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In re Guardianship of T.M.B. and R.C.B.

Decided: December 13, 1993.

IN THE MATTER OF THE GUARDIANSHIP OF T.M.B. AND R.C.B., MINORS. K.D.D., C.E.D., FOSTER PARENTS OF T.M.B. AND R.C.B., INFANTS, INDIVIDUALLY, AND AS GUARDIAN AD LITEM FOR T.M.B. AND R.C.B., PLAINTIFFS,
v.
NICHOLAS R. SCALARA, DIRECTOR OF NEW JERSEY YOUTH AND FAMILY SERVICES, THE NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, SUSSEX COUNTY DIVISION OF FAMILY SERVICES, D.A.B. AND J.K., DEFENDANTS.



Parker

Parker

Parker, J.S.C.

In this case, the Division of Youth and Family Services seeks to terminate the parental rights of D.A.B. and J.K., the parents of T.M.B., born August 17, 1989, and R.C.B., born June 28, 1991. The children's foster parents, K.D.D. and C.E.D., have filed a separate complaint for termination of D.A.B.'s and J.K.'s parental rights, for guardianship and adoption of the children and for enforcement of the children's constitutional rights of equal protection.

DYFS, the parents and the children's Law guardian have moved to dismiss the foster parents' complaint for lack of standing. After considering the briefs and arguments of counsel, the court finds that the foster parents lack standing to pursue their complaint. Their complaint is dismissed without prejudice.

PROCEDURAL HISTORY

The relevant procedural background is as follows: on October 16, 1989, when T.M.B. was two months old, the Division placed her in foster care with K.D.D. and C.E.D., pursuant to a foster care agreement. On April 4, 1991, DYFS filed a complaint for termination of parental rights.

On July 2, 1992, DYFS filed a complaint for protective services of R.C.B., who was then four days old. On that same date, an order to show cause with preliminary removal was entered and the next day R.C.B. was placed in foster care with K.D.D. and C.E.D. along with his sister. On June 17, 1992, DYFS filed an amended complaint for termination of parental rights to include C.R.B. The children have remained in foster care with K.D.D. and C.E.D. since their initial placement while the case proceeded.

It is not relevant to this motion to set forth the details of the proceedings between the filing of the termination complaints and June 4, 1993, except to state that for a substantial period of time prior to June 4, 1993, D.A.B. engaged in regular, supervised visits with the children. On June 4, 1993, after considering recent evaluations of D.A.B., the court ordered that visitation be expanded and that supervision be diminished gradually. The court indicated that if the expanded visitation went well, the Division should develop a plan whereby the children could visit with the birth mother overnight.

On July 2, 1993, the Division Director, Nicholas R. Scalara, wrote to the foster parents, stating:

Since the precedent setting New Jersey Supreme Court decisions in July 1992, . . . [DYFS] has experienced an increase in the number of cases in which our Family Court petitions for termination of parental rights have been denied. The Supreme Court decisions strongly uphold the rights of biological parents. As of this date, we simply do not have the grounds necessary to permanently sever parental rights.

It now appears that the goal is for the children to be reunited with their mother . . . .

After announcing to the foster parents the Division's administrative decision to change the goal from termination to reunification, the Division took no action to withdraw the termination complaint and no orders were entered affecting custody or placement of the children. Nevertheless, on July 28, 1993, the foster parents filed their complaint for termination, guardianship and adoption of the children. At the same time, they applied for an order to show cause to stay "enforcement of the order of removal" of T.M.B. and C.R.B. from their home. The application for the order to show cause was denied in its entirety because (1) the application was premised on an incorrect assumption that such an order had been entered; (2) a hearing had already been scheduled before the Child Placement Review Board at the foster parents request; and (3) the foster parents demonstrated no immediate and irreparable harm to the children or themselves because the status quo with respect to custody had been maintained. The court did, however, consolidate the foster parents complaint with the guardianship complaints in an order entered on July 29, 1993, to avoid having the complaints litigated independently of each other and the possibility of having conflicting orders entered.

On September 8, 1993, the foster parents applied for an order to show cause with temporary restraints to restrict expanded visitation between the children and the birth mother. At a hearing on that date, the order to show cause was denied but the court ordered bonding evaluations of the birth mother, the children and the foster parents and a further evaluation to determine whether the expanded visitation was harmful to the children as alleged by the foster parents.

The matter was scheduled for trial on December 6, 1993. On that date, all parties appeared. DYFS, the birth parents and Law Guardian moved to dismiss the foster parents' complaint for lack of standing. The court heard the parties' oral arguments that day and directed them to file briefs on the issue by Friday, December 10, 1993.

On December 6, 1993, however, the parties were ready to try the case and the first of the Division's expert witnesses was present. The court decided to go forward, pending determination of the standing issue, to avoid any further delay. With the consent of the parties, the court permitted counsel for the foster parents to be present during the expert's testimony and to cross-examine him, subject to striking all testimony from the cross-examination if the foster parents were found to lack standing. The court permitted counsel for the foster parents to cross-examine the expert for the purely practical reason of not having to recall the expert and further delaying the ...


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