SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2266-96T1
IN THE MATTER OF THE GUARDIANSHIP
OF DMH, CLHW, LFH AND RQH, minors
_______________________________________________________
Submitted February 10, 1998 - Decided March 6,
1998
Before Judges Conley, Wallace and Carchman.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County
Sanchez, Sanchez and Santoliquido, attorneys for
appellant L.R. (Carolyn Ungvary, on the brief).
Peter Verniero, Attorney General, attorney for
respondent New Jersey Division of Youth and Family
Services (Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Minda Maisel, Deputy Attorney
General, on the brief).
The opinion of the court was delivered by
CONLEY, J.A.D.
L.R., the biological father of two of four children involved
in this guardianship matter, appeals the termination of his
parental rights on the grounds of abandonment. We reverse.
All four children have the same biological mother, K.H., who
died in October 1995. In addition to L.R., who is the father of
C.H. (now seven years old) and R.H. (now four years old), the
Division of Youth and Family Services' complaint for guardianship
sought to terminate the parental rights of J.M., the father of
D.H. (now eleven), and of L.W., father of L.H. (now six years
old).See footnote 1
When D.H. was five and C.H. was one, DYFS became involved
with the family when L.H. was born in September 1991. At that
time the hospital reported to DYFS that both mother and child had
tested positive for cocaine and opiates. K.H. was referred to a
detoxification program and after DYFS confirmed that she was
attending a drug program, L.H. was released to the care of his
maternal grandmother, with whom K.H. lived, along with her two
other children, D.H. and C.H., and one or two other family
members in a two-room apartment. Upon a home visit, the
apartment was found to be overcrowded and K.H. with her children
were referred to the Elizabeth Housing Authority.
In June 1993, when R.H. was born, K.H. again tested positive
for drugs, this time heroin, as did R.H. Apparently the family
was still living with the maternal grandmother. DYFS determined
the conditions were "deplorable" and overcrowded and would not
permit R.H. to live there. After an unsuccessful effort to
locate alternative placements with family members, not including
L.R.,See footnote 2 on June 22, 1993 K.H. signed a voluntary foster home
placement agreement for R.H. and he was placed in a foster home.
DYFS learned of L.R.'s relationship with the children on
November 18, 1993, when he came with K.H. during a visit.See footnote 3 At
that time, he told the caseworker he was the father of C.H. and
R.H., but that he wanted to care for all four of the children.
It was his testimony during the termination hearing that from
1990 to the foster care placement of the children in 1993 he had
daily contact with the family, living in the same motel, and
supplying their daily needs. This testimony was not countered by
anything in the record. At the time he told the caseworker in
November 1993 that he wanted to be considered for placement of
the children, his living accommodations (a one-room apartment)
were not then sufficient, and his job as a caretaker for the
aging owner of the Smith Cadillac dealership, at which he was
earning $180 a week, "wasn't secure." He had no family relatives
to help care for the children.
C.H. and L.H. were placed in foster care on November 24,
1993. Initially they were placed in the same home as R.H. but
were later moved to their present foster home. R.H. was also
moved from the initial placement to his present foster home.
D.H., the oldest and most troubled of the children, apparently
has been in several foster homes and, just prior to the
termination proceeding, was placed in a "teaching family home."See footnote 4
What is at the crux of this appeal is the undisputed fact
that at no time did DYFS ever consider L.R. as a viable
prospective caretaker and at no time did it ever develop any
plans for reunification of the children with him. The following
evidence is illustrative.
The primary concern of the caseworker in November and
December 1993 when L.R. told DYFS he wanted to care for the
children was his housing. A contemporaneous case note at that
time states "`[L.R.] said although he is the father for [C.H. and
R.H.] only, he would like to care for all the children but he
does not have a permanent address at this time. He would like
the Division to assist him and [K.H.] in finding an apartment. I
told [L.R.] that we cannot find them [an] apartment. . . .'"
It was, then, made clear to L.R. in November and December
1993, that his living accommodations were not adequate. So, on
December 3, 1993, he went to the DYFS office with an application
for an apartment in Elizabeth and requested a letter from DYFS
stating that the children were going to be returned to him, in
order to help him secure the apartment. He was told "we don't
provide such letters until the children are placed with him." "A
Catch 22 situation for some people; isn't it?", was the apt
observation made by the trial judge. Additionally, while one of
the DYFS caseworkers asserted that before considering L.R. for
reunification a drug evaluation would have been performed, given
some medical history showing prior drug use, it was admitted that
such an evaluation was not requested of L.R. because
reunification with him was never contemplated. This despite the
drug treatment, homemaker, day care and shelter assistance
offered K.H.
The most DYFS did for L.R. was to refer him to Legal
Services, and told him that because of instances of domestic
violence on the part of K.H. towards him, he would have to obtain
a restraining order before placement of the children with him
could be considered. He did obtain a restraining order. He also
went to Legal Services, but was told nothing could be done for
him.
L.R. testified during the termination proceeding that he
"asked was there any kind of program or assistance that I could
get. Being that I could not financially provide for them is
there some kind of program that I could get involved with in
which - similar to what they had approached [K.H.] with and where
that it would be possible where I could get an apartment and to
be able to investigate child care procedures, . . . day care
procedures, schooling procedures and I did make attempts for
that, yes." He was consistently told there was nothing DYFS
could do to assist him.
From 1993 to July 1995, the children remained in their
respective foster homes with reunification with K.H. still the
goal of DYFS. Throughout the three years, L.R. maintained
consistent contact with the children, attending almost every
bimonthly visitation that was scheduled. As described by one of
the caseworkers "[L.R.] took an active role in participating in
the visits . . . I saw him at a regular basis . . . he had a lot
of contact with all of the family - with all of the children."
The years of L.R.'s involvement has established a strong
relationship between not only C.H. and R.H., but L.H. as well.See footnote 5
This is reflected by the May 30, 1996 psychological bonding
report of DYFS's psychologist, Dr. Wells. The report describes
Dr. Wells' observations of the interaction between L.R. and these
children in the following manner:
The children arrived prior to [L.R.], although he
was on time for his scheduled appointment. Upon
seeing him, [C.H.], [R.H.], and [L.H.], half-sibling to [L.R.'s] children, ran to him, hugging
and kissing him. Referring to him as daddy, it
was apparent that they were mutually happy to see
each other. [L.R.] arrived to the visit with
snacks including individual beverages for each of
the three children and a large bag of potato chips
which he stated to the children had been purchased
the day prior and refrigerated to make sure they
were cold for them.
From the onset, it was apparent that [L.R.] had
come prepared to visit with not only his
biological children, but [L.H.] as well, who at no
point did differentiate or show an unfavorable
response. The interactions were pleasant with all
three of the children overly demonstrating their
enthusiasm in visiting with him. [L.R.] brought
bubbles to the evaluation which immediately
occupied the children's attention and focus. He
showed them how to blow bubbles, gave each child a
turn, and excitedly praised the child for the
effort in attempting to blow a bubble.
[C.H.] made and maintained good eye contact with
[L.R.] who talked to each child individually,
looking at them while he spoke. He unreluctantly
sat on the floor with the children, laughing,
eating snacks, and blowing bubbles. There was an
ease in relating with the activity being fun. The
children sat in close proximity with him, each
within touching distance. [L.R.] made physical
contact with each child, none of who[m] pulled
back or seemed to be uncomfortable with him
touching them.
Relating positively to all three children, [L.R.]
asked [C.H.] about her performance in school and
spoke of activities and situations from earlier
visits. Stating to them that he was glad to see
them, [L.R.] related that he informed other
employees at his job, "I'm going across the street
to see my babies. I don't have time. I flew
across the street."
Although [C.H.], the oldest child and most mature,
attempted to determine how her brothers should
respond, it was clear that [L.R.] was the adult
figure structuring the visit. He complimented the
children on their hair, showed them pictures from
his wallet of themselves including a picture of
their oldest sibling, [D.H.], and asked them
questions pertinent to their live (sic) about
school, holidays, activities, and church. The
interaction was natural, pleasant, and easygoing.
The children were focused, calm, and interacted
without confusion or conflict. They played nicely
together, showing consideration and sharing of the
activities and snacks.
There was no indication at any time that all three
children were not raised in the same household,
although [R.H.] resides in an independent foster
home. Each child called [L.R.] daddy, a title he
did not reject. He referred to them as his
children, calling [L.H.] "Vonnie" a name he did
not reject or show anger when [L.R.] called him.
(It is noted that [L.H.] verbalized opposition to
this name when his biological father had referred
to him as Vonnie earlier during a bonding
evaluation with him. While he had corrected his
biological father, no correction [was made] when
[L.R.] referenced this name.)
Twice during the evaluation juice was spilled, initially by [L.H.] and then by [R.H.]. [L.R.] responded immediately to cleaning up the spilled
beverage and then poured some from his bottle to
replace his juice. [L.R.] was kind and non-critical, never overly angry, but merely placed a
bag over the wet area so the children would not
get wet. He then resumed the conversation,
asking, "what did you do for Easter?"
At one point during the evaluation [C.H.]
attempted to speak negatively about [L.H.'s]
biological father, questioning "[L.H.], why you
Daddy didn't bring no goodies?" [L.H.] replied
"my daddy?" Seeming to realize that discomfort
was about to occur, [L.R.] interjected, "because
he knew daddy [L.R] would bring some. Whose your
daddy? [asked to [L.H.]]" Without waiting for a
response, [L.R.] stated, "me. All of you mine."
During her trial testimony, Dr. Wells described the relationship
she observed between L.R. and the three children as "marvelous."
The May 30, 1996 report concludes not only that the children
were bonded to L.R., but that they saw him as a parental figure,
and that he, for his part, treated them in a positive parental
fashion. This is a fair reading of the following "clinical
impressions[:]"
[L.R.] promoted a loving, nurturing, and
considerate environment among the children and
with himself. At no point was he observed to be
inappropriate, unkind, or show partiality to any
of the children. It was apparent that he had
planned for the visit and was excited to see the
children.
Similar to [L.R.'s] enthusiasm relative to
visiting with the children, immediately upon
seeing him, each child overly showed their
delight. It was apparent that [C.H., R.H. and
L.H.] were pleased to see him. Moreover, the bond
between [L.R.] and the children was indicative of
a father relating to his children and vice versa.
The children were respectful of the adult-child
division and responded to [L.R.] in an appropriate
manner.
[Emphasis added.]
Nonetheless, Dr. Wells concluded in her report that:
Although it is noted by the present examiner
that a positive and mutual bond exists
between [L.R.] and the children, no support
can be given for him to secure care and
custody of the children as he lacks the
wherewithal to care for their day-to-day
needs.
The basis for Dr. Wells' ultimate conclusion that, while the
children were bonded to L.R., they should not be reunited with
him because he "lacks the wherewithal to care" for them, seems to
be her May 24, 1996 psychological evaluation of L.R. There are
several troublesome aspects of that report. Part of the
"relevant background information" contained in the report is a
reference to prior hospitalizations of L.R. at the psychiatric
unit of the Elizabeth General Medical Center, the most recent
admission having been April 25 to 28, 1994 during which he was
diagnosed with schizoaffective disorder, organic mood disorder,
and opioid dependence. This history of psychiatric episodes
seems to have played some role in the doctor's assessment of L.R.
L.R. referred to those past periodic hospitalizations as "rest
periods" and the record reflects that they seem to have related
to his relationship with K.H., who was abusive to him. There is
nothing in the record to suggest that whatever may have been
L.R.'s psychiatric problems they affected his relationship with
the children. Neither was there any evidence as of the date of
the termination hearing in October 1996 that he had had any
recurrence of the April 1994 episode. And the doctor's
"behavioral observations" of L.R. reflected no underlying
pathological or behavioral defects. As her report reads:
[L.R.] arrived early for his scheduled
appointment, and patiently waited for the
evaluator who was a half hour late. He was
dressed in a vest and dress pants along with a
tie. He presented as polite, cooperative, and
seemed to recognize the social contexts of the
evaluation. [L.R.] spoke candidly of his personal
and interpersonal relationship with [K.H]. There
was an idealized manner in which he perceived his
relationship with her, stating that they had plans
to secure a living environment where all four of
the children could reside. This objective seemed
to have gained greater momentum for him in light
of [K.H.'s] death, although [L.R.] was not clear
as to how he could proceed.
Appearing older than his stated age, [L.R.] was
cooperative with the demands of the evaluation,
responded to all questions posed of him during
both the clinical interview and test protocol
portion of this evaluation. His responses to the
questions posed were relevant and goal-directed.
No evidence of a thought disorder or a major
affective disorder were elicited. He made and
maintained good eye contact; did not overtly
present features of anxiety, and established
rapport with relative ease. Concerns relative to
clarity of speech, intonation, or enunciation were
not identified. Substance abuse or features
typically associated with substance abuse was not
noted. Although not formally assessed for
intellectual capabilities, [L.R.'s] cognitive
functioning is speculated to be within the
average.
Presenting in a candid and frank manner, [L.R.]
freely shared information about his relationship
with the examiner, seeming to be pleased with the
opportunity to discuss [K.H.] and the children.
Although he was aware that termination of his
parental rights to [C.H.] and [R.H.] were being
pursued, [L.R.] shared plans for all of the
children. Establishing that these two children
were his only blood relatives, [L.R.] discussed
his intention to not only pursue care and custody
of [C.H.] and [R.H.], but to acquire the same for
[D.H.] and [L.H.]. At no point during the
evaluation did [L.R.] waver in his desire to
secure care and custody of the children, but
consistently stated that he had provided care in
the past and believed if given resources, he could
provide care for [the] children.
Yet it was still Dr. Wells' ultimate conclusion that
While finances and a residence could be secured,
it is apparent that [L.R.'s] emotional and
psychological functioning would hinder him from
being independently effective in managing the day-to-day responsibilities of caring for [C.H.] and
[R.H.]. . . . Moreover, given the instability in
his own life demonstrated in his psychological
functioning, transient living situations, and need
for "rest periods," it is clear that [L.R.] would
be apt to fail in providing a stable home
environment for the children.
However, the "rest periods," the last of which was in 1994, as
far as the record discloses, have had no impact upon L.R.'s
relationships with the children, despite his consistent contact
with them. As for the "transient living situations," from our
review of the record, it seems that over the three year period of
DYFS's involvement prior to the determination being made to seek
termination, L.R. had two or three different addresses. But he
certainly cannot be considered to have been homeless or
transient.
As to the assessment of L.R.'s "emotional and psychological
functioning," as far as we can tell the basis for the doctor's
evident negative evaluation of L.R.'s psyche must stem from the
results of a psychological test she gave to him, for her
"behavior evaluation," as well as her later clinical evaluation
in connection with the psychological bonding report, are
certainly positive.
The test that she performed was the "Millon Clinical
Multiaxial Inventory - II (MCMI-II)." The May 24, 1996 report
describes it as "an instrument designed to assess pathological
characteristics and dynamics which interfere with optimal
personal and interpersonal functioning." But the description of
the test acknowledges that "[t]his inventory does not focus on
positive attributes and strengths which the individual
possesses[,]" and that one must "keep in mind the emphasis on
pathology, purposefully constructed by the authors of the test so
as to optimize clinical utility."
Based upon this test, this is what Dr. Wells predicted:
Evidence of a moderate level of pathology exists
in [L.R.'s] overall personality structure. He
likely has a checkered history of disappointments
in his personal and family relationships.
Deficits in his social attainments may be notable,
as well as [a] tendency to precipitate self-defeating vicious circles. Earlier hopes may have
resulted in frustrating setbacks, and efforts to
achieve a consistent niche in life may have
failed. Although [L.R.] may usually be able to
function on a satisfactory ambulatory basis, he
may experience periods of marked emotional,
cognitive, or behavioral dysfunction.
On the surface, [L.R.'s] behavior is characterized
by submissiveness, dependency, and the seeking of
affection, attention, and security. A fear of
abandonment often compels him to be overly
compliant and obliging. He may be quite naive
about interpersonal matters, and may evince
scattered and immature thinking. When faced with
interpersonal tensions, he seeks instant signs of
reassurance or tries to maintain an air of
Pollyanna buoyancy, thereby denying disturbing
emotions and inner discomforts. Uncomfortable
when alone and preoccupied with the fear of being
abandoned, [L.R.] is likely to be exceedingly
responsive to the desires of others.
Having learned to play an inferior role, [L.R.] allows others to feel more useful, stronger, and more competent than he. An active soliciting of praise and a tendency to be self-sacrificing and conciliatory are apparent. He persistently seeks harmony with others, even at the expense of his internal values and beliefs. Although he tries to avoid situations that involve personal conflict, his efforts at control give way at times, and his
resentments and frustrations over his acquiescence
and self-denial break into the open.
[L.R.'s] repressed anger and irritability also
derive from an awareness that he has no identity
apart from others. He has learned to value the
intrinsic traits of those who are important to
him, not his own. Despite his need to ally
himself with the competencies of others, [L.R.] is
no longer bolstered by the illusion that these
relationships fulfill his needs or protect him
against loss. Despite his growing disillusionment
with others, he remains alert to signs of
potential hostility and rejection, and seeks to
minimize the danger associate[d] with the
disapproval or indifference of others. He has
learned that by closely attending to the signals
and desires of others, he can shape his behavior
to conform to their wishes and needs.
In spite of a growing desire for a measure of
independence, [L.R.] feels helpless when faced
with responsibilities that demand autonomy or
initiative. The loss of a significant source of
support or identification may prompt acute
distress and may compel him to openly solicit
signs of reassurance. Guilt, illness, anxiety,
and depression may be displayed instrumentally to
deflect serious criticism and to transform threats
of disapproval into those of support and sympathy.
Aside from L.R.'s past drug use, brief hospitalizations, low paying employment and less than optimum living accommodations, the record does not particularly empirically support Dr. Wells' predictions.See footnote 6 If she drew them from the test results, we wonder how a balanced psychological assessment of such a fundamental issue as a person's parental fitness could be the product of a
test that seems to be skewed towards the negative elements of
one's psyche and which intentionally omits consideration of the
positive attributes and strengths a person may have.
In contrast is the psychological bonding evaluation of C.H.
and L.H. with their foster parents. It was performed on the same
day of L.R.'s evaluation, May 24, 1996. The foster parents, then
57, had taken on foster children "to fill a void as a result of
not having grandchildren." Discussing their relationship with
L.R., they told Dr. Wells that they never had had any "problem
out of" him, that he did not "teach [C.H] against [them]. They
say nice things. [L.R.] sent a Christmas card. He wrote it
himself." Yet, when asked whether they would agree to allow him
to visit the children after adoption, the response was "we have
to think about that."
During the foster parent bonding evaluation, Dr. Wells
observed the following as to the interrelationship between the
foster parents and the children:
Referring to [the foster parents] as daddy and
mommy, respectively, [C.H.] and [L.H.] played
nicely together as the [foster parents] shared
information with the examiner. On occasion,
[C.H.] would come into closer proximity in an
effort to hear what was being said, although for
the most part she seemed to be cognizant of the
need for an invisible boundary which suggested
that she was to continue to be occupied with her
own activity. Both [foster parents] were observed
to maintain a close eye on both of the children,
at times interjecting comments to them either
about what they were doing or reminding them of
what was appropriate behavior. Their manner was
pleasant with the children, showing no favoritism
or preferential treatment of either [C.H.] or
[L.H.].
[L.H.] took his cues for behaving from [C.H.] who
demonstrated a stronger personality and was
clear[ly] in leadership role. She responded like
an older sister, a role that [L.H.] seemed to [ ]
respect and appreciate. The children talked and
laughed with each other, playing with objects in
the room and pretending to be characters. The
relationship between the two of them was close
with no observable conflict or discord. The
fourteen month difference between the two of them
seemed more exaggerated as [L.H.] presented in a
somewhat more immature manner than his sister. He
was also noted to have more difficulty in his
speech patterns, although he would express
himself. His speech was not clear. To a person
unfamiliar with him, close attention would have to
made to understand what he was saying. It did not
appear that neither the [foster parents] nor
[C.H.] had any difficulty understanding [L.H.'s]
expressive speech.
[The foster parents] related to each other in
pleasant, kind manner, seeming to enjoy the shared
responsibility of both of the children. They
jokingly teased each other about the manner in
which the other provided treatment and care of the
children, with [the foster father] remarking on
how his wife frequently shops for the children,
although "they'll never be able to wear all of
those things." [The foster mother] laughed at her
husband's comment, reminding him of how he allows
the children extra treats. It was apparent that
both [foster parents] enjoyed their relationship
and role with the children.
The interactions between the [foster parents] and
the children were natural and calm. At no point
during this observation were the children spoken
to in a harsh manner. Moreover, while it was not
verbalized by either [foster parent], it seemed
that both [L.H.] and [C.H.] understood what
behaviors were expected of them. They were
compliant, well-mannered, and did not demand or
display great needs for attention. [The foster
parents] interchangeably responded to the
children's need for praise or commented about what
they were doing in a non-competitive manner. [The
foster father's] role with the children was easily
recognized as significant, not peripheral, a role
[the foster mother] appeared to value and
appreciate.
When speaking with the children, an appropriate
voice tone as well as appropriate contextual
material was discussed. Good eye contact was made
with smiles, seemingly for no reason, when looking
at the children. While the [foster parents]
shared that they became interested in foster care
to fill a void as a result of not having
grandchildren, the manner in which they related
and responded to [C.H.] and [L.H.] was indicative
of their primary parents.
These observations led Dr. Wells to conclude:
An apparent bond between the [foster parents] and
[L.H.] and [C.H.] is easily observable. The
children relate to the [foster parents] as their
psychological parents, looking to them to provide
care, nurturance, and approval. Both [foster
parents] readily comply with these expectations,
seeming to enjoy the opportunity they have been
given. There is a kind, pleasant manner in which
[the foster parents] relate which appears to set a
tone for the type of interactions the children
have with each other. There is a sense of family,
and connectedness, and sharing. It is strongly
recommended that [C.H.] and [L.H.] would remain in
placement together. While there have (sic) been a
past history of instability for them, especially
[C.H.], the stability they provide for each other
is quite apparent.
It is the clinical impression of the present
evaluator that [the foster parents] are
caring, loving individuals who desire
adoption of not only [C.H.] and [L.H.], but
their younger sibling, [R.H.], as well. If
the children become eligible for adoption,
support is given to the [foster parents]
becoming all three children's adoptive
parents, especially in light of [R.H.'s]
foster mother's intentions not to adopt him.
Having observed [C.H.], [L.H.], and [R.H.],
placement of him in the [foster parent's]
home would allow him to have the least
complications as a result of being separated
from his current foster mother as he relates
to the older children in a comfortable,
familiar manner. It is believed that [the
foster parents] would be sensitive to
[R.H.'s] needs and assist greatly in ensuring
a successful transition to their home.
We pause to comment on the recommendation of Dr. Wells
relating to R.H. Just how suspect Dr. Wells' entire evaluation
of the situation may be, is reflected by her conclusion that R.H.
should be adopted by the foster parents of C.H. and L.H.. R.H.
has never been in their home. The only bonding evaluation for
R.H. is the positive one with L.R. Moreover, there is nothing in
the record that would indicate that removal of R.H. from his
present foster home to placement with C.H. and L.H.'s foster
parents would successfully lead to adoption. We note, in this
respect, that the foster parents have had other foster children
in addition to C.H. and L.H., and that these placements were not
successful, including D.H. The psychological bonding report of
the foster parents indicates that D.H. believed she was going to
be returned to her maternal grandmother and that, as a result,
"significant difficulties" arose such that the foster parents
requested that she be removed from their care. We do not say
this to denigrate the foster parents, but only to show that not
all placements are successful and to point out the
speculativeness of Dr. Wells' conclusions as to R.H.
Equally troublesome, no psychological evaluation of the
children themselves and no assessment of the impact that
severance of their ties with L.R. might have upon them was
performed. Moreover, while the hope obviously is that R.H. will
be reunited with C.H. and L.H., there is no assurance of that.
And no evaluation was performed to assess the potential harm in
the event of severance of his sibling ties to C.H. and L.H.,
should adoption in the same family not be possible.
L.R. presented circumstances that could be those of many parents. He clearly provided nurture and affection to the children, and, according to his undisputed testimony, provided for their daily needs prior to DYFS' 1993 involvement. He was, nonetheless, viewed by DYFS and Dr. Wells as inadequate in his parenting skills. As the Supreme Court pointed out in New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 606 (1986), "we are not concerned here with what may be called `inadequate parenting'See footnote 7 . . . a court should focus upon whether . . . the
parents are giving the child the nurture and affection that money
cannot provide."See footnote 8
Moreover, termination of biological ties, severing as it
does not only the parental rights, but the ties of the child to
the parent and, frequently, to siblings and other extended
biological family members, requires careful scrutiny, an exacting
analysis, and proof that is clear and convincing. E.g., In the
Matter of the Guardianship of J.C.,
129 N.J. 1, 10 (1992); In the
Matter of the Guardianship of K.H.O., _____ N.J. Super. ____
(App. Div. 1998). And, even where reunification with a parent
may not be feasible, yet the biological parental and sibling ties
are prominent, severance of those relationships in order to
"free" the child for adoption, frequently viewed as a "permanent"
and thus desirable solution, may not always be the best answer
from the perspective of the child. As we pointed out in K.H.O.
in the context of the best interests grounds for termination of
parental rights:
The primary goal of the Child Placement Act,
of course, is to obtain a permanent solution for
any child placed in foster care, whether it be
through reunification with the natural parent or
the extended biological family, or through
termination of the biological ties and adoption.
N.J.S.A. 30:4C-53.4 to -60. See New Jersey Div.
of Youth & Family Servs. v. K.M.,
136 N.J. 546,
558 (1994) ("In recognition of [the Child
Placement Act's] preference for permanency for
children, DYFS is required to prepare a placement
plan with a goal for permanency of any child
placed in foster care for the second time.
N.J.S.A. 30:4C-53.3. Also, the `best interests'
test under N.J.S.A. 30:4C-15.1 requires finding
that a delay of permanent placement further harms
a child."); A.W., supra, 103 N.J. at 610 (stating
that permanence is important to nurturing a
child); In the Matter of the Guardianship of S.C.,
246 N.J. Super. 414, 425 (App. Div.), certif.
denied,
126 N.J. 334 (1991) (finding that delay of
permanent placement would "only work to [child's]
detriment").
And a "stable and permanent home" is always preferable to long-term foster care. New Jersey Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996); A.A.M., supra, 268 N.J. Super. 533. But without the
necessary statutory proof of each of the four-prong "best interests" tests, stability and
permanency alone are not sufficient to justify
termination of the child's biological ties.
Moreover, the option for long-term foster care
allowing for continued contacts with the child's
biological family is not only not prohibited by
the Legislature, but is expressly authorized.
N.J.S.A. 30:4C-26.10 to -28; N.J.S.A. 30:4C-26.11(b) ("[i]f it has been determined that
reuniting the child with the natural parents or
placing the child for adoption will not serve a
child's best interest, the child's best interest
may be served through a transfer to long-term
foster custody with the child's foster
parent. . . .").
[K.H.O., supra, _____ N.J. Super. at _____.]
And we further observed in K.H.O.:
The concern, moreover, is not just severance
of biological ties from the perspective of the
parent, but just as importantly, perhaps more so,
from that of the child. See New Jersey Div. of
Youth & Family Servs. v. T.C. & I.R.,
251 N.J.
Super. 419, 439-40 (App. Div. 1991), certif.
denied,
146 N.J. 564 (1992) . . . "Experts are
increasingly concerned about the seriousness of
this loss and are recognizing the need for
continued contact with a biological parent, even a
flawed parent . . . Our courts have recognized
that a child's relationship with a parent is of
such significance that doubts are to be resolved
against its destruction.'" (quoting In the Matter
of the Guardianship of J.E.D.,
217 N.J. Super. 1,
15-16 (App. Div. 1987)). And see In the Matter of
the Guardianship of K.L.F.,
129 N.J. 32 (1992);
J.C., supra, 129 N.J. at 10; In the Matter of A.,
277 N.J. Super. 454, 469-72 (App. Div. 1994). Cf.
N.J.S.A. 30:4C-15.1(a)(3), (c) (requiring
"diligent efforts" by DYFS to encourage and
strengthen the parental relationship); N.J.S.A.
9:6B-4(e), (f) (children in foster care entitled
to continued contact with biological parents and
siblings under the Child Placement Bill of Rights
Act).
[Id. at ____.]
In terminating the family's biological ties, the trial judge found that L.R. had abandoned his parental duties. In this respect, N.J.S.A. 30:4C-15(d) permits DYFS to file a guardianship petition where:
it appears that a parent or guardian of a child, . . . . or following the placement or commitment of such child in the care of an authorized agency, whether in an institution or in a foster home, and notwithstanding the diligent efforts of such agency to encourage and strengthen the parental relationship, has failed substantially and continuously or repeatedly for a period of more than 1 year to maintain contact with and plan for the future of the child, although physically and financially able to do so; . . . .
[Emphasis added.]
It is clear that N.J.S.A. 30:4C-15(d) does not apply. To
begin with, L.R. never ceased maintaining contact with the
children. And, he did attempt the first step in a plan, that is
to obtain satisfactory housing. DYFS, however, offered no
assistance in that respect. The very premise of his inability to
provide a plan, then, was DYFS' view that he could not either
physically, as opined by Dr. Wells, or financially, as evidenced
by his inability on his own to obtain satisfactory housing. But
a basic requirement of termination under N.J.S.A. 30:4C-15(d) is
that the parent be both physically and financially able to plan
for the future of the child.
More fundamentally, the record is totally absent of any
evidential basis for the trial judge's conclusion that DYFS
engaged in "diligent efforts . . . to encourage and strengthen
the parental relationship." All that was done was permit L.R. to
visit the children on a bimonthly basis.
"Diligent efforts" are "reasonable attempts by an agency
authorized by the division to assist the parents in remedying the
circumstances and conditions that led to the placement of the
child and in reinforcing the family structure." They include,
but are not limited to:
(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).]
By its own admission, other than for visitation, DYFS took none of the above steps to encourage and assist L.R. in his obviously sincere efforts to be reunited with the children and to provide a home for them. That is because it never considered him for reunification because he was perceived as the noncustodial parent. But we know of no such limitation upon DYFS's required "diligent efforts." Dr. Wells thought L.R. would not be able to provide an adequate home. But, since no efforts were ever taken toward that direction, we cannot say that that is clearly and convincingly so. Had shelter assistance, homemaker and day care services of the type offered to many custodial parents been
provided to L.R., a fair review of the record leaves us with some
sense that reunification with L.R. may well have succeeded.
But the trial judge determined that L.R. had "abandoned" the
biological ties. In this respect, N.J.S.A. 30:4C-15(e) provides
for the filing of a petition for guardianship where "the parent
has abandoned the child." Abandonment as a statutory basis for
termination is set forth in N.J.S.A. 30:4C-15.1(b):
The division shall initiate a petition to
terminate parental rights on the ground that the
"parent had abandoned the child" pursuant to
subsection (e) of section 15 of P.L. 1951, c. 138
(C.30:4C-15) if the following standards are met:
(1) a court finds that for a period of six or
more months:
(a) the parent although able to have contact,
has had no contact with the child, the
child's foster parent or the division; and
(b) the parent's whereabouts are unknown,
notwithstanding the division's diligent
efforts to locate the parent; or
(2) where the identities of the parents are
unknown and the division has exhausted all
reasonable methods of attempting identification,
the division may immediately file for
termination of parental rights upon the
completion of the law enforcement investigation.
[Emphasis added.]
Plainly, as with N.J.S.A. 30:4C-15(d), N.J.S.A. 30:4C-15.1(b)
does not apply. L.R. has always maintained contact and his
whereabouts are well known.
Further, the Supreme Court has stated that "in every context
. . . a very strong showing of abandonment or neglect . . . is
required" to terminate biological ties on that basis. In the
Matter of the Adoption of Children by L.A.S.,
134 N.J. 127, 134
(1993) (citations omitted); J.C., supra, 129 N.J. at 17. The
biological parent "`must have engaged in a course of conduct that
evidences a settled purpose to forego all parental duties and
relinquish all parental claims to the child.'" In the Matter of
the Adoption of a Child by D.M.H.,
135 N.J. 473, 481, cert.
denied sub. nom., Hollingshead v. Hoxworth,
513 U.S. 967,
115 S.
Ct. 433,
130 L. Ed.2d 345 (1994) (quoting L.A.S., supra, 134
N.J. at 135).
In L.A.S., a father's lengthy incarceration in prison was a
material factor bearing on whether his parental rights should be
terminated due to abandonment or parental unfitness. The Court
explained that under N.J.S.A. 30:4C-15(d), there must be "a
showing that the parent has failed for at least one year, despite
the agency's diligent efforts, to rectify the circumstances
leading to removal." Id. at 133. Elaborating on what
constitutes abandonment, the Court stated:
[a]bandonment requires a finding that a
parent has willfully forsaken obligations,
although physically and financially able to
discharge those obligations. The parent must
have engaged in a course of conduct that
"evidence a settled purpose to forego all
parental duties and relinquish all parental
claims to the child."
[L.A.S., supra, 134 N.J. at 134-35 (quoting In re N.,
96 N.J. Super. 415, 426 (App. Div. 1967)
(citations omitted)).]
In J.C., supra, the biological mother's inability to provide a stable and permanent home in large part because of her drug addiction, resulted in foster home placement for her three children for six years and consequent bonding with the foster
parents. In addition to rejecting the "best interests" criteria
for termination, abandonment was also rejected. In doing so, the
Court noted her continued interest in the children during the
years of the foster home placements as evidenced by her
consistent visits. 129 N.J. at 11. Yet, DYFS chose not to
return the children to her care because it harbored concerns
regarding her unstable housing situation, her continued use of
drugs and alcohol and reports of domestic violence in the home.
Ibid. Despite these circumstances, the Court concluded there was
"no basis for termination" under N.J.S.A. 30:4C-15(d). Id. at
16. "The concept of abandonment entails volitional and
purposeful conduct that equates with a willful giving up of
parental rights and duties." Id. at 17 (citing In re Guardianship
of K.L.F.,
129 N.J. 32, 38-40 (1992)).
In K.L.F., supra,
129 N.J. 32, a homeless parent, upon the
birth of her child, agreed to a temporary custody arrangement
with DYFS. She visited the child twice and then went to New York
City to look for permanent housing. During the following year
and a half, the parent had neither work nor a home and lived in
shelters and with friends. She claimed to have tried to contact
DYFS by phone but was never able to reach anyone who knew about
her child's case. Her efforts were characterized by the trial
court as "`ineffectual, paltry, and meager.'" Id. at 38. DYFS
determined that the child needed a permanent home and moved her
to pre-adoptive foster parents, where she continued to reside
throughout the course of the litigation. Evidence was presented
by DYFS that the child had bonded with her pre-adoptive parents
and that to return her to her mother, whom it claimed had
abandoned her, would cause her psychological and emotional harm.
Nonetheless, in addition to commenting upon DYFS' lack of any
real effort to locate the mother to attempt reunification,
resulting in foster care placement for the first four years of
the child's life, not to mention bonding with the foster parents,
the Court rejected the conclusion of DYFS that the mother had, by
virtue of her "abandonment" of the child, caused unremedial harm.
There was no "willful surrender or intentional abdication of
parental rights and duties" sufficient to constitute abandonment
under Title 30. Id. at 39.
Factors weighing against the termination of parental rights
based on abandonment include the parent's genuine interest in the
well being of the child and a sincere desire to regain custody.
In The Matter of the Guardianship of J.E.D.,
217 N.J. Super. 1,
12 (App. Div. 1987), DYFS attempted to prove that the mother
lacked a sincere motivation to preserve her parental relationship
under N.J.S.A. 30:4C-15(d) After hitting the child on one
occasion, the mother voluntarily contacted DYFS because she was
concerned about her ability to care for the child. She initially
had monthly, and then weekly visitations with her child, although
her visits became less frequent when she began traveling to a
different state in an effort to mend her marriage and provide a
better home environment for the child. Id. at 12. Nevertheless,
we agreed with the trial judge that the record failed to support
a finding that the mother had forsaken her parental rights.
Rather, the mother showed "a real interest for the well being of
her daughter and a sincere desire to regain custody of her
. . . ." Ibid. She also showed a desire to cooperate with DYFS
and had participated in counseling and other programs at its
request. Ibid. See also In the Matter of the Adoption of a
Child by J.R.D.,
246 N.J. Super. 619, 629 (Ch. Div. 1990) (no
abandonment found where natural father, who suffered from chronic
alcoholism, failed to visit daughter for six years as his failure
to visit was "more attributable to his pathetic physical
addiction than to a mindset fixed upon evasion of
responsibility."). And see New Jersey Div. of Youth & Family
Servs. v. T.C. & I.R.,
251 N.J. Super. 419, 439-40 (App. Div.
1991), certif. denied,
146 N.J. 564 (1992). Contrast In the
Matter of the Guardianship of J.T.,
269 N.J. Super. 172 (App.
Div. 1993); In the Matter of the Guardianship of A.A.M.,
268 N.J.
Super. 533 (App. Div. 1993); In the Matter of Adoption of a Child
by F.O. and W.O., ____ N.J. Super. ____ (Ch. Div. 1997); In the
Matter of the Adoption of a Child by R.K.,
303 N.J. Super. 182,
198-99 (Ch. Div. 1997).
In reaching the conclusion that termination under Title 30
has not been established here, we would be remiss were we not to
address F.O. and W.O., supra, _____ N.J. Super. ____, and R.K.,
supra,
303 N.J. Super. 182. Both cases were decided in the
context of a private adoption under N.J.S.A. 9:3-46. Such an
adoption cannot proceed in the face of a parent's objection.
Subsection a, however, contains an abandonment provision which
permits a court to approve an adoption if the parent has "(1)
. . . substantially failed to perform the regular and expected
parental functions of care and support of the child although able
to do so, or (2) . . . is unable to perform the regular and
expected parental functions of care and support of the child and
[such inability] . . . is unlikely to change in the immediate
future." The trial judge construed these provisions, added by
amendment in 1994, to remove any element of willfulness or
intentional forsaking of parental duties, concluding that "[t]he
overall effect of the amendments is that it is now much easier
for the court to terminate an individual's parental rights than
in the past because the court need only weigh the statutory
criteria and need not inquire into whether the parent possessed
the actual intent to abandon or neglect." F.O. and W.O., supra,
____ N.J. Super. at ____; R.K., supra, 303 N.J. Super. at 194.
We disagree and disapprove of this aspect of F.O. and W.O.,
and R.K. As the Supreme Court observed in D.M.H., supra, decided
after the 1994 amendments, Title 9 proceedings and Title 30
proceedings must be read in para materia and it construed
abandonment in both contexts as requiring some aspect of
willfulness and intentional forsaking of parental duties. 135
N.J. at 481. And see N.J.S.A. 9:6-8.21, also amended in 1994,
but still requiring that a child be "willfully abandoned" in an
abuse or neglect proceeding based upon abandonment under
subsection of N.J.S.A. 9:6-8.21(c)(5).
We touch only briefly on DYFS' contention that the best interests test was met under N.J.S.A. 30:4C-15.1(a). First, the
trial judge did not find this criteria had been demonstrated and
DYFS did not file a cross-appeal. Second, the trial judge's well
supported conclusion that L.R. had not harmed the children, the
first of the four prong best interests test under N.J.S.A. 30:4C-15.1(a) and A.W., supra, 103 N.J. at 604-05, is unassailable.
Third, our conclusion that DYFS did not engage in diligent
efforts to reunite the children with L.R. prior to proceeding
with the termination, renders the record deficient as to the
third prong of the best interests tests. Fourth, the last, and
perhaps most critical prong, that termination will not do more
harm than good, was equally not established. We recognize that
Dr. Wells concluded that C.H. and L.H. would be harmed if removed
from their foster parents. But there is little, if any, analysis
of the harm of permanently severing their ties with L.R., as well
as possibly severing their ties with R.H. And there is no
consideration of any harm as to R.H. All three children are
depicted in the record as having strong bonds with L.R. We
cannot imagine that severance of those bonds will not have an
adverse impact upon them that may endure for years. If that harm
is to be risked, there must be much more than presented in this
case.
We address briefly what appears to be at the heart of the trial judge's determination to terminate L.R.'s biological ties to the children, that is his definition of what a parent should be, relying upon out-of-state cases. In this respect, the judge said:
From all of these cases then we can at least
synthesize a general description of what can be
expected or constitute a true parent/child
relationship or role. The parent will attempt to
or provide significant contact to the degree that
the child grows or is nurtured by the relationship
with that parent. Such activity should include
guidance, instruction or advice in the child's
development. It should also involve the
development and maintenance of an emotional
relationship with the child. Such association of
parent to child has to be described as a nurturing
one where the child's needs are put ahead of that
of the parent. How frequent the communication
between parent and child aside from the extent and
the quality and nature of the communication is a
factor. Emotional support aside from financial
support is most critical. This requires an
awareness of the happenings if not the daily
occurrences in that child's life. A willingness
to take on responsibility for the emotional well-being of this child also is included within such a
definition. Casual visits and occasional gifts
are not sufficient to evidence parental
responsibility. Love alone without actual care
and presence will not create a partial definition.
Such a concept requires affirmative parenting
to the extent it is both practical and feasible
under all of the circumstances. An ongoing
parent/child relationship develops ordinarily as a
result of a parent's having met on a continuous
basis if not daily the physical, emotional, moral
and educational needs of the child. Because a
child needs more than a benefactor, parental duty
requires that the parent exert him or herself to
take and maintain a place of importance in that
child's life. When in foster care, the parent has
an affirmative duty to work toward return of the
child. From these many specific definitions
presented by the Court a composite has to be
drawn. If as here the Division has found earlier
pursuant to 30:4C-15D that the agency has made
diligent efforts to strengthen and encourage the
parental relationship as defined then at least it
would appear [L.R.] and [L.W.] both seem[ ] to
have failed now for the period of time in question
to plan for the future of their individual
children, although they appear able to do so and
it appears that the statutory requisites required
of the Division are satisfied.
The judge then concluded that "there has been no significant role
attempted by [L.R.] . . . in an effort to obtain or gain a
plateau for child-rearing to invoke any plan that the Division
would be obligated to." That the judge's concept of what a
parent should be was the premise of L.R.'s termination is clear
from the following:
The Court cannot be critical of [L.R.] . . .
that [he] did not have anything more than a room,
if that, for [his] habitation. That is
unfortunate. For reasons best known and
understood to [him] [he] simply [has] been unable
to move forward or further in a concrete way to
create, as indicated, the parenting relationship
that has been suggested and defined.
The Court is not suggesting that [L.R.] [is]
satisfied simply to visit regularly such as some
favorite relative who drops in and the children
are happy to see. But [he] just [has] not been
able to be [a] parent father[ ] within the
definition of that role. [He] [has] not been able
to sustain the momentum as it were to step up to
another level to invite or activate the potential
for a true father/child growth and development and
ultimate living arrangement.
[Emphasis added.]
The judge's concept of a "true father/child growth and development and ultimate living arrangement" is laudable and socially desirable. Would that all parents could measure up to the judge's defined parental role. But judicial interference with a family cannot be premised upon notions of what a parent should ideally be. A.W., supra, 103 N.J. at 606. Cf. In the Matter of the Guardianship of A.A.M., supra, 268 N.J. Super. at 547-48 ("[t]o ask a court to terminate parental rights is to impose upon it an agonizing burden in any case. To ask a court to terminate parental rights because the individual lacks `the
fundamental personal qualities necessary for minimally adequate
parenting' is to present the trial judge with a decision that
would tax Solomon. And to empower a court to terminate parental
rights on such grounds raises the possibility of grave misuse in
the future."). And see N.J.S.A. 9:3-46a(2)(a), (b), (c)
(defining parental functioning as requiring the maintenance of a
parent/child relationship, communication and visitation, unless
prevented by the custodial person or agency, and financial
support, unless prevented by the custodial person or agency.); In
re Adoption of a Child by W. and M.P., supra, ____ N.J. Super. at
____ (slip op. at 10-11).
We, thus, reverse the termination of C.H. and R.H.'s biological ties with L.R. L.H.'s biological father has not appealed the termination of his rights. But a substantial consideration of that termination was Dr. Wells' concern over separating C.H. and L.H. Their sibling ties are, perhaps, stronger than any other. The May 24, 1996 bonding evaluation of them with their foster parents and the May 30, 1996 evaluation with L.R., moreover, reflect a strong dependence of L.H. upon C.H. Our decision requires DYFS to initiate reunification efforts with L.R. In light of L.R.'s close ties with L.H. and the prospect of significant harm in separating him from C.H., DYFS should consider reunification of him with L.R. along with C.H. and R.H.
Footnote: 1 L.W.'s parental rights were terminated; J.M.'s were not. L.W. does not appeal the termination. Footnote: 2 At the time of R.H.'s birth, K.H. indicated that his father was L.W. It was not then known to DYFS that L.R. was the father of both R.H. and C.H. Footnote: 3 The record does not indicate with which child but we assume it was R.H. since he was the only child then in foster care. Footnote: 4 As described by the psychologist, a teaching family home is "a family situation where the structure is of a family and the expectations of a family can be maintained, and to maintain the child in that setting and not to place them in a residential facility. And so the desire would be to teach her effective ways of coping, how to handle frustration, how to deal with feelings
or concerns that she perhaps would manifest in an aggressive -
an overt, aggressive manner, how to express the things that she
desires in an appropriate fashion, how to get her needs met, how
to build trust. The teaching family is a more specialized
situation where they have some other levels of training and
therefore, can respond to the child's needs in a different
manner."
Footnote: 5 Since D.H.'s biological father's rights were not
terminated, and since there is no psychological bonding
evaluation of her at all, we do not address the relationship, if
any, that may exist between her and L.R.
Footnote: 6 In addition, "[a]lthough there are no concerns expressed
by the Division indicative of physical maltreatment on the part
of [L.R.]," Dr. Wells administered a "Child Abuse Potential
Inventory (CAPI)" and concluded "[d]emonstrating a valid profile,
[L.R.] received an elevated overall abuse score consistent with a
score obtained by the upper five percent of those persons who
were known child abusers." Clearly, there is nothing to suggest
L.R. is or would be a child abuser and, quite properly, the trial
judge did not utilize this aspect of the report.
Footnote: 7 The Supreme Court in A.W. considered it important to
include the definition of "inadequate parenting" from Wald, State
Intervention on Behalf of "Neglected" Children: A Search for
Realistic Standards,
27 Stan. L. Rev. 985, 1021-24 (1975). So do
we:
While no empirical studies provide a statistical breakdown of the reasons for intervention in neglect cases, probably the largest category of cases involves persons thought to be "inadequate parents." All commentators agree that the great majority of neglect cases involve very poor families who are usually receiving welfare. Most of the parents are not merely poor, however. In addition to the problems directly caused by the poverty--poor housing, inadequate medical care, poor nutritional practices--many of these parents can be de