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New Jersey Division of Youth and Family Services v. K.M.

Decided: June 22, 1994.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
v.
K.M., SR., DEFENDANT-RESPONDENT, IN THE MATTER OF: S.W., K.M., JR., AND R.M., MINORS-APPELLANTS. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT, V. R.M., DEFENDANT-RESPONDENT, IN THE MATTER OF: S.W., K.M., JR., AND R.M., MINORS-APPELLANTS.



On certification to the Superior Court, Appellate Division.

Garibaldi, Clifford, Handler, Pollock, O'Hern, Stein

Garibaldi

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal concerns the intervention of the New Jersey Division of Youth and Family Services ("DYFS") with one troubled family in two separate court proceedings. DYFS first brought a Title 9 abuse-or-neglect proceeding against defendants seeking temporary custody of their children. The trial court found for DYFS and awarded it custody of the children for eighteen months. While that Disposition was still subject to appeal, DYFS brought a Title 30 proceeding against defendants seeking to terminate their parental rights and assume permanent guardianship of the children. Soon thereafter defendants appealed the abuse-or-neglect case. While that appeal was pending, the Title 30 proceeding was concluded, resulting in termination of defendants' parental rights. That decision was not appealed.

Despite the termination of defendants' parental rights, the Appellate Division continued its review of the abuse-or-neglect action. In an unreported opinion it affirmed the trial court's

determination that the children had been abused and neglected but reversed and remanded the trial court's order granting DYFS custody for eighteen months. Further, it found that "it was improper for DYFS to proceed with the termination proceedings while this matter was before us * * *." Accordingly, it ordered the trial court in the termination proceeding "to entertain a prompt application for relief under R. 4:50-1 from [its] final order of termination * * *."

This appeal presents two issues: whether DYFS may bring a Title 30 termination proceeding while an earlier Title 9 abuse-or-neglect proceeding against the same parents is still subject to appeal, and whether the Appellate Division, in its review of the abuse-or-neglect appeal, properly directed another trial court to vacate its order to terminate the parental rights of the same family.

We conclude that DYFS is statutorily empowered to bring concurrent but separate Title 9 abuse-or-neglect proceedings and Title 30 termination proceedings against the same family. Further, we conclude that the Appellate Division erred by addressing the termination decision not before it.

I

Defendants R.M. and K.M., Sr. are the parents of three children: S.W., born August 15, 1986; K.M., Jr., born May 22, 1988; and R.M., born March 15, 1989. Unlike the stereotype of a troubled family that draws the attention of DYFS, no substance abuse or physical abuse is involved in this case. The father has been fairly consistently employed, while the mother has remained at home with the three young children. Although physically and financially capable of doing so, the parents have failed to provide for their children's basic needs of food, clothing and shelter.

DYFS first became involved with the family in June 1989, when S.W. fell from a window of the family's second-story apartment. Miraculously, she was not injured but the DYFS investigation that

followed uncovered dangerous and filthy living conditions in the home. The one-room apartment was roach-infested, with holes in the walls, exposed wiring, open windows without screens, and gnats stuck to dried paint on the walls. Although some of these deplorable conditions were attributable to the landlord, DYFS concluded that defendants lacked essential parenting skills. R.M. and K.M., Sr. voluntarily placed their children in foster care the same month.

While the children were away, defendants moved to a three-bedroom apartment in Atlantic City and signed a service agreement with DYFS. In the agreement, R.M. and K.M., Sr. agreed to provide the children with a clean home and provide adequate medical care. DYFS' concern for the children's medical care focused primarily on R.M., the youngest, who was born prematurely weighing only two pounds, nine ounces, and who had gained very little weight under defendants' care due to inadequate and infrequent feeding and no medical attention. R.M.'s medical problems were so severe that he had to remain in foster care for a few weeks after S.W. and K.M., Jr. were returned to their parents to stabilize his condition.

DYFS made regular visits to the home after the children were returned, and again found substandard living conditions. The children were inadequately dressed, wearing only dirty undershirts and dirty diapers, and the home itself was persistently filthy. Due to improper feeding, the children had lost weight after being returned to their parents. R.M.'s medical condition was particularly precarious, and on November 30, 1989, he was hospitalized for failure to thrive, dehydration and malnutrition. He was immediately placed in foster care with his parents' consent on his release from the hospital.

With only S.W. and K.M., Jr. remaining in the home, defendants signed a second service agreement with DYFS. They then entered an intensive parenting-skills program at the Family Life Center that offered supervised interaction between the parents and the children for eight hours a day, five days a week. Even

that, however, did not improve the conditions at defendants' home. On February 8, 1990, defendants again voluntarily placed S.W. and K.M., Jr. in foster care. Since that date, the children have not been placed back into their parents' custody. Defendants continued their parenting skills courses on an irregular basis.

On October 25, 1990, defendants sought the return of their children by revoking the voluntary-placement agreements. DYFS was then faced with two options: return the children or file for custody of the children under Title 9. It chose the latter, as the parents had made no visible progress at the Family Life Center and still posed a risk to the children. In addition, despite the many services DYFS provided to the family, including a registered nurse who visited the home regularly and the Jewish Family Service In-Home Treatment Program to provide parenting-skill counseling, personnel from the various services continued to report on-going neglect.

II

DYFS filed a verified complaint to begin an abuse-or-neglect proceeding seeking temporary custody of the three children under N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. At the abuse-or-neglect proceeding, DYFS presented the testimony of two caseworkers assigned to the family as well as testimony from the director of the Family Life Center. The trial court correctly applied the standard that "any determination that the child [has been abused or neglected] must be based on a preponderance of the evidence" under N.J.S.A. 9:6-8.46b, and found that the children had been abused or neglected. Its findings included the following:

R.M. failed to thrive as a result of improper feedings by the defendants . . . that the emotional condition of all three children was impaired as a result of the parents' failure to exercise a minimum degree of care . . . that [S.W.] suffered from bottle mouth . . . the parents failed to provide proper supervision . . . that R.M. does not have insight into [R.M.'s feeding] problem . . . that defendants failed to exercise a minimum degree of care in supplying their children with adequate food, clothing, medical care, though having means to do so.

After a series of initial hearings, the trial court on July 16, 1991, entered a final order of Disposition continuing DYFS' custody of the children.

It does not appear that [defendants] have the ability to understand what must be done and the capability to carry forward with that understanding to properly take ...


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