On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-30-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, C.S. Fisher and C.L. Miniman.
The Division of Youth and Family Services (DYFS or the Division) seeks reversal of an order entered in the Ocean County Family Part by Judge James M. Blaney dismissing its guardianship complaint for termination of the parental rights of the mother, T.B., and father, G.L., to the infant J.L., born on August 21, 2005. The Law Guardian for J.L. has filed a brief in support of the position of the Division.
On November 2, 2005, three months after the child's birth, the Lavallette Police Department received a call at 2 a.m. for a domestic disturbance at the home of G.L. and T.B. When the police arrived, they determined that there had been an argument during which G.L. accused T.B. of failing to care for J.L. G.L. told police he had just returned from fishing when he found T.B. to be intoxicated from alcohol and marijuana and the infant in a dirty diaper covered with feces and urine. After the police found a marijuana pipe which T.B. acknowledged was hers, she was arrested on charges of child endangerment and possession of drug paraphernalia. She was also placed in custody on an old warrant for failure to complete community service as part of a DWI sentence. The officers reported that G.L. was cooperative and simply trying to be sure that his baby was all right.
After the police notified the Division, a case manager came to the home and made a determination that T.B. had neglected J.L. A case plan was signed by both parents approving G.L. to supervise T.B. when she was with J.L. The Division also arranged for a substance abuse and psychological evaluation of T.B. and requested Family Preservation Services to come to the home. Later in November the Division received a good report from the Family Preservation Services worker, and T.B. advised she was seeing a therapist.
However, at about 11:30 p.m. on November 24, the Division received another referral from the Lavallette Police Department for an emergent placement of J.L. because of another domestic incident at the home. The police found that T.B. was intoxicated and arrested G.L. for simple assault. The Division worker placed the child with a maternal aunt and her husband, and J.L. remained in that placement to the conclusion of the trial. Unfortunately, the relationship between T.B. and her sister deteriorated to the point that a no-contact order was entered against T.B.
Over the course of the next few months T.B. contacted the Lavallette Police Department on four occasions requesting mental health help as well as placement in an alcohol rehab. Another incident of domestic violence occurred on July 31, 2006 when G.L. and T.B. were both intoxicated. T.B. was arrested for simple assault, and G.L. agreed to leave the premises to stay with family members on that evening. Furthermore, in December 2006, G.L. was arrested for DWI.
The Division filed an order to show cause and verified complaint seeking protective custody of J.L. on November 29, 2006. Both parents stipulated that the child was at risk of harm when they engaged in domestic violence, in violation of N.J.S.A. 9:6-8.21, and findings of abuse and neglect were entered by the Family Court. On October 3, 2006, an order was entered at the request of the Division for a permanency plan to terminate parental rights to permit adoption by the maternal aunt and her husband. The petition to terminate the parental rights of T.B. and G.L. was then filed on January 22, 2007.
The trial commenced on May 14, 2007. The Division presented the expert testimony of Dr. Alan Lee, a psychologist, who recommended termination of parental rights of T.B. on grounds of alcohol abuse, depression, and the inability to parent the child. He also said that G.L.'s rights as father of the child should be terminated because of alcohol issues and his inability to protect the child from potential neglect or abuse by T.B. The defense presented Dr. George M. Kapalka and Dr. Jesse Whitehead as expert psychologists. Both concluded that termination of parental rights was not appropriate under the circumstances. They recommended continuing therapy for T.B. including psychiatric care and out-patient drug treatment and anger therapy for G.L. as well as drug and alcohol screening. Both parents testified they were involved in therapy programs. T.B. indicated she attended Alcoholics Anonymous as well as out-patient therapy on a regular basis. G.L. testified he participated in anger management and parenting classes. G.L. further testified that he had not consumed alcohol since December 2006 and that he had had many negative urine tests.
Judge Blaney concluded that there was insufficient evidence presented by the Division to satisfy the statutory standard codified in N.J.S.A. 30:4C-15.1 as enunciated in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986). He found that the Division had not proved by clear and convincing evidence the second and fourth prongs of the test, to wit:
(b) The parent is unwilling or unable to eliminate the harm facing the child, is unable or unwilling to provide a safe and stable home for the child, and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from the foster parents ...