APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
Plaintiff-Appellant,
v.
C.S. and J.G.,
Defendants-Respondents,
IN THE MATTER OF THE
GUARDIANSHIP OF:
M.S.,
A minor.
_________________________________
Submitted September 22, 2003 - Decided February 20, 2004
Before Judges Wefing, Collester and Fuentes.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
FG-02-249-01.
Peter C. Harvey, Attorney General, attorney for appellant (Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Jane S. Blank,
Deputy Attorney General, on the brief).
Yvonne Smith Segars, Public Defender, attorney
for respondent C.S. (Alan I. Smith, Designated Counsel, of counsel and on the
brief).
Yvonne Smith Segars, Public Defender, attorney
for respondent J.G. (Harold Hoffman, Designated
Counsel, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney
for respondent M.S., a minor (James A. Louis,
Deputy Public Defender, of counsel; Cynthia
McCulloch DiLeo, Designated Counsel, on the brief).
The opinion of the court was delivered by
COLLESTER, J.A.D.
The central figure of this appeal is a little girl with the initials M.S. The Division of Youth and Family Services (DYFS) appeals from a December 26, 2002 order of the Family Part denying guardianship of the child. M.S. was born on April 24, 2000, delivered by a Lodi police officer in a trailer where her twenty-one year old mother, C.S., was temporarily living. M.S. and C.S. were taken to Hackensack Medical Center. After C.S. told a hospital social worker that she smoked marijuana during her pregnancy, both C.S. and her infant daughter were drug tested for marijuana. The test results were positive for both mother and daughter.
The hospital social worker notified DYFS, and caseworker Jean Hill responded the same day. C.S. told Ms. Hill that she took "a couple of puffs" of marijuana on her birthday two weeks before M.S. was born. C.S. said she used marijuana during her pregnancy to control nausea. That statement was later confirmed by J.G., the baby's father. C.S. also told Ms. Hill that she did not seek medical advice during her pregnancy, except for two occasions when she went to a Planned Parenthood office.
At the time she gave birth, C.S. was homeless. She lived in her father's apartment in Lodi until he moved to Paterson with his girlfriend and her children. C.S.'s mother had moved to Missouri in September 1999.
C.S. told Ms. Hill that in the last month of her pregnancy she lived in a car belonging to J.G., the birth father of M.S. A week before the birth, C.S. and J.G. moved into the Lodi trailer park at the invitation of a man named Kevin whom C.S. had known for about a week. It was there that M.S. was born. At first C.S. denied any domestic violence in her relationship with J.G., but she later stated that J.G. beat her practically every day during her pregnancy and made her smoke marijuana. Nonetheless, she continued living with J.G. and never sought a domestic violence restraining order.
Ms. Hill met J.G. at the hospital the day after M.S.'s birth. J.G. said he was unemployed and homeless. He admitted that he and C.S. smoked marijuana on a regular basis, but he claimed he stopped after a recent arrest. He offered no placement plan for his daughter.
C.S. told Ms. Hill that her plan was to leave the hospital with her baby and return to the trailer park to live temporarily with Kevin. She later asked DYFS to approve an arrangement for her to live with her daughter at the apartment in Paterson where her father lived with his girlfriend. DYFS found the proposed placement inappropriate because of past involvement with the girlfriend. When asked about other relatives, C.S. told Ms. Hill that her mother lived in Missouri and that she had two sisters, one in Missouri and the other in Massachusetts. C.S. told Ms. Hill that she wished to remain with her child in New Jersey.
On April 27, 2000, three days after she gave birth, C.S. was discharged from Hackensack Medical Center. Because of unstable housing, the history of domestic violence, drug use by C.S. and the lack of prenatal care, a hospital hold was placed on M.S. Meanwhile C.S. returned to the trailer park and stayed with friends. An order to show cause was signed by a Family Part judge on April 28, 2000, placing M.S. in the custody of DYFS pursuant to N.J.S.A. 9:6-8.21 pending the return date. On May 3, 2000, the court-ordered custody of M.S. was continued with DYFS pending placement. An attorney was appointed for C.S., and a law guardian was selected for the child. DYFS's permanency plan was to reunite M.S. with C.S. In support of this plan, the child was transferred from the Warren County foster home where she had been placed following her release from the hospital to a Bergen County foster home in order to provide C.S. easier access for visitation with her daughter.
On the return date of May 3, 2000, the court directed C.S. submit to a psychological evaluation, attend an out-patient drug program and complete a parenting skills program administered by the American Red Cross. C.S. was granted weekly supervised visitation. DYFS was directed to make an interstate referral to Missouri in order to evaluate the home of C.S.'s mother as a back-up placement.
J.G. did not appear on the return date. An attorney was appointed to represent him. He was ordered to submit to a paternity test, comply with drug and psychological evaluations and attend parenting skills sessions. The results of the paternity test confirmed that J.G. was the birth father of M.S., and J.G. did not dispute the result. He told the assigned DYFS worker that he was "trusting the State to take good care of [M.S.]." At no time did J.G. suggest any permanency plan for his daughter.
One month after the birth of M.S., DYFS made arrangements for C.S. to reside at Project Peace, a structured home environment in Montclair for women to live with their children. The home provided childcare in order for residents to meet their work and program obligations. The plan was for C.S. to live at Project Peace and begin compliance with court-ordered services while awaiting the next court date to unite her with M.S. Supervised weekly visitation was to continue in the interim.
Initially, C.S. followed the plan. She moved into Project Peace on May 26, 2000. She attended the first of two sessions for the mandated psychological evaluation. She also began attending Options, an out-patient drug treatment program she selected in Paterson. DYFS gave C.S. a monthly bus pass to defray transportation costs to Options and for visitation with M.S.
Unfortunately, these arrangements were short-lived. C.S. walked out of Project Peace after a week following an argument with a staff member about adhering to the house rule prohibiting locked doors. C.S. later testified that she locked her door because items had been stolen from her. She returned to Lodi but later called Project Peace to ask if she could return. Her request was denied. Again she was homeless. She moved into a trailer in Moonachie with a former boyfriend and his mother until she was told to leave. She then went to live with a girlfriend and her three children. On June 6, 2000, C.S. and her father had visitation with M.S. It would be the last time she would see her child for two years.
On June 9, 2000, C.S. was discharged from Options because of "consistent non-compliance with attendance policies." During her month in the program, C.S. tested positive for marijuana. She later testified the result must have been residual to her "couple of puffs" two weeks before M.S. was born. She also said that the setting of the program was "scary," and she felt out of place since the group participants were heroin and cocaine addicts. She also said that J.G. was stalking her near the program site in Paterson.
C.S. failed to attend either the parenting program specified by the court or recommended domestic violence counseling. She said that she could not attend because her bus pass had been stolen, but she did not ask DYFS for a replacement pass.
It is undisputed that C.S. did not tell DYFS she had been terminated from Project Peace and Options. The agency first became aware on June 19, 2000, when a volunteer scheduled to drive C.S. to Options was told by a representative of Project Peace that C.S. had been discharged for non-cooperation. On the same day, C.S.'s DYFS worker received a call from a woman who said that C.S. had been staying with her and her son in Moonachie and that she had "kicked C.S. out." C.S. called DYFS the following day to cancel her scheduled visitation because she had "pink eye." She told her DYFS worker that she was staying with friends but did not know the address or the phone number.
The next day, June 21, 2000, neither C.S. nor J.G. appeared at a scheduled court review hearing. The judge was advised that C.S.'s father had moved from New Jersey and was now living in Missouri with C.S.'s mother. DYFS was directed to investigate that home for possible placement of M.S. Meanwhile, DYFS continued its efforts to locate C.S. Family Specialist Melena Anderson called C.S.'s mother in Missouri, who said she had no idea where her daughter was living. Ms. Anderson then initiated a search for C.S. through the DYFS Permanency Support Unit, but C.S. could not be found.
On July 10, 2000, C.S. called Melena Anderson at DYFS to report she found a job and was living in an apartment. However, she declined to give Ms. Anderson the phone number or the address. Ms. Anderson told C.S. that her parents were worried about her and that disappearing was not going to help her reunite with M.S. Ms. Anderson also offered to arrange visitation with M.S. the following day if C.S. called the next morning. C.S. did not call.
After both C.S. and J.G. failed to attend the August 2, 2002, compliance hearing, the Family Part judge suspended their visitation because of their failure to comply with court-ordered services and attend court hearings. At this hearing the court learned that the Missouri home study of C.S.'s parents concluded on July 27, 2000, with a recommendation that M.S. be placed with her maternal grandparents on condition that M.S. be made a ward of the New Jersey Family Court for one year and that C.S. be permitted to join the household only if she successfully completed substance abuse treatment.
DYFS objected to any placement with the maternal grandparents because it discovered that C.S.'s mother had a lengthy history with the agency, which included physical and mental abuse of C.S. and her two sisters, the denial of family crisis assistance and the rejection of counseling services. Of particular concern was the information that although C.S. and another sister had been sexually molested as children, the parents rejected offers of therapy for them. According to DYFS, C.S.'s mother did not disclose any of this information when the home study was conducted in Missouri. Moreover, at that hearing the attorney for C.S. advised the judge that C.S. was adamantly opposed to placement of M.S. with her mother because of her "horrible childhood," which included repeated beatings by her mother. As a result, no action was taken by the court to place M.S. in Missouri.
Ms. Anderson continued her efforts to locate C.S., sending letters to her last reported address at the Lodi trailer park. One of the letters informed C.S. of a review of the case to be held at the DYFS regional office on September 25, 2000. C.S. appeared at the DYFS office on that date with a person she introduced as her new boyfriend. She told Ms. Anderson she was living with friends at the trailer park where she could receive mail but could not take phone calls. She said she was working at a pet store named Pet Pourri in the Garden State Plaza in Paramus. At the trial Ms. Anderson related the balance of her conversation with C.S. as follows:
I asked her why she hadn't been in touch with myself or anyone at the Division. She stated that she had things to take care of, that she needed to do by herself… She said she loved her daughter and wanted to see her. I asked her if she was interested in surrendering the baby. She said no that she wasn't and she wanted the baby to go to her mother because at least then she could hear her daughter over the phone when she calls her mother.
I informed her that the attorney had represented at the last court hearing
on August 2, that… she, in fact, didn't want the baby to go
with her mother at that time; that she told her attorney and her
attorney had represented to the court that she had had a horrible childhood
as a result of her mother and was physically abused by her mother.
She said she never said that but she -- that she didn't want
her daughter in Missouri because she didn't want to be away from her
but -- at that time she changed her mind and thought it was
a good idea.
Ms. Anderson told C.S. that her visitation had been suspended by the court
because of her failure to attend court-ordered programs and complete her psychological evaluation.
C.S. agreed to cooperate in the future. Before she left the DYFS office,
C.S. submitted to a drug test at the request of Ms. Anderson. The
result was positive for marijuana.
After C.S. left the DYFS office on September 25, 2000, Ms. Anderson again
made arrangements for C.S. to attend a drug counseling program, a parenting skills
program and to complete the psychological evaluation. She sent letters confirming these arrangements
and appointments to C.S. by certified and regular mail to the address given
by C.S. at the Lodi trailer park. Although the certified letters were returned
as unclaimed, the regular mail was not returned. Ms. Anderson called for C.S.
at Pet Pourri and was told that no such person worked there. C.S.
did not keep any of the scheduled appointments or attend any of the
mandated programs.
Ms. Anderson next heard from C.S. a month later when she called on
October 23, 2000. Ms. Anderson recalled the phone conversation as follows:
[C.S.] said she had to talk to me about what was going on.
And I quote, "Because by all things that are right on heaven and
earth, I can't understand why you are working so hard to keep [M.S.]
from her family."
She asked me why I couldn't put the baby with her mother and
father. I explained to her that there was a problem with her mother
and father as caregivers for [M.S.] as they have a long history with
the Division. She stated, "But that happened years ago." And I said to
her that the issues regarding abuse [were] involved in her home growing up
[were] very real and relevant to [M.S.] insofar as the Division would feel
she would be at risk in the home…
She stated that if the Division would just give them the baby, meaning
her mother and father, that she would go out to Missouri and take
care of her and that they wouldn't be as responsible for her.
I told her that I was concerned that she was not able to
take care of the baby because she's not able to take care of
herself. She stated that she would have food for the baby and clothes
and shelter, that other people would provide for her and the child.
I questioned how solid this plan was and told her that I questioned
her commitment to the child as she had not called me for one
month. And since the last time I spoke to her, she missed an
appointment with the psychologist.
I told her… that I had written a letter to her explaining all
that she needed to do to satisfy the court order, and she told
me that she never received the letter. And I told her that I
had sent it to the address that she gave me and that if
she moved she should have called me to tell me that. She stated
that she was still living at 56 Center Row but that she's not
staying there. I told her that I don't understand that and, if we
able to communicate, that she would let me know how to get in
touch with her. …I told her that I tried to call her at
her job but they had never heard of her. She stated that was
because she worked there under a fake name. I questioned this and she
said that she had her reasons. I asked her if she was still
working there. She said no. She was looking for another job.
. . . .
I asked her to call [the psychologist] and set up an appointment as
I had already done that for her and had to cancel because she
hadn't called to confirm. I asked her to call the American Red Cross
and set up classes. I asked her to write down the number. She
stated she would get the number on her own and she didn't need
it. I asked her to engage in out-patient treatment. She stated, "We'll see
about that. I'm not going to your little program." I told her that
she could find one for herself. As long as it fit the criteria
of what the court wanted that there should be no problem.
I found her to be difficult and not forthcoming. I asked her if
she still wanted to meet the following day. She stated that didn't think
it was necessary as she said everything that she wanted to say and
didn't think that she'd be able to change the worker's mind regarding the
placement of [M.S.].
C.S. appeared in court a week later at the November 1, 2000, compliance
hearing. The Family Part judge continued the suspension of visitation until C.S. was
"fully compliant" with all services and evaluations. DYFS was also ordered to conduct
a home evaluation in Massachusetts of M.B., C.S.'s sister and M.S.'s maternal aunt.
Before leaving the courtroom, C.S. was given a new appointment to complete her
psychological evaluation. She called Ms. Anderson five days later to say that she
wished to go back to the out-patient drug program. She came to the
DYFS office that afternoon and picked up another monthly bus pass. She told
Ms. Anderson she was leaving the trailer park and gave her a new
contact phone number at the home of her boyfriend's parents. Ms. Anderson reminded
C.S. of the necessity of attending drug counseling, domestic violence counseling, parenting classes
and keeping her appointment for the psychological evaluation to be reunited with her
daughter.
On November 17, Ms. Anderson received a phone message from C.S. that it
was important she speak with her. Ms. Anderson called the phone number left
by C.S. twice and left messages with two different people for C.S. to
return the call. No return call was received. C.S. did not appear at
the psychologist's office for her scheduled appointment to complete the evaluation. She also
failed to attend any programs ordered by the court. C.S. later testified that
she did not comply with the directions of the court because she had
made plans to move to Missouri.
In December 2000, C.S. left New Jersey for Missouri without notifying DYFS, the
Family Court or her attorney. She later testified that between January and March
2001, she called DYFS weekly to report and check on M.S., but DYFS
records do not indicate any such calls. C.S. said she spoke to DYFS
worker Judy Rocha in January 2001, to explain her situation. Ms. Rocha testified
she had no conversation with C.S. until late March 2001.
Meanwhile, pursuant to prior orders of the Family Court, a supplemental home study
was completed of the maternal grandparents by the Missouri social agency. C.S.'s mother
was asked why she had failed to mention her prior DYFS contacts, and
she responded that she must have misunderstood the question during her first interview.
Although C.S. had by that time moved to Missouri and was living with
her parents, C.S.'s mother never mentioned it to the evaluator because, "He never
asked me." When asked about M.B., her daughter living in Massachusetts, she said
they did not have a relationship. She opposed any placement of M.S. because
she believed M.B. would prevent her from seeing her granddaughter out of spite.
The Missouri social worker found that a placement with C.S.'s parents was appropriate
only on a conditional basis as opposed to a permanent placement. He wrote:
I would recommend the Court consider placement of [M.S.] with [E. and J.S.].
However, due to the New Jersey DYFS concerns about [their] past history with
the Division, I believe that his placement should be a "Relative (Grandparent) Foster
Care Placement" in accordance with the Interstate Compact versus an "Adoption Placement". In
addition, I would recommend that M.S. either remain a Ward of the Superior
Court of New Jersey, Chancery Division - Family Part, for a minimum of
one year after placement to ensure her stability, or the Circuit Court of
Audrain County, Missouri, Juvenile Division, and the Missouri Division of Family Services be
contacted regarding accepting transfer of this case via the Interstate Compact. This would
allow the Missouri DFS and Audrain County Juvenile Office to closely monitor M.S.'s
placement and would facilitate her removal and placement in foster care, if the
[grandparents] fail to comply with the Division's services and recommendations.
Coincidentally, on January 16, 2001, the same day the Missouri report was sent
to the Family Court in New Jersey, the Massachusetts Department of Social Services
submitted its report recommending placement of M.S. with M.B., the maternal aunt of
M.S. and a single mother of a two-year old boy living in a
Boston suburb. The report recommended a permanent placement.
It is our recommendation that M.B. be approved for the placement of her
niece M.S. Her home meets all the standards of the… regulations in regard
to space and safety. Her references have given glowing recommendations and M.B. has
a large support network in her church community and friends. She is a
young woman who had had to endure many hardships throughout her young life
and she has managed to do so with the help of therapy and
spiritual support. She has to date done a wonderful job raising her own
biological son and another child will transition into her home easily as she
has prepared her son as much as one can with a 2 an
1/2 year old.
At the January 17, 2001, compliance review hearing, DYFS recommended to the Family
Court judge that M.S. not be placed with her Missouri grandparents because the
recommended placement was not permanent and because of the documented prior history of
family abuse. DYFS recommended instead that M.S. be placed with M.B. in Massachusetts.
J.G. was present at this hearing and did not object to the recommended
placement. C.S. was not present, and her whereabouts were unknown to both DYFS
and the court.
The Family Part judge accepted the DYFS recommendation and ordered that the placement
with M.B. be self-executing on approval by the law guardian and receipt of
the requisite waiver for an out-of-state child placement. Both of these conditions were
met, and M.S. was placed in the home of her maternal aunt on
March 9, 2001. She was ten and one-half months old. It was her
third foster placement after her discharge from Hackensack Medical Center when she was
four days old.
On March 26, 2001, C.S. called the DYFS office. Ms. Rocha testified that
this was the first time she learned that C.S. had moved to Missouri
three and one-half months earlier. When Ms. Rocha asked C.S. why she had
not called before, C.S. responded that her parents forbade her to do so.
Ms. Rocha said C.S. was surprised to learn that M.S. had been placed
with her sister. When she was told that her parents had been previously
advised of the placement, C.S. said her mother had not told her. During
that conversation, C.S. told Ms. Rocha she had recently moved from her parents'
house into her own apartment, was working at a local Quik-Stop and was
engaged to be married. She gave Ms. Rocha an address and phone number.
Ms. Rocha called back the next day to give C.S. the name and
address of her attorney, and she told C.S. to call or write the
Family Part judge to communicate her intentions regarding custody of M.S.
Ms. Rocha testified that after that conversation, she did not hear from C.S.
for another four months. She made several calls, but there was never an
answer. In July Ms. Rocha discovered that the phone was disconnected.
In the meantime, DYFS requested M.B. consider adopting M.S. since there was no
plan of reunification of the child with either birth parent, and neither parent
had seen their daughter for over a year. When M.B. agreed, DYFS filed
a guardianship complaint on June 11, 2001, seeking to terminate the parental rights
of C.S. and J.G. in order to free M.S. for adoption by M.B.
The next contact between C.S. and DYFS occurred on August 3, 2001, when
C.S. placed a call from her mother's house and left a message. Ten
days later her father called DYFS to report that C.S. had a job
and had moved from her parent's house. He provided a new address.
C.S. opposed the guardianship proceeding by DYFS. She returned to New Jersey in
May 2002, and submitted to psychological and bonding evaluations. The judge ordered supervised
visitation with M.S. on May 15, and M.B. brought the child from Massachusetts
to New Jersey for that purpose. It was C.S.'s first contact with her
daughter since June 6, 2000. Subsequently six more supervised visits were held in
New Jersey, followed by extended weekend visitations in Massachusetts.
At the guardianship trial C.S. testified she lived in Mexico, Missouri with her
husband, D.D., whom she married on March 15, 2002. She said she loved
her daughter and wanted to be a mother to her. She asked that
M.S. be permitted to live with her and her husband in their home
near her parents and her other half-sister.
C.S. claimed she received little support from DYFS before leaving for Missouri. She
denied that she was unavailable to her DYFS caseworker and blamed DYFS for
the suspension of her visitation because "nobody bothered to take my side." She
maintained that she never intended to abandon her child by moving to Missouri.
Rather, she said that her life prior to her leaving New Jersey was
"too much of a mess" and that she left to live with her
mother in order to stabilize herself.
I was already cut off from my visitation. There was -- what --
what was important to me at that time was to just get my
life together, to be some place where I had moral support, where I
had my family, where I had love, where I had a steady place
to live, I could find a steady job. Things were really cheap out
there …I just wanted to get there, stabilize my life and get my
daughter home and that was -- and that was my plan. That's what
I started doing the second I got into Missouri.
C.S. testified she did stabilize her life in Missouri. After staying with
her parents for a short time, she got her own apartment as well
as a job babysitting young children. She attended psychological counseling and completed a
parenting program. She also completed an out-patient drug program and followed up by
attending Narcotics Anonymous (N.A.). It was at an N.A. meeting that C.S. met
D.D., a divorced father of two children. D.D. testified he fully supported his
wife's efforts to have C.S. live with them. He said they were preparing
their apartment as a home for M.S.
Certain contradictions were noted in C.S.'s testimony at the guardianship hearing. She described
her childhood as "happy." However, the DYFS records indicated that she was physically
and emotionally abused by her mother and sexually abused by the landlord of
the premises where she and her parents lived. According to the records, C.S.'s
mother declined therapy for C.S. after the sexual assault of her daughter despite
the obvious trauma she suffered. As a teenager she attempted suicide twice. She
was also committed to a psychiatric hospital. When C.S.'s mother testified, she denied
she was told by C.S. of her sexual abuse or of any suicide
attempt. She also denied ever beating any of her daughters.
Despite protestations by both C.S. and her mother of a good relationship, records
produced at trial indicate their relationship was highly conflicted and confrontational through C.S.'s
early adult years. On October 13, 1998, C.S.'s mother was granted a final
domestic violence restraining order against C.S. based on verbal threats and physical assaults.
C.S.'s mother certified in the complaint that C.S. threw a lamp and phone
book at her, kicked her, threw her on the floor and slapped her
in the face after telling her, "Now you'll see what is like to
get punched." C.S.'s mother later called police in May 1999, to report that
C.S. violated the order. After C.S.'s mother agreed to a dismissal of the
1998 restraining order on July 2, 1999, C.S. returned to live with her.
However, four days later C.S.'s mother signed another domestic violence complaint alleging further
violent acts by C.S. and claiming her safety was at risk if her
daughter lived with her. C.S.'s mother obtained a permanent restraining order against her
daughter, which continued in effect until she moved to Missouri.
The testimony of M.B., C.S.'s older sister, was also in conflict to the
claim of a stable, happy childhood home for herself and her sisters. She
described that home as neglectful, physically abusive and dangerous. She said her mother
beat her regularly, threw her out of the house on many occasions and
forced her to work until 11:00 p.m. when she was thirteen. She said
that when she was a child, she was sexually assaulted for a year
and a half by a family friend, whom her mother defended and from
whom her mother accepted money. She explained that intense therapy helped her deal
with her childhood trauma. She stated she did not have a relationship with
her mother and did not want one.
M.B. testified her first involvement with this matter occurred when she received a
letter from her mother telling her C.S. was pregnant, needed help and suggested
she call her step-father. M.B. made the call, and her step-father asked if
she would take in both C.S. and the child. She declined. Later she
was called by her step-father shortly after M.S.'s birth. He told her that
because C.S. had smoked marijuana during her pregnancy, the State might try to
take the baby away from her.
In September 2001, M.B. received a letter from DYFS asking if she was
willing and able to take in M.S. with the possibility of a permanent
placement. M.B. called to say she was willing to do so. M.B. was
also told that DYFS was considering placement of M.S. in Missouri with J.S.,
and M.B. expressed concerns about that option because of her childhood experiences. She
agreed to accept M.S. in her home on a relative foster placement. She
specifically stated that her decision was not based on any animus toward her
mother. She also said that she loved C.S.
M.B. testified that when M.S. came to live with her at ten months
old in March 2000, she was "tense, scared and angry." She said M.S.
gradually relaxed and accepted M.B.'s home as her own and M.B.'s son as
her brother. When asked why she wished to adopt M.S., M.B. replied,
Well, I love her. She's part of our family. She sees me as
her momma. And she has a place. You know, she deserves this life
that she has. And she deserves to be safe and happy. And I'm
giving her that.
M.B. also testified that if she was permitted to adopt M.S., she would
seek no financial assistance from the State. She also stated that she would
continue to permit visitation and foster a relationship between her sister and M.S.
including
reinforcing M.S.'s knowledge that C.S. was her birth mother. She stated,
There are pictures of [C.S] as a child. There are pictures of [C.S.]
and me at my home. …[M.S.] knows who she is. And, of course,
I mean, its part of our life. She's my sister. She's not going
to stop being my sister and so, yes, I mean, of course, I'm
going to continue to facilitate [M.S.'s] understanding of … who she is.
M.B. said that if C.S. remained in Missouri, she would facilitate extended visitation
with M.S.
And I said to [C.S.] that, you know, and we talked very specifically
about how we could work this out. By that I said, in the
future, "When she's able to get on a plane by herself, I imagined
she'd spend her summers or part of her summers with you." And I
said to her now, you know, if she has a relationship with our
mother, you know that's fine …but as it relates to me …I will
not be forced to have a relationship with my mother.
[M.S.] understands that [C.S.] is her birth momma. That she grew in [C.S.]'s
belly. She understands that.
Q. You told her that?
A. Oh, we talk about it all the time. She talks about it with
her teacher. She understands it with her friends. She understands that [C.S.] is
her birth momma and that I am the momma who takes care of
her. She can say it back to you.
And I said to [C.S.] that …I explained and my understanding of an
open adoption being that there's one party who cares for the child --
that would be me -- and there is a relationship facilitated between the
child and the birth parent specifically so that they don't have that loss
of identity and that wondering, and "why was I abandoned"…
Neither C.S. or J.G. contested that M.S. was happy and thriving in the
home of M.B.
Three psychologists testified at the guardianship trial. Dr. Ernesto L. Perdomo, Ph.D., testified
on behalf of DYFS that he evaluated J.G. on January 23 and 24,
2002, and concluded that he could not provide a stable home for his
daughter due to the lack of stability and organization in his own life.
J.G. produced no testimony to challenge the evaluation and conclusion.
See footnote 1
Dr. Frank J. Dyer, Ph.D., testified he was retained by DYFS to assess
the ability of C.S. to parent M.S. He reviewed the DYFS material supplied
to him and conducted a clinical interview on February 11, 2002. He found
C.S. to be evasive during the interview. C.S. described her childhood and relationship
with her mother as problem-free despite the history of sexual and physical abuse
and a suicide attempt. She also admitted that she had been arrested for
attempting to hit her mother with a lamp and for violating a restraining
order obtained by her mother. When asked about being abused during her pregnancy
by J.G., C.S. told Dr. Dyer that she did not seek medical attention
because she did not want to get J.G. in trouble. Dr. Dyer asked
C.S. why she lost contact with DYFS for such a substantial period of
time after her move to Missouri and she responded that she could not
find a pay phone.
Dr. Dyer found that C.S. lacked maturity and judgment beyond that of an
adolescent and manifested an inability to take responsibility for her own actions. He
was concerned that C.S. placed a higher value on escaping detection than considering
a risk to her child. He said this tendency to avoid responsibility and
evade detection was "the feature of this clinical profile that is of most
concern to me, especially in view of the fact that [C.S.] proposes to
take [M.S.] out to Missouri where DYFS would not have the opportunity to
supervise her."
Dr. Dyer also testified that C.S. did not comprehend that M.S. would experience
a traumatic loss if she was removed from M.B.'s home. He discerned that
if C.S. was awarded custody and M.S. expressed feelings of loss or exhibited
loyalty toward M.B., C.S. would be very likely to respond inappropriately and without
comprehension of the child's feelings or needs. Dr. Dyer opined that due to
C.S.'s resistance to intervention, including refusal of services provided by DYFS and the
Family Court, her deceptiveness witnessed by her denial of childhood problems, and what
he termed her "narcissistic preoccupation," her prognosis to change and become an appropriate
parent for C.S. was poor.
Dr. Dyer further testified that M.S. was substantially bonded with M.B. He observed
the child to be happy, emotionally secure and relaxed with her aunt, whom
she calls "momma." He found that M.B. provided sufficient structure and had a
well-developed support system for raising M.S. with her own son. Her employer was
understanding and permitted her to take time off for the children. She also
belonged to a cooperative day-care facility and she was actively involved with her
church.
In contrast, Dr. Dyer concluded after observing C.S. and the child that M.S.
views her birth mother "as in some vague way… some kind of threat
to her stability and security." He opined that he did not see it
possible for C.S. to develop a relationship with M.S. that would approximate an
attachment relationship or a bond such as that which M.S. had with M.B.
He testified that M.S. would suffer severe and enduring harm if she were
removed from her aunt in the middle of a developmental period in which
she is very vulnerable. He feared that uprooting M.S. and transferring custody to
the mother would impair the child's self-esteem, basic trust and capacity to form
intimate emotional ties. He elaborated that if M.S. was separated from M.B., the
child's central love object, M.S. would perceive herself as intrinsically unlovable and would
be scarred in terms of trusting other people. He opined that such a
disturbance in the attachment relationship could carry over into adolescence and adulthood with
a risk of severe personality disorder. Therefore, he strongly recommended that M.B. be
permitted to adopt M.S.
Dr. Ronald G. Silikowitz, Ph.D., testified on behalf of C.S. He conducted a
psychological examination of C.S. and observed her interaction with M.B. He said he
was impressed by her openness, her remorse for her past mistakes in her
life and the "remarkable" changes she made in her lifestyle. He said she
was able to parent M.S. since she was now married, had her own
home, had completed parenting classes, was involved in therapy and was drug free.
During his evaluation, Dr. Silikowitz made no inquiry as to the reasons C.S.
left New Jersey and moved away from her daughter to Missouri, leaving the
child in a foster home with non-relatives. He did not inquire into C.S.'s
relationship with her husband other than to accept her statements that she was
happy.
Based on his observations of M.S., Dr. Silikowitz found that the child had
a difficult time with change, "more so than any child I've seen in
the last twenty years." He attributed his finding to the multiple placements M.S.
experienced in her young life, emphasizing that every child needs a sense of
permanence. Accordingly, he believed that a change in custody would "most certainly" cause
harm to M.S., but he said he did not believe the harm would
be permanent in nature if there was a gradual reunification between M.S. and
C.S. Such reunification would require C.S., her husband, D.D., and M.B. to cooperate
and "do everything positive to facilitate the transition for the child." He suggested
that he, Dr. Dyer and a Missouri therapist named Cynthia Mackie might be
helpful in assisting reunification of C.S. and M.S. When asked how long it
would take M.S. to have a healthy transition through this unification plan with
her birth mother, Dr. Silikowitz said, "You never know until you do it
how long it's -- what's going to actually happen." He said that since
M.B. was M.S.'s psychological parent, the transfer of custody would require her full
cooperation, and he was concerned about tensions in her relationship with C.S. due
to the court proceedings. His opinion favoring the reunification of C.S. with her
child presumed C.S. had a stable home relationship. Dr. Silikowitz responded to a
question that a change of custody was in the child's best interests. He
did not say why and was not asked.
The trial judge issued a written decision on December 19, 2002, in which he found that DYFS failed to prove by clear and convincing evidence that C.S.'s parental rights should be terminated and therefore, dismissed the complaint for guardianship. No findings or conclusion were stated as to J.G. In declining to accept the arguments of DYFS and the law guardian, the judge rejected the argument that C.S. had abandoned M.S. by leaving New Jersey, concluding:
Without meaningful employment, stable residence, and without her child, C.S. realized her life was in "shambles" and she needed to get herself together. Her parents, who had resided in New Jersey for many years while she was growing up, had located to Mexico, Missouri. At one point, the Division was considering placing M.S. with her maternal grandparents. Like many other disenfranchised young people, C.S. sought security and safety with her parents.
In reaching this conclusion the trial judge gave little or no weight to the evidence that C.S. left New Jersey and failed to communicate with DYFS for four months and failed to attend court review hearings for six months. Similarly, weight was not given to the testimony of caseworkers Hill, Anderson and Rocha of C.S.'s repeated failure to comply with evaluations ordered by the court and programs supervised by DYFS. Rather the court focused on her "new life" in Missouri.
She testified that although she did not inform the Court of her move to Missouri, she began programs similar to the services she was to receive in New Jersey, including domestic violence group sessions and parenting skills.
She began attending twelve-step programs, Alcoholics Anonymous (A.A.) and Narcotics Anonymous (N.A.), where
she met her husband, D.D.
The judge also relied upon C.S.'s marriage as a source of stability.
C.S. recently married D.D. They met at a Narcotics Anonymous (N.A.) meeting in
February 2001. D.D. is a trained emergency medical technician/paramedic, with a number of
years of hospital services. Presently he is the assistant activities coordinator at a
nursing and rehabilitation center. He describes himself as a recovering addict who regularly
attends N.A. meetings. D.D. is supportive of C.S. and her desire to be
reunified with her daughter. He should be a source of strength to [her]
as she deals with any substance abuse or other problems.
The trial judge rejected the findings and conclusions of Dr. Dyer, stating they
were "not adequately supported or… internally inconsistent in his report." He stated that
Dr. Dyer's opinion did not consider the changes C.S. made in her life
after leaving New Jersey.
It was his testimony that he accepted the allegations in the Complaint as
true. Generally, Dr. Dyer's understanding was that C.S. had largely abandoned M.S., refusing
services offered by the Division, which resulted in the decision to place M.S.
for adoption with M.B.
While that was true, it does not appear that he was adequately informed
about the positive developments in her life with her new husband and her
family in Missouri.
The judge also rejected Dr. Dyer's opinion because it was grounded in part
on his findings that C.S. had a "chaotic and emotionally deprived childhood."
Dr. Dyer's conclusions that the birth mother was "a repeatedly traumatized child who
was sexually abused, not permitted to gain closure by testifying in the trial
of one of the perpetrators, exposed to a chaotic and emotionally deprived home
environment…" are not borne out by the facts he related in his report.
Although sexually abused by the landlord, that does not account for calling her,
"a repeatedly traumatized child." As for her not being allowed closure, that is
pure speculation… As for the "chaotic and emotionally deprived home environment," in his
interview with the birth mother when asked about her family, she replied, "It
was a pretty happy home… Everything was pretty cool. I was pretty much
a happy kid." Apparently where the birth mother and the aunt, M.B., who
is estranged from their mother, and "spent all of [her] 20's in therapy,"
departed in their recall of their childhoods together, Dr. Dyer accepted M.B.'s versions
as true.
Although the trial judge made no specific finding that C.S.'s childhood was a
happy one, it appears that he accepted C.S.'s statements to that effect. He
did not comment on the testimony of M.B. or the DYFS records indicating
physical and psychological abuse. He also apparently gave no consideration to statements made
by C.S.'s lawyer at an early review hearing that C.S. was opposed to
any placement with her mother because of her "horrible" childhood and the physical
abuse she suffered.
The judge found the findings and opinions of Dr. Silikowitz superior to those
of Dr. Dyer because Dr. Silikowitz had "a more accurate understanding as to
who [C.S.] actually is…" Although acknowledging that M.S. "is a particularly sensitive and
emotional child who has thrived under her aunt's care," the judge ordered her
reunification with C.S. However, this placement was not made permanent or even subject
to a timetable for final placement. Rather, the child was to remain with
her maternal aunt until after the "full support and sincerity of everyone" including
therapists to ease the change in custody.
In consideration of the four statutory factors in
N.J.S.A. 30:4C:15-1(a) governing termination of
parental rights, the trial judge made the following findings:
As for Factor 1, C.S. has achieved a level of stability in her
own life, and will be able to provide M.S. a suitable home, with
the support of a stepfather and maternal grandparents, who live close (sic) by.
Any substance abuse problems are being overcome.
Factor 2: C.S. is willing and able to eliminate harm to M.S. and
provide her a stable and safe home. Although there is great concern that
separating M.S. from M.B. will cause serious and enduring emotional or psychological harm,
the Court finds that such separation, guided and monitored by a mental health
provider specializing in reunification, and the sincere cooperation of everyone affected, will serve
to ameliorate the adverse effects upon M.S.
Factor 3: The Division comported itself properly in this matter.
Factor 4: If there were termination of parental rights, that would not do
more harm than good to M.S.
The order of December 26, 2002, restored the protective services complaint and directed
DYFS to develop a reunification plan. Immediate and expanded visitation between C.S. and
M.S. were ordered. Additionally, DYFS was to arrange for mental health services in
Missouri to assist in the transition of custody and to develop a timeframe
for transfer of M.S. from M.B. to C.S.
DYFS soon discovered that C.S. was no longer living with her husband and
had returned to live with her parents while D.D. was residing at his
father's home. In light of this new information DYFS then moved for reconsideration
of the December 26, 2002 order.
The trial judge re-opened the guardianship hearing for further testimony on January 27,
2003. DYFS caseworker Toyna Fernande testified that both C.S. and D.D. refused to
tell her when and where they would reside together, and that, as a
result, DYFS could not proceed with any plan for reunification. Both C.S. and
D.D. testified that they separated in December, prior to the court's order directing
reunification. Both claimed that the separation was due to economic reasons, namely, that
they could not then afford to maintain an apartment because they were obliged
to repay D.D.'s father for monies lent to them to attend court hearings
in New Jersey. C.S. and D.D. each testified that their plan for placement
of M.S. was to have her live with them at the home of
D.D.'s father, which required another home evaluation by the applicable Missouri social agency.
During her testimony, C.S. had the following exchange with the law guardian:
Q. Are you and [D.D.] experiencing any marital problems other than the debt?
A. We're fine… We've grown close over this, over… over so much.
DYFS argued for reconsideration of the December 26, 2002, order on grounds that
there was no stable home for M.S. except with M.B. in Massachusetts. However,
on January 29, 2003, the trial judge denied reconsideration and enforced his prior
decision and order for reunification of M.S. with C.S.
The birth mother presently resides with her parents, M.S.'s grandparents, and the husband
resides with his father, age 82, in his house. They hope to save
enough for a down payment on a house. The husband earns $7.92 per
hour for a full workweek, the birth mother about $115 every two weeks
providing childcare. The Division has concerns as to the adequacy of the housing
for [M.S.]. Although the grandparents' house had been earlier approved by the Missouri
child protection agency, the Division has grave reservations whether their home is "an
appropriate place to raise [M.S.] given the extent of the documented dysfunction in
the family."
D.D. testified that his father is agreeable to having them live in his
house, which is larger, in a quiet neighborhood, and would allow M.S. a
safe and comfortable home.
After weighing all the matters presented, including those previously addressed, the Court concludes
that its earlier findings still pertain and shall not be disturbed.
Although C.S. and D.D. are people of modest means, they are devoted to
making a proper home for M.S. That they would incur debt to appear
in New Jersey for hearings and other related purposes is evidence of their
sincerity.
When M.S. arrives in Mexico, Missouri, she will not only have her mother
and stepfather, she will have the support of an extended family living in
or near this small Missouri town. Despite the Division’s concerns about the maternal
grandparents, which apparently arose out of omission, rather than commission, the responsible caretaker
shall be the birth mother. Having heard the testimony of each grandparent and
being aware of the concerns of the Division, I am satisfied they will
prove to be loving and supportive of M.S.
It is necessary to re-emphasize what was earlier stated in the Court’s Decision
and Order.
The Court appreciates that there are those, including employees of the Division, who
may disagree with the Court’s Decision and Order. They believe that the best
interest of M.S. would be served by allowing her to remain with her
maternal aunt, M.B., who wishes to adopt her.
Termination of parental rights based upon “best interests of the child” proceed pursuant
to N.J.S.A. 30:4C-15.1. The Court made its findings pursuant to that statute.
Notwithstanding personal feelings as to which is best for M.S., it is clear
that everyone involved in the process of reunifying this fragile child with her
birth mother must pull together to achieve that purpose. The proceedings before the
Court were adversarial, now that the decision has been made, there must be
harmony of action.
On January 29, 2000, DYFS filed its notice of appeal from the order
dismissing the guardianship complaint and denying its motion for reconsideration.
While this matter was on appeal, the Child Placement Review Board reviewed the
placement of M.S. under the Child Placement Review Act, N.J.S.A. 30:4C-50. The Board
issued its report on May 27, 2003, indicating disagreement with the Court’s plan
of reunification and recommending adoption by M.B. as a proper permanent plan for
M.S. On April 14, 2003, the trial court conducted a permanency hearing as
part of the protective services review under N.J.S.A. 9:6-8.4 and N.J.S.A. 30:4C-61.2 and
again rejected adoption by M.B. Instead, the Court ordered DYFS to present a
reunification plan by May 6, 2003, and further ordered that the matter proceed
only under the guardianship docket. In the order prepared by the court the
judge was critical of DYFS and reaffirmed its prior decision:
When it reactivated the Complaint for Protective Services,… the Court believed this was
the more appropriate vehicle to expedite reunification of the mother and child. It,
however, had unexpected results. Whereas the Court expected everyone to move forward, apparently
the Division concluded that this started the process all over again and they
were at liberty to propose the same permanency plan, notwithstanding that the Court
made findings and entered orders contrary to that plan.
Additionally, the Child Placement Review Board (Board) made a report critical of the
Court's Decision, essentially raising the very same issues that were advanced during the
four days of hearings and addressed in the Decision after trial and Order
denying reconsideration.
Those reiterations are not helpful and only serve to divert progress toward reunification
of the mother and child…
. . .
Although the Division has the right to appeal, the birth mother, C.S., has
the right to have the orders for reunification with her child obeyed, unless
a stay is entered.
. . .
Although the Division and Law Guardian claim that C.S. "abandoned" her child, which
the Court addressed in its Decision and on the record in subsequent hearings,
it appears that their primary drive is the belief that the child, M.S.,
would be better off with her aunt, M.B., therefore adoption would be in
her best interests.
Our Supreme Court rejected such approach. "Merely showing that a child would be
better off with an adoptive parent rather than with the biological parent, is
not enough." Adoption of Children by C.P.B., Jr.,
161 N.J. 396, 404 (1999).
If the only thing the Court had to decide is whether M.S. would
be better off with her aunt, M.B., or with her natural mother, the
Court's conclusion could possibly be different. That was not what the Court was
to decide; therefore, no conclusion based on that premise was made or even
considered. The consideration as to what is in the best interests of the
child is made in the context of the statute, N.J.S.A. 30:4C-15.1(a), and its
four factors upon findings that they have been met by clear and convincing
evidence.
In April 2003, DYFS reviewed records received from the clinic in Missouri where
C.S. was receiving counseling. The records contained a report from C.S.’s therapist in
which he related that C.S. told him on December 6, 2002, that D.D.
had brutally beaten her in late November and that she had returned to
live at her parents’ home. DYFS filed a motion before us to supplement
the record with this information or, alternatively, for a remand in light of
this new development and because C.S. had testified three times following the assault
without mentioning it and, when asked during her testimony, had specifically denied any
marital problems. On May 8, 2003, we ordered a temporary remand for the
trial judge to reconsider guardianship in light of the new evidence alleged by
DYFS.
A remand hearing was conducted on June 3 and 5, 2003. Testifying by
phone, C.A. Woodward, a clinical social worker in Missouri, testified that he commenced
counseling with C.S. in November 2002, to deal primarily with stress related to
these proceedings and he said that C.S. had demonstrated an increased ability to
deal with stress. He stated that C.S. told him on December 6, 2002,
that D.D. physically assaulted her by taping her hands together, beating her and
throwing her out of their apartment. She related earlier abuse by D.D. including
his refusal to take her for treatment after a foot injury. Mr. Woodward
said that C.S. returned to live with D.D. after Christmas because she believed
that living apart from him might hinder her efforts to gain custody of
M.S. However, C.S. returned to live with her parents in March, stating that
she feared D.D. could harm M.S. if she lived with him.
On cross-examination, Mr. Woodward said he was unaware that C.S. testified in December
and January without mentioning the physical abuse she suffered and had in fact
represented that she had no marital difficulties. Woodward said such misstatements concerned him
because it raised issues as to C.S.’s truthfulness and her failure to disclose
information relevant to the protection of her child. He was also surprised that
C.S. testified to a happy childhood because she described her mother as "controlling
and abusive" and indicated as late as December 6, 2002, that she "had
reservations" about having custody of her daughter while living with her mother. He
also had not been told of C.S.’s suicide attempts when a teenager or
of physical abuse inflicted on her by her mother. He conceded that based
on this new information, C.S. was not as stable as he initially thought.
However, while admitting he was testifying "as her advocate," he stated his belief
that C.S. would be "a competent parent" in a stable environment.
C.S. testified by telephone that she was living with her parents that her
relationship with her mother was “excellent.” She said it was her intention to
have M.S. live with her at her parents' house until she could afford
her own apartment. She had no intention of living with D.D. again and
planned to seek a divorce when she was financially able to do so.
When asked about her husband’s assault upon her in November 2002, C.S. at
first said she could not recall it. Later she said D.D. hit her
and tried to tie her hands with duct tape. She also said she
could not recall her previous testimony that her marital relationship was “fine,” although
she admitted that she had been assaulted before so testifying. She maintained that
her initial separation from her husband was for financial reasons and not due
to his physical abuse of her. However, she contradicted her prior testimony by
stating that at no time did she have any intention of living with
M.S. at her father-in-law's house with D.D. She did not recall so stating
at the prior hearing.
C.S.'s mother testified by telephone that C.S. was living at her home and
that they had a good relationship. She added that she agreed with C.S.’s
plan that M.S. live with them, indicating that a separate room was available
for the child. She claimed to be unaware of any physical abuse of
her daughter by D.D. until C.S. came to live with her in March.
Dr. Dyer and Dr. Silikowitz were recalled at the remand hearing. Both doctors
stated that the additional information fortified their original opinions. Dr. Dyer testified that
the failure of C.S. to acknowledge her conflicted relationship with her mother and
the non-disclosure of abuse by D.D. showed that C.S. lacked "personal maturity, emotional
stability, judgment and impulse control necessary to provide nurturance, protection and stability for
a child." On the other hand, Dr. Silikowitz said that the reports he
reviewed enhanced her ability to be a parent because she was making excellent
progress in therapy. He did, however, concede that if C.S. was misleading the
court about her relationship with her husband, it would be "a serious situation."
On June 19, 2003, the trial judge filed a supplemental decision upholding his
prior decision. Once again the judge found Dr. Silikowitz more persuasive than Dr.
Dyer. Moreover, while he considered C.S.'s prior testimony of a harmoni