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New Jersey Division of Youth and Family Services v. R.D

July 20, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.D., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF K.D. AND R.D., MINORS.



The opinion of the court was delivered by: Justice Rivera-soto

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

New Jersey Division of Youth & Family Services v. R.D.

(A-2-10) (066070)

Argued May 3, 2011 -- Decided July 20, 2011

RIVERA-SOTO, J., writing for a unanimous Court.

The issue in this appeal is whether determinations made in the adjudication of an abuse or neglect proceeding under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, can be given collateral estoppel effect in a later guardianship/termination of parental rights proceeding under Title Thirty, N.J.S.A. 30:4C-11 to -15.4.

This appeal arises from the termination of defendant R.D.'s parental rights to his two youngest children. In November 2004, defendant's adult step-daughter reported to the New Jersey Division of Youth & Family Services (DYFS) that defendant had been sexually molesting one of her step-sisters. A DYFS investigation resulted in the emergency removal and temporary foster care placement of the children. DYFS filed a complaint, and the Chancery Division - Family Part, acting under Title Nine, issued an order to show cause for protective services, determining that removal was necessary to avoid an ongoing risk to the children. On the return date, the court reaffirmed its determinations and scheduled a fact-finding hearing, noting that the burden of proof "is preponderance of the evidence or clear and convincing" evidence. Following that hearing, the Title Nine court issued a statement of findings, in which it explained that Title Nine requires the State to prove abuse or neglect by a preponderance of the evidence, but that a court may apply a higher "clear and convincing evidence" standard. The court found by clear and convincing evidence that defendant had committed aggravated sexual assault against his daughter, placed the health of all the children in imminent danger by exposing them to this conduct, and violated N.J.S.A. 9:6-8.21(c)(4). The court therefore concluded that it was in the children's best interests to place them outside the home due. After further proceedings, the Title Nine court determined that termination of parental rights followed by adoption was an appropriate plan because defendant had failed to complete services, and thus there continued to be a risk of harm to the children. Defendant never appealed the Title Nine court's determinations.

DYFS then filed a Title Thirty complaint seeking to terminate defendant's parental rights. The Title Thirty court ordered that defendant was barred from attacking the Title Nine court's factual conclusions that DYFS had proven by clear and convincing evidence that defendant had placed the children in imminent danger by engaging in an inappropriate sexual relationship with his daughter and by exposing all of the children to that behavior. The Title Thirty court adopted those findings as conclusive in the Title Thirty action, reasoning that the Title Nine court had announced that it may use a "clear and convincing evidence" standard, thus giving defendant notice that the proceeding could be important in a termination trial in which that standard applies. Following the Title Thirty trial, the court concluded that the State proved all four elements of the "best interests of the child" test, N.J.S.A. 30:4C-15.1, by clear and convincing evidence, ordered that defendant's parental rights be terminated, and awarded guardianship to DYFS. The Title Thirty court concluded that DYFS satisfied the first prong of the "best interests" test -- that the safety, health or development of the child has been or will continue to be endangered by the parental relationship -- based solely on the Title Nine court's findings. In determining that DYFS established the remaining prongs of the "best interests" test, the court relied on evidence presented in the Title Thirty proceeding.

The Appellate Division affirmed. 412 N.J. Super. 389 (App. Div. 2010). The court recognized that abuse and termination proceedings are brought under separate statutes, require different burdens of proof, and allow for different remedies. The panel emphasized, however, that when a Title Nine finding of abuse is made by clear and convincing evidence, it may support a Title Thirty termination of parental rights. The court concluded that collateral estoppel barred relitigation here. The Court granted defendant's petition for certification. 203 N.J. 437 (2010).

HELD: Unless the parties are on notice that Title Nine abuse or neglect proceedings are to be conducted under the clear and convincing evidence standard constitutionally required for guardianship/termination of parental rights proceedings under Title Thirty and appropriate accommodations are made for the fundamentally different natures of these proceedings, Title Nine determinations cannot be given preclusive effect in later Title Thirty proceedings.

1. The purpose of Title Nine is to immediately protect children from further injury, while the focus of Title Thirty is the permanent termination of parental rights. Under Title Nine, DYFS must take immediate action on a child abuse report; the Family Part must prioritize the proceedings; and there are short deadlines on the issuance and return of the complaint. Under Title Thirty, DYFS must initiate a petition to terminate parental rights if that is in the child's best interests; a final guardianship hearing must be held within three months from the date the petition is filed; and courts are guided by the principle that favors keeping children with their natural parents, who have a constitutionally-protected liberty interest in raising their children. The most important difference is the burden of proof: Title Nine cases are governed by the "preponderance of the evidence" standard, while Title Thirty cases are governed by the "clear and convincing evidence" standard because they implicate core constitutional rights. (pp. 25-34)

2. Collateral estoppel means that when a fact issue has been determined by a final judgment, it cannot be relitigated between the same parties in a future lawsuit. A party asserting that bar must establish: (1) the issue is identical in both proceedings; (2) the issue was actually litigated; (3) the court issued a final judgment; (4) the issue was essential to the judgment; and (5) the party against whom the bar is asserted was a party to the prior proceeding. Even if those conditions are satisfied, this equitable doctrine will not be applied when it is unfair to do so. (pp. 34-36)

3. The Appellate Division correctly concluded that the collateral estoppel test was satisfied. The bar should not be applied here, however, in light of the public policy considerations that inform the differences between the two proceedings. Title Nine proceedings are fast and geared towards interim relief, while Title Thirty cases stress a comprehensive approach and the relief sought is permanent termination of parental rights. The Title Nine court's passing reference that the standard was "preponderance . . . or clear and convincing evidence" did not give defendant fair notice of a possible preclusive effect on later -- but not yet filed -- termination proceedings. (pp. 36-41)

4. A Title Nine determination may be given collateral estoppel effect in a Title Thirty proceeding if principles of procedural due process are satisfied. A Title Nine court may avoid the duplication of presenting proofs in a later Title Thirty proceeding if it: (1) provides unequivocal advance notice to the parties that its findings will be based on the higher "clear and convincing evidence" standard; (2) makes clear that its determinations in respect of the interim Title Nine relief, particularly those concerning harm to the child, may have preclusive effect on the permanent relief arising out of a Title Thirty proceeding; and (3) relaxes the time deadlines and, to the extent necessary, uses the admissibility of evidence standards applicable to Title Thirty proceedings. (pp. 41-44)

5. The Title Thirty court's conclusion that DYFS satisfied the first prong of the "best interests of the child" standard by clear and convincing evidence based only on the Title Nine court's findings cannot be sustained. The Title Nine court's passing reference that it could determine the case under either standard was too indefinite to place defendant on notice that the court would apply the higher standard. The Title Nine court addressed only the interim finding of whether defendant had abused his children, not the "best interests" standard of N.J.S.A. 30:4C-15.1, and it made no accommodations to address the time differences between the two proceedings. Further, while none of the Title Thirty court's conclusions regarding the other prongs of the "best interests" test relied on earlier findings, a determination under the first prong may bleed into the remaining prongs; thus, the Title Thirty court's conclusions in respect of those other prongs also must be re-evaluated in light of the new findings needed as to prong one. (pp. 44-46)

6. The Appellate Division's decision is reversed. On remand, the Title Thirty court must conduct a new evidentiary trial limited to the first prong of the "best interest" test. Then, the court is to aggregate those proofs with the earlier developed proofs and re-weigh its analysis and conclusions in respect of all elements of the test. (pp. 46-47)

The judgment of the Appellate Division is REVERSED, and the case is REMANDED to the Family Part for proceedings consistent with the Court's opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and HOENS join in JUSTICE RIVERA-SOTO's opinion.

Argued May 3, 2011

On certification to the Superior Court, Appellate Division, whose opinion is reported at 412 N.J. Super. 389 (2010). Beatrix W. Shear, Deputy Public Defender, Parental Representation, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Shear and Thomas G. Hand, Designated Counsel, on the briefs). Peter D. Alvino, Senior Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General of New Jersey, attorney; Andrea M. Silkowitz and Lewis A. Scheindlin, Assistant Attorneys General, of counsel; Mr. Alvino and Lisa J. Godfrey, Deputy Attorney General, on the briefs).

JUSTICE RIVERA-SOTO delivered the opinion of the Court.

The primary question presented in this appeal is whether determinations made in the adjudication of an abuse or neglect proceeding under Title Nine of the New Jersey Statutes, N.J.S.A. 9:6-8.21 to -8.73, can be given collateral estoppel effect in later guardianship/termination of parental rights proceedings under Title Thirty of the New Jersey Statutes, N.J.S.A. 30:4C-11 to -15.4. We conclude that, unless the parties are on notice that the Title Nine proceedings are to be conducted under the higher, clear and convincing evidence standard constitutionally required for Title Thirty proceedings and appropriate accommodations are made for the fundamentally different natures of these disparate proceedings, Title Nine determinations cannot be given collateral or preclusive effect in any subsequent and related Title Thirty proceedings.

I.

This appeal arises from the February 2008 termination of defendant R.D.'s parental rights, pursuant to Title Thirty, to the two youngest of his five children: Katie, born in 1998, and Richard, born in 1999, who had been in defendant's custody and who were born to different mothers, Lydia and Laura, respectively.*fn1 That determination, however, was preceded by this family's long and plentiful history of contacts with the New Jersey Division of Youth & Family Services (DYFS). Starting with the 1978 birth of Lydia's first child, a daughter named Diane who was not fathered by defendant but for whom he was a step-father, this family's odyssey through the New Jersey child protective system consisted of approximately forty referrals over a thirty year period, ending with the 2008 termination of defendant's parental rights to Katie and to Richard. In specific as to defendant's acts of abuse or neglect that triggered the termination of his parental rights, there were several earlier referrals to DYFS that originated from claims that he had sexually abused some of his children as well as other minors.

That background leads to the events at issue in this appeal. On November 10, 2004, then twenty-two year old Nancy --Lydia's daughter and defendant's step-daughter -- reported to DYFS that defendant had been sexually molesting one of her step-sisters. DYFS commenced an investigation that resulted in the December 8, 2004 emergency removal and temporary foster care placement*fn2 of the five children still remaining in defendant's and Lydia's home: Susan (then 16 years old), Hillary (then 14 years old), Sheryl (then 12 years old), and Katie (then six years old), who were Lydia's and defendant's natural children; and Richard (then five years old), who was the child of defendant and Laura but who was living with defendant, Lydia and his step-sisters. Initially, the children were placed in separate foster homes; one child eventually was placed with a relative. The notice of emergency removal served on defendant advised that defendant "should appear at a court hearing regarding [his children's] removal[ to] be held on" December 10, 2004.

On the return date of the notice of emergency removal, DYFS also filed a verified complaint, "pursuant to N.J.S.A. 9:6-8.21 et seq. and N.J.S.A. 30:4C-12 and R. 5:12A-1 et seq.[,]" seeking such relief "as is provided by law . . . and as is in the best interests of the children." Based on the information then before it, the Chancery Division - Family Part, acting under Title Nine, issued an order to show cause for protective services with custody. See N.J.S.A. 9:6-8.31. That order "determine[d] that the removal of the children is necessary to avoid an ongoing risk to the life, safety or health of the children" and that "[c]ontinuation of residence in the home would be contrary to the welfare of the children[.]" It ordered, among other things, that "[t]he children be immediately made wards of the Court and placed in the immediate custody, care and supervision of [DYFS]" and set a return date of January 5, 2005 to determine whether the terms of that order should be continued.*fn3

On January 5, 2005, the Title Nine court reaffirmed its earlier determinations awarding legal custody of the children to DYFS and providing that physical custody of the children continue in foster care. It also ordered that defendant cooperate with a psychological evaluation, including a parenting assessment, and a substance abuse evaluation, and permitted weekly supervised visitation of the children by Lydia, Laura and defendant, "contingent upon 24 hour advance confirmation[.]" Finally, the court imposed various discovery requirements on DYFS, the Law Guardian, and defendant, and set a date for a fact-finding hearing. The fact-finding hearing in respect of the Title Nine abuse or neglect proceeding was held on March 4 and 15, 2005;*fn4 foreshadowing its later determination in respect of the appropriate burden of proof to be applied, the Title Nine court noted on the record of the March 4, 2005 proceedings that "[j]udgment in this particular case is preponderance of the evidence or clear and convincing[ evidence]." (emphasis supplied). In any event, the Title Nine court also individually interviewed each of the five children on March 15, 2005, and heard closing arguments of counsel on April 5, 2005.

On May 2, 2005, the Title Nine court issued a comprehensive written statement of its findings of fact and conclusions of law. The detailed findings in respect of defendant's inappropriate relationship with his sixteen-year-old daughter Susan are not important; suffice it to note that the Title Nine court determined without hesitation that defendant in fact had engaged in an inappropriate sexual relationship with his daughter Susan. See N.J.S.A. 9:6-1 (defining "[a]buse of a child" to include "(e) the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child"); N.J.S.A. 9:6-8.9 (defining "[a]bused child"); N.J.S.A. 9:6-8.21(c) (defining "[a]bused or neglected child"). It found as a fact that as of November 2004, [defendant] had an ongoing, inappropriate physical relationship of a sexual nature with his daughter [Susan]. [Susan] did serve as his virtual "girlfriend," by caring for the rest of the children and cooking, cleaning and "baby-sitting" the other children for [defendant] when he was not there. [Susan] slept every night on the couch with [defendant]. She engaged in regular sexual behavior with him in violation of [New Jersey's criminal laws]. The nightly "cries" of their sister [Susan] that the [other] children were forced to endure were the sad, inappropriate byproduct of the illegal sexual activity of their father with [Susan].

Defendant, of course, had contested the allegations made against him. Addressing defendant's credibility squarely, the court stated that, "[b]ased on the totality of the circumstances[,] the court seriously questions the truthfulness and veracity of [defendant] as to his testimony and explanations during this trial." It noted that it "place[d] little weight on [defendant's] testimony because the court finds that much of what [defendant] stated were self[-]serving, untrue statements meant to cover up what the court is going to determine were his wrongful acts." It specifically found that defendant "was untruthful during much of his testimony" and that defendant "was not a credible witness."

Turning from its factual and credibility findings to the resulting and necessary conclusions of law, the Title Nine court first addressed the applicable burden of proof. It explained that, as a threshold matter, "[t]he New Jersey Statutes require that in a fact-finding hearing the State must prove abuse and neglect by a preponderance of the evidence." (citing N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. J.Y. & E.M., 352 N.J. Super. 245, 262 (App. Div. 2002)). The court nevertheless observed that "New Jersey case law also permits a court to find abuse and neglect by 'clear and convincing evidence.'" (quoting N.J. Div. of Youth & Family Servs. v. V.F., 236 N.J. Super. 243, 261-62 (App. Div. 1989)). Electing to apply the higher "clear and convincing evidence" standard to this case -- an election that, at least presumptively, inured to defendant's benefit -- it substantively concluded as follows:

The court finds by clear and convincing evidence that [defendant] had and was, as of December 10, 2004, engaging in ongoing and wrongful sexual relations with his daughter [Susan]. As of December 10, 2004, [Susan] was [slightly over] 16 years . . . of age. The court finds, again by clear and convincing evidence[,] that this wrongful sexual contact had begun to occur prior to [Susan]'s sixteenth birthday so as to circumvent any misguided argument for mitigation by [defendant] that as of that date [Susan] reached the age of consent. Prior to [Susan's most recent birthday less than two months before], each inappropriate sexual act engaged in by [defendant] with [Susan] was a violation of N.J.S.A. 2C:14-2(a)(2)(a), Aggravated Sexual Assault, a crime of the First Degree. After [Susan]'s sixteenth birthday, each such act was [in] violation of N.J.S.A. 2C:14-2(c)(3), also Aggravated Sexual Assault, but then a Second Degree crime.

The court finds by clear and convincing evidence that this behavior was abuse or neglect as to [Susan] in that [defendant] committed sexual abuse as to her. This is a violation of N.J.S.A. 9:6-8.21(c)(3). This behavior also placed the physical, mental and emotional health of all of the children in imminent danger of being impaired as a result of [defendant] failing to exercise a minimum degree of care by exposing all the children to his inappropriate sexual contact with [Susan]. The court therefore finds by clear and convincing evidence that [defendant] violated N.J.S.A. 9:6-8.21(c)(4).

Based on those factual and legal predicates, the Title Nine court entered an order dated May 5, 2005 adjudging that it was "satisfied that the best interests of the minor children require[d] the entry [of an] order . . . that [r]emoval of the children was necessary due to imminent danger to the children's life, safety or health and the children have been placed outside the home for their safety and protection." Incorporating by reference the May 2, 2005 written decision, the May 5, 2005 order repeated the court's earlier determinations as well as the provisions for custody, evaluations, visitation and services earlier set forth in the court's January 5, 2005 order; it was followed by a compliance review hearing and a later dispositional hearing.*fn5

At the conclusion of the December 6, 2005 dispositional hearing, the Title Nine court determined that "[i]t is not and will not be safe to return the child[ren] home in the foreseeable future because the risk of harm to the children has not been eliminated" and that DYFS had "provided reasonable efforts to finalize the permanency plan, including reunification where appropriate[ and] therapy/counseling for [the parents.]" Despite those determinations, the court concluded that "[t]his case is an exception to the requirement to file [a Title Thirty complaint for the t]ermination of [p]arental [r]ights because . . compelling reason exists in this case in that [DYFS] desires to continue to provide services to this family." It ordered various forms of specific relief: psychotherapy for defendant; individual counseling sessions for Lydia; a psychological evaluation, substance abuse evaluation and random urine screenings for Laura; individual family counseling for each of the children; and individual mentors for each of the children. See N.J.S.A. 9:6-8.51 (setting forth required contents of order of disposition). The December 6, 2005 order also set a date for a permanency hearing. See N.J.S.A. 9:6-8.54(b)(2) and (3) (describing purpose of permanency hearing).

The permanency hearing was held on March 21, 2006. At the conclusion of that hearing, and in addition to finding that "[i]t is not and will not be safe to return the child[ren] home in the foreseeable future" and that DYFS had "provided reasonable efforts to finalize the permanency plan," the Title Nine court further concluded that "[t]ermination of [p]arental

[r]ights followed by [a]doption, for [Katie] and [Richard], is an appropriate plan because [defendant] and [the children's mothers] have failed to complete services [and, as a result] there continues to be a risk of harm to the children." It scheduled a compliance hearing for June 5, 2006, a date that also served as the deadline for the ...


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