NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0966-06T40966-06T4

A-2989-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

D.B.,

Defendant-Appellant.

________________________

IN THE MATTER OF J.S.B. and J.J.B., minors,

Appellants.

__________________________________

 

Argued: September 10, 2007 - Decided:

Before Judges Cuff, Lisa and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FG-09-248-06.

Michael C. Wroblewski, Designated Counsel, argued the cause for appellant D.B. (Yvonne Smith Segars, Public Defender, attorney; Mr. Wroblewski, on the brief).

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for appellants J.S.B. and J.J.B., minors (Yvonne Smith Segars, Public Defender, Law Guardian; Mr. Devlin, on the brief).

Peter D. Alvino, Senior Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief (A-0966-06); Toni Lynn Imperiale, Deputy Attorney General, on the brief (A-2989-06)).

PER CURIAM

D.B. is the mother of six boys between the ages of four and eighteen. D.B. and the law guardian for J.S.B. and J.J.B. appeal from an order terminating D.B.'s parental rights to both children, who are mentally retarded. She and the law guardian contend that the Division of Youth and Family Services (DYFS) failed to prove by clear and convincing evidence that D.B. cannot eliminate harm to the boys and provide a safe and stable home for them and that termination will not do more harm than good. The law guardian urges that the court has effectively made these boys legal orphans. We agree with the arguments presented by D.B. and the law guardian as to J.S.B. and reverse the order terminating D.B.'s parental rights to J.S.B. As to J.J.B., we remand for reconsideration of the termination order.

The subjects of the August 18, 2006 order of guardianship are J.S.B., born on December 23, 1996, and J.J.B., born on June 15, 2000. J.S.B., almost eleven, has been diagnosed with mild to moderate mental retardation with significant language delays and has resided at Devereux Kanner Center (Devereux), a residential treatment center in West Chester, Pennsylvania, since July 28, 2003. J.J.B., seven years old, has been diagnosed with Down syndrome and moderate mental retardation. He has resided in the same DYFS-approved special home service provider since April 2005. The permanency plan for both boys is select home adoption.

DYFS received approximately eighteen referrals with allegations of child neglect regarding D.B. and her family between June 27, 1991 and July 15, 2003. The reports generally concerned lack of supervision, filthy living conditions, and domestic violence between D.B. and T.B., the father of all but the oldest child. DYFS also received allegations of substance (alcohol, marijuana and cocaine) use and abuse by both parents.

A DYFS worker responding to the July 12, 1995 referral found the house in Cliffside Park in which D.B., T.B., and the two boys lived was "filthy, uninhabitable with urine and feces everywhere." The following day, the fire administrator noted that the residence had two inoperable smoke detectors and a "questionable amount of alcoholic beverage containers within and outside of the structure." The fire administrator also reported that the "careless storage of household contents and garbage" could potentially start a fire within the home. Neglect was substantiated and R.A.B. and T.J.B. were removed from the care of D.B. and placed in foster care. That same date, D.B. and T.B. signed a foster home placement agreement regarding the two boys. On August 9, 1995, the two boys were returned to D.B. after she obtained adequate housing and agreed to adhere to a DYFS case plan.

Despite many referrals and home inspections, neglect was not substantiated again until October 8, 2002, and none of the children were removed until June 24, 2003. On September 26, 2002, however, DYFS obtained a court order because D.B. refused entry into her apartment. Following a hearing on October 4, 2002, D.B. was ordered to comply with all recommendations made by DYFS. On October 8, 2002, the worker visited D.B.'s home and found the apartment to be clean and orderly. The worker spoke with D.B. again about R.A.B., then thirteen; T.J.B., then seven; and J.S.B., then six, not being enrolled in school. D.B. informed the caseworker that the children were on "home instruction." D.B. was unable to show the caseworker school books or a curriculum and educational neglect was substantiated because the children were school age and not registered.

On February 4, 2003, the North Bergen Board of Education (Board of Education) contacted D.B. because she had failed to register R.A.B., T.J.B. and J.S.B. for school. In the letter, the Board of Education also stated they were aware that D.B. had a three year old son, J.J.B., diagnosed with Down syndrome and offered to discuss placement for him in a preschool with children of similar disabilities.

On March 14, 2003, the DYFS caseworker contacted D.B.'s pediatrician, who informed her that the children had not been seen in his office for several years. The doctor also confirmed that he had never examined then two and one-half year old J.J.B. The DYFS worker also discovered that D.B. and her children were not patients of the health center.

On May 30, 2003, DYFS received a referral from a caller who stated that thirteen year old R.A.B. came to stay at her home two days prior. On June 2, 2003, the DYFS worker spoke with R.A.B., who explained that he had decided to stay at the friend's home. The worker also spoke with D.B., who denied excluding R.A.B. from her home. The principal of R.A.B.'s school informed the worker that the school would be taking R.A.B. and D.B. to court for R.A.B.'s truancy issues. Neglect was not substantiated; however, the case remained open by DYFS for supervision.

On June 17, 2003, the Guttenberg Police Department reported that R.A.B. was found sleeping on a sidewalk vent grate around midnight. R.A.B. was brought to police headquarters and stated that he had been walking the streets since 8 a.m. the previous day. The police reported that they were concerned because D.B. did not report her son missing. D.B. later asserted that she attempted to file a missing persons complaint over the telephone but was told the complaint could only be filed in person. Neglect was substantiated by DYFS.

On June 20, 2003, DYFS received a referral from Palisades General Hospital that D.B., who had used the name of her paramour when admitted into the hospital, had just given birth to a baby boy and both mother and infant tested positive for cocaine. When questioned by the assigned DYFS caseworker, D.B. suggested the exposure was caused by having been with friends who smoked crack-cocaine while she was pregnant. D.B. agreed to undergo a substance abuse evaluation and signed a hospital hold on the baby. When asked about possible relative placement resources, including the newborn's father, D.B. refused to disclose his name or address. Neglect was substantiated and the case remained open for supervision.

On June 23, 2003, the worker met with D.B. at her home. When D.B. was asked about J.J.B. and his diagnosis of Down syndrome, D.B. stated that he did not have other medical problems associated with Down syndrome. When the worker reminded D.B. that the Board of Education had sent her correspondence explaining that the district had services available for him, D.B. informed the worker that she did not want him in preschool with other children diagnosed with Down syndrome. When the worker attempted to discuss J.S.B.'s diagnosis of autism, D.B. responded that her son was "gifted."

On June 24, 2003, D.B. submitted to a substance abuse assessment and tested positive for alcohol. At that point, the caseworker became aware of D.B.'s history with DYFS and discovered that D.B. had used her paramour's last name at the hospital. D.B. admitted that she had abused drugs and alcohol during her pregnancy and attempted to conceal the pregnancy from DYFS. DYFS filed an emergent protective services application and removed D.B.'s six children from the home due to the immediate danger the children faced by D.B.'s drug and alcohol use.

Upon further investigation, the caseworker discovered that J.S.B., then six and one-half years old, had never attended public school and had not seen a doctor since 1998. DYFS also ascertained that J.J.B. had not seen a doctor since surgery to repair a cardiac defect four months after his birth in 2000.

Following removal, J.S.B. was initially placed in a foster home. Within a day he was placed at Jersey City Medical Center, and a day later transferred to Saint Mary's Hospital. J.S.B. was observed by hospital staff displaying behaviors of a dog, such as drinking from the toilet, smelling his environment and crawling on the floor. The staff also reported that all of his teeth were rotting and looked like "black stumps" in his mouth.

On July 1, 2003, Nadezhda Robinson, Ph.D., completed an evaluation of J.S.B. and diagnosed him as a seven year old non-verbal, autistic child with poor social interaction, poor eye contact, no expressive language skills and occasional discomfort with tactile stimulation. While physical abuse was ruled out, it was noted that J.S.B. had rotting molars due to a complete lack of dental care and appeared to be seriously and chronically physically, emotionally and educationally neglected. Dr. Robinson recommended that J.S.B. engage in a behavior modification program, concluding that the child's development had been "grossly impeded" by the educational, physical and emotional neglect he suffered while in D.B.'s care.

On July 28, 2003, J.S.B. was transported from Saint Mary's Hospital to Devereux. On September 25, 2003, the caseworker brought eight year old T.J.B. to visit J.S.B. at Devereux. The worker was informed that J.S.B. had adjusted very well to the facility and was doing well at the school. The caseworker also reported that J.S.B. appeared to have no recollection of his brother and just stared at him.

Visitation with J.S.B. by D.B. and D.B.'s other children was observed by the staff at Devereux on September 29, 2004. D.B. had not visited J.S.B. since he had been placed at the facility on July 28, 2003. The record of this visit reports that J.S.B. seemed "indifferent" to his family and appeared happier playing with the stuffed animals.

On January 18, 2005, Dr. Charles S. Hasson submitted a report regarding his October 13, 2004, psychological evaluation of D.B. and bonding evaluation of D.B. with J.S.B. Although Dr. Hasson found D.B. to be cooperative and pleasant, he felt she had a "selective memory" and appeared "guarded." He did not find her reliable and expressed his belief that she was the type to "finesse the truth." Dr. Hasson also concluded that D.B. appeared to be "character disordered, addiction-prone and suffering from a personality disorder."

On February 22, 2005, Devereux submitted to DYFS a report regarding a February 18 visit with J.S.B., D.B., the child's father and siblings. The report related that J.S.B. appeared to be unresponsive when his parents attempted to hug him but appeared to be very excited about the toys they had brought for him. While J.S.B. appeared to be more receptive to hugging his parents at the end of the visit, it was unclear whether J.S.B. was aware that his parents were leaving and noted that he did not display any attachment behaviors towards his parents and siblings. Staff made similar observations during the July 8 and September 12, 2005 visits. During two visits in December 2005, J.S.B. tried to leave the room, flopped on the floor and seemed disturbed by the noise created by his siblings. The record reflects, however, that J.S.B.'s lack of engagement with his mother and siblings is characteristic of his condition rather than the product of inattention from, or the absence of, his family.

While the facility reported that J.S.B. had made huge strides since living at Devereux, he still required supervision while completing daily living skills such as bathing and brushing his teeth. J.S.B. also needed constant supervision while performing tasks and because he did not appear to understand the dangers of traffic or strangers. Although his problematic conduct had decreased, he still exhibited behaviors such as "flopping, non-compliance and tantrums." Due to the decrease in J.S.B.'s problematic behaviors and the fact he had become more physically healthy and had matured, the facility staff recommended that he remain at Devereux in order to continue to flourish in a highly structured and supervised environment.

On June 21, 2005, Dr. A. Rand Coleman from Devereux submitted an updated psychological evaluation of J.S.B. At that time, the initial autism or Pervasive Developmental Disorder diagnosis was revised to mild to moderate mental retardation. J.S.B. remained non-verbal but was able to make animal sounds, such as those of a dog, bear and an elephant. The evaluator reported that J.S.B. covered his ears in response to loud or high-pitched sounds.

Dr. Coleman explained that while J.S.B. had a long period of stable behavior from June 2004 to March 2005, behavior problems in school increased during February 2005 and increased in the residential setting during April 2005. One explanation for the change in behavior provided by Dr. Coleman was the change of the seasons because J.S.B. had demonstrated a similar pattern the prior year. Dr. Coleman stated that the non-compliant behavior and flopping continued to be observed. Nevertheless, Dr. Coleman recognized that J.S.B. appeared less oppositional and more compliant, less impulsive in school and more emotionally stable with fewer tantrums and had better frustration tolerance. J.S.B. also no longer showed significant anger control problems and his academic skills had improved. Dr. Coleman recommended that J.S.B. continue with social and behavioral therapies in order to progress with his social skills and special education classes for occupational and speech therapy in a residential setting.

Dr. Coleman reported that J.S.B. required a high level of structure and supervision to remain safe and make progress. He also stated that a long-term, high level of support was required to allow J.S.B. to progress in developing adaptive, communication, social, academic and recreational skills. Dr. Coleman predicted that, with intense training, J.S.B. would be able to progress and become independent in a supported employment situation, and perhaps a move to a residential treatment facility group home with night staff to monitor J.S.B. continuously. Dr. Coleman also opined that J.S.B. might be able to move to a home in the future only if one or two other children resided in the home.

On December 2, 2005, Dr. Staci Fleisher from Devereux submitted an updated psychological evaluation of J.S.B.. Dr. Fleisher confirmed the diagnosis of mild to moderate mental retardation and reported that J.S.B. scored low on tests of his communication, daily living skills and socialization skills. At the time of the evaluation, then eight year old J.S.B. was still unable to communicate verbally or brush his teeth, bathe or brush his hair without assistance. Dr. Fleisher noted that J.S.B. is unable to follow school, facility, safety and community rules or time limits set by his caregiver without consistent and close supervision. Additionally, J.S.B. did not act appropriately when introduced to strangers and appeared unable to control anger or hurt feelings when he was not given his way.

Dr. Fleisher reiterated the earlier guidance that without close assistance, frequent prompting and positive reinforcement, J.S.B. would likely resist tasks, fail to focus on work, wander away from safe areas and possibly wander to parking lots or roads. Furthermore, Dr. Fleisher explained that without special education, J.J.B. would fail to make progress or regress with his communication skills because he is non-verbal.

Dr. Fleisher concluded that J.S.B. required care for the rest of his life because of his pervasive developmental disorder, his non-verbal communication skills and his mental retardation. Additionally, J.S.B. would always need twenty-four hour supervision because of his cognitive disability. Based on her observations, Dr. Fleisher recommended that J.S.B. continue residential treatment, social and behavioral therapies, special education, adaptive skills training, medical and psychiatric care and obtain future high level of care for the rest of his life.

By January 30, 2006, Dr. Fleisher reported that J.S.B. had decreased displaying "challenging" behaviors, such as flopping, leaving the area, non-compliance and self-injurious behavior. Her primary concern was that his "leaving the area" behavior had decreased. Dr. Fleisher explained that the residential setting at Devereux is most appropriate for him because it has delayed locks, alarms, and twenty-four hour monitoring, which protects J.S.B. from leaving the facility.

Furthermore, Dr. Fleisher noted that J.S.B. is at risk of being taken advantage of by higher functioning and older children because he cannot defend or obtain help for himself. Dr. Fleisher reiterated that a move into a family setting would require twenty-four hour supervision and monitoring to ensure J.S.B. would not elope from the home.

J.J.B. was placed in a specialized foster placement. On April 18, 2005, the Child Study Team of the school in which he was enrolled submitted its evaluation of J.J.B. to DYFS. Although J.J.B. was described as having a "huge amount of energy," he was observed having difficulty remaining focused on an activity. The Child Study Team recommended that he be placed in a program for students with multiple disabilities and continue occupational and physical therapy.

On April 28, 2005, the DYFS caseworker observed visitation between J.S.B., J.J.B. and their parents and siblings. The caseworker noted that J.S.B. was "very active" and was running into the hallway and other rooms. J.J.B. was observed "throwing things on the ground" and not listening to D.B. when she told him to pick up the things he had thrown.

On June 7, 2005, a pediatric progress report submitted to DYFS regarding J.J.B. indicated that he required one-on-one supervision while awake. On June 16, 2005, a speech and language evaluation by the school district in which he was enrolled described J.J.B. as cooperative with hand-over-hand guidance. The evaluator opined, however, that J.J.B.'s lack of behavioral compliance was interfering with his performance and he needed direction to focus on activities and remain in his seat. Although the evaluator explained that one-on-one assistance is needed most of the time because J.J.B. is non-verbal, she did conclude that there is a possibility that communication skills may emerge as long as his non-compliant behaviors did not interfere with his progress.

On July 1, 2005, Dr. Judy Woo of St. Joseph's Children's Hospital conducted a neurological evaluation of J.J.B. His foster mother informed Dr. Woo that J.J.B. suddenly became "extremely aggressive, violent, scratching and snatching" about four to five times a week. Dr. Woo opined that J.J.B.'s behavior might be seizure-related, especially since children with Down syndrome are at higher risk for seizures. A neuro-developmental examination conducted approximately three weeks later revealed no seizure-like activities, but J.J.B.'s inattentive and distractible behavior interfered with his performance during the evaluation. The physician recommended that the Child Study Team reevaluate J.J.B. and consider enrolling him in a full day special preschool program or a full day special kindergarten program. Lastly, the physician concluded that J.J.B. would benefit from individualized attention and intensive behavior modification, in addition to speech, language, occupational, and physical therapy. On August 16, 2005, a child health nurse recommended in a pediatric progress report that J.J.B. remain classified as medically fragile.

At trial, William Larrinaga, a DYFS caseworker, stated that the children's special needs and cognitive disabilities require them to get special care, which they would most likely not receive in a private setting. When asked about D.B., the worker explained that although D.B. was aware that her children had special needs, she never came to DYFS seeking specialized training in order to care for them.

On January 9, 2004, Dr. Ernesto L. Perdomo conducted a psychological evaluation of D.B. Dr. Perdomo found D.B. to be a rather "immature and dependent individual" with significant family problems. Dr. Perdomo recommended that D.B. continue intensive outpatient drug rehabilitation and long-term individual psychotherapy to address her "personality dynamics and dependency needs." Dr. Perdomo opined that D.B. might become easily overwhelmed by her many children and would benefit from parenting classes because her ability to effectively parent is limited by her "personality disorders." Dr. Perdomo concluded that D.B. would always have a "chaotic family prone to crises" and recommended that DYFS make sure all services were in place before returning the children to her care. Lastly, Dr. Perdomo stressed DYFS should proceed cautiously in reunifying D.B. with her children.

On January 12, 2004, the North Hudson Community Action Corporation Health Center informed DYFS that it terminated substance abuse treatment for D.B. on October 23, 2003, due to her noncompliance with its treatment program, having missed nine of twenty-nine sessions. The program recommended that D.B. obtain long-term substance abuse residential treatment as well as treatment for structure and self-discipline.

D.B. appeared before the hearing judge on January 14, 2004. When asked why her substance abuse treatment had been terminated, D.B. informed the judge she had been sick and not able to attend meetings. When questioned further as to whether she would test positive for drugs, D.B. admitted she had recently smoked marijuana.

On March 4, 2004, D.B. completed a parenting skills course through Youth Consultation Service. On April 14, 2004, North Hudson Community Action Corporation Health Center informed DYFS that D.B. had returned to their substance abuse program on February 9, 2004, and remained compliant as of April 14, 2004. On September 28, 2004, the program reported that D.B. was doing well in substance abuse treatment and continued to have clean urines.

A bonding evaluation between D.B. and J.S.B. and two of his siblings was conducted by Dr. Hasson on December 15, 2004. Dr. Hasson observed J.S.B. as non-verbal, non-responsive throughout the assessment and "difficult to manage" and noted that J.S.B. would leave the group and disappear into the bathroom.

While Dr. Hasson recommended that D.B. be reunited with R.A.B., T.J.B., D.R.B. and R.P.B. because she had made honest efforts to improve her situation, he opined that J.S.B. should not be returned home due to his "serious" and "demanding" special needs. Dr. Hasson recommended that J.S.B. should be placed in a home that could cope with his special needs.

On July 13, 2005, DYFS was notified by North Hudson Community Action Corporation Health Center that D.B. had successfully completed substance abuse treatment on May 9, 2005. On July 18, 2005, case management, compliance review and permanency orders were entered by the trial judge. DYFS's plan to reunify D.B. with two of her children was approved. D.R.B., then five and one-half, and R.P.B., then two years old, were returned to D.B. that day. T.J.B. returned to D.B. on December 23, 2005, and the oldest child returned on January 9, 2006. Thus, the trial focused on the needs of J.S.B. and J.J.B. and their mother's ability to care for them.

Dr. Hasson performed a psychological evaluation of D.B. and a bonding evaluation of D.B. and five of the six children on March 24, 2006. The focus of his evaluation was to determine the feasibility of reuniting J.S.B. and J.J.B. with their mother. In doing so, he also considered the psychological functioning of each child.

Dr. Hasson reported that D.B. presented as affable and able to easily engage people but may develop intense anger towards those who "cross her." The MMPI-2 test indicated a person who is energetic, expansive, emotionally excitable with high levels of mental and physical energy. A person with these traits may, however, assume more duties and obligations than she can complete. When unfinished tasks disappoint others, this type of person can become frustrated and irritable. Her score on one of the subscales suggested a person with an explosive temper and a propensity to abuse alcohol. The result is a person with excessive, unrestrained drive, unrealistic goals, failure to achieve goals, interpersonal difficulties, and hostility to others when she feels controlled or limits are set.

Dr. Hasson rendered the following diagnosis: Axis I, cocaine dependence, in early stage remission; Axis II, personality disorder NOS; Axis III, none; Axis IV, inadequate finances, the pending litigation, past removal of the children, interpersonal difficulties with her oldest son and the father of five of the boys. Dr. Hasson opined that this psychological profile causes D.B. to minimize the difficulties presented by her sons, singly and in combination, and overemphasize her ability to manage the children, and blame DYFS, Devereux, and foster parents for the lack of progress or behavioral difficulties of her children.

Dr. Hasson also conducted a bonding evaluation of D.B. and five of her six children. Her oldest son did not participate in the eighty minute session. D.B., J.S.B. and J.J.B. were alone for twenty minutes. Dr. Hasson noted that J.S.B. is unable to socially relate to others. When the three other boys arrived, the session became chaotic but D.B. did not become upset. Dr. Hasson opined that four adults would be required to maintain order.

In his report and at trial, Dr. Hasson stated unequivocally that J.S.B. and J.J.B. should not be returned to their mother's care. He founded his opinion not only on the special needs of these boys but also the special needs of each of the other boys. He opined that D.B. "lacks the time, commitment and stability to manage them."

Dr. Gerard Figurelli, a psychologist, also conducted a psychological evaluation of D.B. and a bonding evaluation of the family. The session involved all of the boys, although J.S.B. arrived late in the session.

Dr. Figurelli reported that D.B.'s role as a parent was appropriate throughout the session. D.B. monitored the activity, allowed for independent activity, set limits and resolved conflicts. When J.S.B. arrived, Dr. Figurelli observed positive emotional facial expressions, such as smiling by J.S.B. J.J.B. also displayed a positive emotional affect towards his mother when he arrived.

Dr. Figurelli also testified that D.B. expressed knowledge of Down syndrome and knew that she needed to learn more about it. Dr. Figurelli testified that D.B. is capable of caring for J.J.B. in her home along with the four other boys in her care. He expressed no opinion about her ability to care for J.S.B. because he cannot be placed in a family setting. Significantly, he believed that D.B. was fully cognizant of J.S.B.'s condition and needs.

In response to questions posed by counsel and the trial judge, Dr. Figuerelli explained that the capacity of J.S.B. and J.J.B. to form bonded relationships is inhibited due to their developmental limitations. Moreover, a manifestation of their developmental limitations is their difficulty to adapt to different environments. Nevertheless, Dr. Figurelli observed that J.S.B. appeared familiar with D.B. and his siblings and the greatest opportunity to obtain consistency and stability in the lives of J.S.B. and J.J.B. is to seek "the transition to their biological family as opposed to a transition to . . . an unfamiliar living arrangement."

Following a three-day trial and review of voluminous documents, including evaluations of D.B., the father, each child, and reports of D.B.'s struggle to recover and care for her children, the trial judge found that D.B. had harmed her children as the result of the withdrawal of solicitude and nurturing for a considerable period of time, as well as inappropriate housing conditions and educational and medical neglect. He also found that DYFS diligently provided services to the parents to eliminate the harm to the children and to foster reunification.

As to the second prong, the judge found that D.B. is unwilling or unable to eliminate the harm to both boys because she cannot provide adequate care for either child. He found the extent of each boy's needs, their mother's lack of full awareness of their needs, and her inability to devote the time and attention required by each child precluded her from providing suitable care for them.

Finally, he found that DYFS established the fourth prong, that termination will not do more harm than good, by clear and convincing evidence. Recognizing the limited intellectual functioning of both boys, and J.S.B.'s inability to form a parent-child bond with anyone, the judge found termination of parental rights would cause no harm and would free both boys for adoption or placement in an appropriate family setting. The judge recognized that adoption of either or both children is "highly problematical." He suggested that D.B. could seek reconsideration of his order after the passage of time, if the children are not adopted.

Parental rights, although constitutionally protected, are not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). When children are physically, emotionally or educationally neglected or abused, the State may intervene to protect the children. The balance between parental rights and the State's interest in the welfare of children is reflected in the best interests of the child standard. Ibid. The Legislature has codified this standard in a four-prong test. N.J.S.A. 30:4C-15.1a(1)-(4) provides:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division 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.

Neither prong is a watertight compartment. K.H.O., supra, 161 N.J. at 348. Neither test or prong has greater weight than any other. One standard often informs the others. The statutory standard is designed to provide a global perspective of the best needs of the children. Ibid.

As an appellate tribunal, we defer to the findings of fact of the trial judge as long as those findings are supported by the record. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We also allow substantial deference to the trial judge's assessment of expert opinion. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Here, the trial judge's findings that D.B. caused harm to her children over the years is amply supported by the record. The lengthy history of DYFS involvement with this family and the squalor in which this family lived at various times is well-documented. So, too, is the lack of attention devoted to the children, including medical and educational neglect. The neglect may have compounded to some degree the developmental limitations of both boys. The record reflects that early intervention would have been beneficial to both boys. The record also supports the finding that the neglect was precipitated by domestic violence between D.B. and T.B., and prolonged abuse of alcohol, marijuana and cocaine. The substance abuse caused D.B. to dissipate a substantial inheritance and ultimately caused the youngest child to be born drug exposed.

The trial judge's finding that DYFS made diligent efforts to provide services to D.B. to allow her to eliminate the harm to her children and to reunify the family is also well-supported by the record. The very fact that D.B. remains drug and alcohol free and has regained custody of four of her six children attests to the efficacy of the services extended to this family.

It is the State's evidence and the trial judge's findings as to the second and fourth prongs of the best interest standard that are at the heart of this case. In order to properly analyze the findings in light of this record, we must consider each child separately.

J.S.B.

J.S.B. is almost eleven years old. When first removed from his parents in June 2003, and admitted to Saint Mary's Hospital, he displayed dog-like behavior. His diagnosis was changed from autism to Reactive Attachment Disorder. He was non-verbal and displayed many features of autism (poor social interaction, poor eye contact, no expressive language skills, and occasional discomfort with tactile stimulation). When J.S.B. was transferred from Saint Mary's Hospital to Devereux, he exhibited autistic symptoms and had a lead level of 20.

Following a neuropsychological evaluation in January 2004, his full scale IQ was assessed at 63. His lead levels progressively decreased. By October 2004, staff at Devereux reported that J.S.B. had mild to moderate mental retardation and significant language delays, both receptive and expressive. This diagnosis was reiterated on February 22, 2005, June 21, 2005, and December 2, 2005. A January 30, 2006 evaluation offers an Axis I diagnosis of Pervasive Developmental Disorder. To be sure, each report refers to autistic features but Devereux has consistently described J.S.B. as mild to moderate mentally retarded since his admission.

In the December 2, 2005 psychological evaluation update, J.S.B. was found to be in the low range of adaptive skills functioning. His expressive language was assessed as extremely limited. He has no written skills but can usually indicate a preference when offered a choice by gesturing or using the Picture Exchange Communication System. In the January 30, 2006 evaluation, Dr. Fleisher opined that J.S.B. "requires residential treatment facility placement because he requires 24 hour supervision due to his challenging behaviors and adaptive skills deficit." This same report predicted that "it is unlikely that [J.S.B.] will be able to move into a family setting any time in the foreseeable future." Moreover, the facility clinician opined that J.S.B.'s behavior must improve considerably before he can be moved to a less restrictive environment. Such an environment is likely to be a therapeutic group home rather than a family setting.

In this context, framing the question of whether D.B. can eliminate harm to J.S.B. by whether she can care for him in her home is fundamentally unfair and unsupported by this record. The simple answer is that virtually no one can provide adequate care and attention to this child given his developmental deficits, his behavior, and the services required in a family setting. Indeed, the trial judge seemed to recognize this situation in his opinion. He said:

There [i]s no suggestion at this proceeding that custody of [J.S.B.] would be returned to [D.B.] today or tomorrow. At best, we could hope for is that termination not be granted, custody continue with [DYFS], the child continue at Devereux as a protective services complaint so DYFS would continue to fund the placement.

Moreover, the record provides no support for a finding that D.B. intended to remove J.S.B. from Devereux if she was awarded custody of him.

Whether D.B. should have custody of J.S.B. was not the issue before the court. The issue was termination of her parental rights to her profoundly disabled son, and she was measured in accordance with a standard, i.e., residence in her home, that cannot occur now or possibly ever.

The trial judge also found that termination would cause no harm to J.S.B.. This finding is based on J.S.B.'s inability to form a personal attachment with his mother due to his disability. On the other hand, the judge seemed to accept the opinion of both psychologists that a child deserves consistency and stability. Yet, he does not account for J.S.B.'s inability to form an attachment with anyone and specifically criticized the goal of adoption once as "highly questionable" and another time as "highly problematic." Apparently recognizing the inherent conflict, the judge suggested that D.B. could seek reconsideration of this decision if either boy is not adopted.

Recently, the Supreme Court reopened a termination of parental rights order years later and allowed a trial court to reconsider its order. In re Guardianship of J.N.H., 172 N.J. 440, 479 (2002). In J.N.H., the mother had made a remarkable recovery and the child had not been adopted. Id. at 468.

The remedy of reconsideration is available for extraordinary cases; it is not designed to be used with regularity to rectify an improvidently entered order. Id. at 473. To do so not only undermines the very goal of a guardianship proceeding but also shifts the burden of proof to the parent and dilutes the State's burden of proof. The very purpose of a termination of parental rights proceeding is to provide a permanent placement for a child. Id. at 474-75. Therefore, a court should be wary of motions for reconsideration and when appropriate, the burden is properly placed on the parent seeking relief from a prior order. Id. at 473.

Measured against this record, we hold that the State has failed to marshal clear and convincing evidence that D.B.'s parental rights to J.S.B. must be terminated. This is not to say that D.B. regains custody of this child. As noted earlier in the opinion, custody is not the issue in this case. The court must, therefore, enter an appropriate order that furthers the best interests of J.S.B. that does not include termination of his mother's parental rights at this time.

J.J.B.

J.J.B. is now seven years old. A Down syndrome child, he was also born with a cardiac defect diagnosed and surgically addressed in infancy. He has also been diagnosed as moderately mentally retarded.

J.J.B. resides in a specialized, non-adoptive foster home for children with medical needs. He has been described by several witnesses as a generally happy child, who can exhibit aggressive behavior at times. He requires constant supervision.

At the time of trial, J.J.B. had completed kindergarten. He had been enrolled in a preschool handicapped program since April 2005. He has limited verbal capacity. In August 2005, he had no reading skills. His fine and gross motor skills are delayed. He uses a spoon to eat and uses a "sippy" cup to drink. He is not toilet trained. In school, he requires an aide. A school social worker described J.J.B. as a child who "shows no fear."

In this case, the trial judge analyzed the evidence regarding the second prong, i.e., whether D.B. can eliminate the harm to the child and provide a safe and stable home, in the context of J.J.B. rejoining all of his siblings, including J.S.B. This record clearly demonstrates that such a situation would be not only daunting but also unlikely to occur. This situation is unrealistic because J.S.B. cannot rejoin his mother and siblings at this time or perhaps ever. No analysis of the evidence as to this factor of the standard has been done based on the premise of J.J.B. alone rejoining his brothers. This should be done.

We, therefore, remand for reconsideration of the order terminating D.B.'s parental rights to J.J.B. Ordinarily, we would retain jurisdiction. Here, however, slightly more than a year has passed since the completion of the trial. The parties will require current information about D.B., the children residing with her, and J.J.B. in order to fully evaluate D.B.'s ability to provide a safe and stable home for J.J.B..

The August 18, 2006 order terminating D.B.'s parental rights to J.S.B. and J.J.B. is reversed as to J.S.B. and remanded for reconsideration as to J.J.B. As to J.S.B., the court shall enter an appropriate order concerning the child's status.

 

For purposes of this opinion we have used the middle initials to distinguish the minors.

The order also terminated the parental rights of T.B., the biological father of both boys. He has not filed an appeal.

R.A.B., born on November 19, 1989, is the child of D.B. and an unnamed former partner, and T.J.B., born on March 1, 1995, is the child of D.B. and T.B.

Devereux would later reject the autism diagnosis and reclassify him as mild to moderately mentally retarded with significant language and major developmental delays.

On July 24, 2003, D.B. and T.B. were arrested and charged with aggravated assault, terroristic threats, child abuse and endangering the welfare of a child and placed in the Hudson County Correctional Facility. Although T.B. remained incarcerated for six months, D.B. was released on bail on August 1, 2003. All criminal charges against D.B. stemming from this matter were ultimately dropped. All contact with her children had to be arranged through DYFS. On August 27, 2003, D.B. was granted monthly visitation with the children.

This child is the boy born in June 2003 whose drug exposure at birth precipitated the removal of all of the children.

The trial judge discounted heavily the opinion offered by Dr. Figurelli. We recognize, as did the trial judge, that his opinion was undermined by his failure to probe D.B. about the various allegations. The trial judge's critique of Dr. Figurelli's understanding of J.S.B.'s condition, however, is unsupported by the evidence.

(continued)

(continued)

33

A-0966-06T4

RECORD IMPOUNDED

October 22, 2007