New Jersey Division of Child Protection and Permanency Vs. ( 2016 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4905-14T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
May 6, 2016
v.
APPELLATE DIVISION
K.S.,
Defendant-Appellant,
and
A.L., SR.,
Defendant.
__________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF A.L., JR., and A.K.L.,
Minors.
__________________________________
Submitted April 6, 2016 – Decided May 6, 2016
Before Judges Fuentes, Koblitz, and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FG-16-72-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Christine Olexa Saginor,
Designated Counsel, on the brief).
Robert Lougy, Acting Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Ramiro A. Perez, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Nancy P.
Fratz, Assistant Deputy Public Defender, on
the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
Defendant-appellant K.S.,1 the biological mother of four
young children,2 appeals from the termination of her parental
rights.3 Before the Family Part's decision was rendered, she was
precluded from testifying because she appeared after the close
of evidence. We reverse and remand to give the mother the
opportunity to present her testimony.
We will only present a brief summary of the background
underlying the termination of K.S.'s parental rights. K.S.'s
mother suffered from mental illness and was hospitalized
throughout these proceedings. K.S. had a poor relationship with
her father. She was sexually abused by her father and two
1
We use initials to protect the confidentiality of the
participants in these proceedings. See R. 1:38-3(d)(10), (12).
2
Only K.S.'s two oldest children are subject to this appeal.
3
A.L., Sr., the biological father of the two oldest children,
could not be found and an affidavit of diligent inquiry was
filed with the trial court. A default judgment of guardianship
terminating his parental rights was entered by reason of
abandonment, N.J.S.A. 30:4C-15.1(b)(1)(a)-(b).
2 A-4905-14T2
cousins. K.S. was raised by her aunt, who physically abused
her. When K.S. was fifteen, K.S.'s aunt no longer wanted to
care for K.S. and K.S. was placed in foster care. At the age of
eighteen, K.S. attempted suicide. When she was twenty years
old, in 2009, she gave birth to her son, A.L., Jr. She then
married his father, A.L., Sr., who joined the United States Army
and was separated from the family.
In 2010, K.S. left her nine-month-old son with a family
friend in unsuitable housing, promising to return the next day.
K.S. did not return the following day, and three days later, the
Division of Child Protection and Permanency (Division) became
involved, taking custody of the baby. Six days after leaving
her son, he was returned to K.S.
In 2013, K.S. gave birth to her daughter, A.K.L. Less than
seven months after A.K.L. was born, the Division reopened its
case, having received a referral of neglect. K.S. had left the
children with someone who subsequently abandoned them, leaving
the children alone in the home. The two young children were
then dropped off with relatives who could not care for the
children. The children were subsequently placed together with
the same resource family, where they remain.
As with virtually all parents facing the termination of
3 A-4905-14T2
their parental rights,4 K.S.'s poverty rendered her eligible for
assigned counsel. See N.J.S.A. 30:4C-15.4. K.S. was diagnosed
as suffering from alcohol abuse, frequently testing positive for
alcohol.5 She also tested positive for marijuana and was
diagnosed with mental illness, including "major depressive
disorder" and "paranoid ideation." Psychological testing
revealed borderline intellectual functioning, a poor short-term
working memory and cognitive limitations that contributed to her
lack of work history and unstable housing. Both fathers of her
children were violent. During the court proceedings K.S. was
hospitalized due to injuries caused by this violence. She was
housed in a domestic violence shelter in Camden County. The
Division's attorney and K.S.'s assigned lawyer both indicated
she had trouble finding transportation to some services, as well
as to the Passaic County Courthouse. She missed many
appointments for evaluations, services and visits with her
children.6
4
See Santosky v. Kramer, 455 U.S. 745, 763, 102 S. Ct. 1388,
1399-400, 71 L. Ed. 2d 599, 612 (1982) (recognizing that
"parents subject to termination proceedings are often poor[ and]
uneducated").
5
Alcohol use disorder is a recognized psychological condition.
Diagnostic and Statistical Manual of Mental Disorders 490 (Am.
Psychiatric Ass'n ed., 5th ed. 2013).
6
In 2015, K.S. gave birth to her third child, who was also
placed with the same resource family. Information regarding the
fourth child is not a part of the record on appeal.
4 A-4905-14T2
The trial testimony took place on June 9, 2015, after K.S.
participated in unsuccessful mediation. K.S. did not appear.
The following day, the lawyers convened to prepare an evidence
sheet. On June 19, ten days after the single day of testimony,
the trial resumed for the judge to orally present his findings
and distribute his written decision. K.S. appeared and sought
to "present evidence on her behalf." Her assigned attorney
represented that K.S. thought the trial began on June 10. The
attorney stated that K.S. had inquired about the trial at the
Children in Court office on June 10 and was told that the trial
was over. The Law Guardian advised the judge that the mediator
had informed K.S. that trial was scheduled for June 9 and June
10. The trial judge denied K.S.'s application to reopen the
case, finding that K.S. had notice of the correct trial date and
chose not to appear. The judge based his finding on her history
of failing to attend scheduled judicial proceedings.
On appeal, K.S. raises the following issues:
POINT I: The Judgment of Guardianship Must
Be Vacated and the Matter Remanded for a New
Trial as [K.S.] was Unreasonably Denied an
Opportunity to Participate at Trial.
POINT II: The Trial Court Incorrectly
Applied the Legal Principles Governing
Termination of Parental Rights Matters to
the Facts. The Record Falls Short of
Satisfying Those Exacting Standards and
Therefore Termination of [K.S.]'s Rights
Should Not Be Affirmed.
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A. The Division Failed to Produce Clear and
Convincing Evidence That [K.S.] Ever Harmed
Her Children.
B. The Division Failed to Produce Clear and
Convincing Evidence That [K.S.] Was
Unwilling or Unable to Eliminate Any
Perceived Harm to Her Children.
C. The Division Failed To Prove By Clear and
Convincing Evidence That [K.S.] Was Provided
With Services Reasonably Calculated to
Assist Her in Reunification.
D. The Division Failed to Produce by Clear
and Convincing Evidence that Termination of
[K.S.]'s Parental Rights Serves the Best
Interests of the Children.
We reverse and remand to give K.S. an opportunity to
present testimony. We review a trial judge's decision not to
reopen the record to take testimony under the abuse of
discretion standard. See Quick Chek Food Stores v. Springfield,
83 N.J. 438, 445-46 (1980). Our Supreme Court has recognized
that "[n]o hard and fast rule for the guidance of his [or her]
discretion can be laid down." State v. Wolf, 44 N.J. 176, 191
(1965). The trial judge abused his discretion in refusing
K.S.'s request to reopen the record shortly after the one-day
trial and before the trial judge issued his decision. Under
these circumstances, not allowing K.S. to testify deprived K.S.
of the procedural due process she was constitutionally entitled
to prior to permanently severing her relationship with her
children.
6 A-4905-14T2
"A parent's right to raise and maintain a relationship with
his or her child is constitutionally protected." N.J. Div. of
Child Prot. & Permanency v. N.C.M., 438 N.J. Super. 356, 367
(App. Div. 2014), certif. denied, 222 N.J. 18 (2015). Before
terminating a parent-child relationship, the State must satisfy
the fundamental requirements of procedural due process as
provided in the United States and New Jersey constitutions. See
U.S. Const. amend. XIV, § 1; N.J. Const. art. I, ¶ 1.
In general terms, "[d]ue process requires adequate notice
and a fair opportunity to be heard." Div. of Youth & Family
Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div.),
certifs. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S.
1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). "When the
State moves to destroy weakened familial bonds, it must provide
the parents with fundamentally fair procedures." Santosky,
supra, 455 U.S. at 753-54, 102 S. Ct. at 1395, 71 L. Ed. 2d at
606.
To determine whether a parent was afforded procedural due
process in a termination proceeding, we must evaluate the
governmental procedures under the balancing test enunciated by
the United States Supreme Court in Mathews v. Eldridge, 424 U.S.
319, 334-35, 96 S. Ct. 893, 902-03, 47 L. Ed. 2d 18, 33 (1976).
See M.Y.J.P., supra, 360 N.J. Super. at 465 (adopting the
7 A-4905-14T2
Mathews test in New Jersey). Under the Mathews balancing test,
the court must carefully balance the following three factors:
(1) "the private interest that will be affected by the official
action"; (2) "the risk that there will be an erroneous
deprivation of the interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards"; and (3) "the governmental interest involved,
including the added fiscal and administrative burdens that
additional or substitute procedures would require." Ibid.In considering the first factor of the Mathews test, we
recognize that a parent's private interest in maintaining some
relationship with his or her children is "far more precious than
any property right." In re Adoption of J.E.V., 442 N.J. Super.
472, 481 (App. Div.) (quoting Santosky, supra, 455 U.S. at 758-
59, 102 S. Ct. at 1397, 71 L. Ed. 2d at 610), certif. granted,
223 N.J. 558 (2015). Compared to the other Mathews factors,
"[i]n parental rights termination proceedings, the private
interest affected is commanding." Santosky, supra, 455 U.S. at
758, 102 S. Ct. at 1397, 71 L. Ed. 2d at 609. We recently noted
that "[a]fter the elimination of the death penalty, we can think
of no legal consequence of greater magnitude than the
termination of parental rights." J.E.V., supra, 442 N.J. Super.
at 481 (footnote omitted).
8 A-4905-14T2
Children are entitled to permanency, which at times may
restrict a parent's testimonial right. See In re Guardianship
of J.C., 129 N.J. 1, 26 (1992) (noting that "children have an
essential and overriding interest in stability and permanency").
Whenever practicable, however, the parents' and children's
rights should both be accommodated. See M.Y.J.P., supra, 360
N.J. Super. at 470 (recognizing, where a mother in Haiti could
not attend the termination trial, but accommodations including
her videotaped de bene esse testimony were provided, that "the
children's right to a prompt determination of their status is
just as important as the interest of the" mother in attending
the trial (quoting In re Dean L., 490 N.Y.S.2d 75, 76 (App. Div.
1985))).
The second factor, the risk of error and the value of
additional procedural safeguards, similarly weighs in favor of
allowing K.S. to testify after the close of evidence. Because
the termination of parental rights is based upon an
individualized evaluation of the factual circumstances, a
complete record is constitutionally necessary and a parent must
be liberally afforded the right to be heard before executing the
severance of the parent-child relationship. See N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 288 (2007)
(recognizing that parental fitness should be "evaluated on an
9 A-4905-14T2
individual basis" to satisfy due process). In declining to
reopen the record, a court exposes itself to the risk of a
deficient narrative, thereby not only depriving the parent of
his or her right to testify to keep his or her children, but
also depriving the children of their right to have the court
fully informed before making the final decision. Although the
Law Guardian sided with the Division, arguing at trial that K.S.
should not be allowed to testify, and continues that position on
appeal, the children are better served by a thorough
presentation of the evidence, which includes their biological
mother's testimony.
As to the third Mathews factor, although the State has an
interest in efficiency and in reducing "the cost and burden of
the proceedings," M.Y.J.P., supra, 360 N.J. Super. at 470,
allowing K.S. to testify would have imposed only a minimal
burden on the proceedings. See State v. Cullen, 428 N.J. Super.
107, 112 (App. Div. 2012) (finding that "the judge erroneously
gave greater weight to expedience and the brief delay that would
result than he gave to defendant's constitutional right to
testify on his own behalf"). K.S. made her request to testify
shortly after the one-day bench trial. No jury was involved and
presumably all counsel were prepared to immediately proceed with
the direct and cross-examination of K.S. because they had
10 A-4905-14T2
expected her to appear at trial. The judge had not yet rendered
a decision and would have needed only a short period of time to
revise his written opinion. Thus, allowing K.S. to testify
would not have materially delayed the proceedings.
Our Supreme Court has considered the decision to reopen the
record in the criminal context. See Wolf, supra, 44 N.J. at
184, 191-92. In Wolf, the trial judge refused to reopen the
criminal proceedings to allow the State's cooperating witness to
be further cross-examined after the jury began deliberations.
Id. at 184, 192. Defense counsel requested to reopen cross-
examination because the defendant claimed, prior to summations,
that the cooperating witness had called him to recant his sworn
testimony. Id. at 191-92. When reversing the conviction, which
resulted in a sentence of life imprisonment,7 the Court held:
It seems sufficient to say that when a
citizen's life is at stake a trial in a
court of justice is not a game and the judge
is more than an umpire. And so, when the
ends of justice will be served by a
reopening, it ought to be done.
[Id. at 191.]
7
At that time, a defendant sentenced to life imprisonment was
eligible for parole after twenty-five years in custody, minus
credit for "work time" and "good time." See N.J.S.A. 2A:113-4,
repealed by Act of Sept. 1, 1979, ch. 95, 1979 N.J. Laws 95,
N.J.S.A. 2C:98-2; see also State v. White, 27 N.J. 158, 171
(1958).
11 A-4905-14T2
Here, in a case of great importance, where the termination of
parental rights was at stake, reopening the record was necessary
to ensure justice.
The trial judge did not recognize other reasons in the
record which may have contributed to K.S.'s failure to appear on
the first scheduled trial date. Similar to most parents facing
termination of their parental rights, K.S. suffered from
substance abuse and cognitive impairments, was diagnosed with
mental illness, and was a victim of domestic violence. 8 K.S.
herself was placed in foster care as a child. She endured
unstable housing, difficulties with transportation, and other
consequences of poverty. K.S. suffered from various mental
health conditions and other stressors, lessening her
blameworthiness for her confusion about the trial date.
Further, we consider it to be in the best interests of the
children to allow K.S. to testify as to why her parental rights
should not be terminated. What harm could possibly befall the
8
In 2011, the New Jersey Office of Performance Management and
Accountability issued a report providing information collected
from screeners in child abuse or neglect cases. See Allison
Blake, The New Jersey State Central Registry 2011 Assessment,
Office of Performance Mgmt. & Accountability (July 2012),
http://www.nj.gov/dcf/about/divisions/opma/SCRReport_7%2026%2012
.pdf. According to the report, based on a sample size of 239
Child Protective Services calls, 81% indicated the existence of
substance abuse in the home, 79% involved domestic violence, and
68% involved mental health issues. Ibid.12 A-4905-14T2
children from giving their mother an opportunity to express what
she believes is in their best interests?
A parent facing the termination of parental rights is
entitled to every reasonable opportunity to produce evidence.
If the parent seeks to reopen the record to testify after the
close of evidence, the trial court is constitutionally obligated
to grant the request as long as it does not interfere with the
children's "essential and overriding interest in stability and
permanency." J.C., supra, 129 N.J. at 26. Thus, we reverse and
remand to allow K.S. to testify, after which the court must
consider that testimony and make a new decision.
Reversed and remanded for forty-five days to allow K.S. to
testify, all parties to inform the trial court of any important
updates in the situation, and the judge to make a new decision.
We retain jurisdiction.
13 A-4905-14T2