Termination of the parental rights and guardianship of a child is sought by the Division of Youth and Family Services (DYFS) pursuant to N.J.S.A. 30:4C-15 and N.J.S.A. 30:4C-20. The maternal grandparents have also filed an action seeking custody of the child pursuant to N.J.S.A. 2A:4-18(b). The actions were consolidated for trial. This court must determine if the best interests of the child require that her parents' rights be terminated and guardianship awarded to DYFS, and whether the grandparents have independent rights to the custody of their granddaughter which can survive termination of the parents' rights.
Evelyn Marie Torres is the four-year-old daughter of Elizabeth Federici, a/k/a Torres, and Diego Torres. Evelyn has two brothers, ages five and one, and a sister age two and one-half. The parents have never married although they have lived together as husband and wife since before Evelyn's birth.
The abuse to Evelyn began when she was less than two months old. In September 1976 she was hospitalized after an emergency room admission in a local hospital where she had been diagnosed as having a fractured skull, a healed fracture of the tibia and several rib fractures in an early healing phase. Upon release from the hospital the child was accepted for services by DYFS and temporarily removed from her parents
pursuant to court order. Evelyn was then admitted to Children's Seashore House in Atlantic City. During the admission interview the parents claimed that the child had been born with fractures.
On October 4, 1976 the father signed a voluntary agreement allowing DYFS to place Evelyn in a foster care, but shortly thereafter he demanded the child's return. Meanwhile, the staff at Children's Seashore House concluded that Evelyn was "at high risk for potential abuse" and should not be returned to the home. In October 1976 she was discharged from Children's Seashore House and placed in a DYFS foster home.
In February 1977 the mother submitted to a polygraph test on the allegation of abuse to the child. When the test results showed deception, Mrs. Torres was confronted and admitted that she had struck her daughter on the head. Nevertheless, following the recommendations of a psychiatric social worker, the child was returned home under DYFS supervision.
Evelyn was in her parents' home for about seven weeks when a visiting DYFS worker noted several bruises on her forehead. Mrs. Torres said the child had fallen in her crib. A week later she took Evelyn to the hospital with multiple bruises on her forehead, back, abdomen and chest. The child was admitted to the hospital and further examination disclosed a number of "old" bruises on both her cheeks and arms. Once again the parents denied hitting her but stated she had fallen from a bed. In July 1977, just before her first birthday, Evelyn was again placed in a DYFS foster home. In September 1977, at a hearing in the Cumberland County Juvenile and Domestic Relations Court, Evelyn Torres was found to be an abused child and was returned to the custody of DYFS for six months. The judge further ordered that her parents undergo psychological evaluations and begin counseling.
The evaluation showed Mrs. Torres to be "an individual with sufficient emotional difficulties to require a great deal of supportive psychotherapy in learning new control and coping mechanisms.
She is extremely immature and insecure and as she is unable to deal with her anger in a direct manner, she could become overwhelmed and react in an infantile and global way." Mr. Torres was found to be "rather rigid, overutilizing the defense of the denial."
Overnight visits were initiated between Evelyn and her parents. On several occasions she returned to her foster home smelling of urine and missing patches of hair. On December 21, 1977 a third child, Melissa, was born to Elizabeth and Diego Torres. About a month later the family moved to a larger house which move, it was hoped, would reduce the potential for abuse by placing the family closer to relatives and allowing more space in the home for the parents to escape from the sound of crying.
Evelyn was again ordered returned to her parents in February 1978 with the conditions that Mrs. Torres participate in psychotherapy, that DYFS provide day care for Evelyn and that the child be seen by a pediatrician each month.
Mr. and Mrs. Torres attended a number of therapy sessions between March and May 1978. The reports of these sessions show that the parents were "quite reluctant and evasive in discussing any personal or family problems." The reports did reveal that Mrs. Torres' feelings of rage and helplessness towards her husband were one of the causes of her violence towards Evelyn.
On September 1, 1978 Evelyn was admitted to Cherry Hill Hospital with another skull fracture, a cerebrial concussion, bruises on her elbow, lesions on her forearms and abrasions of her temple and upper lip. Mrs. Torres said the child had fallen and hit her head. She was subsequently released to her parents. Neither DYFS nor the court were informed of this hospitalization at that time.
In March 1979 Evelyn was taken to Cooper Medical Center where doctors found a swelling and defect on the side of the skull and other injuries, bruises and abrasions, including two healed burn areas ...