Adoption of Child by P.S., Matter of

• Decision Date: 21 July 1998
• Parties: In the Matter of the ADOPTION OF A CHILD by P.S. and J.S., H/W.
• Court: New Jersey Superior Court — Appellate Division

Page 91

315 N.J.Super. 91

716 A.2d 1171

In the Matter of the ADOPTION OF A CHILD by P.S. and J.S., H/W.

Superior Court of New Jersey Appellate Division.

Argued Jan. 6, 1998.

Decided July 21, 1998.

Toby Solomon, Livingston, for appellant.

Gerald R. Salerno, Hackensack, for respondent (Aronsohn and Weiner attorneys; Mr. Salerno on the brief).

Johnson, Murphy, Hubner, McKeon, Wubbenhorst & Appelt, Riverdale, for amicus curiae St. Joseph's Hospital and Medical Center (William F. Johnson, Jr., on the brief).

Cecilia M. Zalkind, Newark, for amicus curiae Association for Children of New Jersey.

Before Judges DREIER, PAUL G. LEVY and WECKER.

The opinion of the court was delivered by

WECKER, J.A.D.

This case turns on an issue last addressed by our Supreme Court In re Guardianship of J.C., 129 N.J. 1, 608 A.2d 1312 (1992), and its companion case, In re Guardianship of K.L.F., 129 N.J. 32, 608 A.2d 1327 (1992), as well as by this court in In re Guardianship of J.T., 269 N.J.Super. 172, 634 A.2d 1361 (App.Div.1993). That issue is whether A.R., an almost nine-year-old ¹ girl with neurological deficits, developmental delays, and learning disorders, having bonded with her foster parents of seven years who seek her adoption, is likely to suffer serious and substantial harm if she is removed from their custody and returned to her biological mother, harm sufficient to warrant the termination of that mother's parental rights. The issue arises in the context of a proposed private adoption. The foster and proposed adoptive mother, J.S., is a cousin of the biological mother, M.R. M.R. voluntarily placed A.R. with J.S. and her husband, P.S., when M.R. realized that she could not care for A.R. or her older brother, C.B., ² and needed in-patient rehabilitation from her long-term addiction to alcohol and other substances.

After several days of testimony on the termination of parental rights issue, the trial judge expressed frankly and with sensitivity his concerns about the long history of the court's involvement with this child; his recognition of her complete bonding with J.S. and P.S. and their three older children; her remarkable progress under their care and nurturing and in the face of her serious deficits; as well as M.R.'s record of rehabilitation as an alcoholic. After concluding that M.R. had not abandoned A.R. in the sense of "a willful or purposeful refutation of parental responsibility," and that therefore "the evidence here falls short of establishing, by clear and convincing evidence, that the parental rights of [M.R.] should be terminated," the judge nevertheless followed the guidance of J.T., 269 N.J.Super. at 191, 634 A.2d 1361, and determined that reunification with the biological parent "should not automatically follow dismissal of the termination complaint because 'the potential harm to [the child] if she is separated from her foster mother' could not be ignored." He dismissed the foster parents' complaint for adoption and ordered D.Y.F.S. to develop a plan for reunification, but denied M.R.'s application for unsupervised and increased visitation.

While we commend the judge for his sensitivity and concern for all of the parties, we conclude that his interpretation of the standards governing this termination case was unnecessarily restrictive. In particular, we conclude that J.C. not only permits but requires a determination "whether [A.R. has] bonded with [her] foster parents and if so whether breaking such bonds would cause [A.R.] serious psychological or emotional harm. " J.C., supra, 129 N.J. at 25, 608 A.2d 1312 (emphasis added). We therefore reverse the judgment dismissing the adoption complaint and denying the application to terminate M.R.'s parental rights, and remand for a bonding evaluation, in accordance with J.C., focusing on the likely harm to A.R. if she is separated from J.S. and P.S., and M.R.'s likely ability to counter such harm.

A.R. was born on April 24, 1988, to defendant M.R. and D.B. ³ M.R. and D.B. had an older child, a boy, C.B. born in December 1984. They never married, and their relationship, marked by incidents of domestic violence, ended before A.R. was born.

On August 4, 1989, M.R. voluntary placed both fifteen-month-old A.R. and four-and-one-half-year-old C.B. with the Division of Youth and Family Services (DYFS) in Union County, where M.R. resided. A.R. was first placed with an unrelated foster family. However, seventeen days later, on August 21, A.R. was transferred to M.R.'s first cousin, J.S., and her husband, P.S. M.R. requested that A.R. be placed with her cousin, preferring that A.R. be with a family member rather than with strangers. The voluntary transfer was precipitated by the fact that M.R. had been abusing drugs and alcohol for some time, was often drunk, and admittedly had been neglecting both children. M.R.'s inconsistent drug and alcohol rehabilitation efforts had not been successful up to that point. There is no dispute that at the time A.R. was placed with J.S. and P.S., she had significant neurological deficits, was developmentally delayed, and showed many signs of emotional if not physical neglect. She has required special interventions and educational assistance from the earliest age to date, and will likely always have special needs.

C.B. was placed in foster care with a friend and neighbor of M.R., with whom he has remained. M.R. has only supervised visitation with C.B., now a fourteen-year-old boy with more serious disabilities than A.R. We are told that M.R.'s application for custody of C.B. is in abeyance in Union County pending the outcome of this case.

The history of A.R.'s involvement with the judicial system is lengthy. On January 2, 1990, a family court judge in Passaic County ⁴ (where J.S. and P.S. reside) awarded temporary custody of A.R. to J.S. and P.S., with liberal but supervised visitation for M.R. The trial judge noted that "it was clearly intended that there be family reunification. And at the very least, a hearing with regard to that." On January 25, 1990, another judge ordered that the matter be reviewed in one year. In June 1990, however, two orders were entered with regard to visitation, with the case to be relisted for a hearing in one year. The same custody arrangement and visitation were reconfirmed in a June 1991 order. Still another judge was assigned to the case in October, 1991. He ordered additional reports and evaluations. In June 1992 and again in September of that year, the judge reviewed the case and fixed visitation rights at one-and-one-half hours each week, to take place at J.S. and P.S.'s home and under their supervision. Another judge reviewed the case in October 1992 and ordered that custody continue in accordance "with the placement plan currently in effect."

A review of the case in April 1993 resulted in expansion of visitation to two hours each Thursday evening and four hours on one Saturday afternoon each month, all under the supervision of M.R.'s in-laws. In June, August, and October of 1993, the case was again reviewed. The October order provided that DYFS "is to initiate less restrictions regarding phone contact" between M.R. and A.R. The "goal of reunification" was restated in both the June and August orders.

Subsequent orders in May and July 1994 continued the same terms, with DYFS directed to "consider having [A.R. and C.B.] attend the learning disabilities class with their mother and step-father [given by] Phyllis Taistra [of the] Verona Public Schools." The May order, captioned as most of the orders "Concerning Placement Under the Child Placement Review Act N.J.S.A. 30:4C-50 et seq.," recommends "a summary hearing for a determination and the identification of a permanency plan [ ]" and ordered the case worker for each child to be present.

Throughout the period of the above-described orders, none of which were ever appealed, M.R. regularly maintained contact with the DYFS offices, never abandoning her efforts to regain custody of the child. From the initial placement in 1989 to the end of 1994, DYFS shared this goal of reunification, at least on paper. However, although DYFS was required to take steps to accomplish this, including getting M.R. into a program for controlling her substance abuse, M.R. contends that the agency did little if anything to accomplish this goal. Nevertheless, M.R. provided DYFS with evidence of attendance at outpatient follow-up to her 28-day rehabilitation, negative urine screens throughout 1992, and attendance at AA/NA meetings throughout that year. There is no evidence that M.R. has taken up drinking or other substance abuse since.

With one exception, M.R. was apparently unrepresented at the custody reviews. Also with one exception, either M.R. or her husband appeared at each review. Nevertheless, she was never able to persuade the court to increase her visitation significantly, or to make it unsupervised. The following exchange at trial is noteworthy:

[PLAINTIFF'S COUNSEL:] Q. [M.R.], you've been in Court, numerous times, in Passaic County trying to regain custody of your child, is that correct?

[DEFENDANT:] A. Correct.

Q. And each time, you were not only denied custody, you were denied unsupervised visitation, is that correct?

A. I didn't ask for unsupervised visitation.

Q. You didn't want unsupervised visitation with your daughter?

A. Well, I ask [sic] for visitation. And that's the way Judge Scancarella set it up. And since I--my family is there anyway always, you know, because I think it's nice for the children to be at--not only for her to see her brother, but her cousins. They're there anyway. They would be invited anyway. I didn't fight it. Let's put it that way. I didn't fight it. I wanted weekends, but I didn't get--I didn't get that.

[emphasis added.]

J.S. and P.S. filed their adoption complaint on January 5, 1995. At the initial hearing, the family court judge ordered that A.R. was a ward of the court, and granted custody to J.S. and P.S. Af...