NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.L IN THE MATTER OF THE GUARDIANSHIP OF A.L

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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5503-08T3

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,

Plaintiff-Respondent,

J.L.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF A.L.,

A Minor.

___________________________________________________

May 12, 2010
Submitted April 21, 2010 - Decided

Before Judges Fisher, Sapp-Peterson and
Espinosa.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Morris County, Docket No. FG-14-48-09.

Yvonne Smith Segars, Public Defender,
attorney for appellant (Judith Bodin,
Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for
respondent (Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Patricia J.
O'Dowd, Deputy Attorney General, on the
brief).

Yvonne Smith Segars, Public Defender, Law
Guardian, attorney for the minor A.L.
(Elahna Strom Weinflash, Designated Counsel,
on the brief).

PER CURIAM

In this appeal of a judgment terminating parental rights,

we vacate and remand because the evidence failed to dispel

uncertainties about the foster parents' willingness to adopt and

because the judge mistakenly rejected, as a matter of law, the

opinion of defendant's expert that the status quo was in the

child's better interest than termination.

The evidence adduced at trial revealed that the child in

question, A.L. (Anna, a fictional name), was born on October 5,

1998. Her mother is defendant J.L. (defendant). There is no

question that Anna is a special needs child with significant

language and memory issues, and cognitive impairment; she has

also been diagnosed with attention deficit hyperactivity

disorder (ADHD). Anna has an older brother, J.L. (James, a

fictional name), born in 1991, who suffers from cerebral palsy.1

The Division of Youth and Family Services (the Division)

first became involved with this family when unsubstantiated

referrals were made in 1998 and 2000 regarding James. The next

referral, in 2004, concerned Anna's dental problems; neglect was

1
This action does not involve James, who is over eighteen years
old.

A-5503-08T3
2

not substantiated. On July 2, 2006, the Division received a

referral from police regarding domestic violence in the family

residence. The police advised the Division there were no known

prior incidents. The Division ascertained that the family was

engaged in therapy and the children were safe.

In November 2006, the school district made a referral to

the Division that Anna was not regularly attending school. On

December 5, 2006, defendant notified the Division that her

husband, K.L., had been sexually abusing Anna. She advised that

she confronted K.L., who admitted it. Defendant did not

immediately report these circumstances to police, but instead

left the marital home with the children to stay with relatives.

On December 6, 2006, K.L. admitted to sexually abusing Anna

between January 1, 2006 and July 31, 2006, and was arrested.

Psychosocial and medical evaluations of Anna confirmed a

diagnosis of sexual abuse and post-traumatic stress disorder.

In November 2008, K.L. was sentenced to a seven-year prison term

and parole supervision for life as a repetitive and compulsive

sex offender. He surrendered his parental rights to Anna.

On April 30, 2007, defendant agreed to an in-home case

plan, which required that she provide Anna and James with a safe

and stable home and ensure they receive numerous other services

befitting their circumstances. Between February and July 2007,

A-5503-08T3
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defendant cancelled several of the appointments required by the

services the children were receiving. During this time frame,

defendant also had difficulties following through on

recommendations and obtaining eligible services for her and the

children. She also declined Division offers for assistance with

transportation and continued to cancel important appointments.

Another case plan was executed on May 31, 2007. Among other

things, defendant agreed to obtain appropriate services for

James and to take Anna to weekly therapy to address the sexual

abuse.

Anna was psychiatrically evaluated by Dr. Michael Gentile

in June 2007. Dr. Gentile observed that Anna had been severely

and chronically sexually abused over a two-year period by her

father. His diagnostic impression was oppositional defiant

disorder, expressive speech delay, and ADHD. Dr. Gentile

recommended that Anna continue to receive specialized individual

and play psychotherapies.

In June 2007, Dr. Gentile also completed a psychiatric

evaluation of defendant, determining that she was suffering from

post-traumatic stress disorder, major depression, ADHD, and a

learning disability. In the report, defendant described her

relationship with her husband; she reported K.L. would often

come home intoxicated and subject her to physical, emotional,

A-5503-08T3
4

and sexual abuse. The report also revealed that defendant had

been hospitalized at the age of eighteen for a suicide attempt.

In July 2007, Anna's therapist advised that defendant had

cancelled a number of sessions. The therapist also reported

that Anna was difficult to engage and repeatedly created chaotic

scenes in play, opining that this might be a representation of

the extreme chaos she experienced in her internal world. The

therapist recommended that Anna be placed in a therapeutic

foster home, which could provide her with a structured, caring

environment to allow her to process her trauma.

The evidence further demonstrated that in July 2007

defendant had neglected to apply for New Jersey Kidcare and

stopped receiving SSI benefits because she failed to complete

the necessary form. Due to noncompliance, the Center for the

Protection of Children closed its individual therapy case for

James, and Atlantic Health Services Family Enrichment Program

closed its outreach services to the family.

The Division commenced litigation and obtained an order,

entered on August 23, 2007, granting it the care and supervision

of Anna and James; legal and physical custody remained with

defendant. However, quickly thereafter, defendant tested

positive for cocaine and the children were removed from her

custody; James was placed in a group home and Anna was placed

A-5503-08T3
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with her aunt and uncle. Defendant again tested positive for

cocaine a few days after the children's removal. She was

immediately referred for a substance abuse evaluation, but

failed to appear at the scheduled appointment.

In September 2007, defendant again tested positive for

cocaine. She completed her substance abuse evaluation and was

diagnosed with cocaine dependence, cannabis abuse, and alcohol

abuse. That month, defendant was admitted to a twenty-eight-day

drug rehabilitation program, completing it "with limited

improvement." In late October, defendant enrolled in an

intensive outpatient program, but was terminated for

noncompliance the following month.

Defendant was also referred to the therapeutic supervised

visitation program, but failed to appear for multiple scheduled

intake appointments and was terminated from the program. She

was also terminated from another program for supervised visits

in March 2008 for noncompliance.

In January 2008, defendant was referred for an updated

substance abuse evaluation, but failed to appear for a scheduled

appointment. Once in February and once in March 2008, she

tested positive for cocaine use. When an updated evaluation was

completed in March, intensive outpatient treatment was

recommended.

A-5503-08T3
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Defendant was referred for an updated psychiatric

evaluation in February 2008. She was diagnosed with major

depressive disorder; defendant reported to the evaluator that

she was having premonitions and astrology powers. The evaluator

recommended a treatment plan of medication and therapy.

By May 2008, defendant was making minimal progress in

therapy and continued to test positive for drugs. The substance

abuse evaluator reported defendant "has been making excuses for

not going into" recommended treatment. By July 2008, defendant

had attended twelve out of seventeen visitations and seven out

of thirteen therapy sessions, and by September 2008, defendant

had not attended therapy sessions since July and was in danger

of being terminated from the program.

In October 2008, defendant was suspended from the

supervised visitation program due to her inconsistent

attendance. She was reinstated in December 2008 and attended

eighteen of twenty-seven scheduled visits by March 2009. Her

participation in substance abuse treatment was also spotty

during this time frame. In December 2008, defendant became

engaged to marry M.P., a divorced electrician with one child.

After a four-day trial in May 2009, at which the judge

heard evidence regarding the circumstances we have outlined

above, including expert testimony regarding the bond between

A-5503-08T3
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Anna and defendant, and Anna and her foster parents, the judge

found the Division proved by clear and convincing evidence that

termination was warranted.

Defendant appealed, arguing the evidence was insufficient

30:4C-15.1(a); that
to support the four prongs of N.J.S.A.

statute requires that the Division prove by clear and convincing

evidence the following:

(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
. . .;

(3) The [D]ivision 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.

See also N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J.
591, 604-11 (1986).

We recognize our standard of review is limited. In re

Guardianship of J.N.H.,
172 N.J. 440, 472 (2002). Because a

judge's findings "are considered binding on appeal when

supported by adequate, substantial and credible evidence," Rova

A-5503-08T3
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Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474,

484 (1974), we only disturb factual findings when they are so

manifestly unsupported by or inconsistent with competent,

relevant and reasonably credible evidence as to offend the

interests of justice. N.J. Div. of Youth & Family Servs. v.

G.L.,
191 N.J. 596, 605 (2007); Cesare v. Cesare,
154 N.J. 394,

412 (1998).

Having closely examined the record in light of the

arguments posed, we find no reason to question the judge's

findings on the first two prongs and that part of the third

prong that required proof of the Division's reasonable efforts

to ameliorate the reasons for the child's placement outside the

home. Although defendant took appropriate steps to separate

from K.L. in order to protect Anna from further abuse, the

record reveals defendant has had difficulties with substance

abuse that she has been slow to address. The record clearly and

convincingly demonstrates that the Division has made numerous

reasonable efforts to help defendant address her problems with

only partial and sporadic success. As the judge correctly

observed, Anna has special needs and, throughout this time

period, has required a "super parent," but only had defendant,

whose efforts at addressing her own problems, let alone in

meeting Anna's, proved woefully inadequate. In short, the

A-5503-08T3
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judge's findings on the first two prongs, and much of what is

relevant to the third prong, are entitled to our deference.

We do not reach the same conclusion as to the judge's

findings on certain aspects of the third prong, as well as his

findings on the fourth prong.2 In essence, the trial judge

misapplied the law and had insufficient evidence from which to

conclude there was no better alternative than termination.

Specifically, the judge mistakenly viewed the choices presented

by the evidence as between either the child's unification with

defendant or the termination of defendant's parental rights

followed by adoption. And, in considering whether termination

followed by adoption was in the child's best interests, we

cannot agree the evidence was of sufficient weight to permit a

finding on the fourth prong by clear and convincing evidence.

We turn first to the judge's view of the legal question posed by

this case.

To explain, we take note of the testimony of defendant's

expert, Dr. Matthew B. Johnson, who opined there was no real

permanency plan available because the aunt and uncle had not

fully embraced the idea of adoption, and because an adoption by

2
In referring to the Division's failure to meet certain aspects
of the third prong, we mean that the Division failed to
demonstrate by clear and convincing evidence there were no
alternatives to termination. As applied in this case, this
aspect of the third prong overlaps with the fourth prong.

A-5503-08T3
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nonrelatives in light of the child's age and special needs was

remote. In essence, Dr. Johnson proposed a continuation of the

status quo, so the child could continue to have the benefit of

her relationship with her mother along with the advantage of the

safe, stable and nurturing home provided by the aunt and uncle.

The judge's findings do not suggest he rejected Dr. Johnson's

view on its merits; indeed, the judge expressed his "respect"

for Dr. Johnson's opinion. However, the judge ultimately

rejected Dr. Johnson's approach because he believed he was not

empowered to permit such a plan and that for the sake of

permanency, he was required to reject all interim solutions:

Now, in looking at the fourth prong,
the question of whether termination of
parental rights will not do more harm than
good, and in considering going back to the
third prong, alternatives to the termination
of parental rights, I think the two ques-
tions overlap to a certain extent.

The alternative put forth by Dr.
Johnson, and one that I have thought through
is essentially not taking any decisive
action at this point regarding permanency,
but as he recommends . . . continued foster
placement with the uncle and the aunt. And
he also counsels that there should be an
effort to continue to work with [defendant]
to get things into a better place.

The problem that I have with that
approach, is I think, in effect it runs
to the philosophy of
directly counter
permanency in our system. I wish that in
some sense we had an infinity of time to
allow parents to get to a place they need to

A-5503-08T3
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be, and get to a situation where everybody
is satisfied that they can do the very, very
difficult job of being a super mom in this
context. But of course, our law does not
allow it, and that is why the second prong
talks about whether a delay in permanent
placement will add to the harm.

So, in addressing the question of
alternatives to termination, I just don't
think that Dr. Johnson's plan is consistent
with our law and the need for permanency.

[Emphasis added.]

We certainly appreciate the difficulties of these cases in

general and this case specifically. We also do not quarrel with

the judge's recognition that achieving a permanent plan for each

child is of great importance. But the test created by our

Legislature ultimately requires a determination of what is in

the best interests of the child. That is, while a child's need

for permanency "is an important consideration under the fourth

prong," N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J.
261, 281 (2007), the Legislature created "a comprehensive

standard for deciding what is in a child's best interest," id.

at 280 (emphasis added; internal quotation omitted). Because

the judge felt bound to limit his findings to that which would

provide a permanent solution, even at the potential cost of the

child's best interests, we must reject the judge's determination

on the fourth prong. We remand so the judge may further examine

and make additional findings on whether "[t]ermination . . .

A-5503-08T3
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will not do more harm than good" in light of the possibility --

not considered on its merits by the judge -- that a continuation

of the existing circumstances, even though not a permanent

solution for the child, is better for the child than

termination.

We also conclude that the judgment cannot rest on the

judge's findings on the fourth prong because the evidence

regarding adoption was too inessential to meet the requirement

that the prong be proven by clear and convincing evidence. We

discern from the judge's decision that he concluded termination

would not do more harm than good because he expected that the

aunt and uncle would adopt Anna. The record, however, reveals

uncertainty about the commitment of the aunt and uncle to adopt.

Indeed, the judge recognized that any commitment to adoption was

conditional:

Now, there was reference to the current
caretakers, [Anna's] maternal aunt and
uncle, having reservations regarding
adoption.

What I understood the testimony to be,
and also comments by the experts to be that
-- I think that notion is captured in Dr.
Nelson's[3] testimony and report.[4]

3
Dr. Rachel Jewelewicz-Nelson is a licensed psychologist called
to testify in this matter by the Law Guardian.
4
The judge then quoted that portion of Dr. Jewelewicz-Nelson's
report, wherein she said that the child's foster parents:

A-5503-08T3
13

What I pick up from that is the notion
that the reservations of the caretakers are
realistic and appropriate, and relate back
to the very, very high needs of the child.
And I don't see it as an indication that
they are not committed to the task, but
rather they are -- they understand that
issues are going to come up in the future
regarding funding for placement.

And they want to make sure that, I
think, a governmental entity, like the
Division . . ., will be providing the
resources that will be necessary for [Anna].
So, I suspect that the process would be one
of -- they will be willing to adopt if they
are given assurances that the appropriate
resources will always be available for a
child, who, as testified to by the experts,
may need monitoring for an extended time, if
not, forever. So, in that context, I think
their reservations, as Dr. Nelson said, are
realistic.

We cannot agree that this uncertain commitment presents an

adequate framework to support the termination of defendant's

parental rights. In fact, the judge's finding only suggests

have a very strong, but conditional
commitment to the child. Their reservations
are realistic and appropriate. If [the
Division] can agree to accept certain
obligations and responsibilities for placing
[Anna] in a therapeutic group home to
provide her with therapy and other services,
and to continue to offer resources to [the
aunt and uncle] after adoption, then having
[Anna] remain with blood relatives is highly
desirable. She has been doing very well in
their home and will likely continue to
thrive with their caring, nurturing, parent-
ing.

A-5503-08T3
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other uncertainties not answered by his opinion or the evidence

in the record, such as: (1) will funds actually be made

available to answer the aunt and uncle's concerns about the

financial impact of adoption?; (2) what funds, which the aunt

and uncle are not prepared to bear, will actually be needed for

Anna's care?; (3) what type of placement -- Dr. Jewelewicz-

Nelson suggested placement in a therapeutic group home, but was

not more explicit than that -- is needed in the future?; and (4)

if Anna's full-time placement in a group home is the goal, then

what is gained from either termination of defendant's rights or

adoption?5

Moreover, the judge's decision, at least as phrased, does

not appear to contain clear findings about adoption. The

judge's comments on this point, wherein he largely just quoted

from Dr. Jewelewicz-Nelson's report, do not appear to be

findings but mere observations. We may assume from this that

the judge viewed Dr. Jewelewicz-Nelson as the most credible

person to testify about this subject, but the judge only stated

5
In brief testimony, a Division caseworker asserted: that the
aunt and uncle are committed to adoption; that they sought the
aid of the Division "to pull them through the process because
[of] all [Anna's] special needs [and future placement in a
special needs home]"; and that the Division "is willing to
support the family after adoption[, . . .] support a family
through the process." The judge did not indicate whether he
found this testimony credible or sufficiently detailed so as to
understand what might become of Anna if termination was ordered
and adoption followed.

A-5503-08T3
15

the aunt and uncle were willing to adopt because the judge had

"pick[ed] up [on] the notion" that their willingness was

See n.4, supra.
conditioned upon future Division assistance.

We are not satisfied from these comments that the judge actually

found an unequivocal commitment to adopt, which seems to be

essential to his findings on the fourth prong.

Indeed, it is quite surprising, in light of the importance

of adoption to the Division's position and the judge's ruling,

that the aunt and uncle were not called to testify. This left

the judge with the task of deciphering their position regarding

adoption by referring to the hearsay presented by others. This

circumstance alone -- in light of the uncertainties suggested by

the hearsay testimony on this point -- demonstrates the evidence

was inadequate to support a finding that adoption will actually

follow termination of defendant's parental rights. And, if

adoption does not with certainty follow termination, then the

question that has not been answered -- and which again negates

any finding in favor of the Division on the fourth prong -- is:

what reason is there for terminating defendant's parental

rights?6

6
Although the experts' opinions varied on the strength or
weakness of the bond between defendant and Anna, there is no
question that a bond exists. Moreover, there was no showing --
and the judge made no finding -- that the continuation of the

A-5503-08T3
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As already mentioned, Dr. Jewelewicz-Nelson viewed the

commitment of the aunt and uncle to adopt as conditional. Other

reports rendered by Division representatives, which were

admitted in evidence, reveal the aunt and uncle have three other

children, who have experienced difficulties as a result of

Anna's placement in their home. This caused the aunt and uncle,

according to one Division caseworker's report, to express

uncertainty about adoption and "sadness at having difficulty

making this decision." The aunt and uncle were apparently sent

for therapy to deal with these concerns.

In light of these past equivocal expressions about

adoption, and the lack of certainty as to whether any conditions

for adoption can or will be met, the judge -- at least in the

absence of testimony from the aunt and uncle -- could reach no

safe conclusion regarding the commitment to adoption. This was

crucial because adoption by the aunt and uncle is clearly the

linchpin of the judge's findings on the fourth prong and, in the

final analysis, the judgment terminating defendant's parental

rights.

To summarize, the judge's findings demonstrate he viewed

his options -- in determining whether "termination of parental

30:4C-
rights will not do more harm than good," N.J.S.A.

defendant's relationship with Anna is so damaging that
termination should occur even if the child is never adopted.

A-5503-08T3
17

15.1(a)(4) -- as limited. The judge stated he "respect[ed] Dr.

Johnson's willingness to give [defendant] an extended chan[c]e,"

which we interpret as his acceptance of the reasonableness of

Dr. Johnson's proposal that the status quo be maintained so Anna

might benefit from all these relationships, not just her

relationship with her aunt and uncle, but also her relationship

with her mother. Dr. Johnson thought this was not only the most

optimal approach in light of all the circumstances, but it would

also have the beneficial effect of providing defendant time to

progress. The judge also agreed that defendant had improved,

indicating he had

the sense that [defendant has been] doing
better as time goes on, and she hasn't been
under the stress of caring for either
[James] or [Anna].

But the judge concluded he could not follow Dr. Johnson's

approach as a matter of law, stating immediately after the

above-quoted comments:

I think she is doing better, but time is an
enemy in these cases, and we're now at the
point where a decisive decision has to be
And there are, in my view, no
made.
guarantees that a reunification would be
healthy and successful for [Anna].

And, as quoted earlier, the judge determined that he "just [did

not] think that Dr. Johnson's plan is consistent with our law

and the need for permanency."

A-5503-08T3
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As we have held, the judge was not limited to a choice

between termination or reunification, as he appears to have

concluded. The polestar is the best interests of the child. By

excluding Dr. Johnson's opinion -- not on its merits but on the

mistaken understanding that it was not legally feasible -- the

judge took too narrow an approach to the fourth prong. In

determining whether "[t]ermination of parental rights will not

do more harm than good," N.J.S.A. 30:4C-15.1(a)(4), the judge

should not have dismissed out of hand the defense expert's

opinion that the child's interests could best be served without

terminating her mother's parental rights.

We agree that the evidence does not remotely suggest that

immediate reunification of defendant and Anna is in the child's

best interests. We also conclude that the first and second

prongs were met by clear and convincing evidence and that there

was also clear and convincing evidence to support a finding, on

the third prong, that the Division had made reasonable efforts

to ameliorate the reasons the child was placed outside the home.

However, the evidence was insufficient to support a finding in

favor of the Division on the fourth prong, and that part of the

third prong that overlaps.

We, thus, vacate the judgment terminating defendant's

parental rights and remand for further proceedings on the

A-5503-08T3
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question of termination. These additional proceedings should at

least include testimony from the aunt and uncle, as well as any

other witnesses who might possess relevant knowledge on the

question of adoption and, if the alleged commitment of the aunt

and uncle to adopt is conditional, whether those conditions can

or will be met. The judge should also permit the presentation

of other evidence that may provide an understanding of what has

occurred in the interim with Anna, her current relationship with

her foster parents, and her current relationship with defendant,

and whether or to what extent defendant has continued to make

progress. We also do not foreclose the judge's right to hear

such other testimony or receive such other evidence that may

have relevance to a determination on the ultimate questions

posed by this case.

The judgment under review is vacated and the matter

remanded for further proceedings in conformity with the letter

and spirit of this opinion. We do not retain jurisdiction.

A-5503-08T3
20

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