Dcpp v. M.N., J.L.K. and W.L., in the Matter of W.N.-l. and I.N.-k.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2413-21

A-1371-22

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

M.N.,

Defendant-Appellant,

and

J.L.K. (Deceased) and W.L.,

Defendants.

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF W.N.-L.

and I.N.-K., minors.

___________________________

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

M.N.,

Defendant-Appellant.

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF I.E.N.-K.,

a minor.

___________________________

Argued January 24, 2024 – Decided April 15, 2024

Before Judges Accurso, Vernoia and Walcott-

Henderson.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Camden County,

Docket Nos. FN-04-0410-20 and FG-04-0059-22.

Joseph E. Krakora, Public Defender, attorney for

appellant (Lora Dafna Glick, Designated Counsel, on

the briefs).

Matthew J. Platkin, Attorney General, attorney for

respondent (Sara M. Gregory, Assistant Attorney

General, of counsel; Mary L. Harpster, Deputy

Attorney General, on the briefs).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minors W.N.-L. and I.N.-K. (Meredith

Alexis Pollock, Deputy Public Defender, of counsel;

Julie Elizabeth Goldstein, Assistant Deputy Public

Defender, of counsel and on the briefs).

PER CURIAM

A-2413-21

2

M.N. (Madeleine) appeals from a now-final February 2022 finding that

she abused and neglected seven-year-old W.N.-L. (Wanda), and from the

subsequent termination of her parental rights to Wanda's half-sister, three-and-

a-half-year-old I.E.N.-K. (Izzy).1 Having consolidated the appeals for

purposes of this opinion, we now reverse both judgments. The trial court 's

finding that Madeleine abused and neglected Wanda is not supported by

substantial credible evidence in the record, and the Division of Child

Protection and Permanency failed, as a matter of law, to establish prongs three

and four of the best interests standard of N.J.S.A. 30:4C-15.1(a) by clear and

convincing proof in the guardianship action.

These are very troubling cases. In a nutshell: Wanda and Izzy were

removed from Madeleine's care in March 2020, when she was arrested for

making a false report that Wanda's father W.L. (Wally) had sexually abused

Wanda — after Wanda recanted her sexual abuse allegations against her father,

claiming her mother had coached her to make them. The Division placed

Wanda with Wally. The Division placed Izzy, then a little over ten months

old, with Wanda's sister, D.N. (Darcy). Madeleine was not allowed parenting

time with either child.

1

We employ fictitious names to protect the children's privacy. See R. 1:38-

3(d)(12).

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3

Less than three weeks after being released from custody on conditions

following her arrest, Madeleine used a key to Wally's house to take Wanda

from her bed in the middle of the night and then stole Wally's truck and drove

to Darcy's house to get Izzy. She was arrested after breaking into her sister's

house and being subdued by Darcy's fiancé. Neither child was harmed.

Immediately after Madeleine's arrest on new charges, the Family Part

judge, at the Division's request, put in place an order prohibiting Madeleine

from having any contact with Wanda or Izzy. Although Wanda did not testify

at the Title 9 fact-finding hearing, the judge found Wanda's "recantation [was]

the more credible of [her] statements," and concluded Madeleine had

emotionally abused and neglected Wanda by coaching her to make false

allegations against Wally. Wally was awarded sole custody of Wanda in her

parents' non-dissolution (FD) action until such time as Madeleine is released

from jail, where she remains in pre-trial detention awaiting trial on kidnapping

charges.

Because Wanda remains in Wally's care and custody, the guardianship

case was limited to Izzy. Madeleine was placed in pre-trial detention in March

2020, just at the start of the COVID-19 pandemic, seriously delaying

disposition of these cases and making the Division's provision of services to

Madeleine more difficult than usual. The Division did not arrange even video

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4

visitation between Madeleine and Izzy, however, until after being court -

ordered to do so in April 2022 after the filing of the guardianship complaint.

The Division thereafter provided Madeleine four ten-minute supervised video

visits with Izzy ahead of the Division's bonding evaluation in August.

Unsurprisingly, the psychologist conducting the evaluation found Izzy 's

attachment to her mother, whom she hadn't seen in over two years and didn't

recognize, to be "ambivalent and insecure," and he opined she would not suffer

any severe or enduring harm were her parental bond to her mother severed by

court order.

By that time, however, Izzy had been removed from Darcy's care after

nearly two-and-a-half years and placed with Wally, who expressed a desire to

adopt her. The Division's psychologist found no secure attachment between

Izzy and Wally either, but opined that theirs was a developing bond, and it was

"likely that with the passage of time and all else equal in an appropriate

environment" that Izzy would "form a significant and positive psychological

attachment and bond" with Wally, "and then be at a significant risk of

suffering severe and enduring harm if [her] relationship with [Wally] [were]

then ended." The judge denied Madeleine's motion to terminate the

guardianship proceeding and reinstate the FN litigation, allowing the potential

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5

for Madeleine's reunification with Izzy, and instead terminated Madeleine's

parental rights to her daughter.

We think this summary makes clear that neither of these final orders can

stand. The cases are troubling because although we express no opinion on

whether Madeleine coached Wanda to make false allegations against Wally,

the child's uncorroborated statement that Madeleine did so cannot support an

abuse and neglect finding. And while in no way minimizing Madeleine's

incredibly reckless behavior in taking Wanda and Izzy in the middle of the

night, the Division presented no competent evidence that either child has

suffered any physical or emotional harm from the experience. The failure of

the Division to provide services to Madeleine in pre-trial detention, most

notably limiting her to four ten-minute video sessions with Izzy during the

two-and-a-half-years Madeleine was detained and then urging the termination

of her parental rights based in large measure on the lack of a secure bond

between her and Izzy is simply a fundamentally unfair way for the Division to

proceed in a guardianship action.

The Facts

The facts essential to resolution of these two cases are largely

undisputed. Three years after Wanda was born to Madeleine and Wally in

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6

January 2015, the two, who had never married, separated in 2018 after a long -

term relationship. Madeleine, then thirty-two, took up with J.L.K. (James),

living with him until the summer of 2019, when he moved out after Madeleine

obtained a domestic violence restraining order against him. 2 Their daughter,

Izzy, had been born in April 2019. All three adults had both criminal and

substance abuse histories.

The family's history with the Division dates back to a referral lodged

against Madeleine in 2015 relating to a physical altercation with one of her

sisters while Madeleine was allegedly intoxicated and holding Wanda. The

altercation occurred four years after Madeleine was arrested in 2011 on two

charges of driving under the influence, following one after another in short

succession.3

The Division assumed care but not custody of Wanda due to Madeleine's

alleged intoxication at the time of the incident and her history of alcohol

abuse. Madeleine successfully completed intensive outpatient alcohol abuse

treatment with no further treatment recommended, and all of her random drug

2

James, Izzy's father, died of an apparent drug overdose in early 2022.

3

Those arrests constituted a violation of Madeleine's probation on a theft

charge, resulting in her spending nearly a year in State prison.

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7

screens throughout the six months the case was open were negative. 4 The case

worker expressed no concern with Madeleine's care of Wanda, as their home

was always neat and clean, amply stocked with food, and the baby always

appropriately dressed each time the worker visited. Wanda appeared, and

collaterals confirmed, a happy and healthy baby. The Division closed its case,

deeming the allegation of neglect based on inadequate supervision

unsubstantiated.

In October 2018, a mandated reporter contacted the Division after

receiving a report from Madeline's sister, Darcy, that Wally might be sexually

abusing Wanda. The Division interviewed Madeleine, who explained she took

the allegations seriously as she had been sexually abused as a child, but

reported Wally was a "wonderful father," and she did not believe them. Wally,

then thirty-nine-years-old, was reported to be "distraught" on hearing the

allegations. He told the Division's caseworker he understood why Madeleine

would be concerned given her own history of childhood sexual abuse, and both

parents agreed Wanda should be examined. She was, and the case was closed

as unfounded.

4

Madeleine also successfully completed parole in 2015. The caseworker

interviewed Madeleine's parole officer, who advised all of Madeleine's drug

screens had been negative and Madeleine was "compliant with all parole

requirements."

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8

In July 2019, Wally appeared in court in the FD matter, without serving

or advising Madeleine, to report his suspicion that Madeleine was using drugs

while caring for Wanda. 5 The judge's clerk contacted the Division with

Wally's allegation. The same day, Madeleine reported that Wanda had come

home from spending a weekend with Wally complaining that he was touching

her inappropriately. Madeleine recorded Wanda on her phone explaining

where and how her father was touching her by making precocious sexualized

gestures. The Division reported the allegations to the prosecutor's office.

Wally's parenting time with Wanda was suspended in the FD case pending

investigation, and the Division instituted a safety protection plan barring his

contact with Wanda pending investigation.

The prosecutor's office took statements from Madeleine and Wanda. 6

Wally hired counsel and declined to be interviewed. Wanda, then four-and-a-

5

Wally subsequently advised the Division's caseworker that he'd requested

that hearing after Madeleine accused him of inappropriately touching Wanda

over a weekend visit and threatened to block his access to the child.

6

During Madeleine's statement, the assistant prosecutor smelled alcohol and

the detective asked if Madeleine would take a breathalyzer test. Madeleine

agreed, reporting she'd had a glass of wine the night before. Although she

tested positive for alcohol, she was below the legal limit. The worker noted

Madeleine was coherent and was not slurring her words or uncoordinated. In

other words, she did not appear intoxicated. A drug screen was negative.

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9

half, was examined by a physician at the Child Abuse Research Education and

Service (CARES) Institute, who found "no acute or chronic residua as would

be anticipated based on the history provided." The doctor concluded "[t]he

most significant impact for [Wanda] is psychological and has the potential for

long-term negative consequences." She opined it was "important" that Wanda

"be referred to a clinical mental health provider for evidence-based mental

health services to assess and make treatment recommendations regarding the

. . . concerns for sexual abuse by dad." 7

Although Wanda repeated the allegations of abuse to the Division

worker, the CARES doctor and a detective in the prosecutor's office, that

office informed the worker the prosecutor would not bring charges against

Wally after having interviewed Wally and Madeleine's mutual friend S.O.

(Sean), who advised the detective that the couple had "a custody issue going

on" and Madeleine "tends to use visitation against [Wally] whenever he

refuses to give her money."

7

The worker was subsequently advised by Wanda's therapist that she was

seeing Wanda but could not treat her "as a sexually abused victim" and provide

her the sort of therapy recommended by CARES because there were "no

charges or substantiations." Wally began taking Wanda to see a counselor

without Madeleine's knowledge or consent after his parenting time was

restored in February 2020, while the Division was investigating the claims of

false reporting.

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10

The worker thereafter interviewed Wally, who shared that he and

Madeleine "used to use heroin together, way before [Wanda] was born."

According to Wally, when Madeleine went to prison for eleven months for

violating probation in 2011, he "got clean" and has been sober since. 8 He

claimed he and Madeleine resumed their relationship on her release, although

"it was not a good one" and "there was a lot of drama." Wally claimed

Madeleine "could not stay sober." Three years later, they had Wanda. Wally

showed the worker a video he took of Madeleine while giving her and the

children a ride in July 2019, appearing to show her nodding off in the

passenger seat. He reported no other incidents identifying specific concerns

about Madeleine's parenting of Wanda.

As to the sexual abuse allegations, Wally claimed the charges were

"strange," and that neither Wanda's school nor anyone else had reported any

concerns. Wally believed Madeleine coached Wanda to make the allegations

after he told Madeleine he could not continue to provide her as much financial

8

Wally's mother, who was at the time supervising Madeleine's and Wally's

care of Wanda pursuant to the Division's safety plan, reported to a caseworker

in March 2015 that Wally had stopped using heroin in February 2014. The

Division's 2015 case summary in evidence notes Wally's criminal history

included drug related charges stemming from incidents in 2012 and 2013.

Asked about Madeleine's drinking, Wally's mother "stated that there were

issues before, but she has been doing well."

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11

support as he had previously. Wally advised the worker he intended to seek

full custody of Wanda.

The worker also interviewed Sean. Sean reported that he was a friend to

both Wally and Madeleine and visited both their homes regularly, including

when Wanda was present. He acknowledged "things became strained" after

the couple broke up, but he had no concern for either parent and had never

observed anything inappropriate in either of their homes. Sean claimed

Madeleine was a good mother, and he had no reason to believe she was

abusing drugs or alcohol. He acknowledged Madeleine struggled financially

and could "get stressed out about finances," but that was her "only issue." He

claimed he'd never witnessed "anything inappropriate" between Wally and

Wanda and "would not allow something like that."

Sean told the worker that he was "confused about all of this and does not

know exactly where" it's "all coming from." He claimed he saw the video

Madeleine had taken of Wanda describing how Wally touched her and

"something did not look right about it, and it did seem like there was some

coercion going on." He continued to insist both Madeleine and Wally were

good parents to Wanda. The Division closed its investigation of Wally,

declaring Wanda's allegations unfounded.

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12

The Division also closed its investigation into Madeleine deeming the

neglect allegation unsubstantiated. Apart from the breathalyzer results,

Madeleine had not tested positive for alcohol or drugs during the four months

the Division investigated Wally's allegation that Madeleine had been abusing

alcohol and drugs while caring for Wanda.9 The Division did not apply for

care or custody of the children as they both appeared well-cared for and their

home, even during unannounced visits, was always clean, neat and well-

9

Following the Division closing its case, James, Izzy's father, was arrested for

assault on Madeleine and possession of drug paraphernalia, and Madeleine

obtained a domestic violence temporary restraining order against him.

Although the officers responding to the scene reported to the Division that

Madeleine "did not appear under the influence," the Division nevertheless

requested she submit to a drug screen the following day, threatening that if she

did not do so, "the situation would change" according to the case worker's

notes. Madeleine did so, accompanied by Sean. The caseworker met

Madeleine at the screening service, noting she did not appear to be under the

influence. Although Madeleine's instant screen was negative, the sample for

the "10-panel" test was rejected as "not consistent with human urine." An

unannounced "10-panel" test a week later was negative. The case was open for

services on Madeleine's consent only. The caseworker noted no concerns for

the safety and well-being of the children in Madeleine's care at that time.

Although a finding of abuse and neglect was substantiated against James

following that incident, "[t]he findings for the allegations are not established

for [Madeleine]" as there was "not a preponderance of the evidence indicating

that [Wanda] and [Izzy] are abused or neglected children," although there was

some evidence indicating the children "were placed at risk of harm due to the

confirmed [domestic violence] and [James'] syringes found in the home."

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13

stocked with food. The Division had no concerns for the children, then nearly

five-years-old and seven months, continuing in Madeleine's care.

Wally regained his parenting time in the FD case in early February

2020.10 In late February, Madeleine reported to the police and the Division

that Wanda had disclosed Wally had again touched her inappropriately on an

overnight visit. When interviewed by the worker, however, Wanda expressed

excitement about visiting her Dad again, sharing with the worker that her

father was picking her up later for a sleepover. Wanda told the worker "that

things at her father's home [are] amazing and she feels happy there."

According to the worker, when he advised Madeleine that Wanda had

denied being touched inappropriately by anyone, Madeleine said she couldn 't

10

During that hearing, the caseworker reported to the FD judge that

Madeleine had refused to cooperate in a substance abuse evaluation,

notwithstanding the caseworker had already been twice advised by the deputy

in the FN case there was insufficient evidence against Madeleine to seek a

court order requiring her to comply with the Division's recommendation for a

substance abuse evaluation. The FD judge thereafter ordered Madeleine to

comply with the Division's recommendations. The worker subsequently

included in his notes and case summary that Madeleine had failed to comply

with court orders requiring her to obtain a substance abuse evaluation, failing

to mention those orders had not been entered in the FN case. Although we

expect such "back-door" efforts to compel a parent's compliance with services

a caseworker deems appropriate are rare, they should, of course, never occur.

The Division is not exempt from the government's obligation to "turn square

corners" in exercising its statutory obligations. See W.V. Pangborne & Co. v.

N.J. Dep't of Transp., 116 N.J. 543, 561 (1989) (quoting F.M.C. Stores Co., v.

Borough of Morris Plains, 100 N.J. 418, 426 (1985)).

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14

understand why Wanda had recanted, and that she would not allow Wanda to

go with Wally. The worker's notes reflect what he said happened next:

[Wanda] heard what [Madeleine] stated and became

upset. She began to cry and scream that her mother

ruins everything and that she is mad at her for not

allowing her to go to her father's home. [Wanda]

stated that she had plans for the sleep over.

[Madeleine] told [Wanda] to tell the worker the truth

and [Wanda] exclaimed, "you know the truth" and

continued to cry.

The worker contacted the local police who advised him that after speaking

with Madeleine and Wanda, neither his office nor the prosecutor's office, with

whom he'd been in contact, would be "taking the case."

The caseworker was later advised by his supervisor, however, that the

plan was for Wally to bring Wanda to the Child Advocacy Center for a

statement during his weekend parenting time. The caseworker contacted the

detective Monday morning who said she had "not heard" from Wally, and "that

if [Wally] does not cooperate then there is nothing that can be done on their

end." The caseworker immediately contacted Wally, who advised he had

Wanda with him for the weekend but that she "was upset this weekend and he

did not want to put her through any more stress." After the worker "informed

[Wally] of his conversation with the detective," Wally told him he was due to

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15

pick up Wanda that afternoon and would take her to the Child Advocacy

Center to meet with the detective.

During Wanda's interview with the detective that Monday, which was

her second and video recorded, the detective asked Wanda if she knew why

she was there, to which Wanda responded: "To talk about the news about uh,

my Mom." When the detective asked what was going on with her Mom,

Wanda responded that "she's just being crazy. She went to a school, and it

messed her up. So, now she got mean after she went to that school, 'cause that

school was dangerous. Because that school like lied to her about me and my

Dad. So, then she thought that." When the detective asked what had the

school lied about her Dad, Wanda replied that she didn't know, "she never told

me."

When the detective asked what had Wanda's Mommy been telling her,

Wanda replied in a singsong voice, "Daddy touches your crotch." The

detective asked, "did that ever happen," to which Wanda replied "No. My

Mommy just brought it up, 'cause she's a crazy because that school ruined her

brain." When the conversation turned to good touches and bad touches,

Wanda described her mother tickling her neck or her "ticklish spot" under her

arms as good touches, "but touches in my pee-pee are not okay," volunteering

"but my Mommy and Daddy never do that, my Mom just brought that up."

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16

When the detective asked Wanda whether anybody tells her "to say her

pee-pee was touched," Wanda answered, "Yeah, Mommy." Asked what her

Mommy tells her to say, Wanda replied "uh, tell Daddy does he touches your

crotch?" Asked, "and then what happens," Wanda said "uh, then my Daddy

like says to me 'That did not happen!' and then I understand it didn't happen."

Asked by the detective "has anybody ever touched you in a place that

you don't like, that's not okay," Wanda replied, "uh, yeah, he, sometimes my

Mommy like says my Dad touches me on my pee-pee, but he doesn't." Wanda

denied her father had ever touched her on her "pee-pee" or on her "butt."

After a break, the detective returned to ask Wanda about the school that

made her mother mean. The detective asked where the school was located, and

what was it called. Wanda said "I, I don't know that. She never told me about

her school." Asked how she knew about it, Wanda said "she only told me that

she had been to a school. But she didn't tell me what kind of school it was."

Asked by the detective why she thought the school made her mother "mean

and crazy," Wanda replied: "Because she's been wiped out all since after she'd

been to that school." When the detective asked Wanda if anyone had told her

her Mom was being mean and crazy, she replied in a low voice, "Um, yeah.

My Dad. But I don't really know that." Following Wanda's interview, the

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caseworker told her he observed her conversation with the detective and

"commended her" for telling the truth.

Following a statement from Madeleine to the detectives in which she

continued to insist that Wanda had told her that Wally had been touching her,

and that she believed Wanda, Madeleine was arrested and charged with

second-degree making a false report and second-degree endangering the

welfare of a child. She was detained and released on conditions three days

later, among them that she have no contact with Wanda unless approved by the

Division or the Family court. The Division substantiated a finding of

Madeleine's emotional abuse and neglect of Wanda and once again deemed the

sexual abuse allegations against Wally unfounded.

Following Madeleine's arrest, the Division effected an emergency

removal of the children, placing Wanda with Wally, and Izzy with a resource

family. At a hearing two days later, the court upheld the removal, granted the

Division custody, care and supervision of Izzy and care and supervision of

Wanda, who remained in Wally's custody, and ordered Madeleine to complete

a psychological evaluation and to undergo a domestic violence assessment and

a substance abuse evaluation. The March 4, 2020 order provided, at the

Division's request, that Madeleine was to have no contact with the children.

The Division represented to the court that it would follow up with the

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counselor Wally had engaged, who'd seen Wanda one time, regarding "how to

proceed" with visitation between Madeleine and Wanda.

Although the Division's records reveal a lengthy conversation with Izzy's

father on that date about placement, the Division's involvement and what he

could expect going forward, there is no record of a similar information session

with Madeleine. Madeleine was still in detention and, while present for the

hearing, she claims no one spoke to her from the Division.

A week later, the Division placed Izzy with Darcy. Darcy reported that

she had previously dated Wally when she was fifteen and he was eighteen.

Their relationship ended when "he got aggressive with her," and she thereafter

left for college. When she returned, she was shocked to find Madeleine and

Wally in a relationship. Darcy reported that Madeleine claimed that

"technically she was with [Wally] first since they [had] been intimate since

[Madeleine] was eleven years old and [Wally] was eighteen." Darcy reported

that Madeleine and Wally's "relationship was toxic" and he had once "punched

[Madeleine] in her face and knocked her teeth out" requiring her to have "her

teeth reconstructed."

Darcy expressed concern with Sean visiting Wally's home when Wanda

was present. Darcy claimed Sean had twice tried to touch her inappropriately

when she was younger. She claimed the incidents occurred when she was

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19

sleeping, and she pushed him away and it never happened again. Darcy

claimed she later learned that Sean had molested Madeleine from when she

was six years old and had also molested another sister of theirs who had died

in a car crash some years before. Darcy further claimed she had recently

witnessed disturbing, precocious sexual behavior on Wanda's part and worried

that she might be being sexually abused. A few days later, Darcy reported

"inconsistency" in Madeleine's behavior, noting "sometimes she is manic and

other times she's fine." The worker was unable to arrange an in-person

meeting with Madeleine during this time-frame due to new COVID-19

lockdowns.

As previously mentioned, in the early morning hours of March 25,

Madeleine used a key to enter Wally's home, awakened Wanda and walked her

out to Wally's truck. Madeleine drove the truck to Darcy's, breaking a window

to get Izzy. The noise awakened Darcy and her fiancé. Darcy carried Izzy out

of harm's way before Madeleine reached her, and Darcy's fiancé subdued

Madeleine with a frying pan. In an interview by a detective the following day,

a very reluctant Wanda said her Mommy held her hand and walked her

downstairs and outside her Daddy's house, but she wasn't scared. She also

revealed her father had told her that her mother had broken a window with a

metal pipe. Darcy obtained a final restraining order against Madeleine, which

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included protections for Izzy, which was amended on June 9, 2020, to permit

visitation with Izzy as "arranged via DCPP." The criminal court granted the

State's motion for Madeleine's detention.

Because of the delays and disruptions to the court system caused by the

COVID-19 pandemic, the fact-finding hearing in this matter did not occur for

nearly another two years. By that time, three different judges had presided

over seventeen Zoom hearings and case conferences. We have no doubt the

several procedural lapses in the management of this case resulted from the

difficulties of adjusting to new COVID-19 protocols in the court and the jail,

the difficulties of conducting discovery under the circumstances and the case

having been twice handed-off to different judges.

Nevertheless, some of the lapses leading up to the factfinding hearing

were serious ones. Our review of the record comes close to confirming

Madeleine's charge that no representative of the Division came to see her at the

jail for sixteen months following her detention in March 2020. It was actually

fifteen months and several days before anyone from the Division met with

Madeleine at the jail. The Division's records in evidence reflect only one

telephone conversation between any representative of the Division and

Madeleine during that same period.

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Although the Division represented at the beginning of the case, when it

requested and received an order prohibiting contact between Madeleine and

her children, that it would consult with the counselor Wally had engaged for

Wanda about visitation, there is nothing in the record to suggest that was ever

done. Madeleine's first two motions in June and August 2020 for supervised

video visitation with Wanda and Izzy were denied by the court without input

from an expert that such visitation would be in anyway harmful to them. On

the August motion, the Division said it wanted to wait for the results of a

scheduled psychological evaluation of Madeleine.

The Division's psychological evaluation of Madeleine, which appears to

be the only service the Division ever provided her before it was finally ordered

in April 2022 to arrange supervised visitation between Madeleine and Izzy,

was conducted via video on September 2, 2020, by the Division's psychologist,

Carissa Ferguson-Thomas, Psy.D. Dr. Ferguson-Thomas summarized the

purpose of the evaluation, undertaken at the Division's request, was "to

provide a personality and psychological profile," and to assess Madeleine 's

"emotional and behavioral functioning to assist the Division" in determining

"the most appropriate services for" her "at this time. Specific issues are her

possible substance abuse, domestic violence and her alleged criminal

behavior." The Division does not appear to have asked Dr. Ferguson-Thomas

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about the advisability of virtual supervised visits between Madeleine and her

children.

Dr. Ferguson-Thomas conducted a clinical interview of Madeleine as

well as psychological testing. She reported Madeleine "was pleasant and

cooperative with the evaluation process and appeared to give her best efforts

on the tasks asked of her." The doctor noted Madeleine "was alert and

oriented to person, place and time," that "[h]er speech was clear, coherent, and

within normal limits for all aspects (pitch, tone and rate)," and "[h]er

comprehension and communication skills were consistent with her age, nearly

thirty-five, and education, a high school degree and some college. Her thought

processes were logical and goal-directed."

Madeleine reported in the clinical interview that she "drank heavily from

twenty-three to twenty-six years-old," that is from 2009 through 2011,

drinking four to five times per day several times per week when she incurred

her two DUIs and was subsequently imprisoned for eleven months for

violating probation. She was released on parole and completed three months

of intensive outpatient treatment for alcohol abuse. She claimed her drinking

problem had been under control for the past several years. Madeleine reported

that she had "started using marijuana at eighteen years old, but she never

smoked it consistently."

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Madeleine also reported a history of domestic violence with Wally and

with Izzy's father, with Wanda once witnessing Izzy's father shoving her.

Madeleine also reported Wanda witnessed abuse by Wally, but noted the child

was very young at the time. Madeleine reported starting domestic violence

counseling while incarcerated.

Dr. Ferguson-Thomas elected not to administer a cognitive test to

Madeleine as the clinical interview demonstrated her intellectual functioning

was within the average range. The doctor also did not administer a substance

abuse screening inventory as she deemed it "clear from history as well as self-

report that [Madeleine] has a Substance Use Disorder." The doctor did

administer the Personality Assessment Inventory (PAI), which she described as

"a 344-item instrument developed for use in the clinical assessment" of adults

and "designed to provide information relevant to clinical diagnosis, treatment

planning and screening for psychopathology," although "not designed to

provide a comprehensive assessment of the domains of normal personality."

Dr. Ferguson-Thomas reported that Madeleine's responses to the

inventory "resulted in a moderately elevated score on the infrequency scale

(71T) indicating some idiosyncratic responses" to the inventory item content.

The doctor also noted, however, that Madeleine "responded consistently and

attended to items appropriately and did not attempt to present a more negative

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24

or more positive impression" of herself. Dr. Ferguson-Thomas also noted

Madeleine's responses "indicated a moderate elevation" (T-Score 60 to 69) on

the "Alcohol problems" subscale "and the interpersonal scale of Warmth

indicating she is warm, sympathetic and supportive towards others." The

doctor noted Madeleine "did not receive clinically significant elevations on

any of the treatment consideration scales which identify potential

complications in treatment."

Dr. Ferguson-Thomas concluded Madeleine was a woman of average

intelligence with a substance use disorder she reported to be in full-remission,

who "does not seem to take responsibility for anything that has transpired, as

she speaks about the events that led to her incarceration as events that just

happened to her instead of as actions she decided to take." Although reporting

that Madeleine "does not appear to be suffering from a mental health disorder,

the doctor noted Madeleine's actions indicate problems with her insight and

judgment that need to be addressed."

"To that end," the doctor "recommended that [Madeleine] participate[] in

individual therapy," which "should also further explore and address her anxiety

symptoms and process [her] current situation." Finally, Dr. Ferguson-Thomas

concluded that "[a]lthough the PAI did not reveal a specific personality

disorder, [Madeleine's] previous behaviors along with her report of a history of

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25

interpersonal dysfunction and lack of impulse control indicate the possibility

of such a disorder," which "should be explored in therapy through continued

assessment."

In addition to her psychological evaluation, Madeleine completed her

court-ordered drug evaluation in detention, where she engaged in substance

abuse treatment and domestic violence classes on her own initiative with no

assistance from the Division. The Division never provided the therapy

recommended for Madeleine and continued to oppose any visitation, as did the

children's law guardian. Beginning in November 2020, the court's

multipurpose orders included the statement that Madeleine's "contact with

[the] minors is suspended pending investigation by the Division," although no

"investigation" appears to have ever occurred. Madeleine renewed her motion

for supervised video visitation in March 2021. In accord with the Division's

request, the judge agreed to hear her motion at a subsequent hearing. The

motion, however, was never heard or decided.

The Title 9 factfinding hearing and decision

Another major procedural lapse in the handling of this matter was the

Division's use of the events of March 25, 2020, when Madeleine took Wanda

from Wally's home and tried to take Izzy from Darcy's home, to prove its

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26

claim of abuse and neglect against Madeleine without amending its Title 9

complaint to include those events, which had occurred after the Division filed

its complaint for custody, care and supervision. The judge presiding over the

fact-finding hearing, the third judge assigned and new to the case, began the

proceeding by stating she saw nothing in the complaint or in any prior order

that would allow the Division to include the kidnapping allegations in its case.

Counsel for the Division explained the lawyers had discussed the issue

at length before one of the prior judges, that no one had demanded the

Division file an amended complaint, and "[i]t didn't seem necessary to amend

the complaint." Counsel argued that a Title 9 fact finding is a de novo hearing

in which the Division can "present all evidence that supports a Title 9" finding,

and that the facts surrounding Wanda's alleged kidnapping were "extremely

relevant to the circumstances and what [she] has experienced." In addition,

counsel claimed that pursuant to N.J.S.A. 9:6-8.50(b), the court could amend

the allegations to conform to the proofs at the factfinding hearing. Trial

counsel for Madeleine agreed that there had been a discussion on the record

during which the defense had contested the ability of the Division to include

the events giving rise to the kidnapping charges without amending the

complaint; "[a] ruling was made and here we are."

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When the judge attempted to clarify with the deputy that she was

representing "that [at] a prior court hearing that another judge . . . in relying on

[N.J.S.A.] 9:6-8.50(b) said that you could . . . present evidence about the

alleged kidnapping" without amending the complaint, the deputy responded

that she wasn't "sure if that formal finding was placed on the record under that

statute." She insisted, however, "that that was the intention and we would be

asking to conform at the end of the trial to prove to what's been presented.

And, that [the] Title 9 statute section allows us to do that without formally

amending the complaint." Following that colloquy, the judge permitted the

Division to present evidence on the alleged kidnapping based on the

representations of both counsel.11

11

We do not fault the trial judge for proceeding based on the representations

of the lawyers. They were, however, not accurate. There had been a

discussion on the record before another judge at a September 28, 2021 case

management conference about the issue. Counsel for Madeleine had objected

to matters that were not part of the Division's substantiation of the abuse and

neglect finding against her, and specifically letters Madeleine had written to

the criminal presiding judge, coming in at the factfinding hearing. Counsel for

the Division countered with "a totality of the circumstances argument,"

contending that "all of the information is relevant" and that "the court needs to

hear all of the information that the Division has indicating that it's Title 9

finding is appropriate."

The judge did not resolve the question, instead stating he would deal

with the defense objections and "all the discovery and evidentiary issues" at

the next case management conference. Although the issue was again discussed

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The Division presented three witnesses at the factfinding hearing, which

took place over three days in January and February of 2022: the "clinician"

Wally had arranged for Wanda to meet with, the detective that took the two

statements from Wanda, and the caseworker. The clinician, Rachel E.

Borowiec, MS, LPC, provided a letter to Wally dated March 10, 2021,

confirming that Wanda had "been receiving services with A Better Tomorrow

Counseling Services since February 8, 2021," and had "attended 4 total

sessions." The letter, which was marked in evidence, stated that Wanda and

Wally have been "actively engaged in services" and although Wanda, [then

aged six] was "in the early stages of therapy and has just begun to establish

rapport and begin to explore her thoughts and feelings related to early

childhood trauma, . . . [she] has expressed fears related to having any

at the next case management conference in November, the judge never heard

argument or decided the issue. We note our disagreement with counsel for the

Division that N.J.S.A. 9:6-8.50(b) was designed to permit the Division to

proceed on allegations known to it months and years in advance without

amendment of the Title 9 complaint. The rule to allow a motion at trial to

amend the pleadings to conform to the proofs was not designed to permit a

plaintiff to proceed on unpleaded claims. See Sattelberger v. Telep, 14 N.J.

353, 363 (1954) (explaining that "[p]leading in civil actions is the means of

raising issues for adjudication; and where, as here, there is not even the

semblance of a cause of action pleaded against a particular defendant, there is

no issue for determination and no basis for judgment against him, unless the

parties waive formal pleading of operative facts and by consent submit an

issue to the court for determination").

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29

interaction with her biological mother, whom [Wanda] has identified as a

source of her distress and emotional dysregulation, at this time."

At the factfinding hearing, Borowiec testified she was neither a

psychologist nor a psychiatrist but a licensed professional counselor through

the New Jersey State Marriage and Family Counselors. She explained that

Wally initiated the contact with "A Better Tomorrow" and she'd never spoken

with anyone from the Division. She had, however, spoken to the deputy in

advance of her testimony. She had never seen the CARES report or the audio

or videotapes of Wanda. She testified she could not make a psychological

diagnosis and was not appearing as an expert witness.

Borowiec testified that she learned from Wally that Wanda was "having

some mental and emotional health concerns related to an incident regarding

her mother," which Wally had described as a kidnapping, and Wanda "referred

to as Mommy coming and taking me in the middle of the night," as well as

Wanda's "own thoughts and feelings regarding her mother's incarceration" and

Wanda's "kind of feelings of guilt related to it." Borowiec testified Wanda

exhibited "emotional dysregulation" as it related to her mother, which

Borowiec characterized as "[p]roblems with focus, attention, and

concentration, nervousness, difficulty staying on task."

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30

Borowiec also testified that Wanda had also "indicate[d] that she had

made [sexual abuse] allegations [regarding her father] and she felt that her

mother had informed her to make those allegations or [Wanda] would not be

able to have contact with her mother." According to Borowiec, Wanda

indicated that "my mother told me that she would go away for a long time if I

didn't say that against Daddy." Borowiec claimed that through the therapy

Wanda "has been able to again talk about her mother" and while "certainly

indicat[ing] you know sadness or different emotions related to her mother's

incarceration, . . . [she] is also able to talk about that without showing

emotional dysregulation."

The Division also presented the detective who twice interviewed Wanda,

who testified about those interviews and the investigation she and her office

undertook into this matter. The detective described Wanda's first statement

that her father had touched her inappropriately and the investigation that

followed. The detective testified the video Madeleine had previously made of

Wanda describing how Wally was touching her was not the same as the

touching Wanda described to the detective, and that after interviewing Sean

and presenting the evidence to her section chief, the decision was made not to

pursue the matter.

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31

The detective's second interview of Wanda was played for the court

during the detective's direct examination. The detective also testified to her

interview of Madeleine that followed directly after Wanda's second interview.

The detective described Madeleine's upset when the detective told her Wanda

had recanted the allegations against her father, claiming Wally had "put that

information in her head." The detective testified she remembered "saying,

well then I could say the same thing to you. Because when you brought her in

the first time, she said the opposite." The detective testified that Madeleine

"believed that this happened, and that it was because [Wally] brought her in

that [Wanda] said that."

On cross-examination, the detective conceded she'd never interviewed

Wally because he wouldn't speak with her, nor the persons Madeleine had

identified who'd also heard Wanda's allegations against Wally. The detective

testified that after Wanda's two interviews, her office did not pursue charges

against Wally.

The Division's last witness was the caseworker. He testified about his

interactions with the family in 2019 and 2020, and particularly the day in late

February 2020 when Madeleine refused to allow Wanda to go with Wally and

the worker heard Wanda cry and say to her mother that she "ruins everything,"

and the steps he took afterward to have Wanda again interviewed by the

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32

prosecutor's office. He recounted sitting with Wanda after her second

interview while the detectives were interviewing Madeleine. The caseworker

testified that Wanda was "excited and hyper," and "it was kind of all over the

place. But she . . . said she told the truth, and I commended her."

Following the caseworker's testimony, the Division rested subject to the

admission of the letters Madeleine had allegedly written to the criminal judge

in which she admitted taking the children, explaining her reasons for doing so,

as to which there had been no testimony. Counsel for Madeleine objected,

asserting the Division had failed to lay any foundation for their admission.

The deputy asserted that defense counsel "previously advised he had no

objection for them, so I thought" when the judge broke in to say, "That's what I

thought. You . . . didn't object before. So [the letters] are in."12

Madeleine testified in her own behalf about the allegations Wanda had

made about Wally and her efforts to get the Division and the prosecutor's

office to believe her daughter. She explained how she recorded the child's

12

The deputy was apparently referring to the earlier discussion on the record

about the Division including evidence relating to the alleged kidnapping

without having amended its complaint. Our review of the record reveals no

prior discussion about the admission of Madeleine's letters to the criminal

judge. Because, the judge did not rely on the letters to support her finding of

abuse and neglect, and the Division never established in any event the

emotional harm it alleges the children suffered from Madeleine's actions, we

do not consider the issue further.

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33

statements on her phone and sent them to her mother and her aunt on Facebook

Messenger. Madeleine also testified that she'd told the caseworker as well as

the prosecutor's office that her roommate and her aunt had both heard Wanda

say that Wally had touched her inappropriately. According to Madeleine,

Wanda had said the same thing to the doctor who examined her at CARES in

2019, whose report was admitted for the limited purpose of the child's

statements, and only recanted her allegations after she began spending time

with Wally again in February 2020.

After a colloquy with the judge and a discussion between defense

counsel and Madeleine, defense counsel advised the court that he would not be

asking Madeleine any questions about the night she took Wanda from Wally's

house, and the court ruled cross-examination would be limited to the scope of

the direct. Madeleine ended her testimony by describing the clothes and toys

she claimed Wally was lavishing on Wanda when she resumed parenting time

with him in February 2020, and how the therapist Madeleine had taken Wanda

to in 2019 explained that the Division's failure to substantiate the allegations

against Wally meant the therapist could not provide Wanda the evidence-based

therapy that CARES had recommended to assess and make treatment

recommendations about the concern for the child having been sexually abused

by her father.

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On cross-examination, the deputy homed in on the video Madeleine had

taken of Wanda and her posting it on the internet. Madeleine denied posting it

intentionally on the internet but admitted she'd sent it via Facebook Messenger

to her family. She acknowledged that the caseworker had asked whether she'd

posted the video on the internet, telling him "that if it went up that . . . it was a

mistake and I took it right down."

Madeleine's former roommate and her aunt both testified to statements

they'd heard Wanda make accusing Wally of touching her inappropriately.

Madeleine's roommate also testified about the child's behavioral changes

during the time she had parenting time with Wally.

In his closing argument, defense counsel contended the picture that

emerged from the factfinding hearing was that "the Prosecutor was depending

on the Division to investigate this thoroughly to protect [Wanda]," and "[t]he

Division was depending on the Prosecutor to investigate thoroughly and

protect [Wanda]," but neither agency actually did so. Counsel maintained that

neither the Division nor the Prosecutor's Office had ever conducted any real

investigation into whether Wally had abused Wanda. Counsel insisted the

record did not provide an answer to that question, and without it there could be

no answer as to whether Madeleine had coached Wanda to make a false report.

He argued that all the record provided were the various videos of Wanda's

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35

initial disclosure in July 2019 and her alleged recantation in March 2020, "and

really no way to choose between what version of the facts is correct."

Defense counsel argued that Wally's renewed access to Wanda beginning

in February made the timing of the child's claims that her mother had coached

her to make false allegations against her father suspicious. Counsel also

focused on Wanda's second statement to the detective in which the child not

only reported that her father told Wanda her mother was "mean and crazy," but

also that her father explained to Wanda that what her mother was telling her to

say, never happened — quoting the child's statement to the detective that

"Daddy says 'That did not happen!' and then I understand it didn't happen."

Counsel noted the detective failed to follow up on the child's statements about

what her father had told her, and that neither her office nor the Division

seemed to take any notice that Wally had obviously influenced Wanda's

second statement to the detective.

Counsel for the Division and the law guardian focused on the threat of

harm to Wanda. The law guardian focused on Madeleine having "repeatedly

caused [Wanda] to undergo sexual abuse evaluations and interrogations despite

the allegations not being true." The law guardian also focused on the

detective's second interview of Wanda, arguing the child had been "clear that

the allegations of sexual abuse were not true," and that Wanda "was candid in

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36

saying that 'Mommy says daddy touches your crotch, but it did not happen.'"

The deputy touched on those same points, adding Borowiec's observations of

the emotional difficulties Wanda was experiencing when she entered therapy

and Borowiec's opinion "that [Wanda's] source of emotional dysregulation

actually stems from [Madeleine]."

In response to defense counsel's argument that no real investigation was

undertaken by either the prosecutor or the Division, the deputy argued that

what was "being missed is that information that's being assessed by the

Prosecutor's office and the Division it's not just the information being provided

by [Madeleine], it's got information being provided by [Wanda], and [the

agencies'] observations, having extensive experience in this field and dealing

with other investigations of this nature." The deputy also relied on

Madeleine's letters to the criminal presiding judge admitting she took Wanda

from Wally's house and used a crowbar from his truck to break a window in

her sister's house in an effort to get Izzy. The deputy contended the Division

had not only established that Madeleine put Wanda at risk of substantial

physical harm by taking her from Wally's in the middle of the night but also

that Wanda "still goes to counseling to this day to deal with some of the

issues" arising from that event.

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After hearing the testimony and the arguments of counsel, the judge

found Madeleine "coached minor [Wanda] to make sexual abuse allegations on

her father, [Wally]" qualifying her as an abused and neglected child pursuant

to N.J.S.A. 9:6-8.21(c)(4)(b). After reviewing the law and summarizing the

testimony of the witnesses, all of whom, with the exception of Madeleine, the

judge found credible, the judge focused on Madeleine's testimony, Wanda's

statements, and Borowiec's opinion in explaining her reasons for finding the

Division had carried its burden.

Specifically, the judge found Madeleine's "judgment is so clouded that

she is not a credible witness." The judge found Madeleine's testimony was

"skewed to benefit herself; she wants to be believed; she wants people to

believe that this happened to [Wanda]." The judge specifically found

Madeleine's judgment was "clouded in the steps she took when [Wanda]

disclosed," focusing particularly on her decision to post "the videos on social

media on — on whatever shared — shared app," which the judge found "odd

. . . and show[ed] poor judgment."

The judge was convinced Madeleine "believes her child, that this

happened to her." The judge further stated "and it may have happened. I'm

not here to say whether or not the child was sexually assaulted or not." She

concluded, however, "that everything that [Madeleine] has done is in her quest

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38

to be heard and in hav[ing] her child be heard, and it has clouded her judgment

and in my opinion thus affected her credibility."

The judge found Wanda was an abused and neglected child under the

last clause of N.J.S.A. 9:6-8.21(c)(4)(b) defining an abused or neglected child

as one

whose physical, mental, or emotional condition has

been impaired or is in imminent danger of becoming

impaired as the result of the failure of his parent . . . to

exercise a minimum degree of care . . . (b) in

providing the child with proper supervision or

guardianship, by unreasonably inflicting or allowing

to be inflicted harm, or substantial risk thereof,

including the infliction of excessive corporal

punishment; or by any other acts of a similarly serious

nature requiring the aid of the court.

[Emphasis added.]

The judge concluded that Madeleine's actions in having Wanda "say she

was sexually abused when . . . it is clear that the child told the detective . . .

that that was not true and that her mother made her say that . . . is . . . where

the proof lies." The judge further found based on the testimony of the

counselor "Borowiec, where she testified about the emotional dysregulation

that the child has experienced . . . that that is the emotional harm that this child

has experienced because of these allegations that she first said, and then she

recanted on those."

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The judge found Wanda "was most consistent" to the detective, to the

caseworker, and to "Borowiec that her mother made her say things, and that

the child is feeling the effects of that because of the emotional dysregulation

she has experienced, also caused by the kidnapping, as testified to by . . .

Borowiec." Finally, the judge concluded "that [Wanda's] recantation is the

more credible of the statements by the child. And also, because clearly all . . .

that [Wanda] has been through with her mom has caused her to be emotionally

distressed."

The controlling law and our analysis of the court's abuse and neglect finding

Our standard of review is well established. "To the extent" the issues on

appeal "concern a trial court's findings of fact or credibility determinations, we

accord substantial deference and defer to the factual findings of the Family

Part if they are sustained by 'adequate, substantial, and credible evidence' in

the record." N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J. Super.

513, 521 (App. Div. 2017) (quoting N.J. Div. of Youth & Fam. Servs. v. R.G.,

217 N.J. 527, 552 (2014)). No similar deference, however, is accorded the

judge's legal conclusions, which we review de novo. N.J. Div. of Child Prot.

& Permanency v. A.B., 231 N.J. 354, 369 (2017).

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40

We have no quarrel with the judge's findings of fact or her

determinations of the credibility of the witnesses who testified. Two fatal

errors of law, however, require reversal of the abuse and neglect finding

against Madeleine: first, without hearing Wanda testify, and with no evidence

of corroboration offered by the Division, the judge found Wanda's "recantation

is the more credible of the statements by the child"; and second, the judge

concluded without expert testimony that the "emotional dysregulation"

Borowiec testified the child had suffered was "caused" by "all . . . that

[Wanda] has been through with her Mom," both the coaching and the

kidnapping. Neither of those findings can stand under long settled case law

and without them neither can the judgment.

The Division bears the burden of proof at a factfinding hearing to

establish present or future harm to a child by a preponderance of the

"competent, material and relevant" evidence. N.J.S.A. 9:6-8.46(b); N.J. Div.

of Child Prot. & Permanency v. A.D., 455 N.J. Super. 144, 155-56 (App. Div.

2018). It is axiomatic that a court may not make a determination about a

witness's credibility without hearing the witness testify. See N.J. Div. of

Youth & Fam. Servs. v. L.A., 357 N.J. Super. 155, 168-169 (App. Div. 2003)

(noting a trial judge's finding that a child was a credible witness without

hearing from her was "pure speculation"). Although Title 9 contains a specific

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41

hearsay exception allowing prior out-of-court "statements made by the child

relating to any allegations of abuse or neglect" to be admitted at the factfinding

hearing, the statute is unequivocal in providing "that no such statement, if

uncorroborated, shall be sufficient to make a fact finding of abuse or neglect. "

N.J.S.A. 9:6-8.46(a)(4); N.J. Div. of Child Prot. & Permanency v. T.U.B., 450

N.J. Super. 210, 228-34 (App. Div. 2017) (tracing the history of Title 9's

hearsay exception).

Notwithstanding the judge's acknowledgement that the sexual abuse

Madeleine contends Wanda suffered "may have happened," and that she was

"not here to say whether or not the child was sexually assaulted," the judge

found Madeleine had coached Wanda to make false allegations of sexual abuse

against her father based only on Wanda's uncorroborated, out-of-court

statements that the allegations were "not true and that her mother made her say

that."

The judge found Wanda's "recantation is the more credible of the

statements by the child," based on her view that Wanda "was most consistent"

to the detective, to the caseworker, and to "Borowiec that her mother made her

say things" against her father that were untrue. The case law, however, is clear

that consistency is no substitute for the statutorily required corroboration of a

child's out-of-court statement. See A.D., 455 N.J. Super. at 157 ("the mere

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repetition and consistency of [a child's out-of-court] statements are insufficient

to support a finding of corroboration under N.J.S.A. 9:6-8.46(a)(4)"); N.B.,

452 N.J. Super. at 523 (noting "consistency alone does not constitute

corroboration").

Because an abuse or neglect proceeding implicates a parent's substantial

rights, "it is of great importance that the evidence upon which judgment is

based be as reliable as the circumstances permit." In re Cope, 106 N.J. Super.

336, 343 (App. Div. 1969). "By its nature, corroborative evidence 'need only

provide support for the out-of-court statements.'" L.A., 357 N.J. Super. at 166

(quoting N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 436

(App.Div.2002)). But "[s]ome direct or circumstantial evidence beyond the

child's statement itself is required." N.B., 452 N.J. Super. at 522.

The Division, however, did not offer anything to corroborate Wanda's

statements that Madeleine coached her to falsely accuse her father.

Corroboration is nowhere mentioned in the trial judge's factfinding decision

and neither the Division nor the law guardian addresses it in their briefs to this

court.13 Because Wanda's out-of-court statements that her mother coached her

13

At oral argument, the Division contended Wanda's crying when Madeleine

wouldn't let her go with Wally and her statement that Madeleine "ruin[s]

everything" and that she "knew the truth" corroborated Wanda's statements

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43

to make sexual abuse allegations against her father that were not true are

without corroboration in the record, they cannot support an abuse or neglect

finding against Madeleine. N.J.S.A. 9:6-8.46(a)(4).

To the extent the trial judge relied on Borowiec's testimony to find the

"emotional dysregulation" Wanda was experiencing was as a result of or

caused by Madeleine coaching her to make false allegations against Wally, or

"the kidnapping," the judge erred. Although we have acknowledged that

"psychological evidence of emotional effects . . . are routinely admitted in

Title Nine cases," N.J. Div. of Child Prot. & Permanency v. I.B., 441 N.J.

Super. 585, 591 (App. Div. 2015), "as substantive evidence" that may

indirectly corroborate a child's out-of-court statements, Z.P.R., 351 N.J. Super.

at 439, or establish a child has suffered emotional harm at the hands of a

parent, N.J. Div. of Youth & Fam. Servs. v. S.S., 372 N.J. Super. 13, 22-23

(App. Div. 2004); that was not the testimony Borowiec offered here.

that Madeleine coached her to lie. A child cannot corroborate her own

statements with additional statements. Repetition does not equate to

corroboration. See A.D., 455 N.J. Super. at 157. The law guardian contended

no corroboration was necessary for Wanda's recantation because "that's not

accusing anyone of anything." Besides not being briefed, the argument is

obviously without merit given the Division's allegations against Madeleine in

this matter. It requires no discussion here. See R. 2:11-3(e)(1)(E).

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Borowiec is not a professional consultant of the Division retained to

conduct a psychosocial evaluation of Wanda. Borowiec is not a psychologist.

She could not offer the sort of "psychological evidence of emotional effects"

routinely admitted in these cases, because she is not an expert and is

unqualified to do so. Borowiec is a marriage and family counselor retained by

Wally nearly a year after the events that gave rise to this case.

The court admitted a letter from Borowiec from March 2021, stating that

Wanda then aged six, was "begin[ning] to explore her thoughts and feelings

related to early childhood trauma, but has expressed fears related to having any

interaction with her biological mother, whom [Wanda] has identified as a

source of her distress and emotional dysregulation, at this time." At the

factfinding hearing, Borowiec testified that Wanda began "receiving services

due to having some mental and emotional health concerns," which her father

related to an "incident of kidnapping" by Wanda's mother. According to

Borowiec, Wanda told her that her "Mommy came and took her in the middle

of the night," and she reported "having nightmares following that incident and

indicating being nervous to leave her room or go anywhere without confirming

her father's whereabouts."

We have recognized that a psychologist's ability to link a "child's

symptoms, and especially her nightmares," to alleged abuse as opposed to

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45

some other cause is "an important and legitimate area of inquiry" for a judge to

explore with a testifying psychologist, as it will often be critical to determining

whether the nightmares could serve to corroborate an allegation of abuse. I.B.,

441 N.J. Super. at 597. It is obviously not an appropriate topic for lay opinion,

much less the hearsay statement of a six-year-old who has purportedly

identified her mother as the "source of her distress and emotional

dysregulation." See N.B., 452 N.J. Super. at 522 (explaining that even if a

child's hearsay statements to a psychologist could be considered reliable,

"[o]ur courts have rejected the concept that mental health professionals may

opine about the trustworthiness of a child's hearsay statements" (quoting State

v. J.Q., 130 N.J. 554, 582-83 (1992))).14

14

We do not think a finding about even the reliability of the child's statements

to Borowiec, or anyone else, could be made here without considering whether

Wanda was subjected to "undue suggestiveness" by "a lack of control for

outside influences on the child's statements, such as previous

conversations with parents" or others. State v. Michaels, 136 N.J. 299, 309

(1994). As already noted, Wanda told the detective during her second

interview that her father had said her mother was "mean and crazy," and that

what her mother was telling her to say never happened; "Daddy says 'That did

not happen!' and then I understand it didn't happen." Although the detective

did not take note of those statements, the Division did, characterizing the latter

in its brief as Wally "help[ing] [Wanda] understand the allegation her mother

had made was not true." In a similar vein, the trial judge mentioned in her

opinion from the bench that following that second interview, the caseworker

commended Wanda "for finally . . . telling the truth to [the] Detective . . . that

the allegations of sexual assault really were not true and that the mother had

prompted her to say that."

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46

Because Borowiec did not testify as an expert and was unqualified to

render an opinion linking Wanda's "emotional dysregulation" to Madeleine's

alleged coaching of Wanda to make false allegations against Wally or to taking

her from Wally's home in the middle of the night, the judge erred in relying on

Borowiec's testimony to corroborate Wanda's statements that Madeleine

coached her to falsely accuse her father or to find she suffered any emotional

harm from Madeleine's conduct. As the Division failed to offer any

corroboration of Wanda's statements that her mother coached her to falsely

accuse her father or any proof that the child has suffered emotional harm, the

trial court's finding that Madeleine abused and neglected Wanda is not

supported by substantial credible evidence in the record and must be reversed.

The Guardianship Action and the judge's decision to terminate parental rights

In the last case conference in the abuse and neglect matter in early

March 2022, following the filing of the guardianship complaint, Madeleine, on

her own behalf, again raised the failure of the Division to provide her

visitation with her children. She told the judge that the initial order to show

cause in the case from March 2020, stated she was allowed "[supervised]

visitation with my children. But then it also said at the end that I could not in

the same order."

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47

Madeleine claimed after that, the orders said she couldn't have visitation

with her children "pending a Division investigation." According to Madeleine,

then "[t]hey said if I took a psych eval I could have visits. And I took the eval

and I did not get the Zoom visits." She went on to say that the language in the

orders changed again after a Division supervisor visited her in July 2021, and

told her "it's not us keeping you from your kids it's the prosecutor." Madeleine

claimed after that encounter, the FN orders included language that her

visitation was suspended pending the prosecutor's investigation, although no

proof of any ongoing investigation by the prosecutor's office had been

produced by the Division.

A review of the orders and the transcripts of the hearings in the abuse

and neglect matter at which they were entered largely confirms those claims.

The order to show cause entered March 4, 2020, states both that Madeleine is

allowed visitation on a twice weekly, two-hour basis, supervised by the

Division or a Division approved supervisor, and also that she "shall have no

contact with the minor children at this time." At the hearing for the

application of the order to show cause, the Division asked that Madeleine have

no contact with her children, given the nature of the allegations and Wanda

having just starting therapy, pending the receipt of a recommendation from

Wanda's treating therapist, which the Division represented it intended to

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48

request. As already noted, there is nothing in the Division's case record in

evidence suggesting the Division pursued any such recommendation.

At the case management conference on June 9, 2020, Madeleine asked

about the no contact order preventing her from seeing her children. As the

judge started to explain that "it's probably not a no contact, there's probably

restrictions. You probably have parenting time and visitations permitted," the

deputy broke in to say the Division had requested the no contact provision at

the inception of the case, hoping "to set up a psychological evaluation before

we proceeded with that contact." The deputy was doubtful she could arrange a

psychological evaluation for Madeleine at the jail in light of the COVID-19

restrictions, but added that were Madeleine released, "contact might be video

and that might be something the Division can reassess upon her release."

The judge denied Madeleine's request for visitation, ruling the no contact

provision would remain until Madeleine was released, at which time her

counsel could make an application "to reassess any contact." Wally objected

to Madeleine being reassessed on release. The judge explained "the law

require[d]" him to "explore[] [a] form of parenting time" because of the

"presumption that the biological parents have contact with their children even

under very challenging situations . . . and it's the law based upon the fact that

the children have a right to have contact with their biological parent." The

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49

June 9, 2020 order continued to provide that Madeleine's "visitation is

suspended until further ordered."

At the next case management conference on August 21, 2020, counsel

for Madeleine advocated the Division start virtual supervised visitation

between her and her children. The Division opposed, with the deputy stating

that although she "normally . . . would agree . . . about the importance of

visitation," the substantiated false allegations against Wally resulting in the

removal and Madeleine's subsequent detention on kidnapping charges was "a

unique situation." The deputy contended "under those circumstances, we have

to really be careful, when we start these visitations again. There may [be a]

need [for] the involvement of a professional therapist to be involved in those

visits." The deputy noted the Division had a psychological evaluation for

Madeleine set up, which would enable the Division "to get some input." The

judge again denied Madeleine's request for supervised visitation, allowing her

to "bring the issue back" on short notice. The order from the August 21 case

management conference stated that Madeleine "is not permitted to have virtual

visits with the minor children at this time."

Madeleine could not participate in the next case management conference

on November 10, 2020, although her counsel was present. The Division

acknowledged Madeleine had completed both her psychological evaluation and

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50

a substance abuse evaluation in detention, that substance abuse and therapy

had been recommended and that she would "be able to receive some of those

[services] in the jail." The issue of visitation was not discussed.

Notwithstanding the deputy's representations that Madeleine had completed a

psychological evaluation, the order entered November 10 continued to state

that Madeleine "shall complete a psychological evaluation," and that

Madeleine's contact with Wanda and Izzy "is suspended pending investigation

by the Division."

The next case management conference was conducted on March 1, 2021.

Madeleine had new counsel who advocated for video visitation between

Madeleine and both Wanda and Izzy. The Division, the law guardian and

Wally all opposed, arguing that Wanda had just started therapy, for the second

time, was beginning to explore her feelings about Madeleine taking her from

Wally's home in the middle of the night, and that the Division needed "to have

a professional recommendation before [it] even [did] any type of video

visitation." Both the Division and the law guardian also opposed any visitation

between Madeleine and Izzy pending the Division's ability "to make a proper

assessment of that as well."

Although agreeing with Madeleine's lawyer that Madeleine had "a right

to have some visitation and some contact with her children, notwithstanding

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51

her current situation," the judge ruled that "[t]he current visitation order will

stand," and that he would address it at the next conference. The March 1, 2021

order provided that Madeleine would attend substance abuse treatment, which

the deputy previously represented should be available through the jail, and that

Madeleine would also attend individual counseling and a domestic violence

assessment, both as arranged by the Division. The order also provided that

Madeleine's contact with Wanda and Izzy, including visual visitation, is

suspended "pending investigation by the Division."

As already noted, visitation was not addressed at the next conference on

April 12, 2021. Instead, the deputy reported that Madeleine had completed her

psychological evaluation in detention, not mentioning the evaluation had

occurred seven months before, and that the Division was "waiting on her

release to set up the recommended services," although there was no indication

that Madeleine's release was imminent. The April 12 order stated in

accordance with the deputy's representation that Madeleine "completed a

psychological while incarcerated. Division to set up recommended services

upon her release from jail," and that her contact with the children was

"suspended including virtual visitation pending investigation by the Division."

The court was not able to make contact with Madeleine at the jail for the

permanency hearing on May 24, 2021. The issue of visitation was not raised.

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The deputy acknowledged that Madeleine, in addition to completing her

psychological evaluation, had also completed her substance abuse assessment

and would be able to complete her recommended level III treatment in

detention. The deputy, however, noted the Division's psychologist had also

recommended therapy and domestic violence services that the deputy, without

explanation, represented would need to be completed on Madeleine's release.

Although the deputy was seeking an extension in the permanency plan

for Izzy because the fact-finding hearing in the abuse and neglect case had not

been held, she represented that the Division anticipated "this case is going to

move towards termination of parental rights followed by adoption" for Izzy

and thus was looking to establish a date for the factfinding hearing. The law

guardian echoed the deputy's concerns, stating she was aware that

procedurally, the court had "to move forward with the fact-finding before we

can get to the guardianship stage" for Izzy.15 She noted, however that Izzy was

15

But see N.J.S.A. 30:4C-15(c) (permitting the filing of a guardianship

complaint whenever "it appears that the best interests of any child under the

care or custody of the division require that he be placed under guardianship");

N.J. Div. of Youth & Fam. Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div.

2009) (holding "except for a guardianship action under N.J.S.A. 30:4C-15(a)

based on a finding of abuse or neglect under Title 9, [DCPP] may bring an

action for the termination of parental rights under any of the other subsections

of N.J.S.A. 30:4C-15 without first bringing an action under Title 9").

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53

"now two years old, and she really is bonding with her aunt and uncle" and

"we want to make sure we can give her some sense of permanency and

stability."

The May 24 permanency order noted that services for Madeleine

remained outstanding, specifically that she was to comply with substance

abuse treatment while in detention. The order also included the court's

approval of the three-month extension of the permanency plan for Izzy, with a

goal of reunification, notwithstanding the comments of the deputy and the law

guardian, and that Madeleine's contact with Izzy remained suspended pending

further order of the court.

As Madeleine advised the judge at the previous hearing in the abuse and

neglect case, the language of the order regarding her visitation changed in

August 2021, after Madeleine had received her first visit from a Division

caseworker the prior month. At the permanency hearing on August 20, 2021,

before a new judge, Madeleine advised the court that although the orders had

for months provided that visitation remained "suspended pending a Division

investigation," the caseworker had explained during her July visit that "it was

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54

not the Division that was keeping the no contact order on me; that it was the

Prosecutor's Office."16

The deputy confirmed to the court that the worker's statement was

correct, without reference to any criminal court order, and the August 20, 2021

case management order recited that Madeleine's "contact with minors is

suspended including virtual visitation pending investigation by the Camden

County Prosecutor's Office." That language continued to be included in every

case management and disposition order through the factfinding hearing .

In the last hearing in the abuse and neglect matter held on March 2,

2022, Madeleine, after setting out that history, argued that even if it were true

that the prosecutor had an open investigation, "it would still be . . . deferred to

16

The caseworker's notes of the meeting with her supervisor and Madeleine at

the jail state that in response to Madeleine's question about visitation, the

caseworker "explained there is a priority 4 in place from the Prosecutor" since

the kidnapping. When Madeleine asked why she was "not allowed to see

[Wanda and Izzy] after she came out of jail on 3/4/2020," the "[s]upervisor

explained it was due to the charges of false reporting and child endangerment."

In response to Madeleine's question of why Izzy was included in the no contact

order at that time, the "[s]upervisor explained child endangerment would apply

to all children in her care." As already noted, the pretrial release order in the

Criminal Part entered March 5, 2020, provided only that Madeleine "[m]ust

abide by all DCPP and Family court orders and recommendations. In addition,

defendant is to have no contact with the alleged victim [presumably meaning

Wanda] unless approved by DCPP or Family Court." The only other order

from the Criminal Part in the record on appeal is the subsequent detention

order, which is silent as to visitation.

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55

the Family Part to make [the] determination on whether or not I could visit

with my children." 17 After hearing from Madeleine, the judge noted she had

not reviewed the criminal file but would have to believe that "technically the

investigation is completed," and deleted the language that "contact with minors

is suspended including virtual visitation pending investigation by the Camden

County Prosecutor's Office" from the first order entered in the guardianship

proceeding. The March 2, 2022 guardianship order provided only that

Madeleine's visitation was "temporarily suspended pending further order of the

court."

At the first hearing in the guardianship matter the following month, a

different deputy representing the Division told a different judge that there were

no services being provided to Izzy, as an early intervention assessment found

her "developmentally on target." The deputy explained there was no visitation

in place as there was a final restraining order preventing contact between

Madeleine and Izzy.18 The new deputy further represented, directly

17

Madeleine was generally correct. See Administrative Directive #1-10 and

Administrative Directive #1-10 Supplement; Fall & Romanowski, Current N.J.

Family Law, Child Custody, Protection and Support § 32:7-2 (2024)

"Situations Involving No-Contact Orders."

18

That, of course, was not true. The deputy was referring to, and later quoted

from, the temporary restraining order entered on March 25, 2020. The final

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56

contradicting what the prior deputy had told the prior judge, that although

there were criminal charges pending, it was the deputy's "understanding there

aren't any restrictions [on Madeleine's visitation] in the [criminal] court order

at this time," adding "but that might be changing in the future."19

The deputy also advised the court the Division did not intend to order a

psychological evaluation for Izzy, and "[g]iven the circumstances in the case,"

the Division did not "intend to get a bonding evaluation" as there "has not been

visitation for two years now, and [Madeleine] remains incarcerated." The law

guardian echoed the deputy's request that the final restraining order prohibiting

visitation remain in place and likewise advised she would not be seeking any

evaluations on Izzy's behalf.

Madeleine's new counsel argued that Madeleine had rights to visitation

that were being violated; that he wished to know what the deputy was referring

to with regard to a change in the criminal court order to limit contact, and that

restraining order entered on May 20, 2020, specifically permitted visitation

between Madeleine and Izzy as "arranged via DCPP."

19

The genesis of the deputy's comment appears to have been a March 9, 2022

discussion between the caseworker and Darcy. The caseworker's notes from

that conversation state the two "discussed that the contact person at the

Prosecutor's office is R[]M[] who is handling the request for a court order

reflecting what is in the [restraining order], as visitation or child contact was

not addressed in the criminal court orders and [the caseworker] [had] requested

this be clarified."

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the Camden County Correctional Facility could provide the video visitation to

which Madeleine was entitled.

The judge agreed with Madeleine's counsel, stating she saw no reason

why video visitation should not occur, reminding the Division that it was its

burden by clear and convincing evidence to establish its efforts to provide

services and that termination was in Izzy's best interest. The law guardian

noted Darcy had a restraining order against Madeleine and thus could not

facilitate visitation and argued that should visitation occur that it should be

therapeutically supervised followed by play therapy.

The deputy advised she "didn't anticipate [visitation] being raised" after

her "extensive conversations with [the Division] regarding why there was no

visitation throughout the FN," again noting "that restraining order that was

issued very shortly [after] the . . . removal occurred and has been in place." In

her very next sentence, however, the deputy stated that "certainly, the Division

is able to set up the virtual visitation. We know about that app now that

Camden County uses, and — and we can set that up should that be your

honor's order." The judge entered an order the same day, April 5, 2022,

directing the Division to set up regular virtual visitation sessions of

approximately fifteen minutes between Madeleine and Izzy.

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58

Those sessions took some time to set up, and, as noted, Madeleine was

only afforded four such visits of approximately ten minutes each prior to the

bonding evaluation. Izzy, who was then three-years-old, did not recognize

Madeleine, from whom she'd been separated when she was a little over ten

months old. Izzy referred to Madeleine as "the ballerina lady" or "the lady,"

and while reporting to her play therapist, Wendy Preihs, that "the ballerina

lady is nice," Izzy didn't know who Madeleine was or her relation to "the

lady."

Darcy, Madeleine's sister and Izzy's resource parent, opposed even

virtual visits between Madeleine and Izzy. After the first visit, Preihs' notes in

evidence reflect that Darcy had reported that Izzy was engaging in self-

injurious behavior, and that Izzy's law guardian told Darcy "that if [Preihs]

supports that visitation between [Izzy] and her mother be suspended; and

writes a letter to this end; such documentation can be helpful in court." Preihs'

notes state she advised Darcy that only the Division or the deputy could

request her clinical opinion regarding visitation and she did "not put

unsolicited recommendations in writing." When the caseworker solicited

Preihs' recommendation as to ongoing visitation two weeks later, Preihs

recommended that visitation continue as before under therapeutic supervision.

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The Division's case notes in evidence refer several times to Darcy's

efforts to cancel or interfere in Madeleine's visits with Izzy, resulting in the

Division moving them from Darcy's home to the Division office. Darcy was

particularly disturbed by Madeleine referring to herself to Izzy as "Mom." It

was shortly after these visits started and Darcy was advised by the prosecutor 's

office that Madeleine might not be incarcerated for decades, as Darcy had

apparently been led to believe, that she wrote to the Division she was

unwilling to adopt Izzy based on her fear of Madeleine. The Division removed

Izzy from Darcy's home on August 1, 2022, and placed her with Wally and

Wanda for potential adoption.

The Division had Madeleine evaluated by Alan J. Lee, Psy.D. in early

August 2022. Dr. Lee authored a report in which he stated "[t]he purpose of

the evaluation was to describe [Madeleine's] psychological, emotional, and

other areas of functioning related to issues of parenting and caretaking

capacity for a minor child, and to make relevant treatment and/or management

recommendations." In addition to collateral information obtained from the

Division's caseworkers, Dr. Lee engaged in a clinical interview and testing,

including the Rorschach Inkblot Method and the same Personality Assessment

Inventory (PAI) administered to Madeleine by Dr. Ferguson-Thomas two years

prior.

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Dr. Lee reported Madeleine's Rorschach inkblot test

produced fewer responses than typically expected,

which generally and likely reflects her defensiveness,

guardedness, and simplistic style. She has difficulty

managing more complex, vague, and ambiguous

situations such as emotionally-laden and

interpersonally-based situations. She showed a high

level of animal (A) content, and animal movement

(FM) determinant, likely reflecting many unmet

emotional needs and generally immature style.

On the PAI, Dr. Lee reported Madeleine had no "significant elevations

of the common Validity scales" and only "a moderate elevation on [the]

Alcohol-Related Problems scale (ALC=61 T)." He also reported Madeleine

"showed some elevations on subscales of Anxiety-Related Disorder-Traumatic

Stress (ARD-T=60T) and some near moderate elevation of Antisocial

Personality Disorder-Antisocial Behaviors (ANT-A=59T)" and "some slight

elevation on Paranoia-Hypervigilance (PAR-H=57T)." Madeleine's score on

the Child Abuse Potential Inventory, showed no elevation "on the Abuse scale

score."

"In synthesizing and integrating the test data, clinical interview,

observations, and collaterally-obtained history," Dr. Lee concluded Madeleine

generally presents as an individual who is

psychologically less mature and less developed than

most adults, with entrenched and maladaptive

personality and character traits that give rise to

difficulties in coping and problem-solving. She has

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61

many unmet emotional needs that often drive and

compel her to behave in self-serving ways. She has a

propensity to be rather self-centered and adheres

heavily to her own beliefs and perceptions of

situations, which are often erroneous and flawed. She

lacks accurate empathy and regard towards others.

She often behaves in self-serving ways that fail to

acknowledge what others need and want.

Dr. Lee's diagnostic impressions of Madeleine were

Unspecified Disruptive, Impulse Control, and Conduct

Disorder

History of Unspecified Other (or Unknown)

Substance-Related Disorder

Unspecified Anxiety Disorder

Unspecified Personality Disorder with Antisocial,

Borderline, and Narcissistic traits.

He concluded Madeleine "has entrenched and maladaptive personality and

character traits that give rise to difficulties in her functioning." He claimed

"[h]er knowledge of parenting and childrearing is limited in some areas ," and

that "[h]er impairments in functioning compromise her ability to function as an

independent caretaker of the minor child or minor children, whether she is

detained or incarcerated or not." Dr. Lee termed Madeleine's "prognosis for

significant and lasting changes is poor," and he did not support her "as an

independent caretaker of minor children at this time and within the foreseeable

future."

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As already noted, Dr. Lee found that Izzy was not bonded to either

Madeleine or Wally. He opined that Izzy had "an ambivalent and insecure

attachment and relationship" with Madeleine and there was thus "a low risk of

the child suffering severe and enduring psychological or emotional harm if the

child's attachment and relationship with the birthmother is permanently

ended." Although acknowledging that Izzy did not have "a significant and

positive psychological attachment and bond" with Wally, Dr. Lee opined

it is likely that with the passage of time and all else

equal in an appropriate environment it is likely that

the child will form a significant and positive

psychological attachment and bond with [Wally], and

then be at a significant risk of suffering severe and

enduring harm if the child's relationship with [Wally]

is then ended.

At the guardianship trial, Dr. Lee testified to the opinion expressed in his

report. He also testified to a bonding evaluation he conducted between Wanda

and Izzy. Although testifying that he could not say Izzy would suffer severe

and enduring harm should she be separated from Wanda, he opined there was

"a likelihood" of Izzy suffering "some type of negative consequences, . . . by

not having [a] consistent, ongoing relationship with [Wanda], whom [Izzy] is

. . . very connected to."

In addition to Wally and one of the police officers who arrested

Madeleine inside Darcy's home the night she tried to take Izzy, the Division

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also presented the testimony of the Division's adoption worker, who assumed

responsibility for the case at the end of May 2022. The worker testified from

her review of the Division's file that Wanda and Izzy were removed from

Madeleine's care on March 2, 2020, due to the Division's concerns for "the

substance abuse, the DV . . . and now, you know, the false reporting"

following Madeleine's initial arrest. 20 As it relates to the services the Division

provided to Madeleine, the deputy led the worker through the following series

of questions.

Q: And now throughout the life of this current

litigation the Division did attempt to implement

services despite [Madeleine's] incarceration, correct?

A: Correct, yes.

Q: Beginning first with those substance abuse

services, what efforts did the Division take?

A: So . . . the substance abuse evaluation it was

scheduled and I believe it had to be rescheduled

because of the whole COVID pandemic. So,

[Madeleine] ended up receiving services through the

correction facility. So, she participated, I believe it's

called Second Chances, and then she completed that,

20

As already noted, the allegations of substance abuse and domestic violence

arising out of the domestic violence restraining order Madeleine obtained

against Izzy's father in November 2019, were not established against

Madeleine. Indeed, the Division never established substance abuse allegations

against Madeleine at any time since the case was first opened in 2015 although

Madeleine completed an intensive outpatient alcohol treatment program in

2015 as a part of her parole obligations.

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64

that program while incarcerated. She was set up with

the DV liaison. And she did do a telehealth

psychological evaluation with Delaware Valley

Psychological Services that occurred in September of

2020. And she was recommended for therapy. The

Division tried to, you know, work with the jail in

order to try to, you know, work out services for

[Madeleine]. To my knowledge we don't have like a

therapist to be able to do like telehealth therapy. I

don't know — everything referral therapist. So, the

Division wasn't able to, you know, make that referral.

But there was an attempt to work with the jail to see if

there was any way to be able to put in services.

Q: And so you indicated the Division did attempt to

set up the substance abuse evaluation in March of

2020?

A: Correct, yes.

Q: And that had to be rescheduled due to COVID?

A: Correct, yes.

Q: And you indicated the Division has attempted

ongoing to coordinate with the jail?

A: Yes.

Q: The Division aware of any other services

[Madeleine] has participated in while incarcerated?

A: I believe she mentioned like art therapy, but that's,

you know, what I — 21

21

During a forty-five-day break in the trial occasioned by the demands of the

Indian Child Welfare Act and the Division's decision to obtain a sibling

bonding evaluation, the judge ordered the adoption worker to follow-up on

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65

Q: And so at this time the recommended therapy does

still remain outstanding, correct?

A: Correct, yes.

Q: The Division in addition to the services also

assessed visitation for [Madeleine], correct?

A: Yes.

Q: So, at the beginning of the case was visitation

implemented?

A: So, at the beginning she wasn't allowed to have

any kind of visitation. That was from the I want to

say restraining order that was in place. So, we were

not able to facilitate visitation.

Q: And so it's your understanding there was a no

contact order in the restraining order?

services that could be provided to Madeleine in detention. When the trial

resumed, the adoption worker was recalled. She testified she had recently sent

an email to the jail inquiring about programs available to Madeleine. She was

advised the person who would ordinarily respond to such inquiries was on

maternity leave, but was informed the jail has "DV programming, parenting

classes, and also anger management and [the writer] spoke to the person who, I

guess, is in charge of those programs," and "was informed that [Madeleine]

had previously denied, I guess, participation in those programs." On cross-

examination, the adoption worker conceded she hadn't asked Madeleine to sign

a release to allow the jail to release her records, believed, although "not a

hundred percent sure," that Madeleine had already completed domestic

violence classes, knew Madeleine had completed substance abuse treatment in

detention, and could not recall whether the art therapy Madeleine was

participating in was an anger management program, although the case notes

reflect she'd told the worker that "she continues to do art therapy and anger

management is ongoing."

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66

A: Correct.

Q: Was there also a no contact order under the FM

(sic) litigation?

A: Yes.

Q: And was [Izzy] included in both of those?

A: Yes.22

Q: Now, the Division then did ultimately make an

application to the Court to begin video visitation,

correct?

A: Correct, yes.

Q: And when did that begin?

A: The video visit — I believe visitation was

reinstated April, April of this year, '22, yeah.23

After hearing the testimony, the judge rendered a comprehensive and

thoughtful opinion from the bench explaining her decision to terminate

Madeleine's parental rights to Izzy. The judge rejected Madeleine's counsel's

argument that Dr. Lee rendered only a net opinion relying on the same

22

As already noted, the Division requested and received a no contact order in

the first hearing in the FN case. Although the TRO Darcy obtained against

Madeleine included no contact with Izzy, the FRO did not include that

provision but instead permitted Madeleine visitation with Izzy "as arranged by

DCPP."

23

Madeleine did not testify in her own behalf and neither she nor the law

guardian presented other witnesses or sought to admit any evidence.

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67

psychological jargon present in several other reports in unpublished opinions

of this court, which he furnished to the trial court. The judge found "it would

be a good argument if . . . the report and the testimony of Dr. Lee wasn't based

on the record, based on a multi-method approach used by mental health

professionals in the field doing these types of evaluations."

The judge accepted Dr. Lee's findings that Madeleine "was unable to

minimally parent [Izzy] now or in the foreseeable future." Alluding to

Madeleine's effort to snatch Izzy from her sister's home in the middle of the

night, the judge found

[i]t demonstrated many of the maladaptive character

disorders testified by Dr. Lee, lack of attunement,

misperception of facts, of rash actions, of poor

judgment, of not thinking of others, behaving in a self-

serving way, reacting to a situation with poor

emotional modulation, of problems with impulse

control, lacking insight and awareness, of not being

cognizant of not caring about or respecting court

orders, not being a role model for a three year old, of

not protecting the three year old, of putting herself in

a position without thinking . . . where she would

potentially be incarcerated and as a matter of just

logistics be unable to provide for the daily needs of

her young child.

The judge found that even "[p]rior to that incident there were also concerns of

unstable relationships, of domestic violence, alcohol. So, it wasn't a perfect

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home life for [Izzy] before the removal." The judge found, however, that "this

was the icing on the cake."

The judge found that putting all the evidence into context,

the Division has proven by clear and convincing

evidence that [Izzy's] safety, health or development

has been or will continue to be endangered by

[Madeleine] and that [Madeleine] is at a minimum

unable to eliminate the harm facing the child, as a

result of the actions she has taken and her

characterological deficiencies, her diagnosis, her

substance abuse, her mental health issues, her inability

to place [Izzy's] needs first, her inability to self-

regulate and follow court orders, avail herself of the

court system. But rather took matters into her own

hand in a very brash way with [Izzy] because she

wanted [Izzy] to be with her despite the court orders,

which jeopardized [Izzy's] safety, health and

development. It was traumatic to her and created a

situation in which the child doesn't view her as mom.

Views her as the lady. Pleasant, but the lady. Doesn't

have a bond with her, but rather has an insecure

relationship with her, which is harmful as testified to

by the expert.

Finding the Division had established prongs one and two of the best

interests standard, N.J.S.A. 30:4C-15.1(a)(1) and (2), the judge went on to

consider prong three, the Division's "reasonable efforts to provide services to

help the parent correct the circumstances which led to the child's placement

outside the home." N.J.S.A. 30:4C-15.1(a)(3).

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Noting the practical difficulties Madeleine's detention had on the

provision of services, the judge distinguished this case from N.J. Div. of Youth

& Fam. Servs. v. R.G., 217 N.J. 527, 556 (2014), in which our Supreme Court

reiterated "that incarceration alone — without particularized evidence of how a

parent's incarceration affects each prong of the best-interests-of-the-child

standard — is an insufficient basis for terminating parental rights." Focusing

specifically on how incarceration affects the Division's third-prong obligation,

the judge explained "the reason the Court remanded in R.G., was because the

Division paid only cursory attention to the need for services, made no attempts

whatsoever."

The judge found the Division's actions in this case were nothing like

those in R.G. in which "the Court found that the Division failed to provide the

appellant with any services to effectuate a reunification," in a case where the

appellant's release was imminent. Although acknowledging "in a perfect world

there'd be a lot more services, a lot more ability, a lot more services in the

jail," the judge was "satisfied that the Division [had] made more than

reasonable efforts to provide services to [Madeleine] under the circumstances

of this case."

The judge found the Division had from the inception of the case in 2015

offered Madeleine "a litany of services," a number of which she had

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participated in and completed, and others which "were unable to be set up."

The judge further found that "from the outset of [Madeleine's] incarceration,"

the Division caseworkers had "repeatedly been in touch with her" and "kept

her in the loop," and that "despite her disrespect" toward the caseworkers , they

had "persevered in keeping her apprised of the status of the case." The

caseworkers had inquired "about what services were available, or any more

services available," all of which "[s]he did not avail herself."

The court specifically found the two adoption workers assigned during

the pendency of the guardianship case worked diligently "to effectuate the

virtual visits" between Madeleine and Izzy, in the face of "a ton of

technological problems." Notwithstanding their efforts, the judge noted Izzy

didn't want to participate, finding "[s]ome of it is a three-year-old," but "[a] lot

of it is she does not have the relationship with [Madeleine]. She does not view

her as her mother. She does not view her as a family member. That's the sad

hard fact to recognize."

The judge was satisfied there were no alternatives to termination of

Madeleine's parental rights at this juncture in light of three-and-a-half-year-

old Izzy's need for permanency, having spent the greater part of her life, over

two-and-a-half-years, in placement. Finally, the judge found that given Dr.

Lee's assessment of the "ambivalent and insecure attachment" between

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Madeleine and Izzy and that Izzy was "in the process of solidifying a

significant and positive psychological attachment and bond" to Wally, which

"every day she gets closer and closer to solidifying," the Division had

established that Izzy "will not suffer a greater harm from terminating ties with

her biological mother [Madeleine] than from the permanent disruption of her

relationship with [Wally] and removing her from the home where she is with

her half-sister" Wanda.

The parties' arguments on appeal

Madeleine contends the trial court erred in finding the Division

established all four prongs of the best interests test because it assumed parental

unfitness and that Izzy was harmed in Madeleine's care without competent

proofs, improperly admitted the net opinions of Dr. Lee, which were

speculative and without support in the evidence, that the Division harmed Izzy

by removing her from Madeleine's care in the face of corroborated statements

by Wanda that Wally had inappropriately touched her and refusing to admit

that evidence in the guardianship case as irrelevant, and improperly weighed

the bonding evaluations. Madeleine also maintains she received ineffective

assistance of trial counsel.

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The Division and the law guardian urge we affirm the termination of

Madeleine's parental rights to Izzy as the trial court properly found the

Division had proved all four prongs of the best interests test by clear and

convincing evidence, and Madeleine did not receive ineffective assistance

from her counsel.

The controlling law and our analysis of the court's decision to

terminate parental rights

Our standard of review of a court's decision to terminate parental rights

is well established. We ordinarily accord deference to the Family Part based

on its special jurisdiction and expertise. Cesare v. Cesare, 154 N.J. 394, 411-

13 (1998). We defer to the court's factual findings if supported by adequate,

substantial and credible evidence in the record. R.G., 217 N.J. at 552. The

scope of our review, however, is expanded "where the focus of the dispute is

. . . alleged error in the trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom." Ibid. (alteration in original) (quoting In

re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). Our

review of questions of law is, of course, de novo. Nicholas v. Mynster, 213

N.J. 463, 478 (2013); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).

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As our Supreme Court has instructed, "[p]arental rights, though

fundamentally important, are not absolute." In re Guardianship of K.H.O., 161

N.J. 337, 347 (1999). A parent's constitutional right to raise his or her child is

tempered by the State's parens patriae obligation to protect that child's welfare.

Ibid. A court balances those two conflicting ideas by faithfully applying the

statutory best interests of the child standard to the evidence presented at a

guardianship trial. Ibid. Termination of a parent's rights to his or her child

may be ordered only upon the State's clear and convincing proof of each of the

following four prongs of the best interests standard:

(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;

(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-15.1(a).]

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As we noted at the beginning of this opinion, these cases are troubling.

Were we hearing this guardianship case in the first instance, we may well have

had some doubt as to whether the Division proved the first two prongs of the

best interest standard by the required clear and convincing standard. Although

the trial judge accepted the adoption worker's testimony that Wanda and Izzy

were initially removed from Madeleine's care in March 2022, based on the

Division's concerns for "the substance abuse, the DV, . . . and now, you know,

the false reporting," the Division's record establishes beyond all peradventure

that the charges of substance abuse and DV were only established against

Izzy's late father. The DV and substance abuse referrals against Madeleine

arising out of the domestic violence incident in November 2019, in which she

was the victim, were not established.

Indeed, before the March 2020 false reporting charge, the Division had

never established any dereliction in Madeleine's care of her children in the

nearly five years it had been involved in her family's life. When the case was

first opened in 2015 after Madeleine's alcohol-fueled argument with her sister,

Madeleine agreed to the Division's request for a substance abuse evaluation.

That evaluation was conducted through parole, and Madeleine followed up the

evaluation by successfully completing an intensive outpatient substance abuse

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program, although she'd never tested positive for drugs or alcohol during her

parole term according to her parole officer.

After that time, the Division's record discloses only two problematic

screens out of the dozens, many of them random, the Division had her

complete; the breathalyzer in 2018, when the alcohol in her system was found

to be below the legal limit to drive and the sample rejected in November 2019

the day after the domestic violence incident with James. A ten-panel screen

administered the following week without notice, however, detected no drugs or

alcohol in Madeleine's system.

There is no question but that Madeleine refused the Division's several

requests to undergo another substance abuse evaluation after 2015 — absent a

court order — although she submitted to drug screens whenever the Division

asked. The Division's records also make clear the caseworkers were twice told

in the fall of 2019 by the deputy assigned to the case that there was insufficient

evidence of Madeleine's abuse of alcohol to warrant requesting a court to order

her to undergo a substance abuse evaluation. That apparently did not stop the

caseworker and her supervisor, inappropriately in our view, from advising the

court in the FD action in February 2020, that Madeleine was not complying

with the Division's recommendations for a substance abuse evaluation,

resulting in an FD order that Madeleine comply with the Division's request.

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The Division's own extensive records thus raise some doubt over the

caseworkers' concern that Madeleine was abusing alcohol in 2019 or 2020.

Moreover, the Division having not substantiated the most recent charges of

substance abuse and domestic violence, one might reasonably question the

basis of Izzy's removal, which occurred before Madeleine was arrested for

attempting to kidnap her, but after Madeleine's criminal charges of false

reporting and child endangerment, which relate only to Wanda and her father

Wally, who is not Izzy's father. The supervisor's explanation to Madeleine

fifteen months later that "child endangerment would apply to all children in

her care," is not a particularly satisfying one to us.

And although the trial judge accepted Dr. Lee's opinion that Madeleine

"was unable to minimally parent [Izzy] now or in the foreseeable future ," his

opinion appeared to ignore the facts in the record that suggested Madeleine

had been an adequate parent to her children prior to their removal in 2020.

Specifically, the Division's records confirm Madeleine had provided the

children with stable housing, and the caseworkers had reported at every visit

with Madeleine that her home was clean and neat, well-stocked with food and

that the children appeared well-cared for.

Although there are indications that Madeleine was often under financial

stress, the Division's positive reports of the well-being of the children over

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several years do not square with Dr. Lee's conclusion that Madeleine was

incapable of serving as a minimally adequate parent to them. In addition,

neither counsel nor the court asked Dr. Lee why his psychological assessment

of Madeleine differed so dramatically from the one performed by Dr.

Ferguson-Thomas two years before using some of the same test instruments,

and whether any of the differences could be attributed to having spent those

two years in detention with no contact with her children.

But we may not "appraise the record as if [we] were deciding the matter

at inception and make [our] own findings and conclusions," State v. Johnson,

42 N.J. 146, 162 (1964), because there is, without doubt, substantial evidence,

which the judge deemed credible, to support her findings that the Division

carried its burden to establish that Madeleine's actions in breaking into her

sister's home in the middle of the night to take Izzy after being barred by court

order from any contact with the child "demonstrated many of the maladaptive

character disorders testified by Dr. Lee, lack of attunement, misperception of

facts, of rash actions, of poor judgment, of not thinking of others, [of]

behaving in a self-serving way, [of] reacting to a situation with poor emotional

modulation," as well as "her inability to place [Izzy's] needs first, her inability

to self-regulate and [to] follow court orders," all of which demonstrated that

Madeleine had endangered Izzy's safety, health or development, and that

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Madeleine is unable to eliminate the harm and provide Izzy a safe and stable

home.

We do not agree, however, that the trial judge's finding that the Division

had made reasonable efforts to provide Madeleine with services to assist her in

correcting the circumstances that led to Izzy's placement has that same support

in the record. It does not. Although the court found this case distinguishable

from R.G., the only distinguishing feature we find is that the Division's actions

here were worse and deliberately so.

The defendant in R.G. moved in with his partner and her two-year-old-

son in 2000. 217 N.J. at 535. Their daughter Tara was born in early 2004. Id.

at 536. The defendant worked full-time, supporting the family and acting as a

father to both children. Ibid. Six months after Tara was born, the defendant

started serving a five-year prison sentence. Id. at 540. The children remained

in the custody of their mother. Id. at 536. Although the defendant spoke

regularly to her about the children, he chose not to have them visit him in

prison given their young ages. Ibid.

The Division removed the children from their mother, R.G. in 2008,

placing them with their maternal grandmother, to whom R.G. later

relinquished both children in an identified surrender. Id. at 536-37. The

guardianship trial thus proceeded in 2010, when the defendant was a few

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79

months away from his scheduled release date, only against the defendant and

only in regard to Tara. Id. at 537-39. We focus solely on the services the

Division provided the defendant in prison and the Court's findings as to their

adequacy.

The caseworker in R.G. testified "the Division generally provides no

particular services, such as substance abuse treatment or parenting skills, to

incarcerated persons," and "as far as she knew, psychological evaluations

were the only services that the Division provided to inmates." A review of the

Division's case notes reflected one in-person meeting with the defendant in the

prison in 2008 when the children were removed and a telephone call in 2010 to

discuss with defendant their placement with their grandmother. Id. at 538.

Five months before the guardianship trial, a Division caseworker wrote to the

prison "requesting information about [the defendant's] participation in

programs," although the Division never attempted to compare what was

available to him in prison with the Division programs. Id. at 539. The

defendant testified the Division never facilitated telephone contact between

him and his daughter by providing him pre-paid phone cards and only started

encouraging the children to write to him in response to his cards and letters in

late 2009 after he complained, and even then the Division screened their

written exchanges. Id. at 541.

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Based on the testimony and the Division's record in evidence, the Court

in R.G. found the Division never paid more than "cursory attention to [the

defendant] from the outset of its involvement with his family," visited him

only one time in prison, called him only once, did not work to facilitate his

contact with Tara, and never studied the programs available to him and

compared them to those offered by the Division, or suggested he enroll in any

particular prison program. Id. at 562-63. Acknowledging that "providing

services to incarcerated persons is difficult and may be futile," the Court

nevertheless held "the Division must do more than merely speak with the

parent and provide two psychological evaluations" in order to fulfill its

obligations to an incarcerated parent under the third prong. Id. at 563.

The Court in R.G. reiterated the Division's "reasonable efforts" under the

third prong "include consulting with the parent, developing a reunification

plan, providing services essential to realizing the reunification plan, informing

the family of the child's progress, and facilitating visitation." Id. at 557 (citing

N. J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 281 (2007)). The

Court held "[t]he Division 'must monitor the services, change them as needs

arise, and identify and strive to overcome barriers to service provision or

service utilization.'" Ibid. (quoting In re Guardianship of D.M.H., 161 N.J.

365, 387 (1999)). The Court concluded "[t]he Division must 'encourage, foster

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and maintain' the parent-child bond, 'promote and assist in visitation,' . . . and

inform the parent of the 'appropriate measures he or she should pursue . . . to

. . . strengthen' their relationship." Ibid. (quoting D.M.H., 161 N.J. at 390).

The Division did none of that here — at least not until the guardianship

judge ordered video visitation between Madeleine and Izzy, over two years

after the Division removed the children from her care and obtained the order it

asked for on March 4, 2020, barring Madeleine from any contact with Izzy,

then ten months old, notwithstanding the false reporting and endangering

charges related only to five-year-old Wanda.

As we've already made clear, we in no way condone Madeleine's

incredibly reckless acts in taking Wanda from Wally's house in the middle of

the night and using a crowbar to break into her sister's house to try and take

Izzy. But neither do we accept the Division's actions in blocking all contact

between ten-month-old Izzy and her mother for the next two years, so that

when video visitation was finally established, not, as the caseworker testified,

on the "application" of the Division, but on the order of the guardianship judge

who'd newly assumed responsibility for the case, the child didn't recognize

Madeleine as her mother, referring to her only as "the ballerina lady" or "the

lady."

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Notwithstanding the Court's clear direction to the Division in R.G. that it

"must 'encourage, foster and maintain' the parent-child bond, [and] 'promote

and assist in visitation,'" between incarcerated parents and their children in the

Division's custody, the Division failed to even attempt to do so here. Similar

to R.G., the Division's records reveal only one phone call and one visit to

Madeleine during the first fifteen months of her detention. During the long

period in which the FN litigation involving Wanda dragged on, the

caseworkers never attempted to consult with Madeleine to form a plan for her

reunification with Izzy, despite the law guardian and the deputy's

acknowledgement to the FN judge that Izzy was becoming bonded to her aunt

and uncle. The workers didn't educate themselves on the services available to

Madeleine in detention, didn't inquire whether they'd changed over time or

make efforts to help ensure Madeleine got the services she needed to give her a

reasonable chance of being reunited with Izzy.

The record makes clear the programs and services of which Madeleine

availed herself, which the Division didn't keep track of, were done on her own

initiative without assistance from the Division, including a substance

evaluation and four months of substance abuse treatment. Although in R.G., a

caseworker didn't reach out to the prison until five months before trial to learn

what programs the defendant had taken during his nearly five years in prison,

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R.G., 217 N.J. at 538, here that contact did not occur until the middle of the

guardianship trial, resulting, unsurprisingly, in an unsatisfactory email

response from the jail lacking any specifics and apparently relying on the

hearsay outreach to a counselor on maternity leave.

The Division did arrange for a psychological evaluation of Madeleine by

video in August of 2020, but never offered her the therapy the psychologist

recommended. The adoption worker who testified at the trial simply asserted

it was a service "to [her] knowledge" the Division didn't provide, never

explaining why the Division could manage a multi-hour telehealth evaluation

of Madeleine in September 2020, and supervised video visitation in April

2022, but could not provide a psychologist to undertake regular video

telehealth sessions with Madeleine at any time during her detention.

The distinction between this case and R.G., is that instead of simply

failing to facilitate contact between the defendant and his daughter as the

Division did in R.G., here the Division affirmatively acted to block all contact

between Madeleine and Izzy, without any expert report as to why that might be

necessary or advisable, and all the while telling Madeleine and various judges

that the no contact provision arose out of a domestic violence restraining order,

or a criminal court order, or pending an investigation by the prosecutor 's office

or even an investigation by the Division, none of which appears to have been

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true. The record makes clear the first no contact order entered in this case was

the one the Division requested and obtained on March 4, 2020, and that the

subsequent release order entered by the Criminal Part the following day and

the final restraining order entered in the domestic violence matter each

acknowledged that visitation between Madeleine and Izzy would be by order in

the children-in-court actions.

Significantly, the Division advised the judge at the first hearing in the

guardianship proceeding it did not intend to even seek a bonding evaluation

between Madeleine and Izzy, given there'd been no "visitation for two years

now," clearly implying that whatever bond existed between Madeleine and ten-

month-old Izzy would have long since been obliterated by the long interval

with no contact between them.

We do not doubt that the COVID-19 pandemic precautions made any

services the Division tried to provide families more difficult especially in the

early months of the pandemic just as this case got underway. But this record is

devoid of any but the most general comments on the effect of the pandemic on

the services here. And as the Division was obviously able to set up video

visitation when it was ordered to do so in April 2022, there is nothing to

suggest it could not have done so earlier. See N.J.S.A. 30:1B-6.9(a), the

"Dignity for Incarcerated Primary Caretaker Parents Act," effective August 1,

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85

2020, requiring "[t]he chief executive officer or warden of each county

correctional facility" to "establish policies that encourage and promote

visitation, particularly for inmates who are primary caretaker parents."

The Division never squarely argued in the trial court that visitation

would be harmful to Izzy, nor could it have as it had never had the child

evaluated after Madeleine tried to take her from Darcy's house, apparently

believing that neither an evaluation nor therapy was necessary.24 It simply

continued, month after month, to advocate the original no contact order remain

in place — which it did until the guardianship judge would brook no argument

in ordering the Division to establish supervised video visits at the first case

management conference in the guardianship action.

We do not suggest that Izzy would not have been harmed by Madeleine's

actions; she might have been, and supervised video visitation might not have

been appropriate. Our point is that the Division was required to establish it,

not assume it. Most critically, the Division was simply not free to block the

visitation Madeleine continuously sought with Izzy without seeking relief

24

The trial judge stated at one point in her ruling that Madeleine's having

taken Izzy from Darcy's home as she did was "traumatic" to Izzy. There is no

competent proof in this record that Izzy suffered any trauma from that

incident, see S.S., 372 N.J. Super. at 22-23 (explaining a court cannot assume

emotional harm to a child in the absence of expert testimony), and we view it

as no more than a stray remark.

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86

under N.J.S.A. 30:4C-11.3 "from its statutory obligation under N.J.S.A. 30:4C-

11.1(b) to exert 'reasonable efforts' to reunify the child, placed in its care and

custody by the court, with that parent." N.J. Div. of Youth & Fam. Servs. v.

A.R.G., 361 N.J. Super. 46, 52 (App. Div. 2003) aff'd as mod., 179 N.J. 264,

(2004); N.J.S.A. 30:4C-15.1(c) and (d). That was especially true here, as

Madeleine was only in pre-trial detention; she had not been tried, much less

sentenced, and thus the length of her continued incarceration always remained

uncertain. As our Supreme Court has noted, the "agency's attempt to

discourage visitation between biological parents and children is irreconcilable

with [its] statutory duty 'to encourage and strengthen the parental

relationship.'" D.M.H., 161 N.J. 365, 389-90 (1999) (quoting In re La

Freniere, 420 A.2d 82, 84 (R.I. 1980)).

Because the Division failed to comply with its statutory obligation under

N.J.S.A. 30:4C-11.1(b), 30:4C-15.1(a)(3) and 30:4C-15.1(c)(4) to assert

reasonable efforts to reunify Izzy with Madeleine at any time after her removal

in March 2020, by failing to "encourage, foster and maintain the bond between

the parent and child as a basis for the reunification of the family" and to

"promote and assist in visitation," D.M.H., 161 N.J. at 390, it failed to

establish its third-prong burden to undertake reasonable efforts to promote

their reunification, requiring reversal of the guardianship judgment "standing

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alone." See N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 182 (2010)

(holding "inadequate visitation plans" consisting of one hour per week of

supervised visitation in the Division's offices with the defendant's eleven-

month-old son "standing alone, should have caused the rejection of any

application seeking the termination of defendant's parental rights"). The few

efforts the court required the Division to undertake after it filed its

guardianship complaint in February 2022 cannot make up for its failures for

the first two years Izzy was in placement.

Further, the Division's failure to "encourage, foster and maintain the

bond" between Madeliene and Izzy and its efforts to block all contact between

them without the benefit of any expert opinion that visitation would be harmful

to ten-month-old Izzy adversely affected the fourth-prong analysis. See I.S.,

202 at 182 (noting that had the Division "satisfied its statutory obligations in a

meaningful manner and engaged in substantive reconciliation efforts on behalf

of [the] defendant and his son, . . . the resulting expert opinions perforce would

have been different"). As Dr. Lee could not opine there was a secure bond

between Izzy and Wally but only the likelihood that "with the passage of time

and all else equal in an appropriate environment" Izzy would bond with Wally,

"and then be at a significant risk of suffering severe and enduring harm" were

their relationship ended, the evidence was insufficient, in the face of the

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Division's failure to promote visitation between Madeleine and Izzy, to find

the Division had established by clear and convincing evidence that terminating

Madeleine's parental rights to Izzy would not do more harm than good.

N.J.S.A. 30:4C-15.1(a)(4). See also R.G., 217 N.J. at 562-63 (holding the

Division's failure to provide incarcerated father "with sufficient services in

order to effectuate a successful reunification," undermined factual support for

second-prong finding that father was unable or unwilling to eliminate harm to

the child). Our disposition makes it unnecessary to consider Madeleine's

ineffective assistance of counsel claim.

The judgments in A-2413-21 and A-1371-22 are reversed. The matter is

remanded to the trial court under the FN docket to establish a permanency plan

for Izzy that will provide for a meaningful opportunity for her reunification

with Madeleine under the oversight of the court. We do not retain jurisdiction.

Reversed.

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