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B.F. v. Division of Youth and Family Services

January 15, 1997

B.F. AND K.L.F., A MINOR BY HER NEXT FRIEND, B.F., PLAINTIFFS-APPELLANTS,V. DIVISION OF YOUTH AND FAMILY SERVICES, WILLIAM WALDMAN, SUSAN DURGY, SUZANNE LA TOURNOUS, MANUEL RODRIGUEZ, CAROL PRINTZ, CYNTHIA D.H. SMITH, RICHARD PURCELL, MARY TERRITO, JODI PATTON, KAREN BACKIEL, AND MARY NICASTRO, EMPLOYEES OR FORMER EMPLOYEES OF THE DIVISION OF YOUTH AND FAMILY SERVICES, EACH IN THEIR INDIVIDUAL CAPACITY; ROBERT DEL TUFO, LAUREN F. CARLTON, MARCIA A. MEMBRINO, MAGALI M. FRANCOIS, ANDREA M. SILKOWITZ, AND BARBARA A. HARNED, EMPLOYEES OF THE OFFICE OF THE ATTORNEY GENERAL, EACH IN THEIR INDIVIDUAL CAPACITY, MARTHA H. PAGE, DEFENDANTS-RESPONDENTS, AND HACKENSACK MEDICAL CENTER, AND MARIA LOPEZ, EMPLOYEE AND/OR AGENT OF HACKENSACK MEDICAL CENTER, IN HER INDIVIDUAL CAPACITY, AND CAROL ANN PERSONETTE, FORMER ACTING GUARDIAN AD LITEM FOR K.L.F., DEFENDANTS.


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication January 15, 1997.

Before Judges Muir, Jr., Kleiner, and Coburn. The opinion of the court was delivered by Coburn, J. S.c. (temporarily assigned).

The opinion of the court was delivered by: Coburn

The opinion of the court was delivered by

COBURN, J. S.C. (temporarily assigned).

Plaintiffs seek damages for alleged violations of their civil rights under the Federal Civil Rights Act, 42 U.S.C.A. § 1983. They also claim damages under the New Jersey Constitution and various forms of tort. The state actions all concern the same conduct of defendants which form the basis of the federal civil rights action. The case arises from the unsuccessful efforts of the Division of Youth and Family Services (DYFS) to terminate the parental rights of plaintiff B.F. with respect to her daughter, plaintiff K.L.F. This prior litigation was eventually resolved by the Supreme Court of New Jersey. Matter of Guardianship of K.L.F., 129 N.J. 32, 608 A.2d 1327 (1992). In essence, relying upon statements of the Court in K.L.F., plaintiffs contend that the defendants failed to properly carry out the state statutory mandates governing actions by DYFS for termination of parental rights.

The defendants remaining in the case, DYFS, DYFS employees, the Attorney General and the deputy attorneys general who represented DYFS in the prior litigation, moved for summary judgment on a number of grounds, not including the entire controversy doctrine, which had not been pled as a defense. Nevertheless, the trial court, acting sua sponte, entered judgment for defendants pursuant to its understanding of the entire controversy doctrine and failed to resolve the grounds for summary judgment pressed by defendants. Plaintiffs appeal.

The entire controversy doctrine is inapplicable. Thus, it cannot support the judgment entered. However, "an appellate court is necessarily concerned with the propriety of the action appealed from rather than with the reasons advanced by the court below in support thereof . . . ." Marchitto v. Central R. Co. of N.J., 9 N.J. 456, 463, 88 A.2d 851 (1952), overruled on other grounds, Donnelly v. United Fruit Co., 40 N.J. 61, 190 A.2d 825 (1963). Consequently, it is our responsibility to "consider whether any of the grounds advanced by the defendants in support of their motion justified the trial court's judgment of dismissal." Ibid. Since we are satisfied defendants were entitled to prevail, though not on the basis of the entire controversy doctrine, the judgment is affirmed.

I

The facts which form the basis of plaintiffs' present action are fully set forth in the Supreme Court's opinion in K.L.F., (supra) , and need not be repeated here. A few points, however, ought to be noted. The prior litigation established that plaintiff B.F. had entered into a voluntary contract with DYFS for temporary custody in the agency and placement of her daughter in temporary foster care. K.L.F., (supra) , 129 N.J. at 35. She never "abandoned" her daughter. Id. at 38-39. However, eighteen months did pass before she contacted DYFS in an effort to regain custody. Id. at 35. By then DYFS had decided to bring a legal action for guardianship and so advised B.F. Id. at 35-36. Unfortunately, another nine months passed before DYFS instituted the suit. Id. at 46. With respect to DYFS's response to B.F.'s request for reunification with her daughter, the Court said.

If the agency wanted to retain custody despite her request, it was required to seek a court order authorizing it to do so. N.J.S.A. 30:4C-12. To the extent the Division's decision to refuse B.F. custody or contact with her child was based on its doubts about B.F.'s parental fitness, it was obliged by law to obtain a court order authorizing its own continued and exclusive custody over the child. DYFS was not empowered unilaterally to displace B.F. as a parent without judicial approval. See N.J.S.A. 30-4C-12 (conditioning order taking custody of child on finding that "parent . . . is grossly immoral or unfit."); N.J.S.A. 30:4C-58 (requiring periodic review of Child Placement Review Board to determine whether out-of-home placement is in the child's best interest); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982) (constitutional protection afforded to rights of natural parents is not diminished by fact that "they have not been model parents or have lost temporary custody of their child to the State").

[Id. at 40.]

The conduct of DYFS was also criticized in Justice Clifford's Concurring opinion:

More specifically: (1) as a matter of law, DYFS's efforts at reunification during the one-year period preceding its decision to forego reunification plans fell short of the diligent-efforts standard of N.J.S.A. 30:4C-15(d), and (2) none of the evidence below indicated that the child had suffered damage from her non-existent relationship with B.F., see J.C., (supra) , 129 N.J. at 29-30, 608 A.2d 1312 (Clifford, J., Concurring). Thus, because the psychological bonding between K.L.F. and her pre-adoptive family during the period following DYFS's refusal to allow visitation resulted from an improper denial of visitation rights, consideration of that bonding by the trial court would similarly have been improper.

I note as well that the agency failed to demonstrate compliance with the Child Placement Review Act, N.J.S.A. 30:4C-50 to -65, including those provisions requiring periodic review of agency strategy. See N.J.S.A. 30:4C-58.1. Had DYFS properly undertaken that review in this case, the Family Part might have thwarted the bonding that occurred after an unjustified abandonment of the statutory goal of reunification.

[ Id. at 47.]

Although plaintiffs complain here about the original placement as being something other than voluntary, voluntariness was fully litigated and determined in K.L.F. The balance of their case relies upon the above mentioned criticisms of DYFS and their assertion that DYFS and its employees and the Attorney General and his deputy attorneys general should be held responsible for damages because they continued to litigate the case to the Supreme Court after having lost in the trial court and then in the Appellate Division.

II

We have previously noted our appreciation of the "far reach accorded the entire controversy doctrine" by the Supreme Court. Perry v. Tuzzio, 288 N.J. Super. 223, 228, 672 A.2d 213 (App. Div. 1996). However, we have also concluded that in some circumstances the nature of the prior litigation prohibited application of the doctrine as a bar to the subsequent proceeding. Cafferata v. Peyser, 251 N.J. Super. 256, 597 A.2d 1101 (App. Div. 1991); Perry v. Tuzzio, (supra) . In Prevratil v. Mohr, 145 N.J. 180, 195, 678 A.2d 243 (1996), the Court approved Cafferata expressly and Perry by implication. These cases indicate that the entire controversy doctrine is inapplicable to actions brought by DYFS for the termination of parental rights pursuant to N.J.S.A. 30:4C-15 and 20.

In Cafferata we held plaintiff's medical malpractice case was not barred by the entire controversy doctrine by reason of his "pro se settlement of a prior Special Civil Part action brought by the defendants-physicians' professional association to recover its bill for services for the same medical procedure of which the malpractice suit complains." 251 N.J. Super. at 257. We observed:

In sum, the problems inherent in an inequality of forum, which concerned the Court in Thornton, supra, are at the heart of the matter here as well. The ability of the judicial system to cope effectively with the volume of minor commercial litigation with which it must deal is advanced by the informality of mediation-type proceedings in which pro se litigants are able quickly, inexpensively, expeditiously, and with minimum resort to legal counsel and judicial intervention, to resolve specifically stated and narrowly defined small claims, whether or not instituted in the small claims division. These proceedings were never intended to have preclusionary consequences beyond their own scope. It is not only unfair that they should do so, but if they do, the legitimacy of small claims processing will be seriously undermined. It would obviously be counterproductive in the extreme were a preclusionary rule enforced in such a way as to penalize, without any concomitant benefit to the parties or to the system, a pro se litigant's participation in the small claims mediation process or other expedited processing mechanism. Such enforcement would convert the entire controversy doctrine into a trap for the unsuspecting. That is not its function.

[Id. at 262-63.]

In Perry we refused to give preclusive effect to a summary proceeding involving a hearing on exceptions to an executor's account when the exceptant to the account brought a later action against the employer of the executor for accounting malpractice. We had this to say:

Our difficulty here lies in the fact that the original action was not a plenary action at law but rather a piece of a probate action -- a hearing on exceptions to an executor's account. The question is whether an exceptant to an accounting is obliged in that summary proceeding to join all persons, uninvolved as they may be in the probate proceeding, who have any transactional relationship to the subject of the exception -- irrespective of the nature of that relationship, irrespective of a right to jury trial and full discovery which any such person might have, and irrespective of the burden such a requirement may impose on the orderly procedure for the administration of decedent's estate.

We doubt that the entire controversy doctrine was ever intended to go this far since its application in that situation is so basically inconsistent with the limited nature of an accounting proceeding.

[ 288 N.J. Super. at 229.]

With the principles of Cafferata and Perry in mind, we turn to the nature of actions for the termination of parental rights under N.J.S.A. 30:4C-15 and 20. In New Jersey Div. of Youth and Family Services v. A.W., 103 N.J. 591, 599, 512 A.2d 438 (1986), the Court noted that "termination of parental rights presents the legal system with an almost insoluble dilemma." The Court further explained:

On the one hand, we emphasize the inviolability of the family unit, noting that "the rights to conceive and to raise one's children have been deemed 'essential,' * * * 'basic civil rights of man,' * * * and 'rights far more precious * * * than property rights' * * * ." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (citations omitted). The interests of parents in this relationship have thus been deemed fundamental and are constitutionally protected. On the other hand, it has been recognized "that a state ...


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