*1 termination as of plans the date on which it abandoned reunification, (2) that A.C. comply failed the volun- tary plan. custody
CLIFFORD, J., concurring in result. For reversal and remandment —Chief Justice WILENTZ CLIFFORD, HANDLER, POLLOCK, O’HERN, and Justices GARIBALDI STEIN—7.
Opposed—None.
Carol Ann Personnette argued appellant for cause Law Personnette, Guardian for & attorneys). K.L.F. {Personnette Meyer Grace T. argued respondent. the cause for Cecilia M. Zalkind submitted brief on behalf of amicus (Cecilia curiae Association M. Children of Jersey New Zalkind, attorney; Cecilia M. Shirley Zalkind Brand- man, brief). on counsel and
Carl C. Bowman on amicus curiae New Jersey behalf *3 Advisory joined State Child Placement in Council the brief by amicus curiae submitted for Association Children of New Jersey. opinion
The of the Court was delivered HANDLER, J. appeal
This the raises same issues and invokes the same case, In re concerns the companion as N.J. 608 A. 129 2d (1992). case, 1312 voluntarily this the mother placed her newborn infant the Family with Division of Youth and Services (DYFS or Division agency) temporary or for custody and care. Following long period a separation of of mother and child the brought Division action parental an rights terminate in to prepare mother order for permanent placement the child. The trial court refused to terminate the mother’s parental rights, concluding that the mother had not abandoned child, and, further, the child and was fit to raise that the child would not suffer being harm in removed from her foster returned her mother. The Appellate granted Division affirmed. The petition Court for certification. 127 N.J. (1991). A.2d
I having gang- been K.L.F. after pregnant B.F. with became Jersey to have her to New City. in York She came raped New a child, dangerous place too believing City York was New healthy daugh- to a gave She birth in which to raise children. Bergen County Hospital November ter at Hackensack 1988. birth, gave B.F. was homeless. Unable
At the time she a daughter she entered into for herself and find shelter of Youth and custody agreement with the Division temporary temporary placement of Family to the Services consented N.J.S.A. 30:4C-11. agency ar- K.L.F. in foster care. Shelter, facility that did ranged Bergen B.F. to at the for live infants or not allow children. during DYFS
B.F. with K.L.F. twice December visited visit, she came a third in Hackensack. When B.F. offices handling the social worker to see K.L.F. because was unable shelter, thereafter, Shortly B.F. left the case sick. was permanent housing. City in New search returned to York followed, B.F. had neither year half that During the and a At home, friends. shelters nor a and lived work phones in trial, pay DYFS from that she called she testified during period was unable times but New York numerous K.L.F.’s case. who knew about to reach an worker home lived in the In the meantime K.L.F. agencies and various State sent letters to
DYFS caseworkers *4 with B.F. phone unable to communicate made calls but were placed, had been 1990, eighteen after K.L.F. first May months and moved permanent needed a home concluded that she DYFS she parents with whom pre-adoptive set of her to a new currently lives. new case later B.F. reached K.L.F.’s
Less a month than her so that she DYFS, requested see child worker custody. informed B.F. that eventually regain DYFS might bringing a legal guardianship was action for and that she would have wait for a court to decide whether visitation should occur. DYFS also told B.F. that she would have to release undergo psychiatric medical information and later eval- permitted. uation before agen- visitation could be Because the cy child, refused to her her allow to visit B.F. concluded that go she had to to court to obtain visitation. She traveled from Bergen County Staten Island to the Courthouse in Hackensack to file pro Although Bergen County se motion for visitation. venue, was the employees correct at the courthouse sent her to County the Passaic finally Courthouse in Paterson. When B.F. Paterson, permitted arrived in she was not to file her motion there Bergen County. and was directed to return to Frustrat- ed, B.F. returned to having Staten Island without filed a motion for visitation or otherwise obtained assistance. living situation,
B.F. thereafter did find a stable signing a three-year apartment lease on an in Staten Island where she daughter. Nonetheless, 23, now lives with another on March petitioned DYFS guardianship and termination of parental rights on based abandonment and the best interests of the child. N.J.S.A. 30:4C-15. At time K.L.F. had been living with her current foster for ten months. DYFS concluded that K.L.F. had moving bonded with them and that again would cause her and emotional harm. parties
At trial both chronicling introduced evidence foregoing primarily events on the issue of whether B.F. had addition, abandoned her child. In parties presented both expert testimony relating parental to B.F.’s fitness and to harm the resulting child separation from her foster
II legal framework within which the issues must be resolved is set forth in In re .2d N.J. 608 A case, mother, B.F., 1312. inAs voluntarily agreed to place her temporary custody child of DYFS. Under the
37 scheme, place decision to a child voluntary-placement the initial guardian. parent or solely with the child’s in foster care rests However, providing foster care services DYFS actually before endangered is determine that a child’s welfare must itself through either financial child’s cannot be met that the needs family or friends. 30:40 placement or N.J.S.A. assistance placed who have been guardianship over children 11. To obtain care, bring to terminate the agency must an action in foster (section 15). In parents’ rights under 30:4C-15 natural N.J.S.A. case, c and d of section proceeded under subsections this DYFS 15, respectively when guardianship it seek which authorize parent has of the child and when the that is in the best interests Guardianship in an cannot be awarded the child. abandoned itself pursuant 15 unless the court brought action to section under it in the child’s best interest N.J.S.A. determines that is 34:4C-20. explained by this statutory standards were
Those broad
Family
v.
Youth and
Services
Jersey
Court New
Division of
(1986).
A.W.,
591,
.2d
We there noted that
512 A
N.J.
rights
constitutional
of
statutory
must balance the
scheme
rights of their natural-bom
against the interests and
599-60,
requires
.2d 438. The statute
at
512 A
children.
Id.
child’s
that the
to make an affirmative demonstration
DYFS
parental
if
“substantially prejudiced”
interests will be
best
603,
at
Ill trial,- Following the the court determined that B.F. had never the child. It abandoned found that B.F. had consented to placement of K.L.F. because she believed it was in the interest, child’s best but that she had done under the so impression that she would be reunited with the child a shelter facility stay that allowed mothers to with their Ac children. court, cording to the B.F. had been aware of the “tortuous legal procedures through which she go” would have to to regain custody of the child.
The placed DYFS, court found that after she had K.L.F. with B.F. no had income and no home and was therefore to unable telephone many receive calls or the letters D.Y.F.S. sent her. The court found that had “persist- she made “numerous” and ent,” “ineffectual, paltry, meager” attempts albeit to com- municate with DYFS order to see the child and that those efforts phone included calls to DYFS on numerous occasions. Specifically, phone the court found that no separated calls were year more than a and that “no effort to communicate with the Division or to see child separated were by more than a year.” support finding further of its that B.F. had not abandoned child, placed court noted that after she had K.L.F. care, began prepare she for life with her children.
The rehabilitating court credited B.F. “lifestyle” with neighborhood finding furnishing an in a apartment emphasized she had raising It also that conducive children. child, including a custody of her persistently regain worked at first pro to file a se motion visitation frustrated effort County Bergen County and then the Passaic Courthouse that findings, on the court concluded Courthouse. Based those meager and substan- the “evidence of abandonment [was] [was] tially outweighed by part efforts on the the commendable [B.F].” “amply Appellate Division determined the record daugh finding
support[ed]” a
that B.F. had not abandoned her
greater
“[p]erhaps
person
fortitude
ter.
It reasoned
*7
obstacles;
the
sophistication could have overcome those
but
and
were,
by
only
judge,
the trial
fact
efforts
as found
that B.F.’s
of
indicate an abandonment
‘meager’ and ‘ineffectual’ does not
438).
615,
A.W.,
512 2d
(quoting
N.J. at
A.
the child”
correctly
are
that the lower courts
concluded
We
satisfied
requires a
that B.F. did not abandon her child. Abandonment
to
parents, although physically
financially
able
finding that
children,
parental responsi-
willfully forsook their
care for their
30:4C-15(d).
concept of
abandon-
bilities. See N.J.S.A.
of
abdication
or intentional
ment entails a willful surrender
by
rights
Adoption
Children
parental
and duties. See In re
of
94-95,
(1972) (finding
D.,
forsaken
Furthermore, voluntary agreement by under which placed, right K.L.F. was B.F. had the custody to take back her child any time. If the custody wanted to retain despite her request, required it was to seek a court order authorizing it do so. N.J.S.A. 30:4012. To the extent the Division’s decision to refuse B.F. or custody contact with her child was based on its parental fitness, doubts about B.F.’s it obliged by was law authorizing to obtain a court order its own continued and custody exclusive over child. DYFS was not empowered unilaterally displace B.F. aas without judicial approval. See (conditioning N.J.S.A. 30:4012 order taking custody finding “parent grossly of child on ... is unfit.”); immoral or 30:4058 (requiring periodic N.J.S.A. re- view Child Placement Review Board determine whether placement interests); out-of-home is in the child’s best see also Santosky Kramer, 745, 753, 1388, 1395, v. 455 U.S. 102 S.Ct. (constitutional (1982) 71 L.Ed.2d protection afforded to *8 rights parents of natural is not by “they diminished that fact parents have not been model or temporary custody have lost their State”). child to the
When entirety, viewed their the facts indicate that DYFS concluding erred in B.F. that had abandoned her child. The correctly lower rejected courts that determination.
IV The standard invoked the lower courts to determine parental rights whether of B.F. be should terminated was she cause harm her child. courts below whether would psychological test harm applied that in order evaluate the might her from foster separating that result from her the child parents having pre-adoptive K.L.F. to her after parents. came parents eighteen months. another set of foster lived with change testimony explored significance Much of the. her first second foster and between Division, testifying on ac- Page, Dr. Martha behalf apparently adapted successfully to knowledged that K.L.F. had Nevertheless, eighteen months. change caretakers expressed effect of Page concern over the cumulative Dr. disruption in the change Any in K.L.F.’s life. further another risks I expose life her to emotional that would child’s “[would] exposed see to” “could introduce stress prefer not to her and her Dr. prefer to see introduced into life.” that I would breaking suggested the effects of the bond “could be Page that long Page Dr. and term time bombs.” permanent” “would be very loving mutually that had “a warm and also K.L.F. found pre-adoptive parents that she interaction” with her separated psychological harm if were suffer she would B.F. them and reunited with conclusions, expressed Page her for her Dr.
As basis changes impact disruptions on child general views on the stated, Children, consistency and conti- development. she need many spend in care. are transferred times nuity Children who energy and as a result fall acclimating, and efforts below their Moreover, “a child can learn development. children other if predictable place only is he or she is the world a safe and If predictable environment.” safe and [a] distrustful, occur, are often bonding fails to children become difficulties, learning are unable to form disruptive, have lasting relationships. He testified for B.F. concluded
Dr. Jerome Goodman removing from her foster K.L.F. the detrimental effect He would be minimal. placing her with mother *9 explained vulnerability moving that a child in very “the is eighteen concentrated between nine months and months be- cause this is the generally time which the child learns who ][ stranger According is is home who base.” to Dr. Good- man, if the child has successfully primary bonded with a during early years life, caretaker the critical of her in this case during the placements, child acquires a set of adaptive significant skills that allow her changes to absorb successfully. accepted trial testimony
The court of Dr. Goodman that readily any problems K.L.F. could overcome with associated leaving her pre-adoptive emphasized court supported by Dr. Goodman’s were views the Division’s own records. The court noted that those records “clearly unam- biguously articulate that when this child was moved from the family present first custodial to the pre-adoptive so-called fami- ly, adjustment marvelous, her reaction and her appro- was was priate, normal, was persuaded was It suitable.” was Dr. analysis Goodman’s experience K.L.F.’s successful of be- ing transferred one set of foster to another adjust indicated that she similarly being would returned to her natural mother. experts
Both also testified about B.F.’s fitness as as an aspect the assessment of harm to the child on being mother, reunited her natural specifically whether B.F. capability had the to overcome Again, experts such harm. disagreed. Page reported
Dr. “impulsive” “grandiose that B.F. was in her estimates of what she could Dr. Page do.” believed that might perform she well under stress and that she still had a way go “recovery” considerable from chronic home- planning. Page lessness and lack of Dr. also reasoned that personality might engage B.F.’s lead her overindulgence gratification or excessive in the care of her children. *10 parent. Although a fit concluded that B.F. was Dr. Goodman situational, depressed, depression related to the was she was life, especially of her the conflict with DYFS the circumstances custody having over K.L.F. Rather than unrealistic about strong grandiose personality, B.F. a and expectations or had to her Dr. Goodman stated that motivation raise child. sincere history find no illness or rendered B.F. he could mental that raise K.L.F. unable to accept Page, Dr. testimony
The refused to the court finding judgements by personal it distorted and biases. Based unwillingness her to part on demeanor her concede B.F., that anything positive the court concluded Dr. about impartial nor credible. Page’s examination of B.F. was neither discounting significance Page The also Dr. court faulted background and the child’s racial that difference between giving weight parents and for too little to pre-adoptive successfully adjusted K.L.F. she was the fact that had when to home. pre-adoptive moved from the foster home similarly The sufficient evidence in Appellate Division found finding B.F. was support to that a fit the record also only to care for K.L.F. but to ability capacity separating involved K.L.F. her minimize the trauma Appellate was satisfied that there Division K.L.F. convincing returning that to was not clear and evidence psychological cause harm. her natural mother serious would Page’s testimony that even if Dr. were The court determined accepted, support it sufficient to was not credited agency’s proof. burden Page major two had handled with substantial success Dr. found K.L.F. short, young ability she was concerned about the child’s to moves in but life, her legitimate it That concern: would surely to another move. is a well respond yet so But the fact that another such
be
for a child not to be
disrupted.
preferable
convincing
is not
evidence
move
carries some risk
clear
inevitably
injurious”
justify
mother would be “so
as
return of the child
rights. A.
103 N.J. at
terminating
W,
We
mindful of the
that surrounds the
competing psychological
bonding.
theories of the effects of
Experts
assumptions
differ over the
relating to the adaptability
young
children. As we observed in
the court has a
*11
responsibility
competing
to make sense of the
presented
views
by
experts
the
complete
and to assure
presenta-
and balanced
tion of all relevant and material evidence sufficient to enable it
to make a sound determination of the child’s best interests.
Id.
20-21,
Here, the trial
approach
court’s
was calculated to reach a
balanced and informed
light
resolution of the evidence in
of the
contrasting views
experts concerning
the
might
harm that
Page’s
befall K.L.F. Dr.
belief that a transfer
in custody would cause harm was based
assumption
on her
change
However,
itself was harmful.
supports
the record
contrary conclusion of the trial court based on Dr. Goodman’s
beliefs that
age
after a certain
children can
change,
absorb
particularly if
place
it takes
right
under the
circumstances. Dr.
Page
problems
also saw
in the
leaving
combination of the child
a stable foster home
returning
might
a mother who
ability
have the
However,
to care for the child adequately.
record indicates that B.F. has
steps
undertaken substantial
prepare a stable and secure home
daugh-
environment for her
addition,
ter.
the fact that B.F. is currently living with and
caring
younger
for K.L.F.’s
sister
only
indicates that B.F. is not
a fit
but will also be able to cushion the stress that will
inevitably accompany the return of K.L.F. The evidence
presented by
support
DYFS did not
or sustain a conclusion that
moving
will,
children under those circumstances
to a reasonable
psychological certainty,
harm,
cause serious
especially given
contradictory testimony by
Dr. Goodman. The standard is
pain
not that the end result cause no
or trauma
that the
but
kept
parents
child
only
lasting
be
from its
to avoid serious and
1312;
10-11,
harm. See
We noted in C. that risks inhere in the use of
J.
psychological-parental
theories. The theories are abused if
routinely
keep
relied on to
children
foster care rather than
return them to their
If
reality. compelled bonding We are to note that much of the place that has taken in this could if case have been avoided the agency correctly diligence had followed its mandate to use due and its best efforts to reunite children with their natural 30:40-15; parents. requested N.J.S.A. 30:40-58. When B.F. custody, that K.L.F. returned to her the child had be been with parents her current foster only for a month. When DYFS petitioned 1991, for guardianship in March the child had been parents with the foster Regrettably, litigation ten months. period has extended that By encouraging even more. her foster to believe that K.L.F. way was on the to becom child, ing their and to their view interests and those of the child being opposed as to her biological parent, reunification with her may DYFS have increased the bonding amount of that has occurred. That those in the child system tip welfare encourage scales and parent-child a foster bond develop when the natural is regain both fit and anxious to custody Indeed, is suspect essential. we that if the had begun allowed visitation and process a reuniting B.F. with daughter, it could helped have create a bond between the daughter and her mother that greatly mitigated would have any harm being T.C., removed from N.J.Super. However, 598 2dA. 899. we are satisfied that the fairly supports record the conclusion that the in returning harm K.L.F. to her mother is not extensive or irremediable.
V We conclude trial court Appellate Division applied the appropriate legal standards They to the facts. correctly determined that there was no convincing clear and evidence of either willful abandonment lasting or serious and harm justify to the child to parental rights. termination of Because the justify record does not termination on either ground, judgment Appellate Division is affirmed.
The trial originally court ordered to arrange DYFS for a overnight series of leading visits prompt transfer of custody. We remand to the trial implement court to that order.
CLIFFORD, J., concurring judgment. My concerns expressed are in my concurrence in In re J.C., J.C., Guardianship Minors, 129 N.J.
47
(1992) (J.C.),
this
today. Applying to
also decided
A.2d
C., agree
principles relied on in J.
I
the Court that
with
case the
import
statutory
of the
scheme
court followed the
the trial
after
bonding that occurred
disregarding evidence of
properly
(DYFS)
improper
Family
had
Division of Youth &
Services
test
psychological
refused visitation until B.F. submitted
ly
evidence,
convincing
time,
ing. At that
DYFS had no clear and
30:4C-15(d), that B.F. had aban
N.J.S.A.
required under
as
parental rights would be
K.L.F. or that termination of
doned
30:4C-15(c) and
best interests under both N.J.S.A.
the child’s
W,
Family
v. A.
Jersey Division Youth &
Services
New
(1986).
More preceding its decision during one-year period reunification diligent-efforts plans fell short of the forego reunification (2) 30:4C-15(d), none of the evidence standard of N.J.S.A. damage indicated that the child had suffered below C., B.F., N.J. J. relationship see non-existent Thus, J., 29-30, (Clifford, concurring). because 2d 1312 608 A. pre-adoptive bonding K.L.F. and her between to allow following DYFS’s refusal family during period rights, improper denial of visitation resulted from an visitation similarly bonding by the trial court would consideration of that improper. have been compli- to demonstrate failed
I note as well that Act, N.J.S.A. 30:4C-50 Review the Child Placement ance with -65, provisions requiring periodic review including those proper- Had DYFS agency strategy. See N.J.S.A. 30:40-58.1. case, might Family Part in this that review ly undertaken unjustified bonding occurred after an have thwarted goal statutory of reunification. abandonment and remandment —Chief Justice For affirmance POLLOCK, CLIFFORD, HANDLER, WILENTZ, and Justices O’HERN, STEIN—7. GARIBALDI
Opposed—None.