Opinion
DOCKET NO. A-4638-10T1
06-14-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Appellant, v. Y.Z., Defendant-Respondent, and S.M., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF D.Z., Minor
Ann Avram Huber, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General of counsel and on the brief; Ms. Huber, on the brief). Rebekah E. Heilman, Designated Counsel, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief). Charles Ouslander, Designated Counsel, argued the cause for minor D.Z. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ouslander, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Simonelli and Hayden.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-129-11.
Ann Avram Huber, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General of counsel and on the brief; Ms. Huber, on the brief).
Rebekah E. Heilman, Designated Counsel, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief).
Charles Ouslander, Designated Counsel, argued the cause for minor D.Z. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ouslander, on the brief). PER CURIAM
The Division of Youth and Family Services (DYFS or Division) appeals from a Family Part order dated April 19, 2011, dismissing its guardianship complaint against Y.Z. (mother) and S.M. (father) on the grounds that the Division failed to satisfy the fourth prong of the best interests test, N.J.S.A. 30:4C-15.1(a), and from a February 27, 2012 order denying the Division's motion to reopen the judgment, R. 4:50-1(b), after we temporarily remanded this case to the trial court. We reverse.
I
The issue before us is whether, on the current record, there is substantial credible evidence to support the trial judge's conclusion that termination of Y.Z.'s parental rights to her son D.Z. would do the child more harm than good. There is no dispute that Y.Z. is incapable of functioning as D.Z.'s parent, because of her psychological problems, her borderline intelligence, her unwillingness to accept services, and her history of dysfunctional relationships with men who abused her and abused D.Z. She does not appeal from the trial judge's finding that the Division satisfied the first three prongs of the best interests test. The sole issue in this case concerns the fourth prong. Therefore, we focus on the evidence pertinent to that prong.
Y.Z. has several other children, none of whom live with her.
The child, who was born in April 2001 and is now eleven years old, has significant special needs. Due to his serious behavioral problems, he has been through four different foster homes since 2008. However, since January 2011, he has been living with specially trained foster parents, who now wish to adopt him. At the time of the guardianship trial in April 2011, he had been in their home for only a few months, and while he was thriving there, it was not yet known whether the family would want to adopt him.
At the guardianship trial, DYFS presented testimony from case worker Debbie Gomez, who explained that the child had been through several foster placements, all but the most recent of whom had asked that he be removed from their homes due to behavioral problems. However, his most recent foster parents, who were trained to deal with special needs children, appeared to be much more successful in managing the child's behavior. According to Gomez, because the child had only been with this foster family for a few months, it was too early to tell whether the placement would ultimately succeed and whether they would want to adopt D.Z. Later in the guardianship trial, Gomez was re-called as a witness by the Law Guardian to give more specific testimony about her observations of the relationship between D.Z. and his current foster parents. She testified that D.Z. referred to the foster parents as "mommy and daddy." She also heard D.Z. call the foster father "coach," because the father coached basketball; she perceived this as a term of endearment.
A second DYFS caseworker testified that terminating the mother's parental rights would give the Division a broader range of options for locating an adoptive family for D.Z. Those options would include a nationwide search for an adoptive home.
The Division also presented expert testimony from Dr. Frank Dyer, who explained the extreme importance to D.Z. of having a permanent home, and the destructive consequences to a child of remaining permanently in foster care. Dr. Dyer also found that D.Z. had a strong bond with his mother, who at that time was his only "love relationship." Therefore, he recommended that even if the court terminated her parental rights, the court should provide for continuing visitation with Y.Z. until a permanent adoptive home was found for the child. Dr. Dyer opined that the child would be able to form an attachment with an adoptive family.
The Law Guardian presented expert testimony from Dr. Elizabeth Smith, who interviewed the child and also performed a bonding evaluation between the child and his mother. She found that the two had "a very warm, caring relationship." She also opined that the child believed it was his fault that he could not live with his mother:
When I spoke with him privately, he told me that he was aware of what adoption meant. That he was very clear that he did not want to be adopted by another family. He wanted to go home to his mother.
He also told me that the reason that he had not gone home was because of his behavior. So it was clear to me that he had internalized what was happening and formulated to himself that the reason that he couldn't go home was because he was a bad kid in some way.
She testified that this frequently happened to children in foster care. "[M]any times . . . in children, it's a defense. Because the child rather than blaming the parents . . . in their mind they protect the parent and they put all the blame on themselves."
Dr. Smith testified that D.Z. "is a child who's capable of making additional attachments to other caregivers." She opined that if the court terminated his mother's parental rights the child "could be placed with another family." However she explained the danger to the child of terminating contact with his mother at a time when there was no prospect of a permanent adoptive placement for him:
The only problem would be that right now [D.Z.'s] only attachment is to his mother. And to cut that off until there's another person in his life who could provide at least the promise of permanence in the future would be cruel and I think have long lasting effects on him.However, like Dr. Dyer, she testified to the extreme importance of permanency, which she explained as:
Permanency is the promise that a child will be able to stay with a caring parent throughout their childhood. That they will be able to have a stable, caring and safe upbringing and to know where they belong. That they're not going to be placed in another foster home. They're not going to have to leave.
. . . .
Permanency really is almost a restoration of the trust that exists between a biological parent and child from birth on. That this is the person who will always be there to take care of you.
She testified that in D.Z.'s case, a safe and stable home would include caretakers who knew how to address his special needs "so that he can go forward in school and socially." She explained that lack of permanency could exacerbate his behavior problems, as he continued to blame himself for his impermanent living situation:
And that of course would set him up for multiple short and long term consequences . . . the behavior problems which he is much more vulnerable to given his attention deficit, depression, anxiety. And that would only increase as he grows older and impact on his ability to be successful in school, to make good judgments regarding relationships.
Dr. Smith agreed with Dr. Dyer that there would be severe consequences to D.Z. if his mother's parental rights were terminated "with no caregiver in the wings." Should that occur, she recommended that D.Z. continue to have visitation with Y.Z. until the Division located an adoptive family for him. She opined, however, that the worst case scenario would be returning to his mother, and having the reunification fail.
At this point during Dr. Smith's testimony, the trial judge expressed his concern that the case confronted the court with "many poor choices" because all of the available options threatened some harm to the child.
On cross-examination, Dr. Smith explained that the child, who was then nine years old, did not "have an attachment disorder" and would be able to form a relationship with a parental figure other than his mother. She believed that he had not yet done so because of his attention deficit hyperactivity disorder (ADHD), his behavioral issues and his many different foster placements. She testified if he were to be cut off from contact with his mother, he would be "very sad" and "how he handles that loss will be based on . . . whether or not he has another positive attachment to go to." She also testified that if parental rights were terminated, with no adoptive family available "it keeps him in limbo. Although I do think that the harm could be mitigated if he has continued contact with his mother." Consistent with Dr. Dyer's testimony, Dr. Smith explained that the legal expression "termination of parental rights" meant nothing to the child; what he cared about was "will I see my mother next week." She insisted that D.Z. "can't remain in foster care indefinitely" and that "permanency" was "the most important thing for him."
In her defense, Y.Z. presented expert testimony from Dr. Antonio W. Burr, who conducted two bonding evaluations of D.Z. and Y.Z., in July 2010 and March 2011. At the July interview, Dr. Burr found a "substantial bond" between Y.Z. and her son, and the child "expressed a very strong wish to return and live with his mother." Dr. Burr observed the same strong bond in the March evaluation. He explained the difference between attachment and bonding, in that "attachment with children has to do with their capacity to . . . establish a significant emotional connection" with parents, other family members, babysitters and others, but that children "bond to exclusive figures that they identify as primary parental figures." He opined that D.Z. was both attached to and bonded with his mother. He also explained that the child would have to "come to the point where he realizes that this mother is just not going to be able to provide him with the parenting and the nurturing that he seeks" before he could "transition to another parental figure."
Like Dr. Smith, Dr. Burr believed that terminating Y.Z.'s parental rights without having an alternative parental figure in place would be very harmful for the child. He testified that "if there was another figure . . . that the child identifies in his emotional constellation, then it becomes practical and workable" to transition to another attachment figure. However, at the time of trial, there was "no one else." On cross-examination, Dr. Burr acknowledged that the child "has expressed that he has not been reunited with his mother because of his behavioral issues." He agreed that it was not unusual for children to "internalize the problems around them and make themselves responsible. And that has tremendous impact in terms of their self-worth and their self-esteem." Dr. Burr agreed with Dr. Smith that D.Z. was capable of "making further attachments." He also testified that "the older [D.Z.] is, the more difficult it's going to be for him to find an adoptive home." He agreed with Drs. Smith and Dyer that D.Z. needed permanency, but as he put it, "[t]he problem is with whom?"
In her summation, the Law Guardian stated that her client wanted to live with his mother, but she acknowledged that his wish was not realistic. The DYFS attorney asked the judge to terminate the father's parental rights based on abandonment, since he had refused to appear in the action and had told the DYFS worker that he was not interested in caring for his son and was willing to allow him to be adopted. However, the attorney also asked the judge not to terminate the father's rights if he did not also terminate Y.Z.'s parental rights because, for example, if Y.Z. someday regained custody of the child she might need child support from the father. The DYFS attorney represented to the trial judge that if the court terminated parental rights, DYFS would consent to the child having continued visits with his mother until he was placed for adoption.
The judge issued a written opinion on April 19, 2011, finding that DYFS proved the first three prongs of the best interests test, but did not prove the fourth prong. Relying on New Jersey Division of Youth and Family Services v. E.P., 196 N.J. 88 (2008), and New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986), the judge reasoned that termination would do more harm than good when "a parent has a bond with a child and there are no adoption prospects on the horizon." The judge emphasized his concern over the harm that might befall D.Z. if he simply continued cycling through "multiple foster homes" and never found an adoptive home. The judge considered the child's three prior failed placements in foster homes and the fact that his current placement might also fail. The judge also considered the child's strong bond with his mother and the harm that would befall him if he were deprived of contact with his mother, but had no other parent-child relationship. The judge accepted the experts' testimony that the child was capable of forming an attachment to someone else but concluded that "the true problem in this case is that there is no one out there other than his mother for him to attach to. No one has offered themselves for him as a permanent placement, and frankly, there is no one on the horizon right now." The judge was also concerned that because the child did not want to be adopted, an adoption might fail: "This child has never expressed a desire to be adopted and there is no one to adopt him."
The judge did not terminate the rights of the father, S.M., either. While stating that he "could have made a finding against [S.M.] under the four prongs of the [b]est [i]nterest [t]est," he honored the Division's request that he refrain from terminating the father's parental rights because he was not also terminating the mother's rights.
The Division appealed and, while the appeal was pending, sought to supplement the record with information that D.Z.'s foster parents now wish to adopt him. In support of the motion, the Division filed a certification from DYFS caseworker Gomez, with an attached adoption commitment letter signed by the foster parents, indicating that they had "decided to commit to keeping [D.Z.] as part of our family, and to adopt him, should he become legally free for adoption." Instead of granting that motion, by order dated January 9, 2012 we remanded the case to the trial court to permit the Division to move for relief from the judgment under Rule 4:50.
On this record, there is no dispute that the foster parents are now willing to adopt D.Z. There is also no dispute that D.Z. would prefer to return to his mother's custody but is willing to stay with his foster family if he cannot live with his mother.
On remand, the Division submitted the foster parents' adoption commitment letter to the trial judge. The Law Guardian filed a cross-motion for discovery and a hearing concerning this new evidence. The Law Guardian also submitted her own certification with an attached, handwritten letter from D.Z. stating that he wanted to return to his mother because "she needs" to take care of him and his brothers and sisters.
At oral argument of the Division's motion, the DYFS attorney asserted that the foster parents' commitment to adopt D.Z. addressed the judge's primary concern that the child would be left in limbo if parental rights were terminated. The Law Guardian told the judge her client's wishes:
[H]e does want to live with his mother. He does not want his mother to be all alone. However, if he's not able to return to the care of his mother, he is okay staying in his current placement. That was his most recent comment to myself regarding his wishes in this matter.The Law Guardian acknowledged that the child has "been in a foster home placement now for . . . 13 months, and has been unable to reunify with his mother." She suggested that the court permit discovery and hold an additional evidentiary hearing on the new evidence. The mother's attorney argued that the foster parents' willingness to adopt did not outweigh D.Z.'s desire to reunite with his mother. Alternatively she urged the court to order a bonding evaluation between the child and the foster parents and to interview the child in camera concerning his wishes.
In an oral opinion placed on the record on February 27, 2012, the trial judge acknowledged the difficult decision with which he was faced. He reasoned that the foster parents' commitment to adopt the child was insufficient to justify changing his previous decision. He considered Dr. Burr's opinion that D.Z. was not "a good candidate for adoption." And he considered the experts' opinions that D.Z. was bonded with his mother. The judge reasoned that "under the A.R. case we need comparative bonding evaluations. . . . [P]rong four is not just is there a family ready, willing, and able to adopt him." The judge also recalled Dr. Smith's opinion that
it would be cruel to terminate his relationship with his mom without having developed a relationship with the new set of caretakers.However, instead of ordering a bonding evaluation between the child and the foster parents to satisfy his expressed concern, the judge presumed that, because the child expressed his preference to be reunited with his mother, the adoption would not be in his best interests, and denied the Division's application.
Has that happened? I haven't the faintest idea. . . . Now, he's in this foster home. Has he developed an attachment? . . . I haven't the faintest idea.
I presume he has some kind of attachment to these people. But I don't know the depth of it.
II
Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); E.P., supra, 196 N.J. at 102; see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102.
In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in A.W., supra, 103 N.J. at 604-11, and codified as N.J.S.A. 30:4C-15.1a:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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.
See In re Guardianship of D.M.H., 161 N.J. 365, 375-76 (1999) (discussing codification). In their application, the four factors above "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008); see also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010).
As previously indicated, in this case the focus is solely on the fourth prong of the test.
Prong four "serves as a fail-safe against termination even where the remaining standards have been met." The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be
served by completely terminating the child's relationship with that parent. It has been "suggested that [a] decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for . . . a more promising relationship . . . [in] the child's future." It also is widely understood that a "child deeply needs association with a nurturing adult" and that "permanence in itself is an important part of that nurture."
[E.P., supra, 196 N.J. at 108 (citations omitted).]
On this appeal, both DYFS and the Law Guardian urge reversal of the trial court's decision, while Y.Z. contends we should affirm the determination. In reviewing the trial court's decision, we are mindful of the deference we owe to the decisions of Family Part judges hearing guardianship cases. We must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We owe special deference to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
Having carefully reviewed the record, we are firmly convinced that, while the trial judge's original decision was sensitive to the child's needs and worthy of affirmance, his decision on remand misconstrued the evidence from the guardianship trial, was a mistaken exercise of discretion, and cannot be sustained. See In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002) ("[T]hat the original decision was correct when rendered . . . is not a legitimate basis for denial of a Rule 4:50 motion."); G.L., supra, 191 N.J. at 605. Every expert who testified at the trial agreed that this child has a paramount need for a permanent home. They all agreed that, while he has a strong emotional attachment to his mother, the child cannot possibly be reunited with her because she is utterly incapable of acting as his parent. What was missing at the first trial, however, was a foster family willing to adopt the child.
Although we acknowledge that we are reviewing a cold record, the experts' testimony overwhelmingly supports the conclusion that, had an adoptive family been available at the time of the trial, they all would have supported termination of Y.Z.'s parental rights. Further, our reading of the judge's written opinion after the trial convinces us that the fundamental premise of his decision was that it was not in the child's best interests to terminate his mother's parental rights before DYFS had located an adoptive home for him, because, as a difficult special needs child, he might then be left in "foster care limbo" for the rest of his childhood. That was not an unreasonable conclusion on the then-existing record, even though the child seemed to have finally landed in a foster home where the parents were able to deal with his special needs and he was thriving in their care.
Thirteen months later, the child was still with the same capable foster parents, who were committed to adopting him. There was no suggestion that D.Z. was not still thriving in their care. Cf. J.N.H., supra, 172 N.J. at 477. Yet the judge declined to order termination, apparently because this special needs child was unwilling or unable to say that he wanted to be adopted. While the judge was correct in considering the child's letter expressing his wishes, on this record it was error for the judge to give it such controlling weight. See E.P. supra, 196 N.J. at 112-13.
Given D.Z.'s history and his limitations, and as the experts explained, the tendency of children in general and this child in particular to blame themselves for their inability to be reunited with their parents, this child is never going to explicitly say that he wants to give up on being reunited with his mother and instead be adopted by his foster family. In all likelihood, the most he will say is what he told his Law Guardian - that he wants to be reunited with his mother, but if that is not possible he is "okay" with staying with his foster parents. On this record, we conclude that he would see any other statement as a betrayal of his mother and would then hold himself responsible for the court's failure to reunite him with her.
But it is overwhelmingly clear that what this child needs is a family that can deal with his developmental and behavioral issues and is willing to adopt him. He has finally found such a family, and the trial judge erred in refusing to set aside his earlier order and terminate Y.Z.'s parental rights. We also conclude that it was error to withhold termination of S.M.'s parental rights after the trial. As the trial judge correctly observed, S.M. failed to appear for the guardianship trial and, more importantly, he completely absented himself from his son's life. In fact, he told the DYFS caseworker that he was not willing to care for the child and was agreeable to the child being adopted if adoptive parents were available. On this record, as the judge indicated, the four prongs of the best interests test were established with respect to S.M.
The DYFS attorney correctly asked the judge to terminate S.M.'s parental rights on the merits, as opposed to by default. S.M. was served with the Division's notice of appeal but did not participate in this appeal.
Further, after the trial judge denied termination in April 2011, he reinstated the FN docket and ordered that the case be transferred from Hudson County to Passaic County for all further proceedings. We infer from his earlier comments on the record that he transferred the case because Y.Z. now lives in Paterson. After the case was transferred, a Passaic County judge held a series of hearings to review the status of the child's placement. On this appeal, DYFS supplied us with all of the orders entered by the Passaic judge in the FN docket; those orders uniformly note that S.M. failed to appear for any of the FN hearings.
We acknowledge that, on remand, the Hudson County trial judge asserted that he did not know whether D.Z. had formed an attachment to his foster parents and yet he did not order a bonding evaluation of D.Z. and the foster family. However, we conclude that in this case, a remand for that purpose is not required. The A.R. case, which the judge cited in his opinion, involved a choice between a parent who might be a fit parent versus foster parents with whom the child had bonded. There, we held that a bonding evaluation should have been done between A.R. and the child but affirmed the trial judge's decision to dismiss the guardianship action based on his determination that A.R. had become a fit parent, and because "the fourth prong 'does not provide an independent basis for termination where the other standards have not been satisfied.'" A.R., supra, 405 N.J. Super. at 444 (quoting G.L., supra, 191 N.J. at 609.).
Unlike A.R., this case does not involve a fit parent or a question of whether separating the child from foster parents with whom he has bonded, in order to return him to the parent, would cause him lasting harm. See also In re Guardianship of J.C., 129 N.J. 1, 18-19 (1992). This case involves a parent who will never be able to parent D.Z., and an older special needs child who desperately needs to find an adoptive home before the window of opportunity closes for him. He has been in foster care for years now. Unlike the psychologically fragile, suicidal teenager in E.P., who was bonded with her mother and had "no prospect" of adoption, D.Z. has a foster family willing to adopt him. See E.P., supra, 196 N.J. at 92. Based on all of the expert testimony, there is no reason to believe that he cannot form a parent-child attachment to those foster parents if he has not done so already. The harm from delaying permanency outweighs the benefits of remanding this case for further psychological evaluations. See A.R., 405 N.J. Super. at 444-45.
We reverse the Hudson County trial judge's order of February 27, 2012, direct that the guardianship complaint be reinstated, and remand the guardianship case to the Hudson County trial judge with direction to enter an order terminating the parental rights of Y.Z. and S.M. All of the experts indicated that continuing visits with Y.Z. would be important as the child transitions to adoptive status. Because of his familiarity with this case, we leave to the trial judge the determination as to the extent of the visitation to be ordered. Proceedings on remand should also include an inquiry as to whether the foster family is willing to voluntarily permit continued visits between D.Z. and his mother after adoption. See J.C., supra, 129 N.J. at 26. Although we do not retain jurisdiction, on remand the order terminating parental rights and determining visitation shall be entered no later than sixty days from the date of this opinion.
We are not suggesting that such visitation could or should be ordered on a permanent basis after adoption. But the information would ensure that there is a complete record in case there are further appeals in this matter.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION