February 28, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF K.C.N.G.P. AND K.C.S.G.P., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-197-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011 - Decided Before Judges Carchman, Graves and Messano.
This is a termination of parental rights case. Defendant S.D.G. is the biological mother of K.C.N.G.P. and K.C.S.G.P., twin boys born on March 8, 2008 (the twins).*fn1 Defendant appeals from a judgment entered on May 18, 2010, terminating her parental rights and granting guardianship of the twins to the Division of Youth and Family Services (DYFS or the Division). Based on our examination of the record and the applicable law, we conclude that the trial court's decision to terminate parental rights is supported by clear and convincing evidence. Consequently, we affirm.
At the outset, we reiterate the well-settled principle that parents enjoy a fundamental right to raise and maintain a relationship with their children that is protected by the United States and New Jersey Constitutions. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).
"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, the Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a).
The New Jersey Supreme Court has "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or 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 his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]
"The statute requires that the State demonstrate harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. The four statutory factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid. "When the child's biological parents resist the termination of their parental rights, the court must decide whether the parents can raise their children without causing them further harm." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007) (citing J.C., supra, 129 N.J. at 10).
In the present matter, defendant was born on April 14, 1988. Unfortunately, she has a long history with the Division. On October 14, 2005, DYFS filed an order to show cause (OTSC) and complaint and was granted custody, care, and supervision of defendant's two oldest children, T.C.G. and T.Q.G., who were both born on October 7, 2005; and on May 30, 2007, the Division was granted custody, care, and supervision of defendant's third child, N.P., who was born on April 10, 2007.
While that litigation was pending,*fn2 Mark Singer, Ed.D., conducted psychological evaluations of defendant on December 14, 2005 and July 9, 2007, and he provided the Division with his findings and recommendations. In addition, Leslie Trott, Ed.D., evaluated defendant to assess her overall psychological functioning and her potential to parent. In a report dated March 4, 2008, Trott stated:
Results from the assessment support the opinion that [defendant] is intellectually limited, lacks insight, shows poor judgment and is not ready to parent. She completed testing, consistent with past evaluation findings, showing she functions within the range of Borderline Intelligence. Her skills are limited, reading at a 3rd grade equivalency. This teen desires reunification with her children but presents no competent plan as to how she can improve her situation. Her limited insight is apparent when she considers she will soon be 19 years old with five children . . . . She is struggling to maintain her own independence and self-sufficiency as an individual. [Defendant] is not ready to care for her children.
Four days later, on March 8, 2008, the twins were born. DYFS immediately filed an OTSC and complaint and was granted care, custody, and supervision of the children. Upon their release from the hospital, the twins were placed in a Division-approved foster home.
When the matter was reviewed in court on March 20, 2008, defendant voluntarily waived her right to a fact-finding hearing and stipulated that she did "not have appropriate housing or income to care for her newborn children." The same day, the court entered a permanency order that approved the Division's goal of reunification. The court also ordered defendant to: resume services provided by the Division including parenting classes, individual therapy, and life skills; enroll in the International Youth Organization "for GED and job training"; and contact Welfare Services "for income." Defendant was also ordered to obtain "appropriate employment and housing" and contact the New Jersey Division of Vocational Rehabilitation for assistance in obtaining employment.
On May 12, 2008, Carla Peso (Peso), defendant's DYFS case manager, composed a letter to the "Division of Welfare (Housing)" in an effort to help defendant obtain housing. The letter stated that defendant was "currently cooperatively participating in all services provided to her by the Division" but needed to "obtain stable housing and income" before she could be reunified with her children.
On June 16, 2008, Peso received a letter from Reunity House confirming that defendant had "attended a scheduled intake for the program on [May 8, 2008], and began her weekly visitation with her children in placement." The letter also indicated that defendant was "required to attend weekly parenting group while participating in the Reunity House Program."
In a subsequent letter dated September 9, 2008, Reunity House confirmed that defendant had attended nine of ten visitation sessions, arriving "early for four, on time for three, and late for two." The letter also stated that defendant's participation in the weekly parenting skills group "was marginally compliant."
On September 17, 2008, the Division provided defendant with another letter regarding housing. The letter was addressed to the "Food Stamp & General Assistance Program" and requested that the recipient "assist [defendant] in obtaining her own living space."
Following a review hearing on October 2, 2008, the court continued visitation and services at Reunity House, and on October 17, 2008, Peso prepared a third letter on defendant's behalf. That letter requested "assistance in aiding [defendant] with her current housing situation" and explained that she had to "obtain suitable housing and a stable income" in order to regain custody of her children.
Singer conducted his third psychological evaluation of defendant on November 26, 2008. During the interview, Singer asked defendant what was "in her children's best interests," and she replied: "[W]here they [are] at. I guess they're all right. I want to get on my feet. I'm getting tired of being with other people. I want my own place." Singer determined that defendant "lack[ed] the resources to care for any of her children at [that] point in time," and his report contained the following conclusions and recommendations:
Characterologically, and consistent with her behavior towards her children in the past, [defendant] has difficulty acknowledging and responding to the needs of others. She haslittle desire for meaningful social contact and, as such, likely engages in superficial and short-lived relationships. [Defendant], based upon the data, is likely to overly rely on the advice and guidance of others. This may explain her view that DYFS has not helped her to the degree that she would like. In reality, [defendant] continues to have limited emotional resources to help herself.
Unfortunately, while [defendant] has had the opportunity to care for her children in the past, she has been unable, and continues to be unable, to provide the children with an appropriate and stable home environment. Based upon the data, the following recommendations are made in an effort to assist [defendant] in developing the skills and resources she needs in order to care for [her children]:
1. All visits between [defendant] and her children must be supervised. In addition, [defendant] must participate consistently in visits with the children.
2. [Defendant] must obtain employment and housing.
3. [Defendant] must re-enter therapy. The data suggest that she is likely experiencing a significant mental disorder, in addition to characterological features, [that] greatly impact upon her functioning. These issues should be addressed therapeutically.
4. [Defendant] should complete another parenting skills program. Such a program should address a parent's role in addressing children's medical and developmental needs.
5. The data suggest that [defendant] may benefit from psychopharmacological interventions. A psychiatric assessment should be conducted in order to assess the possibility of addressing depression, anxiety, and paranoia medically.
Reunity House sent Peso another progress report on December 15, 2008. The letter stated that defendant was "consistently attending weekly visitations with her children" but had missed "three of three group sessions" for her new "Survival Skills for Women" course. It also suggested that if defendant were reunified with her children, she would need "supervision and assistance to manage and care for [them]."
On December 18, 2008, the court held a review hearing and ordered that the twins were to remain in the Division's care and custody. It also reaffirmed its prior orders and directed defendant to "comply with the recommendations that result[ed] from Dr. Singer's report."
In a March 2, 2009 letter, Reunity House advised Peso that since December 2008, defendant "ha[d] been consistently attending weekly visitations with her children." However, the letter also reported that defendant was "not compliant with group attendance and participation, and ha[d] attended no parenting group sessions since [November 19, 2008]." It further stated that defendant "need[ed] to participate in all aspects ofthe Reunity House Program, including parenting group, as well as additional services recommended by the Division in order to continue to work towards the goal of reunification." At a March 13, 2009 compliance review, the court ordered defendant to continue attending visitation and services.
At the request of the Division, defendant attended a psychiatric evaluation by Alexander Iofin, M.D., on March 17, 2009. Iofin stated that defendant "need[ed] to be treated with utilization of all applicable treatment modalities from the armamentarium of psychology," including medication and therapy. His report also noted "a significant amount" of "unchangeable and untreatable" psychiatric problems for which "gradual improvement" would be a "best case scenario." Based on these findings, Iofin concluded that defendant was not "a suitable care giver for any minor child."
On March 26, 2009, the Division sent a letter to S.W., defendant's aunt, to inquire whether she "might be interested in planning for" the twins or if she knew of a relative who might be a placement for them. The letter stated that the Division had tried to contact S.W. "on three different occasions" by phone but had received no response.
In addition, the Division sent a rule out letter to K.A., the paternal grandmother of T.C.G. and T.Q.G. The letter stated that the twins would not be placed in K.A.'s home based on her statement in court that she was "unable to care for [them]" at that time.
Reunity House sent a letter to Janell Bullock (Bullock), defendant's new caseworker, on May 11, 2009. The letter stated that although defendant was "consistently attending weekly visitations," she "often arrive[d] late." Furthermore, defendant was "not compliant with group attendance and participation, and [had] only attended one parenting group session since [November 19, 2008]." The letter noted that defendant needed "to participate in all aspects of the Reunity House Program," and that "[i]f the case goal for this family becomes Adoption, [defendant's] visitations will be transitioned back to the DYFS office, as a reunification program such as Reunity House would no longer be indicated."
Bullock spoke with S.W. by telephone on May 12, 2009. S.W. explained that she had been arrested for domestic violence because she had punched her children's father in the mouth after "he grabbed her" to prevent her from leaving. She also stated that she had arthritis in her knees that required her to use a cane, but she could nonetheless "move around" and care for her grandchildren. Bullock told her that the next step "was for her to come down to the office and . . . get finger printed, and pick up [a] resource application to fill . . . out and turn in as soon as possible."
On May 14, 2009, the Division filed an OTSC and verified complaint seeking termination of defendant's parental rights. The complaint asserted that "[n]otwithstanding the reasonable efforts of the Division, [defendant was] unwilling or unable to eliminate the harm facing the children or . . . provide a safe and stable home to the children and the delay of permanent placement for the children [would] add to the harm."
Subsequently, on June 2, 2009, the court entered a case management order requiring defendant to attend a bonding evaluation to be conducted by Singer. The order also noted that the parties had participated in mediation earlier that day. Because reunification was no longer the Division's goal for defendant, Reunity House terminated its involvement with her. Instead, the Division referred defendant for visitation at the Tri-City Peoples Corporation (Tri-City).
In July 2009, Singer performed a bonding evaluation of defendant and the twins. He noted that defendant "tended to direct her verbal attention toward [K.C.S.G.P.]," leaving K.C.N.G.P. "to play in a solitary manner." In addition, "[w]hen [defendant] left the observation room as requested, both children were easily engaged in play," and "[n]either child acknowledged [her] when she re-entered the room." Based on these observations, Singer found that the twins had not yet "internalize[d] [defendant] as being a consistent, significant figure in [their lives]," and he concluded they "would not likely experience significant and enduring harm if their relationship [with defendant] were severed."
On July 14, 2009, Bullock sent a second letter to S.W. reminding her to "complete the fingerprinting process as soon as possible" in order to finalize her application as a relative resource. The letter indicated that the Division would "assume that [S.W. was] not interested" and rule her out if she did not complete her background check within twenty days. Ultimately, S.W. was ruled out because "[s]he didn't follow through with the process."
Defendant also failed to appear for a case management conference on September 14, 2009. At that time, the court ordered the Division to "look into providing an interpreter for the foster parent's bonding evaluation with Singer."
From the time she was referred to Tri-City in July 2009 to October 12, 2009, defendant attended only one visit with the twins. During that span, she missed several appointments without explanation.
On October 19, 2009, Singer conducted a bonding evaluation with the twins' foster parents. Singer observed that the parents spoke "broken English and Spanish" while "[t]he children responded in English," but he did not identify this dynamic as problematic. According to Singer's report, "[b]oth adults were effective in redirecting the children verbally and through the introduction of toys." In addition, although "[s]miling and laughter were spontaneous and plentiful" throughout the evaluation, the children cried "and could not be soothed" when the foster parents left the room.
In his report, Singer reached the following conclusions:
[The twins] have come to view the [foster parents] as being consistent, significant parental figures. Considering the length of time the children have been with [them], as well as the ages of the children, such a finding is not surprising.
While with their foster parents, verbal activity was free flowing and mutual. The children explored their environment and responded well to the structure provided by the adults.
Of significance, [the twins] could not tolerate a separation from their foster parents. When reunited with their caregivers, the children sought the comfort from them and were soothed appropriately by the adults. . . . While chronologically these child[ren] are under the range in which attachments are internalized and solidified, the data clearly suggest that these children have come to form a meaningful and significant attachment to their caregivers whom, based upon the data, are functioning as the children's psychological parents. Again, considering the length of time these children have been in this home, such a finding is not surprising. It appears that the [foster parents] have been the only consistent parental figures in the lives of [the twins].
Consistent with the literature and behavioral data, and within a reasonable degree of psychological certainty, should the relationship between the children and their psychological parents be severed, it is anticipated that the children would experience a significant reaction to such a loss. The reaction experienced by the children when separated from their caregivers as a component of this evaluation is likely a microcosm of the reaction anticipated should they permanently be separate from their psychological parents.
Following this evaluation, defendant successfully attended four of five visitations at Tri-City between October 26, 2009, and November 24, 2009. On November 10, 2009, she attended a case management conference in which the court ordered her to attend a fourth psychological evaluation by Singer.
The evaluation occurred on December 11, 2009. Defendant confirmed that she had no job or independent housing but stated that she visited the twins regularly. Singer determined that defendant was "not likely to become a viable parenting option":
Overall, while [defendant] is concerned for [the twins], the data suggest that she continues to lack the resources needed to parent these children. Considering the case history and the totality of the data, including the length of time [defendant] has had to make changes in her life that [m]ay have led her to reunifying with her children, and within a reasonable degree of psychological certainty, [defendant] is not likely to become a viable parenting option for these children in the near future. In reality, the data suggest that [defendant] will likely continue to have difficulty maintaining stability and consistency in her own life. The totality of the data available at this point in time supports DYFS'[s] plan to pursue termination of parental rights.
Thereafter, defendant missed two of three visits at Tri-City between December 15 and December 29, 2009. She also failed to appear for a case management conference on January 4, 2010. Two subsequent visits at Tri-City were cancelled on January 5, 2010, and January 12, 2010: the first because defendant "wasn't following the procedure," and the second because defendant informed Tri-City that she could not attend on time.
Defendant appeared for a case management conference on January 14, 2010, at which the court ordered her to attend a psychological and bonding evaluation with a psychologist of her choice. The court also scheduled a pretrial conference and permanency hearing for March 5, 2010.
On February 5, 2010, Bullock sent a letter to D.M., another of defendant's aunts, advising her that defendant had named her as a potential relative resource. The letter also indicated that "if termination of parental rights is granted and the Division's goal of adoption is approved, [the twins] will be placed for adoption" and requested that D.M. respond within ten days of receipt. However, D.M. was ruled out because "she didn't have appropriate [space] for the children."
Visitation at Tri-City was reinstated on February 9, 2010. Defendant subsequently arrived late for all six visits that took place prior to trial.
Following a permanency hearing on March 5, 2010, the court approved the Division's plan of "termination of parental rights followed by adoption." The permanency order stated that defendant "ha[d] not complied with all services offered by the Division, [did] not have stable housing or employment, and ha[d] not corrected the issues that led to the Division's involvement with this family." It further indicated that "[t]he children have been in the caretaker's care since birth and need permanency." A simultaneous case management order again directed defendant to attend a psychological and bonding evaluation with her own psychologist and set a trial date of May 17, 2010.
During the trial, which took place on May 17 and 18, 2010, the court heard testimony from three witnesses: caseworker Bullock, Singer, and defendant. The law guardian did not present any witnesses but argued that "mental health issues, immaturity, continuing failure to complete or accept services, lack of parenting skills, housing and employment have all contributed to the harm facing [the twins]."
In an oral decision on May 18, 2010, the court found that "the evidence [was] quite clear and convincing" and terminated defendant's parental rights to the twins. The court's findings and conclusions included the following:
[Defendant] is clearly a sad case from the standpoint that she came from a family where her mother . . . was also involved with the Division. And, unfortunately, she . . . began having children as a teenager, when, perhaps, she was not emotionally ready for that type of thing. And . . . obviously I'm not going to go through a whole history of what's happened with the other children.
But, at this point, with regard to the [twins], looking just at that stage, [defendant] has had over two years to take some efforts and make some steps to find housing, to find a job, to get a GED. She's never had these children in her custody. She's had no other responsibilities other than to come for visitation once a week . . . then to comply with services, to get an education, to get a job, to get her life straightened out.
She's had no other responsibilities, other than to take care of those things and . . . an hour or two a week to come for visitation. And even that has been something she's had difficulty in maintaining. . .
[Defendant] certainly doesn't have . . . the emotional . . . or educational background to be able to care for these children appropriately, which is why these children were initially removed.
And she has not taken . . . any real solid steps to provide a safe, stable home to take care of the situation that existed. And there have been . . . numerous efforts [and] programs that have been offered by the Division. All types of programs for education, and for training, for . . . jobs. They've assisted. They've given her letters to help her with her housing. . . .
And she's never had any custody of these children. Has made half-hearted efforts even to visit with them, to maintain a relationship with them. She clearly appears to be unwilling or unable to make the type of efforts necessary to be a parent for young twin children. They're two-years-old. They require a lot of care. And . . . no matter what the Division is offering, it takes effort.
It's work to get yourself into a position where you can get a GED, or get a job, or to go out and find employment and find housing. . . . Dr. Singer has seen [defendant] . . . five or six times. . . .
[T]here obviously is a long history of emotional issues, dependency regarding . . . her situation.
There's very little [change]. The reports, the descriptions by Dr. Singer show very little [change]. . . . Perhaps [defendant] is just not ready at 22. Maybe . . . she hasn't reached that emotional level where . . . she is able to.
But she has not demonstrated to this Court, that she is willing, now or in the near future, or in the foreseeable future . . . to get to the point where she would be capable of taking care of these children and removing the impediments and dangers that . . . have kept her from keeping these children. . . . . . . These children are now over two. They've been in the same foster care home for two years and two months. That's the only home they've known. . . . [W]hen Dr. Singer describes the foster parents as being the psychological parents, I don't think it's any surprise to anyone in this Courtroom.
. . . [I]t would do far less harm to terminate [defendant's] rights than to remove them from their foster home. . . . I'm satisfied, again, that the Division has met all four prongs by clear and convincing evidence. This case is . . . one where these children need to have a permanent situation.
On appeal, defendant presents the following arguments:
ANALYZING THE EVIDENCE THE DIVISION OF YOUTH AND FAMILY SERVICES PRESENTED AT THE GUARDIANSHIP TRIAL WITHIN THE CONTEXT OF THE FOUR PART STATUTORY CRITERIA OF N.J.S.A. 30:4C-15.1(A), IT IS APPARENT THAT THE TRIAL COURT ERRED IN DETERMINING THE DIVISION MET ITS BURDEN BY CLEAR AND CONVINCING EVIDENCE AND THAT S.D.G.'S PARENTAL RIGHTS SHOULD BE TERMINATED.
A. THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE TRIAL COURT'S FINDINGS THAT THE HEALTH AND DEVELOPMENT OF THE TWINS HAVE BEEN OR WILL CONTINUE TO BE ENDANGERED BY THEIR PARENTAL RELATIONSHIP WITH S.D.G. PRONG TWO
B. THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE TRIAL COURT'S FINDING THAT S.D.G. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE TWINS.
C. THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE COURT'S FINDING THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE CIRCUMSTANCES WHICH LED TO THE REMOVAL OF THE TWINS OR THE COURT HAS CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
D. THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE COURT'S FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
We have considered these arguments in light of the facts adduced at trial and have concluded that they are clearly without merit. R. 2:11-3(e)(1)(E). We add only the following comments.
As our Supreme Court has noted, the "[r]review of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., supra, 189 N.J. at 278. "An appellate court must defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010) (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J. at 605.
In this case, we have concluded from our independent review of the record that the trial court's findings are adequately supported by clear and convincing evidence. As the trial court noted, the twins are entitled to a safe, stable and permanent home, which defendant cannot provide. In addition, the court correctly concluded that the evidence was sufficient to satisfy each of the four statutory standards under N.J.S.A. 30:4C-15.1(a). We therefore affirm substantially for the reasons stated by Judge Stephen Bernstein in his oral decision on May 18, 2010.