Halpern, Larner and King. The opinion of the court was delivered by King, J.A.D.
This matter is here on appeal by the New Jersey Division of Youth and Family Services (Division) following the trial court's grant of defendants' motions to dismiss the Division's petition for termination of parental rights at the conclusion of the Division's case. In December 1975 the Division filed a complaint for termination of parental rights and commitment of the three children of Mr. and Mrs. P to the guardianship and control of the Division. The question before us is whether the proofs presented by the Division before the Juvenile and Domestic Relations Court were sufficient to establish a prima facie case and withstand a motion to dismiss. We conclude the proofs were sufficient to withstand a motion to dismiss and reverse and remand for a new trial.
This guardianship petition concerns three children: R, age nine; G, age six; and F, age five. The Division was first involved with this family in July 1971 when the parents requested foster care placement for a brief period. In August 1973 the parents again requested foster care placement. This request was not undertaken. However, a month later the children were placed in foster care, allegedly because of Mr. P's nervous condition and the parents' financial situation. The day following placement the parents demanded G's return, which the Division refused. In October 1973 the parents
again requested return of the children. Professional counselling was proffered and was rejected by the parents, who relented in their requests for the children at this time. In November the parents again requested G's return. Again, the parents refused therapy.
In December G was returned to his parents. In February 1974 the parents again rejected therapy. Finally, in March the parents agreed to a counseling program and R and F were returned to them. In April Mr. P once more requested the children be placed in foster care because of the stresses operating within the family. The children were removed by the Division, and the parents simultaneously signed a contract allowing them to remain in foster care for a year. The following day Mr. P called the Division and wanted the children back.
In June 1974 the parents came to the Division to meet the caseworker and supervisor. They wanted G and R returned, but not F, who was the "root" of their problem, they said. Recommendations were made for medical evaluation and day care placement. In August G and R were returned. On October 23, 1974 Mr. P once more requested placement but the children were not removed by the Division at that time. This request was repeated on November 12, 1974. The following day, G was brought to the Division office. His fingers were taped because he had bitten them almost to the bone. He was then placed in foster care on November 18. Thereafter, R was placed.
Another conference with Division personnel was held in January 1975. The parents were told that recent medical evaluation disclosed that G was emotionally upset because of lack of stability. The parents agreed to temporary foster care. They did not desire visitation at this time. Mr. P continued his pattern of refusing therapy for his mental illness.
In April 1975 the parents again requested the return of G and R, but not F. The assistant supervisor refused to return the children. She advised the parents to seek legal assistance as a custody suit would be necessary. The complaint
was filed in December 1975. The children were placed under the care of the Division pending a final hearing. In February 1976 the trial judge entered an interim order for mental evaluations. In May 1976 a consent order was signed by the trial judge requiring the parents to undergo a detailed course of in-patient (Mr. P) and out-patient treatment (Mrs. P) at the Jersey City Medical Center. The order contemplated a course of therapy directed towards ultimately reuniting the family on a healthy basis. The order provided that upon a breach of the agreement by either parent the matter would be promptly scheduled for final hearing. The parents did not complete the course of treatment agreed upon. The case was tried on several continued dates between July 8 and October 22, 1976. At the conclusion of the Division's case, counsel for the parents moved to dismiss the complaint. In an opinion dated November 24, 1976 the complaint was dismissed. The children have remained in the care of the Division pursuant to this court's order pending resolution of the appeal.
The Division offered two expert witnesses at the hearing, in addition to the evidence presented by its professional staff. Dr. Goldfarb, a board certified neuropsychiatrist, had examined the parents and devised the treatment plan described in the May 6, 1976 order. Mr. P left the hospital and would not cooperate with the plan. Dr. Goldfarb diagnosed Mr. P as a severe case of paranoid schizophrenia. He said Mr. P was poorly motivated to accept treatment, a conclusion completely harmonious with P's conduct since his disease was first diagnosed in 1962. Treatment was a necessity if any improvement were to be obtained.
Mrs. P was diagnosed as a passive-dependent inadequate personality. She left her treatment program in May 1976 on her husband's insistence. Absent proper therapy, Dr. Goldfarb believed Mrs. P would ...