(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued November 9, 1998 -- Decided August 3, 1999
HANDLER, J., writing for a unanimous Court.
This appeal, like the companion case of In re Guardianship of K.H.O., __ N.J. __ (1999), involves the
termination of parental rights under N.J.S.A. 30: 4C-15.1(a) , and also involves the alternative standard of
abandonment as a basis for terminating parental rights. The specific issues are whether the Division of Youth and
Family Services ( DYFS ) demonstrated by clear and convincing evidence that two children, C.H. and R.H., were
harmed by their biological father, L.R., and whether DYFS used diligent efforts to reunite L.R. with his children.
C.H. was born on July 19, 1990, the second of four children born to K.H. R.H., the youngest of the four
children, was born on June 17, 1993. C.H. has been in foster care since she was three-and-a-half years old and lives
in a foster home with her half-brother. R.H. has been in foster care since he was five days old, having tested positive
for the presence of cocaine and opiates at birth. The foster parents of both children want to adopt them.
Although DYFS became involved with K.H. and her children in 1991, it was not until November 1993 that
DYFS learned that L.R. was the father of C.H. and R.H. L.R. expressed an interest in uniting with his children at
some point but did not offer to care for them. DYFS continued to work with K.H. to attempt to reunite her with her
children, seeing her as the likely primary custodial parent.
DYFS set up a visitation schedule for L.R. and his children and referred him for housing assistance. After
learning from L.R. in early 1994 that K.H. had assaulted him, DYFS referred him to a program for battered persons
and for legal assistance in obtaining a restraining order. In April 1994, L.R. was voluntarily hospitalized for
depression and heroin dependence. He was diagnosed with schizo-affective disorder, organic mood disorder, and
opoid dependence. Six months later, L.R. told DYFS he wanted the children to be placed with him, but he failed to
follow through with steps DYFS told him to take to start the process. Similarly, several months later, he failed to
take necessary steps to resume visitation with his children, whom he had not seen for some time. L.R. did not object
in August 1995 when he was notified that his children's case had been referred to the Adoption Resource Center but
asked about continued visitation. L.R. moved to Virginia. K.H. died in October 1995 and L.R. returned to New
Jersey in November where he again was hospitalized voluntarily for heroin detoxification. He had no contact with
his children until May 1996.
DYFS moved to terminate L.R.'s parental rights in March 1996. In connection with those proceedings, the
court ordered a psychological evaluation of L.R. and bonding evaluations for the children. The termination hearing
was held in October 1996. The court-appointed expert, Dr. Wells, concluded that L.R. loved C.H. and R.H. but was
unable to care for them. She reported that C.H. had bonded with her foster parents and considered them her
psychological parents. Dr. Wells found R.H. to have special needs, but she did not provide a full psychological or
bonding evaluation of him.
The trial court ordered that L.R.'s parental rights be terminated and made findings in terms of the
abandonment standard for termination, N.J.S.A. 30:4C-15(d). The court found that L.R. had made no substantial
effort to plan for the future of his children, though able to do so, and found that further delay in a permanency plan
would harm the children. The court expressed the view that L.R. had not harmed the children, but the order of
termination recited that DYFS had satisfied all the criteria of N.J.S.A. 30:4C-15.1 (a) for termination, which includes
harm to the child from the parental relationship.
L.R. appealed the decision and the Appellate Division reversed, finding the evidence insufficient to support
termination under either the abandonment standard or the best interests of the child standard. The court concluded
that DYFS had not shown that L.R. had caused harm to his children or that the agency had made diligent efforts to
reunite L.R. and the children. The Supreme Court granted D.Y.F.S.'s petition for certification. Following the
decision of the Appellate Division, D.Y.F.S. filed a Title 9 abuse/neglect complaint against L.R. Psychological
examinations of L.R., the children, and their foster parents were conducted at the request of DYFS by Dr. Alice
Nadelman. Based on her findings of L.R.'s inability to care for the children, “emotional turmoil and damage”
suffered by the children, harm that would result from delaying permanence, and the bonding of the children with
their foster parents, Dr. Nadelman “strongly recommended” that L.R.'s parental rights be terminated.
HELD: A parent's persistent failure to perform any parenting functions and to provide care, nurture or support for an
extended period harms the child. When DYFS attempts to reunite a family, DYFS must make consistent efforts to
maintain and support the parent-child bond and may focus its efforts on the parent who has been the child's primary
caregiver, but cannot exclude or ignore the other parent.
1. Termination of parental rights on the ground of abandonment requires a showing that the parent, although able to
care for his children, has wilfully forsaken his parental responsibilities. DYFS did not proceed against L.R. on this
basis, but brought its action under the best interests of the child standard, which requires a showing of very
substantial and continuing or recurring abuse or neglect that endangers the child's health and development. Under
this standard, a parent's withdrawal of parental solicitude, nurture, and care for an extended period of time is in itself
a harm that endangers the health and development of the child. L.R. has failed to provide even minimal parenting to
his children. He compounded their mother's neglect and contributed to the circumstances that led to their placement
in foster care. Moreover, the record demonstrates that L.R. probably will never be able to provide his children with
an adequately stable home. Both C.H. and R.H. already have been harmed by the lack of stability. The first two
elements of the best interests standard have been met. ( pp. 7-20 )
2. The expert testimony of Dr. Wells amply demonstrates that terminating L.R.'s parental rights in respect of C.H.
would not do her more harm than good, for C.H. has bonded with her foster family, who is offering her a permanent
and stable home. Breaking that bond would do her more harm than good. Dr. Wells did not perform a psychological
or bonding evaluation of R.H., but Dr. Nadelman did subsequently, and evidence consistent with her observations
and conclusions would strongly support and impel the conclusion that severing R.H.'s ties with his foster mother
would cause him significant, perhaps irreparable, harm. Because of the significance of biological ties and L.R.'s
need to maintain a connection with his children, the Court suggests the possibility of continued contact of L.R. with
his children, provided an agreement for such contact is fully counseled, mutually agreed on, and in the best interests
of the children. ( pp.21-24)
3. In an effort to reunite L.R. with his children, DYFS took sufficient steps to assist L.R. in his parenting role. L.R.
consistently failed to take meaningful action toward caring for his children and frequently frustrated the efforts of
DYFS caseworkers to assist him. In a case like this one, where one parent has been the custodial parent and has had
the primary role in caring for the children, it is reasonable for DYFS to concentrate on reunifying the children with
that parent, provided DYFS does not ignore or exclude the other parent. ( pp.25-36)
The judgment of the Appellate Division in respect of L.R.'s parental claims to C.H. is REVERSED
and the order terminating L.R.'s parental rights as to C.H. is REINSTATED. The judgment of the Appellate
Division in respect of the termination of L.R.'s parental rights as to R.H. is REVERSED and the matter is
REMANDED to the Chancery Division, Family Part, limited to consideration and determination of the
comparative harm to R.H. as a result of the termination of L.R.'s parental rights.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN, and COLEMAN join
in JUSTICE HANDLER's opinion. JUSTICE O'HERN filed a separate concurring opinion.
JUSTICE O'HERN, concurring in the judgment for the reasons set forth in In re Guardianship of K.H.O., __ N.J.__
(1999), sees the Appellate Division as having correctly held that the standard for termination of L.R.'s parental rights
was not satisfied by clear and convincing evidence on the subject of DYFS's efforts at reunification, but the expert
reports received since the Appellate Division decision permit the Court to conclude that the standards have been met.
SUPREME COURT OF NEW JERSEY
A-
8 September Term 1998
IN THE MATTER OF THE
GUARDIANSHIP OF
DMH, CLHW, LFH
and RQH, Minors.
Argued November 9, 1998 -- Decided August 3, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
309 N.J. Super. 179 (1998).
Andrea M. Silkowitz, Assistant Attorney
General, argued the cause for appellant, New
Jersey Division of Youth and Family Services
(Peter Verniero, Attorney General of New
Jersey, attorney; Jaynee LaVecchia, Former
Assistant Attorney General, of counsel).
Nancy Goldhill argued the cause for
respondent, L.R. (Melville D. Miller, Jr.,
President, Legal Services of New Jersey,
attorney, Ms. Goldhill and Beatrix W. Shear,
on the briefs).
Mary Patricia Keefe, Law Guardian, submitted
a notice of appearance on behalf of the minor
children CLHW, LFH and RQH.
The opinion of the Court was delivered by
HANDLER, J.
This appeal, a companion case to In re Guardianship of
K.H.O., __ N.J. __ (1999), requires the Court to consider whether
the Division of Youth and Family Services has established by
clear and convincing evidence that the termination of parental
rights is in the best interests of two children under the
statutory standards of N.J.S.A. 30:4C-15.1(a). In addressing
that ground for decision, the Court must consider the relation of
that standard to an alternative statutory standard based on
parental abandonment. N.J.S.A. 30:4C-15(d).
The issues that must be addressed in this appeal are whether
the Division has demonstrated by clear and convincing evidence
that the two children were harmed by their parents and whether
the Division engaged in diligent efforts to unite this biological
parent with his children.
L.R. is the biological father of the two children, C.H. and R.H. The biological mother of the children, K.H., now deceased, also had two other children, D.M.H. and L.H., who were not fathered by L.R.See footnote 1 In this appeal, we have been asked to consider only L.R.'s parental rights as the biological father of C.H. and R.H.
D.M.H., K.H.'s oldest child, was born April 26, 1986 and currently resides in a group foster home. C.H. was born July 19, 1990 and currently resides in a foster home with her half brother, L.H., who was born September 10, 1991; she has been in foster care since she was three-and-a-half years old. R.H., the youngest, was born on June 17, 1993 and resides in a different foster home; he has been in foster care since he was five days old.
The Division of Youth and Family Services (DYFS) became involved with the family in September 1991, when L.H. was born testing positive for cocaine and opiates, as did his mother. K.H.'s mother agreed to care for the three children, and L.H. was released into his grandmother's care. K.H. was referred to a substance abuse program.
In June 1993, K.H. gave birth to R.H. Both mother and child tested positive for heroin, and R.H. was placed in foster care voluntarily. Throughout, K.H. and her three other children were living in overcrowded conditions with the grandmother. K.H. and three of her children were transferred to a shelter. Shortly thereafter, K.H. signed voluntary agreements with DYFS for the foster care placement of her children, who had been left dirty and unsupervised in the shelter.
In November 1993, DYFS caseworkers learned for the first time that L.R. was the biological father of C.H. and R.H.
L.R. expressed a desire to unite with his children eventually, but did not offer to become their caretaker. DYFS caseworkers continued efforts to reunite the children with K.H. as the likely primary custodial parent, in the absence of any steps on the part of L.R. towards assuming custody or participating in their care.
In February 1994, L.R. informed a DYFS caseworker that K.H. had physically assaulted him and that as a result he had admitted himself for psychiatric treatment. In April 1994, L.R. was again voluntarily hospitalized; he was admitted for depression and heroin detoxification and diagnosed with schizo-affective disorder, organic mood disorder, and opoid dependence.
Six months later, in October 1994, L.R. informed DYFS that he wanted the children placed with him, but, despite several reminders, he never returned the police reports necessary to initiate the placement procedure.
In March 1995, in a chance encounter with a DYFS caseworker, L.R., who had not seen his children for a long time, expressed a desire for resumed visitation but failed to follow through. In July 1995, the case was transferred to the Adoption Resource Center, L.R. having taken no steps towards assuming responsibility for his children. L.R. was notified and expressed no opposition to the adoption of the children; he inquired only about continued visits.
Thereafter, in August 1995, L.R. moved to Virginia. K.H. died two months later, in October 1995. One month after that, following his return to New Jersey, L.R. was voluntarily hospitalized, again for heroin detoxification. From November 1995 to May 1996, L.R. had no contact with the children.
DYFS moved to terminate L.R.'s parental rights in March 1996. The court ordered a psychological evaluation of L.R. and bonding evaluations for the children. The termination hearing was held on October 15 and 16, 1996.
According to the court-appointed expert, Dr. Karen Wells, L.R. loves his children and has a bond with them; nevertheless, he is unable to care for them. Dr. Wells reached the further conclusion that C.H. and her half-brother L.H. were bonded with their foster parents, whom they regarded as psychological parents. As for R.H., Dr. Wells determined that he was a child with special needs; she did not, however, provide a full psychological or bonding evaluation of R.H. At that time, R.H.'s foster parents had not expressed an interest in adopting him. Since then, R.H.'s foster mother has declared her desire to adopt the child.
The trial court ordered the termination of L.R.'s parental rights, expressing its findings in terms of the abandonment standard, as set forth in N.J.S.A. 30:4C-15(d). The court found that L.R. had failed to make any substantial effort to plan for the future of his children from the time he first acknowledged paternity in 1993, although able to do so. Additionally, the court found that further delay in the permanency plan would harm the children. Although the court expressed the view that L.R. had not harmed the children, the final order of termination specified that DYFS had met all the requirements for termination under the best interests of the child standard, which includes harm to the child from the parental relationship. N.J.S.A. 30:4C-15.1(a).
The Appellate Division reversed, finding that the evidence was insufficient to support termination of parental rights based on an abandonment standard. The Appellate Division also determined that DYFS had not met the four-prong best interests of the child standard, failing to show that L.R. caused harm to the children and that DYFS had engaged in diligent efforts to unite the children with their biological father. 309 N.J. Super. 179 (1998). The Court granted the DYFS's petition for certification. 156 N.J. 409 (1998).
Following the decision of the Appellate Division, DYFS filed a Title 9 abuse/neglect complaint against L.R. Psychological evaluations of L.R., the children, and their foster parents were conducted at the request of DYFS by Dr. Alice Nadelman in October 1998, and the results set forth in a report dated December 10, 1998.See footnote 2 Dr. Nadelman found that L.R. has "no capacity to provide care or protection for children" and that he "has been unable to maintain even minimal responsibilities or contact with his children." She determined that the children, C.H. and R.H., have "endured emotional turmoil and damage" and that continued impermanence would be detrimental to them. She explained that C.H. and L.H. had bonded with their foster parents and that the foster parents could offer them the stable, permanent home they need. She also found that R.H. had bonded with his foster mother, who is willing to adopt him. Accordingly, she "strongly recommended" termination of L.R.'s parental rights.
DYFS brought this action to terminate the parental rights of L.R. under N.J.S.A. 30:4C-15.1(a). That statute is referred to as the best interests of the child standard; it prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child. See K.H.O., supra, __ N.J. at __ (slip op. at 8 9). This standard was first adopted by the Court in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), and later codified in N.J.S.A. 30:4C-15.1(a).
Under the statute, parental rights may be terminated upon a showing of each of the following four factors by clear and convincing evidence:
(1) The child's health and development have 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 foster
parents would cause serious and enduring emotional
or psychological harm to the child;
(3) The division has made diligent 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.
The alternative statutory standard, N.J.S.A. 30:4C-15(d),
considered by the trial and appellate courts in disposing of this
case, provides that termination of parental rights is permitted
where:
it appears that a parent . . . 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
for a period of one year to remove the
circumstances or conditions that led to the
removal or placement of the child, although
physically and financially able to do so,
notwithstanding the division's diligent efforts to
assist the parent or guardian in remedying the
conditions[. . . ]See footnote 4
This provision has been characterized as an abandonment standard,
requiring a finding that "a parent has willfully forsaken
obligations, although physically and financially able to
discharge those obligations." In re Adoption of Children by
L.A.S.,
134 N.J. 127, 134-35 (1993). Under this standard,
abandonment can be established if the parent has "engaged in a
course of conduct that 'evidences a settled purpose to forgo all
parental duties and relinquish all parental claims to the
child.'” Id. at 135 (citation omitted). As this Court explained
in In re Guardianship of J.C., "[t]he concept of abandonment
entails volitional and purposeful conduct that equates with a
willful giving up of parental rights and duties."
129 N.J. 1, 17
(1992). Thus, abandonment may not be based on parental conduct
that is only uncertain, ambivalent or equivocal in fulfilling
parental duties. See In re Adoption of a Child by D.M.H.,
135 N.J. 473, 488 (1994) (D.M.H. (I)) (observing that abandonment
cannot be based on conduct that includes "the purposeful
resumption of parental obligations.").
In L.A.S., supra, 134 N.J. at 134, the Court pointed out the
overlap between the abandonment standard and the best interests
of the child standard. Both standards for termination share, as
a fundamental and common ground for the termination of parental
rights, the establishment of parental unfitness that results from
the parent's failure to care for and protect the child. Ibid.
The Court differentiated the two standards on the basis that
abandonment requires a showing of volitional conduct in failing
to care for and protect the child that amounts to a repudiation
or forsaking of parental obligations. Id. at 135. The best
interests of the child standard requires a showing of very
substantial and continuing or recurrent abuse or neglect that
endangers the child's health and development. Ibid.; see also
J.C., supra, 129 N.J. at 10; In re Guardianship of K.L.F.,
129 N.J. 34, 45 (1992); A.W., supra, 103 N.J. at 616.
In this case, DYFS determined that L.R.'s parental unfitness
consisted of substantial and continuing neglect and that his
failure to provide any care and support for his children resulted
in harm that endangered their welfare. DYFS acknowledged,
however, that L.R. did not "abandon" his children; he did not
wilfully forsake them; he professed parental love for them and
sporadically expressed interest in providing for them.
Accordingly, DYFS sought to terminate L.R.'s parental rights not
under the abandonment standard of N.J.S.A. 30:4C-15(d), but
pursuant to the best interests of the child standard of N.J.S.A.
30:4C-15.1(a). The evidence and findings of fact in this case
may be more readily applied to the parental unfitness grounds
incorporated in the best interests of the child standard than to
the alternative abandonment standard. We determine, therefore,
that the salient issues to be addressed are those raised under
the statutory standard of N.J.S.A. 30:4C-15.1(a).
Although findings made by the trial court referred to the abandonment standard of N.J.S.A. 30:4C-15(d), those findings and the underlying evidence are relevant to the criteria of the best interests inquiry. In fact, the trial court's order was entered under N.J.S.A. 30:4C-15.1(a). Although the trial court's legal analysis was confusing and its findings somewhat misdirected and incomplete, the underlying evidence and the court's findings of fact may be reviewed to ascertain whether the evidence fulfills the best interests standard of N.J.S.A. 30:4C-15.1(a). Further, the Appellate Division also reviewed the evidence under the best interests standard. The appellate court in effect applied that standard in concluding that the trial court's determination that L.R. had not harmed the children was “unassailable,” and that there was not sufficient evidence that termination would not do more harm than good under that standard. In these circumstances, we may render complete findings based on the evidence of record in order to dispose of the important issues in this case. Cf. R. 2:10-5 (authorizing appellate court to exercise original jurisdiction and make findings in interests of justice).
The first two elements of the best interests of the child standard relate to the finding of harm arising out of the parental relationship. The statute provides, in part:
(1) The child's health and development have 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 foster parents
would cause serious and enduring emotional or
psychological harm to the child[.]
While the second prong more directly focuses on conduct that
equates with parental unfitness, the two components of the harm
requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one
another, and evidence that supports one informs and may support
the other as part of the comprehensive basis for determining the
best interests of the child. See K.H.O., supra, __ N.J. at __
(slip op. at 10, 15).
As this Court has stressed, the attention and concern of a
caring family is “the most precious of all resources.” A.W.,
supra, 103 N.J. at 613. Both of these children have been denied
this precious resource by their biological parents for many
years. A parent's withdrawal of that solicitude, nurture, and
care for an extended period of time is in itself a harm that
endangers the health and development of the child. K.H.O, supra,
__ N.J. at __ (slip op. at 16-18). We do not refer here to a
notion of "inadequate parenting," but rather to L.R.'s failure to
provide even minimal parenting to his children. See A.W., supra,
103 N.J. at 606-07.
L.R. shares in the responsibility and blame for the plight
of his children. While the infant C.H. was living with her
mother, the child suffered from neglect and instability,
resulting in damage that remains with her to this day. During
this early period, L.R. was nearby, knew of the conditions under
which his child was living, yet did not ameliorate them; he
failed to acknowledge paternity until 1993. DYFS caseworkers
visiting the house between 1991 and 1993 found the family to be
living in an overcrowded apartment under “deplorable” conditions.
When his children were at risk of being placed in foster care due
to their mother's neglect, drug abuse, and homelessness, L.R. did
not come forward to request that they be placed in his custody.
Nor did L.R. assist in securing adequate housing or providing
care for the children when they were still in the custody of K.H.
Thus, he compounded the mother's neglect and contributed to the
circumstances that required the eventual placement of the
children in foster care. The instability and lack of adequate
care that characterized the lives of these children did not
improve, but in fact deteriorated, after L.R. acknowledged his
paternity. Following the biological mother's death, L.R. did not
provide the children with the emotional support and comfort or
even the reassurance of physical presence that such a trauma
would require of a parent. Instead, he failed even to visit the
children for six months.
Each child has suffered. L.R., no less than K.H., permitted
C.H. to live unsupervised and unkempt in the shelter where DYFS
had temporarily placed the family. DYFS eventually removed C.H.
for lack of adequate supervision. C.H.'s special needs, a result
of these experiences, are well documented in the record. These
have been expressed in aggressive behavior, use of sexually
explicit language beyond her years, and stealing. During the
period after the initial hearing, C.H. required hospitalization
due to angry and explosive actions at school. Dr. Wells, the
initial expert, testified that C.H.'s problems are attributable
in part to the unstable environment and inadequate living
conditions she experienced during her first few years of life.
We note that Dr. Nadelman, the second expert, confirmed this
opinion, observing that C.H.'s emotional problems were the result
of the "instability and turmoil" of her early life.
R.H. has been in foster care since shortly after his birth.
L.R. did not protest R.H.'s placement in foster care, and did not
express any parental interest until after the child had been
voluntarily placed in foster care. Outside of occasional visits,
L.R. has never provided R.H. with any paternal care, nurture, or
support. R.H. was born with heroin in his system due to his
mother's drug use during her pregnancy; that harm was compounded
by L.R.'s persistent failure to perform any parenting functions
and to provide nurture, care, and support for R.H. for over three
years. This constitutes a parental harm to that child arising
out of the parental relationship and cognizable under N.J.S.A.
30:4C-15.1(a)(1) and (2). K.H.O., supra, __ N.J. at __ (slip op.
at 16-18).
The record further supports the conclusion of parental
unfitness. It reveals that L.R. will likely never be able to
provide his children with an adequately stable home. Dr. Wells
concluded that L.R. was unable to perform the day-to-day
functions required to be an adequate parent. Her view was that
he lacks the “emotional, psychological, physical or financial
means” to provide minimal parental care to his children. She
noted his transitory lifestyle, psychiatric history, and history
of substance abuse. She explained:
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 at providing a
stable home environment for the children.
Consistent with the evidence, the trial court found that L.R.
failed to perform any parenting functions or to provide nurture
and support for his children, explaining these circumstances at
length.
The Appellate Division based its reversal of the trial court
in large part on its rejection of the testimony of Dr. Wells.
The Appellate Division criticized Dr. Wells for her use of the
Millon Clinical Multiaxial Inventory-II test (MCMI-II), claiming
that the inventory was skewed toward the negative elements of the
patient's psyche. 309 N.J. Super. at 190. The Appellate
Division misconstrued the expert's report and applied the wrong
standard of review.
Dr. Wells administered a personal interview and evaluation
of L.R. in addition to the MCMI-II.See footnote 5 The test revealed a
moderate level of pathology in L.R., finding him to be self
defeating, submissive, dependent, and overly compliant and
indulging. Dr. Wells's report, however, was not overwhelmingly
negative. She noted that “there is no doubt” that L.R. loves his
children. In respect of L.R.'s wish for reunification, Dr. Wells
acknowledged that "the presence of blood related persons is
highly valued and deemed a significant element in [L.R.]'s life."
Nevertheless, she determined that breaking the children's bond
with their foster family would cause substantial and enduring
harm to the children. Further, in her opinion, the children
would not be significantly harmed by a cessation of contact with
L.R., who at that time had not visited them in six months. The
expert concluded that L.R.'s parental rights should be
terminated, explaining that she “cannot support or prioritize
[L.R.]'s need for family over the children's needs for a stable
family and home environment.”
The trial court found Dr. Wells to be “extremely credible”
and “most balanced” in her opinions. In these circumstances, we
rely on the trial court's acceptance of the credibility of the
expert's testimony and the court's fact-findings based thereon,
noting that the trial court is better positioned to evaluate the
witness' credibility, qualifications, and the weight to be
accorded her testimony. Bonnco Petrol, Inc. v. Epstein,
115 N.J. 599, 607 (1989). There is no basis in the record to indicate
that the expert's findings were erroneous or suspect. The expert
was well qualified, her evaluation addressed all the relevant
issues, and her conclusions were supported by other facts in the
record. J.C., supra, 129 N.J. at 19.
The Appellate Division found that the record did not
empirically support Dr. Wells' predictions regarding L.R.'s
inability to provide adequate parenting for his children. The
record, however, amply supports that finding. L.R. has never
been able to provide adequate parenting for his children. He
allowed them to be neglected and to live in conditions that DYFS
caseworkers described as "deplorable." Although there seems to
be no question that he loves them, he was not able to fulfill any
of his parental duties and has allowed the children to languish
in foster care for many years without a permanent home. The
record supports the finding that L.R. will not be able to provide
a safe and stable home for the children in the near future.
Courts need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect. A.W.,
supra, 103 N.J. at 616 n.14. The trial court found that a delay
in establishing a stable and permanent home will cause harm to
both these children. The lack of a permanent, safe, and stable
home has already engendered significant harm to C.H. See New
Jersey Div. of Youth & Family Servs. v. B.G.S.,
291 N.J. Super. 582, 591-93 (App. Div. 1996) (holding that parent's failure to
provide a permanent home or identity, causing child to suffer
psychological damage, may authorize termination of parental
rights). There is every indication that similar harm may befall
R.H.See footnote 6 Dr. Wells also specifically testified that separation from
her foster parents will cause C.H. serious and enduring harm.
J.C., supra, 129 N.J. at 19.
We find that the trial court was presented with clear and
convincing evidence that L.R.'s failure to take responsibility
for his children and to perform any substantial parental
functions caused harm to the children, endangering their health
and development, and that he has been either unable or unwilling
to remedy the circumstances giving rise to this harm. N.J.S.A.
30:4C-15.1(a)(1) and (2). Therefore, we determine that both the
first and second elements of the best interests of the child
standard have been met.
DYFS must show, as the fourth element of the best interests standard, that "termination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This criterion is related to the first and second elements of the best interests standard, which also focus on parental harm to the children. N.J.S.A. 30:4C-15.1(a)(1) and (2). The latter specifically defines "harm" as "includ[ing] evidence that separating the child from his foster parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C 15.1(a)(2).
It is evident from this factual record that severing C.H.'s relationship with her biological father, L.R., will not do her more harm than good. As we have explained in the companion case, K.H.O., supra, ___ N.J. at ___ (slip op. at 20), a harm arising out of the severing of ties with the biological parent is an inherent danger of termination proceedings. The near inevitability of this harm befalling a child is the tragedy that termination proceedings engender. Nevertheless, the question the courts must answer remains whether the termination will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4).
The expert testimony has amply demonstrated that this fourth element of the best interests standard has been met in respect of C.H. Dr. Wells concluded that breaking the bond with her foster family would cause substantial and enduring harm to C.H., and that she would not be significantly harmed by a cessation of contact with L.R. In addition, it is in C.H.'s best interests to be given the opportunity to have a permanent and stable home. We note, too, that C.H. is fortunate to have such an alternative, because her foster parents are willing to adopt her. See K.H.O., supra, __ N.J. at __ (slip op. at 26) (noting that termination of parental rights does not always lead to permanent placement); A.W., supra, 103 N.J. at 610-11 (warning that courts should hesitate to terminate parental rights in absence of permanent alternative placement).
As for R.H., Dr. Wells did not perform a bonding or psychological evaluation of the child, although she was able to conclude that R.H. does not really know L.R. and characterized R.H. as a “special needs” child.See footnote 7 The evidence, however, generates a strong inference that, comparatively, R.H. would suffer less harm from the termination of his parent's rights then from the termination of his relationship with his foster parents. Nevertheless, in the absence of a full psychological evaluation, the initial expert opinion provides an unsure basis for termination of parental rights. See J.C., supra, 129 N.J. at 19. The subsequent expert's report, however, did contain a thorough psychological and bonding evaluation of R.H. that is the kind of relevant evidence necessary to render an informed determination of the comparative harm that will result from the termination of parental rights. Dr. Nadelman found that R.H. and his foster mother, who wishes to adopt him, have a parent-child attachment and that she is his "psychological mother and is really the only mother he has known or can remember." She reported R.H. to be impulsive and aggressive, like his older siblings. Dr. Nadelman found R.H.'s current foster care placement to be "an acceptable, if not ideal adoptive home" for him, and also opined that he would suffer "significant regression" if he were removed from that home. Evidence consistent with Dr. Nadelman's opinion would strongly support and impel the conclusion that the severing of R.H.'s ties with his foster mother would cause him significant, perhaps irreparable, harm.
In considering whether these children have suffered parental harm under the comprehensive criteria of N.J.S.A. 30:4C 15.1(a)(1) and (2), as well as (4), we are mindful of strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay. See K.H.O., supra, __ N.J. at __ (slip op. at 22-24). As Dr. Wells pointed out, this father's need to maintain connection with his children should not override the children's requirements for stability and permanency. We appreciate, however, the importance of biological ties, and recognize that a foster family may permit the children to maintain their connection with their biological father. Such continued contact between a biological parent and the adopted child, sometimes referred to as "open-adoption," may affect the stability and permanency of the child in his new home. K.H.O., supra, __ N.J. at __ (slip op. at 29); L.A.S., supra, 134 N.J. at 140; A.W., supra, 103 N.J. at 610. Open adoption, that is, a voluntary arrangement or agreement providing for continued contact with biological parents after the termination of parental rights, has yet to be approved of by the Legislature. K.H.O., supra, __ N.J. at __ (slip op. at 29-30). While we continue to decline to enforce open adoption agreements because of the sensitive and complex issues of public policy such a decision raises, we approve of informal and voluntary agreements for visitation by biological parents provided they are fully counselled, mutually undertaken, and in the best interests of the children involved. Id. at __ (slip op. at 31-32).
L.R.'s primary contention in this appeal is that DYFS failed to undertake diligent efforts on his behalf to enable him to become the custodial parent or primary caretaker of his children. The third element of N.J.S.A. 30:4C-15.1(a) provides:
(3) The division has made diligent 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[.]
The statutory definition of "diligent efforts" is
“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." N.J.S.A. 30:4C-15.1(c).See footnote 8 Such "reasonable
attempts" at reunification include:
(1) consultation and cooperation with the parent
in developing a plan for appropriate services;
(2) providing services that have been agreed upon,
to the family, in order to further the goal of
family reunification;
(3) informing the parent at appropriate intervals
of the child's progress, development and health;
and
(4) facilitating appropriate visitation.
The New Jersey Administrative Code also provides guidelines
for the diligent efforts of DYFS to reunite families. N.J.A.C.
10:133I-4. Those guidelines require that DYFS provide services
to the family according to a case plan, including enlisting the
assistance of relatives, providing direct services, or providing
referrals to community services providers. N.J.A.C. 10:133I
4.2(a). The guidelines provide that DYFS must monitor the
services, change them as needs arise, and identify and strive to
overcome "barriers to service provision or service utilization."
N.J.A.C. 10:133I-4.2(b)(2).
Our understanding of the required scope of these
administrative efforts is informed by an examination of similar
provisions across the country. Although many states require that
social service agencies engage in “reasonable” or “diligent”
efforts to reunite families, few state legislatures have offered
concrete definitions of the terms. Judicial approaches to what
constitute reasonable efforts by a social service agency on
behalf of parents encompass a wide spectrum. In some states,
social service agencies must make “every effort” to reunite
families. State v. Robert H.,
393 A.2d 1387, 1391 (N.H. 1978);
see also In the Matter of Sheila G.,
462 N.E.2d 1139, 1147 (N.Y.
1984) (stating that social welfare agencies are required to
provide counseling for psychological, physiological, and
financial problems; assist in planning for child's future; aid in
procurement of housing and employment; and arrange for regular
and meaningful visitation with child); Weaver v. Roanoke Dep't of
Human Resources,
265 S.E.2d 692, 697 (Va. 1980) (requiring
assistance to remedy father's financial inability to care for
children).
Some state courts will take the agency's efforts into
account only in limited circumstances. Petition of the Dep't of
Pub. Welfare,
381 N.E.2d 565, 574-75 (Mass. 1978) (ruling that
dismissal of child custody petition is warranted only where
agency action was "arbitrary and irrational"). Other state
courts have refused to make a social service agency's reasonable
efforts at reunification a condition precedent to termination at
all. In the Matter of McDaniel,
610 P.2d 321, 324 (Or. Ct. App.
1980) ("The statutory requirement that available social agencies
. . . make 'reasonable efforts' to help the parent make a lasting
adjustment could not have been intended by the legislature as a
justification for penalizing the child for [the agency's]
lapse.").
On the federal level, the recent trend has been to limit the
reasonable efforts social service agencies must undertake to
reunite families. Thus, the Adoption and Safe Families Act of
1997 provides that the child's health and safety are the
paramount concern in attempts to reunify families.
42 U.S.C. §671(a)(15)(A). Although reasonable efforts are still required by
the Act, there are also numerous exceptions to an agency's duty
to provide reasonable reunification efforts, such as when the
parent has physically endangered the child.
42 U.S.C. §671(a)(15)(D)(I). These changes were spurred by congressional
concern that the efforts of social service agencies to reunite
families often returned children to dangerous homes. 143 Cong.
Rec. H10776-05, H10788 (daily ed. Nov. 13, 1997) (statement of
Rep. Kennelly) ("Unfortunately, in practice, reasonable efforts
became every effort, putting a child at risk. So we are now
telling States there are times when returning a child home
presents too great a risk to that child's safety, and that is not
a risk that we are willing to take."). Cf. DeShaney v. Winnebago
County Dep't of Social Servs.,
484 U.S. 189,
109 S. Ct. 998,
103 L. Ed.2d 249 (1989) (holding that state agencies have no
constitutional duty to protect child from his father after
receiving numerous and repeated reports of abuse). Some
commentators have criticized this approach, arguing that services
such as targeted reunification programs, drug rehabilitation, and
long term services programs, have been useful in producing lower
levels of maltreatment and higher rates of reunification. See
Robert M. Gordon, Drifting Toward Byzantium: The Promise and
Failure of the Adoption and Safe Families Act,
83 Minn. L. Rev.
637, 701 (1999).
This Court considered the diligent efforts standard in
K.L.F., supra, 129 N.J. at 47. There, the Court emphasized that
assisting the parent's efforts to reunify the family is both a
central and paramount consideration in determining the diligence
of DYFS's efforts. In that case, DYFS had improperly denied a
mother visitation with her infant child in the one year period
prior to initiating proceedings to terminate her parental rights.
Ibid. The mother had no home or work and was not contacted by
DYFS for a year and a half. Although the trial court
characterized that mother's efforts as “ineffectual, paltry and
meager," this Court found that the mother had attempted to
contact DYFS and when she finally reached DYFS and was able to be
a caretaker for the children, she was refused visitation. We
cautioned that “those in the child welfare system not tip the
scales and encourage a foster parent-child bond to develop when
the natural parent is both fit and anxious to regain custody.”
Id. at 46. The refusal to provide or allow an able and willing
parent contact with her child is tantamount to a unilateral
displacement of the biological parent, which is impermissible
without judicial approval. Id. at 40; see also In re La
Freniere,
420 A.2d 82, 84 (R.I. 1980) (holding that social
service agency's attempt to discourage visitation between
biological parents and children is irreconcilable with agency's
statutory duty “to encourage and strengthen the parental
relationship”).
The critical holding of K.L.F., supra, regarding the
“diligent efforts” requirement, is that DYFS must encourage,
foster and maintain the bond between the parent and child as a
basis for the reunification of the family. DYFS must promote and
assist in visitation and keep the parent informed of the child's
progress in foster care. DYFS should also inform the parent of
the necessary or appropriate measures he or she should pursue in
order to continue and strengthen that relationship and,
eventually, to become an effective caretaker and regain custody
of his or her children. N.J.S.A. 30:4C-15.1(c); In re Laura F.,
662 P.2d 922 (Cal. 1983) (finding reasonable efforts requirement
met when agency counseled parent on changes she needed to make in
order to regain custody).
Like considerations of parental fitness, an evaluation of
the efforts undertaken by DYFS to reunite a particular family
must be done on an individualized basis. See L.A.S., supra, 134
N.J. at 139. Services that may address one family's needs will
not be helpful to another. Whether particular services are
necessary in order to comply with the diligent efforts
requirement must therefore be decided with reference to the
circumstances of the individual case before the court, including
the parent's active participation in the reunification effort.
In re Tricia and Trixie H.,
493 A.2d 1146 (N.H. 1985) (requiring
minimum level of active efforts by parents); In re Kristen B.,
558 A.2d 200, 202 (R.I. 1989) (“When planning for reunification
with a child, the parent not only should establish and comply
with a plan that can provide a sound and constructive family
life, but must also perform some minimal act toward the
fulfillment of that plan.”); Adoption of Mario,
686 N.E.2d 1061,
1066 (Mass. Ct. App. 1997) (holding that duty of agency is to
engage in reasonable efforts contingent upon mother's fulfillment
of her own parental responsibilities and cooperation with
agency). Therefore, other services, including those provided in
conjunction with the reunification plan developed by DYFS, such
as day care, housing assistance, referrals to drug treatment or
medical and health care, parenting classes, financial assistance,
and the like, must be evaluated on a case-by-case basis.
DYFS's efforts to reunite these children with their parents,
K.H. and L.R., were reasonable under the circumstances,
particularly when properly viewed in light of DYFS's efforts on
behalf of this family as a whole. DYFS's efforts should not be
discounted by the courts due to K.H.'s death. DYFS caseworkers
had been providing services to this family since 1991. DYFS
consistently attempted to remove or ameliorate the circumstances
that necessitated state intervention in this family. In the
beginning, DYFS directed efforts only towards the children and
K.H. Despite the fact that L.R. lived in the same building as
K.H., in close proximity to her and the children from 1990 to
1993, he did not come forward as the father of C.H. Although
DYFS caseworkers were unable to direct services specifically to
him, the assistance provided to K.H. and the children did not
exclude L.R. and, in fact, indirectly helped him as a parent.
When L.R. finally did come forward in 1993 as the biological
father of C.H. and R.H., he told the DYFS caseworker that he
would eventually like to care for all four children, although he
could not do so at that time because of his unstable housing
situation and meager income. To assist L.R., DYFS promptly set
up bi-monthly visitation and encouraged a continuing parent-child
relationship between L.R. and his children. DYFS caseworkers
also attempted to ascertain whether L.R. had any relatives who
might be able to care for his children in the meantime. DYFS had
referred K.H. to the Elizabeth Housing Authority to improve the
family's housing situation, and later referred L.R. to Legal Aid
for housing assistance. In January 1994, when K.H. allegedly
assaulted L.R., DYFS referred L.R. to Legal Aid for legal
assistance and to obtain a restraining order against K.H., which
L.R. did secure. DYFS also referred L.R. to a domestic violence
program for battered persons. Thereafter, L.R. independently
received psychiatric and substance abuse treatment on several
occasions.
During the short time that L.R. was living with K.H., DYFS's
efforts to assist K.H. included L.R. by benefitting him with the
opportunity to be involved in the family's reunification. When
K.H. moved out, DYFS caseworkers continued to pursue the basic
plan of reuniting the children with K.H. as the primary
caretaker, but that effort never excluded, discouraged or
interfered with L.R.'s ability to remain a part of his children's
lives, to maintain a relationship with them, or to participate in
their care.
L.R. only sporadically expressed the desire to care for his
children, but he consistently failed to seek or take meaningful
measures to enable him to do so, and often frustrated DYFS
caseworkers' attempts to help him. For example, when L.R.
obtained the restraining order for domestic violence at the
suggestion of DYFS, he did not inform DYFS that he had done so,
nor did he elicit any further assistance from DYFS in helping him
to deal with this divisive family problem. In October 1994, when
L.R. once more informed DYFS that he wanted the children, DYFS
requested that L.R. and his girlfriend complete police reports as
a necessary preliminary step to gaining custody; despite several
reminders from DYFS, L.R. never furnished those reports.
Even prior to K.H.'s death, these parents evidenced an
inability to provide any care for their children, which resulted
in the children's transfer to the Adoption Resource Center,
without objection from either parent. L.R., in fact, told a DYFS
caseworker that he would be willing to let his children be
adopted if he could continue to have weekly visits with them;
nevertheless, he failed to visit the children between November
1995 and May 1996. In February 1996, L.R. failed to arrive at a
meeting with DYFS caseworkers to consider the status of the
children; DYFS moved to terminate L.R.'s parental rights in
March.
We find that DYFS's efforts to assist L.R. in his role as a
parent were sufficient, including: regular visitation;
encouragement of an ongoing parent-child relationship; allowing
L.R.'s inclusion and cooperation with K.H. in her parental role;
assistance in respect of domestic violence; and referrals to
obtain housing. As for psychiatric hospitalizations and care, as
well as drug detoxification programs, L.R. was able to obtain
these independently through state sponsored programs and
services.
The diligence of DYFS's efforts on behalf of a parent is not
measured by their success. Thus, the parent's failure to become
a caretaker for his children is not determinative of the
sufficiency of DYFS's efforts at family reunification. These
efforts must be assessed against the standard of adequacy in
light of all the circumstances of a given case. Consistent
efforts to maintain and support the parent-child bond are central
to the court's determination. L.R.'s continuing bond with C.H.
and R.H. is indicative that DYFS's efforts in this regard were
not only diligent but properly directed.
In a situation such as this, where one parent has been the
custodial parent and takes the primary or dominant role in caring
for the children, it is reasonable for DYFS to continue to focus
its efforts of family reunification on that custodial parent, so
long as DYFS does not ignore or exclude the non-custodial parent.
A different approach may be necessary where two biological
parents are hostile to one another. Where, however, the parents
are cooperative, DYFS's efforts should be considered in terms of
the family as a whole in determining whether those efforts have
been diligent within the meaning of N.J.S.A. 30:4C-15.1(a)(3).
We find DYFS's efforts to have been diligent in light of
this family's circumstances.
In conclusion, we disagree with the Appellate Division's determination that the order of termination of parental rights over C.H. is not supported by the facts of this case. There was clear and convincing evidence to support a finding of harm that endangered the health and development of both C.H. and R.H. N.J.S.A. 30:4C-15.1(a)(1). There was also ample evidence that L.R. was unable or unwilling to provide a safe and stable home for both of these children and that a delay in permanent placement will add to the harm they have already suffered. N.J.S.A. 30:4C-15.1(a)(2). There was sufficient evidence that termination of parental rights will not do C.H. more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The determination of the sufficiency of the evidence that termination of parental rights will not do R.H. more harm than good is premature and will require supplementation through the introduction into evidence of additional expert evaluations. Finally, we find that DYFS engaged in diligent efforts to reunite this family. N.J.S.A. 30:4C-15.1(a)(3).
The judgment of the Appellate Division in respect of L.R.'s parental claims to C.H. is reversed and the order terminating L.R.'s parental rights as to C.H. is to be reinstated. The judgment of the Appellate Division in respect of the termination of L.R.'s parental rights as to R.H. is reversed and the matter remanded limited to consideration and determination of the comparative harm to R.H. as a result of the termination of parental rights of L.R., in accordance with this opinion. We do not retain jurisdiction.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN, and COLEMAN join in JUSTICE HANDLER' opinion. JUSTICE O'HERN filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A- 8 September Term 1998
IN THE MATTER OF THE
GUARDIANSHIP OF
DMH, CLHW, LFH
and RQH, Minors.
O'HERN, J., concurring.
I concur in the judgment of the Court. My reasoning is
essentially set forth in the companion case of In re Guardianship
of K.H.O., ____ N.J. ___ (1999), also decided today.
In this case, the Appellate Division correctly held that the
standard for termination of parental rights had not been
established by the requirement of clear and convincing evidence.
309 N.J. Super. 192 (1998). The trial record failed to establish
convincingly the third prong of the standard for termination of
parental rights, that the Division of Family and Youth Services
(DYFS) made “diligent 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[.]” N.J.S.A.
30:4C-15.1(a)(3).See footnote 9
It is clear that any attention given to the father was an
afterthought. Again, with the benefit of hindsight derived from
the reports received following the Appellate Division decision
(and oral arguments before this Court), we can now determine that
the statutory standards have been met. The supplementary reports
found that the father's “functioning has deteriorated over the
last [six] months during which he said he was highly motivated to
gain custody. . . . Although there is strong caring and affection
between [the father] and his children, he has been unable to use
this to help him to mobilize his resources for recovery.” As
noted in the report, he can neither care for nor protect these
children, who have special emotional and educational needs. He
has lost his job and his home, in part because he has become
readdicted to drugs. The father is “a psychiatrically disturbed
substance abuser who has had this condition for many years” and
whose recovery is regarded as being “guarded, at best[.]” Even
if he were to completely recover, which is unlikely, he would not
be able to assume responsibility for any of the children for at
least one additional year.
“Despite his love for the children, his chronic emotional
disturbance and substance abuse have rendered him incapable of
taking care of himself or providing . . . minimally adequate
care, nurturing, stability, protection or guidance for his
children.” These children “have been waiting . . . since their
births” for their father to attain a level of functioning that
would enable him to care properly for them. Their childhoods
have suffered long enough. As recommended in the report, their
best interests would truly be best served if they were “free to
be adopted and achieve the permanence