New Jersey Division of Youth & Family Services v. M.M.

*294 Justice WALLACE, JR.,

dissenting.

I respectfully dissent. I agree with the Appellate Division’s analysis that the father was a “capable and competent parent,” but “he was unable to remedy the pernicious effects of [the mother’s] irresponsible conduct on the children.” Div. of Youth & Family Servs. v. M.M., 382 N.J.Super, 264, 282, 888 A.2d 512 (App.Div. 2006). I also agree with the panel’s conclusion that there was insufficient evidence to terminate the father’s parental rights. Ibid. The father was “obliged only to exert reasonably successful efforts to protect the child from the harm inflicted by [the mother],” and the trial court found that the father had done that. Ibid.

The standards for termination of parental rights were articulated by this Court in Division of Youth & Family Services v. A.W., 103 N.J. 591 , 512 A.2d 438 (1986). The Legislature subsequently adopted those standards in N.J.S.A. 30:4C-15.1. In order to terminate an individual’s parental rights, N.J.S.A. 30:4C-15.1 requires that the trial court make specific findings that

(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 ... and the delay of permanent placement will add to the harm ,; :

(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.]

Parents have a constitutionally protected right to raise their biological children, “even if those children have been placed in foster care.” In re Guardianship of J.C., 129 N.J. 1, 9 , 608 A.2d 1312 (1992) (citing Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982)). Nevertheless, those constitutionally protected rights must be balanced against “the State’s parens patriae responsibility to protect the welfare of children.” Id. at 10, 608 A.2d 1312 . Importantly, “[b]ecause that power involves the State acting in the place of parents, it is limited to situations in *295 which the [S]tate has demonstrated that the child’s parent or custodian is unfit.” Ibid.

We emphasized in J.C. that “ ‘[f]ew forms of state action are both so severe and so irreversible.’ ” Ibid, (citations omitted). In expressing that the State must prove by clear and convincing evidence that the parent is unable or unwilling to eliminate the initial harm and will continue to cause serious and lasting harm to the child, we declared that

[w]hen the child’s biological parents resist the termination of their parental rights, the court’s function 'will ordinarily be to decide whether the parents can raise their children without causing them further harm. In most cases proofs will focus on past abuse and neglect and on the likelihood of it continuing. However, the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm. The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents.

[Ibid, (internal citations omitted).]

In the present case, the trial court was faced with the difficult and unusual circumstance of a mother who was unfit due to her sporadic leaving of the home, but a father who was capable of protecting his son from future harm. The trial court found that the evidence demonstrated that the father was a responsible parent and that he adequately provided for the thirteen-year-old daughter who continued to live in the home. 1 Further, there was no question that the father had exercised the visitation allowed and completed the recommended parenting classes. Regarding the father’s ability to parent his son, the trial court found that “all the experts, certainly Dr. Fulford and Dr. Dyer and ... Dr. Silikovitz all agreed that [the father] is a competent parent and [a] dedicated parent.” Prior to that finding, the trial court read from portions of the Division’s expert’s report concerning the bonding *296 assessment between the father and his son, in which Dr. Dyer expressed the following:

[The father] behaved in an entirely appropriate fashion towards his son, [M.A.M.], during the bonding assessment. [The father] was appropriately nurturing and involved with the child in constructive play activities. He related to [his son] on the child’s level and was able to offer him adequate cognitive and language stimulation during the session. It is obvious that [the father] loves this child and that he genuinely desires to have [his son] placed in his care even if it means that he has to shoulder the entire burden with [the mother] completely excluded as a caretaker.

Based on the facts as found by the trial court, I am compelled to conclude that clear and convincing evidence does not exist to establish the four statutory factors that must be found prior to termination of parental rights. The trial court essentially acknowledged that conclusion when it stated that “it’s not a clear case and not an easy case,” and admitted that “maybe [the court] got it wrong.”

The majority opinion disregards the strict standards we impose for termination of parental rights, see J.C., supra, 129 N.J. at 9 , 608 A.2d 1312 , and focuses on the bonding between the foster parents and the child. However, bonding should not be used “to determine only which set of parents is optimum or even ‘better’ in some vague social sense, rather than [whether the natural parents are] capable of rearing the child without serious harm.” Id. at 21 , 608 A.2d 1312 (citing In re Baby M., 109 N.J. 396, 445 , 537 A.2d 1227 (1988) (“the mere fact that a child would be better off with one set of parents than with another is an insufficient basis for terminating the natural parent’s rights.”)).

In regard to the daughter, the majority opinion states that “no matter how well-intentioned, [the father] left the daughter in the sole care of the mother on at least five occasions notwithstanding the DYFS case plan to the contrary.” Ante at 283, 914 A.2d at 1279. However, the trial court never made that factual finding, but rather, the court praised the father’s parenting of his daughter. Furthermore, the record reveals that alleged conduct occurred prior to the Title 9 abuse and neglect action in which the trial court found, in its June 25, 2003 order, that the Division had *297 not shown by a preponderance of the evidence that the father had abused or neglected his daughter. In short, I am in accord with the argument advanced by Legal Services of New Jersey that because the daughter was not abused or neglected, “there is no basis upon which to impute such to her brother.”

In any event, there was little or no evidence that the father was unable to protect his son. The majority opinion relies on the rejection by the Division of the father’s parenting plan to place the child in daycare because the daycare facility could not hold a space open as the facility did not know when the father would be able to enroll his son. The testimony in this regard is noteworthy. One caseworker testified that she did not recall contacting the daycare provider and a second caseworker testified that when she contacted the daycare provider, she was informed that it had been holding a space open for the father’s child for quite some time, but that it was not able to hold it open anymore. Surely, that evidence is insufficient to support the conclusion that the father was unable to find a person or daycare facility to care for his son when he was at work. Tellingly, the record fails to disclose any attempt by the Division to coordinate with the father and the daycare facility to return the child to the father at the time an opening was available.

Essentially, the majority approves the termination of the father’s parental rights to one of his children because the Division was not satisfied that an opening in the daycare facility would be available whenever the Division decided to return the child to his father, and as a result, the child bonded with his foster parents. I cannot approve such a result. Unfortunately, the Division never gave the father the opportunity to be a parent to his son, which would have included enrollment in daycare.

I agree with the Appellate Division’s reasoning that

the child — almost two-and-one-half years old at the time of trial, and now barely three years old — has bonded with the foster parents, who have done admirably fine work in providing for him and meeting his special needs. But the fact of bonding between foster parents and subject child — even with a proper focus on the best interests of the child — cannot be a surrogate for the showings and proof standard *298 mandated by statute, without some special showing of substantial and particularized evidence that serious psychological or emotional harm will be inflicted on the child by separating him from the foster parents. See J.C., supra, 129 N.J. at 17-26 , 608 A.2d 1312 . Here, from the expert opinions in the case, we discern no such harm that will come to this child from careful and sensitive efforts to reunite him with his father.

[MM, supra, 382 N.J.Super. at 282-83, 888 A.2d 512 .]

I would affirm the judgment of the Appellate Division reversing the trial court’s order terminating the parental rights of the father substantially for the reasons expressed in the Appellate Division’s thoughtful opinion.

Justice RIVERA-SOTO joins in this opinion.

For reversal and reinstatement — Justices LONG, LaVECCHIA, ZAZZALI and ALBIN — 4.

For affirmance — Justices WALLACE and RIVERA-SOTO — 2.

Subsequent to the hearing, the father provided a written plan that demonstrated his commitment to provide for both his son and daughter, without any involvement of the mother. Generally, we do not look favorably upon evidence that is submitted after a hearing has occurred. However, the grave responsibility this Court undertakes in termination of parental rights cases justifies that, at a minimum, the Court should remand the case to the trial court to consider the father’s parenting plan.