In Re the Guardianship of J.C.

CLIFFORD, J.,

concurring in judgment.

I write separately only to emphasize the need for agency compliance with New Jersey’s Child Placement Review Act, N.J.S.A. 30:40-50 to -65; to underscore the importance of N.J.S.A. 30:40-15 (providing the grounds on which the Division of Youth & Family Services (DYFS) may abandon plans for reunification of biological families by placing children in preadoptive homes); and to point up the relevance of evidence of the biological parent’s compliance with a reunification plan, see N.J.S.A. 30:40-55, pursuant to voluntary custody under N.J.S.A. 30:40-11. Compliance henceforth with those statutory provisions should increase the chances of this case being relegated to no more than a “blip” in the law — a case whose lamentable facts and history we would hope never to see repeated.

The need for guidance to the trial courts that daily confront the complex and tragic situations posed by this case and by its companion, In re Guardianship of K.L.F., a Minor, 129 N.J. 32 , 608 A.2d 1327 (1992) (K.L.F.), is clear. The Child Placement Review Act and N.J.S.A. 30:4C-11 to -20, both of which were preceded by exhaustive legislative studies, provide the court with a ready-made mechanism by which we can extract from this case a sort of “preventive” justice. I would prefer that our decision focus on the need for strict compliance with the thorough — and thoroughly-applicable — statutory guidelines, which are intended to temper and channel DYFS’s administrative discretion, and which, if followed, would have prevented the bonding that never should have occurred in the first place.

In addressing the intricate and painful issue before us, one can be forgiven for seeing ghosts; but I have a nagging concern that absent strict enforcement of the Child Placement Review Act, DYFS can unilaterally abandon plans for reunify *28 ing biological families in favor of pre-adoptive placement. Once that decision is implemented and the child is placed in the preadoptive home, bonding with that family begins. Until that time, bonding with the foster family, although ultimately relevant in the trial court’s termination proceeding under N.J.S.A. 30:40-20, is an inevitable side effect of a temporary plan whose purpose is to promote stability in the relationship between biological parent and child.

This case and K.L.F., decided this day, are problematic because they squarely present the question of “how long a court should be willing to wait” for parents to rehabilitate themselves. See New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 607 , 512 A.2d 438 (1986). Important to the resolution of that question are the age and development of the child, the sufficiency of DYFS’s efforts at reunification of the biological family, and the role of the parent in contributing to the need for State intervention that has resulted in psychological bonding between the child and the foster or the preadoptive family. Particularly in the dispute regarding J.M.C., the interests served by the latter two factors conflict because DYFS relies solely on the bonding that occurred while J.M.C.’s mother, A.C., sought rehabilitation under a temporary-custody plan (with which she fully complied) and while she availed herself of all visitation opportunities available to her under that plan.

As amicus observed at oral argument, the dearth of adequate and safe rehabilitation residences and the premium placed on stability in a child’s home life force troubled parents to confront a harrowing choice between two alternatives; each of which equally damages the child and therefore compromises parental rights. A.C. could have chosen to forego seeking invaluable professional help in order to continue to live and bond with J.M.C., although she might thereby have risked exposing the child to an unrehabilitated lifestyle; or she could have attempted to avail herself of one of the scarce spots in a State rehabilitation facility, thereby assuming the very real risk *29 that bonding during her rehabilitation would thwart reunification with her offspring. Notwithstanding its conclusion that A.C.’s temporary placement of J.M.C. with DYFS had averted damage to that child, the trial court terminated her parental rights to J.M.C. based solely on the bonding that had occurred during the pendency of that placement. A more graphic illustration of the parent’s Catch-22 bind is difficult to imagine.

The Court recognizes that although the recent amendments to N.J.S.A. 30:4C-15(d) were not in effect at the time DYFS filed the termination petitions in this case, that sub-section has always embodied a prudent and delicate delegation of parental and administrative responsibilities during voluntary temporary placement. See ante at 39, 608 A. 2d 1327 (citing the Child Placement Bill of Rights). That latter provision allows the agency to file a petition seeking termination only after certain enumerated circumstances have persisted for one year. Therefore, as I understand this record, by filing under N.J.S.A. 30:4C-15(c) in J.M.C.’s case, whose purportedly-temporary placement the trial court characterized as an “act of mercy,” DYFS circumvented the requirements of N.J.S.A. 30:4C-15(d). Instead of abiding by those requirements, it simply relied on its understanding of the nebulous “best interests” test. As this case illustrates, the bonding that takes place before a termination petition has been decided serves to decrease the potential for eventual reunification. Once the toothpaste begins its inexorable journey from the tube, the chances of its return diminish with each passing day.

The entire statutory scheme implements a legislative determination that eventual reunification of the child with the natural parent is the objective of foster, i.e., temporary, placement. My understanding of the statutory scheme is that on receipt of notice, pursuant to N.J.S.A. 30:4058.1, of pre-adoptive placement, the Family Part should review DYFS’s decision to depart from that statutory objective. By reviewing promptly any agency decision to abandon plans for reunification, the Family Part can eliminate the potential for bonding based on erroneous *30 decisions by DYFS. In this case the bonding has undeniably occurred, and nothing that this Court does in protecting the parent’s fundamental stake in the matter can alter that awkward, distressing reality, nor can we salve the wounds that these children will suffer on account of their unstable and drawn-out placement experiences. Sadly, given the sorry history of this case and of K.L.F., we can accomplish little more than to effect some “damage control” in crafting a judgment in respect of these children.

In justifying pre-adoptive placement, I would not allow DYFS to rely solely on “inadequate parenting,” see A.W., supra, 103 N.J. at 606 & n. 8, 512 A.2d 438 , that has persisted for so long that the biological parent is now “unable to eliminate the harm” from the lack of a parental relationship, see id. at 605-06 , 512 A. 2d 438 , unless the agency has gathered clear and convincing evidence that it has satisfied, and that the parent has failed to satisfy, the requirements of N.J.S.A. 30:4C-15(d). Thus, in reviewing the notice of pre-adoptive placement (or, in the absence of a change in the child’s placement, at the time of agency abandonment of plans for reunification), see N.J.S.A. 30:40-58.1, in cases in which that placement is not based on damage resulting from the child’s relationship with the natural parent, the trial court should ensure that it is satisfied of the following: (1) that DYFS has clear and convincing evidence that the child has suffered, or will imminently suffer, “serious emotional injury and developmental retardation” from the lack of a relationship with the natural parent, see A. W., supra, 103 N.J. at 605 , 512 A.2d 438 ; and (2) that the agency’s decision to discontinue reunification plans is justified under N.J.S.A. 30:4C-15(d).

In addition, I would expressly prohibit the filing of a termination petition under N.J.S.A. 30:4C-15(d) (and, therefore, based solely on the lack of a relationship with the natural parent) when the parent has fully complied with the custody plan formulated pursuant to N.J.S.A. 30:40-55. Neither fundamental notions of justice nor the Constitution permits termi *31 nation based solely on the psychological bonding that takes place while the mother complies with the visitation provisions of a plan that purportedly has been designed — by DYFS — to foster eventual reunification.

Finally, I would require, as a pre-requisite to termination pursuant to a petition filed under either N.J.S.A. 30:4C-15(c) or -15(d), a finding by clear and convincing evidence that DYFS has complied fully with the Child Placement Review Act. For today’s decision I would rely heavily on that statute, which implements truly-exhaustive review procedures. The Act (1) establishes Child Placement Review boards in every county, N.J.S.A. 30-:4G-57; (2) mandates formulation — immediately after foster placement — of a plan that includes “a statement of the goal for the permanent placement or return home of the child ***[,] [t]he intermediate objectives relating to the attainment of the goal[, and] * * * the duties and responsibilities of the division, the parents[,] * * * and the temporary caretaker, including the services to be provided by the division,” N.J.S.A. 30:4055; and (3) requires DYFS to notify the Family Part of any decision to place a child in a home for purposes of adoption, N.J.S.A. 30:4058.1. That notice operates to prevent further judicial review of the foster-placement agreement by the Family Part unless, as in this case, a complaint for adoption has not been filed within eight months after the pre-adoptive placement and “the complaint is not imminent.” Ibid. DYFS has presented no evidence of compliance with those strictures.

Applying those proposals to the facts of this case, I would disallow termination of A.C.’s parental rights in respect of both J.C. and J.M.C. if the trial court concludes on remand that DYFS has not produced clear and convincing evidence of full compliance with the Child Placement Review Act. I would also clarify that — only in respect of the younger child, who, unlike her sister, was not damaged by interaction with an unrehabilitated A.C. — the court may not terminate parental rights unless DYFS also shows by clear and convincing evidence (1) that the agency had Section 15(d) (inadequate-parenting) grounds for *32 termination as of the date on which it abandoned plans for reunification, and (2) that A.C. failed to comply with the voluntary custody plan.

CLIFFORD, J., concurring in the result.

For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7.

Opposed — None.