June 27, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF A.F., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-231-08. Yvonne Smith Segars, Public Defender, attorney for appellant (Jean M. Hartmann, Designated Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010
Before Judges Carchman and Messano.
Defendant G.S. appeals from an order of the Family Part dismissing G.S. as a party-defendant and removing her name from the birth certificate of A.F., the child of her paramour, S.F. Defendant asserts that plaintiff Division of Youth and Family Services (DYFS or the Division) was estopped or precluded by the doctrine of laches from seeking such relief, and the judge erred by granting DYFS' application for such relief. We conclude that under the unique facts presented here, the judge did not err, and we affirm.
These are the facts adduced from the record.
Defendant is the female paramour of S.F., who gave birth to A.F. in New Brunswick on January 15, 2008. Defendant was listed by S.F. on the birth certificate as "Parent," although she did not have any direct relationship, biologically or otherwise, to the pregnancy. A.F.'s biological father is unknown. The Division received a referral from the hospital staff concerning A.F. after S.F. stated that she did not know she was pregnant until the last month of her pregnancy and admitted to significant alcohol abuse including consuming a pint of vodka per day during her pregnancy. The staff was also concerned about S.F.'s mental health after she stated she had previously given birth by C-section but had no scar.
The Division filed a complaint in January 2008, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, naming both S.F. and defendant as parties-defendants. According to the Division, defendant was included as a defendant to this protective services litigation because it understood that S.F.'s parenting plan involved defendant as a caretaker once A.F. was released from the hospital.
The judge questioned defendant's presence in the case, as the relationship between defendant and S.F. was unclear. S.F. and defendant had never entered into a civil union, although S.F. later represented to the judge that they intended to obtain one; however, during the pendency of this action, no civil union was consummated. Despite the judge's concern, defendant remained a named defendant in the litigation. Custody of A.F. was placed with DYFS. On the return day of the order to show cause, the judge again raised the issue of defendant's status in the action, but at that time S.F. again represented that the parties were in the process of obtaining a civil union.
At a fact-finding hearing, the judge concluded that S.F.'s conduct had placed the child in substantial risk of harm and custody was continued with DYFS. Neither defendant nor S.F. appeared at the hearing.
The issue was reopened on November 17, 2008 at a compliance review. The parties again discussed defendant's status in this action, and DYFS recognized that the issue could pose a problem later if the Division sought to terminate parental rights. This comment proved prescient. Nevertheless, the judge continued the action with both defendant and S.F. as parties.
Following a hearing in January, the permanency plan was reunification. On April 20, 2009, the Division sought a permanency hearing, noting that there was a goal change for A.F.'s permanent custodial situation. The new goal called for termination of S.F.'s parental rights and adoption by the maternal grandparents, who had maintained physical custody throughout the litigation. After numerous continuances, and once it became apparent that the goal no longer included S.F. as custodian, the Division also moved to dismiss defendant as a party to the action and correct the birth certificate.
The Division's motion was granted. The judge emphasized that G.S. was not a biological parent of A.F., because she was not a participant in the creation of the pregnancy and no rights arose out of S.F.'s naming G.S. as a parent on A.F.'s birth certificate.
In dismissing G.S., the judge further reasoned that G.S. should not have been named a defendant in the Title 9 action.
The court explained that Title 9 defines a parent broadly to include "anybody who has assumed custody or control of a child or [if] there's a legal duty for such care," and only those individuals may be "the proper target of a complaint by the Division and thus should be named a defendant." While recognizing that G.S. was S.F.'s partner, the judge noted that G.S. never assumed responsibility for the care, custody, and control of A.F., as A.F. was in the custody of the Division prior to her leaving the hospital. The judge also determined that G.S. was never under a legal duty to care for A.F. Accordingly, the judge deemed G.S. to be a superfluous defendant. The judge did recognize G.S. as a caregiver under N.J.S.A. 30:4C-61.2, and entitled to notice and an opportunity to be heard. The judge ordered that G.S.'s name be removed from A.F.'s birth certificate.
Subsequent to the court's ruling dismissing G.S. from the litigation, a permanency hearing was held for A.F. The Division again presented a plan of termination of S.F.'s parental rights, following by adoption of A.F. by the maternal grandparents, which was approved by the court. On March 15, 2010, an order terminating the protective services litigation was entered as the guardianship litigation had commenced.
The focus of defendant's argument on appeal is that DYFS is barred by estoppel and laches from seeking dismissal of defendant as a party and removing her name from the birth certificate.
Before addressing those issues, we consider basic principles that apply to the facts presented here.
The Division is authorized under N.J.S.A. 9:6-8.33 and .34 to institute proceedings in cases of alleged abuse and neglect. Under Rule 5:12-1(a), a complaint brought by the Division pursuant to N.J.S.A. 9:6-8.21 to -8.73, must include the names of known parents and guardians.
N.J.S.A. 9:6-8.21(a) defines "parent or guardian" as "any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care." The term "paramour of a parent" was added by amendment in 2005 to allow the Division flexibility in identifying abuse and neglect defendants.*fn1
While a termination action under N.J.S.A. 30:4C-1 to -10 lies only against the child's natural or adoptive parents, a neglect and abuse action lies against any caretaker of the child. See DYFS v. J.C., 346 N.J. Super. 277, 284 (App. Div. 2001), certif. denied, 172 N.J. 178 (2002). The definition set forth in N.J.S.A. 9:6-8.21(a) is expansive but not unlimited, and a party who lacks either a legal duty or an assumed responsibility is not included.
N.J.S.A. 9:6-8.19a sets forth that:
In any case in which the Division of Youth and Family Services accepts a child in its care or custody, the child's resource family parent or relative . . . shall receive written notice of and an opportunity to be heard at any review or hearing . . . but [they] shall not be made a party . . . solely on the basis of the notice and opportunity to be heard. [N.J.S.A. 9:6-8.19a (emphasis added).]
The Division concedes that defendant is entitled to both notice and an opportunity to be heard.
As defendant did not raise any issues on appeal in the proceedings below, we must apply the plain error rule. R. 2:10-2. "Plain error is reversible if it is 'clearly capable of producing an unjust result.'" State v. Barden, 195 N.J. 375, 394 (2008) (quoting R. 2:10-2). An error is "clearly capable of producing an unjust result" only if it is sufficient to "raise a reasonable doubt as to whether the error led the [trier of fact] to a result it otherwise might not have reached." Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "An appellate court ordinarily will not consider issues that were not presented to the trial court . . . ." State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Addressing defendant's specific arguments raised on this appeal, we set forth some basic principles that inform our decision.
"Estoppel is an equitable doctrine, founded in the fundamental duty of fair dealing imposed by law . . . ." Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999) (quotation omitted). "The doctrine is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment." Knorr v. Smeal, 178 N.J. 169, 178 (2003) (citing Mattia v. Northern Ins. Co. of N.Y., 35 N.J. Super. 503 (App. Div. 1955)). The doctrine is invoked in "the interests of justice, morality and common fairness . . . ." Palatine I v. Planning Bd., 133 N.J. 546, 560 (1993) (quoting Gruber v. Mayor of Raritan Township, 39 N.J. 1, 13 (1962)).
Reliance of one party upon another is required. Knorr, supra, 178 N.J. at 178 (citing Country Chevrolet, Inc. v. Twp. of N. Brunswick Planning Bd., 190 N.J. Super. 376, 380 (App. Div. 1983)). Defendant must show that DYFS engaged in conduct that defendant relied upon and "the relying party must act so as to change his or her position to his or her detriment." Miller v. Miller, 97 N.J. 154, 163 (1984) (emphasis added). Equitable estoppel is rarely invoked against public entities, O'Malley v. Department of Energy, 109 N.J. 309, 316 (1987), particularly when estoppel would "hinder or prejudice essential governmental functions." Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954). It is applied against governmental entities "only in very compelling circumstances," Twp. of Fairfield v. Likanchuk's, Inc., 274 N.J. Super. 320, 331 (App. Div. 1994) (quoting Palatine I, supra, 133 N.J. at 560), because "matters of public interest and legislative will should not be easily compromised by freely applying the doctrine of estoppel to irregular municipal conduct." Juliano v. Borough of Ocean Gate, 214 N.J. Super. 503, 507 (Law Div. 1986). However, the "Court has long held that the prevention of manifest injustice provides an exception to the general rule." Casamasino, supra, 158 N.J. at 354.
Laches, on the other hand, is the equitable doctrine invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party. In re Kietur, 332 N.J. Super. 18, 28 (App. Div. 2000) (citing Cnty. of Morris v. Fauver, 153 N.J. 80, 105 (1998)). Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned. Dorchester Manor v. Borough of New Milford, 287 N.J. Super. 163, 172 (Law Div. 1994), aff'd, 287 N.J. Super. 114 (App. Div.1996).
The time constraints for the application of laches "are not fixed but are characteristically flexible." Lavin v. Bd. of Educ., 90 N.J. 145, 151 (1982). The key factors to be considered in deciding whether to apply the doctrine are the length of the delay, the reasons for the delay, and the "changing conditions of either or both parties during the delay . . . ." Id. at 152. The core equitable concern in applying laches is whether a party has been harmed by the delay. Id. at 152-53.
Defendant urges that it is unjust for her to lose her status after nearly two years of litigation, and that she has relied upon the Division's course of action to her detriment. Specifically, the detriment complained of is the rehabilitative services completed during the litigation and the prospect of losing contact with A.F. Defendant also argues that, because the Division did not move earlier to remove her from the litigation, laches prevents them from doing so now. Both arguments fail for several reasons.
First, defendant cannot now challenge her dismissal on equitable grounds after actively inducing the Division to retain her as a party. When the trial judge first raised the issue of the propriety of defendant as a party, defendant and S.F. indicated to the trial judge that they planned on obtaining a civil union. This representation reasonably justified both the Division and the court in retaining defendant as a party at that time.*fn2
Defendant seeks to portray visitation, parenting classes, counseling and therapy as detriments suffered as a result of relying upon the Division's decision. All of these services benefited defendant especially when considered in support of stated goal of adopting A.F.
Defendant characterizes her dismissal as a "ripping apart of [their] bond," which would be "the greater detriment . . . ." However, as the trial judge noted at the hearing:
Is she, has she been a caregiver? The answer is, yes, she has. There is no question that under the statute as a caregiver she is entitled to notice, she's entitled to be heard, but I don't believe that the mere fact that she was named as a defendant confers any rights. [Defendant] will continue to have contact with [A.F.]. [Defendant] will continue to receive notices as a caregiver under the statute so that she can appear and assert her, you know, whatever her interests are in [A.F.].
Finally, equitable estoppel is particularly inappropriate in this case because it is sought against a governmental entity. Defendant will retain all of her entitled rights, with the sole exception of the right to appointed counsel through the Office of Parental Representation. The efficient administration of the family court system, and ultimately protecting the rights of children is an important public interest, and here, does not warrant the application of the doctrine of equitable estoppel.
Laches is equally inappropriate in this case because there was no undue delay in dismissing defendant from the action.
S.F. and defendant continued their relationship throughout much of the litigation. The issue of the propriety of defendant's presence in the litigation was raised from inception. Defendant and S.F. were in a position to alter defendant's status by entering into a civil union but failed to do so. Further, the Division's initial reunification plan of A.F. with S.F. always contemplated defendant serving in a supportive role. The need to dismiss defendant did not arise until the new permanency plan was developed, at which point the Division acted promptly. Any delay in moving to dismiss defendant was explained and warranted.
In addition, there is no alleged or actual harm to defendant as a result of any delay. Defendant is in the same position as if she had been dismissed at the beginning of the litigation: as a caregiver, she retains all previously held rights. Because defendant fails to identify any harm resulting from the delay, laches is not an appropriate basis to preclude the action taken against defendant.
We conclude that the judge properly dismissed defendant as a party defendant and affirm substantially for the reasons set forth in Judge Bergman's comprehensive oral opinion of November 18, 2009.