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Deborah Boru v. Peter Foy

October 4, 2011

DEBORAH BORU, PLAINTIFF-RESPONDENT,
v.
PETER FOY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-26-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 24, 2011

Before Judges Yannotti, Espinosa and Skillman.

This case concerns a custody dispute between a natural father and a maternal aunt who asserts she is the child's psychological parent. For approximately two and one-half years, the child lived in New Jersey with her terminally ill mother and maternal aunt, plaintiff Deborah Boru, while her father, defendant Peter Foy, remained in New Mexico. Peter appeals from an order that granted custody to Deborah after his wife's death. For the reasons that follow, we conclude that there was sufficient proof of "exceptional circumstances" to overcome the presumption in favor of a natural parent's right to custody and af irm.

K. was born in February 2003. At the time, her mother, Diane, and Peter had been married for approximately sixteen years. In 2004, Diane and Peter moved to New Mexico in the hope of finding greater opportunities.

In November 2006, Diane was diagnosed with Stage 2 tongue cancer. She decided to go to New Jersey with K., then three years old, for her treatment and live with Deborah. According to Peter, they agreed he would stay in New Mexico and that she would return to New Mexico following treatment. Unfortunately, Diane suffered through a series of recurrences, surgeries and treatments until her death approximately two years later. Aside from one visit to New Mexico in June 2008, she never returned.

Diane underwent her first surgery in December 2006, a tongue dissection. She remained in the hospital for two weeks, recuperated for six weeks at Deborah's home and then began an initial round of radiation and chemotherapy that was completed in early April 2007.

In May 2007, Diane noticed another nodule on the side of her neck, which tested positive for cancer. She had a second surgery in June 2007 to remove the lymph nodes on the left side of her neck. Her treatment continued through the summer. In August, tests confirmed that the cancer had metastasized to her scalp and lung.

Diane continued in treatment, receiving radiation and chemotherapy on and off until January 2008. During this period, Diane was going through rehabilitation, learning how to speak again, but was only able to handle one to two hours of activity outside the home.

In April 2008, an MRI revealed that Diane's cancer had spread further. The tumor on her scalp was enlarged, beginning to pierce the lining of her brain, and the tumor on her lung was also starting to grow. The doctor who had been treating her told her there was no plan for further treatment. Diane went with Deborah to another cancer center, which provided her with a plan of treatment from April to October 2008.

Diane had another setback in September 2008, when she discovered another tumor on her scalp. The treatment plan was modified to extend radiation and chemotherapy to December 2008.

In mid-December, Diane learned she had a tumor growing in her right middle ear. Chemotherapy was resumed again. Diane required emergency hospitalization for double pneumonia on December 29, 2008, and remained hospitalized until February 8, 2009, when she was transferred to a rehabilitation facility and ultimately discharged to Deborah's home.

While she was hospitalized, Diane consulted with an attorney and wrote the following letter to defendant:

Peter - I implore you, for [K.'s] sake that in the event that something happens to me, that you would allow [K.] to continue her life with my sister as her guardian, living with her in New Jersey and continuing her education under Deborah's guardianship. This is where

[K.] belongs because this has been her home since we left New Mexico over 2 years ago.

This is my wish and I beg you to please honor what I am requesting with my whole heart for [K.'s] best interest and future.

With utmost gratitude, Diane Foy 1/15/09 On the same date as this letter, Diane executed a will in which she named her sister as guardian for K. Peter stated that he did not receive the letter until after Diane's death.

Diane returned to Deborah's home on February 8, 2009, but had to be hospitalized on February 16, 2009. Deborah called Peter, who came to New Jersey on February 21 and stayed until March 1, 2009. Before leaving, he told Deborah's husband that he knew this was the last time he would see his wife alive, that he would take K. back to New Mexico and the government would help him financially.

Diane died one week later, on March 8, 2009.

Peter had been accepted for training as a corrections officer in mid-December 2006 and began his employment in January 2007. He made his first visit to New Jersey in March or April 2007. Although he could have applied for up to twelve weeks of paid leave, Peter came to New Jersey only a few times after that - in October 2007, February 2008, October 2008 and in February 2009, just prior to Diane's death. He has never alleged that he was unaware of Diane's progressively poor diagnoses. Yet, his testimony did not reveal any effort he made to determine whether

K. required additional care under the circumstances.

On the day after Diane's death, Deborah consulted with a child psychiatrist to determine the best way to tell K., then six years old, her mother had died. After Peter arrived, they sat in a circle with Deborah's mother and brother. Deborah told K. that her "mommy is with God now in heaven." K. had a flat affect, apparently in shock. She hugged Deborah and her grandmother. Peter also hugged and reassured K. She did not break down in tears until she joined Deborah when Deborah was telling her daughter about Diane's death.

On the day after Diane's funeral, Peter took K. to school and told the principal he intended to leave New Jersey that day, taking K., without telling Deborah. The principal attempted to dissuade him from this course of action and called the police. Deborah learned of Peter's plan coincidentally when she came to school to give her daughter cough syrup.

Later that afternoon, Deborah's brother and mother met with Peter and convinced him that it would not be good for K. to be taken out of school suddenly. He agreed to let her stay until the Easter recess. Peter admitted in his testimony that he had not given any thought to how K. might react if told she was going to leave for New Mexico so soon.

Deborah filed an order to show cause and a verified complaint for custody of K. on March 13, 2009. The order to show cause sought to restrain Peter from removing K. from New Jersey, based upon the conditions observed and documented at his home during a June 2008 visit by Diane, Deborah, K., and Deborah's daughter. Although Peter testified that the house was clean, the trial judge described "despicable conditions" of "complete filth" at the house that included dog feces both inside the house and in the rear yard. The trial judge entered orders on April 3, 2009, continuing custody of K. with plaintiff, appointing a guardian ad litem for K., ordering a diagnostic evaluation of the parties by the Bergen Family Center and a home inspection custody/parenting time investigation, and scheduling a plenary hearing.

In addition to the parties, there was extensive testimony from both fact and expert witnesses at the plenary hearing. The trial judge found Deborah, her husband, brother, sister, and mother, and K.'s school principal "extremely credible." He found the testimony provided by Peter's father "added nothing" and that the testimony of Peter's two friends from New Mexico was "facile and insubstantial."

Deborah testified that when Diane and K. came to live with her, Diane became unable to perform the daily tasks required to care for K. Although Diane remained the "mom" in making decisions, Deborah became primarily responsible for K.'s day-today care. The list of parental tasks performed by Deborah bears this out. She toilet-trained K., took her to medical appointments, prepared her meals, put her to bed each night, and took her to and from school each day. She enrolled her in parochial school, arranged for a scholarship for her, and helped her with homework. Deborah also enrolled and paid for K. to participate in extra-curricular activities such as karate, ballet, swimming and guitar lessons. Deborah bought K.'s clothes, toys, and school supplies. She neither asked for nor received any reimbursement from Peter for these expenses or other financial support for K.

The trial court observed that Deborah was "extensively involved" in K.'s education, volunteering at school, serving as class mother, and participating in parent-teacher meetings as

K.'s surrogate parent. The trial court found that, as Diane struggled through her terminal illness, K.'s care and nurturing was increasingly seen to by Deborah and her family. The court concluded there was "no reasonable doubt" that Deborah "not only provided, but also actually met or exceeded all of [K.'s] maternal needs that could not be provided by her fatally ill mother."

Peter testified that he and his daughter were "[a]lways very close." He described the care he provided to K. before she and Diane moved to Deborah's home. Although Diane and her mother did most tasks for K. when they lived with Diane's mother, he stated that everything changed when they moved to New Mexico. Since Diane had full-time employment and he did not, he and Diane had to "work together . . . as a ...


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