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

Annotate this Case


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5896-06T45896-06T4 A-5897-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.A. and J.A.,

Defendants-Appellants.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.M.S.,

A.L.A., S.S.A., D.L.A.,

J.N.A., A.A.A., J.L.A. and

J.D.A.,

Minors/Cross-Appellants.



Submitted February 25, 2009 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part Ocean County, Docket No. FG-15-07-07.

Yvonne Smith Segars, Public Defender, attorney for appellant S.A. (Janet A. Allegro, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant J.A. (Laura M. Kalik, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for cross-appellant minors J.M.S., A.L.A., S.S.A., D.L.A., J.N.A., A.A.A., J.L.A. and J.D.A. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This is an appeal from a final judgment of the Family Part terminating the rights of a mother, S.A., and father, J.A., to their eight minor children. Appellants argue that the court erred in terminating their parental rights because the New Jersey Division of Youth and Family Services (DYFS) did not prove each of the four statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. They also contend that the trial court erred in finding that aggravated circumstances of abuse existed to warrant an exception to the requirement that DYFS use reasonable efforts to prevent placement of the children under N.J.S.A. 30:4C-11.3, and, further, that their due process rights were violated because they did not receive sufficient notice of DYFS' intention to seek this finding. In addition, J.A. also argues that the trial court erred in not allowing a bonding evaluation between him and the children. Lastly, the children appeal, as well, and the law guardian argues that the court violated their due process rights by not admitting a sibling bonding evaluation into evidence. He also argues that, as to S.A., DYFS did not show aggravated circumstances, and, as to J.A., the court erred in excluding a bonding evaluation between J.A. and the children.

For the following reasons, we hold as to S.A.: (1) that her due process rights were violated by a lack of sufficient notice of the State's intention to seek a finding of aggravated circumstances; (2) that the court erred in finding aggravated circumstances of abuse because she did not use excessive corporal punishment on the children and J.A.'s actions cannot be imputed to her; and (3) that DYFS did not prove the four statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Therefore, we reverse the finding of aggravated circumstances of abuse and would require DYFS to make reasonable efforts to reunite her with her children. We also reverse the judgment of termination of S.A.'s parental rights and dismiss the guardianship complaint as to her.

As to J.A., we hold: (1) that his due process rights were violated by a lack of sufficient notice of the State's intention to seek a finding of aggravated circumstances; (2) that the trial court abused its discretion in refusing to allow a bonding evaluation between J.A. and the children; and (3) that DYFS did not prove the four statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, because the trial court did not have adequate information to make a determination under the fourth prong of the best interests test. Therefore, we remand for J.A. to prepare a meaningful defense and present evidence at a hearing to determine if aggravated circumstances of abuse exist, and also remand on the issue of the termination of J.A.'s parental rights, in order for the trial court to consider evidence of the bond between J.A. and the children as well as evidence of the bond amongst the children themselves.

S.A. and J.A. were married in September 1997 and are the parents of A.L.A., born November 14, 1996; S.S.A. and D.L.A., born April 17, 1998; J.N.A., born November 24, 2000; A.A.A., born January 2, 2002; J.L.A., born December 7, 2003; and J.D.A., born October 7, 2004. S.A. has two other children, J.M.S., born February 6, 1994, whose father is unknown, and N.C., born September 19, 1995, who is presently in the custody of her father, R.S., and is not part of this litigation.

At the outset, we point out that S.A. has not been diagnosed with a psychiatric, physical or mental disability. There is no documented proof that she has physically abused any of her children, and she has left an abusive relationship with her husband, J.A., on several occasions in the past in compliance with DYFS case plans and of her own volition. She sincerely desires reunification with her children, who were removed from her care and custody on January 30, 2006, and dispersed to three separate households where they remain to date. S.A.'s problems stem from her failure to protect the children from the excessive corporal punishment meted out by J.A. to one or more of their children over time, due, no doubt, to personality deficits for which she has consistently sought treatment, having successfully completed the programs and therapies recommended by DYFS and ordered by the court. Despite her earlier lapses, there is apparently substantial affection between her and her children. S.A. remains gainfully employed as a certified nursing assistant in a hospital and has a stable living arrangement.

DYFS' involvement with this family began on February 3, 1997 and continued well beyond the children's removal from appellants' home on January 30, 2006. In all, there were twelve referrals necessitating DYFS intervention, most of them involving claims of excessive corporal punishment inflicted by J.A. upon J.M.S., S.A.'s eldest child, who has a host of behavioral, academic and emotional problems of his own. In only five instances, however, was abuse by J.A. substantiated, and in only one of them was S.A. implicated by virtue of her inaction. In fact, following the very first referral, DYFS closed the case less than twelve months later, on March 24, 1997; offered no services to the family; and concluded that J.A.'s "punishment did not rise to the level of abuse, and there was no significant risk to the child."

Over the next two years, there were three referrals wherein abuse by J.A. was substantiated. On May 30, 1997, S.A. reported that J.A. choked her three times while she was holding four-month old A.L.A., and told her that he would get his daughter back from her even if he had to kill her. Although S.A. had obtained a restraining order against J.A., she apparently withdrew it because of financial concerns. DYFS substantiated emotional abuse of J.M.S., N.C. and A.L.A., obtained a food basket for S.A., but offered no further services.

On September 14, 1997, DYFS received a referral that N.C. had been brought into the hospital emergency room with a bruise on her buttocks, which appeared to be a hand print. J.A. admitted he had hit N.C. for running into the street. DYFS substantiated physical abuse by J.A. As a result of this finding, S.A. signed a case plan dated November 14, 1997, which stated that both parents would be psychologically evaluated and attend parenting classes, and that J.A. would attend anger management and would not be alone with N.C. The couple participated in these services.

The third such referral occurred on June 9, 1999, when J.M.S., who was five years old, stated that J.A. had beat him on the chest and left a small red mark. Some of the other children also reported that J.A. beat them with books on their feet, though no injuries were noted. DYFS substantiated abuse and advised that J.A. would have to leave the home. When J.A. refused to leave, S.A. agreed to take the children to live with her mother. On June 16, 1999, the couple signed a case plan, agreeing that J.A. would not live at home with the children and that all visits be supervised by DYFS; that he attend anger management classes and both parents attend parenting classes; and that family preservation services would be set up in the home.

The next referral wherein abuse was substantiated did not occur until almost five years later, on February 23, 2004. In the meantime, however, the parties engaged in counseling and therapy and J.A. completed classes in anger management and parenting. In fact, in September and October 1999 alone, DYFS provided them with over thirty-five hours of counseling services over twenty-one sessions. The report of this therapy indicated that, while the parents had a strong belief in corporal punishment, they agreed not to use any objects on the children and to use spanking as a last resort. The therapist recommended that the family participate in outpatient counseling and that DYFS assist the family with a housing voucher or security money.

In accordance with a case plan, entered into with DYFS on November 29, 1999, the parties "participat[ed] in parenting and worked with Family Preservation [Services]." At the time, the parties were not living together, and S.A. and the children were residing with the maternal grandmother. By April 2000, the family received a housing voucher to assist in obtaining subsidized housing, and DYFS was providing day care services for the children. By December 2000, DYFS had closed the file on this family, and, apparently, J.A. returned to the home.

Six months later, on June 4, 2001, S.A. signed another case plan with DYFS, agreeing that J.A. would not reside in the home until further notice, pending the agency's investigation of another referral that later proved to be unsubstantiated. An amended case plan on November 8, 2001 provided that S.A. was to supervise all contact between J.A. and the children, that the family would participate in counseling through Family Preservation Services, and that DYFS would pay for childcare for the children through December 31, 2001.

Family Preservation Services worked with the family in November and December 2001 for more than fifty-one hours, divided over twenty sessions on anger management, parenting, and communication. The therapist noted that both S.A. and J.A. "worked hard and made progress toward each of their goals." S.A.'s stress level had stabilized, and J.A. "no longer has the strong belief in corporal punishment, as he did at the beginning of this intervention." The parents began using the parenting skills taught to them and saw an increase in the children's compliance. Also, J.A. was using his new anger management skills to avoid violence and verbal abuse. The therapist recommended that DYFS continue to offer daycare and homemaker services and in-home counseling through the Children and Family Services (CAFS) program, and that J.M.S. get individual therapy to address his impulsivity, anxiety and depression. The therapist also noted that J.A. would benefit from individual therapy.

J.A. apparently returned to the home, as the parents engaged in CAFS in-home counseling beginning in January 2002. In a report dated June 24, 2002, the therapist noted that the parents had been "overall compliant with CAFS services." The parents' receptiveness to services "had been mixed, as the family questions the need for DYFS involvement, lacks insight regarding parenting issues and has other priorities." Both parents expressed good intentions toward their children; however, they had difficulty understanding the negative impact of their discipline. While there were no known incidents of inappropriate physical discipline, non-physical discipline remained a concern, "with the duration, severity, or method being inappropriate for the particular situation and/or the parenting expectations being unrealistic." The therapist recommended that marital counseling continue.

In a report dated September 11, 2002, the CAFS therapist noted that the parents remained cooperative with CAFS services. They continued to be "rather rigid and resistant to make changes, particularly when given directives." However, the parents did make gradual changes "as a result of their own processing session discussions and through their own motivation." While there was one incident when J.A. hit J.M.S. with a spatula, and some concern about the excessive duration of time-outs imposed by J.A., the therapist reported that "[t]hese instances of inappropriate/excessive discipline appear to be sporadic rather than the norm."

While both parents expressed positive intentions and care for their children, "[t]he father, in particular, lacks insight regarding the negative emotional impact of his parenting methods and self-centeredness on his children." There remained a risk of physical abuse, as J.A. indicated that "no one can tell me how to raise my children." The therapist concluded that the family had utilized CAFS to their optimum benefit level after eight months of in-home counseling, and, thus, treatment was terminated. The therapist recommended continued marriage counseling.

The fourth incident of substantiated abuse, on February 23, 2004, did not occur until about five years after the last one reported on June 9, 1999, and over two years after J.A. returned to the home. Within six months of his return home, however, there were two home visits by DYFS in July and August 2002. During the first visit, J.A. remained adamant about raising his children without outside interference, but, by the second visit, J.A. "vowed not to use physical force or corporal punishment on the children, and, in fact, apologized for his behavior and statements during [the] last home visit." There were also, in the meantime, referrals to DYFS that proved unsubstantiated, including one on November 4, 2002, in which DYFS closed the case one month later, and one on February 12, 2003, wherein the agency found that, in response to J.M.S. stealing $600 from his parents, J.A. "was very appropriate in his reaction to the current situation."

Because J.M.S. continued to exhibit serious behavioral problems, on June 2, 2003, S.A. discussed with DYFS the possibility of residential placement for her oldest child. She

reported that he was stealing money from her again and was punching his siblings to the point that she was fearful he would hurt one of them. Although J.M.S. was not placed in residential placement, it appears that DYFS made application on the family's behalf. In a case summary dated July 30, 2003, a DYFS caseworker noted that:

The mother and stepfather are at their wits [sic] end and are requesting DYFS help place him in a facility to have him evaluated. [J.M.S.] also disobeys authority and has been having difficulty in school including his academics and behavioral problems. He also was stealing from school and getting into physical fights. [J.M.S.] often lies to adults when confronted with his misbehaving and then manipulates the situation into making the adults feel guilty for confronting him. [J.M.S.'s] problems at home are now having a significant impact on his siblings, as they are starting to act as he does, making it impossible for these parents to control the house. This family is reaching out for help and DYFS is requesting Nicholas House review his file for placement for evaluation. [J.M.S.] needs to be in a structured environment and learn to socialize and behave in an appropriate way with adults and other children.

As noted, the next referral wherein abuse was substantiated occurred on February 23, 2004, when the children's elementary school reported that A.L.A. had a mark on her right arm, D.L.A. had a mark on his left arm, and S.S.A. had a bruise on her left thigh. The children indicated that their father hit them with a belt, because they would not go to bed. Indeed, J.A. admitted that he had hit the children with a belt. According to the Referral Response Report:

He stated that their neighbor Rhonda was babysitting the children. Rhonda aloud [sic] the children to go to the park down the street. Rhonda told [J.A.] that she witnessed the children defecating in the park. [J.A.] stated that he got upset hearing that his children were taking "shits" in the park so he decided to hit them on the butt with the belt. [J.A.] started to get upset and cry in the interview. It appeared that the family is under a large amount of stress due to

financial assets and the amount of children in the home.

S.A. denied witnessing the abuse of the children. She stated that she had told the babysitter to tell her when the children are bad and to keep her husband out of it because "he has a temper."

As a result of this incident, the parents signed a case plan agreeing that J.A. would not be unsupervised with the children, and that he would attend parenting and anger management classes. DYFS agreed to provide daycare services for the children until J.A. completed his parenting classes. The case was referred to the prosecutor's office but was closed with no criminal charges filed against J.A.

The final incident of substantiated abuse preceding the children's removal occurred about two years later, on January 27, 2006. J.M.S. claimed that he had been physically abused by J.A. "very often," and that J.A. punches him in the chest with a closed fist and throws him across the room. J.A. stated that the last time he had been hit was on January 24, 2006, when J.A. punched him in the chest about fifteen times and left red marks. J.M.S., however, did not exhibit any marks or bruises at the time of the agency's investigation.

J.M.S. further stated that his mother did not know about the incident, and that he never told her about the abuse because he was afraid the beatings would get worse. J.M.S. reported that all of his siblings were present for the punching and that his mother was not at home.

DYFS' interview of the children, N.C., A.L.A., S.S.A., D.L.A., essentially corroborated J.M.S.' account, including the fact that S.A. was not usually home when these incidents occurred, and the children did not tell her about them. In fact, J.A. admitted that he "popped" J.M.S. in the chest and that was something he did with his boys, and S.A. denied knowing anything about the abuse. DYFS substantiated abuse, finding that J.A. had punched J.M.S. in the chest, and, despite S.A.'s denial and her children's representations, also found that S.A. "knew about the abuse and allowed it to happen and failed to protect her children."

Consequently, DYFS established a case plan providing that J.A. would remain in the home, but had to be supervised by S.A. or by C.S., the maternal grandmother. Since most of the referrals related to abuse of J.M.S., the plan also provided that J.M.S. would stay with his maternal grandmother for the weekend to ensure that he was safe from retaliation. However, because of the parents' refusal to allow C.S. to supervise the home as they had agreed to in the case plan, DYFS determined that all of the children were at imminent risk of harm and removed them from the care of their parents on January 30, 2006.

Upon removal from the home, N.C. was placed with her birth father. J.M.S. was initially placed with his maternal grandmother, but, at the time of trial he had entered residential placement at Ewing Residential and is presently again living with C.S., who is committed to adopting him.

At the time of trial, A.L.A. and S.S.A. were placed together in a foster home. While their foster parents expressed a desire to adopt them, they felt it would be more appropriate for the girls to be placed in a home willing to adopt their brother, D.L.A., as well. Apparently, in June 2007, all three children were placed in a foster home willing to adopt them.

J.N.A. and J.D.A. reside together in a foster-adopt home, and their foster parents wish to adopt them. J.L.A. and A.A.A. reside together in a foster-adopt home about three miles from where J.D.A. and J.N.A. reside, and their foster parents wish to adopt them, as well.

At the time of their removal, the children were physically examined by Dr. Steven Kairys, a pediatrician. Kairys found no

permanent injuries on the children, but voiced concern over marks on some of them. His medical examinations revealed that J.M.S. had a number of old bruises and three scars; D.S.A. had two scars, and A.A.A. had "long, linear, parallel injuries" on her back. Kairys also noted a burn on A.L.A.'s arm; however, DYFS had investigated this injury and found no substantiated abuse. The skeletal surveys of all the children were negative, meaning there were no new or old bone injuries. Kairys based his findings of abuse not only on the physical markings he observed on several of the children, but, as to the other children, on historical records or his interactions with them during the office visit, even though statements made by the child relating to any allegations of abuse or neglect, if uncorroborated, "shall [not] be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4).

Although the court, upon removal, initially denied both parents visitation, S.A. was soon granted such rights in March 2006, and she has since consistently abided by the schedule set by DYFS. On the other hand, J.A. has been continually denied visitation by the court, even on a supervised basis, and, to date, has not had visitation with his children since their removal. In fact, the court twice rejected requests by both J.A. and the law guardian for a bonding evaluation between J.A. and the children. In denying the first request, the court stated that "I'm not sending the children with, you know, in a room with him at this point in time." The judge's second denial, at a hearing on March 26, 2007, was no more elucidating, concluding only that she saw "absolutely no basis for it." The judge even rejected the law guardian's request that a psychologist be allowed to testify as to why a bonding evaluation with J.A. was critical and as to the absence of any harmful effect it would have on the children. Consequently, no bonding evaluations were completed between the children and their father; nor were any bonding evaluations completed between the children and their foster parents. The November 8, 2006 report of the family's therapist noted that the children were experiencing separation problems.

Shortly after removal, the parents arranged counseling on their own with Marsha Gelb, a therapist at the Marilyn Moorehead Center for Counseling. In a December 5, 2006 letter to the court, Gelb noted that S.A. had begun weekly counseling sessions on August 14, 2006. They developed a treatment plan "to address her enabling patterns in her marriage and her inability to control her children's behaviors." She noted that S.A. "is implementing the therapeutic recommendations to make changes in her personality to improve her daily functioning."

Gelb reported that J.A. had consistently attended weekly individual sessions with her since October 5, 2006. He had "verbalized his desire to develop his parenting ability and improve his relationship with S.A." He "exhibits the desire to improve his past distorted beliefs and how they contributed to his past poor behaviors. [J.A.] displayed good progress in implementing changes in his ability to handle stress and anger." He "has taken responsibility for his poor choices and past dysfunctional verbal and physical behaviors." Gelb concluded that:

[J.A.] and [S.A.] understand the parental concern DYFS has and their past dysfunctional household. They both demonstrate the desire to learn new skills and are focused on changing their approach to anger, anxiety, and raising children. [S.A.] has visited her children every week and both have completed DYFS recommendations for parenting classes at St. Francis. They both have expressed deep pain around DYFS [sic] plan to end their parental rights. The [parents] love their children and want the courts to give them a second chance. It is my opinion that both [J.A.] and [S.A.] can change. They have demonstrated excellent progress in implementing new cognitive, communication and assertive skills.

Gelb thus suggested the court delay the guardianship proceeding to allow the parents to prove that they had changed.

Throughout the agency's ten year involvement with this family, S.A. and J.A. have submitted to a series of psychological evaluations, either DYFS-directed or court-ordered. As early as October 31, 1997, Dr. Richard Klein assessed S.A. to be "functioning within the high average range of measurable intelligence" and to "appear[] to be free of significant psychopathology." Klein concluded that S.A. was "competent to protect her children within the context of a normal risk." He noted, however, that "there is a history of domestic violence between [S.A.] and her current husband." He concluded that "[o]bviously, the family is in need of DYFS supervision as well as numerous support services." He specifically recommended that S.A. be referred to an outpatient mental health center for supportive psychotherapy.

As a result of his November 21, 1997 evaluation of J.A., Dr. Klein found him to be "functioning within the mild mentally retarded range of measurable intelligence." Klein concluded that J.A. "does not represent any threat to his children's safety. However, he does require extensive counseling in the inappropriateness of corporal punishment and the use of more productive methods of parenting and discipline." Klein recommended that J.A. be referred to Shore Line Behavioral Health, and that DYFS provide support and counseling concerning corporal punishment and parenting techniques. DYFS did not put these services into place.

In December 2001, in response to a referral to DYFS, Dr. Roger Raftery conducted psychological evaluations of both parents. J.A. admitted to an incident in which he had choked his wife after she confronted him about his cheating. J.A.'s test results indicated numerous problems with controlling anger and trusting others. In addition, he had numerous responses on the Child Abuse Potential Inventory (CAPI) that indicated he shared attitudes and beliefs associated with an increased risk to be physically abusive. Dr. Raftery concluded that J.A. had a significant anger management problem and needed "on-going (long-term) professional counseling, preferably individual, to address his issues and to learn more effective coping strategies." But DYFS did not make a referral for individual counseling for him.

Dr. Raftery noted that S.A. stated she was not sure what to believe about the referral incident, in which J.A. was accused of striking J.M.S. with a fishing pole, and he found this reaction "remarkable," surmising that S.A. may have been fearful of J.A. Raftery also recommended couples' therapy.

The parents also submitted to more recent psychological evaluations conducted in anticipation of the guardianship proceeding. S.A. was evaluated by Dr. Alan Lee, the State's expert; her own expert, Dr. David Bogacki; and the law guardian's expert, Dr. Maureen Santina. J.A. was also evaluated by Drs. Lee and Santina, as well as by his expert, Dr. Jesse Whitehead. We first discuss S.A.

Lee conducted two evaluations of S.A., on April 17, 2006 and again on November 17, 2006. In her first interview, S.A. described her relationship with J.A. as "okay," although she acknowledged that, in the past, it was "horrible." She reported his multiple instances of infidelity, controlling tendencies, and treating her two children from past relationships differently than their own children. When questioned why she is not separated from her husband, "she explained financial concerns and reservations and also her general fears that she cannot do it alone raising the children." Significantly, however, while she said she intended to continue her relationship with J.A., "[s]he indicated upon questioning her willingness to end her relationship with [J.A.] to preserve the opportunity to have the children returned."

S.A. had generally adequate cognitive and intellectual functioning and no evidence of severe overall deficits or disease. But "she presents as rather limited in terms of her personal insight and awareness and shows a number of rather immature personality and emotional traits." She often felt "helpless, passive, and unable to function on her own without more seemingly powerful or domineering individuals such as male partners."

Lee noted that, despite conceding a history of domestic violence and her husband's excessive physical punishment of the children, S.A. still appeared reluctant to end her relationship with him. She "continues to exercise poor judgment and decision making," and she "would likely re-expose the children to further traumatic experiences if returned to her care." Therefore, Lee did not support her as an independent caregiver to the minor children.

Lee recommended individual and group psychotherapy to address her history of domestic violence victimization, poor self-esteem, extreme emotional neediness and poor judgment. She should complete a DYFS-approved parenting education program, anger management program, and domestic violence victim education program. Lee recommended that any contact she have with the children be supervised.

In his second psychological evaluation, Lee found that, while S.A. had participated in some services, "it remains rather equivocal and even doubtful as to how much progress she may have genuinely had." Lee still had concerns about her functioning, "especially in her apparent minimization of [J.A.'s] inappropriate physical punishment and aggression towards the children." In addition, the Child Abuse Potential Inventory suggested that she resembled other known child abusers, raising additional concerns. Even if she were not inclined, herself, to inflict physical harm on the children, Lee had significant concerns about her inability to protect the children. He did not currently support her as an independent caregiver to the children.

Contrary assessments were rendered by Drs. Bogacki and Santina. Bogacki found no evidence of a thought disorder or an incipient psychotic process, although S.A. was socially withdrawn and thought in simplistic and concrete terms. Bogacki diagnosed her as narcissistic and paranoid and having general anxiety disorder. He opined that she had no enduring emotional characteristics that would prevent her from protecting her children.

In her psychological evaluation on March 21, 2007, Dr. Santina administered two tests to S.A.: the personality assessment inventory (PAI) and the child abuse potential inventory (CAPI). S.A.'s PAI profile did not indicate any clinically significant elevations on any of the scales. There were no indications of psychotic or manic symptomatology, antisocial personality traits or substance abuse problems. She produced elevated scores on the CAPI, "indicating that her response pattern resembled that of known child abusers."

S.A. displayed some difficulties concentrating and appeared mildly depressed. However, she showed no psychopathology or cognitive limitations that would interfere with her ability to care for her children. According to Dr. Santina, S.A. had cooperated with treatment providers and evaluators for a substantial period of time and showed a strong motivation to be reunited with her children. Dr. Santina recommended delaying the termination of parental rights to allow S.A. to fully address her past behavioral and emotional difficulties.

Dr. Santina further noted that S.A. had a positive and committed attitude to recognizing her issues and being treated for them. She is "on the way towards making the substantial kinds of changes that she needs to make to be able to protect her children." Dr. Santina also noted that it can be much more difficult to work through these issues as an adult, and it can be very healing for children if their parents actually change and say "I'm sorry for what I did to you. It's not the way we should be doing things. We're learning different things."

Dr. Lee conducted psychological evaluations of J.A. on April 17, 2006, and, again, on November 27, 2006. J.A. had reported a history of childhood physical abuse by his own father, and some flashbacks of the beatings he suffered from his father. He denied any adult prison time, but did report a history of arrests including one for an assault with a bat about nine years ago, and another for a domestic violence incident with his wife. He reported learning about parenting from watching others and from his family, and he had a history of using corporal punishment on his children, including hitting them with a belt.

Lee found that J.A.'s overall cognitive and intellectual functioning appeared "fairly adequate and free of severe overall deficits or disease." As to his personality functioning, Lee found J.A. to present as "much more primitive and much less mature than expected for his chronological age." He had primitive coping mechanisms, including using aggression and intimidation as a primary means of relating or interacting with others. He also demonstrated "very deeply troubled interpersonal and relationship styles." He was sadistic and indignant.

Lee also found J.A. to have "some pervasive problems in managing his affects and his emotions." He was an "extremely angry, often hostile, and explosive individual who continues to minimize personal responsibility and blame and focus on others as the source of his problems and see himself as the victim of an unjust and unfair world."

Lee recommended that J.A. be seen for a psychiatric evaluation to consider the possible benefits of mood stabilizing and impulse controlling medications. He also would likely need "a very protracted period" of individual psychotherapy to address his traumatic childhood and to help him address his emotional and behavioral "discontrol." Lee recommended that J.A. complete a DYFS-approved domestic violence perpetrator program, an anger management program, a parenting education program, and a reevaluation after demonstrating a stable and appropriate residence, relationships, and employment or financial resources for at least a twelve-month period. However, Lee had "some deep and compelling concerns against [J.A.] being an independent caregiver to any minor child at this time or even within the foreseeable future, so much so that other permanency planning besides reunification of the children with the birth father is the principal recommendation."

In his second psychological evaluation, Lee described J.A. as "rather explosive" and having difficulty controlling his many angry feelings and hostility. In addition, J.A. was "rather egocentric and self-absorbed." He presented with many characteristics similar to known child physical abusers. Lee noted that "[t]his comes at a point many months after the children were placed and following his completion or involvement in various services." Lee still did not support J.A. as an independent caregiver to any minor child. He recommended ongoing DYFS involvement for the children, principally to seek other permanency planning besides reunification with the birth father.

Dr. Whitehead conducted a psychological evaluation of J.A. on October 30, 2006, using several assessment tools. J.A.'s personality profile described a person with significant tension, unhappiness and pessimism. His pattern of responses revealed that he was likely to display a variety of maladaptive behavior patterns aimed at controlling anxiety. He also revealed signs that he had experienced a disturbing traumatic event in the past, and that this event produces recurrent episodes of anxiety. He indicated significant suspiciousness and hostility in his relations with others. He was experiencing the clinical signs of an anxiety disorder.

On a measure of likely child abuse potential, J.A.'s abuse scale scores were above research cutoffs of identified child abusers, and he appeared "quite aware" of his abusive potential. This assessment also revealed abuse-related distress, rigidity, and levels of gross unhappiness. A self-report that produces such a profile "should be viewed as a very loud call for help and assistance in overcoming this tendency to present a danger to those whom he loves and is entrusted with their care and safety."

Whitehead diagnosed J.A. with impulse control disorder, PTSD, and major depression disorder, and disagreed with Lee's diagnosis of anti-social personality disorder. According to Whitehead, J.A. had been severely physically and emotionally abused by his own father, and that he had seen his father sexually abuse his sisters and physically abuse his mother. No one in the psychological community, however, had ever before identified this source of his repressive anger and consequently J.A.'s condition went untreated.

Although Whitehead could not currently recommend J.A. as an independent caregiver for the children, he nevertheless concluded that J.A. projects the capability and readiness to participate in programs that will help him modify his behavior. Whitehead concurred fully with the recommendations of Marsha Gelb that in-depth individual counseling with her be continued, and that the children become involved in family therapy when professionally indicated. Consequently, Whitehead concluded that J.A. should have at least one year of treatment by experts in the effects of repressed anger on current behavior, and the effectiveness of the treatment should be evaluated, and the family should be reunited once the behavior has been appropriately modified.

Santina, who has special expertise in the area of post-traumatic stress disorder, performed a psychological evaluation of J.A. on March 19, 2007. In her report, she concluded that J.A. had "severe, chronic" post traumatic stress disorder (PTSD). J.A. described and displayed the classic symptoms of flashbacks, nightmares, intrusive recollections and extreme emotional reactivity when remembering the traumas. He also described experiencing more subtle symptoms of PTSD, including inability to regulate affect and hyper-reactivity to emotional stress, anger outbursts, impulsivity, hypervigilance and mistrust of others, and a tendency to overreact behaviorally to minor affronts. Santina saw no evidence of sadistic or antisocial personality disorder, despite his having been characterized as having those qualities by others.

Santina concluded that J.A.'s loss of temper with his children was caused by his inability to regulate his emotional reactions, which was a direct manifestation of his PTSD. She disagreed with Lee's statement that he used his own father's purported abuse as an excuse for his own actions. He never justified his actions to her, and, instead, indicated his growing awareness of the emotional problems that have contributed to his behaviors. Santina also felt that his recalcitrance to amend his disciplinary methods after attending anger management and parenting skills classes sponsored by DYFS was not surprising, as those programs did nothing to treat his underlying PTSD. She recommended that the termination of parental rights be delayed in order to give him the chance to make the necessary improvements to become a safe caregiver to his children.

Bonding evaluations between S.A. and her children were conducted by Drs. Lee and Bogacki. Dr. Lee found that, aside from J.M.S., whose relationship with his mother appeared "rather ambivalent and antagonistic," all the other children, in varying degrees, recognized S.A. as their significant caregiver, enjoyed being with her and desired reunification with her. Despite all these signs of a positive attachment, Lee, nevertheless, concluded there was a low risk, if any, that the children would suffer from severe, enduring or irreparable psychological harm if the relationship with S.A. ended.

Dr. Bogacki concluded otherwise. He found that S.A. was able to provide nurturance and physical care for the children, as well as teach them life skills, and there was no evidence of mental disease or defect, substance abuse problems, or characterlogical deficits to prevent her from doing so. S.A. was in the process of rebuilding her life with her husband, and it was anticipated that the marital counseling would take six months to one year, with recommendations by their treating therapist needed to determine whether it is safe for the children to return home. Dr. Bogacki concluded that all the children were emotionally attached to S.A. and would "clearly suffer from emotional harm if S.A.'s parental rights are terminated."

As noted, the court disallowed any bonding evaluation be conducted between J.A. and the children. The court also barred consideration of the sibling evaluation ordered by the law guardian. And DYFS never performed a bonding assessment between the children and their foster parents.

Prior to the guardianship trial, on March 22, 2006, DYFS notified appellants that it would be seeking a finding of aggravated circumstances against them pursuant to N.J.S.A. 30:4C-11.3(a), thereby relieving the agency, if successful, from providing further services to the parents to assist them to minimize the reasons why the children were removed from their care and from its obligation to prove at the guardianship trial, reasonable efforts to reunite the family under N.J.S.A. 30:4C-15.1(a). To this end, a factfinding hearing was held on June 2, 2006.

At the hearing, J.A. testified that when disciplining the children, he was physical with the boys but not with the girls. With the boys, he would "pop" them in their chests with an open hand. He admitted to hitting the children with a belt, but said that happened "two years ago," before he knew about other disciplinary methods such as "time-outs."

S.A. testified that she was employed as a certified nursing assistant on the oncology floor of a hospital. Prior to the removal of the children, she worked approximately 80 hours per week. However, "[s]ince this has happened, I have cut down a whole lot. I'm working on myself." She also testified that the children had never told her about any of the incidents with J.A.

At the close of evidence, the judge found, by clear and convincing evidence, that defendants had abused or neglected their children in that "[S.A.], the mother failed to protect children who have been subjected to severe and repetitious psychological and physical abuse by [J.A.]." The court also found that the parents had subjected their children "to aggravated circumstances of abuse, neglect, cruelty or abandonment" in that "[J.A.] has committed severe + repetitious psychological and physical abuse and [S.A.] has failed to protect her children." Therefore, DYFS was "relieved of its obligation to provide reasonable efforts to reunify the child(ren)" with their parents.

In so concluding, the judge found J.A.'s conduct to be "particularly abhorrent"; there were "repetitious beatings and also psychological abuse of these children." As to S.A., the judge found her testimony not credible: "I believe . . . that she was not telling the truth when she testified before this Court, so I placed no credibility on it at all." The court found that S.A. had "failed to protect" the children. It also found that S.A. had to have known what her husband was doing to the children:

And, you know, I'm very perplexed by a mother who is living in this house with all these children over the years with a father who, in my opinion, is a ticking time bomb and, by his own admission, says he's filled with this anger and that he does use physical force on these children. . . .

So, boy, you really have to be totally nonobservant or disinterested, I guess, you know, maybe not caring about what's happening to your children, because how these children could be suffering from all of these problems and we have this mother in the house who just never saw any of this going on. . . . She had to be aware of what was going on in this house and just, for whatever her reasons, chose to look the other way.

As for the level of services DYFS had previously offered, the judge commented that the parents should have arranged on their own for additional services if needed:

[W]hile I recognize that the Division has an obligation to offer services, people also have a responsibility to take care of themselves and their children.

. . . .

So, you know, self-help is not prohibited because DYFS comes in. That doesn't mean that the parents and the children now become the sole responsibility of the Division to provide whatever services would be helpful. Go out on your own if you think that more services are necessary and get the help that you need.

The guardianship trial was conducted over a period of seven days, at the conclusion of which, on May 30, 2007, the judge ordered S.A.'s and J.A.'s parental rights terminated. In doing so, the judge relied heavily on the testimony of Dr. Kairys, a pediatrician, who surmised that neither J.A. nor S.A. would change their behavior. Particularly as to S.A., the judge's findings echoed those she made earlier at the preliminary hearing, in which she found "aggravating circumstances":

I state for the record that I find her conduct to be equal, equally as bad as the conduct of the father because she stood by and watched as all of these things were happening to her children. And she's a caregiver to people. She wants to be a nurse. She's working in a caregiving capacity. And to stand by and see what happened to her children and take no action to remedy the situation over the years, in fact, to absent herself on many, many occasions for long periods of time, where the children were really at the mercy of a child abuser, indicates to me that this lady is not an appropriate caregiver for these children.

As to the law guardian's position that the siblings are bonded and that it would be inappropriate to terminate parental rights because the siblings will not be placed together in a single home, the judge noted that she had no testimony before her that indicated that sibling visitation would not continue. She also discounted the testimony that the children had asked to be returned to the home with their parents, as "in 90 percent of the cases that I have, whether there be child abuse or not, that children have this leaning towards the biological family and will ask to go home to a home where they are abused." The judge rejected the law guardian's position that the parents should be given more time, as "nobody can tell me . . . how much time we would have to wait in order to address these needs of the parents."

As to the four-prong test of N.J.S.A. 40:4C-15.1(a), the court held:

Time is indeed, running out for the children in this case. And I go back to the four-prong test, and I point out that all of the facts that I have placed upon the record indicate that these children have been endangered by this parental relationship and would continue to be endangered by this parental relationship and would continue to be endangered in the near future or maybe for a substantial part of the future if they were to continue in the care of these parents.

I further reemphasize that both of these parents are unable and apparently in the case of the father unable and unwilling as far as the mother is concerned to eliminate the harm that these children would be faced with and, thus, would not be able to provide a safe and stable home for these children. And the delay of the permanent placement will only add to that harm.

The efforts that DYFS has made with regard to these parents has been placed upon the record over the years. And they have made reasonable efforts to provide services and services have been accepted. But, you know, to go through the services but then not change as a result or really benefit from these services doesn't -- it's not the fault of the Division, of DYFS. That's the fault of the circumstances that surround these two people who parented these children, and, consequently, the termination of parental rights will not do more harm than good.

. . . .

And I further say for the record that we have two people who are intelligent, who have all their faculties, who also had the opportunity to address these issues on their own. They could have, at any time, gone to a psychiatrist for an evaluation knowing that they had these very distressing problems. And it wasn't until we finally reached this guardianship state where they apparently on their own are now seeking help, and, hopefully, it will be a benefit to them. But, you know, why are we so quick to say that DYFS is responsible for all of these things?

Now, DYFS did step forward and provided services, safety plans throughout the years that they were involved with this family, and it hasn't worked. . . . I find that the plan that the Division has for these children is an appropriate plan, that it's in their best interest and that the Division is doing their best to address their sibling bonding.

And I, therefore, terminate the parental rights of [S.A. and J.A.] and give guardianship of the children to the Division of Youth and Family Services.

On appeal, appellants raise these issues:

I. DID THE COURT ERR BY FINDING THAT AGGRAVATED CIRCUMSTANCES EXISTED TO WARRANT AN EXCEPTION TO THE REASONABLE EFFORTS REQUIREMENT AND WERE DEFENDANTS' DUE PROCESS RIGHTS VIOLATED BECAUSE THEY DID NOT RECEIVE PROPER NOTICE OF THE PROCEEDING IN WHICH DYFS SOUGHT A FINDING OF AGGRAVATED CIRCUMSTANCES OF ABUSE?

II. DID THE COURT ABUSE ITS DISCRETION IN DENYING THE MOTIONS OF [J.A.] AND THE LAW GUARDIAN TO ALLOW BONDING EVALUATIONS BETWEEN THE CHILDREN AND [J.A.]?

III. DID DYFS FAIL TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF PARENTAL RIGHTS WAS APPROPRIATE?

A. DID THE COURT ERR BY DETERMINING THAT THE CHILDREN'S HEALTH AND DEVELOPMENT WAS ENDANGERED BY THE PARENTAL RELATIONSHIP?

B. DID THE COURT ERR BY DETERMINING THAT THE DEFENDANTS WERE NOT ABLE AND WILLING TO ELIMINATE THE HARM FACING THE CHILDREN AND TO PROVIDE A SAFE AND STABLE HOME FOR THEM?

C. DID THE COURT ERR BY DETERMINING THAT DYFS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO CORRECT THE CIRCUMSTANCES THAT LED TO THE CHILDREN'S PLACEMENT OUTSIDE THE HOME?

D. DID THE COURT ERR BY DETERMINING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO THE CHILDREN MORE HARM THAN GOOD?

IV. DID THE COURT ERR BY DENYING THE CHILDREN DUE PROCESS BECAUSE IT DENIED THEM THE OPPORTUNITY TO PRESENT EVIDENCE OF THEIR BOND WITH EACH OTHER?

I

Appellants first argue that they were deprived of due process because they were not given proper notice of the proceeding in which DYFS sought a finding of aggravated circumstances of abuse; that the court erred in finding aggravated circumstances of abuse; and that such error was harmful because it wrongfully relieved DYFS of its obligation to make reasonable efforts at family reunification. We agree.

Under N.J.S.A. 30:4C-11.3:

In any case in which the Division of Youth and Family Services accepts a child in care or custody, including placement, the division shall not be required to provide reasonable efforts to reunify the child with a parent if a court of competent jurisdiction has determined that:

a. The parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty or abandonment . . .

Thus, if the court holds that DYFS is not required to make such reasonable efforts, then, at the guardianship trial, DYFS is not required to prove the third prong of the "best interests" test under N.J.S.A. 30:4C-15.1(a)(3).

In New Jersey Div. of Youth and Family Serv. v. A.R.G., 361 N.J. Super. 46, 77 (App. Div. 2003), aff'd 179 N.J. 264 (2004), we set the following standard for determining whether a parent has subjected a child to aggravated circumstances of abuse or neglect:

"[A]ggravated circumstances" embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child, and would place the child in a position of an unreasonable risk to be reabused.

Moreover, any circumstances that increase the severity of the abuse or neglect, or add to its injurious consequences, equates to "aggravated circumstances." Whether couched as "severe child abuse or neglect," "serious child abuse or neglect," or "severe physical injury" of a singular, chronic, recurrent, or repetitive nature, where the circumstances created by the parent's conduct create an unacceptably high risk to the health, safety and welfare of the child, they are "aggravated" to the extent that the child welfare agency, here DYFS, may bypass reasonable efforts of reunification.

The Supreme Court approved this standard. 179 N.J. at 284.

Thus, in making the determination, the court must first determine whether the alleged conduct actually occurred. Ibid. If the conduct did occur, then the court must determine whether it was severe or repetitive. Ibid.

This second inquiry has two prongs. Ibid. First, the court must determine whether the abuse was of such a nature that, standing alone, it compels the conclusion that reunification should not be required. Ibid. For example:

[W]here the parental conduct is particularly heinous or abhorrent to society, involving savage, brutal, or repetitive beatings, torture, or sexual abuse, the conduct may also be said to constitute "aggravated circumstances."

[A.R.G., supra, 361 N.J. Super. at 77.]

In that circumstance, "the abusive parent's future remedial efforts would be of no consequence. The acts complained of, by their very nature are, so unnatural or depraved that the fundamental bond that is the basis of the reunification notion is deemed to be irremediably undermined." A.R.G., supra, 179 N.J. at 285.

However, there is another class of cases "that requires inquiry beyond the mere conduct of the parent." Ibid. Examples of these cases include:

[A]bandonment, corporal punishment that does not result in permanent injury, serious neglect and mental abuse, to name a few, which may or may not have irremediably undermined the parent-child relationship and may or may not support the conclusion that reuniting the family will place the child at risk. In those cases, the court may consider whether to admit expert testimony about the conduct and its relationship to the parent-child bond along with an assessment of whether the parents' remedial efforts are sufficient to eliminate an unreasonable risk of re-abuse.

It is the result of all of those inquiries that will determine whether

reunification efforts are required.

[Ibid.]

Because a finding of aggravating circumstances is so consequential, we require adequate notice to the parent. In A.R.G., supra, 179 N.J. at 285, the Court addressed this very point:

The Fourteenth Amendment to the United States Constitution protects individuals against deprivations of life, liberty, or property, without due process of law. We have repeatedly affirmed that parental rights are fundamental and constitutionally protected. . . . The basic indicia of due process are adequate notice and a meaningful opportunity to be heard. . . . To be sure, the constitutional protections surrounding family rights are tempered by the State's parens patriae responsibility to protect the welfare of children. . . . Nevertheless, the court's authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards. . . .


In our view, that usually requires more than a few days notice of what the State intends. Indeed when, as here, the State seeks to obtain a waiver of the duty to make efforts at family reunification, the parent should be given sufficient notice of that intention to obtain representation and prepare a meaningful defense. In addition, that notice should be much more than a mere statutory citation. Certainly it should contain statutory references, but it must also outline the underlying facts and theory on which the state intends to rely to prove aggravated circumstances warranting waiver of reunification efforts.

If the case is based solely on the parent's depraved conduct (sexual abuse, torture, permanent injury), the parent should be advised of that fact. If the case is a combination of less egregious yet serious conduct, and its effect on the parent-child bond, the parent should be notified of that fact as well. The reason is that such knowledge is essential to the preparation of a defense. Although expert testimony would be useless in a depraved-conduct case, in a case involving serious neglect or repeated corporal punishment with no permanent physical consequences, expert testimony regarding the conduct, its effect on the parent-child bond, the parent's remedial efforts, and the avoidance of re-abuse might well be critical to the outcome. As Judge Fall noted, every case will be fact determined. Regardless of the facts, the foregoing is the due process template for disposition.

[Id. at 285-87 (emphasis added).]

Here, on March 22, 2006 - about two and a half months before the hearing date - DYFS sent a one-sentence letter to all counsel advising them that DYFS would be seeking a finding of aggravated abuse against appellants. The entire text of the letter read "Please be advised that pursuant to N.J.S.A. 30:4C 11a et seq, [sic] the Division will seek an aggravated finding [sic] of abuse against the Defendants."

We conclude that appellants were not given sufficient notice under A.R.G. to allow them to prepare a meaningful defense. Although appellants were given more than the three days notice the defendants were provided in A.R.G., the fact is, that the notice here did not include the requisite information specified in A.R.G.. It did not outline the underlying facts and theory on which the State intended to rely to prove aggravated circumstances warranting waiver of reunification efforts. Instead, DYFS included only the statutory citation. This is clearly insufficient. Ibid.

DYFS acknowledges that its notice only included a statutory cite, but argues that this was a harmless procedural error, as counsel were given copies of the reports of Drs. Kairys and Lee, and also had the verified complaint and discovery. However, the complaint merely outlined the history of the family's DYFS referrals, and did not explain the theory under which DYFS was seeking a finding of aggravated circumstances. In addition, the fact that a complaint has been filed does not exempt DYFS from its obligation to provide a separate notice of the facts and theory on which it intends to rely to prove aggravated circumstances. See A.R.G., supra, 179 N.J. at 285. The Court in A.R.G. was clear that a generalized statement of intent is not sufficient to satisfy due process requirements.

Also, the report of Dr. Kairys did not reveal any severe or cruel injuries that would put defense counsel on notice as to the basis for the State seeking a finding of aggravated circumstances. Kairys's evaluation of the children revealed no old or new broken bones, and none of the bruises or scars found on the children required long-term care. Thus, his physical exams found no permanent physical injuries to the children. Consequently, appellants' alleged conduct fell within the second class of cases discussed in A.R.G., requiring notice to the parents that the case is based on a combination of less egregious yet serious conduct and its effect on the parent-child bond, in order to allow them to prepare a defense to DYFS' petition. And, as to Lee's report, it is unclear whether counsel were given copies of it in advance of trial. In any event, the report in itself does not satisfy the notice requirements of A.R.G., supra.

Of course, the deprivation of due process in this case would otherwise have been rendered inconsequential had DYFS continued offering services to appellants to assist in family reunification. But, contrary to DYFS' argument, we find the agency's post-removal efforts seriously wanting. On this score, "reasonable efforts" are defined as:

attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

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

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

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

(4) facilitating appropriate visitation.

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

The Supreme Court has held that DYFS must encourage, foster and maintain the bond between the parent and child, promote and assist in visitation, keep the parent informed of the child's progress in foster care, and inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually, regain custody of his or her children. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). Reasonable efforts by DYFS include monitoring a family's progress, developing a case plan, referring parents to community services, and attempting to enlist the family's support. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 286 (2007). "The refusal to provide or allow an able and willing parent contact with her child is tantamount to a unilateral displacement of the biological parent, which is impermissible without judicial approval." Id. at 389.

Evaluation of DYFS' efforts to reunite a particular family must be done on a case-by-case basis because

[s]ervices that may address one family's needs will not be helpful to another. Whether particular services are necessary in order to comply with the [reasonable] efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort.

[Id. at 390.]

Therefore, the reasonableness of "DYFS's efforts on behalf of a parent is not measured by their success." Id. at 393. See In re Guardianship of K.H.O., supra, 161 N.J. at 354.

Here, the only services offered to S.A. after the removal of the children from the home was visitation and a psychological evaluation in preparation for trial. Services that were offered after prior referrals were not specific to S.A.'s needs. For instance, despite evidence of domestic violence in the home, such as the May 1997 incident where J.A. choked S.A. while she was holding a baby, DYFS offered neither individual psychological counseling nor support for her and her nine children if she wished to leave the home. Although psychological evaluations were later performed by Lee, these were in anticipation of trial. In contrast, the parents arranged both individual and marital counseling on their own.

We are also constrained to find the services provided J.A. lacking as well, as he received no counseling whatsoever to address his PTSD. We appreciate the trial court's emphasis on individual accountability and responsibility. Suffice it to say, however, DYFS remains obligated to monitor services, change them as needs arise, and identify and strive to overcome "barriers to service provision or service utilization." D.M.H., supra, 161 N.J. at 387. Here, not only did DYFS cease providing reasonable services to J.A. post-removal, but terminated his visitation rights altogether and denied him a bonding evaluation with his children.

The lack of adequate notice was not the only shortcoming of the preliminary hearing in this case. As to S.A., we conclude the court erred in finding aggravating circumstances of abuse. There was no proof, and DYFS did not allege, that S.A. used any corporal punishment on the children, much less excessive amounts. Although the proofs clearly establish that J.A. punished some of the children, particularly J.M.S., by hitting them, his conduct may not be imputed to S.A., and her conduct must be assessed independently. See New Jersey Div. of Youth and Family Serv. v. G.L., 191 N.J. 596, 607 (2007). Indeed, her only claimed failing was one of omission, which, under the circumstances, does not qualify, in our view, to meet the first prong of the statutory test. N.J.S.A. 30:4C-11.3(a). Those circumstances include the fact that the corporal punishment inflicted by J.A. did not result in permanent injury to the children; that none of the referrals involved savage or brutal conduct by J.A.; and that the five instances of substantiated abuse were separated by several years and occurred over a nine-year time span. Accordingly, we reverse the order finding aggravating circumstances of abuse as to S.A.

As to J.A., while the proofs satisfied the first prong, we are not convinced his conduct falls outside the second category of cases requiring a further determination whether the corporal punishment meted out by J.A. irremediably undermined the relationship between him and his children and whether the children would be at risk were the family reunited. As part of this inquiry, the court should have considered expert testimony about the conduct and the parent-child bond, along with an assessment of whether J.A.'s remedial efforts are sufficient to eliminate the unreasonable risk of re-abuse. A.R.G., supra, 179 N.J. at 284. Here, the trial court did not undertake the required analysis because it mistakenly held that J.A.'s conduct was of the first class of cases, namely involving savage, brutal or repetitive beatings.

Accordingly, because the preliminary finding of aggravated circumstances was of consequence here, we are constrained to remand as to J.A., on account of the defective notice, in order to allow him the opportunity to prepare a meaningful defense and present evidence, including the effect of his behavior on the parent-child bond. Thereafter, in ascertaining whether aggravating circumstances exist under N.J.S.A. 30:4C-11, the trial court is to engage in the requisite analysis under A.R.G., supra, 179 N.J. at 284.

As to S.A., a remand is not necessary as we reverse the finding of aggravated circumstances for reasons already stated, as well as reverse the judgment terminating her parental rights for reasons which follow. Accordingly, DYFS is directed to make reasonable efforts to reunite S.A. with her children.

II

We consider the termination determinations here in the context of the factual background set forth above and the applicable legal principles. We start with the proposition that parents have a constitutionally protected, fundamental liberty interest in raising their children. K.H.O., supra, 161 N.J. at 346-47; N.J. Div. of Youth & Family Serv. v. A.W., 103 N.J. 591, 599 (1986). Nevertheless, the State has a parens patriae right and obligation to protect children from harm, and may seek the termination of parental rights, despite the severity and irreversibility of that action, when necessary for the child's protection. J.C., supra, 129 N.J. at 10. Thus, "[w]hen the child's biological parents resist the termination of their parental rights, the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. And, as the Court made clear, while the proofs will generally focus on the nature of the past harm and the likelihood of it continuing, "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. In other words, the court must determine whether the parents can become fit to assume the parental role within time to meet the child's needs. Ibid. "The burden falls on the State to demonstrate, by clear and convincing evidence, that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

But the overriding inquiry, present fitness or not, must be the best interests of the child. That is what drives the termination standards. K.H.O., supra, 161 N.J. at 347. Pursuant thereto, parental rights may be severed when:

(1) The child's health and development have 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 foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made diligent 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)]

These statutory criteria are neither discrete nor separate. They overlap and spill over to provide a composite picture of what may be necessary to advance the best interests of the child. K.H.O., supra, 161 N.J. at 348. The considerations of harm to the child are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of L.A.S., 134 N.J. 127, 139 (1993)).

Permanency, of course, is the ultimate goal that has been equated with a child's best interests. Id. at 357-58. But it does not always mean termination is the best solution even though a parent has been in the past unfit, leading to a child's long-term separation and placement in a foster or alternative caregiver's home. See J.N.H., supra, 172 N.J. at 478.

Nor is termination of a mother's parental rights presumed simply because of the father's unfitness. Rather, "DYFS must make a showing that [the child's] safety, health or development was endangered by [the mother]." G.L., supra, 191 N.J. at 607. There, the Court addressed the issue of whether a parent may be subjected to the termination of parental rights for failing to eliminate the harm of his or her spouse. The mother and father in G.L. were parents to an older son who died under suspicious circumstances as an infant. 191 N.J. at 599. As a result of this death, the father was indicted for manslaughter and endangering the welfare of a child. Id. at 600. While the criminal proceeding against her husband was pending, the mother became pregnant with another child. Ibid. DYFS provided ongoing supervision, and imposed restrictions including prohibiting the father from having unsupervised visitation with the baby. Ibid.

The Court found the evidence insufficient to terminate the mother's parental rights. Id. at 607. While the mother refused to condemn the child's father for the death of the parties' other child, for which the father was convicted of child endangerment, the mother complied with the restriction imposed on her which prohibited the father from having unsupervised visitation with child; she never harmed the child; she complied with every requirement imposed on her by DYFS, including no longer cohabiting with the father; she underwent numerous evaluations and participated in DYFS' directed counseling; and she satisfied both DYFS and the experts as to her ability to function as the child's mother. Id. at 601, 607. Compare N.J. Div. of Youth And Family Serv. v. M.M., supra, 189 N.J. at 261 (father who insisted on continuing to live with his substance-abusing wife whose parental rights had been terminated, and offered no realistic parenting plan that would have kept his son away from his offending spouse had forfeited his own right) and N.J. Div. of Youth And Family Serv. v. A.R., ___ N.J. Super. ___ (App. Div. 2009) (slip op. at 23, 27) (holding that first prong satisfied where mother twice violated court order and allowed father into home, and mother had abused drugs). In a word, the mother in G.L. had, "at all times, shown that she is willing and able to do whatever is necessary to raise and care for her daughter." 191 N.J. at 607-08.

Significantly, for present purposes, the burden rests on the State, the party seeking to terminate parental rights, to demonstrate by clear and convincing evidence each of the standards of N.J.S.A. 30:4C-15.1(a), codifying the holding of A.W., supra, and requiring the severance of parental ties. In re Guardianship of J.C., supra, 129 N.J. at 10. If DYFS cannot sustain this burden, termination is not warranted. See In re Guardianship of Jordan, 336 N.J. Super. 270 (App. Div. 2001).

"Clear and convincing" evidence should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). It is evidence "so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Ibid. (quoting Tapler v. Frey, 132 A.2d 890, 893 (Pa. Super. Ct. 1957)). It has been defined as proof "precise and indubitable," ibid., "explicit and unequivocal," People v. Caruso, 436 P.2d 336 (Cal. 1968), and "impeccable," In re Herr, 22 N.J. 276, 299 (1956); In re Will of Rittenhouse, 19 N.J. 376, 382 (1955); In re Will of Morrissey, 91 N.J. Eq. 480, 487 (Prerog. Ct. 1920). Thus, for a fact to be established clearly and convincingly, the proofs must not leave it in a debatable, fairly arguable state; rather, the burden must be carried by overwhelming evidence, the evidence against the proposition sought to be established must be overborne by evidence adduced by the proponent. That is the standard which the State must meet here as to all issues. It is exacting and not subject to relaxation.

(A)

Applying these principles, we are persuaded that, as to S.A., the trial court erred in finding "clear and convincing" evidence of all four of the statutory prongs.

(i)

Under the first prong, the harm shown "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. The harm need not be physical, and emotional or psychological harm to children as the result of the action or inaction of their biological parents can suffice. Matter of Guardianship of K.L.F., 129 N.J. 32, 44 (1992); A.W., supra, 103 N.J. at 605. Moreover, "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. The Supreme Court, in K.H.O., supra, discussed what constitutes "harm," in the context of the first prong of N.J.S.A. 30:4C-15.1(a)(1):

Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship. . . . [T]he best interests standards does not concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development.

[161 N.J. at 348.]

By the same token, harm cannot be presumed because "presumptions have no place in a termination analysis." G.L., supra, 191 N.J. at 608.

Here, as in G.L., supra, there was no explication by the judge of the particularized harm S.A. may have caused her children by her parental inaction, separate and apart from the corporal punishment inflicted by J.A. To be sure, the court focused on S.A.'s past neglect, but failed to identify any resultant continuous deleterious effects upon the children - whether physical, emotional or psychological - and none was established by expert proof.

Even so, under the standard of N.J.S.A. 9:6-8.21(c)(4), such neglect, to have adverse consequences on the parent, must involve "conduct that is grossly or wantonly negligent." G.S. v. Dep't of Human Serv., 157 N.J. 161, 178 (1999). We are not persuaded, however, there is clear and convincing evidence that S.A.'s neglect was either willful or wanton. Although her denials were discredited, several of the children and DYFS' own caseworker stated that S.A. was not aware of the excessive physical discipline meted out by J.A. For instance, J.M.S. informed the caseworker that he did not tell his mother about getting hit by his step-father, and N.C. stated that her mother was usually not home during the incidents, but, if she were, she would tell J.A. to stop. Moreover, there was no proof that such incidents were so routine, regular or consistent as to have put S.A. on notice by virtue of their sheer frequency. To the contrary, in the span of nine years, there were only five incidents of substantiated physical abuse by J.A., and on the other occasions when referrals were made, DYFS closed the case - March 1997, December 2000, December 2002, June 2005, and September 2005 - concluding that there was no risk to the children. Furthermore, no criminal charges were ever filed against J.A. for any of the referrals. The principal of the elementary school where several of the children attended stated that she had no concerns for the family, and DYFS' records reveal that, until the last incident that resulted in the removal of the children from the home, the caseworker generally described the children as happy and well cared for.

(ii)

Equally lacking is clear and convincing evidence that S.A. is unwilling or unable to eliminate the harm to her children.

The second prong of the "best-interests" test is aimed at "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348-49; N.J.S.A. 30:4C-15.1(a)(2). Alternatively, the state can show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. In that respect,

[w]hile the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child.

[D.M.H., supra, 161 N.J. at 379.]

"In other words, the issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Serv. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

The second prong may be met by

indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.

[K.H.O., supra, 161 N.J. at 353.]

In concluding that S.A. could not eliminate the harm, the judge relied heavily on the testimony of Dr. Kairys, a pediatrician, who surmised that based on the protracted history and J.A.'s ongoing denial of wrongdoing, there was no chance that S.A. would change. Such reliance, in our view, was misplaced. Kairys was neither a psychologist nor a psychiatrist, and we discern no basis in his credentials qualifying him to render such an expert opinion.

In any event, the record established otherwise. S.A. cooperated with all services as requested by DYFS. She participated in a psychological evaluation as early as 1997, as well as several subsequent assessments. In June 1999, she complied with a case plan that required her to move out of the home and in with her mother, and to complete parenting classes. In fact, on the two previous occasions that DYFS directed J.A.'s removal from the home, S.A. complied, as she did when DYFS alternatively directed that J.A.'s visitation with the children be supervised. Most tellingly, S.A. has represented that she would live apart from J.A. if required as a condition of her children's return.

Indeed, DYFS found both parents to be in compliance with DYFS requirements and closed this case on five separate occasions. In addition, after the trial court found aggravated circumstances, both S.A. and J.A. arranged to get individual and marital counseling on their own. Gelb indicated that S.A. had implemented the therapeutic recommendations into her daily life, and concluded that she was capable of change. Bogacki testified that there had been "a legitimate effort on the part of" these parents, as they continued to attend counseling and make progress on their marital problems. Under the circumstances, we are not satisfied the evidence of S.A.'s unwillingness or inability to eliminate the harm to her children was clear, convincing and unequivocal.

(iii)

Nor was there clear and convincing evidence of the fourth prong, that termination of S.A.'s parental rights will not do more harm than good. "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." K.H.O. supra, 161 N.J. at 355. "This criterion is related to the first and second elements of the best interests standard, which also focus on parental harm to the children." D.M.H., supra, 161 N.J. at 384. The child's need for permanency and stability emerges as a "central factor" in guardianship cases. K.H.O., supra, 161 N.J. at 357. In fact, "[t]he trend over the last thirty years has been towards foster care reforms that place limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification." Id. at 358.

Undeniably, there was an emotional attachment between S.A. and her children that even DYFS' expert, Dr. Lee, acknowledged. In fact, the family therapist reported in November 2006 that the children were having difficulty separating from the family, and Lee testified that the children wanted to return home to live with their parents. After their removal and during visitation, the children were happy to see their mother and cried when they had to leave her. According to Dr. Bogacki, who also performed a bonding evaluation, the children would likely suffer some degree of emotional harm if S.A.'s parental rights were terminated. On the other hand, DYFS did not perform a bonding evaluation between the children and their foster parents, or amongst the children themselves. And no expert testified that the children would suffer harm if removed from their present placements.

We find the lack of a comparison bonding evaluation with the children's foster parents troubling. As we just recently noted, "we can envision few scenarios in which comparative evaluations would not be required." A.R., supra, (slip op. at 25.) Such comparative evaluations, even when not used to prove harm under the second prong, are "of great significance" in evaluating comparative harm under the fourth prong. Ibid. Indeed, DYFS could not show that separating the children from their foster parents would cause serious and enduring emotional or psychological harm in the absence of a comparative bonding evaluation. Ibid. Nor was the trial judge here able to consider and balance the different sets of relationships in determining whether the children would suffer a greater harm from the termination of ties with their mother than from the disruption of their foster parent relationships. Such a deficit in proofs seriously undermines the court's finding as to the fourth prong.

(B)

In comparison, we are satisfied that, as to J.A., DYFS has sustained its heavy burden of proof as to the first two prongs of the "best interests" test. Suffice it to say, the health and development of all the children were endangered by their relationship with J.A., who intentionally used excessive corporal punishment against some of them, even after DYFS intervened and he was counseled as to the inappropriateness of such disciplinary measures. The record is equally clear that, as of the date of trial, J.A. had not overcome the behavior that caused the removal of the children in the first instance.

Of course, whether DYFS remains obligated to offer reasonable services to J.A. under N.J.S.A. 30:4C-11.3 will be the subject of further inquiry on remand before the court may properly consider the third prong of N.J.S.A. 30:4C-15.1(a). As to the fourth prong, we conclude that the trial court did not have sufficient evidence to render an informed determination as to J.A. Thus, on remand, J.A. will have the opportunity to present evidence of bonding between him and his children to disprove not only the existence of aggravating circumstances under N.J.S.A. 30:4C-11.3, but, as well, the fourth prong under N.J.S.A. 30:4C-15.1(a)(4). As to the latter, the court should also consider the sibling bonding evaluation previously disallowed as well as any bonding evaluations between the children and their foster parents.

III

In conclusion, as to J.A., we remand for further proceedings consistent with this opinion.

As to S.A., we reverse the judgments finding aggravating circumstances and terminating her parental rights to her children, dismiss the guardianship complaint, and direct that DYFS immediately commence offering reasonable services to assist in reunification, including the reinstitution of her visitation rights. We further direct, in light of J.A.'s presumed presence in the household, that a current fitness evaluation of S.A. be conducted, to the end of setting the terms and conditions of reunification. If the trial court determines, upon satisfaction of such terms and conditions, that S.A. is presently fit to parent her children, reunification steps shall begin. In the meantime, custody of the children shall remain with DYFS, and their physical care remain with their foster parents. We do not retain jurisdiction.

Reversed as to A-5896-06T4; remanded as to A-5897-06T4.

There was an interim referral on May 12, 2003, in which one DYFS caseworker testified that abuse was substantiated and another testified to the contrary. That incident involved a claim by J.M.S. that J.A. had punched him in the chest. DYFS' investigation revealed that the school nurse observed a baseball-sized bruise on J.M.S.'s chest. The nurse also reported that she had some concerns, "but that most of the concerns are based within this child, and not the parents" and that J.M.S. "tells stories." According to DYFS' investigation, S.A. confirmed that J.A. had hit J.M.S. in the chest, but that J.M.S. was verbally abusive. Indeed, the caseworker observed that J.M.S. was deliberately defiant of S.A. in her presence, admitted to stealing things out of his parents' room, and taking a box of Girl Scout cookies that S.A. had sold to someone else, eating them, and refusing to pay his mother for them. J.A., for his part, admitted to hitting J.M.S., and stated it was for "fighting, for his language, for his blatant disrespect towards his mother, and for going into his father's room and taking what does not belong to him."

A sibling bonding evaluation was completed on April 3, 2007, but the court barred its admission in the guardianship trial, because the request was belated. The court subsequently denied the law guardian's motion to reconsider, but allowed the evaluation to be moved into evidence "so that in the event the matter is appealed, the Appellate Division will have an opportunity to review it for dispositional purposes only."

A fortiori, the trial court abused its discretion in denying J.A. a bonding evaluation, and, as a threshold matter, denying him the opportunity to present expert proof that such an evaluation would further the children's best interests. Clearly, under the fourth prong of the "best interests" test, a court must determine "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The answer to this question "is an expert judgment." In the Matter of the Guardianship of J.N.H., 172 N.J. 440, 478 (2002). Obviously, bonding evaluations play an important role in this regard. In the Matter of the Guardianship of J.C., 129 N.J. 1 (1992). While DYFS employees often present "important testimony," they are "not qualified to express opinions concerning psychological bonding and the harmful consequences to the children from its disruption." Id. at 23. Rather, "[b]ecause psychologists and psychiatrists play a critical role in reaching an ultimate decision in termination cases both sides should be able to present expert witnesses." Id. at 22. Thus, in a termination case, a trial court "must assure a complete and balanced presentation of all relevant and material evidence sufficient to enable it to make a sound determination consistent with the child's best interests." Ibid. Here, to the extent the court entertained a serious concern over the conduct of a bonding evaluation between J.A. and the children, and we discern no evidence in the record suggesting such an evaluation would be harmful to the children, then at the very least, J.A. should have been permitted to present expert proof to allay any such concern. Accordingly, the refusal to allow a bonding evaluation as to J.A. not only implicated the propriety of the preliminary determination of aggravating circumstances, but, as well, the ultimate decision under the fourth prong.

For example, on August 30, 1999, the caseworker noted that the children "looked good . . . They all seemed happy." On May 26, 2004, the caseworker stated that the children appeared healthy and well taken care of, and the home had no safety concerns. On August 12, 2004, the caseworker noted that "all the kids were well dressed for the weather and seemed very happy." On January 31, 2005, the caseworker stated that "all children were appropriately dressed and appeared healthy and age appropriate in size and mental capacity."

(continued)

(continued)

67

A-5896-06T4

RECORD IMPOUNDED

April 9, 2009