Dcpp v. M.N., J.L.K. and W.L., in the Matter of W.N.-l. and I.N.-k. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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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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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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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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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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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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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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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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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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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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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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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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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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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27
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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28
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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34
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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37
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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39
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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42
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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44
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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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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52
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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57
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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60
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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75
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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77
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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82
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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87
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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89