This matter came before the court for trial on June 27 and July 11, 1985. At the conclusion of the trial, decision was reserved. Unfortunately, before the decision could be rendered the trial judge passed away. Thereafter, all counsel, with the consent of defendant, requested review of the trial transcripts and a decision based upon those transcripts.
This action has been brought by the Division of Youth & Family Services pursuant to N.J.S.A. 30:4C-15(c), seeking to terminate parental rights of J.G. with respect to the minor involved herein, J.P.M. J.P.M. was born September 28, 1979, in Middle Township, New Jersey, to N.M. On the birth certificate N.M. named D.M. as the child's father. Thereafter, pursuant to an order of May 13, 1980, J.G., defendant herein, was adjudicated as the father of the child. The present whereabouts of N.M. are unknown and she has been defaulted in this action. She has maintained no contact with the child since shortly after his birth. Defendant J.G. is presently incarcerated in the New Jersey State Prison System for sexual assault upon a seven-year-old child.
On December 3, 1982, J.G. signed a voluntary placement with the Division of Youth & Family Services, pursuant to which J.P.M. was placed in foster care. On that day DYFS received a referral from a Philip Andros, who indicated that he witnessed J.G. punch and kick J.P.M. and grab him by the throat. At that time Frank Unkle, an intake worker with DYFS, went to see
the child and observed many marks on his head and throat. When asked what happened, the child said that his daddy did it. Mr. Andros indicated that defendant J.G. grabbed the child by the throat, pushed him to the floor, kicked him and punched him in the chest. Frank Unkle felt a knot on the back of J.P.M.'s head, and observed bruises and abrasions on the left side of his face in the temple area. Thereafter, J.G. signed a voluntary foster-care agreement.
The incident of December 3 was not the first contact that DYFS had with defendant. The first referral came on July 13, 1981, alleging abuse. The evidence established that on that occasion defendant kicked J.P.M., who was then just under two years old. Defendant indicated that he felt the allegations had been exaggerated and that he had the right to discipline and respond to his child as he saw fit, since he was the father. Although he admitted to spanking the child, DYFS felt that abuse could not be substantiated at that time, and closed its case. A second abuse complaint was received on November 30, 1982, with DYFS contacting defendant and the child on December 1. At that time Mr. Unkle observed bruises on the child's buttocks and lower back area. Defendant admitted that he was having problems coping and that he was under a great deal of stress, but declined foster care for the child. He was having difficulty with the child at that time, asserting that the child would not follow his instructions, and that when J.P.M. became frustrated he would act out by urinating or doing things that he was not allowed to do. Mr. Unkle and defendant discussed day-care arrangements, but before such could be arranged the December 3 abuse incident occurred.
J.P.M. has remained in foster care since December 3, 1982. Thereafter, on January 7, 1983, defendant began a course of treatment with Mental Health Services of Cape May County. He was referred by DYFS, to evaluate his ability to parent J.P.M. He was seen for 13 sessions, from January 7, 1983 to August 4, 1983, but throughout the course of treatment repeatedly denied abusing his son and further denied the charge
of sexual abuse on another child, for which he was later convicted. He was depressed, anxious, isolated, hurt, enraged and helpless. He blamed the world, New Jersey and DYFS for the problems he was experiencing. The counsellor felt that he was a moderate risk for hurting himself or others throughout the course of treatment. Psychological testing found him to be enraged to the point where the examiner felt the test was invalid due to distortions caused by his anger. In August it was felt that defendant would not be able to profit from therapy until he was able to break through his denial. The counsellor felt that his rage and sense of helplessness and hopelessness were a dangerous combination, and that defendant needed to be in a situation where he was protected from harming himself or others until he had resolved some of his conflicts. On October 4, 1983 defendant was convicted of sexual assault and sentenced to State Prison for a term of seven years, which he is still serving.
The initial foster placement of J.P.M. was terminated by the foster parents after experiencing difficulty with J.G. J.P.M. was then transferred to his present foster placement, where he has resided since May 10, 1983. At the time of J.P.M.'s initial foster placement, the plan of the Division of Youth & Family Services was to place him with family members in the Washington, D.C. area. In implementing this plan DYFS experienced substantial delays. Family members initially contacted concerning J.P.M.'s placement first expressed interest and then were unable to accept him. Delay was also occasioned on the part of officials of the State of Maryland in conducting background investigations of the family in that area. Ultimately, the plan focused on placement with one Regina Dorsey, defendant's aunt. Visits in the fall of 1984 occurred with the aunt, both in Maryland and in New Jersey. Although termination of parental rights would legally end the rights and responsibilities of defendant as J.P.M.'s father, he expressed no opposition provided the child were to be adopted by his relatives. Underlying
this was defendant's anticipation that he would continue to maintain contact with the child at ...