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

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0641-07T40641-07T4

A-0654-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.Y. and A.J.,

Defendants-Appellants.

IN THE MATTER OF THE GUARDIANSHIP

OF

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

Minors.

__________________________________________________

 
Telephonically argued July 17, 2008 - Decided

Before Judges C.S. Fisher and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-55-07.

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

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

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

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

PER CURIAM

In this appeal, we consider the consolidated appeals of defendants J.Y. and A.J. in which they contest the legitimacy of a judgment terminating their parental rights. Because the trial judge's findings were inadequate, we remand for further proceedings.

Defendant J.Y. is the birth mother of B.Y. (born on June 17, 1995), E.K.M. (born on February 10, 1997), and J.M. (born on March 31, 1998). Defendant A.J. is the father of B.Y.; E.M. is the father of E.K.M. and J.M. Because E.M. surrendered his parental rights prior to trial, the issues before us relate only to J.Y.'s relationship to her three children and A.J.'s relationship to B.Y.

This family has been the subject of numerous referrals to the Division of Youth and Family Services (the Division). In N.J. Div. of Youth & Fam. Servs. v. J.Y., 352 N.J. Super. 245 (App. Div. 2002), we reviewed the proceedings in an earlier Title 9 action commenced by the Division on June 1, 2001, under Docket No. FN-16-184-01, and found that the procedures adopted by the judge in granting relief to the Division were inadequate. In examining the factual record, we then observed that "only one out of the sixteen allegations listed in the complaint was actually substantiated" by the Division. Id. at 263. We also explained at length how the judge treated the fact-finding process in a "perfunctory manner," which "undermined its importance and relegated it to a mere technicality," ibid., and we remanded for further proceedings, including the articulation "with particularity" of "the facts upon which a determination of abuse or neglect is made," id. at 265 (citing N.J.S.A. 9:6-8.50).

Following our remand, the trial court ordered, on September 24, 2002, that B.Y. be placed in the legal and physical custody of his maternal uncle and aunt in Florida; legal and physical custody of E.K.M. and J.M. were returned to defendant J.Y. and E.M.

The Division received referrals regarding J.M. and E.K.M. on February 11, 2004, March 19, 2004, September 23, 2004, December 2, 2004, and March 5, 2005; two of these referrals were not substantiated. During its investigations of these referrals, the Division expressed concerns about the family's housing conditions. And, based upon what it allegedly learned in investigating the March 5, 2005 referral, which asserted E.M.'s alleged physical discipline of J.M. and E.K.M., the Division conducted an emergency removal of the children.

Based upon these circumstances, on March 11, 2005, the Division filed a complaint, under Docket No. FN-02-170-05, alleging that the children were abused or neglected and seeking an order placing them in the Division's care and custody. Soon thereafter, the Division deemed the maternal uncle and aunt, who had been caring for B.Y. in Florida, to be unsuitable and not a permanent resource for the children. The parties have not advised of the ultimate disposition of this second Title 9 action, but we assume it was somehow terminated and gave way to the legal proceedings that followed.

That is, on August 9, 2006, the Division filed this guardianship action. In the complaint, the Division expressly incorporated all the allegations set forth in the earlier Title 9 actions, including, we assume, those alleged events that were unsubstantiated. The complaint also expressed various specific allegations dating as far back as 1996.

A trial occurred on July 9 and 11, 2007. At that time, the judge heard the testimony of the Division's witnesses: Dr. Rachel Jewelewicz-Nelson; S.McC., with whom the children have lived since August 2005; and Tara Whalen, a Division representative. Defendant J.Y. testified on her own behalf.

The trial judge filed a written decision and entered judgment terminating the parental rights of both J.Y. and A.J. on August 6, 2007. Both defendants appealed. They both have argued that the Division failed to provide clear and convincing evidence of all four prongs of the test described in N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986) and later adopted by our Legislature in N.J.S.A. 30:4C-15.1(a). In addition, J.Y. argues that she was denied the effective assistance of counsel, citing the Supreme Court's recent landmark ruling in N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301 (2007), because her trial attorney allegedly failed to inform the trial judge of the prior appellate proceedings in the first Title 9 action. And A.J., who was convicted of the manslaughter of a two-year old child and subsequently incarcerated, has argued that he was not afforded procedural due process. After careful examination of the parties' submissions and the record on appeal, we conclude that we are not able to adequately review the matter in light of the trial judge's failure to render adequate findings of fact and conclusions of law.

The judge's written opinion is slightly more than four pages long. After briefly identifying the parties, the judge addressed the allegations relating to defendant A.J. and found that A.J. has had "little or no contact" with B.Y. since his birth, did not know B.Y.'s birthdate, had only "seen him 'on the street' a few times since his birth," and had "never ever provided anything for [B.Y.'s] welfare or knew of any of his special needs." The judge then referred to: A.J.'s manslaughter conviction and the fact that, as a result, A.J. had begun serving a fourteen-year prison term in 1999; the fact that A.J. did not appear at trial; and that A.J.'s "only interest in [B.Y.] is that he wants the Division to place him with [B.Y.'s] paternal grandmother" despite the fact that she was "ruled out as a caretaker for him." The judge concluded that the evidence was "clear and convincing that [A.J.] has neglected [B.Y.] and that [B.Y.'s] best interests would be served if his father's parental rights were terminated to free him for adoption."

In turning to J.Y., the judge generally observed that her family "has a chaotic history of domestic violence, child abuse, and homelessness," and that the Division "has been involved with and provided services to the family for more than ten years," specifying in a few lines of his opinion some of those services.

The judge then held that J.Y.'s "inability to properly parent her children is best described by the findings of the psychiatrist and two psychologists retained by the Division in its effort to assist her in overcoming the causes of the children's neglect." Without further explanation, the judge then quoted a few paragraphs from a September 24, 2001 evaluation prepared by Dr. Alberto M. Goldwaser, who did not testify, and two sentences from a July 30, 2005 evaluation prepared by Dr. Kenneth M. Schulman, who also did not testify. The judge immediately thereafter quoted the following paragraph from a January 3, 2007 evaluation rendered by the only expert who did testify, Dr. Jewelewicz-Nelson:

[J.Y.] has a history of disturbed and disrupted attachments, homelessness, and victimization. She is an immature, emotion-ally needy and dependent[] person with limited capacity to recognize the needs of her children when they are different from her own. [J.Y.] minimizes her faults and weaknesses, externalizes blame, and lacks empathy for her children. Furthermore, [J.Y.] is living in a shelter and has limited employment. She cannot currently provide a home or financial support for her children. She does not have a concrete plan of care for the children if they could be re-unified with her; she has no clue of a timetable by which she might be ready to provide a home and financial support for [her] children. She does not recognize the harm that her children have experienced as a result of their lack of permanency, or their need for permanency. Essentially, [J.Y.] has never really parented her children independently; certainly she has had very limited experience providing care for all three children at the same time. Finally, despite the fact that [J.Y.] is not living with [E.M.], it is not clear that they have totally disengaged from their relationship. Thus, it is not clear that [J.Y.] can protect her children from future contact with, or abuse at the hands of [E.M.].

The judge next noted that J.Y. did not offer "any mental health expert opinion evidence challenging or refuting [the] findings and conclusions of the Division experts."

The judge then stated, without specificity, that "[o]ver the years the neglect of the children by their parents caused them to be moved from one home to another numerous times, being separated at times, causing them great emotional and psychological harm and [causing them to become] more and more difficult to parent." The judge next referred to the children's placement with S.McC. since August 2005, expressing only the following:

They have thrived in her care and have made great progress in overcoming their emotional handicaps and special needs. [S.McC.] wishes to adopt the children and their best interests would be served by the termination of their mother's parental rights freeing them for adoption. This would not cause the children more harm than good. Although the children have maintained a bond to their mother, it is out weighed [sic] by her inability to properly parent them, to overcome her mental health problems, and provide a home for them in the foreseeable future. They have a great need for "permanency" and to get on with their lives.

Then, lastly, the judge parroted the statutory language, and without any additional amplification, drew the conclusion that each of the four prongs of N.J.S.A. 30:4C-15.1(a) had been met by clear and convincing evidence.

These findings fall far short of what is required by rule, see R. 1:7-4(a), particularly when it is considered that the termination of parental rights was at stake. See J.Y., supra, 352 N.J. Super. at 263-66. Although it is arguable that the judge found credible the expert opinions he quoted even though he never expressly stated so, we note that the judge heard the testimony of only one of those three experts. Moreover, the judge quoted only the experts' broad conclusions; we cannot ascertain from these mere quotations the particular facts upon which the experts drew those conclusions, let alone the particular facts found by the judge in his apparent embracing of the experts' conclusions.

In short, we conclude that the mere adoption of the conclusions of others without greater specificity is not what is required of a judge in making findings of fact. And, even were it not so, we find the adoption by the judge of these conclusions from these experts is not entirely persuasive. The portion of Dr. Goldwaser's evaluation cited by the judge revealed that the expert found only that J.Y. is "essentially an immature woman," who "did not impress" him as sufficiently "independent and creative" and who required psychiatric treatment. Similarly, Dr. Schulman, as the portion of his evaluation that the judge quoted reveals, found J.Y. to be "an immature woman," who is unable "to set aside her needs for those of her children" and is in need of psychotherapy. Immaturity and a need for therapy are not alone sufficient reasons for the termination of parental rights. We also emphasize that Dr. Goldwaser's opinion was rendered in 2001 and Dr. Schulman's in 2005 -- six and two years prior to trial.

Dr. Jewelewicz-Nelson's conclusion, which the judge quoted, was more recent in time and came closer to addressing all four prongs of the statutory test. However, the quoted comments of the expert are just that -- conclusions. We cannot determine whether the judge was entitled to merely adopt those same conclusions as his own -- something the opinion never precisely reveals was the judge's intention -- without knowing or understanding the facts upon which those conclusions were based.

As we noted, after quoting these evaluations, the judge found that the four prongs were met in the most conclusory language possible with only some additional general comments about the children "thriv[ing] in [S.McC.'s] care" and an expression of the judge's belief, again without specificity, that the bond existing between J.Y. and her children was outweighed "by her inability to properly parent them, to overcome her mental health problems, and provide a home for them in the foreseeable future." The judge never explained why he thought this was so.

Had this family had no prior history in our courts, we would still find the judge's findings inadequate. But the situation is exacerbated by the judge's general reference to that prior history, without specifying the factual events that he may have had in mind in expressing such a generality. This renders the situation even more problematic because many of the referrals regarding this family, as we noted in our 2002 published opinion, were not substantiated. 352 N.J. Super. at 263. Indeed, it appears that some of the referrals since our earlier decision regarding this family have also been unsubstantiated. As a result, the judge's general reference to the family's past history, without further definition or elaboration, does not negate the possibility that the judge has relied on circumstances and allegations that were never substantiated.

For these reasons, we are constrained to conclude that the judge's general and conclusory findings preclude our ability to fairly review the judgment in question. See Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990) (recognizing that "[m]eaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion"). See also J.Y., supra, 352 N.J. Super. at 261-62; Yueh v. Yueh, 329 N.J. Super. 447, 469 (App. Div. 2000). "Naked conclusions," such as those uttered by the judge here, "do not satisfy the purpose of R. 1:7-4." Curtis v. Finneran, 83 N.J. 563, 570 (1980). A judge "must state clearly [his or her] factual findings and correlate them with the relevant legal conclusions." Ibid. See also Gordon v. Rozenwald, 380 N.J. Super. 55, 78 (App. Div. 2005).

We lastly consider J.Y.'s contention that she was denied the effective assistance of counsel. In B.R., supra, 192 N.J. 301, the Court held that a parent in such a proceeding is entitled to the effective assistance of counsel and delineated the manner in which such a contention must be presented for adjudication. Although the methodology which we adopt here slightly differs from that outlined in B.R. -- which mandated that the issue be first presented on direct appeal, followed by the Appellate Division's determination about the lawyer's shortcomings and whether those shortcomings would have called into question the action's outcome, and, if the claim is found to have substance, the appellate court must remand to the trial court for an expeditious resolution of any factual disputes presented by the argument, followed by our review of that determination and the merits of the case, id. at 311 -- the very nature of the allegation in this case strongly suggests that the trial judge first make findings regarding the presentation to him, and his awareness of, the earlier proceedings in both the trial and appellate court, particularly with regard to the first Title 9 action. Moreover, since we have determined that the matter must be remanded for proper findings on the merits, we conclude that it would sensible in this particular case to further require that the judge make findings regarding J.Y.'s ineffective-assistance-of-counsel argument at the same time.

Accordingly, we remand for further findings and conclusions on both the merits of the guardianship action insofar as it relates to both defendants, and for further findings regarding J.Y.'s contention that she was denied the effective assistance of counsel. We find insufficient merit in A.J.'s due process argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Remanded. We do not retain jurisdiction.

The caption and other pleadings refer to this child as E.M. We refer to him as E.K.M., as have the parties, in order to distinguish him from his father, who has the same initials.

The judge quoted the following from Dr. Goldwaser's 2001 evaluation:

[J.Y.] is a person with limited psycho-logical resources. She is essentially an immature woman, with an overwhelming past history of neglect and abuse, perpetrated by family members.

. . . .

[J.Y.] did not impress me as an independent and creative woman that could handle supporting herself financially while raising three children. She needs psychi-atric treatment aiming at helping her work through the victimization of the past, so that she could identify and prevent and/or end the present abuse by [E.M.], or any other man that eventually may appear in [her] life.

The judge quoted the following from Dr. Schulman's 2005 evaluation:

In the opinion [of] the examiner[,] [J.Y.] is an immature woman who is often unable to set aside her needs for those of her children, hampering her capacity to effectively parent. She too is clearly in need of psychotherapy.

(continued)

(continued)

14

A-0641-07T4

RECORD IMPOUNDED

August 6, 2008