RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3227-18T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION T.S., March 19, 2020
Defendant-Appellant, APPELLATE DIVISION
and
L.H.,
Defendant. ________________________
IN THE MATTER OF THE GUARDIANSHIP OF A.H.,
a Minor. ________________________
Argued February 5, 2020 – Decided March 19, 2020
Before Judges Fuentes, Haas and Enright.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-1l-0051-18. Mary Kathleen Potter, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mary Kathleen Potter, on the briefs).
Joshua Paul Bohn, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Joshua Paul Bohn, on the briefs).
Noel Christian Devlin, Assistant Deputy Public Defender, argued the cause for minor-respondent (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel Christian. Devlin, on the briefs).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Thirty-eight-year-old T.S. is the biological mother of A.H. (Andrea), a
little girl born in April 2015. 1 Twenty-six-year-old L.H. is Andrea's biological
father. T.S. appeals from the judgment of guardianship entered by the Family
Part on March 11, 2019, which terminated her parental rights to Andrea. The
Division of Child Protection and Permanency (Division) presented its case for
termination of defendants' parental rights to Andrea over a period of six
nonsequential days, commencing on December 11, 2018 and ending on
1 We use a pseudonym to refer to the child and initials to refer to the parties and other related individuals to protect their privacy and preserve the confidentiality of these proceedings. R. 1:38-3(d)(12).
A-3227-18T3 2 January 16, 2019. T.S. attended only two trial days. She was present on the
first day and returned to testify in her own defense on the last day of trial.
L.H. was present at the start of the first day of trial but left before the
conclusion of that day's proceedings. L.H. did not attend the remainder of the
trial and is not a party in this appeal.
For the first time on appeal, T.S. argues the judgment of guardianship
must be vacated and the case remanded for a new trial because the resource
parent with whom the Division placed Andrea since 2016, and who plans to
adopt the child, worked as a domestic violence liaison in the district office that
was responsible to investigate and manage this case from its inception. T.S.
emphasizes that although the Division could have easily avoided this
significant conflict of interest by simply transferring the case to a different
district office, it did not take action to remedy the situation.
Relying on the United States Supreme Court's decision in Brady v.
Maryland, T.S. argues that the Division's failure to forthrightly disclose this
material conflict of interest violated her right to due process of law, in the
same way a criminal defendant's right to due process is violated when the State
fails to disclose material information favorable to the defense. 363 U.S. 83, 87
(1963). Independent of this material omission, T.S. argues this case must be
remanded because the Division did not present clear and convincing evidence
A-3227-18T3 3 to support the trial judge's findings that termination of her parental rights is in
the child's best interest.
The Division argues the evidence presented at the guardianship trial
clearly and convincingly proved that termination of T.S.'s parental rights is in
the child's best interest. In response to T.S.'s claim of a conflict of interest,
the Division argues that T.S.'s reliance on Brady is misplaced because the
Supreme Court's holding in that criminal case is not applicable to guardianship
proceedings. However, even if we were to apply Brady to this case, the
Division claims it complied with its discovery obligations by providing T.S.'s
trial counsel with the caseworker's contact sheets that showed the resource
parent was assigned to the district office as a domestic violence liaison.
The Law Guardian agrees that T.S.'s parental rights to Andrea are
constitutionally protected and cannot be terminated without due process of
law. However, the Law Guardian also agrees with the Division's argument
that Brady's discovery obligations in criminal trials are not applicable to
guardianship proceedings. In this light, the Law Guardian characterizes the
resource parent's role in the Division's district office as "peripheral." The Law
Guardian argues that T.S. has the burden to produce evidence of "layers of
bias, through service providers and professionals independent of the Division. "
Without such proof, the Law Guardian argues "it is highly speculative that
A-3227-18T3 4 questioning the caseworker would have led to anything other than a fishing
expedition."
This appeal came for oral argument before this court on February 5,
2020. On February 7, 2020, we sua sponte ordered the parties to submit
supplemental briefs addressing the following three questions:
(1) Did the [Division] violate the Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -27 or any other relevant internal policy or directive?
(2) Is a remand necessary for the Family Part Judge to make specific findings of the type of conflict interests that occurred here? If so, should the Family Part Judge thereafter determine whether these conflicts of interests undermined the ability of the [Division] staff assigned to this case to fairly and impartially evaluate defendant's conduct and/or the foster parent's conduct?
(3) Was the [Division] responsible to disclose to the Family Part Judge, defendant's counsel, the Law Guardian, and/or the Attorney General the existence of this conflict of interest? If so, what sanction, if any, should be imposed for the [Division's] failure to carry out this ethical responsibility?
After reviewing the parties' submissions, including the supplemental
briefs, and considering the evidence presented at the guardianship trial, we
hold the Division violated the Conflict of Interest Law, N.J.S.A. 52:13D-12 to
-27, and the ethical standards promulgated by the Department of Children and
Families (DCF) and incorporated into the Department of Children and Families
A-3227-18T3 5 Policy Manual (Policy Manual) when it failed to transfer T.S.'s guardianship
case to another regional office based on the resource parent's assignment as a
domestic violence liaison. The Division's failure to take timely and effective
action to address this material conflict of interest tainted the management of
this case almost from its inception. Once the Division decided to seek the
termination of T.S.'s parental rights to Andrea, the perception of bias and the
probability of actual prejudice to T.S.'s constitutional right to parent her
daughter became paramount.
Under these circumstances, we are left with only one tenable outcome:
this matter must be remanded for the trial court to conduct a plenary hearing to
make factual findings that are conspicuously missing from the trial record. For
example: when did Division supervisors become aware that Andrea's resource
parent was assigned to the district office as the domestic violence liaison?; did
the supervisors make any effort to transfer the case after knowing the resource
parent's employment status?; was T.S.'s trial attorney aware of the resource
parent's employment status?; if not, why not?; if so, did counsel discuss this
issue with T.S.?; were the Deputy Attorney General (DAG) and the Law
Guardian aware of the resource parent's employment status?; if so, did either
one make any effort to apprise T.S.'s attorney and the trial judge?; was the trial
judge aware of the resource parent's employment status? These threshold
A-3227-18T3 6 inquiries merely provide a glimpse of the issues that need to be explored to
develop a reliable factual record. The purpose of the plenary hearing is to
enable the judge to ascertain the extent of the harm caused by the conflict of
interest and explore what remedies, if any, are possible to counteract or
alleviate this harm.
Furthermore and independent of the conflict of interest issues, we are
compelled to remand this matter to the Family Part because the record of the
guardianship trial is devoid of key factual findings that directly relate to
whether the Division presented a sufficient case to warrant the termination of
T.S.'s parental rights by clear and convincing evidence. Specifically, the
record before us does not show that the trial judge: (1) made credibility
findings regarding T.S.'s testimony, (2) identified which of the two
psychologists who testified as expert witnesses was more persuasive, (3)
articulated a basis for rejecting or distinguishing the opinion of the other
psychologist, and (4) applied the opinions offered by the experts in his analysis
of the four statutory prongs in N.J.S.A. 30:4C-15.1(a). There are thus two
factually independent and legally compelling grounds to vacate the judgment
of guardianship and remand this matter to the Family Part.
I
Conflict of Interest
A-3227-18T3 7 In their supplemental submissions, T.S., the Division, and the Law
Guardian all agree the Division violated the ethical standards established in the
Conflict of Interest Law and the protocols adopted by the Department of
Children and Families reflected in its Policy Manual. They disagree, however,
about what should be this court's response to these ethical transgressions. The
Division and the Law Guardian are of one mind on this point. The Division
argues it honored its discovery obligations when it provided T.S. with 1741
pages of documentary evidence, which included a number of contact sheets
filed by the caseworkers who monitored and managed Andrea's case.
In the initial brief filed in this appeal, T.S.'s appellate counsel identified
only three contact sheets that in her view revealed the conflict of interest
involving the resource parent. In the supplemental brief submitted by the
Division in response to this court's post-argument order, the DAG identified
twelve contact sheets that documented Division caseworkers' interactions with
the resource parent. The comments and observations noted by the caseworkers
in these contact sheets reveal a pattern of conduct oblivious to any ethical
considerations.
Division Contact Sheets
As part of the evidence presented to the Family Part in support of the
guardianship complaint to terminate T.S.'s parental rights, the Division alleged
A-3227-18T3 8 the Hamilton Township Police Department reported to the Division that on
January 10, 2016, police officers responded to the residence of T.S. and L.H.
"due to a physical altercation" between them. A representative of the Police
Department told the Division that T.S. was "the aggressor" in this act of
domestic violence and was allegedly "under the influence of alcohol and
intoxicated at the time of the altercation." On January 12, 2016, with the
assistance of Hamilton police officers, the Division executed an emergency
Dodd2 removal of Andrea and placed her in the physical custody of the
resource parent.
The next day, T.S. and L.H. went to the local Division office to inquire
about what caused Andrea's involuntary removal from their care and custody.
A Division caseworker and a supervisor told the parties that Andrea's removal
was due to T.S.'s "admission" that she illegally sold her prescription pills and
"[L.H.'s] marijuana abuse." Both the caseworker and the supervisor also
expressed "their concern in regards to the domestic violence incident" that
occurred two days before Andrea's removal. According to the account of the
encounter in the verified guardianship complaint, L.H. "minimized the incident
2 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).
A-3227-18T3 9 and stated . . . 'all couples argue.'" The Division also averred that T.S. "was
substantiated for risk of physical injury/environment injurious to health and
welfare of the minor child."
The earliest relevant Contact Sheet is dated May 18, 2016, more than
five months after Andrea was involuntarily removed from her biological
parents' custody and placed with the resource parent. The Contact Sheet
entered by Division caseworker Aisha Little memorialized what she discussed
in a telephone call made by Andrea's resource parent, B.O., who is identified
here as "RP."
Worker received a call from RP. RP reported she had been leaving messages for the previous worker, Mr. Rodriguez. She reported the Division's workers have always called her on her work cell phone. She provided worker with her personal cell phone [number] . . . . Worker thanked RP for this information. R[P] reported [Andrea] is sick today. She reported she had been sick since Saturday with a fever that has been on and off. RP reported her friend . . . who is a nurse took [Andrea] to the doctors and is watching her today. [Andrea's] throat is red and appears irritated, but strep was ruled out. RP reported she has been sick numerous times since being at the daycare. RP reported she had pink eye twice, and hand foot and mouth. R[P] reported she is picking up everything from the daycare. RP voiced concern about [Andrea's] visit supervised by the previous worker. She reported [Andrea] came home smelling like smoke and "weed." RP reported it appears the family is up to their old tricks.
A-3227-18T3 10 When asked about her work schedule, worker was informed RP would be the new DVL [Domestic Violence Liaison] for the Mercer South Office. RP reported her hours of work to be 9 to 5pm. She reported she is home by 5:30 pm. She reported [Andrea] usually eats around 6. Worker reported she would try to make it to the home by the end of the week.
[(Emphasis added).]
This Contact Sheet was electronically approved by caseworker Little on
June 13, 2016. Division Field Office Supervisor Latanya Forest electronically
approved it on July 25, 2016.
The next Contact Sheet, dated June 2, 2016, was "created" by Field
Office Supervisor Imani Coleman-Robinson. It summarizes T.S.'s alleged
criminal activities involving the illicit sale of prescription opioid medication,
L.H.'s substance abuse problem with marijuana, the Division's unsuccessful
attempt "to implement a safety protection plan," and the domestic violence
incident that resulted in Andrea's emergent and involuntary removal from the
custody of her parents and placement in the home of the resource parent who
would eventually seek to adopt the child. The Contact Sheet also mentions
that T.S. "came home drunk and was the aggressor" in an incident of domestic
violence against L.H. The caseworker also described that both T.S. and L.H.
"have not been compliant with services that include parenting classes, anger
management classes, and individual counseling."
A-3227-18T3 11 Supervisor Coleman-Robinson structured her six-page Contact Sheet
into six separate subheadings. The comments and observations she made in
each subheading about Andrea, T.S., and the resource parent elucidate how the
conflict of interest created by the resource parent's employment status affected
the Division's management of this case from its inception.
PLACEMENT
Following [Andrea's] removal from her parents, she was placed in the unrelated resource home of Ms. [B.O.] in Hamilton, NJ. The child is doing wonderful in the resource home and the caregiver is committed to adoption. It was recently learned that Ms. [B.O.] applied for and was hired as the Domestic Violence Liaison in the Mercer South Local Office. She works in the office every Monday.
VISITATION
[T.S.] visits the child in the Mercer South Local Office and the visits will be transitioned to Legacy. Visits are currently scheduled Mondays and Wednesdays from 10:30 a.m. to noon and are occasionally longer. Visits are going fine and no concerns noted other than the resource parent asking that [T.S.] stop changing the child's clothes during the visit due to a concern about [T.S.] having bed bugs in the past. Sibling visits are occurring and will be completed at Legacy. Family will be referred.
PERMANENCY
Although [T.S.] has reported that she and [L.H.] are no longer a couple, the April 14, 2016 Legacy Treatment Services report provided for [T.S.'s] visitation with [her other child] indicates, "Care
A-3227-18T3 12 Coordinator observed [T.S.'s] engagement ring and asked if she was engaged. [T.S.] stated, "Yes, to my daughter's father. But I already told him, this ring[] doesn't mean anything if he doesn't do his service to help get our daughter back." Due to concerns of domestic violence, this should be explored. [T.S.] will be referred for domestic violence services but cannot be referred to the DV liaison in the Mercer South Local Office as this is [Andrea's] resource parent.
Supervisor Coleman-Robinson ended her Contact Sheet by identifying
fifteen "tasks" that in her judgment needed to be completed. The following
items include only those "tasks" that in our judgment reveal areas that need to
be explored in a plenary hearing by the Family Part to determine how the
Division's failure to transfer this case to another district office in a timely
fashion affected T.S.'s right to parent her daughter:
5. Complete Family Reunification Assessment and Caregiver/Child Strengths and Needs Assessment.
....
7. Ensure that the parents have been referred to all court ordered and recommended services.
12. [T.S.'s] visits are currently in the Mercer South Local Office and should be transitioned to Legacy as discussed.
13. Make a conscience effort to keep [T.S.] and the resource parent separate in the local office. [T.S.'s]
A-3227-18T3 13 visits are in the office on Mondays and the [Domestic Violence Liaison] is present on the same day in the office.
14. Refer [T.S.] to domestic violence services through another provider if possible. If not, the referral should be made to the DVL's supervisor and she should be advised of the confidentially of the matter.
15. Discuss ASFA 3 time frames and provide the KLG 4 vs. Adoption fact sheet to the parents and resource parent.
Field Office Supervisor Coleman-Robinson electronically approved her own
Contact Sheet on June 10, 2016.
Caseworker Jennifer Armstrong entered a Contact Sheet on November
28, 2016, to document an event that occurred twenty-six days earlier on
November 2, 2016. Caseworker Armstrong noted that "[f]ollowing [Andrea's]
removal from her parents, she was placed in the unrelated resource home of
Ms. [B.O.] . . . where she remains." B.O. lives with her sixteen-year-old son,
3 ASFA is an acronym for the federal "Adoption and Safe Families Act of 1997," adopted by Congress in 1997. ASFA requires a state receiving federal funding to adopt procedures to prohibit persons who have been convicted of child abuse or neglect, spousal abuse, or any crime against children, or for a crime involving violence, from becoming resource parents. 42 U.S.C.A. § 671(a)(20). See N.J. Div. of Child Prot. & Permanency v. K.N., 435 N.J. Super. 16, 34-35 (App. Div. 2014); see also Resource Family Parent Licensing Act, N.J.S.A. 30:4C-27.3 to -27.15. 4 KLG stands for the Kinship Guardianship Act, N.J.S.A. 3B:12A-1 to -7.
A-3227-18T3 14 Andrea, and a family dog. The caseworker noted Andrea was "doing well in
the home" and that B.O. "wishes to adopt [Andrea]."
Near the middle of the Contact Sheet, Caseworker Armstrong mentioned
that B.O. "is now a domestic violence liaison at the Mercer South and Mercer
North Local Office. The case is restricted in NJS."5 The caseworker also
noted that "[a] few months ago 6, the caseworker did need to speak with [the
resource parent] as she noticed that she was referring to the child [by another
name], as were the daycare staff. The caseworker informed [the resource
parent] that the child must be called by her name, [Andrea]."
5 None of the parties defined "NJS." Whether it refers to some type of confidential or restricted Division database or record management system, we cannot say. We therefore have no basis to conclude this was an attempt by the Division to ameliorate the conflict of interest. 6 "A few months ago" is a facially unacceptable way to identify when an event of this magnitude occurred. We expect the state agency entrusted to safeguard the safety and welfare of our children would demand far greater precision from those responsible to document these events. Our independent review of the Division record revealed that Division caseworker Aisha Little documented the same transgression by the resource parent in a Contact Sheet dated July 7, 2016. Caseworker Little wrote: "This writer also explained that bio mom noticed [Andrea] was becoming confused when she called her. RP indicated everyone calls her Anna, and its only mom and the workers that call her [Andrea]. Worker explained that was because her name is [Andrea]. RP indicated she would call her [Andrea]." However, as caseworker Armstrong's Contact Sheet dated November 2, 2016 shows, the resource parent continued to refer to the child by another name 118 days after caseworker Little explicitly explained to her that this unsanctioned behavior was confusing the child and upsetting T.S.
A-3227-18T3 15 Caseworker Armstrong noted a report of a psychiatric evaluation of T.S.
completed on November 4, 2016 indicated that T.S. was the "victim of
significant physical abuse by her mother and sexual abuse by her mother's
boyfriend, with her not receiving any support or protection from her mother
even [after] she divulged being sexually abused."
The psychiatrist diagnosed T.S. as a
victim of neglect, physical abuse, sexual abuse as a child, and domestic violence; perpetrator of domestic violence; provisional PTSD; unspecified depressive disorder vs. unspecified bipolar disorder; unspecified anxiety disorder; cannabis use currently in remission as per review of collateral sources; adolescent antisocial behavior; adult antisocial behavior with history of violations of restraining orders; presence of maladaptive personality traits in clusters A, B, and C.
Although the psychiatrist opined that T.S. should be treated with both
pharmacological and therapeutic modalities, the caseworker wrote in the
Contact Sheet that T.S. "is not on any medication at this time." Finally, as was
the case in the prior Contact Sheets, caseworker Armstrong noted: "[T.S.] will
be referred for domestic violence services but cannot be referred to the DV
liaison in the Mercer South Local Office as this is [Andrea's] resource parent ."
(Emphasis added). Caseworker Armstrong also included a list of twenty-one
"TASKS TO BE COMPLETED." Task number 9 recommended to "[c]onsider
unsupervised visitation between [T.S.] and [Andrea]." Of particular relevancy
A-3227-18T3 16 here, Task number 16 stated: "[r]efer [T.S.] to domestic violence services
through another provider if possible. If not, the referral should be made to the
[Domestic Violence Liaison's] supervisor and she should be advised of the
confidentially of the matter." Armstrong "electronically approved" her own
Contact Sheet on November 28, 2016, under the title of "Concurrent Planning
Specialist."
The next relevant Contact Sheet was entered into the Division's records
by Field Office Supervisor Coleman-Robinson on May 22, 2017 to
memorialize an Annual Internal Placement Review of this case held at the
Division's Mercer South Local Office on May 16, 2017. The following
"interested parties" attended the review: Permanency Caseworker Laverne
McDow; Casework Supervisor Ava Sharpe; and Field Office Supervisor
Coleman-Robinson, who identified herself as "Internal Placement Reviewer."
The Contact Sheet also noted that Child Health Unit Nurse Cheryl Berkin was
"consulted following the review." The previous "Family Team Meeting"
occurred on February 28, 2017.
The Contact Sheet included the following statement under the
subheading "PLACEMENT":
Following [Andrea's] removal from her parents, she was placed in the unrelated resource home of [B.O.] in Hamilton, NJ. The child is doing wonderful in the resource home and the caregiver is committed to
A-3227-18T3 17 adoption if the child cannot be reunified with her biological family. [B.O.] currently works as a domestic violence liaison at the Mercer South and Mercer North Local Offices. The case is restricted in NJS. Since the 5th month Internal Placement Review on this case, [Andrea] has remained in her resource home with [B.O.] and continues to do well.
Under the subheading "SERVICES/STABILITY" the Contact Sheet
noted "[t]he Division continues to work with [T.S.] towards reunification with
[Andrea]." Immediately following this ostensible mission statement, the
Contact Sheet described the therapeutic services the Division provided T.S.
and acknowledged that she "is actively completing the parenting element of
the program; as well as attending individual therapy." The Contact Sheet also
documented that on May 1, 2017, "the Division received an RI regarding
[T.S.]" Although the initials "RI" are not explained, they relate to an
anonymous report of unsubstantiated allegations that T.S. was engaged in
prostitution and had "a domestic violence altercation about a week ago . . .
[where] [L.H.] broke a window."7 After discussing the services the Division
provided to T.S. up to that point, the Contact Sheet noted "[t]here are also
concerns of domestic violence with [T.S.]."
7 Because the "RI" reporter also alleged T.S. was abusing illicit drugs, the Division requested her to submit to a drug screen. "The results returned negative for all illicit substances."
A-3227-18T3 18 Under the subheading "PERMANENCY," the Division noted T.S.'s
"progress with reunification services and compliance with the court order[,]"
and reaffirmed that "the Division's permanency goal remains reunification with
a concurrent goal of adoption at this time." To realize that goal, the Contact
Sheet listed eighteen "TASKS TO BE ADDRESSED TO ENSURE
PERMANENCY." Task 9 stated: "The last RI mentioned concerns regarding
domestic violence. [T.S.] should be referred for domestic violence counseling
if this is a concern. The Mercer office's liaison cannot be used as this is the
child's resource parent." Field Office Supervisor Coleman-Robinson
electronically approved her own Contact Sheet on May 22, 2016.
II
Standard for Assessing Conflict of Interest
When the Legislature adopted the Conflict of Interest Law effective
January 11, 1972, it established the overarching public policy that guides our
review of the conduct of the Division employees who managed this
guardianship case.
In our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people. Public officials must, therefore, avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated.
A-3227-18T3 19 [N.J.S.A. 52:13D-12(a) (emphasis added).]
"The paramount objective of the Conflicts of Interest Law in general is
to 'ensure propriety and preserve public confidence' in government." Knight v.
Margate, 86 N.J. 374, 391 (1981). The Conflict of Interest Law applies "not
only to situations of actual conflict of interest and divided loyalty, but also to
their appearance." In re Advisory Comm. on Prof'l Ethics Opinion 621, 128
N.J. 577, 585 (1992). Because the Conflict of Interest Law covers such a wide
spectrum of public employees, the Legislature directed State agencies that
perform highly specialized functions to develop and implement their own
ethical standards that reflect and incorporate the agency's unique mission.
To ensure propriety and preserve public confidence, persons serving in government should have the benefit of specific standards to guide their conduct and of some disciplinary mechanism to ensure the uniform maintenance of those standards amongst them. Some standards of this type may be enacted as general statutory prohibitions or requirements; others, because of complexity and variety of circumstances, are best left to the governance of codes of ethics formulated to meet the specific needs and conditions of the several agencies of government.
[N.J.S.A. 52:13D-12(b) (emphasis added).]
Effective September 19, 2014, the Department of Children and Families
adopted a Policy Manual for Division employees to supplement the Uniform
Ethics Code and address "the particular needs and problems of the
A-3227-18T3 20 Department." The Policy Manual is structured in Sections that identify
categories or areas of activities to guide Division employees.
Section G: Misuse of Official Position
1. Each Department employee and special State officer shall conduct him or herself in an appropriate and professional manner during the course of performing his or her public duties. Each DCF employee or special State officer is responsible for setting clear boundaries to assure that he or she does not establish an improper relationship with any person who is supervised, served, regulated, being investigated, or has a prior history with the Department.
3. No Department employee or special State officer shall perform official duties in any manner from which it might be reasonably inferred that the influence either of a personal relationship or of an unprofessional circumstance caused the employee to act in a biased or partial manner.8 [(Emphasis added).]
The section of the DCF Policy Manual that addresses the Management of
Resource Family Parents includes "Domestic Violence Liaisons" under the
definition of "DCF employee." Volume IV, Chapter B, Subchapter 6, Issuance
800 "establishes policies and procedures for DCF staff to follow when a DCF
8 The Division's Policy Manual can be found at the following link: https://www.state.nj.us/dcf/policy_manuals/DCF-IV-A-1-100_issuance.shtml.
A-3227-18T3 21 employee seeks to become a resource family parent." Under this regulatory
scheme, the Ethics Liaison Officer (ELO)
is responsible for guiding the application process for any DCF employee requesting to be a kinship caregiver or adoptive parent in an effort to avoid conflicts of interests or potential conflicts of interest.
The ELO also serves as a neutral party overseeing all procedural matters regarding the process and acts as the liaison between the applicant and [Division] executive management. 9
Once a DCF employee expresses an interest in becoming the resource
parent of a child under the Division's supervision, the employee must recuse
her or himself "from any activity that may influence or be perceived to
influence the outcome of the agency’s decision regarding the application ."
(Emphasis added). The scope of this recusal includes, "but is not limited to,"
gathering information about the child through open public sources or
reviewing confidential Division records concerning the case or the child. " The
Ethics Liaison Officer will instruct the employee of proper conduct in relation
to his or her application if the application is approved to proceed for a home
study." (Emphasis added).
9 Volume IV, Chapter B, Subchapter 6, Issuance 800 of the Division's Policy Manual can be found at the following link: https://www.nj.gov/dcf/policy_manuals/CPP-IV-B-6-800_issuance.shtml.
A-3227-18T3 22 Towards that end, the Division must take "appropriate and timely
identification, assessment, and intervention to promote successful outcomes
regarding child safety, well-being, and permanency." This requires "a
collaborative approach which may include the [Division] Worker, Supervisor,
Case Work Supervisor (CWS), Local Office Domestic Violence Liaison
(DVL), Deputy Attorney General (DAG), law enforcement, and the courts to
ensure child safety and well-being." (Emphasis added). The following
description shows how Domestic Violence Liaisons are expected to be a key
part of this collaborative approach:
Domestic Violence Liaison (DVL): is a partnership between the Department of Children and Families and the NJ Coalition to End Domestic Violence at the State level and the [Division] Local Offices and domestic violence programs at the county level. Domestic Violence Liaisons are domestic violence specialist co-located at the [Division] Local Offices (when available), to provide case consultation, support and advocacy for domestic violence victims and their children. The purpose of this collaboration is to:
- Increase safety, improve outcomes, and reach the primary goals for children and their non-offending parent in domestic violence situations. - Strengthen DCF/[Division] capacity to provide effective assessments and intervention for families in domestic violence situations.10
10 Volume VIII, Chapter B, Subchapter 1, Issuance 100 of the Division's Policy Manual can be found at the following link: https://www.nj.gov/dcf/policy_manuals/CPP-VIII-B-1-100_issuance.shtml.
A-3227-18T3 23 Volume VIII of the DCF Policy Manual contains eight "Special Interest
Topics" organized in alphabetical order from A to H. Section B addresses
"Domestic Violence." Its purpose is to establish "policy and procedures for
[Division] staff working with families where domestic violence is alleged,
suspected, or co-occurs with child abuse or neglect." The "Policy" of the
Division in cases involving domestic violence is to "[p]ut safety first." The
Division must not permit a child to remain "in homes that have been assessed
as unsafe, without a Safety Protection Plan . . . in place." However,
reunification is appropriate "once safety concerns have been remediated or a
safety intervention is in place."
Subsection E describes the conditions imposed on DCF employees who
wish to become a kinship resource family or adoptive parent; Subsection F,
denoted "Required Approvals," lists the DCF staff members who must approve
the application "[b]efore an employee makes an application to the Resource
Family Support Unit to be considered for a kinship resource or adoptive
home." The DCF staff members involved in this pre-qualification approval
process are: the employee's Direct Supervisor, the Local Office Manager, the
Area Director, the DCF Ethics Liaison Officer, and the Division Director, who
is the one empowered to "give[] the final approval to move the selection
process."
A-3227-18T3 24 Of particular relevance here, the DCF Policy Manual expressly states
that after this preapproval process is completed, the Division's "Area Director
responsible for the open case determines the office of supervision. The child’s
case is supervised by a Local Office other than the one where the employee is
officially stationed. The assigned Worker has no professional, personal, or
familial relationship to the employee." (Emphasis added).
Appearance of Impropriety
In Knight v. Margate, the Supreme Court was confronted with "the
fundamental issue of whether the Conflicts of Interest Law, as most recently
amended . . . impinges upon the Supreme Court's constitutional powers under
Art. VI, § 2, par. 3." 86 N.J. at 391. The Court ultimately upheld the
constitutionality of the statute. Writing for a unanimous Court, Justice Handler
explained: "We do not believe that the restrictions imposed by the latest
amendments, L. 1981, c. 142, will in any way interfere with the sound
administration of the judicial system or undermine the proper regulation of the
ethical conduct of members of the judiciary and the bar." Id. at 394. Justice
Handler noted that "[t]here can be no equivocation on the point that the New
Jersey Conflicts of Interest Law, as most recently amended, vitally serves a
significant governmental purpose. The paramount objective of the Conflicts of
A-3227-18T3 25 Interest Law in general is to 'ensure propriety and preserve public confidence'
in government." Id. at 391 (quoting N.J.S.A. 52:13D-12(b)).
The Court revisited the Conflict of Interest Law to determine the
propriety of legislatively imposed "ethics restrictions on the private practice of
lawyers who are part-time legislative aides." In re Advisory Comm. on Prof'l
Ethics Opinion 621, 128 N.J. at 581. The Court ultimately upheld the
application of the statute in this limited context. Writing for a unanimous
Court, Chief Justice Wilentz noted that "[t]he purpose of the Act is to maintain
the public's confidence in government and its officers and employees." Id. at
581. The Court also emphasized that the "appearance of impropriety" can
erode the public's confidence that government employees have exercised their
authority and carried out their responsibilities in a fair and impartial manner.
Id. at 582; See also In re Advisory Committee on Professional Ethics Opinion
705, 192 N.J. 46, 56 (2007).
The Division's "statutory mission is to protect the health and welfare of
the children." N.J. Div. of Youth & Family Servs. v. E.B., 137 N.J. 180, 184
(1994) (citing N.J.S.A. 30:4C-4). As the State agency responsible to safeguard
the welfare of our children, the Division must guard against anything that
erodes the twin pillars underpinning its statutory mission: "(1) that no child
should be exposed to the dangers of abuse or neglect at the hands of their
A-3227-18T3 26 parent or guardian; and, commensurately, (2) that no parent should lose
custody of his/her child without just cause." Division of Youth & Family
Services v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).
Our Supreme Court has recognized that few forms of state action are as
severe as the termination of parental rights because it irreversibly severs the
relationship between children and their biological parents. N.J. Div. of Child
Prot. & Perm. v. R.L.M. (In re R.A.J.), 236 N.J. 123, 144 (2018). As our
colleague Judge Koblitz succinctly and powerfully stated In re Adoption of
Child by J.E.V.:
After the elimination of the death penalty, we can think of no legal consequence of greater magnitude than the termination of parental rights. Such termination "sever[s] the parent-child bond, . . . is irretrievably destructive of the most fundamental family relationship," and "the risk of error . . . is considerable." "[A] natural parent's desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right."
[442 N.J. Super. 472, 481 (App. Div. 2015) (footnote omitted) (citations omitted).]
In light of the magnitude of the power entrusted to the judiciary and the
Division, there are times when it becomes an absolute imperative for this court
to state, without equivocation, what is at stake behind the mountain of papers
that make up the appellate record in this guardianship trial. Within the nearly
A-3227-18T3 27 1800 pages that document the history of the Division's involvement in the life
of T.S. and her children, the record of this particular case reveals one
undeniable truth: the Division caseworkers and supervisors who were
responsible to manage this case from its inception were utterly oblivious of
their ethical obligations under the standards established by the Legislature in
the Conflict of Interest Law and the protocols adopted by the DCF in its Policy
Manual.
The contact sheets we have examined in great detail show that none of
the Division employees who interacted with T.S., Andrea, and B.O. ever
thought to consult the DCF's Ethics Liaison Officer or take any action to
investigate the propriety of managing this case under these circumstances.
There is clear evidence that the Division's initial family reunification goal
quickly morphed into a full blown permanency plan predicated on the
termination of the biological parents' parental rights, followed by Andrea's
adoption by B.O. We find particularly disturbing that the caseworkers and
supervisors involved failed to grasp, as a matter of commonsense, the ethical
implications of this material change in direction by the Division and remained
indifferent to an arrangement that cast them, as the Division's representatives,
in an adversarial role to T.S.'s constitutional rights to parent Andrea. To be
clear, this case was tainted with an untenable appearance of impropriety from
A-3227-18T3 28 the moment the Division's district office supervisor knew, or under the
circumstances should have known, that B.O. was assigned to serve as the
Domestic Violence Liaison in the same local office as the Division
caseworker's supervising Andrea's case and thereafter failed to transfer the
case to another district office, as per the protocol established in the DCF
Policy Manual.
However, what occurred here involved much more than the failure of
one district office supervisor. The record shows a wholesale failure to follow
any of the protocols established in the DCF Policy Manual and the statutory
requirements of the Conflict of Interest Law by all of the caseworkers and
supervisors who interacted with this case. The magnitude of the harm caused
by this systemic failure cannot be accurately determined by this appellate
court. Although the government employees responsible can be held
accountable, the harm to T.S., Andrea, and possibly even B.O. in her role as
the resource parent needs to be explored and determined by the Family Part in
a plenary hearing.
At this plenary hearing, the Family Part must begin with the most
vulnerable and truly innocent person most affected by what occurred here,
Andrea. The judge must assess what psychological and/or emotional harm
Andrea may suffer if she were to be returned to T.S.'s physical custody. The
A-3227-18T3 29 Division placed Andrea with B.O. immediately after her involuntary emergent
removal on January 12, 2016. The child has resided with and been part of
B.O.'s family for the past four years. As our Supreme Court has found, and the
Division recognizes in its regulations, a young child's "sense of time is
different than that for older children or adults." Div. of Youth & Family
Servs. v. I.S., 202 N.J. 145, 179 (2010) (quoting N.J.A.C. 10:122D-1.14(a)(3)).
The Family Part judge must determine whether Andrea's reunification with
T.S. is in the child's best interest at this stage of her emotional, psychological,
and cognitive development.
Guided by its parens patriae responsibility, the Family Part must
determine whether T.S. is capable of safely and responsibly parenting her
daughter. These determinations must also be guided by the four -prong
standard codified in N.J.S.A. 30:4C-15.1(a), which are not mutually exclusive.
They instead overlap "to provide a comprehensive standard that identifies a
child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
A court's application of the best-interests standard is a fact-sensitive
undertaking, which must rely on particularized evidence addressing the
circumstances unique to each case. Ibid. Given the passage of time, prudence
dictates that updated psychological and bonding studies be conducted
A-3227-18T3 30 involving T.S., B.O., and Andrea. We leave it to the discretion of the Family
Part judge to determine whether any additional information is warranted.
III
The shadow of impropriety and unfairness cast over this case by the
failure of the Division to follow the Conflict of Interest of Law and its own
Policy Manual and the harm this caused to T.S. and Andrea cannot be
overstated. However, this court does not have the jurisdiction to hold the
individuals involved here accountable. We thus direct the Appellate Division
Clerk to forward a copy of this opinion to the State Ethics Commission Office,
the State agency with the "jurisdiction to initiate, receive, hear and review
complaints regarding violations, by any current or former State officer or
employee or current or former special State officer or employee, in the
Executive Branch[.]" N.J.S.A. 52:13D-21(h).
The conduct of the attorneys in this case is not beyond this court's
jurisdiction. The Attorney General represents the Division. We expect the
DAG's who represent the Division in future cases to inform caseworkers and
other Division staff that they are duty bound to disclose to the Family Part all
material information related to any conflict of interest affecting the
management of the case. This same obligation applies to the Law Guardian
A-3227-18T3 31 and the Office of the Public Defender or private attorneys who represent a
party in these proceedings.
IV
Although the violations of the Conflict of Interest Law are sufficient to
vacate the judgment of guardianship and remand for a plenary hearing, we are
compelled to note and comment on the trial judge's failure to make key factual
findings concerning T.S.'s testimony and address and resolve the inconsistent
expert testimony provided by the two psychologists who testified at trial.
Dr. Alan Lee testified on behalf of the Division. He is a licensed
psychologist with an independent practice who specializes in clinical and
forensic psychology and evaluations and consultation. After conducting a
psychological evaluation of T.S., Dr. Lee diagnosed 11 her to have a
"maladaptive personality and character traits that are expected to jeopardize
and compromise her ability to function as a minimally adequate parent to . . .
[a] child [of Andrea's age]." He also opined that T.S.'s parenting knowledge
and skills were demonstrably limited in scope and depth as were her insight
and awareness of the issues that prevent her from safely reuniting with Andrea.
11 Dr. Lee testified that he used the DSM-IV to diagnose defendant rather than the DSM-V, which is the most recent version of the manual. He claimed the DSM-V does not operate on an axis system. He also claimed the National Institute of Mental Health and other major mental health organizations still utilize the DSM-IV.
A-3227-18T3 32 According to Dr. Lee, T.S. had impaired cognitive skills and limited
intellectual abilities as demonstrated by her IQ score of 73.
Dr. Lee also conducted a bonding evaluation of T.S. and Andrea and one
between B.O. and Andrea. He did not find anything acutely problematic
during T.S.'s bonding evaluation with the child. Dr. Lee noted Andrea did not
show any remarkable aversion or distress to T.S. and they both seemed to
enjoy their time together. He noticed, however, that Andrea did not display
any observable stress when T.S. left the room as part of the evaluation.
By contrast, Dr. Lee opined that the interactions between B.O. and
Andrea were very positive during their evaluation. The quality of their
interactions "were relatively more positive and favorable than those during the
child being with . . . [T.S.]." He noted that Andrea was "generally more
animated, verbal with the resource mother than with [T.S.]." Although the
observation periods are important, Dr. Lee emphasized they are only one factor
of the overall bonding evaluation. In his opinion, the positive aspects of T.S.'s
bonding session were outweighed by her extensive history with the Division.
This problem is exacerbated by the fact that Andrea had not been in T.S.'s
direct care since she was approximately nine months old.
Dr. Lee opined that Andrea's bond with T.S. was "ambivalent and
insecure." This was indicative of a low risk that she would suffer severe or
A-3227-18T3 33 enduring harm if their relationship were severed. Conversely, Dr. Lee found
Andrea shared a significant and positive bond with B.O. In his opinion, there
was a significant risk that Andrea would suffer severe and enduring harm if
this relationship were terminated. He also opined that B.O. would be more
capable to mitigate any potential harm the child would endure if her
relationship with T.S. was terminated. Dr. Lee did not support reunification
between T.S. and Andrea. He supported the Division's plan of adoption by
B.O.
Licensed psychologist Dr. James Reynolds testified for T.S. Based on
her self-reporting, Dr. Reynolds testified that T.S. had a stable residence and
was gainfully employed. She also received disability support, which he
believed was "probably related to her . . . intellectual disability, the borderline
intellectual functioning." Based on his evaluation, Dr. Reynolds opined T.S.
possessed the capacity to be a fit parent and to adequately and safely care for
Andrea. He opined T.S. was capable to adequately and safely develop a
healthy support system. He believed T.S. had the "resources, knowledge and
skills necessary to safely" parent Andrea.
Given her history of abuse as a child, Dr. Reynolds recommended T.S.
receive trauma informed services and therapy and noted the records provided
to him did not show any referrals for such services. Dr. Reynolds was also
A-3227-18T3 34 surprised that T.S. had not been referred for domestic violence counseling and
recommended that she participate in this form of counseling.
Dr. Reynolds also conducted bonding evaluations between Andrea, T.S.,
and B.O. He testified that Andrea appeared to be very comfortable with T.S.
and identified and internalized her as a maternal figure. Andrea did not seem
uncomfortable, anxious, angry, or ambivalent about T.S. He opined the child
interacted with T.S. in an age-appropriate manner and their interactions were
positive, joyful, and spontaneous. He noticed that as soon as Andrea saw T.S.,
she "smiled broadly and approached her for a hug." Andrea called T.S.
"mommy" throughout the evaluation and at one point, she "spontaneously
kissed [T.S.] on the cheek." He opined that Andrea and T.S. "have a really
healthy mother/daughter bond."
Dr. Reynolds also opined that Andrea appeared to internalize B.O. as a
maternal figure. He found their interactions were positive, comfortable, and
age-appropriate with no indication of negative feelings between the two. He
candidly opined that Andrea's bond with T.S. and her bond with B.O. were in
equipoise. Each bond was a safe and secure one. Dr. Reynolds concluded that
Andrea would experience severe and enduring harm if either relationship were
severed. However, he found that the strength of Andrea's bond with T.S.
A-3227-18T3 35 would help her mitigate the severe and enduring harm of terminating her
relationship with B.O.
T.S. testified in her own defense. Her testimony consisted mostly of a
wholesale denial or repudiation of anything the Division alleged against her.
She denied telling any Division representative that she sold her prescription
pain medication. She denied calling L.H. during any of her visits with Andrea
or telling the Division about a physical altercation she had with L.H. T.S.
conceded that she missed her visitation with Andrea one time due to work or a
doctor's appointments. However, she provided the Division with
documentation to support her claims.
The Family Part judge's written statement of decision did not directly
address the expert witnesses' testimony nor did it make any attempt to
reconcile or harmonize their disparate conclusions. Stated differently, we are
unable to discern how the judge reached the conclusion that the Division
proved, by clear and convincing evidence, that termination of T.S.'s parental
rights is warranted. Equally problematic is the judge's failure to determine
whether he found T.S.'s testimony credible. These material omissions alone
are sufficient to warrant that we vacate the judgment of guardianship and
remand the matter for the judge to make the findings of facts and conclusion of
law required by Rule 1:7-4(a). As we made clear more thirty years ago:
A-3227-18T3 36 [F]ailure to perform the fact-finding duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion. In the absence of reasons, we are left to conjecture as to what the judge may have had in mind.
[Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990).]
V
This case stands as a model of how not to investigate, manage, and
adjudicate a guardianship trial. Under these circumstances, we are compelled
to reverse the judgment of guardianship and remand the matter to the Family
Part to make specific factual findings and conclusions of law consistent with
this decision.
Reversed and remanded. We do not retain jurisdiction.
A-3227-18T3 37