DCPP v. J.W.-D. and I.M.

DCPP v. J.W.-D. and I.M., (A-1840-17T2)(A-1841-17T2) Decided April 23, 2019 (Per Curiam)

Facts: J.W.-D is the mother of three sons, IS.M. (Ian), J.M. (John), and E.W. (Eric).  I.M. is the father of the two oldest sons, Ian and John.  Father of the youngest son, Eric, is unknown.

The oldest two children, Ian and John, were removed from the mother’s care and placed in a non-relative resource home in 2012.  The mother had a history of mental illness, involuntary hospitalizations, repetitive drug use, and a psychotic episode in which she nearly drowned one of her sons. The father was incarcerated at the time of removal by the Division and will continue to be incarcerated until at least 2023.  In May 2013, Ian and John were placed in the care of C.W., the mother’s maternal grandmother. They remained with C.W. for the next year and half until December 2014. During this period, the mother gave birth to the youngest son, Eric, in November 2014.

Ian and John were briefly returned to the mother in December 2014.  However, they were soon removed again, along with Eric, in January 2015 due to mother’s non-compliance with treatment.  The court granted custody of the infant Eric to the Division. In June 2015, the Division conducted an emergency Dodd removal of Ian and John after the mother had another psychotic episode and after Division learned that C.W. had been allowing the mother to take the sons twice a week in violation of court order. C.W. also informed the case worker that she could no longer care for the two boys.

Procedure: Trial court determined that all four prongs of NJSA 30:4C-15.1(a) were met and  granted termination of parental rights on September 14, 2016 as to both parents.  Both parents appealed the decision on evidentiary issues. Appellate Court remanded the case to trial court and, on remand, the trial court again decided that all four prongs were met as to both parents.  Both parents appeal the trial court decision.

Holding: Appellate Court affirms the trial court’s findings as to the termination of mother’s parental rights as to the youngest son, Eric. With regard to Ian and John, the Appellate Court affirms the trial court’s findings as to the mother with respect to prongs one and two of NJSA 30:4C-15.1(a), and the “services” portion of prong three. The Appellate Court remands for further proceedings with respect to the “alternative caretaker” portion of prong three and also as to prong four. The Appellate Court vacated the trial court’s findings as to the father on all four prongs because the trial court improperly based the findings upon the father’s status as an incarcerated person without sufficient analysis of the legal criteria. The remand shall be completed within 90 days, unless reasonably extended by the trial court with the consent of all counsel. The trial court shall have discretion to permit additional discovery and the presentation of relevant supplementary evidence and testimony.

Analysis: Appellate Court conducts separate analysis of the mother and the father’s terminations. As to the mother, Appellate Court affirms the trial court’s findings as to prongs one and two of NJSA 30:4C-15.1(a), based on expert testimonies at trial and also on the mother’s continuous refusal to participate in mental health treatment. It also affirmsthe trial court’s finding as to “services” portion of prong three, citing the abundant range of services Division offered to the mother, such as psychological, psychiatric, drug treatment, transportation, parenting skills, welfare, and housing assistance and services.

However, the Appellate Division makes a different determination as to the “alternative caretaker” portion of prong three, as it is applied to the three siblings. The Appellate Court affirms the trial court’s finding as to the youngest child, Eric, but remands the case as to the two older children, Ian and John. Appellate Court notes factual developments that transpired since the date of trial. At the time of this appeal, argued on March 18, 2019, the youngest child, Eric, continued to be in the home of a resource parent who wished to adopt him.  In contrast, the older two boys, Ian and John, have been in about four placements due to significant behavioral problems. Furthermore, they were placed in separate placements at the time of the appeal. John was in a resource home which was not committed to adoption, even though John wished to be adopted into this home. Ian was in a group home. Also, at the time of this appeal, C.W. met with the Division and expressed her interest in resuming as the boys’ caretaker.

Appellate Court discusses these developments and finds that current placements for Ian and John have not been successful, in addition to being less than optimal because of siblings placed in separate households. In the meantime, C.W. , has come forward expressing her interest in serving as a caretaker once again, and was never issued a “rule-out” letter by the Division. Also, the Appellate Court discusses the lack of documentation and “rule-out” letters as to other relatives who are potential placements for the boys.  Because these factors affect a proper and full analysis of the children’s best interest under prong four, that prong must also be re-evaluated on remand.

As for the father, the Appellate Court vacates the trial court’s findings as to all four prongs of NJSA 30:4C-15.1(a).  Prong one, as applied to an incarcerated parent, has two considerations:  (1) nature and circumstances of the underlying crime for the incarceration and (2) the parent’s relationship with the children before and after the incarceration. Information about the circumstances of the father’s incarceration is sparse in the trial records, and the Division has no specific evidence that indicates how the father’s criminal offenses bear upon his parental fitness. The trial court record is also lacking as to the level of the father’s involvement as a parent prior to imprisonment, nor does it show the extent to which the father maintained his relationship with the children while he is in prison. What is indicated in the sparse trial record is that the father was communicating with both the mother and with C.W. about the children and got updates on their status. When the Division informed him that the plan was changed from reunification to adoption, the father indicated his desire for the boys to be with C.W. and asked the Division worker to reach out to his family to help C.W. After the boys were removed from C.W., father presented himself as a competing future plan for the boys and provided information on potential relatives who could take care of them until he is released.  Boys also visited the father several times in prison.  The Appellate Court ruled that the father’s incarceration alone is  not enough to satisfy prong one, and the trial record does not indicate adequate and substantial credible evidence to meet the standards of prong one.

On the question of the second prong, the Appellate Court notes the father’s numerous efforts to eliminate harm to his children. The father participated in substance abuse treatment, anger management programs, parenting skills training and Narcotics Anonymous, all of his own volition with no assistance from the Division. He also earned his GED. The Appellate Court ruled that these actions showed his willingness to eliminate the harm his incarceration has caused. Father also requested the children visit him in prison, while it took Division several years to facilitate this request. Once the visitations happened, the reaction was overwhelmingly positive for the children.

As to prong three, Appellate Court described the “gaps in the record.” The father’s mother initially indicated a willingness to care for the children but later withdrew due to illness. However, there is no letter in the record to confirm this. Father’s brother also showed willingness to care for the boys though he did not complete the necessary requirements. At trial, Division worker testified that father’s brother had been ruled out but acknowledged that they did not send a rule-out letter. For the reasons indicated in the analysis of prongs one through three, the trial court’s finding under prong four is vacated.