DYFS v. J.L./Matter of A.L., unpublished opinion, App. Div. Docket No. A-5503-08T3 (May 12, 2010) – “In this appeal of a judgment terminating parental rights, we vacate and remand because the evidence failed to dispel uncertainties about the foster parents’ willingness to adopt and because the judge mistakenly rejected, as a matter of law, the opinion of defendant’s expert that the status quo was in the child’s better interest than termination….
Having closely examined the record in light of the arguments posed, we find no reason to question the judge’s findings on the first two prongs and that part of the third prong that required proof of the Division’s reasonable efforts to ameliorate the reasons for the child’s placement outside the home….
Because the judge felt bound to limit his findings to that which would provide a permanent solution, even at the potential cost of the child’s best interests, we must reject the judge’s determination on the fourth prong…. We also conclude that the judgment cannot rest on the judge’s findings on the fourth prong because the evidence regarding adoption was too inessential to meet the requirement that the prong be proven by clear and convincing evidence.
We discern from the judge’s decision that he concluded termination would not do more harm than good because he expected that the aunt and uncle would adopt Anna. The record, however, reveals uncertainty about the commitment of the aunt and uncle to adopt…. [A]dditional proceedings should at least include testimony from the aunt and uncle, as well as any other witnesses who might possess relevant knowledge on the question of adoption and, if the alleged commitment of the aunt and uncle to adopt is conditional, whether those conditions can or will be met.
The judge should also permit the presentation of other evidence that may provide an understanding of what has occurred in the interim with Anna, her current relationship with her foster parents, and her current relationship with defendant, and whether or to what extent defendant has continued to make progress.”