SYLLABUS
(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).
New Jersey Division of Youth and Family Services v. C.M. (A-74-08)
Argued September 30, 2009; Re-Argued April 26, 2010 -- Decided June 1, 2010
RIVERA-SOTO, J., writing for a majority of the Court.
The Court considers whether the record in this matter establishes by clear and convincing evidence that defendant C.M.'s parental rights were properly terminated.
Irene had a brief affair with defendant C.M., a fifty-six year old married man and father of four children. The affair resulted in the birth of a child, Richard Jr., on April 3, 2006. Irene initially identified the father as Richard Sr., with whom she had two older children. Irene had a long history of substance abuse and a substantial prior history with the New Jersey Division of Youth and Family Services (DYFS). Due to concerns about Irene's substance abuse, DYFS was granted legal and physical custody of Richard Jr. After a paternity test confirmed that Richard Sr. was not the biological father, the child was moved to a foster family in July 2006, where he remains to date.
In late July 2006, Irene informed the trial court that the child's father was defendant C.M., whom she identified by a nickname and surname. She was unable to state where C.M. lived or worked, explaining that she had met him only once. At a hearing in August 2006, Irene again identified C.M. as the father, offering only his nickname and, this time, a misspelled surname. At a follow-up hearing in October 2006, DYFS informed the court that it had no information about C.M.'s whereabouts, but Irene had been in contact with him. Irene claimed, however, that she had informed DYFS where C.M. lived. She provided on the record C.M.'s place of employment, shift times, and telephone number. The judge ordered DYFS to locate C.M. and require him to submit to a DNA test.
C.M. claimed that it was not until December 2006 that Irene informed him that he might be the child's father. He submitted to a DNA test, which confirmed his parenthood on December 14, 2006. Thereafter, C.M. attempted to keep his marriage and family intact while also recognizing his out-of-wedlock child. He appeared at the next court conference on January 17, 2007. The abuse and neglect complaint that had been filed against Irene was amended to add C.M. as a party, and the judge advised him that he had the right to an attorney. Through an interpreter and without the benefit of counsel, C.M. explained that he did not presently want custody because he was already married and his wife did not want to take care of the child. He offered to pay child support. After C.M. provided his income information, the trial court observed that C.M. could apply for assigned counsel. The judge also stated that C.M. could meet with DYFS to develop a visitation plan, but he did not see a purpose for visitation because C.M. was not offering himself as a caretaker.
At the next hearing, on March 14, 2007, DYFS disclosed for the first time its goal of terminating C.M.'s parental rights. It explained that although C.M. was attending visitation with the child, he was not offering himself or his wife as a placement. The judge ordered that DYFS file a guardianship complaint by May 16th, when another hearing would be held. In light of C.M.'s position that he could not take care of the child, the judge also found it reasonable that DYFS had not offered services to him. C.M. was not present at the hearing, having given the court advance notice that he would be out of the country caring for a sick relative.
At the May 16, 2007 hearing, C.M., through an interpreter and without counsel, advised the court that a friend's wife had agreed to take care of the child or that other relatives would assist him, although it was unclear whether these individuals resided in the United States. When C.M. finally was represented by counsel at a June 27, 2007 hearing, DYFS informed the court that psychological and bonding evaluations concerning C.M. were scheduled in August, and that C.M. had offered his sister as a caretaker, but four adults were living in the sister's small apartment. DYFS never suggested that assistance might be available to improve the sister's housing situation to accommodate the child. When C.M.'s counsel advised the court that C.M.'s wife was not in support of their home being a placement for the child, the judge suggested to C.M. that he kick his wife out of the house and take his son home. When C.M. explained that he had children living at home, the judge, without benefit of any proofs, determined that C.M. was not a viable caretaker for the child and the case would be set down for trial.
Trial was held in October 2007. A licensed clinical psychologist testified that the child was bonded to his foster parents and that severing the bond would cause permanent psychological harm to the child. C.M. testified through an interpreter that he was not approached concerning the child until December 2006, voluntarily submitted to the DNA test, and appeared at the next hearing to express his desire to parent the child with the assistance of relatives. He stated also that after DYFS ruled out his sister based on her small apartment, his wife had thrown him out of the house and he decided he wanted to care for the child. He testified that he complied with DYFS's directions that he obtain an apartment with two bedrooms and arrange for someone to care for the child while he was at work, enlisting for that purpose a woman who had a license to care for children. C.M. also testified that he would allow his son's relationship with the foster parents to continue as a result of all they had done for him.
In an October 19, 2007 decision, the trial court analyzed the four-part test for termination of parental rights codified in N.J.S.A. 30:4C-15.1(a), and found by clear and convincing evidence that 1) C.M. did not offer himself as a caretaker for the child until August 2007, by which time the child was sixteen months of age, thereby endangering the child's safety, health or development; 2) C.M.'s conduct demonstrated that he was unwilling or unable to eliminate the harm to the child due to his lack of commitment to his son, and that his proposal to care for his son was "realistic but not probable to occur"; 3) DYFS should have made a better effort to provide services to C.M., but because C.M. only offered himself as a placement in August 2007, DYFS did not have much time to find such services; and 4) the child had bonded with the foster parents and had very minimal attachment to C.M., therefore terminating C.M.'s parental rights would not do more harm than good. The court entered an order terminating C.M.'s parental rights and placed the child in the guardianship of DYFS for all purposes, including adoption.
In an unpublished decision, the Appellate Division affirmed the termination of C.M.'s parental rights substantially for the reasons stated by the trial court. The Supreme Court granted C.M.'s petition for certification, and ordered DYFS to establish an appropriate schedule to provide regular and accelerating visitation between C.M. and the child during the pendency of the appeal and until further order of the Court. 198 N.J. 308 (2009).
HELD: The judgment of the trial court terminating C.M.'s parental rights is vacated. Defendant C.M. did not endanger his child's safety, health or development, he was willing to provide a safe and stable home for the child, DYFS failed to make reasonable efforts to provide services to help C.M. correct the circumstances that led to his child's placement outside the home, the trial court did not consider, in any substantive manner, alternatives to termination of parental rights, and there is no basis in the record to conclude that termination of C.M.'s parental rights to the child will not do more harm than good. In these circumstances, severing C.M.'s ties to his son constituted a gross and unwarranted abuse of the State's extraordinary power over its citizens.
1. The Court is guided by the principle that favors keeping children with their natural parents and resolving care and custody problems within the family. That is so because parents have a constitutionally-protected fundamental interest in raising their biological children, even if those children have been placed in foster care. Consistent with that principle, the State's parens patriae responsibility to protect the welfare of children is limited to situations in which the State has demonstrated that the parent is unfit or the child has been neglected or harmed. (Pp. 26-27)
2. The four-prong test for terminating parental rights is found at N.J.S.A. 30:4C:15-1(a), which states that DYFS shall initiate a termination petition on grounds of the best interests of the child if (1) the child's safety, health or development has been or will continue to be endangered by the parental relationship; (2) the parent is unwilling or unable to eliminate the harm or to provide a safe and stable home for the child, delay of permanent placement will add to the harm, and such harm may include evidence that separating the child from the resource family parents will cause serious and enduring emotional or psychological harm; (3) DYFS has made reasonable efforts to provide services to help the parent correct the circumstances that 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. These four criteria are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests. The primary focus should be on the harm to the child and courts should determine whether it is reasonably foreseeable that the parents can cease to inflict that harm. The burden falls on the State to demonstrate by clear and convincing evidence that the parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child. (Pp. 27—31)
3. C.M.'s failure to offer himself as the child's caregiver for a period of eight to nine months does not satisfy the requirement of the first prong of the four-part test. The period of time a child has spent in foster care is not determinative of whether parental rights to the child should be terminated. Logic and common sense demand that, in order to justify a termination of parental rights, something more than the eight-month delay presented in this case is required, and that "something more" is plainly absent here. Examined impartially, C.M.'s offer of himself as placement for the child was made nine months after it first was ascertained that he was the biological father, eight months after his first court appearance, three months after the guardianship complaint was filed, two months after he was first represented by counsel, and two months before the first day of the guardianship trial. When viewed in its proper, fair and reasonable context, it cannot be said that C.M.'s delay in offering to raise his own child could have caused the harm necessary to satisfy, by clear and convincing evidence, the first prong of the test. (Pp. 31—36)
4. With regard to the second prong of the test, the Court discusses the trial court's consideration of C.M.'s "life circumstances," including concerns that at age 56 he might have difficulty caring for an 18-month old infant, his job schedule, the fact that he had recently separated from his wife, and the testimony by DYFS's expert that, in part, C.M. lacks a supportive wife to help with the care of the child. The Court notes that the presumption that a mother is better able to care for a child than a father has long been abandoned. Additionally, the Court states that it has never held that a defendant's nine-month hesitation in making a seemingly impossible choice—choosing between his wife and family, on the one side, and an unexpected out-of-wedlock child on the other—can constitute a proper basis for terminating parental rights. When juxtaposed against the fact that C.M. is the child's natural father and that the only so-called "harm" defendant caused was an at-most eight-month delay, the proofs adduced by DYFS were woefully insufficient to prove that C.M. was unable or unwilling to eliminate the "harm" to his child. (Pp. 36—42)
5. The trial court erred in determining that DYFS provided sufficient services to pass the third prong of the test, which requires it to consult with the parent in developing a plan for appropriate services, provide services to further the goal of family reunification, inform the parent of the child's development and health, and facilitate appropriate visitation. The Court notes, in part, that the visitation provided by DYFS with C.M.—a paltry one hour per week—did not occur until three months after C.M. was identified as the father and did not comport with DYFS's own regulations regarding the location, duration, and frequency of visits, and the requirements for determining whether supervision is warranted. Furthermore, during oral argument, DYFS admitted to this Court that in the seven months since the Court's order was signed requiring regular and accelerating visitation, it had taken no substantive steps to comply. In this situation in which no allegations have been made that C.M. was an unfit parent, the Court states that he should have been afforded a meaningful opportunity to cultivate a relationship with his infant son. (Pp. 42—50)
6. The final prong of the test requires that courts inquire into the child's relationship both with the biological and foster parents to determine whether termination will not do more harm than good, and further requires expert inquiry directed at the strength of each relationship. The Court notes that in this case, no expert was needed to establish the common sense notion that the child would be more bonded with his foster parents in light of the fact that the child spent less than one-half of one percent of his time with C.M. The Court concludes that if DYFS had satisfied its statutory obligations in a meaningful manner and engaged in substantive reconciliation efforts on behalf of C.M. and his son, the resulting expert opinions would have been different. In the distinct circumstances presented here, the Court determines that DYFS's inadequate visitation plans for C.M., standing alone, should have caused the rejection of any application asking for termination of C.M.'s parental rights. (Pp. 50—53)
7. The Court finds that (1) C.M. did not endanger his child's safety, health or development; (2) C.M. was willing and able to provide a safe and stable home for his child; (3) DYFS woefully failed to make reasonable efforts to provide services to help C.M. correct the circumstances that led to the child's placement outside the home, and the trial court never considered, in any substantive manner, alternatives to termination of parental rights; and (4) there is no basis on this record to conclude that termination of C.M.'s parental rights to his child will not do more harm than good. The Court concludes that the trial court went so wide of the mark that a mistake must have been made, thereby allowing the Court to dispense with the deference traditionally afforded to a trial court's decision. In this unique setting, severing C.M.'s ties to his son constituted a gross and unwarranted abuse of the State's extraordinary power over its citizens, and the judgment terminating C.M.'s parental right cannot be sustained. (Pp. 53—54)
The judgment of the Appellate Division is REVERSED, the judgment of the trial court terminating C.M.'s parental rights is VACATED, and the case is remanded to the trial court for the immediate development and implementation of a reasonable, realistic and meaningful reunification plan entered into in good faith. Jurisdiction is not retained.
JUSTICE LaVECCHIA, DISSENTING, joined by JUSTICES LONG and ALBIN, asserts that the majority's decision fails to account for the best interests of the child. Justice LaVecchia discusses the law's focus on a child's need for prompt stability and permanency, and points out that the law has followed the trend toward limiting the amount of time a parent may delay before providing for his or her children. She maintains that the trial court properly considered from the perspective of the child the months that C.M. delayed, which occurred at a critical time in the child's development and resulted in his close bonding with the foster parents. Justice LaVecchia notes that services provided by DYFS could not alter the fact that C.M. failed to step forward in a timely way to parent the child, and she points out the expert's testimony that the child would suffer serious and enduring harm if removed from his foster home. According to Justice LaVecchia, the evidence in the record clearly and convincingly supports the termination of C.M.'s parental rights.
CHIEF JUSTICE RABNER and JUSTICES WALLACE and HOENS join in JUSTICE RIVERA-SOTO's opinion. JUSTICE LaVECCHIA filed a separate, dissenting opinion in which JUSTICES LONG and ALBIN join.