On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-44-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Payne, Miniman and Waugh.
D.M., the father of A.M.M., has appealed from a Family Part order terminating his parental rights to his son, who was four years of age at the time of the termination hearing. L.M., the mother of the child and a severe alcoholic who often engages in acts of domestic violence when intoxicated, has agreed to an identified surrender of A.M.M. to her mother and her mother's husband*fn1 (maternal grandparents) on the condition that they adopt the child. The maternal grandparents have expressed a willingness to adopt A.M.M.
In some respects, the present matter resembles New Jersey Div. of Youth & Fam. Servs v. M.M., 189 N.J. 261 (2007), in that the father has demonstrated a better capacity for caring for his son than has the mother, but the continued presence of the mother in the home renders reunification dangerous to the child. However, in this matter, D.M.'s mental condition and his noncompliance, or selective compliance, with psychological and other offered services provides a further basis for affirming the termination of his parental rights. The facts follow.
D.M. and L.M. met while in substance abuse treatment and later were married. Their son, A.M.M., was born in the Spring of 2003. D.M. suffers from stage four small cell carcinoma of the lung, presently in remission. He is a heroin addict, and at the time of trial, was taking methadone as treatment for his addiction and for pain management. The methadone causes him to nod off, which creates a fire hazard if he is smoking at the time. An episode of domestic abuse occurred when L.M., observing D.M.'s conduct, reacted violently when she realized that D.M. had caused the carpet of the couple's home to smolder.
D.M. has spent six years in jail on assault and drug charges, but has been offense-free since the birth of his son. He has a general education degree and attended four years of vocational technical school studying refrigeration. D.M. is presently employed.
L.M. has a history of severe alcohol abuse as well as heroin addiction and has served an eighteen-month prison sentence for drug possession. The couple has been involved in multiple domestic violence incidents, in large measure provoked by L.M.'s intoxication. However, D.M. has on several occasions escalated the confrontation between the two, and has caused physical harm to L.M. A.M.M. has observed the domestic violence and been frightened by it. Although, at the time of trial, the couple was nominally separated, they spent considerable time together. Fighting has continued. Although D.M. has stated that he would separate from L.M. if that meant he could retain his parental rights, his actions have belied his words. Moreover, on several occasions, he has claimed to be separated from L.M. when he in fact was not.
The family came to the attention of the Division of Youth and Family Services (DYFS) on June 26, 2006 as the result of an episode of domestic violence. Nevertheless, because A.M.M. was visiting his maternal grandparents in South Carolina and thus was not present when the violence occurred, neglect was not substantiated. At that time, however, D.M. and L.M. signed a case plan that required them to take the child to a babysitter during the day until day care could be put in place. The DYFS case worker recommended substance abuse evaluations for both parents, a psychological or psychiatric evaluation for L.M. as the result of symptoms of depression or bipolar disorder, and counseling for the family.
Shortly thereafter, in July 2006, D.M. reported to DYFS that his wife had gone to Philadelphia to purchase drugs and was missing for three days. A few days later, L.M. reported domestic abuse to DYFS, but when a caseworker responded, L.M. recanted. A second case plan was signed, in which L.M. agreed to participate in out-patient substance abuse treatment, to submit to random urine screenings, and to comply with all recommendations of DYFS. If L.M. were found to have a single dirty urine, she was to enroll in in-patient substance abuse treatment. D.M. agreed not to allow L.M. to care for their son. An October 9, 2006 DYFS record indicated that the family was compliant with plans. L.M. was participating in a substance abuse treatment program and in-home family counseling was initiated. At the time, supervision of L.M.'s care of her child was discontinued.
However, on November 21, 2006, DYFS received a further referral for domestic violence. The police report of the incident indicated that, upon responding, the police officers found L.M. bleeding from the head, allegedly as the result of being pushed down the front steps. D.M., who had visible injuries to his face, stated to the police that he had been attacked by L.M. while he was "on the nod" because his cigarette had burned the carpet. Upon a determination by the police that
L.M. was the initial aggressor, but that D.M. had responded with greater force than necessary in pushing L.M., both were arrested and charged with assault. A.M.M. was found roaming the house clad in only a diaper among shards of broken glass caused by the altercation. Neglect was substantiated. On November 22, 2006, D.M. and L.M. signed another case plan in which they agreed to live apart from each other and to be supervised by named friends at all times when caring for their son. In lieu of that plan, the couple entrusted their child to the care of his maternal grandparents in South Carolina.
Matters did not proceed smoothly. On November 29, 2006, D.M. contacted DYFS stating that he refused to comply with its recommendation that he undergo a psychological evaluation, and he refused to provide medical releases to permit DYFS to obtain records of his methadone treatment. Upon threatening to take his son back, D.M. was informed that he could not do so until completion of services had occurred.
During this period, both D.M. and L.M. began telephoning the maternal grandmother, threatening to have her arrested for allegedly kidnapping their son. On December 12, 2006, D.M. and L.M. followed through on their threats by contacting the police. However, the police declined to act upon learning that the grandparents had written authorization to keep the child in their custody.
On December 20, 2006, L.M. signed a further DYFS case plan in which she agreed not to regain custody of her child until the couple had complied with services, which included substance abuse evaluations, random drug screenings, in-home counseling, and parenting classes. However, D.M., who was not home at the time, later refused to comply with DYFS's recommended substance abuse evaluation.
The couple returned their son to their care in New Jersey on December 23, 2006. Upon learning of this fact, on January 8, 2007, DYFS moved for and obtained an order granting it care and supervision of the child. In a February 7, 2007 order, legal custody of the child by his parents was continued. L.M., having been noncompliant, was again ordered to undergo substance abuse treatment, and D.M. was ordered to undergo a substance abuse evaluation. Both were ordered to cooperate with Children, Adolescent and Family Support Services (CAFS) in order to address their domestic violence issues. A home study/interstate referral pertaining to the maternal grandparents was also ordered. Further intensive out-patient treatment of L.M. by Agape Counseling Services was arranged.
On February 21, 2007, DYFS was informed that D.M. had failed for the second time to attend a scheduled substance abuse evaluation. However, he did submit to an evaluation on March 8, 2007, at which time it was determined that he needed to participate in an extended assessment as the result of his high levels of methadone consumption.
On March 16, 2007, the parties agreed to another case plan which temporarily placed A.M.M. with his maternal grandparents. During March and April, 2007, L.M. continued to drink heavily, and she was terminated from a treatment program offered by the Refuge House Ministry of Women in Pennsylvania as the result of her negative attitude. On April 23, 2007, the CAFS therapist assigned to L.M. and D.M. reported her inability to contact the family. Because of these facts, and because DYFS needed an order of custody in order to monitor A.M.M.'s placement outside the home, on April 30, 2007, DYFS obtained temporary custody of the couple's child by consent. He remained with his grandparents in South Carolina.
At a compliance review hearing, conducted on May 30, 2007, physical custody of A.M.M. was continued with his maternal grandparents. L.M. was ordered to undergo intensive out-patient substance abuse treatment. D.M. was ordered to attend the previously required extended assessment. Both were ordered to attend individual and couple's counseling and parenting skills training. DYFS was ordered to work ...