New Jersey Dyfs v. E.P.

• Citation: 952 A.2d 436,196 N.J. 88
• Decision Date: 14 July 2008
• Docket Number: A-112/113 September Term 2006
• Parties: NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. E.P., Defendant-Appellant. In the Matter of the Guardianship of A.H., a Minor.
• Court: United States State Supreme Court (New Jersey)

952 A.2d 436

196 N.J. 88

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. E.P., Defendant-Appellant In the Matter of the Guardianship of A.H., a Minor.

A-112/113 September Term 2006

Supreme Court of New Jersey.

Argued January 22, 2008.

Decided July 14, 2008.

Beatrix W. Shear, Deputy Public Defender argued the cause for appellant E.P. (Yvonne Smith Segars, Public Defender, attorney; Ms. Shear and Alison S. Perrone, Designated Counsel, on the briefs).

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for appellant A.H. (Yvonne Smith Segars, Public Defender, attorney).

Jessica M. Steinglass, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General of New Jersey, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel).

Diana Dunker argued the cause for amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., President, attorney; Ms. Dunker, Mr. Miller and Mary M. McManus-Smith, on the brief).

Justice ALBIN delivered the opinion of the Court.

In this case, the Appellate Division affirmed the Family Part's termination of a mother's parental rights to her daughter, who is now almost thirteen years old. The termination was based in large part on the mother's addiction to drugs, psychological problems, and unstable lifestyle, all of which made her unfit to care for her child for most of the child's life. Her emotionally fragile and unstable daughter moved from one foster home to another, and suffered abuse on more than one occasion. There is no prospect of the daughter's adoption on the horizon.

Although mother and daughter have not lived together now for more than nine years, they have maintained a loving relationship, through periodic visits and telephone conversations. Despite the mother's manifest deficiencies, they have developed a strong emotional bond with each other.

Termination of parental rights severs all ties and contacts between a parent and a child. The object is to allow the child the opportunity for a permanent placement with a new family, where the child can grow and thrive with the end goal of adoption. However, here, permanent placement is a remote possibility, whereas severing the one and only permanent and sustaining emotional bond that the child has — her relationship with her mother — is almost certain to cause serious harm to the child, who already has threatened and attempted suicide. Since the family court's ruling, the mother has been on a rehabilitative path — free of drugs for some time, gainfully employed, and with stable housing. We cannot say, however, based on the record before us, that the mother is or will ever be fit to care for her daughter.

Nevertheless, because a permanent placement with an adoptive family is nowhere in sight and the child's only enduring emotional and loving bond remains with her natural mother, we hold that the Family Part was clearly mistaken in finding that the best interests of the child would be served by a termination of parental rights. For those reasons, we reverse.

I.

A.

This case involves the lives of a mother and daughter, who have been physically separated now for nine years, but who have remained emotionally bonded to each other. We begin with the mother's story.

Emilia¹ is the mother of Andrea, who was born on July 27, 1995.² Three years later, Emilia suffered a psychological breakdown after Andrea's father was murdered. Emilia became incapable of caring for Andrea, and Emilia's sister, Ann, agreed to take Andrea into her home. Emilia visited her daughter on weekends. By 2001, Ann's relationship with her niece turned sour, and an allegation that Andrea had been abused triggered involvement by the Division of Youth and Family Services (Division).

After placing Andrea with Ann, Emilia struggled with her addiction to heroin and from the cascading problems related to her addiction, including homelessness and unemployment. In 2000, Emilia was convicted of possession of drugs, which resulted in her serving a six-month prison term and a three-year probationary period. Despite her sorry plight, Emilia managed to maintain a relationship with Andrea, periodically visiting her while she remained at Ann's home. After Andrea was transferred from Ann's home to foster care, Emilia visited her daughter as often as the court permitted, usually once every two weeks.

Emilia has attempted to deal with her drug addiction problem through multiple in-patient and out-patient programs from 1998 to 2007. Throughout those years she repeatedly relapsed, as evidenced by positive drug tests in late 2004 and early 2005. However, as of January 2008, Emilia was in an out-patient drug treatment program called Khaleidoscope and had not used illicit drugs in the prior year. In 2003, Emilia's nomadic existence came to an end when she found an apartment in Bayonne. That year, she also began a job as a waitress in a diner. In 2001, Emilia successfully completed a parenting skills program, and did so again in 2004 with her long-term boyfriend.

Emilia, for the most part, complied with the Division's reunification plan. She submitted to psychological evaluations and random drug tests, attended psychotherapy sessions and drug rehabilitation programs, which included the taking of methadone to treat her heroin addiction. She also maintained steady contact with Andrea. Nonetheless, because of Emilia's intractable drug problem, in April 2004, the Division filed a Guardianship Complaint seeking the termination of her parental rights. In December 2004, Emilia signed an identified surrender that would have effected a legally binding transfer of all her parental rights to Andrea's then-caretaker.³ Emilia had concluded that she was "unable to reduce her methadone level to the point where she [c]ould care for and parent [Andrea]." However, that caretaker ultimately decided that she did not want to adopt Andrea.

B.

Now we turn to Andrea's story. Since her mother's breakdown ten years ago, almost thirteen-year-old Andrea has been placed in twelve different foster homes. The first placement with her aunt Ann lasted approximately four years. Andrea's relationship with her aunt can best be described as tumultuous, with Andrea acting out — engaging in tantrums and defiant behavior — and Ann physically abusing Andrea, which led to the Division's intervention. Attempting to maintain the family unit, the Division offered counseling, parenting skills, and homemaker services. Despite the Division's frequent contact with Ann and Andrea between December 2001 and March 2003, the problems between the two persisted. Eventually, Ann concluded that she could not handle Andrea's behavioral issues, and Andrea requested that she be returned to her mother.

With Ann's consent, Andrea was removed and sent to live in a foster home. That placement lasted less than two months.⁴ What followed was a succession of placements in foster homes, a shelter, and a treatment facility. During this rootless period in Andrea's life, Emilia continued to visit with her daughter, who developed a positive relationship with Emilia's boyfriend.

As she moved from one home to another, Andrea asked to be reunited with her mother. Andrea's behavioral problems continued, including tantrums, explosive outbursts, assaults on other children and school staff, and physical threats directed at various foster parents. On several occasions she either threatened or tried to kill herself. For example, in March 2004, she was prevented from jumping out the window of a shelter. Following that incident, Andrea was transferred to an "emergency" foster home in Newark and later to a treatment home because of her emotional instability. Two months later, she was shuttled back to the Newark foster home, where she remained from June 2004 until January 2006.

The Division planned for Andrea, then age nine, to be adopted by that foster family, which appeared to provide a stable environment. However, in addition to Andrea, the foster parents were also caring for another foster child and several mentally ill adults, who acted inappropriately in Andrea's presence. In December 2004, days after Emilia signed the identified surrender to the Newark foster family, Andrea told her teacher that "if she could not be with [Emilia] she wanted to die." Soon afterwards, Andrea stuffed a sock in her mouth and tried to swallow it in a failed effort to kill herself. About one month later, Andrea's crude effort to hang herself from a door at school was stopped by a staff member, and she was taken to a hospital for a psychiatric evaluation.

The Division learned in April 2005 that the foster parents were no longer interested in adopting Andrea, and three months later the Division moved before the family court to vacate the identified surrender and filed a second Guardianship Complaint seeking to terminate Emilia's parental rights. In January 2006, Andrea was placed in her seventh foster home.

C.

The guardianship hearings took place over six days between July 2005 and February 2006. On the second hearing day in September 2005, Emilia did not dispute that she had recently relapsed to heroin usage. Despite her stumble, she advised the court that she was committed to her recovery program and prepared to go in-patient for treatment, to reduce her methadone levels, and to continue counseling with the ultimate goal of regaining custody of her daughter. On the following hearing day, the family court encouraged the Division to "reconsider . . . kinship guardian[ship] based upon the child's age and her attachment to her mother." That alternative, however, according to the Division did not appear feasible because Andrea's then-foster family had no interest in caring for her until she reached the age of eighteen. The court suggested that mediation might make the kinship guardian option a viable alternative, allowing Emilia enough time to get her life together to regain...