SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4834-96T2

IN THE MATTER OF THE ADOPTION
OF A CHILD BY P.S.

    The opinion by the court was delivered by WECKER, J.A.D.

    This case turns on an issue last addressed by our Supreme Court In re Guardianship of J.C., 129 N.J. 1 (1992), and its companion case, In re Guardianship of K.L.F., 129 N.J. 32 (1992), as well as by this court in In re Guardianship of J.T., 269 N.J. Super. 172 (App. Div. 1993). That issue is whether A.R., an almost nine-year-old ¹ girl with neurological deficits, developmental delays; and learning disorders, having bonded with her foster parents of seven years who seek her adoption, is likely to suffer serious and substantial harm if she is removed from their custody and returned to her biological mother, harm sufficient to warrant the termination of that mother's parental rights. The issue arises in the context of a proposed private adoption. The foster and proposed adoptive mother, J.S., is a cousin of the biological mother, M.R. M.R. voluntarily placed A.R. with J.S. and her husband, P.S., when M.R. realized that she could not care for A.R. or her older brother, C.B.,² and needed in-patient rehabilitation from her long-term addiction to alcohol and other substances.

    After several days of testimony on the termination of parental rights issue, the trial judge expressed frankly and with sensitivity his concerns about the long history of the court's involvement with this child; his recognition of her complete bonding with J.S. and P.S. and their three older children; her remarkable progress under their care and nurturing and in the face of her serious deficits; as well as M.R.'s record of rehabilitation as an alcoholic. After concluding that M.R. had not abandoned A.R. in the sense of "a willful or purposeful refutation of parental responsibility," and that therefore "the evidence here falls short of establishing, by clear and convincing evidence, that the parental rights of [M.R.] should be terminated," the judge nevertheless followed the guidance of J.T., 269 N.J. Super. at 191, and determined that reunification with the biological parent "should not automatically follow dismissal of the termination complaint because ‘the potential harm to [the child] if she is separated from her foster mother' could not be ignored." He dismissed the foster parents' complaint for adoption and ordered D.Y.F.S. to develop a plan for reunification, but denied M.R.'s application for unsupervised and increased visitation.

    While we commend the judge for his sensitivity and concern for all of the parties, we conclude that his interpretation of the standards governing this termination case was unnecessarily restrictive. In particular, we conclude that J.C. not only permits but requires a determination "whether [A.R. has] bonded with [her] foster parents and if so whether breaking such bonds would cause [A.R.] serious psychological or emotional harm." J.C., supra, 129 N.J. at 25 (emphasis added). We therefore reverse the judgment dismissing the adoption complaint and denying the application to terminate M.R.'s parental rights, and remand for a bonding evaluation, in accordance with J.C., focusing on the likely harm to A.R. if she is separated from J.S. and P.S., and M.R.'s likely ability to counter such harm.

    A.R. was born on April 24, 1988, to defendant M.R. and D.B.³ M.R. and D.B. had an older child, a boy, C.B. born in December 1984. They never married, and their relationship, marked by incidents of domestic violence, ended before A.R. was born.

    On August 4, 1989, M.R. voluntary placed both fifteen-month-old A.R. and four-and-one-half-year-old C.B. with the Division of Youth and Family Services (DYFS) in Union County, where M.R. resided. A.R. was first placed with an unrelated foster family. However, seventeen days later, on August 21, A.R. was transferred to M.R.'s first cousin, J.S., and her husband, P.S. M.R. requested that A.R. be placed with her cousin, preferring that A.R. be with a family member rather than with strangers. The voluntary transfer was precipitated by the fact that M.R. had been abusing drugs and alcohol for some time, was often drunk, and admittedly had been neglecting both children. M.R.'s inconsistent drug and alcohol rehabilitation efforts had not been successful up to that point. There is no dispute that at the time A.R. was placed with J.S. and P.S., she had significant neurological deficits, was developmentally delayed, and showed many signs of emotional if not physical neglect. She has required special interventions and educational assistance from the earliest age to date, and will likely always have special needs.

    C.B. was placed in foster care with a friend and neighbor of M.R., with whom he has remained. M.R. has only supervised visitation with C.B., now a fourteen-year-old boy with more serious disabilities than A.R. We are told that M.R.'s application for custody of C.B. is in abeyance in Union County pending the outcome of this case.

    The history of A.R.'s involvement with the judicial system is lengthy. On January 2, 1990, a family court judge in Passaic County ⁴ (where J.S. and P.S. reside) awarded temporary custody of A.R. to J.S. and P.S., with liberal but supervised visitation for M.R. The trial judge noted that "it was clearly intended that there be family reunification. And at the very least, a hearing with regard to that." On January 25, 1990, another judge ordered that the matter be reviewed in one year. In June 1990, however, two orders were entered with regard to visitation, with the case to be relisted for a hearing in one year. The same custody arrangement and visitation were reconfirmed in a June 1991 order. Still another judge was assigned to the case in October, 1991. He ordered additional reports and evaluations. In June 1992 and again in September of that year, the judge reviewed the case and fixed visitation rights at one-and-one-half hours each week, to take place at J.S. and P.S.'s home and under their supervision. Another judge reviewed the case in October 1992 and ordered that custody continue in accordance "with the placement plan currently in effect."

    A review of the case in April 1993 resulted in expansion of visitation to two hours each Thursday evening and four hours on one Saturday afternoon each month, all under the supervision of M.R.'s in-laws. In June, August, and October of 1993, the case was again reviewed. The October order provided that DYFS "is to initiate less restrictions regarding phone contact" between M.R. and A.R. The "goal of reunification" was restated in both the June and August orders.

    Subsequent orders in May and July 1994 continued the same terms, with DYFS directed to "consider having [A.R. and C.B.] attend the learning disabilities class with their mother and stepfather [given by] Phyllis Taistra [of the] Verona Public Schools." The May order, captioned as most of the orders "Concerning Placement Under the Child Placement Review Act N.J.S.A. 30:4C-50 et seq.," recommends "a summary hearing for a determination and the identification of a permanency plan [ ]" and ordered the case worker for each child to be present.

    Throughout the period of the above-described orders, none of which were ever appealed, M.R. regularly maintained contact with the DYFS offices, never abandoning her efforts to regain custody of the child. From the initial placement in 1989 to the end of 1994, DYFS shared this goal of reunification, at least on paper. However, although DYFS was required to take steps to accomplish this, including getting M.R. into a program for controlling her substance abuse, M.R. contends that the agency did little if anything to accomplish this goal. Nevertheless, M.R. provided DYFS with evidence of attendance at outpatient follow-up to her 28-day rehabilitation, negative urine screens throughout 1992, and attendance at AA/NA meetings throughout that year. There is no evidence that M.R. has taken up drinking or other substance abuse since.

    With one exception, M.R. was apparently unrepresented at the custody reviews. Also with one exception, either M.R. or her husband appeared at each review. Nevertheless, she was never able to persuade the court to increase her visitation significantly, or to make it unsupervised. The following exchange at trial is noteworthy:

    J.S. and P.S. filed their adoption complaint on January 5, 1995. At the initial hearing, the family court judge ordered that A.R. was a ward of the court, and granted custody to J.S. and P.S. After defendant filed her objection to the adoption, counsel was appointed for her, and a law guardian was appointed for the child. M.R. filed an answer and counterclaim, objecting to the adoption and demanding that custody of A.R. be returned to her.

    The case then was transferred to the judge who tried the case, and who denied M.R.'s motion to dismiss the complaint for lack of standing. He noted that although J.S. and P.S. would not have had standing to initiate an adoption complaint under N.J.S.A. 30:4C-15, dealing with petitions for termination of parental rights initiated by DYFS rather than by a private party, this case involved the voluntary placement of a child with relatives, and J.S. and P.S. therefore had standing to initiate an adoption complaint under Title 9. On this appeal, M.R. does not challenge J.S. and P.S.'s standing to bring the action.

    The case was tried over five days between January 13 and January 27, 1997. In an oral opinion on February 28, the trial judge dismissed the adoption complaint, but continued custody with J.S. and P.S., and denied additional visitation, thus denying M.R.'s counterclaim. DYFS was ordered to "develop a plan for reunification" and report back to the court.

    This appeal followed. M.R. has not filed a cross-appeal from the denial of custody. The foster parents requested a stay of those provisions of the court's order dealing with the plan of reunification, based on the contention that attempts at reunification would "cause irreparable emotional and psychological harm" to the child. The trial Judge denied the request, but we granted a stay pending the outcome of this appeal.

    [Details of M.R.'s substance abuse and inability to care for her very young children, preceding her voluntary transfer of custody, have been omitted for purposes of publication.] The following facts appear from the evidence at trial. M.R. eventually requested that DYFS provide assistance so that she could go into a short, inpatient detoxification program at Elizabeth General Hospital. After M.R. completed the program, C.B. was returned to her. However, she was unable to remain sober, and needed a longer in-patient program. In the interim she began a more intensive out-patient program at Union Hospital, known as Genesis, while she waited for admission to the in-patient rehabilitation program at Runnells Hospital.

    On August 4, 1989, after a DYFS caseworker found M.R. unable to care for the children, C.B. was voluntarily placed with a neighbor, and A.R. was placed in foster care. M.R. was advised by the DYFS worker that because she sought help voluntarily, she would get her children back as long as she could remain clean and sober.

    While in the Elizabeth General Hospital detox program, M.R. contacted J.S., her first cousin, telling her that A.R. had been placed with another foster family, but that she would be more comfortable if A.R. could stay with a relative. J.S. agreed to take the child, and A.R. was placed with P.S. and J.S. on August 21, 1989. M.R. signed a voluntary placement agreement with DYFS, the original goal being reunification of the child with M.R. P.S. and J.S.'s understanding at that time was that they would take care of A.R. until DYFS said it was fine for A.R. to go home, and they would bring her back to M.R. at that time.

    When A.R. first came to P.S. and J.S., it was apparent that she was failing to thrive and had substantial developmental delays in all areas of functioning. The cause of A.R.'s deficits are unclear, although they are consistent with fetal alcohol syndrome or fetal drug exposure, as well as inadequate parenting during her first year. M.R. denies substance abuse during her pregnancy. Soon after A.R.'s placement with them, P.S. and J.S. took A.R. to a pediatrician, a neurologist, and then various developmental specialists, continuing to follow up in all areas. In September 1989, P.S. and J.S. took A.R. to see Dr. Aparna Mallik, a neuro-developmental pediatrician with the Child Developmental Center at St. Joseph's Hospital, for a complete developmental evaluation. P.S. and J.S. also enrolled A.R. in a special education program, where she continued for two years, in order to address her developmental delays and neurological impairments. During that time A.R. worked at the child center with several teachers specializing in learning disabilities, as well as physical, speech and occupational therapists.

    When A.R. was three years old, P.S. and J.S. enrolled her in a pre-school handicapped program, which she attended on a daily basis. At five years of age, P.S. and J.S. had A.R. reevaluated, at which time it was determined that she should be enrolled in a special education kindergarten. Since the first grade, A.R. has been enrolled in special education classes for perceptually and neurologically impaired children, and has been monitored and evaluated regularly by the township public schools' child study team. J.S. and P.S. have had A.R. evaluated on a regular basis by physicians, psychologists and educational specialists, to ensure that she receives the appropriate care she requires.

    A.R. apparently is functioning at a higher level than expected, given her condition at the time of her placement with J.S. and P.S. By all accounts they have provided exceptional parenting, and A.R. has also received unusual care and attention from their three teenage children, whom A.R. describes as her brothers and sister. Despite her progress, there is little doubt that A.R. is a child who continues to have very special needs, and has neurological disorders which cause her to tire easily and to have difficulty studying. A.R. is in continuing need of speech, language and occupational therapy. J.S. testified that it has been three times more difficult raising A.R. than it was raising her other three children, but her devotion and love for the child were apparent to the trial judge. There is no question about the quality of parenting A.R. receives from J.S. and P.S. and their family.

    Continuing with M.R.'s history, after the initial court hearing in January 1990, M.R. voluntarily entered a twenty-eight day, in-patient rehabilitation program at John Runnells Hospital. She successfully completed the program, where she met her present husband, T.W. Immediately upon completion of the program, defendant enrolled in an out-patient program at Genesis, with meetings every night from 6:00 p.m. to 10:00 p.m. and a three to four hour session with a counselor on Saturday or Sunday.

    The defendant married T.W. on February 24, 1991. She attended NA and AA meetings with him, and evidence of their attendance in 1992 was provided to DYFS. T.W. also completed the treatment program at Genesis, and they attended a Genesis couples' group together. M.R. also completed a parenting skills training class, along with T.W., in May 1992.

    At the time of trial, M.R. was a forty-seven year old woman with a chronic history of alcohol and prescription drug abuse. There is no evidence that M.R. has returned to any substance abuse since her entry into rehabilitation. M.R.'s husband, T.W., is a thirty-three year old man with an equally if not more serious history of substance abuse, as well as bipolar disorder for which he must take lithium on a regular basis. There is some evidence of relapses by T.W. M.R. does not work, but is enrolled in school to train for a job in the computer field. She described T.W. as a self-employed mechanic. M.R.'s visitation history has involved T.W., his parents, and to a lesser extent his sisters. The trial judge noted M.R.'s supportive in-law family, but did not address the question of how M.R.'s apparent dependence on her husband's family should affect potential reunification with A.R.

    At trial, the only expert who testified was Dr. Martha Page, a clinical psychologist, whose testimony was offered by J.S. and P.S. Dr. Page testified that she had evaluated A.R. on nine occasions between 1991 and December 1996. Dr. Page found that A.R. suffered from "developmental lags," but that J.S. and P.S. were offering her appropriate care and stimulation to counteract these lags. Specifically, Dr. Page found A.R. was functioning well below her age level in communication, personal care, motor skills, and interpersonal skills, and was neurologically impaired. She also said that despite the good care A.R. was receiving from J.S. and P.S., she continued to have difficulties learning, communicating, and comprehending complex concepts. According to Dr. Page, A.R. would continue to need special education and the encouragement of her foster parents and siblings.

    Based on A.R.'s relationship with J.S. and P.S. and her attitudes toward M.R., Dr. Page concurred with the view that to remove A.R. from J.S. and P.S.'s home would result in harmful consequences to the child. She opined throughout the course of her involvement with A.R. that adoption would be appropriate so she might have "consistency and stability." For the child to continue to make progress, Dr. Page said she would require "super parenting," although even that was no guarantee of success. Dr. Page noted that after seven years of visitation with M.R., A.R.'s attitude toward M.R. showed that she felt no "ties to the biological mother," whereas she was bonded to J.S. and P.S. just as if they were her parents. In fact, Dr. Page said A.R. had not even bonded to M.R. as a child might to an aunt, nor did she have any bond with C.B., her natural brother. Although she personally had never done a psychological evaluation of M.R., based on the reports she saw in the DYFS files, Dr. Page concluded that M.R. lacked the necessary "super parenting" skills to raise A.R., and A.R. would suffer if taken out of her present home. In sum, she concluded that because of A.R.'s special needs, M.R. lacked the appropriate abilities to successfully remedy A.R.'s problems, including the likely trauma of separation from J.S. and P.S. and their children.

    The Supreme Court has described Dr. Page's adherence to a theory of child development that "children [are] highly vulnerable and fragile" and that bonding with a parent figure is crucial. See J.C., supra, 129 N.J. at 19. As the court points out, there are psychologists who are critical of this theory, on the ground that it "overestimates the importance of continuity in care" relative to other factors affecting child development. Id. at 20.

    The DYFS caseworker who testified, Judith Gerson, had limited personal knowledge of the parties, having taken over A.R.'s case only in 1995. Her testimony largely was to describe numerous reports and records contained in DYFS's files with respect to A.R.'s progress, including the five-year-old December 23, 1992, report of another psychologist, Dr. Frank J. Dyer. Dr. Dyer's evaluation and report were provided to DYFS at its request, and contained an assessment of M.R., her husband, T.W., as well as the children, A.R. and C.B. Dr. Dyer found each child's IQ to be in the mildly retarded range. In assessing M.R. and her husband, Dr. Dyer concluded at the end of 1992:

    Dr. Anthony V. D'Urso, a psychologist who was consulted by M.R. for purposes of trial and who rendered a written report, did not testify. When M.R. did not offer his testimony, J.S. and P.S. sought to reopen the trial in order to call him as their witness. Their application was denied. The lengthy, undated report described M.R. as "a marginally adequate caretaker with support . . .. not likely to anticipate the needs of her children . . .. He opined that due to her "marginal ability to cope with stress, her recovery should be considered fragile." Dr. D'Urso found M.R. unlikely to "be able to compensate for the loss and trauma" the child would suffer if her bonds to P.S. and J.S. were severed.

    In support of their motion for a stay, J.S. and P.S. submitted a post-trial letter from the pediatrician who had treated A.R. over the previous seven-and-one-half years, describing A.R. as "a child with significant motor and intellectual delay, possibly due in part or entirely to fetal alcohol syndrome." The pediatrician, Dr. Alvin Edelstein, opined that "removal of this child to another home may very likely cause irreparable harm." J.S. and P.S. also submitted a letter from Dr. Hallik, A.R.'s neuro-developmental pediatrician and Assistant Director of the Child Development Center at St. Joseph's Hospital, who has known the child since she was placed with J.S. and P.S. Dr. Mallik described the child as "neurologically impaired," and expressed her concern that removing A.R. from J.S. and P.S. "may very well cause irreparable harm to her." Dr. Mallik did not testify at trial.

    In his oral opinion, the Judge described the issues before him in the following terms:

    We defer to the trial Judge's findings of fact so long as they are supported by substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974), However, such deference is inappropriate when the findings are inconsistent on their face. Legal conclusions are always subject to our independent review. In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).

    There can be no question that the parent-child relationship is part of the precious package of individual rights and liberties protected by our constitutional democracy.

Nevertheless, that right is not absolute. Sorentino v. Family and Children's Soc'y of Elizabeth, 74 N.J. 313, 319 (1977) (Sorentino II). No adoption can be considered unless the parental rights of the biological parents have first been terminated. J.C., supra, 129 N.J. at 5.

    In Sorentino v. Family and Children's Soc'y of Elizabeth, 72 N.J. 127, 131 (1976) (Sorentino I), after finding the biological mother's consent to adoption of her newborn baby to be a nullity because of undue duress, the Supreme Court recognized that custody nevertheless should not be returned to the biological mother unless she could prove that the child would not suffer serious psychological harm as a result of removing her from foster parents with whom she had lived for thirty of her thirty-one months of life.

    The Court explained its remand:

The trial court, on remand, found convincing evidence of likely serious harm to the child, and the biological parents renewed their appeal. Although the Supreme Court remanded the case once again because the biological parents had not been given adequate notice of the adoption petition, the Court continued custody with the prospective adoptive parents and addressed the competing policies underlying termination issues:

In Sorentino I and Sorentino II, unlike the case before us, the natural parents apparently had had no contact whatsoever with the child. The Court emphasized their lack of contact and delay in filing for custody as evidence "strongly [pointing] to the conclusion that there has been an abandonment." Id. at 326.

    The competing policies described by the Court in Sorentino II were emphasized again by the Court in 1986:

    In outlining the standards applicable to plaintiffs' application for termination of M.R.'s parental rights respecting A.R., we are informed by In re Guardianship of J.C., supra. In J.C. the Court declared that termination based upon the child's "best interest" pursuant to N.J.S.A. 30:4C-15.1 and -20 does not mean that termination is appropriate just because the child "might be better off" with the foster or prospective adoptive parents. J.C., supra, 129 N.J. at 19 (citing In re Baby M., 109 N.J. 396, 445 (1988)).

    We read J.C. to distinguish between an impermissible "better interest" test, with the attendant risk of terminating biological parental rights because someone with greater financial, emotional, or intellectual resources seeks to adopt, and a true "bonding evaluation," taking into account the best interest of the child, with the goal of preventing serious, long-lasting psychological harm resulting from termination of a psychological parent-child relationship. Indeed, in the introductory paragraph of J.C., Justice Handler posed the very question confronting the court here:

In J.C., the Court reiterated its earlier reasoning in A.W., supra, 103 N.J. at 603, that a parent's protected interest in the relationship with a child is limited by the chlld's interest in physical and emotional safety. 129 N.J. at 8. See Also K.L.F., supra, 129 N.J. at 37, nothing "the statutory scheme must balance the constitutional rights of parents against the Interests and rights of their natural-born children." Finding that termination requires clear and convincing proof that failure to terminate will substantially prejudice the child's best interest, the J.C. Court accepted the best interest standard of A.W., now embodied In the 1991 amendment to N.J.S.A. 30:4C-15, saying:

Particularly pertinent here is the Court's admonition that

This court had affirmed the trial court in J.C., which "held that the mother's parental rights should be terminated, emphasizing the psychological harm that would result from breaking the bonds that each child had formed with foster caretakers." Id. at 5. Although the Supreme Court reversed the judgment terminating parental rights, it did so with the following instruction:

The Court further instructed that

    There are many similarities but also several significant differences between the facts before the Court in J.C. and those before us. In each case, the biological mother voluntarily placed the child ⁵ in foster care, although J.C.'s foster parents and proposed adoptive parents were selected by DYFS and were strangers to the mother. In each case, the mother found herself unable to care for the child because of substance abuse and addiction, M.R. to alcohol and J.C.'s mother to illegal drugs. And in each case, the child suffered neurological deficits and developmental disabilities.

    A.R.'s circumstances differ from J.C.'s in certain respects which, if anything, suggest a greater likelihood of harm in the event of separation from her foster family. Whereas J.C. was placed at one month of age, and had been with her foster family for thirty-one months at time of trial, A.R. was placed with J.S. and P.S. at fifteen months, and had been with them for more than seven years at the time of trial. The most significant difference, however, is that J.C. was found to have some emotional ties to her mother, whereas A.R. was found to lack any real feeling for the woman she calls "Aunt Cookie" or "M___" (M.R.'s first name).⁶

    The adoption statute, N.J.S.A. 9:3-46 (as of the trial date),⁷

    provides in pertinent part that

This M.R. clearly has been unable to do over a period of seven years, far longer than the presumptive six months set forth in the pre-1998 statute:

    As we recently said when we reversed an order dismissing a petition to terminate parental rights,

    Although the amended statute is not effective until September 11 of this year, the legislative policy and intent reflected in the amendment ⁸ informs our interpretation and application of the current law. See Marinello v. Shell Oil Co., 63 N.J. 402, 409 (1973).

    N.J.S.A. 9:3-46, as amended, contemplates a combined action, such as this, where termination and adoption are considered together, and explicitly contemplates a "contest" between the proposed adoptive parents and a biological parent. The emphasis in the amended adoption statute has shifted, in that the amended statute affirmatively instructs the court to allow the adoption if the prescribed conditions are found, instead of prohibiting the adoption unless the prescribed conditions are found. Those conditions remain unchanged. Most important of all is that the amended statute unequivocally provides that "the standard shall be the best interests of the child." Nothing in the recent amendment is inconsistent with the Supreme Court's instructions in Sorentino I and II, in A.W., or in W.P. and M.P., to consider whether reunification of the child with the biological parent will do more harm than good for the child. Our recent decision in In re Adoption of Children by G.P.B., Jr., 311 N.J. Super. 38 (App. Div. 1998) (denying termination of the birth father's rights thereby precluding adoption by the stepfather), is distinguishable. G.P.B. was decided several days before the most recent amendment to N.J.S.A. 9:3-46 and did not implicate the question whether reunification with the biological parent will do more harm than good.

    The Court in J.C. expressed its concern about "competing psychological theories of the effects of parental bonding," 129 N.J. at 19, and that "the uncritical use of bonding theory can increase the risk of institutional bias." Id. at 21. The Court recognized that "[p]arents with few resources rely on foster care to protect their children during difficult periods . . . [and] should be able to turn to the foster-care system without fear of losing their children." Id. at 20-21.⁹ Nonetheless, the Court recognized the goal of the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 et seq., to further each child's need for a permanent home, though not necessarily a home with a biological parent. See New Jersey Div. of Youth and Fam. Servs. v. K.M., 136 N.J. 546, 558-59 (1994). The goal of permanency, not necessarily of reunification, is paramount. This Bill of Rights requires a placement plan that "reflects the child's best interests," and contemplates either a "permanent placement or return home . . . in a timely manner that is appropriate to the needs of the child." N.J.S.A. 9:6B-4j.

    We are satisfied that many of the trial judge's findings are supported by the record. However, we find reason to examine closely those findings that appear to be internally inconsistent, as well as the application of the law to the facts. The judge explained on the one hand that J.S. and P.S.

However, with respect to M.R., the judge concluded that he

Termination here is not sought based on an intentional abandonment, but on the probability that returning A.R. to M.R. will "do more harm than good," see J.C., 129 at 9, because A.R. is likely to suffer grievous harm if she is separated at age ten from the only parents (and family) she has known since infancy.

    While finding that M.R. "is presently fit to be a parent," the trial judge did not and could not conclude that she had maintained anything resembling a parental relationship with A.R. Nor did he find that she was fit to provide for the exceptional needs of A.R. Indeed, the judge refused M.R. additional or unsupervised visitation pending additional planning and counseling, after finding that "the visitation is upsetting to the child, because of the confusion that the child has."

    The judge recognized the key question in this case:

However, his resolution of that question is inconsistent with his own findings regarding A.R.'s bonded relationship after more than seven years (as of the trial date) as a member of J.S. and P.S.'s family:

    A parent whose serious substance abuse problem has caused her to neglect her child may at some later time in her life be rehabilitated to the point where she can be "a fit parent." but that does not necessarily make her a fit parent to the previously neglected child, whose future is now, years later, at issue. Where prior neglect created a situation in which the child has successfully bonded to another, psychological parent, the biological parent's rights may give way to the child's rights. See J.C., 129 N.J. at 25-26. The child's rights are: first, not to be harmed in any way, as by removal from her only known family; and second, to have a stable, legally recognized relationship of parent and child, very likely with the foster, proposed adoptive parents. Id. at 26.

    We recognize the difficulty faced by a parent such as M.R., whose personal problems and vulnerability, primarily her alcohol addiction, initially brought about the foster care arrangement, and who then had to rehabilitate herself while attempting to preserve in some fashion a relationship with her children. But M.R.'s own responsibility for creating the situation in the first place cannot be ignored. And the child's life could not be put on hold. Although M.R. took advantage of all the permitted, supervised visitation, and was actually denied unsupervised visitation, there apparently was good reason for those limits to have remained in place for seven years. Unfortunately, although the record reveals yearly (and occasionally more frequent) reviews of A.R.'s status by several different judges, the record is devoid of reasons or explanations for the multiple court orders maintaining the status quo. We would like to believe that each order represents a reasoned decision. But without some record of the reasons, and given the caseload that confronts the family court, we cannot know. It may or may not be that each judge involved with the case recognized that M.R. was not ready to have unsupervised responsibility for A.R., even for visitation.

    M.R. never sought custody of A.R. in any court proceeding until confronted with the notice of proposed termination of her rights and A.R.'s proposed adoption by J.S. and P.S. The record reflects that either M.R.'s in-laws, who are not related to A.R., or M.R.'s husband, T.W., have accompanied M.R. on all visitations with A.R. outside J.S. and P.S.'s home. Significantly, the child shows no attachment to M.R., viewing her weekly Thursday night visits and monthly Saturday visits as an obligation, neither terribly positive nor terribly negative. The court's in camera interview with A.R. included questions concerning visitation with M.R.:

A. She's something - somebody that I go out with sometimes on Saturdays and I have to go out with her on Thursdays.

Q. And how do you like going out with [M.R.]?

A. I don't like it.

Q. How come?

A. Because - because then I miss my mommy and daddy.

A.R. told the judge that she did not think M.R. was related to her and did not know why she had to go on those visits. When asked whether she had fun on the visits, A.R. responded that she did not.

    After that in camera interview with A.R., who was almost nine years old at the time of trial, the judge described her as follows:

As the judge noted, A.R.'s presentation surprised him in light of the reports and testimony of the several professionals who have been involved with A.R. We mention the disparity only to emphasize the importance of a more complete and up-to-date evaluation.

    We are also struck by M.R.'s inappropriate and unilateral decision to tell A.R., at age seven, that M.R. is her mother and that she "came from [M.R.'s] stomach," concepts that A.R. was incapable of comprehending either intellectually or emotionally. M.R.'s failure to consult with any of A.R.'s physicians or psychologists, or with J.S. and P.S., to determine whether and how such information should be conveyed, bespeaks a lack of comprehension and sensitivity to the child's needs and welfare.

    M.R. is undoubtedly sincere in her expressed belief that she is able to nurture A.R. and to provide sufficient love and attention to compensate for the loss and overcome any harm resulting from A.R.'s separation from J.S. and P.S. We cannot help wondering how accurate M.R.'s self-appraisal can be. We sense from the trial judge's remarks, contained in his oral decision, his concerns about M.R.'s ability to properly care for A.R., as well as his reluctance to impact negatively on M.R.'s rehabilitation. If we misread the trial judge, or read too much into his remarks, our remand will provide ample opportunity for him to expand his findings, within the legal guidelines we have outlined.

    In our view, the error of the trial judge was in assuming that because M.R. took many positive steps toward functioning in her own life, including apparent long-term abstinence from alcohol and drug use, and because he found her "fit" to be "a parent," that finding as a matter of law precluded the termination of her parental rights with respect to A.R. The judge did not explain his implicit answer to his own question, in our view the appropriate question, whether M.R.'s rehabilitation was "too little too late," at least for A.R.

    It has long been held that the biological parents' ability to cease to inflict harm, and to avoid future harm to their child's physical or mental health, are major factors in deciding whether to terminate parental rights. See, e.g., A.W., supra, 103 N.J. at 607 ("How long a court should be willing to wait, however, depends in part on the age of the child.") A child's need for stability, for consistency, and for permanence cannot be ignored in reaching in the most challenging decision any court can face. As our Supreme Court has recognized,

    The trial Judge recognized the need for additional expert opinion with respect to A.R.'s future, and even the possibility that she could never be reunited with M.R. without enduring substantial psychological harm. We conclude that the expert evidence in the record before the Judge was insufficient to permit a fully informed determination whether A.R. could be separated from J.S. and P.S., and returned to the custody of M.R. in the near future, without suffering undue harm. To deny adoption on this record, and to plan to keep A.R. in limbo for some long-term reunification plan, after all the years in which she has known only J.S. and P.S. as her parents and their three older children as her brothers and sister, is cruel to the child and suggests a misapplicatlon of the statutory and common law requirements.

    For that reason we remand this case to the trial court and call for additional psychological evaluations, including, without limitation, the court's appointment of an independent expert to offer additional professional insight into the critical question of likely harm to A.R. if she is removed from J.S. and P.S. in the near future. If reunification without substantial, long-term harm cannot reasonably be anticipated within a short time, termination of M.R.'s rights, freeing A.R. for adoption by J.S. and P.S., may well be appropriate. On remand, the court must consider whether, despite M.R.'s success in fighting her drug addiction, and participation in certain parenting skills workshops or courses, A.R.'s interest in remaining with her bonded family on a permanent, stable, legally sanctioned basis may outweigh M.R.'s interest in the limited relationship she has had with A.R. during eight of her nine and one-half years of life.

    The Supreme Court has raised but not decided the question whether some form of open adoption, in which the child maintains some contact with her biological parent(s) and/or family, is permissible in New Jersey. See J.C., supra, 129 N.J. at 26. Because J.S. and M.R. ate cousins, and extended family gatherings have the potential for bringing them together, the court on remand, depending upon its eventual decision, should address the question of future contact.

    We reverse the order dismissing the adoption complaint and ordering DYFS to prepare a reunification plan. We reinstate the complaint for adoption, and remand to the family court for further proceedings consistent with this opinion, and with due regard to the 1998 amendment to N.J.S.A. 9:3-46. Within thirty days of this decision, the court shall appoint an Independent expert to undertake a bonding evaluation consistent with J.C. Completion of the expert's report and a further hearing shall be scheduled on an expedited basis. On remand, the trial judge shall have the discretion to receive such additional testimony or other evidence as he shall deem appropriate. That additional evidence may include updated evaluations and testimony by professionals who have previously treated or evaluated A.R., M.R. or T.W.

    ¹ A.R. was eight years and nine months old at the time of trial.

    ² C.B.'s status is not an issue in this case.

    ³ D.B. defaulted and was not involved in the proceedings below.

    ⁴ It is most unfortunate, in our view, that the cases were not addressed in one county, instead of having separate proceedings involving the same biological mother in different counties, before different judges, over a period of years.

    ⁵ The proceeding In J.C. actually involved two children whose adoption was contested. Our discussion relates to one of the children, J.C.

    ⁶ In K.L.F., supra, 129 N.J. 32, termination was sought on the ground of abandonment, and denied because the facts showed there had not been a voluntary or intentional abandonment. The child, who was two-and-one-half years old when the termination petition was filed, had been in foster care with a pre-adoptive family for ten months.

    ⁷ Amendments to N.J.S.A. 9:3-46 were approved May 14, 1998, effective September ll, 1998. L. 1998 c. 20. As amended, N.J.S.A. 9:3-46 provides, in pertinent part:

The regular and expected functions of care and support of a child shall include the following:

(a) the maintenance of a relationship with the child such that the child perceives the person as his parent; . . .

A parent shall be presumed to have failed to perform the regular and expected parental functions of care and support of the child if the court finds that the situation set forth in paragraph (1) or (2) has occurred during the six month period prior to the placement of the child for adoption, or within 120 days after the birth of a child or prior to the date of the preliminary hearing, whichever occurs first, in the case of a child placed for adoption as a newborn infant.

(Emphasis added.)

    ⁸ We note the Senate and Assembly Committee statements to the amending statute, stating the specific purpose "to secure permanence in adoption" by requiring unmarried parents to acknowledge paternity as a prerequisite to notice and the right to object to an adoption. The committee statements add:

    ⁹ Justice Clifford, concurring in the result in J.C., would prohibit termination of parental rights unless clear and convincing evidence shows that DYFS has complied fully with the Child Placement Review Act, N.J.S.A. 30:4C-50 et seq., with respect to planning and implementing its plans for reunification of the biological family. 129 N.J. at 31 (Clifford, J., concurring). See also K.L.F., supra, 129 N.J, at 46-47 (Clifford, J., concurring). The Court did not go that far when it prescribed preconditions for termination based on predictable harm from separating the child from her psychologically bonded family. Justice Clifford's requirement would risk harming the child in order to punish or make up for an agency lapse.