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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–4462–12T1

    Decided: April 24, 2014

Before Judges Grall, Waugh and Accurso.Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney;  Mr. Wu, on the brief). Delia De Lisi, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney;  Andrea M. Silkowitz, Assistant Attorney General, of counsel;  Ms. De Lisi, on the brief). Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney;  Mr. Devlin, on the brief).

Defendant, G.C.-F., appeals from a judgment terminating her parental rights to her two sons.   The judgment also terminates the parental rights of the children's father, but he expressed his disinterest at the outset of the litigation, never participated and has not appealed.   The oldest of defendant's sons is about four and one-half years old and the youngest is about three years old.1  Because the judgment against defendant rests in part on incompetent evidence and in significant part on findings of fact that are inconsistent with the record, we reverse and remand for further proceedings.


Defendant was the victim of her step-father's sexual abuse and her mother's physical and emotional abuse when she was a child.   Consequently, she lived in a series of foster placements from the time she was thirteen until 1997, when she was about twenty-one years old.

Defendant has a history of depression, bipolar disorder and self-destructive behavior and of receiving treatment for those conditions, including inpatient and outpatient therapy and prescribed medication.   She stopped taking her medication in 2006, because, in her view, it was making her worse.2

Defendant also has a longstanding history of polysubstance abuse.   But by all accounts, she successfully addressed that problem several years before the Division of Child Protection and Permanency (Division) became involved with her as a parent.   Indeed, the record does not reflect a single relapse since 2004.   Defendant is a high school graduate and was employed as a security guard when her first son was born in July 2009.

The Division first became involved with defendant as a parent on November 11, 2010, when she was about thirty-four years old.   At that time, she was receiving unemployment benefits she earned while working as a security guard in New York City, and she and her son were living in an apartment.

The Division's involvement was triggered by a referral from a social worker employed by the University of Medicine and Dentistry of New Jersey (UMDNJ).   Defendant, who was then expecting her second child, was receiving prenatal care at UMDNJ.   The Division's screener who took the social worker's phone call misunderstood and incorrectly reported what the social worker said.

When the social worker was contacted by a caseworker, the social worker explained that defendant had warned her that she, meaning the social worker, would go to jail if anything happened to defendant's child or the baby she was expecting.   But the screener who had taken the social worker's call had reported that she said something very different — that defendant was threatening to kill herself and her child and did not care if she went to jail because of it.   In speaking to the caseworker, the social worker stressed that defendant had never expressed any suicidal or homicidal thoughts and that defendant's child, who came with defendant to her prenatal checkups, appeared to be well cared for.   Although the correction was included in subsequent reports, the correction generally followed the alarming misinformation.3

Apparently, before the screener's mistaken interpretation of the social worker's referral was corrected, a caseworker had gone to defendant's home and found her one-bedroom apartment clean, equipped with a proper bed for the child and stocked with plenty of food.   Defendant's son was wearing clean clothes, smiling and hugged his mother during the caseworker's visit.   Defendant was calm, coherent and cooperative, and she candidly told the caseworker about her troubled history and the care she had received for her mental illness and substance abuse.   She also disclosed that she had feelings of sadness and anger.   Defendant, however, claimed to know how to address those feelings, and she explained that she previously had sought and would continue to seek help when she needed it.

In response to the caseworker's suggestion that defendant have another evaluation of her mental condition, defendant said she would think about it.   Defendant made it clear, however, that she did not want to be medicated while caring for her children.

As part of its investigation of that referral, the Division contacted the child's pediatrician.   The doctor advised that defendant had been obtaining appropriate care and immunizations for her son and that the boy was doing well.   He had no concerns about the child being at risk of abuse or neglect and said defendant appeared to be an “appropriate parent.”

Although the Division found no abuse or neglect, it offered defendant services.   Defendant initially declined the offer of homemaker services, but within a week she asked for a homemaker.   The Division promptly accommodated her request.   In addition, the Division received another complaint about a disruption in defendant's apartment building and calls for police and fire services that were not needed.   According to the Division, defendant subsequently lost the rental assistance she was then receiving from the United Way because her landlord was unwilling to continue leasing to her.

On December 7, 2010, while the homemaker was present, defendant was visited by housing inspectors responding to her complaint about inadequate heat and hot water in her apartment.   They found the temperatures adequate.   By the homemaker's report, defendant screamed and yelled when the inspectors left.   Her son, who was then about sixteen months old, cried, approached the homemaker, reached for her to pick him up and said “mama.”   According to the homemaker, defendant grabbed her son by his arm and shook him three times while screaming, cursing and telling him he had better recognize who his mother was.

In response to the homemaker's report, the Division had defendant take the child to Christ Hospital for an examination.   Although the doctor found no injuries and the Division concluded it could not substantiate abuse, the child was removed from defendant's custody at the hospital.   The Division's explanation for this emergency removal was her history of mental illness and substance abuse.4

Defendant's reaction to the removal led to her admission to Christ Hospital.   According to the caseworker, defendant threw herself to the floor and said she was going to kill herself.   By December 9, 2010, however, defendant was released without prescribed medication.   She was present in court that day, when a judge entered an order authorizing a continuation of the removal because of defendant's “mental health issues.”   The judge assigned the Division responsibility for the child's custody and care and ordered the Division to provide weekly, supervised visitation.

The Division never found evidence indicating that defendant's son suffered actual harm while in defendant's care.   A thorough examination was done in preparation for the boy's placement in foster care.   It revealed no abnormalities, other than a lactose intolerance that his pediatrician had previously detected.   Similarly, no developmental delays — other than a “minor verbal delay” where the child was described as “making progress” — were noted.   The child's first foster parents advised a caseworker that he had no trouble sleeping and presented no problems for them.   Eight months later, however, when the child was removed from one foster placement and placed with defendant's cousin and her cousin's family in Maryland, the child was suffering from nightmares, clinging to defendant's cousin and crying excessively.

Defendant had a psychological evaluation on December 14, 2010, seven days after her son's removal and five days after the court order placing him in the Division's custody and care.   Dr. Robert Kanen, Psy.D., issued his report of that evaluation on December 20, 2010.5  He found defendant to be cooperative and behaviorally controlled but in “severe distress.”   Apparently based on defendant's self-reports to the caseworkers, and his clinical interview and testing, Dr. Kanen noted that defendant had a history of suicide attempts and cutting herself, which had ended eight years earlier, and was now suffering from mood swings.6  Defendant told Dr. Kanen that she viewed anger as her biggest problem, felt that medication did not help and believed that talking to someone would help.

Dr. Kanen detected cognitive impairment attributable to mental illness and deficits in defendant's short-term memory, alertness and reasoning skills.   His diagnoses were “bipolar 1” disorder, post-traumatic stress disorder, polysubstance abuse in full remission and borderline intellectual functioning.

In Dr. Kanen's opinion, defendant could not “support herself independently and care for a child at her current level of functioning.”   He concluded that her son would be exposed to “an unnecessary risk of harm” if returned to her care at that time, and he went on to suggest that the Division consider removing her second child at birth.   Notably, nothing in Dr. Kanen's report indicates that he was given the information the Division had gathered about the child's medical condition, developmental progress or the conditions in defendant's home.

Dr. Kanen had several recommendations — a psychiatric evaluation, individual psychotherapy and parenting classes.   Although parenting classes were not made available to defendant until January 2012, she participated when they were made available and completed them in April 2012.   Steps to follow the doctor's other recommendations were promptly taken.

Dr. Tunku Abubakar, M.D., of Christ Hospital, did a psychiatric evaluation of defendant on December 30, 2010.   With the exception of borderline intellectual functioning, which Dr. Abubakar did not detect, his diagnoses were similar to Dr. Kanen's — post-traumatic stress disorder, bipolar disorder, most recent depressed without psychotic features, and a history of polysubstance abuse in remission.

Dr. Abubakar's opinions about defendant's status on December 30 were markedly different than Dr. Kanen's assessment of her status on December 14.   Dr. Abubakar found defendant to be “[a]lert and oriented,” “well related” and making “good eye contact.”   In his opinion, defendant's “speech [was] productive” and her “[t]hought process [was] goal directed.”   Defendant's mood was “anxious,” but her affect was “appropriate and unlabile”;  her insight and judgment were “fair”;  and her impulse control was “adequate.”

Noting defendant's admission to Christ Hospital's counseling and resource center, Dr. Abubakar recommended individual therapy directed at development of cognitive, behavioral and stress reduction techniques.   Acknowledging defendant's disinclination to take psychotropic maintenance medication due to her concern about the drugs impairing her ability to parent, he suggested close monitoring of defendant's mood symptoms for “worsening depression or hypomanic episodes.”

From January or February 2011 and continuing through the termination trial that commenced in August 2012 and concluded with a judgment entered on May 13, 2013, defendant's attendance at weekly sessions was generally consistent.7  The reports from Christ Hospital are positive.

Defendant was not only compliant with individual and group sessions but also “eager” and “motivat[ed]” to meet the “requirements” for regaining custody.   She was “working very hard to regain stability in her work ․ and housing,” and she was compliant with medications after they were prescribed.

The therapist's periodic progress reports to the Division indicate that defendant was involved and “actively engaged” in her treatment.   It was at defendant's request that therapy sessions were used to explore and process anger and other intense emotions.   She reported that her medications were “helpful for calmness” and “sleeping at night,” and she reported that she detected “increased drowsiness” as a result of the medication.   She asked to enroll in the hospital's “Parenting Skills/Anger Management Group,” and she expressed interest in exploring ways to develop “more meaningful and satisfying positive relationships ․ and ․ what gets in the way of developing trusting and cooperative relationships with safe people in her life.”

The therapist's progress reports also reflect progress on several fronts.   Specifically, the therapist reported defendant's progress in identifying ways to cope with anger and demonstrate self-control;  “exploring and identifying triggers of anger and effective ways to cope”;  “using effective ways of coping and controlling impulses when angry”;  “not taking things personally”;  “remaining calm and thinking about consequences”;  “using individual and group sessions appropriately to verbalize a full range of thoughts and feelings appropriate to content”;  and demonstrating ability “to reflect on her own behavior.”

Defendant consistently attended visitations throughout this litigation.   Initially, defendant's visits were weekly and supervised by the Division.   The supervisor found defendant's interactions with her son appropriate, productive and attentive.   But the supervisor explained that he hesitated to contradict defendant or correct what she was doing because a good visit “turn[ed] to be a very bad visit” when he did.   The only indication of what was meant by “a bad” visit was “inappropriate behavior” and use of “profanity.”   In addition to this reported resistance to direction, defendant adamantly objected to having her mother present during her visitations, on the ground that her mother had abused and not supported her.   In fact, defendant declined to attend a visit with her mother and other relatives.

Defendant's second son was born in good health in February 2011.   Consistent with Dr. Kanen's suggestion and because defendant was living in a shelter where she could not take the baby, the Division removed him from defendant's care before he was released from the hospital.

After the second son's birth, the Division's stated goal and plan was “[f]amily reunification, depending upon mental health treatment recommendations.”   To that end, the Division arranged for therapeutic supervision of defendant's visitations through Catholic Charities.   Those therapeutic visitations commenced in February and ended in July 2011.

The reports of these visitations were also mixed.   A summary report covering ten visitations between February 25 and May 6, 2011 notes, concerning behaviors of defendant:  rapid change from the “most loving mother” to “the opposite”;  attributing her oldest son's misbehavior to his foster mother teaching him those behaviors;  speaking to the child with an expression of rage on her face and in a loud tone as if the child were an adult;  and cursing in the child's presence.   Addressing defendant's reaction to constructive criticism about the impropriety of cursing in the children's presence, this supervisor noted that defendant, using coarse language, directed him not to tell her what to do.   Addressing defendant's reaction to her oldest son having bruises when he arrived for a visit on June 24, the supervisor noted that defendant lacked understanding of child development — specifically, that toddlers frequently fall or bump into things.

On those observations, the supervisor suggested defendant and her children could perhaps benefit if she attended parenting classes.   As previously noted, despite Dr. Kanen's recommendation in December 2010, defendant was not offered parenting classes until January 2012.   A Division worker who observed the last fifteen minutes of a June 24, 2011 visit also suggested a need for parenting classes.   By his report, defendant seemed nervous and did not know what to do when her son cries, she “automatically believes” that there's something physically wrong with him when he cries, she “talks to him and argues with him as if he was older than his age” and asks him what is wrong with him.

Despite the foregoing concerning observations, the supervisor found defendant an attentive parent and her oldest son a healthy and happy child who interacts well with, seems attached to and has difficulty separating from his mother.   With respect to defendant's interactions with her newborn, the supervisor noted nothing other than that the baby slept most of the time.   In the supervisor's opinion, reunification could occur depending upon the psychiatrist's recommendation and defendant's willingness to follow a treatment plan.

The Division obtained another psychiatric evaluation of defendant in April 2011 and at that point her therapeutic visitations were ongoing.   That evaluation was done by Dr. Alvarro M. Gutierrez, M.D., who had the earlier evaluations done by Drs. Kanen and Abubakar.   Nothing in Dr. Gutierrez's report suggests that he had the progress notes from Christ Hospital.   Although the factual basis for Dr. Gutierrez's conclusions is less than clear, he opined that defendant's “emotional stability seriously affects her ability to supervise, protect and care for her children at this time” and concluded that she was “at high risk for abuse and neglect.”   This psychiatrist recommended medication, random drug screening and continued psychotherapy.

Without question, defendant continued to struggle, outside visitations, despite her consistent and cooperative participation in all treatment made available to her at Christ Hospital.   Her interactions with the Division employees and her sons' foster parents were frequently, but not always, less than productive and pleasant.   Defendant's negative interactions with members of the Division's staff and the foster parents became the focal point of the Division's case for termination.

There were periods during which defendant made frequent and repeated calls to the Division voicing her concerns and complaints.   The topics she raised included:  the Division's treatment of her;  the welfare of her children, which she questioned upon observing rashes or bruises that visitation supervisors and caseworkers viewed as minor and consistent with normal activities of a toddler;  conduct of the foster parents defendant found personally offensive and intrusive;  and delay in the return of her children.   By reports, defendant's comments and phone calls were rambling, threatening and insulting to Division staff — sparked with vulgarities and name-calling.

Albeit inappropriately, defendant was expressing concerns about the children's well-being while non-relative foster parents were caring for them.   In fact, defendant wanted the Division to place her sons with her married cousin and her cousin's family in Maryland, and that was accomplished on August 11, 2011.

Despite defendant's agreement with the children moving to her cousin's home, in the days preceding and following the change, defendant took a different view.   She called Division employees multiple times opposing the move before it occurred, demanding return of her children after the fact and threatening to involve the police and sue, and she also stated “something would happen” if her demand was not met.   In addition, following the move, defendant's cousin and her cousin's husband complained about defendant's frequent calls to them, which they described as threatening and coarse.   Consequently, the judge entered an order restraining defendant from calling her cousin's home.   In addition, defendant's visitation schedule, which was to be every two weeks, was changed to once a month.

Despite the foregoing behavior, defendant made significant, but not steady, progress in tempering her annoying and confrontational conversations.   In a report recounting an inappropriate communication in July 2011, a caseworker described defendant as “rever[ting] to her old behavior.”   That statement implies a recognition of defendant's progress prior to that setback.

Moreover, the reports of defendant's visits with her children in September, October and November 2011, after their move to Maryland, reflect no problematic behavior on defendant's part and positive interactions with her children.   Additionally, defendant's cousin advised the caseworkers that she had encountered defendant after the October visit and that defendant was “very calm and pleasant and thanked her for taking care of her children” and for bringing photographs for defendant.

There was evidence of progress, albeit erratic, on other fronts as well.   In the summer and fall of 2011, defendant found a job.   She obtained work as a security guard in New York City and held that job until December.   By defendant's account, she was terminated because she complained to her employer about a reduction in her hours and had an argument with a co-worker that led her employer to call the police.

Defendant made efforts to secure housing.   Because defendant was not paid enough to cover rent while employed, she lived in a shelter for a time.   But she was asked to leave the shelter because of her behavior.

Defendant continued to have positive visits with her children, however.   In December 2011, at the request of the foster parents, the Division arranged for the visits to take place in Maryland.   The first of the Maryland visits was in a hospital, because defendant's oldest son had just undergone surgery for an abscess on his neck.   Despite the circumstance and defendant's earlier reactions to minor bruises, the report of that visit indicates that defendant was calm and relaxed, said she was trying to control her anger and advised the Division caseworker that she had spoken with the doctor about her child's post-surgical care.

During that visit, defendant remained calm even when her oldest son was crying and hanging onto his foster father's hand, and she appeared frustrated because of her inability to do anything for him.   To the caseworker, it appeared that defendant did not like it when her son called his foster father “daddy,” but she appeared to try to control her reaction.   She said, “that's not your father, but you can call him daddy, because you are sick.”

Defendant's improved behavior cannot be attributed to parenting skills or anger management classes.   As previously noted, she commenced those programs in January 2012 and completed them in April 2012.

It was also reported that defendant was calm and polite during several meetings with caseworkers in December 2011 and January 2012.   That was so even though the topic of the meetings was the Division's plan to have defendant's cousin and her husband adopt her children.   During one of those meetings, defendant explained her interest in knowing how her children were doing and her inability to call her cousin.   Defendant thanked the caseworker for offering to keep her posted on a weekly basis.   When the caseworker gave defendant the termination complaint at the next meeting and told her services would continue until the judge made a decision, defendant simply acknowledged her understanding.

Defendant's behavior was similar during her January visit with her sons.   Although her oldest son did not want to “leave” his foster mother's “side” at the beginning of the visit, he “seem[ed] to start feeling more comfortable being around” defendant as the visit proceeded.   Defendant fed and changed the baby's diaper, and her cousin took defendant's older son to the bathroom.   The women worked together in dressing the children to leave the visit, and at the end of that visit defendant said goodbye to the children and her cousin.

In February 2012, the Division obtained another psychological evaluation of defendant and its first bonding evaluation.   Dr. Marano did those evaluations.   At trial, Dr. Marano acknowledged the interactions between defendant and her oldest son were poorer during the bonding evaluation than the interactions observed during visitations.

According to Dr. Marano, defendant's oldest son was “immediately upset when left in the room” with defendant.   He cried, and defendant told the doctor she couldn't deal with his crying and said “[t]his sucks.”   While he was “crying out for his [f]oster [p]arent and saying ‘mommy,’ ” defendant told him not to call her mom and directed him to look at her because he was with his mommy.   As defendant spoke to him, the child's cries escalated to screams.   Defendant tried to comfort him with hugs, but he continued to cry and point to the door that separated him from his foster mother.   Defendant pointed to herself as his mother, and she also started to cry.

Dr. Marano allowed defendant to continue her unsuccessful efforts to comfort the child for a time.   She excused him from the session when she concluded it was not in the child's best interests to continue.

After the chaotic beginning, Dr. Marano continued the bonding evaluation with defendant and her youngest son.   In the doctor's opinion, defendant's interactions with that child were nurturing, loving and affectionate and defendant displayed “vigilance and supervision.”

At trial, Dr. Marano explained that defendant had an attachment to her children but they did not have an attachment to her.   She acknowledged, however, that any attachment the children had before would have weakened because of their minimal contact with defendant.   Based on her assessments of defendant and her records from Christ Hospital, Dr. Marano believed that defendant should have been given more intensive therapy after the Division became involved.   She agreed with defendant that therapy with a “partial hospitalization,” better medication monitoring and more extensive visitation and parenting skills training was warranted.

Dr. Marano was concerned about defendant's present capacity to parent because of her reaction to her child calling her cousin “mommy.”   In her opinion, defendant's upset and emotional reaction was understandable, but her behavior disregarded the child's need for her to be calm and stable.   In the doctor's opinion, during a brief lull in the boy's crying, defendant missed the opportunity to meet his needs by stepping back and giving him time to adjust.   She should have ceased her attempts to have him recognize her as his mother because it was clearly upsetting the child.

Dr. Marano was also concerned about defendant's prospects for maintaining stability.   Defendant told Dr. Marano that she was participating in therapy at Christ Hospital only to meet the Division's requirements, not because she needed it.   For that reason, Dr. Marano questioned whether defendant would continue with therapy and medication if it was not required.

Dr. Marano did not find a psychological bond between the children and their foster parents either.   But, in her opinion, the foster parents had laid the foundation for the children to develop a strong attachment and psychological bond with them.   Dr. Marano concluded that reunification with defendant was not in the best interests of her children.   She explained:

Overall, there appears to be the components between [f]oster [p]arents and children for the development of secure, psychological attachments.   In the professional opinion of this examiner to remove the children from their current [f]oster parents would place them at risk.   The risk is particularly great for [the oldest child] who demonstrates the greatest emotional toll and who needs stability and consistency to develop the sense of security that he and every child needs to grow in a healthy manner.   Reunification with the biological mother is not supported due to the above-identified risk and [defendant's] limited capacity to provide her sons with the consistency, stability, and protection needed.

Following Dr. Marano's negative evaluation in February 2012, defendant continued her efforts to secure employment and housing.   The Division gave defendant paperwork to apply for government assistance with housing costs and she completed it.   By the time of trial, defendant was on a waiting list for housing assistance.   With the assistance of a caseworker, who started in March 2012 to help defendant with obtaining information and doing the paperwork to secure a license to work as a security guard in New Jersey, defendant obtained the necessary license in early September 2012, about one month after the termination trial commenced.

Around the time that defendant started working with her caseworker on getting the license, defendant placed additional problematic phone calls and had a break in her attendance at therapy.   On April 3, 10 and 11, 2012, she called the Division and cursed at and insulted the staff.   On April 12, her cousin's husband called the Division and complained about a threatening and insulting call he received from defendant.   According to defendant's therapist's notes, defendant missed sessions from mid-April to early May 2012, because of defendant's difficulties with the court and law enforcement.

Despite her poor interactions with adults in April, defendant's April 18, 2012 visit went well.   Her children were reportedly comfortable with her and she and her cousin cooperated without incident.   Defendant's interactions with Division workers also improved after the spate of phone calls in early April.   On May 8, 2012, Division employees were surprised at how well defendant reacted when they told her that her oldest son had broken his leg while in her cousin's care.   The caseworker even allowed defendant to call her cousin in her presence, and the cousins had a pleasant, ten-minute conversation.   During the May 8 meeting, defendant advised the caseworker that her doctor had changed her medication because the drug she had been taking was “making her anxious.”   And defendant's May 21, 2012 visit with her children reportedly went well.

The June 27, 2012 visit had a poor start.   En route to Maryland, the Division workers and defendant got stuck in traffic on the highway.   While they were stopped, defendant complained of a stomach ache and told the caseworker she had been having problems controlling her elimination.   When traffic began to move again, defendant was asked if she needed to stop and use a restroom.   Defendant, repeatedly apologizing, explained that it was too late.   As a consequence, when defendant arrived at the visitation site she had to clean herself as best she could before the visit.

The prologue to the visitation was burdened by another extraneous event.   Before the visit started, but unfortunately in the presence of the children, defendant's cousin's husband asked defendant for permission to take her children to Disney World.   Defendant cried, went to a corner, pulled on her hair and complained that others, not she, were getting to have fun with her children.

At the suggestion of Division staff, defendant went to the bathroom, washed her face and calmed herself.   Surprisingly, the remainder of the visit, which lasted for two hours, was reportedly “peaceful and productive.”   The children and defendant interacted and separated with hugs and kisses.

On July 11, 2012, defendant met with her caseworker and they spoke about adoption.   Defendant explained that her concerns about her children were based on her bad experiences prior to her adoption.   The caseworker encouraged defendant to talk to her therapist about those feelings and suggested that she work on improving her relationship with her cousin and her cousin's husband so that she could talk to her children.   Recognizing that defendant was not permitted to call her cousin's home, the caseworker suggested writing a letter.   During that meeting, the caseworker told defendant that she seemed to have “gotten better with controlling her impulse to go off on people,” but her cousin had not seen that behavior.

Trial commenced on August 13, 2012.   Defendant's cousin testified about the difficulties defendant's oldest son had when he first came to live with her family — nightmares, prolonged crying spells and clinging behavior — and how he had improved during the year he lived with them.   Defendant's cousin further explained that when visitations in Maryland were increased to twice a month, the eldest boy's nightmares and clinging behavior had resurfaced.   Defendant's cousin noted that this child was receiving speech therapy, which was working, and had no other special needs.   She further explained that she and her husband were committed to adopting defendant's children.   She reported that defendant had told her, more than once, that she would disappear with her sons if they were returned to her.

The Division caseworkers primarily involved with defendant and her children also testified, but the primary testimony was from the experts retained by the Division, the children's law guardian and defendant.   With the exception of Dr. Marano, none of the doctors whose reports are discussed above testified at trial.   Dr. Marano and three other experts, all of whom did their evaluations just before or during the trial, testified.

Dr. Richard S. Klein, Ed. D., did bonding evaluations on August 9, 2012.   In his opinion the children “were aware of and comfortable and familiar with” defendant, but they were positively bonded to their foster parents.   Because of their youth, Dr. Klein believed that the children would not be severely traumatized if their bond with their foster parents was severed.   In his opinion, if defendant were compliant with treatment and her treating psychiatrist and therapist agreed, she would be capable of parenting her children independently if she had adequate income and housing.

Dr. Antonio W. Burr, a psychologist, did bonding evaluations in October 2012.   In his opinion, neither of defendant's children bonded with her and their reunification with her would not serve their interests or their “permanency needs.”   In contrast, he found that the children were attached to and bonded with their foster parents and that their permanency need would be best served if they were adopted by their foster parents.   Like Dr. Marano, Dr. Burr agreed that parenting classes and regular visitation would have been important for reunification in this case.

A psychiatrist, Dr. Samiris Sostre, M.D., evaluated defendant on October 1, 2012.   Her diagnoses were bipolar disorder, most recent episode mixed;  post-traumatic stress disorder in partial to full remission;  and polysubstance abuse in remission.   In her opinion schizoaffective disorder was also indicated and should be ruled out.   Dr. Sostre detected, but did no test to quantify, defendant's limited cognitive functioning.

In Dr. Sostre's opinion, defendant was not presently stable and her symptoms interfered with her ability to appropriately parent.   Defendant told her that she was taking medications only because she was forced to, which in her opinion increased her risk of noncompliance without monitoring.   She further relied on the fact that defendant “continues to experience significant psychiatric symptoms and has not advocated for adjustments in her psychiatric medications” which indicated “that she is unable to participate fully in her own therapy and is unable to recognize and appreciate how her symptoms interfere with her ability to function.”   With respect to medications, Dr. Sostre questioned the propriety of the medications prescribed for defendant at Christ Hospital, noting that the anti-depressants could exacerbate bipolar symptoms.   On the foregoing evidence, the judge found that the termination of defendant's parental rights was in the best interests of the children.


Defendant's first claim on appeal is error in the admission of the reports of the evaluations done by Drs. Kanen and Gutierrez, who did not testify at trial.   Prior to trial, defendant objected to the admission of those reports as substantive evidence of the diagnoses stated therein.   In fact, the Division conceded that the complex diagnoses were inadmissible for that purpose.

The trial court concluded that these early evaluations were admissible for the purpose of establishing that the Division provided services recommended by these professionals.   In short, the court indicated that the evaluations by non-testifying experts would be admitted for the limited purpose of establishing the reasonableness of the Division's efforts to help defendant address the conditions that led to the removal of her children, which is an essential element of the State's case.

Had the court relied on the reports for that limited purpose, defendant's claim would have no merit.   But that is not what occurred.   In the end, the trial court relied on Dr. Kanen's diagnoses, his opinion on the relationship between defendant's mental illness and her cognitive deficits, and his opinion on the severity of her parenting deficits and her capacity to provide a safe and stable home.   The court's reliance on those aspects of Dr. Kanen's evaluative report is clear because it is stated in the court's opinion.

Judge Skillman addressed the issue presented here in New Jersey Division of Youth and Family Services v. B.M., 413 N.J.Super.   118 (App.Div.2010).   In that case, as here, the Division relied on Rule 5:12–4(d).  It states:

The Division of Child Protection and Permanency (the “Division”) shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants.   Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.

“By its plain terms, this rule only authorizes the admission into evidence of a [Division's] professional consultant's report ‘pursuant to’ N.J.R.E. 803(c)(6) and 801(d), which set forth the so-called ‘business records' exception to the rule against hearsay.”  B.M., supra, 413 N.J.Super. at 129.   And “[a]n expert medical opinion contained in a report is generally inadmissible under [those rules] because of the complexity of the analysis involved in arriving at the opinion and the consequent need for the other party to have an opportunity to cross-examine the expert.”  Id. at 130.

The Division argues that Dr. Kanen's diagnoses and opinion are not complex.   In our view, that argument has insufficient merit to warrant further discussion.   R. 2:11–3(e)(1)(E).   The position is belied by the testimony of the experts that was heard in this case.   They disagreed in part and some were unable to definitively make or exclude certain diagnoses because of the common symptoms.   We are not aware of any authority for the proposition that an opinion on a person's psychological or psychiatric condition is less complex than an opinion on a medical condition.

Because of the need for proof by clear and convincing evidence, we cannot conclude that the admission of this evidence was harmless error.   Accordingly, we reverse.   For reasons stated in Part III of this opinion, we conclude that efforts to reunify defendant and her children should continue pending the rehearing and reconsideration that will be required if the Division seeks to pursue the matter.   III

We turn to consider defendant's claim that the judgment terminating her parental rights is not based on findings of fact that are adequately supported by the evidence.   In part, we agree.

This court may not disturb the trial court's findings in a termination case “ ‘unless they are so wholly unsupportable as to result in a denial of justice.’ ”  In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App.Div.1993)).   Even where a parent “ ‘allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,’ ” deference must be afforded unless the court “ ‘went so wide of the mark that a mistake must have been made.’ ”  N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting J.T., supra, 269 N.J.Super. at 188–89;  Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.Super. 65, 69 (App.Div.), certif. denied, 117 N.J. 165 (1989)).

Nevertheless, in reviewing a judgment terminating parental rights, this court must determine whether the trial court's decision is “based on clear and convincing evidence supported by the record before the court.”  N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).  N.J.S.A. 30:4C–15.1a(1)–(4) provides “an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child.”  In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).   Adequate proof, by competent evidence, of each of the four elements, or prongs, of the statutory standard is required.

The four-pronged standard is as follows:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm.   Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights;  and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C–15.1a.]

The harm the Division alleged in this case was defendant's history of mental illness and substance abuse.  “Under prong one of the best-interests test, [the Division] must show that the alleged harm ‘threatens the child's health and will likely have continuing deleterious effects on the child.’ ”  N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999));  see N.J.S.A. 30:4C–15.1a(1).  “Mental illness, alone, does not disqualify a parent from raising a child.”  F.M., supra, 211 N.J. at 450.   But where the mental illness “poses a real threat to a child” and the parent refuses or is unable or unwilling to address it, this prong is established.  Id. at 450–51.   In short, a clear threat of actual harm is enough.  Id. at 449.  “The second prong, in many ways, addresses considerations touched on in prong one․  [T]he inquiry centers on whether the parent is able to remove the danger facing the child.”   Id. at 451.

The trial court's conclusion that grounds for termination of parental rights were established by clear and convincing evidence cannot be sustained.   The trial court found and concluded:

[Defendant's first child] certainly had harm to his safety, health and development caused by his biological mother.

There was a history of drugs, but that, apparently was prior to his being born.   Certainly, a history of ․ no stable housing.   A history of noncompliance and an extremely strong mental health history.   This is not a case where she was diagnosed with one aspect of mental illness.   There's a diagnosis here of three and four, all going together.   The idea of not taking medication is beyond anyone's hope at this point.   Serious medication would have to be examined for [defendant], but she certainly has not in any way shown to this [c]ourt that she is willing to do so.   She had Lithium in the past, stopped taking it and indicated that she would be compliant until she received her children.

I believe she is unwilling or more, actually, unable to eliminate the harm.   She has not shown to this [c]ourt or to the Division any ability to have stable housing to this day․  So, clearly, there is no ability ․ now or in the near future for these children to have a safe and stable home.

She also, in my opinion, is unable to cure the mental illness, but she also seems not to be very interested in trying to help it.   We know full well that mental illness itself is not a reason to take a child away from his parent.   However, in this particular case, when the person who has mental illness fails or refuses to participate in mental health counseling, medication, et cetera that would abate some of the illness or at least bring that person to a stable state, then clearly, that is applicable to termination.

Nor would she be able to mitigate the harm when these children were taken away from the foster parents who, apparently, they are very much bonded to.   These foster parents are exceptional in terms of their abilities to raise children.   These foster parents are relatives, and in spite of all the problems that [defendant' cousin] has had with [defendant], she is still willing to allow the children to have a relationship with their biological mother as long as she is able to contain herself.

Also pertinent to the court's conclusion that defendant was less than compliant and cooperative with treatment is a finding the court made in discussing the reasonableness of the Division's efforts.   The trial court found that “[i]n recent times, [defendant] has completed parenting classes and some other aspects of counseling.”   Moreover, in rejecting the testimony of defendant's bonding expert the court found:

She has recently been compliant and had parenting classes, I believe, and some other services, but she made it very clear on several occasions that she was doing this — not that she thought she needed it, but to comply in order to get the children back.   So, clearly, what would happen is, in my opinion, once the children were back, there would be no further compliance.   I mean, I think that's not a large possibility, that's a large probability.

The foregoing factual findings underlying the court's conclusion that defendant was unwilling and unable to address her mental illness are, in significant part, inconsistent with the record.   Defendant had an adequate apartment when the child was removed, and there is no evidence that she was homeless at any point when he was in her care.   Without question, unwillingness or inability to provide a safe and stable home for the child where delay of permanent placement will add to the harm is a basis on which the second prong may be established.   But it is not, in and of itself, proof of the necessary harm.   Here, defendant's loss of housing and employment was very much linked with the argumentative and confrontational behavior on which her diagnoses were premised.   In short, her success at work and, therefore, in securing housing were inextricably related to the manifestations of her illness and ability to address it.

Indeed, the Division and the trial court recognized the harm alleged here as being related to defendant's illness.   But the records from Christ Hospital summarized above directly contradict, and nothing else in the record supports, the court's finding about defendant's participation in counseling or medication.   As discussed at length above, defendant consistently attended and actively participated in therapy, group sessions and medication monitoring.   Parenting skills classes and an anger management program, apart from therapy, were not made available to defendant until January 2012, and when they were made available, she completed them.   Medication was not prescribed until mid-June 2011, and there is no evidence that defendant refused or failed to take it anytime thereafter.   There was no noncompliance.

True, defendant discontinued her medication long before the Division was involved with her as a parent.   But there was expert testimony tending to confirm the validity of her explanation for stopping her medication — that it was no longer effective.

To the extent that defendant had outbursts while medicated, Dr. Sostre suggested that the medication prescribed for her at Christ Hospital may have been inappropriate and added to her problems.   Dr. Sostre faulted defendant for not reporting problems with her medication to her doctors, but her therapist's notes indicate that defendant did discuss her problems with the medication and her doctors did change it.

The only evidence supporting the trial court's conclusion about defendant's unwillingness or inability to comply is the assertions of her intention to discontinue treatment when she regained custody of her children that defendant made during her clinical interviews with Drs. Marano and Sostre.   Given defendant's compliance with all treatment offered in 2011, 2012 and 2013, those assertions, made in the context of evaluations of her parental competency, are far from clear and convincing proof that defendant would run away from treatment despite its importance to her parental competency.

Because the court's determination on the first and second prongs of the best interests standard are inconsistent with the record, we reverse the judgment terminating parental rights and remand for further proceedings.8  The court declined to order visitation pending appeal because the foster parents were providing it.   If that is not the case, the court should order it and any other services it deems appropriate in light of present circumstances.


Defendant also raises an objection to the trial court's limitation on cross-examination related to the basis for removal of defendant's child.   Frankly, we do not understand the argument.   To the extent that the trial court determined that the validity of the initial removal is not at issue in a termination trial, we agree and discern no deviation from the principles addressed in New Jersey Division of Youth and Family Services v. A.P., 408 N.J.Super. 252, 255 (App.Div.2008), which is the case on which defendant relies.

Reversed and remanded for further proceedings in conformity with this opinion.


FN1. The first child was born in July 2009, and the second was born in February 2011..  FN1. The first child was born in July 2009, and the second was born in February 2011.

FN2. Dr. Melissa Rivera Marano, a psychologist who testified for the Division of Child Protection and Permanency at trial, stated that the drug defendant previously took becomes less effective over time..  FN2. Dr. Melissa Rivera Marano, a psychologist who testified for the Division of Child Protection and Permanency at trial, stated that the drug defendant previously took becomes less effective over time.

FN3. References to the mistakenly recorded report were sometimes repeated without the social worker's correction.   The Division's notes reflect that a social worker at Christ Hospital was given the misinformation, and Dr. Alvaro M. Gutierrez, M.D., who did a psychiatric evaluation of defendant in April 2011, stated that defendant threatened to kill herself and her child without qualification as if it were a fact.   At trial, the caseworker who responded to the initial referral repeated the misinformation twice during her testimony.   The trial court noted that the allegation was unfounded and stated that defendant had denied “wanting to hurt her children.”   It is not clear that the trial court understood that the whole thing was a mistake — that is, that no one even reported that defendant threatened to harm her child..  FN3. References to the mistakenly recorded report were sometimes repeated without the social worker's correction.   The Division's notes reflect that a social worker at Christ Hospital was given the misinformation, and Dr. Alvaro M. Gutierrez, M.D., who did a psychiatric evaluation of defendant in April 2011, stated that defendant threatened to kill herself and her child without qualification as if it were a fact.   At trial, the caseworker who responded to the initial referral repeated the misinformation twice during her testimony.   The trial court noted that the allegation was unfounded and stated that defendant had denied “wanting to hurt her children.”   It is not clear that the trial court understood that the whole thing was a mistake — that is, that no one even reported that defendant threatened to harm her child.

FN4. By letters of December 17, 2010, the Division advised defendant that it had determined that the December 7 allegation of abuse was unsubstantiated but that neglect was substantiated because of a “substantial risk of physical injury/environmental injurious to health and welfare.”.  FN4. By letters of December 17, 2010, the Division advised defendant that it had determined that the December 7 allegation of abuse was unsubstantiated but that neglect was substantiated because of a “substantial risk of physical injury/environmental injurious to health and welfare.”

FN5. According to the testimony of a caseworker at trial, defendant missed a prior appointment for an evaluation.   Although the heading of Dr. Kanen's report indicates that he saw defendant on December 1 and December 14, the text does not suggest that there were two visits.   Presumably December 1 was the date for the appointment defendant missed..  FN5. According to the testimony of a caseworker at trial, defendant missed a prior appointment for an evaluation.   Although the heading of Dr. Kanen's report indicates that he saw defendant on December 1 and December 14, the text does not suggest that there were two visits.   Presumably December 1 was the date for the appointment defendant missed.

FN6. Dr. Kanen's report does not refer to his review of defendant's medical records..  FN6. Dr. Kanen's report does not refer to his review of defendant's medical records.

FN7. The reports from Christ Hospital included in this record do not indicate precisely when defendant's treatment commenced, but they do state that she resumed treatment in March 2011 after a lapse attributable to the birth of her second son.   The other lapse in defendant's participation was in late April and early May 2012, and her therapist reported that defendant's interaction with the court and law enforcement officials, presumably the Division, had exacerbated defendant's lack of trust in persons with authority and left her feeling that she could not utilize treatment as a support..  FN7. The reports from Christ Hospital included in this record do not indicate precisely when defendant's treatment commenced, but they do state that she resumed treatment in March 2011 after a lapse attributable to the birth of her second son.   The other lapse in defendant's participation was in late April and early May 2012, and her therapist reported that defendant's interaction with the court and law enforcement officials, presumably the Division, had exacerbated defendant's lack of trust in persons with authority and left her feeling that she could not utilize treatment as a support.

FN8. Given our reversal on the first and second prongs, there is no reason to discuss the third and fourth prongs..  FN8. Given our reversal on the first and second prongs, there is no reason to discuss the third and fourth prongs.


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