August 4, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
T.B. AND G.L. DEFENDANTS-RESPONDENTS,
IN THE MATTER OF THE GUARDIANSHIP OF J.L., A MINOR.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 27, 2008
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 would cause serious and enduring emotional or psychological harm to the child;
(d) Termination of parental rights will not do more harm than good.
In so holding, Judge Blaney made the following factual findings:
1. The defendants have been participating in a significant way with therapeutic programs;
2. Both defendants continue to be gainfully employed;
3. During the course of the proceedings G.L. and T.B. married, indicating their desire for a stable relationship;
4. Both parents have continued to regularly visit the child since placement, and the lack of significant bonding will likely change when the child is returned to the parents.
However, he concluded that reunification should not take place immediately.
The court does not feel that [reunification] can take place since the defendants have not reached a point where they can be left unsupervised even at this point in time with the child. The court agrees with all the experts including Dr. Lee that more therapy, drug testing, monitoring, psychiatric care needs to be continued with defendants. Visitation should be with the help of experts, with the help of those individuals from the Division, visitation should be gradually increased with a plan for reunification developed in accordance with this decision.
On appeal the Division makes the following argument:
POINT I - THE DECISION OF THE COURT BELOW SHOULD BE REVERSED BECAUSE IT WAS INCONSISTENT WITH THE RELEVANT REASONABLE CREDIBLE EVIDENCE.
Our scope of review in non-jury cases is limited, requiring deference to credibility and factual findings of the trial judge who had the opportunity to hear and see the witnesses. State v. Locurto, 157 N.J. 463, 471 (1999). We do not disturb the findings and legal conclusions of the trial judge unless we are satisfied that they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).
After careful review of the record in this case, we find that there is substantial evidence to sustain the factual findings and legal conclusions of Judge Blaney. We note and appreciate his concerns regarding immediate reunification, and we trust and assume that cooperative efforts have and will continue.
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