted that J.V. may not be "overly neglectful," but that the relationship between J.V. and E.R. created "strong concerns." As a result, he opined that J.V. was not fit to be a parent for Cynthia at present.

With respect to E.R., Dr. Sigafoos noted that he continued to deny committing any domestic violence towards J.V. The doctor noted that E.R. has a greater dependency on J.V. than he had before and that E.R. does not handle rejection well. The doctor concluded by opining that Cynthia should not be reunited with E.R., and that E.R. should undergo domestic violence counseling.

Following Dr. Sigafoos, the court heard from Sarantinoudis, who the Division had assigned to defendants' case from April 2006 through October 2006. Sarantinoudis recalled that shortly after Cynthia was returned to defendants, the Division was called in after bruises were found on the baby. It was at this point that DYFS initiated an interstate evaluation of the C. Family. As part of this process, the Division recommended further parenting and skills services for J.V. and E.R. Supervised visitation was also provided. Sarantinoudis testified that the baby was moved to Virginia in July 2006 and, upon a DYFS worker's first visit there, in October 2006, Cynthia "was developmentally on target."

On cross-examination, Sarantinoudis admitted that a visible scratch was present on Cynthia's nose when she was returned to J.V. on April 10, 2006. She also noted that when the baby received a physical examination on April 11, the report failed to make a notation of any bruises or scratches.

Niosi, the other case worker, testified that J.V. had admitted to her that E.R. had been abusive. Niosi also testified that a DYFS worker had spoken with L.V. Niosi acknowledged that the relationship between J.V., E.R., and the C. Family had become strained. As a result, supervised visitation was transferred to the Virginia Social Services Department. Niosi acknowledged that both defendants were employed, were living together, and that the couple had completed all recommended classes, except that E.R. had not taken the domestic violence course.

Dr. Bogacki, a psychological expert called by the defense, testified that he met with E.R. in February 2007. He noted that E.R. had no legal or substance abuse history. Dr. Bogacki administered the Milan psychological test, which demonstrated that E.R. suffered from narcissistic tendencies. However, there "was no severe syndromes noted." He also challenged the significance of the Bender-Gestalt test, a test which Dr. Sigafoos had relied heavily upon in his assessment of E.R. Dr. Bogacki opined that the test's psychopathology score is not significant for cases of this kind, although it is useful for other findings, such as perceptual or brain damage issues.

Dr. Bogacki concluded that E.R. was fit to parent Cynthia. He noted the lack of any mental diseases or defects, and that a support system for the family exists in Virginia. He also testified that neither he nor Dr. Sigafoos had administered any test that would be predictive of future domestic violence.

J.V. testified on the first and third days of trial. She informed the court that she and E.R. were currently living in a two-bedroom apartment, with the second bedroom being reserved for Cynthia. She testified that she planned on getting her GED at a school fifteen minutes away from her apartment. She reported that she had successfully completed all of the programs recommended by DYFS.

With respect to the C. Family, J.V. noted the friction that had developed. She stated that the C. Family had made it difficult to meet with Cynthia, by going on vacation with her and prioritizing their obligations to their own children. J.V. expressed concern that the C. Family disliked E.R. and had made it difficult for J.V. and E.R. to see Cynthia. Therefore, J.V. contacted the social services agency in Virginia to set up visits. J.V. denied that E.R. had been abusive to her.

With respect to the incomplete bonding evaluations, J.V. explained that there had been a miscommunication regarding the November 7, 2007, bonding evaluation. She stated that both she and E.R. had appeared in New Jersey on November 5, 2007, with the intent of both defendants undergoing bonding evaluations that day, an expectation which was confirmed by Dr. Bogacki. However, upon arriving later in the day to complete E.R.'s portion of the evaluation, the C. Family and Cynthia were not present. She also confirmed that E.R.'s car had broken down on the way to New Jersey for the December 2007 rescheduled evaluation.

E.R. also testified. At the time of trial, he was working in the construction industry. He testified that he and J.V. were living together in Virginia and were paying their bills. He testified that they had been going to couples counseling, and were continuing to do so. He expressed willingness to attend domestic violence training, but explained that he was waiting to hear back from intake personnel to begin that training. He acknowledged the strained relationship between him and the C. Family. As an illustration, he recalled derogatory remarks that the C. Family had made to him regarding Cynthia's "nappy" hair.

The trial judge concluded from these proofs that defendants' parental rights should be terminated. The judge observed in her oral ruling that "when the Division's objective is reunification and services are offered, it is fool-hardy for any parent to resist, refuse or retard. Time is of the essence." The judge recognized that E.R. suffers from no mental disease or defect that would "be dispositive of his capacity to provide continued teaching . . . to his daughter." The judge also recognized that E.R. and J.V. were again living together in Virginia. The judge noted that defendants had complied with services extended by DYFS, but perceived that those services "did not do any good."

With respect to bonding considerations, the judge found that Cynthia had bonded with the C. Family, noting that the child had cried at her most recent visit with J.V. when the C. Family left the room. The judge acknowledged that the bonding evaluation as to defendants, particularly E.R., was incomplete. The judge declined to find defendants at fault for not attending the December 2007 rescheduled evaluation, noting that she was unable to determine "what really happened" concerning defendants' car breakdown. The judge specifically found that she would "not put the blame on anybody with regard to [E.R.'s] bonding evaluation."

Defendants both appeal, contending that the trial court erred in finding that DYFS had proven the statutory criteria for termination of their parental rights by clear and convincing evidence. They also contend that the trial judge erred in her oral ruling in the guardianship case by alluding to her earlier findings from the abuse-and-neglect case, because that other proceeding involved a lesser standard of proof.

II.

It is well established that when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing, by clear and convincing proof, the following factors:

(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) [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 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). See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

"The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (citing In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

We are also mindful that a court's permanent termination of a parent's relationship with his or her child raises fundamental constitutional interests. See, e.g., N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008) (noting the constitutional protection afforded to "[t]he right of a parent to raise a child and maintain a relationship with that child, without undue interference by the State"); see also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (same); In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (same). As the Supreme Court of the United States has noted, "[f]ew forms of state action are both so severe and so irreversible." Santosky, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1982); see also In re Adoption of Children by G.P.B., 161 N.J. 396, 403-04 (1999). Government should not intrude on parental rights unless a child's "physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979).

In reviewing trial court decisions that terminate parental rights, we must be satisfied that there is "substantial credible evidence" to support the court's finding that the Division has demonstrated all four statutory criteria for termination by clear and convincing proof. E.P., supra, 196 N.J. at 104. As part of that review, we accord deference to the trial court's credibility assessments. Ibid.

Here, as a threshold matter, we agree with defendants that the trial court was not permitted in the guardianship case to rely on its findings in the abuse-and-neglect case, because the latter proceeding was conducted under a less stringent standard of proof. N.J.S.A. 9:6-8:46(b)(1); see also New Jersey Div. of Youth and Family Services v. J.T., 354 N.J. Super. 407 (App. Div. 2002) (discussing the differing burdens of proof associated with each proceeding). However, we do not perceive that the judge's reference in her oral ruling to the prior abuse and neglect case invalidates the outcome of the guardianship. We consider the testimony from the earlier proceeding only as background to the overall chronology, and not as dispositive in any way to our review of whether the four prongs for termination were ultimately demonstrated by clear and convincing evidence.

That being said, and even giving due deference to the trial judge's "feel for the case," we cannot conclude on this incomplete record that the Division satisfied all four statutory criteria for termination regarding these young parents. In particular, the absence of complete bonding evaluations; the uncertain etiology of Cynthia's facial marks and bruises; and the nearly complete cooperation of both parents with DYFS leave troublesome questions about whether termination was properly granted.

To be sure, as to the first prong, the severe irritation to the child's face in December 2005 raises serious concerns because Cynthia was then in defendants' sole custody. However, the exact source of those facial burns was never established. Moreover, at least some bruising was found on Cynthia in April 2006, which occurred while Cynthia was in defendants' sole custody. On the other hand, some of the marks (a scratch and several small bruises) occurred while Cynthia was not in defendants' custody. In addition, the burn mark on Cynthia's palm was not discovered by Dr. Kairys during his examination of the child. Dr. Kairys could not explain how or why he missed it.

On balance, although it is admittedly a difficult question, we find that there is substantial credible evidence to support the trial judge's finding that the first prong of the statute was met.

The second prong concerns whether defendants displayed an unwillingness to bring to an end the problems that created the Division's involvement. N.J.S.A. 30:4C-15.1(a)(2); see also A.W., supra, 103 N.J. at 607. On this prong, we agree with defendants that the Division did not fulfill its burden on the present record.

With respect to J.V., the trial judge acknowledged that she complied with all of DYFS's recommendations, even though the judge felt those programs did not "work." The majority of those recommendations had to do with J.V. being an apparent victim of domestic violence. Moreover, although a defense expert on bonding did not testify at trial, the parties do not dispute that J.V. appeared, as required, for her evaluation of November 5, 2007. In sum, the record bespeaks a young mother that has been, on the whole, dutiful and responsible in carrying out the Division's recommendations.

E.R. fulfilled some, but not all, of the recommendations made for him by the Division. As of the trial date, he had yet to complete domestic violence therapy. In fairness to E.R., however, he already had enrolled in two other counseling classes recommended by DYFS and was working a job in construction. E.R. also contended, and it was uncontroverted, that he was waiting to hear from "intake people" for the domestic violence counseling. Lastly, he had completed parenting classes with J.V.

The trial court appears to have penalized E.R., at least implicitly, for his failure to complete the November 7, 2007 and December 21, 2007 bonding evaluations. The first appointment was not completed because of what appears to be a miscommunication and the C. Family's removing Cynthia on November 7 before the evaluation with E.R. could be completed. The evaluation rescheduled for December was missed due to asserted car trouble, and the trial judge did not reject that explanation.

Under the circumstances, the child's interests in attaining a fair and informed outcome warranted completion of the bonding evaluation. Instead, the court received a one-sided bonding presentation from the Division's expert, Dr. Sigafoos. Accordingly, we cannot conclude that the Division established E.R.'s unwillingness to abate his deficiencies by the requisite clear and convincing standard of proof.

We also are mindful that both parents have attended therapy, counseling, and parenting classes. The father obtained steady employment, and the mother was making efforts to pursue a GED. They found suitable housing together in Virginia. Although there are definitely residual concerns about domestic violence, we cannot agree with the trial judge's finding that both parents are unable and unwilling to abate harm to their child. The second prong has not been proven.

As to the third prong of the statute, there is no question the Division, mostly through its counterpart agency in Virginia, provided considerable services and recommendations to J.V. and E.R.. Those services were designed to make reunification possible. Both parents were provided with psychological evaluations and therapy. In addition, defendants were each referred to domestic violence counseling.

At the behest of DYFS, both E.R. and J.V. enrolled in and completed parenting classes in Virginia. They were also required to undergo urine screens, a request which both parents and L.V. fulfilled. Additionally, bonding evaluations were scheduled for both parents; and, with respect to E.R., scheduled on two different occasions. Virginia Social Services also facilitated supervised visits between the defendants and Cynthia, and conducted home visits to establish whether J.V. and E.R. lived in an environment that was suitable to parenting.

As the trial court properly found, the Division clearly met its burden under the third prong.

The fourth prong, assessing the child's best interests, is problematic on the present record. In order to terminate parental rights, the final inquiry a court must make is whether termination of parental rights will cause more harm or good to the child. K.H.O., supra, 161 N.J. at 355. This requires a balancing that turns on whether the harm stemming from separation is greater than the good resulting from parental termination.

The fourth prong acts, in essence, as a firewall against termination. New Jersey Div. of Youth and Family Services v. G.L., 191 N.J. 596, 609 (2007). "Merely showing that a child would be better off with an adoptive parent rather than with the biological parent is not enough[]" to satisfy the requisite burden of proof. In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999). In this regard, we have recognized that a strong bond with a foster parent, even when viewed in light of the fact that reunification with a parent would not occur for several months, is not a sufficient basis to terminate parental rights. New Jersey Div. of Youth and Family Services v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005) (stating "bonds [with the foster parent] alone are an insufficient basis on which to terminate . . . parental rights.") (citing State v. T.C., 251 N.J. Super. 419, 432-33 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992)).

First and foremost, as we have already underscored, no testimony regarding bonding evaluations between defendants and Cynthia was presented at trial. It is unclear why the defense expert was not called on behalf of J.V. with respect to her completed evaluation. The absence of such comparative expert testimony on bonding is critical in this case, where the child's biological parents have made substantial efforts to follow DYFS's recommendations and who have attained considerable stability in housing and employment. See New Jersey Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 432, 440 (App. Div. 2009) (affirming the trial court's decision that DYFS failed to meet the requisite burden of proof for termination of parental rights where a scheduled bonding evaluation with the minor's biological parent never occurred, reasoning, in part, that "expert evaluations and testimony with respect to natural and resource families" was needed) (citing J.C., supra, 129 N.J. at 17-19).

The record clearly reflects animosity between defendants and the C. Family, which made it difficult for the defendants to meet with Cynthia. As J.V. testified without contradiction, in the months leading up to trial, the C. Family, due to obligations of their biological children and family vacations, often canceled the scheduled visits.

In rendering his conclusion that Cynthia would suffer enduring harm if she were removed from the C. Family, Dr. Sigafoos merely noted that Cynthia had problems sleeping after meeting with defendants, a fact relayed to him by the C. Family. Additionally, Dr. Sigafoos made conflicting findings on the issue of whether J.V. or E.R. would be unfit to parent, conceding at one point that J.V. "could probably manage the child."

In sum, considering the present record as a whole, we are not satisfied that the Division met its burden of proof with respect to N.J.S.A. 30:4C-15.1(a)(2) and (a)(4). Specifically, DYFS has failed to prove that J.V. and E.R. displayed an unwillingness to abate the harm to Cynthia. In addition, the absence of expert testimony about Cynthia's bonds with her biological parents creates significant doubt that the fourth prong of the statute has been met.

Consequently, we vacate the final judgment of termination and remand for further proceedings, specifically including the completion of bonding evaluations of defendants and Cynthia. An updated psychological evaluation of defendants, including a focus on any lingering potential for domestic violence, is also warranted. Following such evaluations, and any further relevant expert or factual proofs that may be developed, the matter should be reopened as to the second and fourth prongs of the statute. We recognize that such a remand delays permanency for Cynthia, who is now the age of three. However, we are not satisfied that her relationship with her biological parents should be forever severed until these important measures are accomplished.

 
The judgment of termination is vacated as to both defendants, and the matter remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

We use a fictitious name in lieu of the child's initials.

Dr. Lobono's first name is not reflected in the trial record.

The parties' briefs do not provide Dr. Whitehead's first name.

(continued)

(continued)

29

A-4110-07T4

A-4229-07T4

RECORD IMPOUNDED

June 16, 2009