DIVISION OF YOUTH AND FAMILY SERVICES v. M.D.C. and R.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5579-07T45579-07T4

A-5655-07T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

M.D.C. and R.C.,

Defendants-Appellants.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF B.M.C., a minor

_______________________________

 

Argued October 20, 2009 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-19-08.

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

Durrell Wachtler Ciccia, Designated Counsel, argued the cause for appellant R.C. (Yvonne Smith Segars, Public Defender, attorney; Mr. Ciccia, on the brief).

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).

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

PER CURIAM

These two appeals have been consolidated and we consider them together. M.D.C. is the birth mother and R.C. is the birth father of B.M.C., born on October 2, 2006. M.D.C. is also the biological mother of J.D., born on June 5, 2005; J.D.'s biological father is unknown. M.D.C. and R.C. were married in November, 2005. Defendants appeal from the June 6, 2008 judgments of the Family Part terminating their parental rights to B.M.C. and awarding guardianship to the Division of Youth and Family Services (DYFS). For the reasons that follow, we reverse and remand.

I.

DYFS first became involved with defendants on January 11, 2006, when it received a referral regarding a feeding incident with J.D., in which the child had choked on a piece of a paper towel left in the bottom of her bottle. An intake worker went to defendants' residence, a motel room in Barnegat, New Jersey. The worker found the room stocked with clean baby bottles and baby food as well as appropriate equipment. J.D. appeared to be healthy and content. M.D.C. denied any knowledge of J.D. having choked on a paper towel. R.C., however, admitted that a piece of paper towel had been "stuck [in] the bottle from cleaning it [and] got into [J.D.'s] mouth." Both defendants were required to submit to random urine screens for possible drug use on that occasion; their screens were negative.

DYFS ascertained that R.C. had prior involvement with the agency regarding his children from a previous relationship, which included allegations of sexual abuse of one of the children. R.C. claimed that the incidents had been initiated by his ex-wife. M.D.C. said that she was aware of R.C.'s "previous history with his ex-wife[,]" but stated that she trusted R.C. and had "consulted with the N[.]J[.] State Police to make sure he was truthful about the sexual assault charge being dropped."

As a result of the January 11, 2006 referral, DYFS recommended that all contact between R.C. and J.D. be supervised by M.D.C. until further notice. The caseworker concluded that allegations of neglect were unfounded on that occasion. However, DYFS maintained an open file on the family for "supervision." DYFS contacted St. Francis Community Center for in-home counseling; defendants were placed on a waiting list for that service.

On February 25, 2006, DYFS received a second referral regarding J.D. having a severe diaper rash that was bleeding; an intake worker responded and observed that J.D. had a diaper rash but saw no bleeding. Defendants signed a case plan agreeing to take J.D. to her pediatrician.

On March 7, 2006, DYFS received a referral that defendants were at the office of the Board of Social Services and "appeared to be under the influence of illicit substances." Defendants were observed to be restless, agitated and jumpy; the referral stated further that defendants had been noncompliant with recommendations of the Board of Social Services. A DYFS caseworker responded to the Board's offices and had both defendants submit to random urine screens which, once again, were negative.

On April 10, 2006, DYFS received a referral stating that the parties were about to lose their subsidized housing assistance due to noncompliance with the Work First Program "and other things that the Board of Social Services ha[d] recommended." The parties were informed by a DYFS caseworker that if they lost their housing, DYFS "would have to move toward litigation . . . ."

On April 28, 2006, the Board of Social Services advised DYFS that defendants' housing assistance was going to be terminated due to their failure to comply with the Work First Program; in addition, the Board asserted that defendants had provided "falsified medical documentation."

The family relocated to another motel in Waretown. Notwithstanding this disruptive housing situation, a DYFS caseworker observed J.D. to be "clean[,] healthy, [and] happy" during this period.

During the month of May, DYFS continued to visit the family at their motel residence. Throughout this time J.D. was found to be in good health and "appeared to be well cared for . . . with no signs of abuse or neglect."

M.D.C. was pregnant with B.M.C. at this time and was incurring difficulties because she suffered from diabetes. During an in-home visit on May 10, 2006, a DYFS caseworker observed pre-natal vitamins at the residence, and M.D.C. advised the worker "that she was . . . put on insulin . . . to control the diabetes while going through th[e] pregnancy." M.D.C. gave the caseworker the name and telephone number of her "pre-natal doctor" and signed a release permitting DYFS to obtain "documentation indicating that [she] is receiving pre-natal care." M.D.C. told the caseworker that her next doctor's appointment was scheduled for June 6, 2006.

On May 17, 2006, DYFS filed a complaint and order to show cause seeking custody of J.D. in the event that defendants failed to "comply with services" that DYFS would provide.

On June 15, 2006, the Board of Social Services notified DYFS that it had officially terminated defendants' housing assistance. On June 22, M.D.C. requested a $2400 security deposit from DYFS, stating that she and R.C. would be able to lease an apartment with a monthly rent of $1100. DYFS, however, declined to advance those funds because it concluded that M.D.C. had not been "forthcoming" about where the family had been living. When DYFS denied her request, M.D.C. stated that the family would be forced to continue to rent a room at the Waretown motel.

A caseworker visited the family at that motel on the following day, and observed that supplies and food for J.D. were available. M.D.C. renewed her request for rental assistance, claiming that defendants were then paying $1800 per month to live at the motel and would not be able to save the amount required for a security deposit on the apartment.

On July 25, 2006, the court heard the return on DYFS's order to show cause. Following a summary hearing, the court entered two orders. The first found, by a preponderance of the evidence, that "defendants abused or neglected [J.D.]" as evidenced by "ongoing concerns of prenatal care and housing, along with allegations of substance abuse." The second order placed J.D. under the care and supervision of DYFS but continued legal and physical custody of the child with her parents. That order further required R.C. to submit to a psychological evaluation on July 27, 2006, and to provide income verification; both parents were to submit to random urine screenings on that day and were further ordered to attend parenting skills training or in-home therapy "as referred by [DYFS]."

On August 27, 2006, DYFS received a report that defendants were living in their car with J.D. A caseworker responded and observed J.D. to have a "diaper rash on her left leg[,] a rash on her lower back[,] a fungal infection on her hand [and] an ear ache[.]" The caseworker concluded that allegations of physical neglect had been substantiated, removed J.D. from defendants' custody and placed the child with her maternal grandparents in Little Egg Harbor.

In describing that removal at trial, DYFS caseworker Shannon Day stated that "the removal was based on the fact that [defendants] were living in a car and they had no know[n] residence and that [M.D.C.] refused to go with the child and we had no choice but to do an emergency removal." By "go with the child" Day explained that she meant that M.D.C. refused to leave R.C. Day acknowledged that if M.D.C. "had agreed to sign a case plan stating that she would go with the child, there would not have been a removal at that time."

Day further acknowledged that DYFS "did not see the problems that [M.D.C.] had . . . as an impediment to her raising the child." According to Day, DYFS considered R.C. to be "more of an issue" because of his "history" with the agency, involving his older children from his prior relationship.

Regarding R.C.'s prior "history[,]" Day acknowledged that although DYFS records indicated that R.C. "had been substantiated" for abuse, she did not know the ultimate outcome of that case or whether his children were ever returned to his custody. Day stated that DYFS's main "concern" regarding defendants in August 2006 was "the dishonesty and the inability to get a straight answer from anybody about job employment, about residence, about prenatal care."

On September 12, 2006, the court entered an order granting physical custody of J.D. to her maternal grandmother, A.M.D. The court again ordered defendants to receive parenting skills training and in-home therapy.

In late September 2006, M.D.C. was admitted to the hospital "for her blood levels." On October 2, M.D.C. gave birth to B.M.C. who was premature at thirty-three weeks. At the time of her birth, B.M.C. was hypoglycemic and had cardiac and respiratory issues as well as "[g]eneralized sepsis."

An assessment conducted by a child health nurse a few days after B.M.C.'s birth, noted that notwithstanding "some congenital cardiac anomalies[,] . . . [a] cardiac consult was done and the heart was found to be functioning well without concern." The assessment noted further that B.M.C. would "need to be monitored by a cardiologist. This condition may resolve within the first six months of life."

The assessment also noted that immediately after birth, B.M.C. "did suffer some respiratory distress which required intervention." However, the assessment continued that the baby's "oxygen concentration has been stable and she is now weaned to room air."

The assessment concluded that B.M.C., "if discharged into foster care, meets the DYFS criteria for medical fragile status[,]" and "should be placed into a SHSP [Special Home Service Provider] home where . . . she will have a full-time CPR certified caregiver." The assessment recommended that B.M.C. be followed by a DYFS nurse case manager and that her medically fragile status be "re-evaluated in six months[,]" noting further that "[i]f her cardiac issues have resolved and she is not having any more problems, she may be declassified at that time."

On October 12, 2006, the court entered an order placing B.M.C. in the care of DYFS "due to imminent danger to the child[]" because the "mother did not have proper pre-natal care: child born with hypoglycemia and suffers from congenital cardiac anomalies." This order reflects that it was based upon the testimony of DYFS caseworker Day and the court's review of "documents" which are not identified in the order.

DYFS placed B.M.C. in foster care and arranged visitation for defendants. At trial, DYFS caseworker Megan Clemente described the visitation schedule as every other Monday from 11:00 a.m. to noon, at DYFS's offices. Defendants' first visit with B.M.C. was in December 2006. Defendants' second visit with B.M.C. was in May 2007. Their next visit was in December 2007; the reasons for the delay are not clear from the record, but are likely related to the fact that defendants moved to at least three different locations in 2007. Between December 2007, however, and the time of trial in April 2008, defendants had made every scheduled visit. Clemente noted that defendants always visited B.M.C. together.

DYFS presented psychological evidence at trial through the testimony and reports of Dr. Margaret Beekman, Ph. D., and the report of Dr. W. Dennis Coffey, Psy. D.

Dr. Beekman conducted evaluations of both defendants in July 2007 and March 2008; the latter evaluation included a bonding evaluation with J.D. and B.M.C., as well. Dr. Coffey conducted an evaluation of R.C. on August 4, 2006

In her July 2007 report, Dr. Beekman reviewed numerous DYFS records, interviewed defendants and conducted psychological testing. With respect to M.D.C., Dr. Beekman concluded that she was of "average" intelligence and, "[t]herefore, intellectually . . . seems able to manage child care safely." Dr. Beekman opined, however, that M.D.C. had "behavioral liabilities that are likely to impede [her] ability to appropriately care for a child to some degree[,] that include use of projection, denial, rationalization and projection of blame as defenses; [the] tendency to have limited insight and frustration tolerance, . . . [and] rigidity in thinking that is likely to impact negatively on problem-solving . . . ." Dr. Beekman noted further that M.D.C. "has demonstrated marginal ability to maintain a stable living environment."

Dr. Beekman recommended against reunification of M.D.C. with J.D. and B.M.C., and further recommended that M.D.C. "complete parent training, continue random drug screens and show stability of residence and employment." Dr. Beekman's prognosis for rehabilitation "to the degree that [M.D.C.] can safely care for children [was] poor."

Dr. Beekman assessed R.C.'s level of intelligence as "fall[ing] within the Borderline Mentally Deficient range." Therefore, intellectually, R.C. "would probably need assistance and supervision caring for children." The doctor further noted that the records she reviewed "indicate[d] incidents where he showed poor judgment leaving an infant unattended . . . [and] a history of alleged sexual assault and [DYFS] involvement, though [he] denied and minimize[d] those charges." Dr. Beekman opined that R.C.'s "life adjustment seems marginal in terms of taking care of himself much less caring for a child . . . . Of concern is his apparent tendency to deny and minimize."

Dr. Beekman also recommended against reunification of B.M.C. with R.C., and opined further recommending that R.C. should "complete parent training, continue with periodic random urine screens, show stability of residence, stability of employment, and show an absence of any police involvement." Dr. Beekman's prognosis for R.C.'s rehabilitation "to the degree that [he] could safely provide for the independent care of children" also "seem[ed] poor."

In her March 2008 report, Dr. Beekman noted that defendants had "been referred numerous times to parenting classes and were on a waiting list." Dr. Beekman reviewed a DYFS report dated November 26, 2007, which indicated that defendants had started parenting classes in September 2007, but were terminated after missing three sessions, and that DYFS had referred defendants to two different places in Camden, where they were living at the time, and "the parents did not attend an intake appointment on 12/21/07."

In that DYFS report, caseworker Clemente had stated that both places in Camden "have wait[ing] lists." Dr. Beekman spoke to Clemente who indicated that defendants had moved three times, which interfered with their attendance at parenting classes. Clemente further stated in the report that defendants "have been offered services through the Board of Social Services and they failed to attend appointments." That report, however, did not identify which services were so offered.

The November 26, 2007 report further noted that DYFS "has offered many services, none of which have been completed." Other than the parenting classes for which defendants were on the waiting list and visitation with the children, however, no other "services" were identified in the report.

In March 2008, Dr. Beekman again interviewed defendants and administered psychological tests. Her conclusions with respect to each of them were virtually identical to the findings in her July 2007 report.

Dr. Beekman also conducted a bonding evaluation of B.M.C. with both parents in March 2008. She noted that the child appeared comfortable in R.C.'s presence and he engaged her in play; B.M.C. "did not protest [R.C.] leaving the room[,]" but she "accepted being carried by [him] down to the waiting room."

Dr. Beekman's bonding evaluation of M.D.C. with B.M.C. included J.D. According to Dr. Beekman, B.M.C. "showed no recognition of M.D.C." Nonetheless, the doctor noted that the general tenor of the interaction among M.D.C. and the two children was positive.

Dr. Beekman stated that B.M.C. "did not seem to clearly recognize [R.C.] as someone she knew[,]" and regarded M.D.C. as "a friendly playmate." The doctor opined further:

Both parents behaved in an appropriate manner with the children. They structured activity, tried to make the children comfortable, and looked out for hazards. However, this appropriate behavior while monitored does not necessarily mean that the couple would be willing or able to behave appropriately when not observed.

Dr. Beekman again expressed concern that R.C. denied and minimized "the apparently substantiated abuse allegations with his previous family." The doctor also reiterated concerns about defendants' "marginal ability to maintain a stable living environment." She noted that defendants had moved three times since June 2007 and, although they had a current residence at the time of the March 2008 evaluation, the doctor stated that "it remains to be seen whether this will be relatively permanent." Finally, Dr. Beekman concluded:

Given the above, placement of the children with the birth parents is not recommended, given the parents' track records of instability of living situation. [R.C.]'s track record of [DYFS] referrals with his other children is also of great concern, particularly since he shows no remorse, and denies and minimizes these reported events. The prognosis for rehabilitation to the degree that [defendants] can safely care for children is poor.

During Dr. Beekman's trial testimony regarding her bonding evaluations with defendants, defense counsel objected that her report contained no bonding evaluation with B.M.C.'s foster parents. Dr. Beekman stated that DYFS did not request that she conduct a bonding evaluation of B.M.C. and her foster parents, and acknowledged that she could not "specifically say what the bonding is" between the child and the foster family. The doctor added that "it would be generally assumed that if a child has spent a large portion of their life with a particular set of caretakers . . . that is most likely where they have their bond and . . . if they received adequate care . . . is most likely who[m] they would seek out for security." Because B.M.C. had lived with her foster parents since shortly after her birth, Dr. Beekman opined that it "would be a given that in all likelihood that that's where the bond would be." Dr. Beekman acknowledged that her report "did not speak" to "whether or not . . . [B.M.C.] would suffer . . . irreparable harm as the result of termination of parental rights . . . ."

Dr. Coffey did not testify at trial but his August 4, 2006 report was admitted into evidence. That evaluation was conducted before B.M.C. was born, and was performed in conjunction with the custody of J.D. only.

R.C. complained to Dr. Coffey that DYFS was trying to hold his previous involvement with the agency against him. R.C. also denied any substance abuse history. Dr. Coffey described R.C. as "presenting to the evaluation in a huffed manner. He stated that he was simply presenting on the directions of DYFS and does not know why he needs to be here." Dr. Coffey opined that R.C.'s psychological test scores "reflect [a] very poor concept of parenting. They suggest that he is simply unable to formulate critical issues in parenting situations and identify adequate solutions." Dr. Coffey diagnosed R.C. with borderline mental retardation; he found no psychological diagnoses applicable.

Dr. Coffey opined that R.C. needed parenting classes and recommended that DYFS "put in[-]home family services in place to assist the family in parenting and general family development." Notwithstanding R.C.'s denial of substance abuse, and the lack of any evidence refuting that denial, Dr. Coffey stated: "Because there is suspected substance abuse, random urine screening is recommended."

At trial, DYFS caseworker Clemente testified as to B.M.C.'s current medical "special needs," which she described as "reflux, cardiomyopathy, patinductus arteriosis [sic] and patforman [sic], which is defects [sic] in her heart valves. She has allergic colitis and developmental delays." Clemente further testified that B.M.C. sees a pediatric gastroenterologist every three months, as well as a pediatrician and a cardiologist. She is "waiting for a neurological evaluation . . . [f]or her development delays."

Clemente described B.M.C.'s foster home as "a SHSP home . . . for medically fragile children. . . . [S]he has a foster mother and a foster father, and there's another foster child in the home who is very close to [B.M.C.]'s age[,] and the foster parents have adopted five other children, four of wh[om] are minors under eighteen. The home is . . . very well kept[;] [i]t's large. . . . [T]he children mostly do all have their own rooms, and it's immaculately kept and [B.M.C.] actually just got a puppy which she's very proud of." Clemente added that it was her "understanding" that B.M.C.'s foster parents "are committed to adopt[ing her]."

On cross-examination, Clemente acknowledged that B.M.C.'s foster family "was not interested in adopting the child" when Clemente took over the case. "They loved her very much but were not sure if they wanted to adopt, and as the months went by, I believe it was in October [2007], they affirmed their commitment to adopt [B.M.C.] . . . [o]ver the next couple of months[,] the foster family did change their mind and commit to [B.M.C.]'s adoption."

Both defendants chose not to testify at trial. At the conclusion of the evidence, M.D.C. voluntarily surrendered her parental rights as to J.D. on the condition that the child be adopted by the maternal grandparents. Thus, only B.M.C. is the subject of this appeal.

The trial court rendered its decision from the bench on June 6, 2008. The court first summarized the trial testimony with respect to both J.D. and B.M.C., although the court acknowledged that B.M.C. "is the child that the [c]ourt is now making a determination as to whether the rights should be terminated."

The court summarily reviewed the prior orders entered in the course of the litigation, as well as the expert evidence presented by Drs. Beekman and Coffey. Before addressing the statutory factors governing termination set forth in N.J.S.A. 30:4C-15.1(a) to (d), the court observed:

[H]ere, [DYFS]'s objective . . . was reunification with [B.M.C.]. Services were offered. These parents participated in some of the services, but clearly did not learn from these services that they did participate in and continue to live an almost nomadic kind of life. . . . [F]rom the very beginning the employment record is, at best, haphazard and it's difficult to know why they believe that they should say to the [c]ourt that they should have this child returned to them because I don't even know where they would be taking this child because . . . we really do [not] know where they are living at this time and throughout the periods of time that this matter has been before the [c]ourt[.] [T]hey have lost their housing they obtained as a result of Social Services and were living in motels . . . . [E]ven from that motel they eventually were evicted and spent one night in an automobile in the parking lot of the motel.

Regarding the first statutory prong, the court found that B.M.C.'s "safety, health or development has been and will continue to be endangered by the parental relationship for the reasons that I have already placed upon the record . . . ."

Regarding the second statutory prong, the court found that defendants were "both unwilling and unable to eliminate the harm facing this child and they're unable and unwilling to provide a safe and permanent placement which . . . if there's any delay of this . . . would only add to the harm." The court further noted that "there was a bonding evaluation and while there . . . was not a finding that there would be irreparable harm, there was a finding that the child was attached to the foster parents."

With respect to the third statutory prong, the court found that DYFS "has made reasonable efforts to provide services to help the parents correct the circumstances which led to this child's placement outside the home . . . . Once again, all of this [is] by clear and convincing evidence."

Finally, regarding the fourth statutory prong, the court stated:

The . . . parts of the record that I have placed upon the record and . . . all that has come before me discloses that . . . there is substantial credible evidence of some psychiatric problems and numerous unsuccessful attempts by [DYFS] at intervention and assistance. These parents did not take advantage of it and, therefore, . . . guardianship is granted to [DYFS] and I find that the plan that [DYFS] has is in the best interests of this child and that is, of course, adoption by the resource family . . . .

II.

M.D.C. raises the following issues on appeal:

POINT I

THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE

(A) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP

(B) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT A FINDING THAT M.D.C. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILD

(C) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP M.D.C. CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME

(D) DYFS SHOULD NOT HAVE PREVAILED ON PRONG FOUR OF N.J.S.A. 30:4C-15.1A [sic] BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD

R.C. raises similar arguments, to wit:

POINT I

INSUFFICIENT, INACCURATE AND CONFUSING FACTUAL FINDINGS REQUIRE A REMAND OF THIS MATTER

POINT II

THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILD WILL BE SERVED BY TERMINATING R.C.'S PARENTAL RIGHTS

A. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT B.C.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY HER RELATIONSHIP WITH HER FATHER

B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT R.C. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILD, AND THAT A DELAY IN A PERMANENT PLACEMENT WILL ADD TO THAT HARM

C. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT 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

D. TERMINATION OF R.C.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD

We note initially that "[a]ppellate review of a trial court's decision to terminate parental rights is limited . . . ." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because the findings of the trial court "are considered binding on appeal when supported by adequate, substantial, and credible evidence[,]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), an appellate court should not disturb such findings unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). We are further cognizant of our obligation to accord special deference to the factual findings of a family court because of its "expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

It is well established that a parent's right "to raise a child and maintain a relationship with that child" is protected under the federal and state Constitutions. N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-58 (1972)). However, "[t]he State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." Ibid. Where, as here, DYFS acts to fulfill that responsibility by seeking termination of parental rights to a child, the agency has a substantial burden; it must prove by "clear and convincing evidence[,]" id. at 108, each of the four factors set forth in N.J.S.A. 30:4C-15.1(a), namely that:

(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)(1) to (4).]

These four criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

The inquiry under the first statutory prong is whether the parent has harmed or will continue to harm the child if the parent-child relationship is permitted to continue. "Harm" is defined as endangerment to "the child's health and development resulting from the parental relationship." Ibid. "[T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352.

Here, the trial court found that DYFS had met the first statutory prong "for the reasons . . . already placed upon the record . . . ." The court did not elaborate further with respect to this prong. Therefore, we look to the court's summary of the evidence that preceded its legal conclusions, in which the court found that B.M.C. was born premature; that M.D.C. "had been remiss in obtaining appropriate prenatal care[,] . . . and . . . did not address a diabetic condition during her pregnancy and that consequently [B.M.C.] was born large for her gestational age and suffered from hypoglycemia." The court noted further that B.M.C., at birth, "suffered from congenital cardiac anomalies necessitating that she be monitored by a cardiologist[,] . . . [and] had several factors . . . that put her at higher risk than a normal infant for problems."

The medical evidence of record indicated, however, that B.M.C.'s hypoglycemia had resolved itself shortly after B.M.C.'s birth. There is no evidence that hypoglycemia has continued to cause B.M.C. any problems. Moreover, respecting B.M.C.'s other physical conditions, there is no medical evidence of record connecting those conditions either to the quality of M.D.C.'s prenatal care or to her diabetes. Nor is there any evidence connecting B.M.C.'s premature birth to M.D.C.'s diabetes or pre-natal care. Furthermore, as noted, M.D.C. provided DYFS with the name and telephone number of her pre-natal doctor and signed a release authorizing DYFS to obtain information from that doctor. There is no evidence that DYFS ever contacted M.D.C.'s doctor or obtained any direct information regarding her pre-natal care.

The second prong of the best interest analysis codified in N.J.S.A. 30:4C-15.1(a)(2) focuses on "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. The inquiry under this prong is whether "'it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care.'" N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 117 (App. Div.) (quoting N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 607 (1986), certif. denied, 180 N.J. 456 (2004)).

The trial court found that DYFS had proven this prong by clear and convincing evidence because defendants were "unable and unwilling to provide a safe and permanent placement" for B.M.C. We concur with the trial court's statement that defendants "live an almost nomadic kind of life." Defendants' lack of stable housing has clearly "delay[ed]" the prospect of "permanent placement" of B.M.C. in their custody, thus "add[ing] to the harm" to the child. N.J.S.A. 30:4C-15.1(a)(2).

Other than their unstable housing situation, however, there is no clear and convincing evidence that either defendant was so "derelict[] [or] irresponsib[le]" in their parenting skills as to endanger B.M.C. K.H.O., supra, 161 N.J. at 353. In fact, the trial court cited no evidence of record to support its finding that defendants were "unwilling and unable to eliminate the harm," other than their lack of housing. Moreover, in the absence of a bonding evaluation with B.M.C. and her foster parents, the record was devoid of any evidence that "separating [B.M.C.] from h[er] resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2).

We are most troubled with the court's analysis and findings respecting the third and fourth statutory prongs. First, regarding the third prong, the court's finding that DYFS "made reasonable efforts to provide services" to defendants is not supported by the record. It is clear from the history of this matter that stable housing has been a major impediment to defendants' ability to parent their children; notwithstanding the lack of such housing, however, DYFS caseworkers consistently reported that defendants had adequate diapers, food and appropriate equipment for J.D. While J.D. may have suffered from diaper rash, a fungal infection and an ear ache, such conditions in and of themselves do not establish "clear and convincing" evidence that the parental relationship was a recurrent source of harm to J.D.

We are aware that the record establishes defendants' loss of eligibility for housing through the Board of Social Services; it appears that this may have been, to some extent, the result of defendants' own conduct. Other than hearsay statements from the Board of Social Services contained in DYFS records, there is no evidence of what specific conduct by defendants caused them to lose their housing assistance from the Board. Because defendants' lack of stable housing was DYFS's central concern, the "reasonable efforts" required of DYFS should have been focused on "assist[ing] the parents in remedying" that situation because it was what "led to the placement of the child." N.J.S.A. 30:4C-15.1(c); see In re Guardianship of D.M.H., 161 N.J. 365, 387 (1999) (discussing DYFS regulations requiring referrals to other agencies).

As early as April 10, 2006, DYFS knew that the Board of Social Services intended to terminate defendants' housing assistance due to their noncompliance with the Work First Program. There is no evidence, however, that DYFS made any effort to investigate and assist defendants in addressing whatever problems were then about to cause them to lose that housing. Moreover, defendants' housing assistance was not officially terminated until two months later, on June 15, 2006; thus, DYFS had an opportunity to inquire and assist before the housing assistance was lost. Given the nature of this problem, which was central to DYFS's decision to place B.M.C. in foster care, DYFS did not present clear and convincing evidence that its efforts were "reasonable." Rather than provide assistance to these needy parents, DYFS simply informed them that if they lost their subsidized housing, the agency "would have to move toward litigation . . . ."

DYFS did make efforts to enroll defendants in parenting classes; however, the evidence is undisputed that defendants were placed on waiting lists for such a program. Furthermore, because they were compelled to move from time to time, they were unable to attend a program consistently. With respect to DYFS's recommendation that defendants engage in in-home therapy, DYFS itself acknowledged that waiting lists for such a program were even longer than for parenting classes; moreover, defendants were never in a sufficiently stable housing situation to take advantage of in-home assistance.

"Reasonable efforts" are defined by statute as "attempts by an agency authorized by [DYFS] to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure," N.J.S.A. 30:4C-15.1(c), and include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c)(1) to (4) (emphasis added).]

"The reasonableness of [DYFS]'s efforts depends on the facts in each case." N.J. Div. of Youth & Fam. Servs. v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

Here, DYFS did "facilitat[e] appropriate visitation" between defendants and B.M.C.. Other than visitation, however, we cannot say with confidence that DYFS made "reasonable efforts" to "remedy[] the circumstances and conditions that led to the placement of" B.M.C. with a foster family. N.J.S.A. 30:4C-15.1(c). Even Dr. Beekman recognized that "stability of residence" was a problem. The record is devoid of evidence that DYFS made any efforts, let alone "reasonable efforts," to address this critical problem.

Finally, we address the trial court's analysis and factfinding respecting the fourth statutory prong, namely that the "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The court itself acknowledged that "there was not a finding that there would be irreparable harm" if B.M.C. were removed from her foster family. However, the court went on to misstate the evidence by finding that "there was a finding that the child was attached to the foster parents."

The only evidence of B.M.C.'s relationship with her foster family was provided by DYFS caseworker Clemente, who acknowledged that B.M.C.'s foster family was not initially interested in adopting the child and "change[d] their mind" over time "and commit[ted] to [B.M.C.]'s adoption." Dr. Beekman's testimony on this point was purely speculative as she had not conducted a bonding evaluation with the foster parents.

We conclude that DYFS's failure to obtain a bonding evaluation with B.M.C.'s current foster parents is fatal to the agency's ability to satisfy the fourth statutory prong by clear and convincing evidence. "'[T]o satisfy the fourth prong' DYFS must 'offer testimony of a "well-qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with both the natural parents and the foster parents.'" N.J. Div. of Youth & Fam. Servs. v. A.R., 405 N.J. Super. 418, 442 (App. Div. 2009) (emphasis added) (quoting N.J. Div of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 281 (2007) (internal citation omitted)).

Notwithstanding our state's "strong public policy in favor of permanency[,]" K.H.O., supra, 161 N.J. 357, where, as here, no "clear and convincing evidence" supports the conclusion that DYFS satisfied the fourth statutory prong,

this desire for permanency must be balanced against the need natural parents have to depend on foster care to "protect their children during difficult periods, including but not limited to experiences of homelessness . . . . A single-minded focus on continuity in care can result in parents who rely temporarily on foster care for needed assistance, finding it impossible to regain custody over their children."

[A.R., supra, 405 N.J. Super. at 442-43 (quoting J.C., supra, 129 N.J. at 20-21).]

In sum, we concur generally with R.C.'s contention that the trial court's decision contained "insufficient, inaccurate and confusing factual findings" with respect to the four prongs of N.J.S.A. 30:4C-15.1(a). We therefore reverse the termination judgments of June 6, 2008. Due to the passage of time since those judgments were entered, and our inability to assess the current situations of defendants and B.M.C., we remand the matter for further proceedings consistent with this opinion.

 
On remand, we direct that DYFS obtain current fitness evaluations of both defendants and a bonding evaluation of B.M.C. with her foster parents. Defendants may obtain such evaluations on their own behalf as well. The trial court shall set a schedule for the expeditious completion of all such evaluations and for a hearing to determine whether DYFS intends to continue to pursue the termination of defendants' parental rights or, if not, what steps toward reunification should be implemented. Pending the completion of remand proceedings, B.M.C. shall remain in the custody of DYFS and her physical care shall remain with her foster parents. We do not retain jurisdiction.

At the conclusion of trial, M.D.C. consented to the termination of her parental rights to J.D. and to grant the custody of the child to the maternal grandparents for the purpose of adoption; therefore, J.D.'s status is not an issue.

A pediatric progress report dated February 12, 2008, listed B.M.C.'s diagnoses as "prematurity (33 weeks), GE reflux, cardiomyopathy (patent ductus arteriosis, patent foramen ovale), [a]llergic colitis, developmental delays[.]" It appears Clemente was reading from this report. However, Clemente's further testimony regarding B.M.C. seeing a pediatric gastroenterologist every three months and awaiting a neurological evaluation, is not reflected in this report, which is the latest in a series of progress reports. The basis for this additional testimony, therefore, is not clear from the record.

(continued)

(continued)

33

A-5579-07T4

RECORD IMPOUNDED

December 9, 2009