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J. and E. v. M. and F.

Decided: February 24, 1978.

J. AND E., PLAINTIFFS-RESPONDENTS,
v.
M. AND F., DEFENDANTS-RESPONDENTS, V. STATE OF NEW JERSEY, DEPARTMENT OF INSTITUTIONS AND AGENCIES, DIVISION OF YOUTH AND FAMILY SERVICES, DEFENDANT-APPELLANT



Allcorn, Morgan and Horn.

Per Curiam

The Division of Youth and Family Services (hereinafter "DYFS") appeals a trial court order declining to sever the parental rights of the two natural parents of a child, born to the mother during her incarceration in the Clinton Reformatory on a conviction of the manslaughter of another of her children and the abuse of yet a third. The natural father, too, had pleaded guilty to manslaughter and child abuse, and during all proceedings at the trial level was also confined. DYFS also appeals that portion of the order awarding custody to the maternal grandparents which entailed terminating the custody of foster parents with whom D. had lived for all but the first two months of her life. D. is presently about four years of age.

On June 8, 1973 F. and M., D.'s natural parents, were each sentenced to a 9-10 year prison term for the manslaughter of their son, F., Jr., then three years old, and the physical abuse of C., then 1 1/2 years of age. The convictions were based upon the parents' pleas of guilty. Although evidence of the circumstances of these crimes was

unaccountably excluded by the trial judge, the record nonetheless discloses facts which neither the parents nor plaintiff grandparents can seriously dispute. These facts are that F. Jr. was brought to Paul Kimball Hospital and pronounced dead on arrival by Dr. Romando Vives. According to Dr. Vives, the child had been dead a minimum of two hours, possibly six hours. "The line of lividity was confined to the child's lower extremities (buttocks and back of both legs) indicating that the child apparently died while in a sitting position, with his legs drawn up next to his body with his knees near his stomach." The body was abnormally cold, with a body temperature of 20 degrees cent grade. His body displayed surface skin damage, ulcers of the skin, crusted contusions, abrasions and lacerations. He was also suffering from malnutrition, dehydration, and gangrene of both feet. The nail of the right large toe was missing. He was found in clothing soaked in urine. The death certificate listed the cause of death as malnutrition, cerebral edema, multiple contusions, abrasions, ulcerations and lacerations.

C., F., Jr.'s younger sister, was found in the early morning hours of the day F., Jr. died, in her crib at her parents' home in Howell Township, New Jersey. She was under a wet blanket which covered her legs; her feet, legs and arms were infected and blistered, resulting in broken skin and open sores. The emergency room report diagnosed her condition as one of chronic emaciation due to starvation and characterized her as a battered child. When admitted to the hospital she weighed, at 18 months of age, only 15 pounds. The nurses at the hospital reported that she neither cried nor laughed, had no apparent reaction to anyone's approach and spent most of her time propped in a crib staring at nothing. She could neither walk nor talk. She had previously been hospitalized with a broken leg. DYFS, by court order, assumed C.'s custody following her release from the hospital, parental ties were severed with the consent of the

natural parents and without objection of plaintiff grandparents.

D., a fourth child, was born November 14, 1973 in the Hunterdon Medical Center, during her mother's custodial term which was being served at the Clinton Reformatory for Women. Before her birth, however, plaintiffs, her maternal grandparents, filed suit in the Chancery Division, Hunterdon County, seeking custody of the unborn child. Affidavit material by F., D's father, strongly suggests that the complaint was filed at his request in order that plaintiffs obtain and continue custody until his and his wife's release from custody, and the trial judge so found.

DYFS countered with a motion seeking temporary custody of D. The motion was granted shortly after her birth reserving to plaintiff grandparents rights of weekly visitation. D. was thereafter placed with foster parents in Bergen County, with whom she has resided until the present, and the grandparents religiously exercised their rights of visitation.

On December 16, 1973 DYFS filed answer to the grandparents' complaint and by way of counterclaim sought permanent custody of D., severance of parental rights and authorization to consent to D's adoption by others, who presumably will be the foster parents, not parties to this proceeding.

The matter was pretried on May 12, 1976, some 2 1/2 years after issue was joined. We have been provided with no satisfactory explanation of the inexcusable delay in reaching a final disposition of the issues posed in this litigation, and must, therefore, be content with admonishing the trial bench to move in matters of custody and the more serious termination-of-parental-rights cases with dispatch. The primary victim of any untoward delay will be the child. Moreover, extended delay may well affect the nature of the final disposition, as when emotional ties of a profound nature are created during that period. Expedition in all such

proceedings is an imperative necessity. See N.J.S.A. 30:4C-19.

At the hearing the grandparents, 64 and 69 years of age, testified that they have been married for over 41 years and reside in a medium-sized, comfortable home in a residential area for over 30 years. They are both in good health and profess an attraction and strong devotion to D. They are apparently financially independent and have the means to take care of D. should they be awarded her custody. Indeed, following an investigation, a Bergen County probation officer recommended that D.'s custody be given to plaintiffs, although with no rights of visitation by the natural parents. Nothing apart from their ages, their continuing close relationship with their daughter, and D's present circumstances, suggests that plaintiffs would not be good parents to D.

Although it is clear that plaintiffs initiated this action at the request of their daughter and son-in-law to hold custody of D. until they should be released from prison, they nonetheless vowed on the stand that should the court so order, they would not permit the mother or father to visit with the child. It should, however, be noted that the mother has been released from prison and is presently living with plaintiffs. F., the father, too has been released but his whereabouts are unknown.

Three caseworkers from the Division, a child psychiatrist, a child psychologist and a member of the New Jersey Parole Board testified for the Division. Ms. Angelica Fried, the original caseworker from the Division assigned to D.'s case, testified that in a conversation with plaintiffs, they told her that the police, the doctors and the hospital had exaggerated the condition of the deceased F. Jr.'s body and C.'s condition. When asked why they had not visited their grandchildren during the six months prior to F. Jr.'s death, they answered that the parents had not wanted to be interfered with and that the father, F., had not wanted them to visit. They simply complied.

Ms. Constance Fraler, who had been assigned to D.'s case from the time D. was two months old until she was 15 months of age, observed the child in her foster home on at least three occasions and noted that D. appeared happy and relaxed, responding to her foster mother as would any normal, happy child of that age. Her relationship with her foster brother was described as a happy, affectionate and playful one. According to Ms. Fraler, the required visits with plaintiffs were attended with resistance from D. At an impending visit her entire body would stiffen, she would become expressionless and withdrawn. On return to her foster home she would again ...


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