On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-37-06.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, Sabatino and Lyons.
This is an appeal from a judgment retroactively terminating the parental rights of the natural mother to her deceased child, and alternatively, holding that the mother's right of inheritance by intestacy is extinguished on equitable grounds. This novel issue was precipitated by a complaint for guardianship brought by the Division of Youth and Family Services (the Division) to terminate M.W.'s parental rights to three of her sons: T.H., Jr., born August 28, 1998; R.W. born on June 13, 1995; and his identical twin, F.W., who died on January 5, 2003.*fn1 In an earlier opinion we affirmed that portion of the judgment terminating M.W.'s parental rights to R.W. and T.H., Jr. We now review the determination of the trial judge as to the deceased F.W. In doing so it is necessary to repeat some of the facts set forth in our prior opinion.
The facts of this case would shock the cynical and wound the most hardened of heart. When the circumstances were reported by the media, the case outraged the citizenry and shook the foundations of the State's child support system. It began on the morning of January 4, 2003, when the Newark Police Department received an anonymous 9-1-1 call reporting that two beaten and starving children were found locked in the basement of an apartment building at 188 Parker Street. When police arrived, they were met by Shawn Slappy who said he made the 9-1-1 call. Slappy told them he was the boyfriend of Sherry Murphy, who was a tenant in the building, and that he moved in with her about two weeks earlier. He said he was unaware of the existence of these children until that morning when he used a screwdriver to pry open the locked basement door to search for a pair of his boots he believed Murphy put in the basement. When he saw "something moving," he investigated and was shocked to find two young boys locked in a dark and fetid room with only a bed, no sink, no toilet, and no food. Slappy brought the frightened children upstairs to Sherry Murphy's apartment and made the 9-1-1 call.
The condition of the two boys was deplorable. They were emaciated with burn marks and new and old bruises all over their bodies, evidencing severe physical abuse. Their hair was matted. They smelled rank because their clothing was filthy with urine and feces. Seven-year-old R.W. told police "Sherry" put them in the basement. The police asked Slappy where Sherry Murphy was, and he said she left early that morning. He had no idea where she was or when she would return.
The boys were taken by EMT to University Hospital in Newark for examination and treatment, and the Division of Youth and Family Services ("the Division") was notified. Division worker Sandra Osborne responded to the hospital at about 11:30 a.m. She reported as follows:
[T.H., Jr.], age 4, appeared to be extremely weak and needed assistance standing. He was not able to verbalize at all. However he understands what is being said to him. [He] has multiple bruises over his entire body and appears to have been burned over the buttocks, arms, legs, face and stomach. He is very thin and frail for his age. [R.W.], age 7, was able to provide his name and also his brother's name. [R.W.] was also filthy with old burns and marks on back and neck.
His skin is dry and scaly, clothes were wet with the smell of urine. He was very weak and hungry. [R.W.] gave his age as 6 years old, but did not know his brother[']s age.
Both boys appear to be underdeveloped for [their] ages. It is not known how long the children were in the basement, however, it appears that they have been locked up for 3 to 4 weeks. [R.W.] was able to tell me that Sherry put him and his brother in the basement. He stated that she only fed them sometime[s] not all the time. I asked [R.W.] how did he get the bump on his eye. He stated "Sherry punched me in my face for peeing on the floor." He also said that she put [T.H., Jr.] in hot water because he did "do do" on the floor. I then asked [R.W.] did he know where his mother was and he responded, "Yes." I said where is she?" He responded, "She's locked up." I asked [R.W.] how long has he and his brother been in the basement? He responded, "A long time." . . . [R.W.] did not want to answer any more questions at that time because he wanted to eat.
Hospital records and medical reports confirm the pitiful condition of the two boys. Four-year-old T.H., Jr. had hypopigmented patches on his skin resembling burns, scaling skin, osteopenia (generalized reduction of bone mass), significant dental decay, and a distended abdomen. Circumferential scarring around the ankles, wrists, and neck indicated he was bound with some type of restraints. He weighed only twenty-nine pounds and measured three feet tall, both under the third percentile for a four-year-old. Burn scars on his chest, neck, feet and buttocks were consistent with second degree burns. As a result of the burn scarring, T.H., Jr. had to wear a compression garment suit over his entire body for twenty-three to twenty-four hours a day for almost a year. Seven-year-old R.W., twin of the deceased F.W., was emaciated. He weighed thirty-seven pounds and was three and one-half feet tall, a height and weight below the third percentile for a child of his age. Physical examination disclosed multiple scars, old burns, lesions, scabbing, dried skin, a distended stomach, and severe dental decay. He suffered from chronic protein calorie malnutrition and micronutrient deficiency.
A hospital registration clerk searched the computer for past admittances and discovered M.W. was the mother of the two boys. A contact number was listed for her in New York City. When Osborne called the number, R.G. answered the phone and said she was M.W.'s sister and the children's aunt. She related that every time she asked M.W. about the children, M.W. was "vague," saying only that they were temporarily staying with her cousin, Sherry Murphy, in Irvington until M.W. could find her own apartment. R.G. told Osborne that the children had lived with Murphy from March 2001 to July 2001 while M.W. served a jail sentence and that when she was released, M.W. moved into Murphy's apartment. R.G. said Murphy threw M.W. out after an argument a month later, and M.W. left her children. M.W.'s oldest son, ten-year-old F.D.W., left Murphy's home to live with R.G. and her son in New York. The three younger boys remained with Murphy. When Osborne told her that only R.W. and T.H., Jr. were found in the basement, R.G. became concerned because she knew F.W. was also living with Murphy. R.G. told Osborne that she believed M.W. was living in Newark with P.W., another sister, and she supplied the telephone number.
Osborne checked Division records and found that M.W. did have another son named F.W. who was R.W.'s twin brother. She then spoke to P.W. who told her that M.W. had been living with her since leaving Murphy's apartment in August 2001. P.W. said that when she asked about the boys, M.W. told her that F.D.W. was living in New York with R.G.'s son and the other three were living with relatives in North Carolina. P.W. said that M.W. was not at her home and had left that morning to go to New York.
When Osborne told P.W. about the discovery that morning of the two boys in the basement, P.W. became very disturbed and went to University Hospital to see them. At the hospital P.W. told Osborne that she was very upset that F.W. was missing because she had no idea where the child might be. When asked about Sherry Murphy, P.W. said she was M.W.'s cousin and worked nights in various bars as a go-go dancer.
Caseworker Osborne then spoke to eight-year-old R.W. and asked him about his twin brother. R.W. said that the last time he saw F.W. was "a long time ago" when "Joe" took him and "Sherry put [him] in hot water and he was screaming." "Joe" was later identified as Joseph Reese, Sherry Murphy's former boyfriend. R.W. later reported that he had been sexually abused by Reese.
That night the Newark Police Department issued a missing persons bulletin for F.W. and then continued the search for M.W. and Sherry Murphy. Later the police received information that M.W. was admitted to Lincoln Hospital in the Bronx after being struck by an automobile. The night ended with no information on either Sherry Murphy or the missing F.W.
At about 3 p.m. the following afternoon, Newark police officers returned to the basement at 188 Parker Street with a trained cadaver-sniffing dog. They found what they feared most -- the decaying body of seven-year-old F.W. in a Rubbermaid storage bin located about fifteen feet from where his brothers were found the day before. The desiccated corpse was so badly decomposed that only DNA could verify identity. No remaining facial features remained -- no eyes, no nose, and no lips. F.W. was pronounced dead at 3:35 p.m. that day, January 5, 2003, but it was the opinion of the medical examiner that the child had been dead for several weeks. The death certificate listed F.W.'s death as a homicide and noted blunt trauma to the head and abdomen.
The gruesome discoveries in the Newark basement of two starving and abused young boys and the mummified remains of a third spurred extensive media coverage throughout New Jersey and the metropolitan area. At F.W.'s funeral the boy who had been abused, abandoned, and forgotten and known to few, was mourned by over 400 people including the Governor of New Jersey, a United States Senator and the Mayor of Newark. Richard Lezin Jones, Hundreds Turn Out in Newark to Grieve for A Too-Brief Life, New York Times, January 25, 2003 at B1.*fn2
The police and FBI hunt for Sherry Murphy ended after four days. On January 9, 2003, she was found hiding in the Newark apartment of a man she met on the street three days earlier. She was arrested, remanded to jail on charges of child endangerment, and subsequently indicted on seven counts of attempted murder, kidnapping, and child endangerment. Avoiding trial, she pleaded guilty to two counts of aggravated assault, two counts of criminal restraint, and two counts of endangering the welfare of a child. At her plea hearing Murphy said that F.W. died while she was living in Irvington. She hid the body and took it with her when she moved to Newark in December 2002, where she placed it in the basement. She further admitted to confining R.W. and T.H., Jr. in the unlit basement without food, water or a toilet and causing their severe malnutrition. She also admitted to burning the buttocks of four-year-old T.H., Jr. by placing him in scalding bath water and then failing to obtain medical treatment for the injury.
Sherry Murphy was sentenced on November 2, 2005, to an aggregate term of twenty-five years with sixteen years parole ineligibility under the No Early Release Act. Her sentence was affirmed on appeal. Her projected parole eligibility date is August 13, 2016. Murphy's seventeen-year-old son Wesley entered a guilty plea to reckless manslaughter causing the death of F.W. He was paroled on September 2, 2005. Murphy's boyfriend, Joseph Reese, pleaded guilty to sexual assault on R.W. and was sentenced to a five-year term in State prison. He was released on May 31, 2007.
After the discovery of R.W. and T.H., Jr. on January 4, 2003, the Division sought and received an emergency order of temporary custody and supervision of the children pending a factfinding hearing scheduled for February 24, 2003. M.W. was served with the order and a complaint and order to show cause for continued care of R.W. and T.H., Jr. by a Division caseworker while M.W. was in Lincoln Hospital in the Bronx recovering from her injuries in the January 4, 2003 accident. The caseworker reported that M.W. was neither remorseful nor sad. She said that she had not seen her children since August 2001 when she left Sherry Murphy's apartment. She claimed that she made several failed attempts to get R.W., F.W., and T.H., Jr. back, but she did not seek the aid of the police or the Division. She blamed Sherry Murphy for any harm done to her children, but she did not express any anger toward Murphy, referring to her as her favorite cousin.
Following the factfinding hearing on February 24, 2003, Judge Glenn A. Grant found the Division had proven by clear and convincing evidence that M.W. had abused and neglected R.W. and T.H., Jr. by placing them in the care of Sherry Murphy. He directed that the two boys remain in foster care and ordered legal custody was to remain with the Division while alternative placement was explored.
While the Division was pursuing placement, M.W. was discharged from the hospital. She was then arrested in New Jersey on charges she violated the conditions of her probation imposed as a result of a 1996 conviction of child endangerment of children left in her care by a friend serving a prison sentence. M.W. was found guilty of violating probation, and she was sentenced to four years in prison.
R.W. and T.H., Jr. were reluctant to talk to Division caseworkers and others about the abuse they suffered at the hands of Sherry Murphy and their mother. In bits and pieces they disclosed the evil they endured in the Newark basement. R.W. said they had no food and were forced to eat their vomit and drink urine. He added they were tied or shackled by their ankles and wrists. They were burned in hot water and as a consequence were frightened at the sight of a bathtub. R.W. said Murphy ...