NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.S

Annotate this Case

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3227-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.
APPROVED FOR PUBLICATION
T.S.,
March 19, 2020

Defendant-Appellant, APPELLATE DIVISION

and

L.H.,

Defendant.
________________________

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

a Minor.
________________________

Argued February 5, 2020 – Decided March 19, 2020

Before Judges Fuentes, Haas and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-1l-0051-18.
Mary Kathleen Potter, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Mary Kathleen Potter, on the
briefs).

Joshua Paul Bohn, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, Assistant
Attorney General, of counsel; Joshua Paul Bohn, on
the briefs).

Noel Christian Devlin, Assistant Deputy Public
Defender, argued the cause for minor-respondent
(Joseph E. Krakora, Public Defender, Law Guardian,
attorney; Meredith Alexis Pollock, Deputy Public
Defender, of counsel; Noel Christian. Devlin, on the
briefs).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Thirty-eight-year-old T.S. is the biological mother of A.H. (Andrea), a

little girl born in April 2015. 1 Twenty-six-year-old L.H. is Andrea's biological

father. T.S. appeals from the judgment of guardianship entered by the Family

Part on March 11, 2019, which terminated her parental rights to Andrea. The

Division of Child Protection and Permanency (Division) presented its case for

termination of defendants' parental rights to Andrea over a period of six

nonsequential days, commencing on December 11, 2018 and ending on

1
We use a pseudonym to refer to the child and initials to refer to the parties
and other related individuals to protect their privacy and preserve the
confidentiality of these proceedings. R. 1:38-3(d)(12).

A-3227-18T3
2 January 16, 2019. T.S. attended only two trial days. She was present on the

first day and returned to testify in her own defense on the last day of trial.

L.H. was present at the start of the first day of trial but left before the

conclusion of that day's proceedings. L.H. did not attend the remainder of the

trial and is not a party in this appeal.

For the first time on appeal, T.S. argues the judgment of guardianship

must be vacated and the case remanded for a new trial because the resource

parent with whom the Division placed Andrea since 2016, and who plans to

adopt the child, worked as a domestic violence liaison in the district office that

was responsible to investigate and manage this case from its inception. T.S.

emphasizes that although the Division could have easily avoided this

significant conflict of interest by simply transferring the case to a different

district office, it did not take action to remedy the situation.

Relying on the United States Supreme Court's decision in Brady v.

Maryland, T.S. argues that the Division's failure to forthrightly disclose this

material conflict of interest violated her right to due process of law, in the

same way a criminal defendant's right to due process is violated when the State

fails to disclose material information favorable to the defense. 363 U.S. 83, 87

(1963). Independent of this material omission, T.S. argues this case must be

remanded because the Division did not present clear and convincing evidence

A-3227-18T3
3
to support the trial judge's findings that termination of her parental rights is in

the child's best interest.

The Division argues the evidence presented at the guardianship trial

clearly and convincingly proved that termination of T.S.'s parental rights is in

the child's best interest. In response to T.S.'s claim of a conflict of interest,

the Division argues that T.S.'s reliance on Brady is misplaced because the

Supreme Court's holding in that criminal case is not applicable to guardianship

proceedings. However, even if we were to apply Brady to this case, the

Division claims it complied with its discovery obligations by providing T.S.'s

trial counsel with the caseworker's contact sheets that showed the resource

parent was assigned to the district office as a domestic violence liaison.

The Law Guardian agrees that T.S.'s parental rights to Andrea are

constitutionally protected and cannot be terminated without due process of

law. However, the Law Guardian also agrees with the Division's argument

that Brady's discovery obligations in criminal trials are not applicable to

guardianship proceedings. In this light, the Law Guardian characterizes the

resource parent's role in the Division's district office as "peripheral." The Law

Guardian argues that T.S. has the burden to produce evidence of "layers of

bias, through service providers and professionals independent of the Division. "

Without such proof, the Law Guardian argues "it is highly speculative that

A-3227-18T3
4
questioning the caseworker would have led to anything other than a fishing

expedition."

This appeal came for oral argument before this court on February 5,

2020. On February 7, 2020, we sua sponte ordered the parties to submit

supplemental briefs addressing the following three questions:

(1) Did the [Division] violate the Conflicts of Interest
Law, N.J.S.A. 52:13D-12 to -27 or any other relevant
internal policy or directive?

(2) Is a remand necessary for the Family Part Judge to
make specific findings of the type of conflict interests
that occurred here? If so, should the Family Part
Judge
thereafter determine whether these conflicts of
interests
undermined the ability of the [Division] staff assigned
to this case to fairly and impartially evaluate
defendant's conduct and/or the foster parent's conduct?

(3) Was the [Division] responsible to disclose to the
Family Part Judge, defendant's counsel, the Law
Guardian, and/or the Attorney General the existence
of this conflict of interest? If so, what sanction, if any,
should be imposed for the [Division's] failure to carry
out this ethical responsibility?

After reviewing the parties' submissions, including the supplemental

briefs, and considering the evidence presented at the guardianship trial, we

hold the Division violated the Conflict of Interest Law, N.J.S.A. 52:13D-12 to

-27, and the ethical standards promulgated by the Department of Children and

Families (DCF) and incorporated into the Department of Children and Families

A-3227-18T3
5
Policy Manual (Policy Manual) when it failed to transfer T.S.'s guardianship

case to another regional office based on the resource parent's assignment as a

domestic violence liaison. The Division's failure to take timely and effective

action to address this material conflict of interest tainted the management of

this case almost from its inception. Once the Division decided to seek the

termination of T.S.'s parental rights to Andrea, the perception of bias and the

probability of actual prejudice to T.S.'s constitutional right to parent her

daughter became paramount.

Under these circumstances, we are left with only one tenable outcome:

this matter must be remanded for the trial court to conduct a plenary hearing to

make factual findings that are conspicuously missing from the trial record. For

example: when did Division supervisors become aware that Andrea's resource

parent was assigned to the district office as the domestic violence liaison?; did

the supervisors make any effort to transfer the case after knowing the resource

parent's employment status?; was T.S.'s trial attorney aware of the resource

parent's employment status?; if not, why not?; if so, did counsel discuss this

issue with T.S.?; were the Deputy Attorney General (DAG) and the Law

Guardian aware of the resource parent's employment status?; if so, did either

one make any effort to apprise T.S.'s attorney and the trial judge?; was the trial

judge aware of the resource parent's employment status? These threshold

A-3227-18T3
6
inquiries merely provide a glimpse of the issues that need to be explored to

develop a reliable factual record. The purpose of the plenary hearing is to

enable the judge to ascertain the extent of the harm caused by the conflict of

interest and explore what remedies, if any, are possible to counteract or

alleviate this harm.

Furthermore and independent of the conflict of interest issues, we are

compelled to remand this matter to the Family Part because the record of the

guardianship trial is devoid of key factual findings that directly relate to

whether the Division presented a sufficient case to warrant the termination of

T.S.'s parental rights by clear and convincing evidence. Specifically, the

record before us does not show that the trial judge: (1) made credibility

findings regarding T.S.'s testimony, (2) identified which of the two

psychologists who testified as expert witnesses was more persuasive, (3)

articulated a basis for rejecting or distinguishing the opinion of the other

psychologist, and (4) applied the opinions offered by the experts in his analysis

of the four statutory prongs in N.J.S.A. 30:4C-15.1(a). There are thus two

factually independent and legally compelling grounds to vacate the judgment

of guardianship and remand this matter to the Family Part.

Conflict of Interest

A-3227-18T3
7
In their supplemental submissions, T.S., the Division, and the Law

Guardian all agree the Division violated the ethical standards established in the

Conflict of Interest Law and the protocols adopted by the Department of

Children and Families reflected in its Policy Manual. They disagree, however,

about what should be this court's response to these ethical transgressions. The

Division and the Law Guardian are of one mind on this point. The Division

argues it honored its discovery obligations when it provided T.S. with 1741

pages of documentary evidence, which included a number of contact sheets

filed by the caseworkers who monitored and managed Andrea's case.

In the initial brief filed in this appeal, T.S.'s appellate counsel identified

only three contact sheets that in her view revealed the conflict of interest

involving the resource parent. In the supplemental brief submitted by the

Division in response to this court's post-argument order, the DAG identified

twelve contact sheets that documented Division caseworkers' interactions with

the resource parent. The comments and observations noted by the caseworkers

in these contact sheets reveal a pattern of conduct oblivious to any ethical

considerations.

Division Contact Sheets

As part of the evidence presented to the Family Part in support of the

guardianship complaint to terminate T.S.'s parental rights, the Division alleged

A-3227-18T3
8
the Hamilton Township Police Department reported to the Division that on

January 10, 2016, police officers responded to the residence of T.S. and L.H.

"due to a physical altercation" between them. A representative of the Police

Department told the Division that T.S. was "the aggressor" in this act of

domestic violence and was allegedly "under the influence of alcohol and

intoxicated at the time of the altercation." On January 12, 2016, with the

assistance of Hamilton police officers, the Division executed an emergency

Dodd2 removal of Andrea and placed her in the physical custody of the

resource parent.

The next day, T.S. and L.H. went to the local Division office to inquire

about what caused Andrea's involuntary removal from their care and custody.

A Division caseworker and a supervisor told the parties that Andrea's removal

was due to T.S.'s "admission" that she illegally sold her prescription pills and

"[L.H.'s] marijuana abuse." Both the caseworker and the supervisor also

expressed "their concern in regards to the domestic violence incident" that

occurred two days before Andrea's removal. According to the account of the

encounter in the verified guardianship complaint, L.H. "minimized the incident

2
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found
at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate
President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v.
N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).

A-3227-18T3
9
and stated . . . 'all couples argue.'" The Division also averred that T.S. "was

substantiated for risk of physical injury/environment injurious to health and

welfare of the minor child."

The earliest relevant Contact Sheet is dated May 18, 2016, more than

five months after Andrea was involuntarily removed from her biological

parents' custody and placed with the resource parent. The Contact Sheet

entered by Division caseworker Aisha Little memorialized what she discussed

in a telephone call made by Andrea's resource parent, B.O., who is identified

here as "RP."

Worker received a call from RP. RP reported she had
been leaving messages for the previous worker, Mr.
Rodriguez. She reported the Division's workers have
always called her on her work cell phone. She
provided worker with her personal cell phone
[number] . . . . Worker thanked RP for this
information. R[P] reported [Andrea] is sick today.
She reported she had been sick since Saturday with a
fever that has been on and off. RP reported her friend
. . . who is a nurse took [Andrea] to the doctors and is
watching her today. [Andrea's] throat is red and
appears irritated, but strep was ruled out. RP reported
she has been sick numerous times since being at the
daycare. RP reported she had pink eye twice, and
hand foot and mouth. R[P] reported she is picking up
everything from the daycare. RP voiced concern
about [Andrea's] visit supervised by the previous
worker. She reported [Andrea] came home smelling
like smoke and "weed." RP reported it appears the
family is up to their old tricks.

A-3227-18T3
10
When asked about her work schedule, worker was
informed RP would be the new DVL [Domestic
Violence Liaison] for the Mercer South Office. RP
reported her hours of work to be 9 to 5pm. She
reported she is home by 5:30 pm. She reported
[Andrea] usually eats around 6. Worker reported she
would try to make it to the home by the end of the
week.

[(Emphasis added).]

This Contact Sheet was electronically approved by caseworker Little on

June 13, 2016. Division Field Office Supervisor Latanya Forest electronically

approved it on July 25, 2016.

The next Contact Sheet, dated June 2, 2016, was "created" by Field

Office Supervisor Imani Coleman-Robinson. It summarizes T.S.'s alleged

criminal activities involving the illicit sale of prescription opioid medication,

L.H.'s substance abuse problem with marijuana, the Division's unsuccessful

attempt "to implement a safety protection plan," and the domestic violence

incident that resulted in Andrea's emergent and involuntary removal from the

custody of her parents and placement in the home of the resource parent who

would eventually seek to adopt the child. The Contact Sheet also mentions

that T.S. "came home drunk and was the aggressor" in an incident of domestic

violence against L.H. The caseworker also described that both T.S. and L.H.

"have not been compliant with services that include parenting classes, anger

management classes, and individual counseling."

A-3227-18T3
11
Supervisor Coleman-Robinson structured her six-page Contact Sheet

into six separate subheadings. The comments and observations she made in

each subheading about Andrea, T.S., and the resource parent elucidate how the

conflict of interest created by the resource parent's employment status affected

the Division's management of this case from its inception.

PLACEMENT

Following [Andrea's] removal from her parents, she
was placed in the unrelated resource home of Ms.
[B.O.] in Hamilton, NJ. The child is doing wonderful
in the resource home and the caregiver is committed to
adoption. It was recently learned that Ms. [B.O.]
applied for and was hired as the Domestic Violence
Liaison in the Mercer South Local Office. She works
in the office every Monday.

VISITATION

[T.S.] visits the child in the Mercer South Local
Office and the visits will be transitioned to Legacy.
Visits are currently scheduled Mondays and
Wednesdays from 10:30 a.m. to noon and are
occasionally longer. Visits are going fine and no
concerns noted other than the resource parent asking
that [T.S.] stop changing the child's clothes during the
visit due to a concern about [T.S.] having bed bugs in
the past. Sibling visits are occurring and will be
completed at Legacy. Family will be referred.

PERMANENCY

Although [T.S.] has reported that she and [L.H.] are
no longer a couple, the April 14, 2016 Legacy
Treatment Services report provided for [T.S.'s]
visitation with [her other child] indicates, "Care

A-3227-18T3
12
Coordinator observed [T.S.'s] engagement ring and
asked if she was engaged. [T.S.] stated, "Yes, to my
daughter's father. But I already told him, this ring[]
doesn't mean anything if he doesn't do his service to
help get our daughter back." Due to concerns of
domestic violence, this should be explored. [T.S.] will
be referred for domestic violence services but cannot
be referred to the DV liaison in the Mercer South
Local Office as this is [Andrea's] resource parent.

[(Emphasis added).]

Supervisor Coleman-Robinson ended her Contact Sheet by identifying

fifteen "tasks" that in her judgment needed to be completed. The following

items include only those "tasks" that in our judgment reveal areas that need to

be explored in a plenary hearing by the Family Part to determine how the

Division's failure to transfer this case to another district office in a timely

fashion affected T.S.'s right to parent her daughter:

5. Complete Family Reunification Assessment and
Caregiver/Child Strengths and Needs Assessment.

....

7. Ensure that the parents have been referred to all
court ordered and recommended services.

....

12. [T.S.'s] visits are currently in the Mercer South
Local Office and should be transitioned to Legacy as
discussed.

13. Make a conscience effort to keep [T.S.] and the
resource parent separate in the local office. [T.S.'s]

A-3227-18T3
13
visits are in the office on Mondays and the [Domestic
Violence Liaison] is present on the same day in the
office.

14. Refer [T.S.] to domestic violence services through
another provider if possible. If not, the referral should
be made to the DVL's supervisor and she should be
advised of the confidentially of the matter.

15. Discuss ASFA 3 time frames and provide the KLG 4
vs. Adoption fact sheet to the parents and resource
parent.

Field Office Supervisor Coleman-Robinson electronically approved her own

Contact Sheet on June 10, 2016.

Caseworker Jennifer Armstrong entered a Contact Sheet on November

28, 2016, to document an event that occurred twenty-six days earlier on

November 2, 2016. Caseworker Armstrong noted that "[f]ollowing [Andrea's]

removal from her parents, she was placed in the unrelated resource home of

Ms. [B.O.] . . . where she remains." B.O. lives with her sixteen-year-old son,

3
ASFA is an acronym for the federal "Adoption and Safe Families Act of
1997," adopted by Congress in 1997. ASFA requires a state receiving federal
funding to adopt procedures to prohibit persons who have been convicted of
child abuse or neglect, spousal abuse, or any crime against children, or for a
crime involving violence, from becoming resource parents. 42 U.S.C.A. §
671(a)(20). See N.J. Div. of Child Prot. & Permanency v. K.N., 435 N.J.
Super. 16, 34-35 (App. Div. 2014); see also Resource Family Parent Licensing
Act, N.J.S.A. 30:4C-27.3 to -27.15.
4
KLG stands for the Kinship Guardianship Act, N.J.S.A. 3B:12A-1 to -7.

A-3227-18T3
14
Andrea, and a family dog. The caseworker noted Andrea was "doing well in

the home" and that B.O. "wishes to adopt [Andrea]."

Near the middle of the Contact Sheet, Caseworker Armstrong mentioned

that B.O. "is now a domestic violence liaison at the Mercer South and Mercer

North Local Office. The case is restricted in NJS."5 The caseworker also

noted that "[a] few months ago 6, the caseworker did need to speak with [the

resource parent] as she noticed that she was referring to the child [by another

name], as were the daycare staff. The caseworker informed [the resource

parent] that the child must be called by her name, [Andrea]."

5
None of the parties defined "NJS." Whether it refers to some type of
confidential or restricted Division database or record management system, we
cannot say. We therefore have no basis to conclude this was an attempt by the
Division to ameliorate the conflict of interest.
6
"A few months ago" is a facially unacceptable way to identify when an event
of this magnitude occurred. We expect the state agency entrusted to safeguard
the safety and welfare of our children would demand far greater precision from
those responsible to document these events. Our independent review of the
Division record revealed that Division caseworker Aisha Little documented the
same transgression by the resource parent in a Contact Sheet dated July 7,
2016. Caseworker Little wrote: "This writer also explained that bio mom
noticed [Andrea] was becoming confused when she called her. RP indicated
everyone calls her Anna, and its only mom and the workers that call her
[Andrea]. Worker explained that was because her name is [Andrea]. RP
indicated she would call her [Andrea]." However, as caseworker Armstrong's
Contact Sheet dated November 2, 2016 shows, the resource parent continued to
refer to the child by another name 118 days after caseworker Little explicitly
explained to her that this unsanctioned behavior was confusing the child and
upsetting T.S.

A-3227-18T3
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Caseworker Armstrong noted a report of a psychiatric evaluation of T.S.

completed on November 4, 2016 indicated that T.S. was the "victim of

significant physical abuse by her mother and sexual abuse by her mother's

boyfriend, with her not receiving any support or protection from her mother

even [after] she divulged being sexually abused."

The psychiatrist diagnosed T.S. as a

victim of neglect, physical abuse, sexual abuse as a
child, and domestic violence; perpetrator of domestic
violence; provisional PTSD; unspecified depressive
disorder vs. unspecified bipolar disorder; unspecified
anxiety disorder; cannabis use currently in remission
as per review of collateral sources; adolescent
antisocial behavior; adult antisocial behavior with
history of violations of restraining orders; presence of
maladaptive personality traits in clusters A, B, and C.

Although the psychiatrist opined that T.S. should be treated with both

pharmacological and therapeutic modalities, the caseworker wrote in the

Contact Sheet that T.S. "is not on any medication at this time." Finally, as was

the case in the prior Contact Sheets, caseworker Armstrong noted: "[T.S.] will

be referred for domestic violence services but cannot be referred to the DV

liaison in the Mercer South Local Office as this is [Andrea's] resource parent ."

(Emphasis added). Caseworker Armstrong also included a list of twenty-one

"TASKS TO BE COMPLETED." Task number 9 recommended to "[c]onsider

unsupervised visitation between [T.S.] and [Andrea]." Of particular relevancy

A-3227-18T3
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here, Task number 16 stated: "[r]efer [T.S.] to domestic violence services

through another provider if possible. If not, the referral should be made to the

[Domestic Violence Liaison's] supervisor and she should be advised of the

confidentially of the matter." Armstrong "electronically approved" her own

Contact Sheet on November 28, 2016, under the title of "Concurrent Planning

Specialist."

The next relevant Contact Sheet was entered into the Division's records

by Field Office Supervisor Coleman-Robinson on May 22, 2017 to

memorialize an Annual Internal Placement Review of this case held at the

Division's Mercer South Local Office on May 16, 2017. The following

"interested parties" attended the review: Permanency Caseworker Laverne

McDow; Casework Supervisor Ava Sharpe; and Field Office Supervisor

Coleman-Robinson, who identified herself as "Internal Placement Reviewer."

The Contact Sheet also noted that Child Health Unit Nurse Cheryl Berkin was

"consulted following the review." The previous "Family Team Meeting"

occurred on February 28, 2017.

The Contact Sheet included the following statement under the

subheading "PLACEMENT":

Following [Andrea's] removal from her parents, she
was placed in the unrelated resource home of [B.O.] in
Hamilton, NJ. The child is doing wonderful in the
resource home and the caregiver is committed to

A-3227-18T3
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adoption if the child cannot be reunified with her
biological family. [B.O.] currently works as a
domestic violence liaison at the Mercer South and
Mercer North Local Offices. The case is restricted in
NJS. Since the 5th month Internal Placement Review
on this case, [Andrea] has remained in her resource
home with [B.O.] and continues to do well.

[(Emphasis added).]

Under the subheading "SERVICES/STABILITY" the Contact Sheet

noted "[t]he Division continues to work with [T.S.] towards reunification with

[Andrea]." Immediately following this ostensible mission statement, the

Contact Sheet described the therapeutic services the Division provided T.S.

and acknowledged that she "is actively completing the parenting element of

the program; as well as attending individual therapy." The Contact Sheet also

documented that on May 1, 2017, "the Division received an RI regarding

[T.S.]" Although the initials "RI" are not explained, they relate to an

anonymous report of unsubstantiated allegations that T.S. was engaged in

prostitution and had "a domestic violence altercation about a week ago . . .

[where] [L.H.] broke a window."7 After discussing the services the Division

provided to T.S. up to that point, the Contact Sheet noted "[t]here are also

concerns of domestic violence with [T.S.]."

7
Because the "RI" reporter also alleged T.S. was abusing illicit drugs, the
Division requested her to submit to a drug screen. "The results returned
negative for all illicit substances."

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Under the subheading "PERMANENCY," the Division noted T.S.'s

"progress with reunification services and compliance with the court order[,]"

and reaffirmed that "the Division's permanency goal remains reunification with

a concurrent goal of adoption at this time." To realize that goal, the Contact

Sheet listed eighteen "TASKS TO BE ADDRESSED TO ENSURE

PERMANENCY." Task 9 stated: "The last RI mentioned concerns regarding

domestic violence. [T.S.] should be referred for domestic violence counseling

if this is a concern. The Mercer office's liaison cannot be used as this is the

child's resource parent." Field Office Supervisor Coleman-Robinson

electronically approved her own Contact Sheet on May 22, 2016.

Standard for Assessing Conflict of Interest

When the Legislature adopted the Conflict of Interest Law effective

January 11, 1972, it established the overarching public policy that guides our

review of the conduct of the Division employees who managed this

guardianship case.

In our representative form of government, it is
essential that the conduct of public officials and
employees shall hold the respect and confidence of the
people. Public officials must, therefore, avoid conduct
which is in violation of their public trust or which
creates a justifiable impression among the public that
such trust is being violated.

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[ N.J.S.A. 52:13D-12(a) (emphasis added).]

"The paramount objective of the Conflicts of Interest Law in general is

to 'ensure propriety and preserve public confidence' in government." Knight v.

Margate, 86 N.J. 374, 391 (1981). The Conflict of Interest Law applies "not

only to situations of actual conflict of interest and divided loyalty, but also to

their appearance." In re Advisory Comm. on Prof'l Ethics Opinion 621, 128 N.J. 577, 585 (1992). Because the Conflict of Interest Law covers such a wide

spectrum of public employees, the Legislature directed State agencies that

perform highly specialized functions to develop and implement their own

ethical standards that reflect and incorporate the agency's unique mission.

To ensure propriety and preserve public confidence,
persons serving in government should have the benefit
of specific standards to guide their conduct and of
some disciplinary mechanism to ensure the uniform
maintenance of those standards amongst them. Some
standards of this type may be enacted as general
statutory prohibitions or requirements; others, because
of complexity and variety of circumstances, are best
left to the governance of codes of ethics formulated to
meet the specific needs and conditions of the several
agencies of government.

[ N.J.S.A. 52:13D-12(b) (emphasis added).]

Effective September 19, 2014, the Department of Children and Families

adopted a Policy Manual for Division employees to supplement the Uniform

Ethics Code and address "the particular needs and problems of the

A-3227-18T3
20
Department." The Policy Manual is structured in Sections that identify

categories or areas of activities to guide Division employees.

Section G: Misuse of Official Position

1. Each Department employee and special State officer
shall conduct him or herself in an appropriate and
professional manner during the course of performing
his or her public duties. Each DCF employee or
special State officer is responsible for setting clear
boundaries to assure that he or she does not establish
an improper relationship with any person who is
supervised, served, regulated, being investigated, or
has a prior history with the Department.

....

3. No Department employee or special State officer
shall perform official duties in any manner from
which it might be reasonably inferred that the
influence either of a personal relationship or of an
unprofessional circumstance caused the employee to
act in a biased or partial manner.8
[(Emphasis added).]

The section of the DCF Policy Manual that addresses the Management of

Resource Family Parents includes "Domestic Violence Liaisons" under the

definition of "DCF employee." Volume IV, Chapter B, Subchapter 6, Issuance

800 "establishes policies and procedures for DCF staff to follow when a DCF

8
The Division's Policy Manual can be found at the following link:
https://www.state.nj.us/dcf/policy_manuals/DCF-IV-A-1-100_issuance.shtml.

A-3227-18T3
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employee seeks to become a resource family parent." Under this regulatory

scheme, the Ethics Liaison Officer (ELO)

is responsible for guiding the application process for
any DCF employee requesting to be a kinship
caregiver or adoptive parent in an effort to avoid
conflicts of interests or potential conflicts of interest.

The ELO also serves as a neutral party overseeing all
procedural matters regarding the process and acts as
the liaison between the applicant and [Division]
executive management. 9

Once a DCF employee expresses an interest in becoming the resource

parent of a child under the Division's supervision, the employee must recuse

her or himself "from any activity that may influence or be perceived to

influence the outcome of the agency’s decision regarding the application ."

(Emphasis added). The scope of this recusal includes, "but is not limited to,"

gathering information about the child through open public sources or

reviewing confidential Division records concerning the case or the child. " The

Ethics Liaison Officer will instruct the employee of proper conduct in relation

to his or her application if the application is approved to proceed for a home

study." (Emphasis added).

9
Volume IV, Chapter B, Subchapter 6, Issuance 800 of the Division's Policy
Manual can be found at the following link:
https://www.nj.gov/dcf/policy_manuals/CPP-IV-B-6-800_issuance.shtml.

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22
Towards that end, the Division must take "appropriate and timely

identification, assessment, and intervention to promote successful outcomes

regarding child safety, well-being, and permanency." This requires "a

collaborative approach which may include the [Division] Worker, Supervisor,

Case Work Supervisor (CWS), Local Office Domestic Violence Liaison

(DVL), Deputy Attorney General (DAG), law enforcement, and the courts to

ensure child safety and well-being." (Emphasis added). The following

description shows how Domestic Violence Liaisons are expected to be a key

part of this collaborative approach:

Domestic Violence Liaison (DVL): is a partnership
between the Department of Children and Families and
the NJ Coalition to End Domestic Violence at the
State level and the [Division] Local Offices and
domestic violence programs at the county level.
Domestic Violence Liaisons are domestic violence
specialist co-located at the [Division] Local Offices
(when available), to provide case consultation, support
and advocacy for domestic violence victims and their
children. The purpose of this collaboration is to:

- Increase safety, improve outcomes, and reach the
primary goals for children and their non-offending
parent in domestic violence situations.
- Strengthen DCF/[Division] capacity to provide
effective assessments and intervention for families in
domestic violence situations.10

10
Volume VIII, Chapter B, Subchapter 1, Issuance 100 of the Division's
Policy Manual can be found at the following link:
https://www.nj.gov/dcf/policy_manuals/CPP-VIII-B-1-100_issuance.shtml.

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23
Volume VIII of the DCF Policy Manual contains eight "Special Interest

Topics" organized in alphabetical order from A to H. Section B addresses

"Domestic Violence." Its purpose is to establish "policy and procedures for

[Division] staff working with families where domestic violence is alleged,

suspected, or co-occurs with child abuse or neglect." The "Policy" of the

Division in cases involving domestic violence is to "[p]ut safety first." The

Division must not permit a child to remain "in homes that have been assessed

as unsafe, without a Safety Protection Plan . . . in place." However,

reunification is appropriate "once safety concerns have been remediated or a

safety intervention is in place."

Subsection E describes the conditions imposed on DCF employees who

wish to become a kinship resource family or adoptive parent; Subsection F,

denoted "Required Approvals," lists the DCF staff members who must approve

the application "[b]efore an employee makes an application to the Resource

Family Support Unit to be considered for a kinship resource or adoptive

home." The DCF staff members involved in this pre-qualification approval

process are: the employee's Direct Supervisor, the Local Office Manager, the

Area Director, the DCF Ethics Liaison Officer, and the Division Director, who

is the one empowered to "give[] the final approval to move the selection

process."

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24
Of particular relevance here, the DCF Policy Manual expressly states

that after this preapproval process is completed, the Division's "Area Director

responsible for the open case determines the office of supervision. The child’s

case is supervised by a Local Office other than the one where the employee is

officially stationed. The assigned Worker has no professional, personal, or

familial relationship to the employee." (Emphasis added).

Appearance of Impropriety

In Knight v. Margate, the Supreme Court was confronted with "the

fundamental issue of whether the Conflicts of Interest Law, as most recently

amended . . . impinges upon the Supreme Court's constitutional powers under

Art. VI, § 2, par. 3." 86 N.J. at 391. The Court ultimately upheld the

constitutionality of the statute. Writing for a unanimous Court, Justice Handler

explained: "We do not believe that the restrictions imposed by the latest

amendments, L. 1981, c. 142, will in any way interfere with the sound

administration of the judicial system or undermine the proper regulation of the

ethical conduct of members of the judiciary and the bar." Id. at 394. Justice

Handler noted that "[t]here can be no equivocation on the point that the New

Jersey Conflicts of Interest Law, as most recently amended, vitally serves a

significant governmental purpose. The paramount objective of the Conflicts of

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25
Interest Law in general is to 'ensure propriety and preserve public confidence'

in government." Id. at 391 (quoting N.J.S.A. 52:13D-12(b)).

The Court revisited the Conflict of Interest Law to determine the

propriety of legislatively imposed "ethics restrictions on the private practice of

lawyers who are part-time legislative aides." In re Advisory Comm. on Prof'l

Ethics Opinion 621, 128 N.J. at 581. The Court ultimately upheld the

application of the statute in this limited context. Writing for a unanimous

Court, Chief Justice Wilentz noted that "[t]he purpose of the Act is to maintain

the public's confidence in government and its officers and employees." Id. at

581. The Court also emphasized that the "appearance of impropriety" can

erode the public's confidence that government employees have exercised their

authority and carried out their responsibilities in a fair and impartial manner.

Id. at 582; See also In re Advisory Committee on Professional Ethics Opinion

705, 192 N.J. 46, 56 (2007).

The Division's "statutory mission is to protect the health and welfare of

the children." N.J. Div. of Youth & Family Servs. v. E.B., 137 N.J. 180, 184

(1994) (citing N.J.S.A. 30:4C-4). As the State agency responsible to safeguard

the welfare of our children, the Division must guard against anything that

erodes the twin pillars underpinning its statutory mission: "(1) that no child

should be exposed to the dangers of abuse or neglect at the hands of their

A-3227-18T3
26
parent or guardian; and, commensurately, (2) that no parent should lose

custody of his/her child without just cause." Division of Youth & Family

Services v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

Our Supreme Court has recognized that few forms of state action are as

severe as the termination of parental rights because it irreversibly severs the

relationship between children and their biological parents. N.J. Div. of Child

Prot. & Perm. v. R.L.M. (In re R.A.J.), 236 N.J. 123, 144 (2018). As our

colleague Judge Koblitz succinctly and powerfully stated In re Adoption of

Child by J.E.V.:

After the elimination of the death penalty, we can
think of no legal consequence of greater magnitude
than the termination of parental rights. Such
termination "sever[s] the parent-child bond, . . . is
irretrievably destructive of the most fundamental
family relationship," and "the risk of error . . . is
considerable." "[A] natural parent's desire for and
right to the companionship, care, custody, and
management of his or her children is an interest far
more precious than any property right."

[ 442 N.J. Super. 472, 481 (App. Div. 2015) (footnote
omitted) (citations omitted).]

In light of the magnitude of the power entrusted to the judiciary and the

Division, there are times when it becomes an absolute imperative for this court

to state, without equivocation, what is at stake behind the mountain of papers

that make up the appellate record in this guardianship trial. Within the nearly

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27
1800 pages that document the history of the Division's involvement in the life

of T.S. and her children, the record of this particular case reveals one

undeniable truth: the Division caseworkers and supervisors who were

responsible to manage this case from its inception were utterly oblivious of

their ethical obligations under the standards established by the Legislature in

the Conflict of Interest Law and the protocols adopted by the DCF in its Policy

Manual.

The contact sheets we have examined in great detail show that none of

the Division employees who interacted with T.S., Andrea, and B.O. ever

thought to consult the DCF's Ethics Liaison Officer or take any action to

investigate the propriety of managing this case under these circumstances.

There is clear evidence that the Division's initial family reunification goal

quickly morphed into a full blown permanency plan predicated on the

termination of the biological parents' parental rights, followed by Andrea's

adoption by B.O. We find particularly disturbing that the caseworkers and

supervisors involved failed to grasp, as a matter of commonsense, the ethical

implications of this material change in direction by the Division and remained

indifferent to an arrangement that cast them, as the Division's representatives,

in an adversarial role to T.S.'s constitutional rights to parent Andrea. To be

clear, this case was tainted with an untenable appearance of impropriety from

A-3227-18T3
28
the moment the Division's district office supervisor knew, or under the

circumstances should have known, that B.O. was assigned to serve as the

Domestic Violence Liaison in the same local office as the Division

caseworker's supervising Andrea's case and thereafter failed to transfer the

case to another district office, as per the protocol established in the DCF

Policy Manual.

However, what occurred here involved much more than the failure of

one district office supervisor. The record shows a wholesale failure to follow

any of the protocols established in the DCF Policy Manual and the statutory

requirements of the Conflict of Interest Law by all of the caseworkers and

supervisors who interacted with this case. The magnitude of the harm caused

by this systemic failure cannot be accurately determined by this appellate

court. Although the government employees responsible can be held

accountable, the harm to T.S., Andrea, and possibly even B.O. in her role as

the resource parent needs to be explored and determined by the Family Part in

a plenary hearing.

At this plenary hearing, the Family Part must begin with the most

vulnerable and truly innocent person most affected by what occurred here,

Andrea. The judge must assess what psychological and/or emotional harm

Andrea may suffer if she were to be returned to T.S.'s physical custody. The

A-3227-18T3
29
Division placed Andrea with B.O. immediately after her involuntary emergent

removal on January 12, 2016. The child has resided with and been part of

B.O.'s family for the past four years. As our Supreme Court has found, and the

Division recognizes in its regulations, a young child's "sense of time is

different than that for older children or adults." Div. of Youth & Family

Servs. v. I.S., 202 N.J. 145, 179 (2010) (quoting N.J.A.C. 10:122D-1.14(a)(3)).

The Family Part judge must determine whether Andrea's reunification with

T.S. is in the child's best interest at this stage of her emotional, psychological,

and cognitive development.

Guided by its parens patriae responsibility, the Family Part must

determine whether T.S. is capable of safely and responsibly parenting her

daughter. These determinations must also be guided by the four -prong

standard codified in N.J.S.A. 30:4C-15.1(a), which are not mutually exclusive.

They instead overlap "to provide a comprehensive standard that identifies a

child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

A court's application of the best-interests standard is a fact-sensitive

undertaking, which must rely on particularized evidence addressing the

circumstances unique to each case. Ibid. Given the passage of time, prudence

dictates that updated psychological and bonding studies be conducted

A-3227-18T3
30
involving T.S., B.O., and Andrea. We leave it to the discretion of the Family

Part judge to determine whether any additional information is warranted.

III

The shadow of impropriety and unfairness cast over this case by the

failure of the Division to follow the Conflict of Interest of Law and its own

Policy Manual and the harm this caused to T.S. and Andrea cannot be

overstated. However, this court does not have the jurisdiction to hold the

individuals involved here accountable. We thus direct the Appellate Division

Clerk to forward a copy of this opinion to the State Ethics Commission Office,

the State agency with the "jurisdiction to initiate, receive, hear and review

complaints regarding violations, by any current or former State officer or

employee or current or former special State officer or employee, in the

Executive Branch[.]" N.J.S.A. 52:13D-21(h).

The conduct of the attorneys in this case is not beyond this court's

jurisdiction. The Attorney General represents the Division. We expect the

DAG's who represent the Division in future cases to inform caseworkers and

other Division staff that they are duty bound to disclose to the Family Part all

material information related to any conflict of interest affecting the

management of the case. This same obligation applies to the Law Guardian

A-3227-18T3
31
and the Office of the Public Defender or private attorneys who represent a

party in these proceedings.

Although the violations of the Conflict of Interest Law are sufficient to

vacate the judgment of guardianship and remand for a plenary hearing, we are

compelled to note and comment on the trial judge's failure to make key factual

findings concerning T.S.'s testimony and address and resolve the inconsistent

expert testimony provided by the two psychologists who testified at trial.

Dr. Alan Lee testified on behalf of the Division. He is a licensed

psychologist with an independent practice who specializes in clinical and

forensic psychology and evaluations and consultation. After conducting a

psychological evaluation of T.S., Dr. Lee diagnosed 11 her to have a

"maladaptive personality and character traits that are expected to jeopardize

and compromise her ability to function as a minimally adequate parent to . . .

[a] child [of Andrea's age]." He also opined that T.S.'s parenting knowledge

and skills were demonstrably limited in scope and depth as were her insight

and awareness of the issues that prevent her from safely reuniting with Andrea.

11
Dr. Lee testified that he used the DSM-IV to diagnose defendant rather than
the DSM-V, which is the most recent version of the manual. He claimed the
DSM-V does not operate on an axis system. He also claimed the National
Institute of Mental Health and other major mental health organizations still
utilize the DSM-IV.

A-3227-18T3
32
According to Dr. Lee, T.S. had impaired cognitive skills and limited

intellectual abilities as demonstrated by her IQ score of 73.

Dr. Lee also conducted a bonding evaluation of T.S. and Andrea and one

between B.O. and Andrea. He did not find anything acutely problematic

during T.S.'s bonding evaluation with the child. Dr. Lee noted Andrea did not

show any remarkable aversion or distress to T.S. and they both seemed to

enjoy their time together. He noticed, however, that Andrea did not display

any observable stress when T.S. left the room as part of the evaluation.

By contrast, Dr. Lee opined that the interactions between B.O. and

Andrea were very positive during their evaluation. The quality of their

interactions "were relatively more positive and favorable than those during the

child being with . . . [T.S.]." He noted that Andrea was "generally more

animated, verbal with the resource mother than with [T.S.]." Although the

observation periods are important, Dr. Lee emphasized they are only one factor

of the overall bonding evaluation. In his opinion, the positive aspects of T.S.'s

bonding session were outweighed by her extensive history with the Division.

This problem is exacerbated by the fact that Andrea had not been in T.S.'s

direct care since she was approximately nine months old.

Dr. Lee opined that Andrea's bond with T.S. was "ambivalent and

insecure." This was indicative of a low risk that she would suffer severe or

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33
enduring harm if their relationship were severed. Conversely, Dr. Lee found

Andrea shared a significant and positive bond with B.O. In his opinion, there

was a significant risk that Andrea would suffer severe and enduring harm if

this relationship were terminated. He also opined that B.O. would be more

capable to mitigate any potential harm the child would endure if her

relationship with T.S. was terminated. Dr. Lee did not support reunification

between T.S. and Andrea. He supported the Division's plan of adoption by

B.O.

Licensed psychologist Dr. James Reynolds testified for T.S. Based on

her self-reporting, Dr. Reynolds testified that T.S. had a stable residence and

was gainfully employed. She also received disability support, which he

believed was "probably related to her . . . intellectual disability, the borderline

intellectual functioning." Based on his evaluation, Dr. Reynolds opined T.S.

possessed the capacity to be a fit parent and to adequately and safely care for

Andrea. He opined T.S. was capable to adequately and safely develop a

healthy support system. He believed T.S. had the "resources, knowledge and

skills necessary to safely" parent Andrea.

Given her history of abuse as a child, Dr. Reynolds recommended T.S.

receive trauma informed services and therapy and noted the records provided

to him did not show any referrals for such services. Dr. Reynolds was also

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34
surprised that T.S. had not been referred for domestic violence counseling and

recommended that she participate in this form of counseling.

Dr. Reynolds also conducted bonding evaluations between Andrea, T.S.,

and B.O. He testified that Andrea appeared to be very comfortable with T.S.

and identified and internalized her as a maternal figure. Andrea did not seem

uncomfortable, anxious, angry, or ambivalent about T.S. He opined the child

interacted with T.S. in an age-appropriate manner and their interactions were

positive, joyful, and spontaneous. He noticed that as soon as Andrea saw T.S.,

she "smiled broadly and approached her for a hug." Andrea called T.S.

"mommy" throughout the evaluation and at one point, she "spontaneously

kissed [T.S.] on the cheek." He opined that Andrea and T.S. "have a really

healthy mother/daughter bond."

Dr. Reynolds also opined that Andrea appeared to internalize B.O. as a

maternal figure. He found their interactions were positive, comfortable, and

age-appropriate with no indication of negative feelings between the two. He

candidly opined that Andrea's bond with T.S. and her bond with B.O. were in

equipoise. Each bond was a safe and secure one. Dr. Reynolds concluded that

Andrea would experience severe and enduring harm if either relationship were

severed. However, he found that the strength of Andrea's bond with T.S.

A-3227-18T3
35
would help her mitigate the severe and enduring harm of terminating her

relationship with B.O.

T.S. testified in her own defense. Her testimony consisted mostly of a

wholesale denial or repudiation of anything the Division alleged against her.

She denied telling any Division representative that she sold her prescription

pain medication. She denied calling L.H. during any of her visits with Andrea

or telling the Division about a physical altercation she had with L.H. T.S.

conceded that she missed her visitation with Andrea one time due to work or a

doctor's appointments. However, she provided the Division with

documentation to support her claims.

The Family Part judge's written statement of decision did not directly

address the expert witnesses' testimony nor did it make any attempt to

reconcile or harmonize their disparate conclusions. Stated differently, we are

unable to discern how the judge reached the conclusion that the Division

proved, by clear and convincing evidence, that termination of T.S.'s parental

rights is warranted. Equally problematic is the judge's failure to determine

whether he found T.S.'s testimony credible. These material omissions alone

are sufficient to warrant that we vacate the judgment of guardianship and

remand the matter for the judge to make the findings of facts and conclusion of

law required by Rule 1:7-4(a). As we made clear more thirty years ago:

A-3227-18T3
36
[F]ailure to perform the fact-finding duty "constitutes
a disservice to the litigants, the attorneys and the
appellate court." Meaningful appellate review is
inhibited unless the judge sets forth the reasons for his
or her opinion. In the absence of reasons, we are left
to conjecture as to what the judge may have had in
mind.

[Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div.
1990).]

This case stands as a model of how not to investigate, manage, and

adjudicate a guardianship trial. Under these circumstances, we are compelled

to reverse the judgment of guardianship and remand the matter to the Family

Part to make specific factual findings and conclusions of law consistent with

this decision.

Reversed and remanded. We do not retain jurisdiction.

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37

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