STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.G and T.S. and J.L

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0772-07T40772-07T4

STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.G.,

Defendant-Appellant,

and

T.S. and J.L.,

Defendants.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.S., V.S., AND L.L.,

Minors.

__________________________________

 

Submitted September 11, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Salem County,

Docket No. FG-17-44-06.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney

for respondent State of New Jersey Division of

Youth and Family Services (Lewis Scheindlin,

Assistant Attorney General, of counsel;

Lisa J. Godfrey, Deputy Attorney General,

on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian

for minor children (Lisa C. Castaneda, Assistant

Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.G. ("Karen") appeals from the final judgment of the Family Part terminating her parental rights over three of her minor children, A.S. ("Agnes"), born in October 2000, V.S. ("Virginia"), born in January 2003, and L.L. ("Lyle"), born in May 2005. T.S., the biological father of the two girls, did not testify or participate at trial. Lyle's biological father, J.L., executed an identified surrender of his parental rights and is, therefore, not contesting the actions taken by the Division of Youth and Family Services ("DYFS or the Division").

At the time this case went to trial, Agnes and Virginia were in the custody of their paternal grandparents and residing in New York State. Lyle was in the custody of his paternal great uncle and aunt, and was residing in the City of Vineland, in Cumberland County.

Karen argues that DYFS failed to satisfy the four prong criteria for termination under N.J.S.A. 30:4C-15.1a. She also argues that the termination proceedings were conducted in a needlessly prolonged fashion, thereby prejudicing her rights to a fair trial. After carefully reviewing the record, and in light of prevailing legal standards, we reverse.

We are satisfied that DYFS failed to present sufficient evidence to satisfy its burden of proof as to three of the four prongs codified in N.J.S.A. 30:4C-15.1a. Specifically, the Division's initial decision to remove the children from their mother's custody was factually unwarranted and legally unsustainable. As a result of this action by DYFS, the children became needlessly estranged from their mother.

The record also shows that while this case was pending judicial review, Karen took affirmative steps to address the problems that led to DYFS's intervention. Despite some early setbacks she: (1) successfully participated in an outpatient drug rehabilitation program; (2) completed a program in domestic violence awareness, which included both personal counseling and parenting classes; (3) terminated her dysfunctional and abusive relationship with Lyle's father J.L.; and (4) with her mother's support, secured steady employment and obtained suitable housing for herself and her children.

Against this backdrop, we conclude that DYFS failed to show how termination of Karen's parental rights was the only means of eliminating the potential harm posed to the children from being raised by a drug-addicted parent in recovery.

I

A

The event that prompted DYFS's involvement with this family occurred on August 4, 2005. The evidence presented by DYFS as to what occurred on this date came through the testimony of Caseworker Nicole Doldan. According to Doldan, the Division received an anonymous call on August 4, 2005, alleging that "two parents" were outside their home arguing about their use of crack cocaine.

Specifically, [the father] was arguing with [the mother] about using their money to buy crack when they had children to feed. The caller also stated that there is a young child in the home, a young boy in the home who was on a heart monitor, and they were concerned with that when the family was using drugs.

DYFS dispatched a caseworker to the home the following day, August 5, 2005. The caseworker found Lyle's father J.L. alone at the residence. According to J.L., Karen and her mother had gone to his mother's house in Franklinville, Gloucester County for a visit; the girls, Agnes and Virginia, were visiting their paternal grandparents in New York State. When questioned about the argument he and Karen had had the day before, J.L. indicated that both he and Karen had smoked marijuana before she became pregnant with Lyle, but that neither were currently using any drugs.

In the comments documenting the encounter, the caseworker noted that "[t]here was a table in the home . . . a plant was thrown off the table, and there was soil spread onto the floor and glass shattered onto the table from a plant that was thrown." By way of explanation, J.L. told the caseworker that he and Karen had had an argument the day before about his propensity for sleeping late. It was during this argument that the plant was disturbed and the glass table was broken. J.L. specifically denied that that the argument had been about drugs.

Although not clearly established from the evidence, DYFS proceeded under the assumption that Lyle had been asleep in one of the upstairs rooms during the August 4 argument. Other than the disturbed plant and broken glass, the caseworker found nothing inappropriate about the residence.

The caseworker contacted Karen at J.L.'s mother's house that same morning, and arranged to meet with her at DYFS's local office that afternoon. Karen, J.L. and his mother responded to the appointment. At this meeting, Karen readily admitted she and J.L. had been arguing on the porch the day before, but denied that the argument had been about drugs. When asked directly whether she uses illicit drugs, Karen equivocated at first; soon after, however, "she became upset and began to cry and admitted that she had used crack [for the first and only time] the weekend before this whole allegation came about." The children were not with her at the time she used the drugs.

Based on this information, the caseworker directed Karen to submit to urine testing to determine whether she still had illicit drugs present in her system. Karen complied with the testing that same day. (The test results would not be available until August 19, 2005.) The caseworker also directed Karen to sign a "Safety Protection Plan," whereby she agreed to reside with J.L.'s mother, while J.L. agreed to reside by himself in the couple's apartment at Penns Grove.

Under this arrangement, the girls would continue to reside with their paternal grandparents in New York State, and Lyle would reside with Karen and his paternal grandmother. DYFS also referred Karen to Services to Overcome Drug Abuse Among Teenagers (SODAT), an outpatient treatment agency.

It must be emphasized that at this point, the only basis for concern was Karen's admitted drug use. Both parties denied that the argument leading to the broken plant was indicative of a domestic violence problem. DYFS did not investigate this issue further, or review law enforcement or judicial records to determine whether there had been a history of domestic violence. Despite the absence of evidence of domestic violence, DYFS concluded that a "Safety Protection Plan" was needed.

The Safety Protection Plan is accompanied by a "Safety Assessment" worksheet, which lists fifteen separate categories or "factors" of "behaviors or conditions that are associated with a child being in immediate and/or impending danger of serious harm." Instructions direct the caseworker completing the form to identify the presence or absence of each factor by circling "yes or no." Here, we have indicated the caseworker's response by emphasizing the choice she made. Thus, where "No" or "Yes" was circled as the response, we have expressed it as No or Yes. The caseworker deviated from this format only with respect to factors 7 and 11.

Referral Date: 8/5/05 Assessment Date: 8/5/05 Time: 2:00 a.m/p.m. Conducted by _x_DO ___ SPRU

Section 1. Safety Factor Identification

1. Yes No Caregiver leaves child with a person unwilling to provide care.

2. Yes No Child is fearful of caregiver(s), other family members, or other people living in or having access to the home.

3. Yes No Caregiver is verbally hostile when talking to or about the child and/or has extremely unrealistic expectations for the child's behavior.

4. Yes No Caregiver caused serious physical harm to the child or has made a plausible threat to cause serious physical harm.

5. Yes No Caregiver's explanation for the child's injury or physical condition is inconsistent with the nature of the injury or condition.

6. Yes No Caregiver refuses access to the child, or there is reason to believe that the caregiver is about to flee, and/or the child's whereabouts cannot be ascertained.

7. Yes No Caregiver has not, will not, or is unable to provide care and supervision necessary to protect the child from potentially serious harem, including harm from self (child) or other persons living in or having access to the home. [Here, rather than indicating "Yes" or "No," the caseworker wrote the letter "R" on the margin of the page. No explanation is given for this response. We surmise that the letter "R" stands for "Reserved," meaning that the worker does not have sufficient information to answer]

8. Yes No Caregiver has not, will not, or is unable to meet the child's immediate needs for food, clothing, shelter, and/or medical or mental health care.

9. Yes No Child sexual abuse/exploitation is suspected and circumstances suggest that child safety may be an immediate concern.

10. Yes No The child's physical living conditions are hazardous and immediately threatening.

11. Yes No Caregiver's behavior is violent or out of control. [Here, although "No" was circled as the response, the letter "R" was also written on the outside of the number.]

12. Yes No Caregiver's drug or alcohol use seriously affects his/her ability to supervise, protect, or care for the child.

13. Yes No Caregiver's involvement in criminal activity seriously affects his/her ability to supervise, protect, or care for the child.

14. Yes No Caregiver's emotional stability, developmental status, or cognitive deficiency seriously impairs his/her ability to supervise, protect, or care for the child.

15. Yes No Other factors that place the child in immediate and/or impending danger of serious harm (specify): DOMESTIC VIOLENCE IN THE HOME

Based on the Safety Assessment worksheet, the only risk factor applicable to Karen was her admitted substance abuse problem. The applicability of this factor, however, rests upon evidence that Karen's illicit drug use "seriously affects her ability to supervise, protect, or care for" the children. Based on the caseworker's description of Karen's home, together with her assessment of the children's physical and emotional condition, the record does not support the applicability of risk factor 12.

Furthermore, although domestic violence is also identified as a relevant risk factor, there was little, if any, evidence at that time to support such a finding. Even if the verbal argument between Karen and J.L., and the spilled soil and broken glass table are characterized as incidents of domestic violence, there is no evidence that: (1) the children were present at the time this occurred; or (2) Karen was the responsible party. Indeed, the only evidence strongly suggested that Karen was the victim of J.L.'s aggression. As such, DYFS should have referred Karen to local resources to assist victims of domestic violence, and apprised her of her rights under the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 to -35.

B

Karen underwent a second urine screen and a substance abuse evaluation on August 10, 2005. Based on the results of the evaluation, she was not recommended for inpatient treatment, but was registered into an "early intervention program."

On August 18, 2005, Karen notified DYFS that she and her children were moving back into her apartment at Penns Grove with J.L. That evening, a caseworker made an announced visit to the apartment. Caseworker Doldan gave the following testimony with respect to what occurred.

DEPUTY ATTORNEY GENERAL: Did the Division worker looking at the physical plant of the home have any concerns with regard with the placement itself or the children living in that place itself?

A. No.

Q. And at that point in time, what, if any, services did the Division hope to put into the family, into the home specifically to address the concerns that which led to the safety protection plan?

A. Family Preservation Services through Robins Nest.

Q. All right. Now, Would you describe to the Court briefly what Family Preservation Services does by way of referral? In other words, when they provide services to the home, what sort of services they're providing?

A. It's an in-home therapeutic service. It addresses - it will work on all the issues of the allegations and it will help the family from anything to budgeting, any kind of social services in the community. It works to strengthen the family and help them, you know, get back together and remain in the home.

On August 19, 2005, DYFS received the results of Karen's August 5 urine test, which indicated a positive reading for cocaine and benzodiazepines (Valium). Based only on this test result, DYFS determined to remove the children from Karen's and J.L.'s care and custody. Specifically, DYFS made the following allegations in support of the order to show cause seeking the removal of the children.

The defendant(s) have knowingly, willingly and voluntarily admitted to the following facts: On 8/5/05, [Karen] engaged in one time use of cocaine, during which [Lyle] was asleep in the home at the time. [Karen's] other two children were not in the home at the time. [Karen] did test positive for cocaine on 8/5/05. On 8/10/05, [Karen] did go to the Family Center for Family Services for evaluation of substance abuse treatment.

[J.L.] also engaged in use of cocaine on 8/5/05, on which date [Lyle] was asleep in the home at the time.

This behavior placed the child's physical, mental and emotional welfare to be in imminent danger of being impaired due the parents failure to exercise a minimum degree of care constituting in abuse and or neglect, in violation of N.J.S.A. 9:6-8.21(c)4.

When the Division representative reported to remove the children on August 19, 2005, she informed Karen of the results of the drug test. Karen admitted to having used drugs over the weekend of July 20, 2005, approximately one month before submitting the urine sample. She denied using drugs on a regular basis.

When the caseworker removed all three children from Karen's custody, she took them for a physical examination at "First Step Pediatrics". Virginia, the middle child, had "severe infections in both ears." She was treated with antibiotics. The physical examination also confirmed that Lyle, the infant, had been born premature and required an apnea monitor. The other child was in fine health. All three children were placed with J.L.'s mother in Franklinville.

On August 22, 2005, DYFS received the results of Karen's August 10 urine screening. The test was positive for benzodiazepines (Valium). The next day, DYFS filed a formal Title 9 action against Karen and J.L., alleging that their actions amounted to abuse or neglect of the three minor children. That same day, Karen submitted to a third drug screen, which eventually tested positive for cocaine.

C

DYFS records indicate that Karen's first substance abuse evaluation took place on August 10, 2005. Based on Karen's statement that she had smoked marijuana only on two prior occasions, and had tried cocaine for the first time in the past week, the DYFS evaluator indicated that Karen met the American Society of Addiction Medicine ("ASAM") criteria for a recommendation to Level 0.5 Early Intervention Education Program.

By letter dated August 15, 2005, the DYFS affiliated Center for Family Services ("CFS") referred Karen to SODAT "for treatment at Level 0.5." Thereafter, the record shows Karen reported to SODAT on August 23, 2005, and submitted to urine testing. By letter dated September 19, 2005, SODAT formally reported to DYFS that the test results received on September 8, 2005, indicated that Karen had tested positive for cocaine. The letter makes no reference that any further action was required from Karen.

Thereafter, Karen reported to SODAT for additional urine testing on two separate occasions: On September 6, 2005, and October 17, 2005. By letters dated September 27, 2005, and November 10, 2005, respectively, SODAT advised DYFS that Karen had reported to as directed and had tested negative, on both of these dates, for the presence of any illicit substances or alcohol.

From November 10, 2005, the date of SODAT's last letter to DYFS, until February 2006, the record is unclear as to what, if anything, took place with respect to Karen's substance abuse treatment. The next significant event occurred on February 21, 2006, when Karen was again sent to be evaluated for services by the CFS. There were two significant findings made by this evaluation. First, Karen again submitted to urine testing. On March 4, 2006, CFS received the laboratory results indicating that she had tested positive for cocaine.

The second problem noted in the February 21, 2006 CFS evaluation concerned Karen's financial difficulties. The counselor who conducted the evaluation made the following notation in the section denoted "Employment Status:"

[Karen] has completed the 9th grade. She does not have a high school diploma. She is currently not enrolled in school or a job training program. She does not have a valid driver's license. She does not have an automobile available. A friend, romantic partner or family member contributes to most of her financial support. She is unemployed and actively looking for work. She has held a full-time job. She was not paid even a single day for working in the past 30 days. She does not have a professional trade or skill. She did not receive any Public Assistance. In the past 30 days, she experienced 30 days of employment problems. In the past 30 days, she was considerably troubled or bothered by these employment problems. She feels counseling for these employment problems is considerably important now.

COMMENTS: Client[']s last full time job was at Dollar General in Pennsville, NJ. Client[']s paramour's mother contributes to her support.

Despite these documented financial difficulties, the only action taken by the CFS (as an agent of DYFS) was to once again refer Karen to SODAT. This time, however, the evaluator found that she met the ASAM criteria for "Level II Intensive Outpatient Treatment." The record shows that Karen attended and participated in the outpatient treatment program offered by SODAT from March 20, 2006, to April 6, 2006, when she decided to relocate to New York State to live with her mother.

Thus, from this record, we can find no evidential support for the trial court's findings that "[f]rom August 23, 2005, to November 29, 2005, [Karen] did not cooperate with services. She did not participate with SODAT." The only evidence showing Karen's failure to avail herself of services offered by DYFS involved a time period from November 10, 2005, to February 21, 2006. This coincided with a significant deterioration of Karen's financial situation, and a commensurate decline in her emotional wellbeing. By her own admission, during this time period she was living a transient lifestyle, moving from motel to motel, and unable to secure meaningful employment. This led to bouts of depression and a relapse into drug abuse.

D

Karen made immediate arrangements to secure drug treatment, parenting, and domestic violence counseling after relocating to New York State to reside with her mother. The record shows that Karen immediately apprised DYFS of this situation. In response, the Division requested its New York counterpart to conduct a formal home study "to see if the living conditions and circumstances of the natural mother, [Karen] are appropriate for family reunification."

The report submitted by the New York authorities as to Karen's mother's residence described an almost bucolic setting. The home "sits on family land in a country setting. There are two other residences that are owned by [Karen's mother], one is rented. [Karen] will be able to move into that house eventually. The houses are well maintained."

With respect to her financial situation, the report noted that Karen would only be able to earn $50 per week working at her mother's computer repair business. Although she obviously required some public assistance, the report noted that she had already secured Medicaid for herself and her son; she was also "planning to get a GED." As to her substance abuse problem, the report noted that she was then currently receiving outpatient treatment at Confidential Help for Alcohol and Drugs ("CHAD"); she was also receiving domestic violence counseling.

The New York report concludes with the following recommendations:

Family reunification is recommended as [Karen] is progressing with her services, has completed a Domestic Violence Education Class through Vera House, our local authority and support for women involved in DV. She is successfully involved with a rehab program here called CHAD and has the support of her counselors. She appears to be cooperative and willing to accept CPS [Child Protective Services] involvement, supervision and assistance. The child she cares for now appears to be very well cared for and happy. She has appropriate housing and plenty of family support. [Karen's mother] is willing to be the backup and support for the children at any time it is needed. She is very appropriate and knowledgeable. She completed the Foster Care Family Services Pre-Service for Foster Care in January of 2006. She has no impediments in helping care for the children keeping them safe and well cared for. If anything, she appears to be a great benefit to her grandchildren.

By the start of the termination trial in January 2007, Karen had completed both the substance abuse treatment offered by CHAD, and the domestic violence counseling available through Vera House. She had also terminated her tumultuous relationship with J.L, and had been drug-free since March 29, 2006. She gave the following description of her state of affairs since abstaining from illicit drug use:

I have a stable home. I've been . . . seeking employment outside my mother's home to have a separate part-time job where I can have my at-home job and a part-time job out of the home. I have completed my rehab, and I've been focused on trying to see the kids as much as possible. The goal has been trying to get them back.

II

Although the court heard the testimony of only two party-sponsored psychologists, the report of a third, and presumably neutral, court-appointed psychologist was also admitted into evidence. The trial court thus received a total of three expert opinions on the questions of Karen's parenting skills.

The court, however, referred only to and considered the opinions offered by the two psychologists who testified at trial. Notwithstanding this omission, because her report was admitted into evidence without objection, we will consider and discuss the opinion given by the court-appointed psychologist.

Pursuant to an order of the court dated February 14, 2006, Karen submitted to a parenting assessment and psychological evaluation that took place on April 17, 2006, at Rowan University's Child and Family Assessment Clinic; Dr. Amy Gulino performed the evaluation and authored the report that was admitted into evidence at trial.

After reviewing all of the information available to her at the time, and based on her personal interactions with Karen, Dr. Gulino made the following recommendations:

Based on this evaluation, it is believed that [Karen] has difficulty providing her children with a stable and safe home life that provides for all of their needs. Her passive and dependent personality traits place her at higher risk of identifying risky or unhealthy choices involving her children. At the same time, she conveyed an understanding of age-appropriate developmental needs and forms of discipline. Should she be provided with the necessary supports in order to learn how to effectively ensure her children's safety, [Karen] may be able to gradually assume greater responsibility as her children's caregiver. Based on these findings, the following recommendations are presented:

1. Given that [Karen's] mother [Ms. K.] has expressed an interest in supporting her daughter in raising her children, it is strongly recommended that, following the appropriate evaluation of Ms. [K.]'s home and parenting abilities, the children be placed under Ms. [K.]'s care. As [Karen] currently resides with her mother, Ms. [K.] could then assist her daughter with raising the children as [Karen] proceeds to establish healthier ways for her to be able to provide for herself and her children.

. . . .

4. [Karen] will also require weekly, individual therapy in order to address the basis of her poor decision making regarding her children. Much of her difficulties are based on her negative self-image, dysth[y]mia, feelings of being overwhelmed, limited social supports, and previous abusive relationships. While [Karen] is likely to present with a passive approach to individual treatment as a form of avoidance, it is critical that her therapist attempt to work towards identifying her underlying fear of rejection as a primary influence in her life decisions.

5. It is highly recommended that [Karen] attend parenting classes as a means for her to establish a firm understanding of appropriate parenting techniques. Additionally, she would benefit greatly from educational components that focus on ways to manage discussions with the children surrounding their absence. As well, she would benefit from learning age-appropriate and effective means for discipline.

We must emphasize, that Dr. Gulino made these recommendations before Karen's relocation to New York State to live with her mother. Thus, by moving to New York State, Karen responded to most, if not all of Dr. Gulino's most pressing concerns.

Dr. Joanne M. Schroeder testified on behalf of DYFS; Dr. Kenneth Goldberg appeared for Karen. Each witness was called upon to evaluate Karen and the children, and opine on the question of bonding. Each witness offered divergent opinions as to Karen's ability to safely care for her children; the experts also assessed the extent, if at all, that each child had bonded with his or her respective caregiver.

After reviewing DYFS's records, and based on a single interview conducted on October 18, 2006, Dr. Schroeder offered the following opinion with respect to Karen's ability to safely parent her children.

[Karen] appears to have stopped using drugs. Urine screens were reportedly negative, and she has attended outpatient rehabilitation in New York.

On the other hand, [Karen] minimized her history of domestic abuse. She brought men into her children's lives who mistreated her, and was reportedly dating someone who is also involved with DYFS at the time of this evaluation. Although she apparently attended domestic violence education, she continues to have little insight into this pattern of behavior and how it affects her and her children. Results of the evaluation showed that [Karen] minimizes problems and therefore will have trouble addressing them on her own. She sees no need for major psychological changes in herself, despite domestic violence education and her current problems with DYFS. The passivity shown on her interaction with the girls indicates that she would not be able to address their emotional needs and sense of loss should they come home to her after being in placement with their grandparents.

With regard to the girls, [Karen] did not see them from December 2005, when they were placed with their paternal grandparents in New York, until April 2006. Thereafter, she saw them only weekly at the most for an hour at a time, though she was able to visit more often. The bonding evaluation showed that a secure attachment between [Karen] and both of the girls was not present. They interacted with her minimally, then left her to be with the paternal grandparents and did not come back. [Karen] did not attempt to reengage them. From a psychological standpoint, termination of the relationship between [Karen] and the girls would not do more harm than good.

With regard to [Lyle], [Karen] saw him only three times between April 2006 and July 2006. [Karen] was then put on bed rest due to her pregnancy. She saw him only two times thereafter, in connection with evaluation for court. These interactions would not be enough to maintain an attachment for such a young child. [Karen] showed good skills while interacting with [Lyle] during the bonding evaluation, but he did not know her and was not attached to her. From a psychological standpoint, termination of the relationship between them would not do more harm than good for [Lyle.] (Emphasis added.)

Dr. Goldberg was retained by defense counsel to evaluate Karen and the children. Specifically, he was to opine on Karen's abilities as a parent, and on the question of bonding. Toward that end, he also evaluated the foster parents' interactions with the children, in order to assess the level of emotional attachment they had formed during the time they had been together.

In his report dated November 3, 2006, Dr. Goldberg indicated that he was primarily concerned with three separate questions: (1) to ascertain what had been done prior to his evaluation, in order to determine whether it comported with his views as to what should have been done; (2) whether Karen was able to take care of her child's safety; and (3) what needs to be done to advance and protect the children's best interests.

With these three questions in mind, Dr. Goldberg opined as follows:

I disagree with the approach DYFS used with [Karen]. It appears likely that the children would be home with her now if DYFS had taken different actions. Referring to the principles I outlined above, I believe that the case was not resolved because of the following:

The children were removed after a positive drug screen came back. The results were predictable as [Karen] had already acknowledged her drug use. She described drug use to a very limited degree. Her claim appears supported by the NJ Safety Assessment that placed her at the lowest possible level of drug involvement and treatment recommendations. DYFS had already offered Family Preservation Services. The children had been left in the mother's care for several days despite the fact that it was known that she had used drugs.

Dr. Goldberg offered the following opinion with respect to Karen's ability to safely parent her children:

There is absolutely no reason to question [Karen's] capacity to take care of her children. Whether or not she is a perfect mother, she is certainly a good enough mother. She attends to the basics and she is not using drugs. The removal followed early experimentation. There is no record of her birthing children while on drugs. The children were not in her presence at the time she first used.

There is a history of postpartum depression. She has a tendency to be shy and private. There is no evidence that she has mental health problems of large enough magnitude to cause us to question her capacity to parent.

There is a question about domestic abuse. Concerns were raised about her relationship with [J.L.] and whether it would have some impact on the children. In addition to having ended that relationship, the evidence points away from the notion that [Karen] is inclined to form relationships of a destructive nature. Of three lifetime partners, two are characterized as substantially different in personality and level of risk. She has never been mistreated by another man. She was not the victim of abuse as a child. Psychological testing does not show personality characteristics that would be commonly found in people drawn to self-destructive relationships. Further, [Karen] has had access to domestic violence counseling. Putting this all together, the question of domestic violence should be considered resolved.

Dr. Goldberg thus concluded that termination of Karen's parental rights was not warranted. He recommended DYFS close the case, and return the children to their mother. With respect to Lyle, he recommended that the court appoint a mediator to facilitate an amicable resolution of the conflicts existing between Karen and Lyle's current caregiver, his paternal uncle.

In evaluating the probative value of the expert opinions received into evidence, the trial judge did not address Dr. Gulino's report or recommendations. Addressing only the conflicting points of view expressed by the two expert witnesses who testified, the trial judge found Dr. Schroeder's opinion favoring termination more persuasive. The court made the following findings in support of its conclusion:

Dr. Schroeder's rational and well-reasoned testimony that rehabilitation from addiction requires an ability to stay away from those causes of addictive behavior, such as people, places, and things, is compelling. [Karen] has shown little understanding of what caused her addiction. That, coupled with her lack of credibility, bolsters the court's conviction.

This Court finds that Dr. Schroeder's evaluations were well reasoned, supported by the evidence, and were more believable than those of Dr. Goldberg.

Dr. Goldberg's testimony, while he was sincere, did not help the court. In his evaluations, it was surprising that he attempted to evaluate of [sic] the bond between [Karen] and the children and not the bond with the children and their present caregivers. Yet, Dr. Goldberg made his recommendations at the time without the comparison.

The subsequent comparison indicated that Dr. Schroeder's observations were correct. His suggestion that the matter be mediated is not helpful to the Court. The Court rejects his opinion. A professional must help the Court analyze the relationship between the children and their parents and their present caregiver. Without that detailed analysis, this opinion is flawed.

It is also apparent that Dr. Goldberg did not have all of the information available, and did not test the particularized facts that were available. He assumed [Karen's] version of events without a critical eye that must be present in any professional evaluation.

The Court therefore finds by clear and convincing evidence that [Karen] is either unwilling or unable to eliminate the harm facing her children due to inabilities to address her serious substance abuse and personality defects by failing to internalize the principles that are necessary to prevent further drug abuse and instability in her life. She is likely to repeat those situations that caused her and her children to be in unstable homes with violent men and be exposed to drugs. The Court is also convinced from the testimony of Dr. Schroeder, that any further delay in providing true permanency for the children will harm these children. These children are securely attached to their present caregivers.

In reaching these conclusions, the court completely disregarded, without explanation, the recommendations made by its own court-appointed psychologist. That expert, Dr. Gulino, recommended a path toward family reunification that was ultimately followed by Karen and her mother. She secured a stable home environment, where the children can reside under one roof; Karen's mother is available for support; she completed drug and domestic violence counseling; she ended the abusive and dysfunctional relationship with J.L.; and, most importantly, she had remained drug-free for over a year, including up to the time this matter came for trial before the Family Part.

III

Before we address the legal issues raised by the parties, we will first set out the bedrock principles governing our appellate oversight. The right of a parent to be with and raise her child is recognized and protected by our federal and State constitutions. Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).

Permanently severing the parent/child relationship is "among the most 'severe and . . . irreversible' forms of state action. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (quoting Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1992)). Thus, the government's power to intrude into, and ultimately terminate this constitutionally protected right must be exercised with great care, and only "[w]hen the safety and welfare of a child become[s] . . . irredeemably jeopardized by parental abuse or neglect." Id. at 102 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

In reviewing a trial court's decision to terminate parental rights, we must determine whether the trial judge's findings of fact are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). The review process is, of necessity, extremely fact sensitive, requiring that each particularized piece of evidence match up to the specific circumstance for which it is offered. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).

In this process, we are mindful that the burden of proof in termination of parental rights cases never shifts to the parent. At all times during this process, DYFS remains obligated "to demonstrate by clear and convincing evidence 'that the risk of serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." Id. at 270 (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

A parent's constitutional right to raise her or his child continues to enjoy legal protection, even after the child is removed from the custody of the parent, and is placed in foster care. In re Guardianship of J.C., 129 N.J. 1, 9 (1992). In short, there are no presumptions of parental unfitness, In re Adoption of Children by L.A.S., 134 N.J. 127, 133 (1993), and all doubts must be resolved in favor of the parent, and against termination of parental rights. In re Adoption of D., 61 N.J. 89, 93 (1972).

With these fundamental principles as our guide, we will now address the issues raised by the parties. To terminate parental rights, DYFS must demonstrate the following four statutory elements by clear and convincing evidence:

(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.

[N.J.S.A. 30:4C-15.1(a); DYFS v. M.M., supra, 189 N.J. at 280.]

In the interest of clarity, we will examine each prong individually, mindful, however, that they are not "discrete and separate," but "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re K.H.O., supra, 161 N.J. at 348.

Prong One

This prong requires the trial court to find, by clear and convincing evidence, that the safety, health or development of the three children in question "has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "Rather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004) (citing K.H.O., supra, 161 N.J. at 348).

DYFS, of course, is not obligated to wait until a child is actually irreparably injured or harmed by parental inattention or neglect before acting. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986)).

In D.M.H., supra, DYFS successfully terminated the parental rights of the children's biological father due to his "failure to provide any care and support for his children result[ing] in harm that endangered their welfare." Id. at 377. Despite knowing about the neglect and inadequate care the children were receiving, the father in D.M.H. did not help in "securing adequate housing or providing care for the children." Id. at 379.

We are satisfied that DYFS did not present sufficient competent evidence to meet its burden of proof as to prong one. At the time DYFS responded to the anonymous call concerning an oral dispute between Karen and Lyle's father J.L. in August 2005, the only basis for intervention was Karen's admitted drug use. DYFS did not discover any evidence that the children had been, or were in danger of being harmed or neglected. The Division representative described Karen's apartment as clean and orderly; no evidence was found that the children were malnourished, in immediate need of medical attention, or unsupervised.

It must be emphasized that, despite her initial reticence, Karen voluntarily disclosed her drug problem to DYFS, and agreed to submit to its supervision. Her cooperation with DYFS at the early stages of this case is undisputed. She agreed to submit to drug testing and executed a Safety Protection Plan, requiring the girls to reside with their paternal grandparents, while she and Lyle resided with J.L.'s mother.

As discussed ante, at 6-8, the Safety Assessment worksheet completed by DYFS as part of the Safety Protection Plan indicated fifteen separate categories or bases for possible intervention. The only area of concern noted was Karen's admitted drug use. This category describes the problem as: "Caregiver's drug or alcohol use seriously affects his/her ability to supervise, protect, or care for the child." However, the record is devoid of any evidence that Karen's drug use "seriously affected" her ability to parent her children.

There is no doubt that illicit drug use by a caregiver presents a serious problem warranting DYFS's intervention. A parent's ability to provide a safe and secure environment for his or her child is undeniably compromised by an addiction to, or even experimentation with illicit drugs. That being said, each case must be carefully considered and judged on its own facts and circumstances.

The method of governmental intrusion into the parent/child relationship, based solely on a parent's admitted or otherwise documented illicit drug use, must be carefully tailored to respond to the unique characteristics of the situation at hand. A heavy-handed, "one size fits all" approach is not acceptable, and may indeed be counterproductive. DYFS must choose a course of action that considers both the need to protect the child, and the parent's right to be with and raise his or her child. In some cases, doing too little may expose the child to an unacceptable risk of harm or neglect. In other scenarios, doing too much may needlessly intrude into and possibly violate a parent's constitutional rights.

Given the circumstances presented here, we are satisfied that DYFS's response was unwarranted. The following chain of events illustrates the point. During the initial meetings in August 2005, the Division caseworker had no reason to conclude that the children were in any direct and immediate danger.

The event that led DYFS to seek judicial intervention by way of an order removing the children from Karen's custody and care occurred on August 19, 2005. The day before, August 18, 2005, Karen notified DYFS that she was returning to New Jersey to live with her children at J.L.'s apartment. The caseworker visited the apartment later that evening and found no reason for alarm. The apartment was clean, and orderly, and the children were well cared for. There was no indication that Karen's illicit drug use had intensified, or that she was unwilling to follow through with outpatient treatment.

The Division filed an emergent Order to Show Cause with the Family Part the following day seeking the removal of the children. DYFS alleged the following facts in support of its application.

The defendant(s) have knowingly, willingly and voluntarily admitted to the following facts: On 8/5/05, [Karen] engaged in one time use of cocaine, during which [Lyle] was asleep in the home at the time. [Karen's] other two children were not in the home at the time. [Karen] did test positive for cocaine on 8/5/05. On 8/10/05, [Karen] did go to the Family Center for Family Services for evaluation of substance abuse treatment.

As this passage illustrates, this cause of action was based exclusively on facts known to the Division as early as August 5, 2005. The results of the urine testing only confirmed what Karen had candidly admitted, i.e., that she used cocaine and Valium sometime during the later part of July 2005. In short, the Division's cause of action was not prompted by any newly discovered evidence. We are thus at a loss to explain what prompted the Division to seek such extreme measures for a case that, up to that point, appeared well-managed and moving forward with a service plan that monitored and protected the children, while offering meaningful services to the drug-involved parent.

Turning now to the question at hand, under Prong One, N.J.S.A. 30:4C-15.1(a)(1), DYFS is required to prove, by clear and convincing evidence, that the safety, health or development of the three children in question "has been or will continue to be endangered by the parental relationship." Based on the record before us, we hold that DYFS failed to meet its burden of proof. As a consequence, we reverse and vacate the trial court's decision ruling otherwise.

Prong Two

Under N.J.S.A. 30:4C-15.1(a)(2), the trial court must evaluate whether the parent is "unable or unwilling to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child," and whether a delay in permanent placement would add to the harm. See also DYFS v. M.M., supra, 189 N.J. at 283.

Here, the trial court made the following factual findings with regard to the second prong:

In this case, except for the fact that [Karen] has not tested positive for drugs since March 2006, no other insight appears in her testimony as to her ability to take care of these children. She does not have a stable home. She does not have a job. She appears to have no insight into the causes of her addiction. She has entered into a relationship with a man who appears similar or identical to the other two abusers in her life. She has not attended any AA meetings. She has not attended any NA meetings. She has not resumed individual counseling. She does not have a sponsor for AA or NA. . . .

Dr. Schroeder's rational and well-reasoned testimony that rehabilitation from addiction requires an ability to stay away from those causes of addictive behavior, such as people, places, and things, is compelling. [Karen] has shown little understanding of what caused her addiction. That, coupled with her lack of credibility, bolsters the Court's conviction.

The record simply does not support the trial court's findings. In fact, there is ample evidence of Karen's successful efforts to address her predicament. When DYFS first became involved in her life, Karen voluntarily agreed to a host of well-documented measures that immediately responded to the situation. She agreed to have the girls stay with their paternal grandparent, while she and Lyle resided with his paternal grandparent; she willingly submitted to urine testing, and agreed to inpatient treatment and overall DYFS supervision; and she completed drug and domestic violence counseling.

The trial court's characterization of Karen's drug-free status as simply "not tested positive for drugs since March 2006," overlooks and undervalues the fact that her current state of sobriety is the direct result of the successful completion of a multitude of counseling services and family support she received through her mother.

With respect to Karen's alleged unwillingness to participate in follow-up services, such as Narcotic Anonymous (NA) or Alcoholics Anonymous (AA), the trial court's findings are directly undermined by the following testimonial evidence given by Karen on April 16, 2007, one month after completing CHAD:

Q. . . . Can you tell us what if any plans you have made at this time and steps with respect to NA and AA meetings?

A. Yes. There is an NA meeting in Auburn where a lot that's close to the facility I went to for treatment that a lot of the girls go to for, that used to be my IAP [sic] group, that I think I'd be comfortable going to. It's on Thursday nights at six.

Q. Now, is it correct that you have not yet started that NA and AA?

A. Not yet.

Q. When do you anticipate that you would start it?

A. Next week.

Q. . . . You finished CHAD what was the date of that, please?

A. March 21st.

Q. And today is April 16th?

A. Yes.

Q. Are you able to tell us why you have not attended those Thursday meetings as yet?

A. Yes. I had to visit my daughters.

In this light, we are satisfied that the record does not support the trial court's findings that Karen was unable or unwilling to eliminate the harm facing her children or is unable or unwilling to provide a safe and stable home for them. DYFS thus did not meet its burden of proof as to N.J.S.A. 30:4C-15.1(a)(2).

Prong Three

Under the third prong, the trial court must consider whether DYFS has made "reasonable efforts to provide services to help the parent correct the circumstance which led to the child's placement" and whether there are "alternatives to termination of parental rights." DYFS v. M.M., supra, 189 N.J. at 285 (quoting N.J.S.A. 30:4C-15.1(a)(3)). "'Reasonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." Id. at 281.

For the reasons set forth ante, we are satisfied that DYFS did not meet its burden of proof as to this Prong.

Prong Four

Under the fourth prong, the trial court must "assess whether termination of parental rights will do more harm than good." DYFS v. M.M., supra, 189 N.J. at 286 (citing N.J.S.A. 30:4C-15.1(a)(4)). "Inherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship.'" N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.), certif. denied, 180 N.J. 456 (2004) (citing In re J.C., supra, 129 N.J. at 26).

Dr. Schroeder was the only expert opinion in favor of termination. Based on a period of only four months, he concluded that the children had reached such a level of emotional attachment to their respective caregivers, that it would cause them more harm than good to return them to their mother's custody. The trial court accepted this opinion.

We need not reach this issue, however, because we are satisfied that the record does not warrant the termination of Karen's parental rights. We also see no impediment to the children maintaining a healthy, open and continuous relationship with their grandparents, aunts and uncles. These family members stepped into the breach and provided invaluable care for these children at a time they most desperately need it. While their mother was temporarily deprived of her legal rights to their custody, these children were given the kind of loving care and attention we hope all children receive in such an hour of need.

Conclusion and Recapitulation

 
Based on the record before us, we hold that DYFS failed to prove, by clear and convincing evidence, that termination of the parental rights of the woman we have referred to here as "Karen" was legally warranted. We thus reverse and vacate the judgment of guardianship entered by the Family Part.

Reversed.

"Karen" is a fictitious appellation used here to preserve defendant's anonymity.

Karen's fourth child C.G., born in September 2006 is not part of this case.

All of the names used to identify the children are fictitious.

Doldan was not the caseworker who responded to investigate the anonymous call. Thus, her answers to questions posed by counsel consisted, entirely, of reading into the record the log entries made by the caseworker who actually responded to the scene.

SODAT provides drug/alcohol outpatient services for adults, adolescents and "children of substance abusers." The services it provides include "outpatient addictions counseling . . . employee assistance programs . . ., parenting skills training, [and] family services programs." SODAT Home Page, http://www.sodat.org (last visited October 15, 2008).

This document has been redacted to preserve the parties' anonymity.

The record does not contain information describing the services available through this program.

In Level 0.5 the patient is assessed as being at minimal or no risk of severe withdrawal syndrome. David Mee-Lee, M.D., Overview of the ASAM Patient Placement Criteria, Second Edition Revised (ASAM PPC-2R), June 9, 2005, http://coce.samhsa.gov/ cod_resources/PDF/ASAM Patient Placement Criteria Overview 5-05.pdf.

Under ASAM guidelines, Level II indicates that "[t]he patient has no signs or symptoms of withdrawal, or his or her withdrawal needs can be safely managed in a Level II.1 setting." www.asam.org/PatientPalcementCriteria.html.

We use the word "relapse" because the record shows that she had tested negative on two prior occasions.

This refers to Karen's fourth child who is not a part of this case.

The treatment offered by CHAD began in May 2006, and ended on March 21, 2007. The treatment period was delayed due to a medical condition requiring bed-rest during the latter stages of her pregnancy with her fourth child, a boy born in September 2006.

(continued)

(continued)

40

A-0772-07T4

RECORD IMPOUNDED

October 24, 2008