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In re the Guardianship of J.O

January 14, 2000

IN THE MATTER OF THE GUARDIANSHIP OF J.O.; S.O.; S.O.; K.O.; K.O.; S.O. AND S.O.


Before Judges Baime, Brochin and Eichen.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 1998

Argued December 8, 1999

On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Warren County.

This appeal is from a judgment terminating appellant's parental rights to his seven youngest children. Appellant contends that the termination proceedings failed to comport with the requirements of the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963). The Act requires that notice be given to the Indian child's tribe and the Secretary of the Interior *fn1 whenever a state court knows or has reason to know an Indian child is involved in custody proceedings. Appellant contends that the Family Part was bound to implement the notice provision after his wife's attorney made reference to the possibility of Indian ancestry during a status conference. Although the parties were afforded ample opportunity to pursue this claim, it was later disavowed. We hold that the information before the Family Part was insufficient to trigger the Act's notice requirement.

I.

We need not recount the facts at length. It is enough to note that this is not a case falling within "the great middle-range" of termination proceedings involving beleaguered parents with uneven track records. New Jersey Div. of Youth and Family Services v. A.W., 103 N.J. 591, 602 (1986). Rather, this is one of those "extremely brutal situations" where the record starkly reveals "there is almost no humanity left in the relationship of the parent to the child." Ibid. (quoting Fanshel, Urging Restraint in Terminating the Rights of Parents of Children in Foster Care, 12 N.Y.U. Rev. L. & Soc. Change 501, 502 (1983-84)). On June 11, 1997, appellant was convicted in Pennsylvania of 239 counts of rape, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, corruption of minors, incest, endangering the welfare of a child and criminal conspiracy. We have no occasion to describe the lurid details surrounding these crimes. Suffice it to say, evidence was presented at appellant's trial indicating that he and his friends committed repeated, horrendous acts of sexual abuse on his children over a prolonged period of time. Appellant received a minimum sentence of 128 years. The sentence is to run consecutively to a term of imprisonment between twenty and forty years which was imposed on unrelated convictions for rape and sexual assault. Predictably, appellant's criminal conduct has had a devastating effect upon the children.

Against this backdrop, the Division of Youth and Family Services (DYFS), in its efforts to "move expeditiously to save the child[ren]," New Jersey Div. of Youth and Family Services v. A.W., 103 N.J. at 602, filed a motion for summary judgment. In his opposing documentary submissions, assigned counsel included a statement prepared by appellant in which he denied having sexually assaulted his children. The Family Part nonetheless concluded that the best interests of the children required dissolution of the parent-child relationship.

Appellant filed an appeal and submitted a pro se brief in which he asserted that (1) the Family Part erred in its factual findings and conclusions and (2) the termination proceedings violated federal statutes governing the rights of Indian children. We apprised appellant of his right to counsel. Following a hearing, appellant requested that an attorney be assigned to prepare a supplemental brief. The supplemental brief deals exclusively with the applicability of the Indian Child Welfare Act. We are uncertain whether appellant has abandoned his claim that he is innocent of sexually abusing his children. We thus treat this argument first and then address questions concerning the applicability of the federal legislation.

II.

We first hold that appellant's convictions for repeatedly raping his children collaterally estop him from now claiming his innocence. See In re Musto, 152 N.J. 165, 172 (1997); In re Coruzzi, 95 N.J. 557, 567 (1984). Although DYFS, which is now seeking to invoke the doctrine of preclusion, was not a party in the Pennsylvania criminal proceedings, "the question to be decided is whether [appellant] . . . had his day in court on [the] issue," not whether the litigants were identical. State v. Gonzalez, 75 N.J. 181, 189 (1977) (quoting McAndrew v. Mularchuk, 38 N.J. 156, 161 (1962)). So posited, appellant was afforded a full and fair opportunity to litigate the issue of his guilt in his Pennsylvania criminal trial. Facing the possibility of a cumulative sentence greater than his life span, appellant had every reason to make as vigorous and effective a defense as possible. The factual questions that were decided in the criminal case were identical to those in the termination proceedings. We conclude that appellant was barred from relitigating issues which were necessarily decided in the criminal case. Compare New Jersey Manufacturers Ins. Co. v. Brower, 161 N.J. Super. 293, 298 (App. Div. 1978), with Eaton v. Eaton, 119 N.J. 628, 643 (1990); Burd v. Sussex Mutual Ins. Co., 56 N.J. 383, 397 (1970); Prudential Property & Cas. Ins. Co. v. Kollar, 243 N.J. Super. 150, 153-54 (App. Div. 1990).

The result would be the same even were we to put aside the doctrine of collateral estoppel. Appellant's conclusory denial of his guilt was not sufficient to withstand DYFS's motion for summary judgment. The evidence was so "one-sided" that DYFS was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 533 (1995). The evidence established beyond a reasonable doubt that (1) the children have been substantially harmed by parental behavior, (2) appellant is unable and unwilling to eliminate the injury caused by his offensive conduct, (3) both DYFS and the Family Part considered, but correctly rejected, alternatives to termination, and (4) the severance of parental rights will not do more harm than good. New Jersey Div. of Youth and Family Services v. A.W., 103 N.J. at 599; see also N.J.S.A. 30:4C-15.1.

We add that appellant's incarceration, standing alone, warranted dissolution of the parent-child relationship. In re Adoption of Children by L.A.S., 134 N.J. 127, 143 (1993). The concerns that give rise to the assessment of an imprisoned parent's criminality in relation to the harmful effects of a parental relationship on the children are clearly present in this case. Id. at 142; see also New Jersey Div. of Youth and Family Services v. V.K., 236 N.J. Super. 243, 261 (App. Div. 1989), certif. denied, 121 N.J. 614 (1990). Our Supreme Court has said in this context, "[c]learly crimes of abuse against one's own children that result in substantial injury ordinarily warrant termination of parental rights." In re Adoption of Children ...


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