NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.L.L and D.Q.T., S.H.B. and D.R.G., Jr
Annotate this CaseRECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3569-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.L.L.,
Defendant-Appellant/
Cross-Respondent,
and
D.Q.T., S.H.B. and D.R.G., Jr.,
Defendants-Respondents.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF D.I.A.D.Q.T.,
M.G.G., K.D.A.T.,
Minors/Cross-Appellants,
and
I.Y.S.T., J.S.B. and P.M.B., Minors.
______________________________
Argued November 19, 2020 - Decided January 12, 2021
Before Judges Ostrer, Accurso and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0037-19.
James D. O'Kelly, Designated Counsel, argued the
cause for appellant/cross-respondent M.L.L. (Joseph
E. Krakora, Public Defender, attorney; Robyn A.
Veasey, Deputy Public Defender, of counsel; James D.
O'Kelly, on the briefs).
Casey Woodruff, Deputy Attorney General, argued the
cause for respondent Division of Child Protection and
Permanency (Gurbir S. Grewal, Attorney General,
attorney; Sookie Bae, Assistant Attorney General, of
counsel; Katherine Petrie, Deputy Attorney General,
on the brief).
Todd Wilson, Designated Counsel, argued the cause
for minors/cross-appellants D.I.A.D.Q.T., M.G.G. and
K.D.A.T. (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd Wilson, on the
briefs).
Danielle Ruiz, Designated Counsel, argued the cause
for minors J.S.B. and P.M.B. (Joseph E. Krakora,
Public Defender, Law Guardian, attorney; Meredith
Alexis Pollock, Deputy Public Defender, of counsel;
Danielle Ruiz, on the brief).
James J. Gross, Designated Counsel, argued the cause
for minor I.Y.S.T. (Joseph E. Krakora, Public
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2
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; James J.
Gross, on the brief).
PER CURIAM
Defendant M.L.L. appeals from a final judgment terminating her
parental rights to six of her seven children, D.I.A.D.Q.T. ("Daniel"), now
fourteen years old; M.G.G. ("Martin"), twelve; I.Y.S.T. ("Ilene"), ten;
K.D.A.T. ("Kevin"), nine; J.S.B. ("Jade"), eight; and P.M.B. ("Pauline"), six.1
Her seventh child, a girl almost four, is not involved in this matter. Defendant
contends the Division of Child Protection and Permanency failed to prove
prongs two, three and four of the best interests standard of N.J.S.A. 30:4C-
15.1(a)(1) to (4) by clear and convincing evidence.
The law guardian for Daniel, Martin and Kevin cross-appeals on behalf
of the boys, joining in defendant's arguments and contending the severe
behavioral and mental health problems the boys suffer, particularly Daniel,
make their adoption unlikely, and that all three wish to return to their mother's
care. Ilene, separately represented, had been of the same mind as her brothers
but has since decided she would prefer to be adopted. Ilene's law guardian has
1
These are fictitious names used to protect the identity and privacy of the
parties involved. See R. 1:38-3(d). The children's fathers' rights were also
terminated in this action. None has appealed.
A-3569-18T3
3
thus withdrawn her cross-appeal and supports the Division's arguments here.
The law guardian for Jade and Pauline likewise urges affirmance.
Having reviewed the record, we find no basis to second-guess the trial
judge's findings as to defendant's unfitness, her inability or unwillingness to
remediate the harm she's caused these children, the Division's reasonable
efforts to assist defendant in overcoming the problems that led to their
placement, and the absence of any alternatives to termination. The only
quarrel we have with the trial court's comprehensive and otherwise well-
considered opinion is that the court failed to apply the test of the fourth prong
— whether "[t]ermination of parental rights will not do more harm than good"
— individually as to each of these six children. Although individual
consideration of each child is, of course, always essential, N.J. Div. of Youth
& Family Servs. v. A.R., 405 N.J. Super. 418, 443 (App. Div. 2009) (noting
the four prongs must be evaluated separately as to each child) it was
particularly important here because at the time of trial, only one of these
children was in a pre-adoptive home.
Based, however, on the unrebutted testimony of the Division's expert
regarding the absence of any real bond between defendant and any of the
children, and his unequivocal view that the limited risk of harm to each child
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4
posed by termination of defendant's parental rights was far outweighed by the
potential for adoption, which is now a very real possibility for the five younger
children as all are now living in pre-adoptive homes, we can affirm the
decision as to Martin, Ilene, Kevin, Jade and Pauline, notwithstanding that
error.
Daniel, however, is a separate case. He has only recently been released
from a residential treatment facility. He is now residing in a step-down
program in a group treatment home. Daniel's mental health issues and severe
behavioral problems have, in the words of his counsel, "sabotaged" his chances
of a permanent placement to date. While the evidence in the record would not
suggest that defendant is able to assume his care, the court's failure to address
specifically whether termination of defendant's parental rights might leave
Daniel worse off, compels a limited remand for the trial court to address the
fourth prong of the best interests test in light of his, and defendant's, current
circumstances.
This is a very old case. It's been tried twice and twice remanded on
motion during the pendency of this, the only, appeal for the Division to assess
one of defendant's relatives for placement, and for the court to consider the
applicability of the Indian Child Welfare Act, the latter issue defendant has
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5
now abandoned. The children were removed from defendant's care five years
ago in January 2016.
The facts leading up to the removal through the second termination trial
are spread across eighty-seven pages of the trial court's written opinion, and
we have no need to repeat them here. Suffice it to say that the children were
removed because they were dirty and smelled of urine, and defendant had
failed to provide them a suitable place to live or to plan for their care,
including undertaking such basic tasks as enrolling the older ones in school.
The Division had twice previously substantiated defendant for environmental
neglect for permitting the children to live in a filthy, fly-infested apartment
reeking of animal waste. A notable entry from the case sheets at that time
documents that a meeting about the children between defendant and a Division
worker had to be conducted outside in late October 2011, because the stench
inside defendant's apartment made it difficult to breathe. Child welfare
personnel in both New Jersey and Florida, where plaintiff lived for two years
between 2013 and 2015, documented defendant's unwillingness to take any
initiative in caring for her children, expecting the child welfare agencies in
both states to do for her and her children what she was unable or unwilling to
do for herself or them.
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When Florida's child protective services agency was on the verge of
removing the children from her care in late 2015, defendant returned to New
Jersey, at Florida's expense, without any money or a place to go. She
explained she had returned home expecting her mother to help her. Defendant
was ineligible for financial assistance as she had exhausted her benefits and
had lost her Section 8 housing, although unable to clearly explain why. She
refused to contact shelters for vacancies, complaining it was "tiring calling
dead end places" and that she would instead prefer to wait for return calls. She
texted the Division worker, saying "if there's any housing [in Morris County]
just make it happen because I'm tired and feel sick to keep stressing my body
out like this."
The Division arranged for a psychiatric evaluation of defendant during
the summer of 2016. The Division's psychiatrist reported that defendant
suffered from post-traumatic stress disorder, unspecified bipolar disorder,
unspecified anxiety disorder, panic disorder, maladaptive personality traits,
cannabis abuse (in remission), and that she had been a victim of domestic
violence. He concluded defendant required outpatient mental health treatment
and perhaps intensive outpatient treatment but did find cognitive therapy to be
advisable given defendant's "cognitive limitations and learning disabilities."
A-3569-18T3
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After the Division removed the children, defendant's visits with them
were sometimes sporadic and often unfocused, even before she again relocated
to Florida in late 2016, with her many times talking on her cell phone or not
interacting with the children, who played among themselves. When defendant
advised she was moving back to Florida, the Division's court-approved plan
was still reunification. Defendant maintained she could access services in
Florida, and that a great-aunt could help her with housing to accommodate the
children. Despite the Division's expressed reservations about that plan, the
court approved it, ordering defendant to execute releases for any program she
entered, which the Division would assess to determine whether it met the terms
of the existing order for defendant to engage in services.
When, four months later, defendant had not enrolled in services in
Florida and had not executed releases, despite another court order and repeated
requests, the court in March 2017 approved the change in the Division's
permanency plan from reunification to termination. Her visits with the
children at that time, which the Division offered to conduct over Skype, were
instead limited to conversations over the telephone because of defendant's
inability to secure a computer. Workers reported that defendant never initiated
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these calls, and when the workers called at pre-arranged times, defendant's
phone was many times turned off.
We digress from a chronological rendition of events to address the
children's lives in placement, which have often been difficult, largely because
of the challenges their behavioral problems presented. Daniel, the eldest, has
severe behavioral issues and suffers from encopresis, or fecal incontinence,
reportedly caused by psychological or emotional problems. He has been
diagnosed with oppositional defiant disorder and attention deficit hyperactivity
disorder. When first removed from defendant's care, Daniel and Martin went
to live with Martin's paternal grandmother. 2 Within six months, however, she
asked that Daniel be removed due to his "defiant" behavior, angry temper
tantrums and soiling himself. The Division moved him to a therapeutic
resource home, the first of eight such placements. He was later suspended
from school and kicked out of camps and clubs because of his angry,
aggressive behavior and fighting. Martin also had behavioral issues, although
much less severe than Daniel's. He has remained in his grandmother's care
since his removal, and his law guardian reports Martin has moved out of a self-
2
Martin's father executed a voluntary surrender in favor of his mother.
A-3569-18T3
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contained classroom and become a good student. His grandmother is
committed to adopting him.
Ilene and Kevin were initially placed together in a non-relative resource
home. At the time of the second trial, Kevin was residing in a treatment home,
following a crisis hospitalization in 2017 after he threatened to cut off a
classmate's head with a knife. He was being educated in a self-contained
classroom and had been in four other placements. Ilene, who also has
behavioral issues and mild intellectual disability, likewise received her
schooling in a self-contained classroom and cycled through four different
placements, including overnight placements. Although her behavior had much
improved by the time of the second trial, case management organization
services and therapy having been discontinued in 2018, she was still not in a
pre-adoptive home.
Jade and Pauline have remained together since being removed from their
mother's care. They spent the first two-years post-removal in a pre-adoptive
home. Pauline qualified for services, and Jade was receiving therapy and
classified as Preschool Disabled. The family relocated to Pennsylvania,
however, and was not permitted to take the girls with them.
A-3569-18T3
10
That disruption was difficult for both children, especially Jade, who has
both a learning disability and emotional issues, manifested by anger and
aggressive behavior. Jade's behavior by the time of trial, however, was
reported to be much better, and she had transitioned to a regular classroom.
The Division referred Pauline to a child study team in 2018, and her sibling
visits at the Adoption House were temporarily suspended late that year because
of her behavior. Although Pauline's behavior can be problematic at times, she
has no learning disabilities. Both girls reportedly suffered from bed-wetting.
Their initial resource family maintained contact and pursued licensing in
Pennsylvania in order to resume custody of the girls. As of the second trial,
Jade and Pauline were together in a new, non-adoptive resource home in New
Jersey.
Resuming the narrative, shortly after the court approved the plan for
termination in March 2017, defendant reengaged in services. Florida family
services advised that defendant was in its "intensive program," scheduled to
undergo a psychiatric evaluation, receive individual therapy, and get "High
Risk Newborn" services, as defendant had recently given birth to her seventh
child. By May, Florida officials advised that defendant was living in a shelter
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11
and voluntarily engaging in counseling, psychiatric services and parenting
education.
In a psychological evaluation conducted in New Jersey in July, however,
defendant told the Division's psychologist, Dr. Yeoman, that the reports of her
not enrolling the children in school and neglecting their hygiene were false.
She claimed she had enrolled the children in school when they were six weeks
old, and that the children's observed hygiene condition was as a result of the
unaddressed condition of her prior home. She also denied reports that she had
been evicted from several shelters. Defendant told the psychologist the
children would not have any difficulty transitioning out of their various
resource homes back to her care as they had lived with her all their lives. She
reported that Ilene had learning problems, and Jade and Pauline both had
learning and behavior problems, the latter of which only started after their
removal, and that she had already established specialized treatment for each of
them, which no one could verify.
Defendant's scores on intelligence tests reflected below average to
average intelligence, and personality tests reflected "substantial narcissistic
personality traits" and paranoia, and her clinical symptomatology suggested
"labile emotions and frequent mood swings." After observing defendant with
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her children, Dr. Yeoman concluded defendant demonstrated no understanding
of the children's special needs, that her lenient parenting style would not
permit them "to develop internal controls and an understanding of the
importance of following rules," and that the amount of structure and guidance
she could provide them "would be inadequate for healthy development." He
highlighted her failure to take any responsibility for the children's out-of-home
placement and her only recent willingness to comply with mental health
treatment despite a life-long history of problems.
Most significant, the psychologist noted defendant did not actively
demonstrate affection for her children and enthusiasm for interacting with
them, notwithstanding she had not seen them for eight months at the time of
the evaluation. The children, likewise, demonstrated no reaction to her leaving
the room, and did not actively seek her out and express affection for her.
Defendant had her newborn with her during the evaluation, and the
psychologist observed "on several occasions, the demands of attending to all
her children exceeded her abilities, and important needs of her children were
neglected." She at one point directed then four-year-old Jade to hold her
infant, whom Jade almost dropped, while defendant attended to another child.
On another occasion when she left the room with one of the other children,
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Martin knocked Kevin to the ground with a heavy toy, the baby started to cry,
and Daniel, then ten, was left to attend to her. Dr. Yeoman found no strong,
psychologically healthy bond between defendant and any of her six older
children, describing her relationship with them as "more consistent with what
is often found between a child and an extended family member, such as with
an uncle or aunt." In contrast, Dr. Yeoman found Martin securely bonded to
his grandmother.
By the time of the first guardianship trial in April 2018, however, the
psychologist had somewhat altered his opinion as to defendant's ability to
parent her children. He testified he had only recently been provided with
updated reports of defendant's participation in services in Florida. Having
reviewed those records, which revealed that defendant had been engaged in
treatment in Florida for nearly a year, and that Florida's child protective
services agency had closed her case, having no concerns about her care of her
infant, Dr. Yeoman amended his earlier assessment. Writing in an updated
report that it appeared defendant had "demonstrated a greater commitment to
treatment than initially indicated," he found the new information "could not be
ignored."
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Although acknowledging defendant's efforts, the psychologist still
maintained he saw no evidence that "defendant has addressed the central issues
of her case," or demonstrated the ability to maintain housing or achieve
financial stability, and thus his opinion as to Martin, Pauline and Jade
remained the same. As to Daniel, Ilene and Kevin, however, the psychologist
opined that in light of "their ages and lack of adoptive homes," and defendant's
"current commitment to treatment," that allowing defendant "an additional
three months to address and remediate the central issues of her case is unlikely
to cause them substantial harm."
Thus, although remaining of the view that defendant would be unlikely
"to address these issues sufficiently," given that she previously demonstrated
no understanding of how her lenient parenting style put the children at risk of
harm, was unaware of how she would need to change the way she parented in
order "to suit each of her children's special needs" and took no responsibility
for the children's initial or continued placement, Dr. Yeoman recommended
defendant be given another, limited, chance to show she could be an adequate
parent to her three oldest children. He identified seven treatment goals for
defendant:
(1) Gain sufficient understanding of the importance
of structure and supervision for all of her children,
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especially those with special needs. Demonstrate how
she will change her parenting style to suit each of her
children’s special needs.
(2) Recognize her responsibility for her children’s
initial and ongoing placement with the Division,
identify the personal and parental deficits which
contributed to their removal from her care, and
demonstrate substantial improvement in those
domains.
(3) Demonstrate an appreciation for the difficulties
her children would likely encounter if they were
transitioned back into her care and develop a plan to
sufficiently address these anticipated difficulties.
(4) Demonstrate insight into the impact her mental
health had on her ability to parent her children
adequately and develop a plan to sufficiently address
her mental health issues.
(5) Consistently and actively participate in
telephone visitation with her children.
(6) Achieve and maintain housing and financial
stability.
(7) Submit to a psychological reevaluation in three
months to determine the degree of treatment progress
made and if reunification is warranted at that time.
Dr. Yeoman opined that if defendant could not demonstrate substantial
progress toward each of those goals within a few months, then the only option
for the children achieving permanency would be by termination of her parental
rights.
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Having heard Dr. Yeoman's testimony, the trial judge concluded the
Division did not carry its burden on the second and fourth prongs of the best
interests standard as to any of the children, and that defendant should be
permitted an additional period to demonstrate that she could remediate the
harm to the children resulting in their placement. 3 The judge accordingly
dismissed the guardianship case and reinstated the Title 30 protective services
action. The Division did not appeal that order. The judge further ordered the
Division to meet with defendant to formulate a plan in conjunction with the
Florida authorities to address Dr. Yeoman's treatment goals for defendant and
ordered her to submit to a reevaluation in three months to assess her progress.
Despite some initial efforts, defendant did not make significant progress
toward her treatment goals. She missed visits with the children, cancelling
3
The court also declined to terminate the rights of Daniel, Ilene and Kevin's
father and Jade and Pauline's father, notwithstanding that it found the Division
proved the first three prongs of the best interests standard as to both men,
stating "[t]he court does not terminate the rights of one parent when another
parent could be fit." The Division did not appeal that order, and thus that
ruling is not before us. We accordingly express no opinion on it. But see N.J.
Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 228 (App. Div.
2013) (rejecting defendant's attempt to rely on other parent's defenses to avoid
termination of defendant's parental rights) (citing N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 288 (2007) (holding "[p]arental rights are
individual in nature and due process requires that fitness be evaluated on an
individual basis")).
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flights, paid for by the Division, at the last minute,4 and refused to attend two
scheduled reevaluations with Dr. Yeoman. She was also evicted from the
shelter where she had been living in Florida, and into which she had planned to
move the children, because she failed to keep her room clean. Florida
authorities refused the Division's interstate request to inspect the new
apartment defendant secured through an anti-homelessness program for its
suitability for the children because she would not comply with that state's
requirement for the inspection.
Three months after the first guardianship trial, the court approved the
Division's permanency plan for termination, and the Division filed a new
guardianship complaint. Defendant finally attended a reevaluation with Dr.
Yeoman in December 2018, five months after it was first scheduled.
Defendant told the psychologist she could temporarily establish all six children
with her and her youngest child in her new two-bedroom apartment; that she
4
When she cancelled one visit in June 2018 on the day before she was
scheduled to arrive, she texted the worker, "my kids will understand." Upon
learning from his resource parent that his mother had cancelled, Daniel had an
explosive outburst, cursing and soiling himself. He twice hit the resource
parent and threatened to poke her in the eye with a broom he brandished.
Although he subsequently calmed down and apologized, the resource mother
decided she could no longer care for him and asked that he be removed from
her home. Daniel had two overnight placements before being moved to
another resource home.
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would be offered a larger apartment at the end of her one-year lease; and could
never be dropped from the housing program; all of which were contradicted by
the program's housing administrator with whom Dr. Yeoman spoke in order to
understand defendant's current housing in Florida. After reevaluating
defendant, the psychologist opined that she had not demonstrated she could
maintain stable housing for herself and her children and was "on a negative
trajectory," given that she was already three months behind in her, heavily
subsidized, rent in her new apartment and had yet to transfer the utilities into
her name as required.
Although Dr. Yeoman acknowledged defendant's compliance with her
psychotropic medications, and that she had better insight into the problems
that led to the children's removal, he found she continued to not appreciate the
likely difficulties her children would encounter were they returned to her care.
Moreover, she "continue[d] to be overwhelmed by completing the basic tasks
necessary to maintain a stable life and reunification with her children " with
only one child in her care — remaining late on her rent, failing to transfer the
utilities into her name, and not completing the forms necessary to permit
Florida authorities to initiate the home study process. She had also not
returned to therapy after completing a six-month program in November 2018.
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Defendant's housing program encouraged her to continue counseling, as had
Dr. Yeoman, but she didn't follow through. Defendant also cancelled trips to
New Jersey to visit her children at the last minute and had never submitted a
plan for reunification, despite having five months to do so.
Dr. Yeoman wrote that "[i]f completing these tasks and managing her
own life is more than [defendant] could handle," he had "little confidence that
she could handle the stress and logistics of caring for six additional children ,"
several with special needs. The psychologist did not undertake an updated
bonding evaluation between defendant and her children because he saw no
reason to anticipate any change, given how infrequently defendant had visited
or spoken with them since his first bonding evaluation. He opined that none of
the children would suffer severe and enduring harm were defendant's rights
terminated and that doing so would provide the children an opportunity for
permanent placement through select home adoption. Dr. Yeoman again
repeated his opinion of the strong, psychologically healthy bond between
Martin and his grandmother, and that removing him from her care would likely
cause him to suffer substantial harm to his development.
At the second guardianship trial, Dr. Yeoman testified consistent with
his report, and two Division employees, a supervisor in the adoption unit and a
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family services specialist, testified to the Division's efforts to provide services,
the children's status and the Division's plans to find them permanent homes.
The family services specialist also testified to the Division's interactions with
the Florida authorities and defendant's case manager in her anti-homelessness
program. Included in that testimony was a report received just days before
trial that defendant was then behind $480 in her rent and had recently failed a
housing inspection for housekeeping issues, including letting her garbage
block a neighbor's door. The Florida case manager also advised she had made
a referral to child protective services that defendant was failing to provide
adequately for her youngest child. The Division witnesses testified the plan
for all of the children, but Martin, was select home adoption. The law
guardians for the children did not present any witnesses.
Defendant testified in her own behalf. She acknowledged that she was
again facing eviction, explaining she had to choose between paying her storage
bill and paying her rent. She also admitted she had an open matter with
Florida's child protective services agency over her care of her youngest child ,
had not returned to therapy, and that the Florida authorities had never
conducted the home inspection she needed in order to permit the Division to
assess her two-bedroom apartment's suitability for seven children.
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Based on the facts adduced at trial and his assessments of the credibility
of the witnesses who testified, the judge found the Division established all four
prongs of the best interests standard by clear and convincing evidence. He
relied on his findings from the first trial that defendant had endangered her
children by environmental neglect by forcing them to live in unsanitary
conditions, and her failure to enroll the older children in school. The judge
further found the children's safety, health and development would continue to
be endangered by their relationship with their mother based on her inability to
maintain a minimal degree of stability in her own life and her inability or
unwillingness to provide them a safe and stable home. The judge noted
defendant's inability to manage stable housing for herself and one child,
finding no evidence that she could somehow more effectively provide for the
other six children she had condemned to placement by her neglect and
incapacity.
The judge did not find defendant's account of her efforts since the first
trial credible, noting "[s]he merely acknowledged a host of unresolved issues
and either blamed others or offered a myriad of excuses for things undone."
He concluded her testimony revealed her failure to comprehend the impact on
the children of having been in placement for well over three years, and that her
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"plan — just get the kids to Florida [and] everything will be right — lacks
insight" into herself and them. Crediting Dr. Yeoman's testimony about the
need the children have for permanency, which their mother cannot provide, the
judge found further delay would only compound the harm they had already
suffered.
Based on the myriad of services the Division provided defendant,
including after she relocated to Florida, the judge concluded the Division
easily met its obligation to provide her the services she needed to correct the
conditions that led to the children's placement. The judge also considered, and
rejected, alternatives to termination, including relative placement, long -term
specialized care, independent living and, as to Martin, kinship legal
guardianship with his paternal grandmother, which was unavailable because
she wished to adopt him.
Finally, the judge concluded, based on the unrebutted expert testimony,
that termination of defendant's parental rights would not do more harm than
good, even as to those children, all except Martin, who were not then in pre-
adoptive homes. The judge accepted Dr. Yeoman's testimony that defendant
was not then fit to parent her children, and that additional time had not and
would not change that, leading the judge to conclude the Division's plan of
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select home adoption posed less risk to them than continuing their relationship
with a parent who could not provide them the permanency they needed.
Our review of a trial court's decision to terminate parental rights is
limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49
(2012). We generally "defer to the factual findings of the trial court because it
has the opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand; it has a 'feel of the case' that can never be
realized by a review of the cold record." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., 189 N.J. at 293).
Having reviewed this record, we are convinced the judge's findings as to
each of the four prongs of the best interests test have ample support in the trial
testimony. Defendant's arguments that the Division failed to make reasonable
efforts at reunification, failed to timely assess defendant's great aunt Edith as
an alternative placement for the children, and that the trial court's findings as
to the second and third prongs were thus inadequate are without sufficient
merit to warrant any extended discussion here. See R. 2:11-3(e)(1)(E).
Defendant claims the Division spoiled the chance the judge gave her
after the first trial to prove her ability to parent her children by failing to
transmit Dr. Yeoman's seven treatment goals to her Florida therapist when she
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started therapy in May 2018. Specifically, defendant argues the family
services specialist "testified confidently" on direct that Dr. Yeoman's treatment
goals were "submitted" to defendant's Florida service provider, but was forced
to concede on cross "that she was not sure if [defendant's] therapist 'actually
got Dr. Yeoman's recommendations.'" A review of the transcript and the
contemporaneous contact sheets in evidence tempts us to term the argument
disingenuous.
In response to a question form the deputy attorney general on direct, the
family services specialist testified about the Division's efforts to ensure
defendant was receiving the appropriate type of treatment in Florida, by stating
"[t]he Division submitted Dr. Yeoman's recommendation" to defendant's
service provider. The deputy did not explore the issue further and did not ask
the case worker to review the case sheets documenting the Division's efforts.
On cross-examination by the law guardian for Jade and Pauline, the worker
again testified that she provided Dr. Yeoman's recommendations to "[t]he
person . . . in charge of [defendant's] case," whom she "believe[d]" was "her
actual therapist." That led to the following exchange between the two:
Q: You don't know?
A: No, I don't.
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25
Q: So you're not sure if her therapist actually got Dr.
Yeoman's recommendations?
A. No.
The law guardian likewise did not direct the worker's attention to the
case sheets in evidence. A review of those documents makes clear, however,
that not only had the case worker emailed Dr. Yeoman's last evaluation to
defendant's Florida therapist on May 24, 2018, she also spoke with her on the
telephone the same day and "advised [the therapist] of what [defendant] needs
to be working on according to Dr. Yeoman's report." As that occurred exactly
two weeks after defendant began her outpatient therapy in Florida, we dismiss
defendant's argument that the Division's "blatant failure to do anything with
Dr. Yeoman's treatment plan" requires reversal of this guardianship judgment.
Defendant's argument that the Division failed to make reasonable efforts to
reunify her with her children is simply belied by the overwhelming evidence to
the contrary in the record.
Defendant's argument that the judgment must be reversed because of the
Division's failure to timely assess her great aunt for placement of the children
is similarly constructed on isolated facts that obscure the larger picture. The
Division concedes that it failed, through an oversight, to assess defendant's
great aunt Edith. It also notes, however, that defendant did not raise the issue
A-3569-18T3
26
at either guardianship trial, asserting the argument only in her brief on appeal.
Notwithstanding, following the filing of defendant's merits brief, the Division
attempted to assess Edith, submitting an interstate request to Florida. Edith
failed to respond and was eventually sent a rule out letter from which she did
not appeal.
The Law Guardian for Jade and Pauline moved to supplement the
appellate record with documents relating to the rule out. Defendant cross-
moved to remand the issue for an evidentiary hearing to assess the basis of the
Division's rule out letter, attaching a certification from Edith that she never
received either a telephone call or letter from the agency supposedly
conducting her interstate assessment. We granted the motion for remand, our
second,5 and a different judge concluded upon hearing testimony that Edith's
5
We previously granted the Division's motion for remand to allow it to send
notices under the Indian Child Welfare Act. Although defendant had never
asserted Indian ancestry to the Division, she identified herself as Native
American in a service referral document in 2018. When the Division belatedly
discovered that fact, it sought a temporary remand to permit it to comply with
the Act. After gathering information, the Division sent notice to the tribes,
receiving a timely reply from the Eastern Band of Cherokee Indians that the
children do not qualify as "Indian Children" pursuant to 25 U.S.C. § 1903(4).
None of the other tribes responded. An order was thereafter entered by the
same judge who presided over the second remand that the Indian Child
Welfare Act does not apply to the children. Defendant confirmed at oral
A-3569-18T3
27
assertion of not having received letters and calls from the interstate provider
seeking to assess her for placement was not credible. The judge further found
that the Division properly assessed and ruled out Edith as a placement resource
for the children.
Defendant does not contend the evidence was insufficient for the remand
judge to have made that finding. Instead, she asserts we should admonish the
Division for its failure to timely assess Edith and continues to claim its failure
somehow renders the trial court's conclusion on the third prong unreliable.
While we do not condone the Division's failure to have timely assessed Edith,
the Division conceded its error and took steps to rectify it. We thus find
nothing to criticize. Defendant's argument that the trial court's finding on the
third prong is undermined by the Division's failure to timely rule out a relative,
whom she concedes — by not arguing otherwise — could not care for the
children; a dereliction she never raised to the trial judge in any event, is
obviously insufficient to overturn the judgment.
This case, in our view, turned on the fourth prong — whether
terminating defendant's parental rights without adoptive homes on the horizon
___________________
argument that she is not contesting that ruling and has accordingly abandoned
the issue.
A-3569-18T3
28
for five of the six children would not do them more harm than good. Our
Supreme Court long ago acknowledged the "unfortunate truth that not all
children, who are 'freed' from their legal relationship with their parents, find
the stable and permanent situation that is desired even though this is the
implicit promise made by the state when it seeks to terminate the parent-child
relationship," N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611
(1986) (quoting In re Angelia P., 623 P.2d 198, 210 (Cal. 1981) (Bird, C.J.,
concurring and dissenting)). With that understanding, we have admonished
that "[a] court should hesitate to terminate parental rights in the absence of a
permanent plan that will satisfy the child's needs." N.J. Div. of Youth &
Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).
Although the trial judge did not separately analyze the fourth prong as to
each child as he should have, we have no doubt he was clear-eyed about what
he was balancing in assessing that "fail-safe" prong — whether more harm is
likely to befall these children by staying with their mother than by being
permanently separated from her. See A.W., 103 N.J. at 610. And on that
critical question, while the children's prospects for achieving permanency
through adoption differed, those prospects were all balanced against one
A-3569-18T3
29
constant — the unrebutted expert testimony that none of the children was
bonded to defendant.
None of the parties to this appeal requested oral argument. Because the
deputy attorney general, however, had sent us several letters during the
pendency of this appeal advising of changes in one child or another's
placement status pursuant to Rule 2:6-11(f), and we thought it important to
have a better understanding of where matters stood, we requested the parties
orally argue the appeal and asked the deputy to provide us current information
on the placement status of each child. In response, the deputy advised that
Daniel was "stepped down" from the Youth Consultation Service - Holly
Center to a Devereux Treatment Home two months ago; Martin remains in the
adoptive home of his paternal grandmother, where he has been for the five
years since removal; Kevin moved to an adoptive home ten months ago; and
Ilene, Jade and Pauline are together in an adoptive home where they were
placed over a year ago.
As in N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228,
247 (App. Div. 2010), our review of the trial court's decision in this case has
thus been "aided by the benefit of time." But unlike in that matter, where a
culmination of events post-judgment caused us to question an otherwise sound
A-3569-18T3
30
decision by the trial court terminating a parent's rights, id. at 249, here post-
judgment developments largely have tended to vindicate the trial judge's
acceptance of the Division's testimony "that the children were still adoptable
and capable of a permanent placement," A.W., 103 N.J. at 616, and thus that
termination of defendant's rights as her children would not do them more harm
than good. Now, unlike at the end of trial when five of these six children had
only the prospect of select home adoption, five of the six are in pre-adoptive
homes with the stable and permanent relationship with a nurturing adult such
homes promise.
While the law guardians for Ilene, Jade and Pauline urge us to affirm the
decision terminating defendant's parental rights, thus freeing them for
adoption, the law guardian for Daniel, Martin and Kevin echoes the arguments
by defendant we have rejected, and adds that the trial court erred in finding
termination was in the boys' best interests "where they firmly desire to return
home, [Daniel's] and [Kevin's] prospects for adoption are exceedingly slim,
and there is no compensating benefit to severing the parental relationship."
While conceding that Martin has been in a pre-adoptive home since
removal and Kevin's prospects for adoption have changed for the better, given
he has been in a pre-adoptive home for over ten months, their law guardian
A-3569-18T3
31
argues the court failed to take their and their brother Daniel's wishes to
maintain a relationship with their mother and each other into account, and that
the Division never considered placing fewer than all six children with
defendant. They stress that defendant "has no issues with substance abuse or
criminal activity and only minor concerns about her mental health."
We agree with Daniel, Martin and Kevin that the trial judge erred in
failing to address the children's wishes in his opinion, see E.P., 196 N.J. at
113, and to consider the children individually.6 We also agree that in
6
It is not correct that the Division did not advocate for addressing the children
individually or consider placing fewer than all six with defendant. While
pressing for termination of defendant's rights to all six children at the first
guardianship trial, the Division sought, alternatively, to terminate defendant's
rights to Martin, Jade and Pauline, all of whom were in pre-adoptive homes at
the time of the first guardianship trial, consistent with Dr. Yeoman's opinion.
The trial judge rejected that position, stating:
[t]he court cannot merely look at the roster of children
and determine that since [Martin, Pauline and Jade]
have adoption possibilities and [Daniel, Ilene and
Kevin] do not that it would be appropriate to terminate
[defendant's] right to [Martin, Pauline and Jade] but
let her work for a few months regarding [Daniel, Ilene
and Kevin]. That approach is untethered to the statute
and is without standard.
As already noted, the Division did not appeal that decision, and as it is not
before us, we express no opinion on it. To the extent it could suggest that a
court is not to treat each child individually as to all four prongs of the best
A-3569-18T3
32
comparison to the circumstances of many other parents facing termination of
their rights to their children, defendant's problems appear as obstacles she
could more readily overcome. But that only makes more tragic that defendant
has not rectified problems that have persisted for almost ten years now, and
resulted in the children having been removed from her care five years ago.
Notwithstanding the efforts of two state child welfare agencies, defendant has
never managed to provide a safe or stable home for any of these children or
correct the problems that led to their removal. Indeed, throughout all these
years, there has been only one period of nearly a year in which defendant was
compliant with services or making any real effort at reunification with these
six children, which coincided with the birth of her seventh child.
Moreover, she never appeared to grasp the harm she had done and
continues to do to them. There are entries in the case sheets, referred to at
trial, of visits in late 2018 and early 2019 between defendant and the children
supervised by the case worker, in which the worker relates defendant's
___________________
interests standard, as opposed to a finding that the Division had not clearly and
convincingly established that defendant was unable or unwilling to eliminate
the harm, we do not endorse it. See A.W., 103 N.J. at 613-14 (discussing
circumstances of each child vis a vis the parents and the child's potential for
establishing a permanent relationship with another nurturing adult).
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33
passivity in the face of aggressive play and roughhousing among the children.
In one, the worker related that she several times had to redirect the children to
keep them from hurting one another. Each time the worker spoke to the
children, defendant would interject to inform that worker that was how her
children played, and that they "get their behaviors from her family." On
another occasion, shortly before the second trial, when the worker was again
having to stop the children from too-aggressive play while defendant sat
passively watching, defendant told the worker "that's how my kids play, if they
didn't play like this then I would be concerned." Dr. Yeoman noted these
visits at trial, testifying that defendant didn't appreciate the problem of letting
this chaotic behavior go unchecked.
The conclusion is inescapable that defendant remains oblivious to the
serious behavioral problems exhibited by each of these children, which vary
only in the degree of severity each demonstrates. The record is stuffed with
reports of their aggressive and inappropriate behavior toward other children
and resource parents, and it is one of the main reasons, as counsel has
acknowledged, for the difficulties the Division has experienced in finding
permanent homes for them. Dr. Yeoman opined years ago that defendant's
"lenient parenting style" failed these children by not ensuring they could
A-3569-18T3
34
"develop internal controls and an understanding of the importance of following
rules," and that the amount of structure and guidance she could provide them
"would be inadequate for healthy development."
Even more troubling is Dr. Yeoman's observation during the bonding
evaluation that defendant did not actively demonstrate any affection for her
children or enthusiasm for interacting with them. Having reviewed this
voluminous record in some detail, that fact remains the most fundamental and
striking here. Defendant has simply rarely, if ever, demonstrated love, care or
consideration for any of these children, nor any delight or enthusiasm in
interacting with them. Her failure to communicate such feelings to them, for
we assume she has them, explains the absence of a bond between defendant
and any of these six children and readily distinguishes this case from E.P.,
which the Court characterized as one in which "a parent-child relationship that
continued to provide emotional sustenance to the child" was "severed based on
the unlikely promise of a permanent adoptive home." 196 N.J. at 114.
There is nothing in this record demonstrating that any of these children
is sustained emotionally by their relationship with defendant. As the Supreme
Court has explained, "given the need for continuity, the child's sense of time, and
the limits of our ability to make long-term predictions, [the best interests of the
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35
child] are more realistically expressed as the least harmful or least detrimental
alternative." A.W., 103 N.J. at 616 (quoting Albert J. Solnit, Psychological
Dimensions in Child Placement Conflicts,
12 N.Y.U. Rev. L. & Soc. Change 495,
499 (1983-84)). Having reviewed the evidence and considered the Division's
success in securing pre-adoptive homes for Ilene, Kevin, Jade and Pauline after
entry of the judgment, we are satisfied that termination of defendant's parental
rights is the least harmful or detrimental alternative for them and Martin.
Accordingly, because there is sufficient support in the record for the trial court's
conclusion that the Division proved the first three prongs of the best interests
standard by clear and convincing evidence as to all six children, and likewise
proved the fourth prong as to the five younger children, we affirm the termination
of defendant's parental rights as to Martin, Ilene, Kevin, Jade and Pauline,.
Notwithstanding our general confidence in the trial court's findings, Daniel's
more significant problems, his uncertain future, his desire to retain his connection
to his mother, and the trial court's failure to address specifically whether
termination of defendant's parental rights might leave Daniel worse off,
notwithstanding the unrebutted testimony that he lacks a healthy psychological
bond with his mother, compels us to vacate the judgment as to him and direct a
A-3569-18T3
36
limited remand for the court to address the fourth prong of the best interests test in
light of his, and defendant's, current circumstances.
Affirmed in part, vacated in part, and remanded. We do not retain
jurisdiction.
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37
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