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New Jersey Division of Youth and Family Services v. F.M

August 14, 2012


On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Albin


(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 interest of brevity, portions of any opinion may not have been summarized.)

New Jersey Division of Youth and Family Services v. F.M. (A-108-10) (067611)

Argued January 4, 2012 -- Decided August 14, 2012

ALBIN, J., writing for a unanimous Court.

The Court considers whether the parental rights of F.M. (Fernanda) were properly terminated because she was incapable and unwilling to protect her children from the risks posed by their mentally ill and drug-addicted father (Troy).

Fernanda was seventeen years old when she gave birth to Troy's child, Quinn, in June 2007. Troy had an extensive criminal record and a serious drug-addiction problem, and he was diagnosed in October 2007 with Schizoaffective Disorder Bipolar Type, Polysubstance Dependence, and Antisocial Personality Disorder. Troy assaulted Fernanda in November 2007. Although Fernanda refused to seek a domestic violence restraining order, he was charged with simple assault. Fernanda informed a DYFS caseworker that the assault occurred after Troy took ecstacy and that his mental illness had worsened. In December, Troy told Fernanda and a DYFS caseworker that he was God and that his kingdom was coming. DYFS decided that Troy must not be permitted access to Quinn. Fernanda and her family were warned that permitting Troy to return to Fernanda's home would result in the removal of the child and placement in a foster home. Despite the warnings, Fernanda permitted Troy access to the home.

In December 2007, DYFS filed a verified complaint seeking the care, custody and supervision of Quinn. In two orders entered in January 2008, the family court granted interim relief to avoid an ongoing risk to the child's life, safety or health. Fernanda maintained physical custody of Quinn, and Troy was restrained from entering Fernanda's home and having contact with Quinn that was not supervised by DYFS. The orders also required evaluations of Fernanda and Troy and the provision of services to both, and warned that failure to comply could trigger termination of parental rights proceedings. The evaluating psychologist opined that Troy's unwillingess to remain in psychiatric care placed Quinn at risk for child endangerment. Fernanda's evaluation revealed that she was dependent on Troy and minimized the risk of harm he posed to Quinn. In April 2008, DYFS made an unannounced visit to Fernanda's apartment and found Troy alone in a bedroom with Quinn. Quinn was removed and placed with foster parents. Less than two weeks later, Fernanda gave birth to Troy, Jr. DYFS took the baby into its custody, placed him with a foster family, and amended the complaint to include him. At no time before the permanency and guardianship hearings did Fernanda or Troy challenge the court's award of care, custody and supervision of the children to DYFS or request an abuse and/or neglect hearing. On May 14, Troy entered a consent order admitting that he had violated the order restraining him from entering Fernanda's home and having unsupervised contact with Quinn, and that this constituted abuse or neglect. In November 2008, Fernanda moved into her own apartment, paid for primarily by Troy. DYFS received reports that Troy was staying there, and during visits it observed men's clothing and toiletries inside.

In March 2009, the family court conducted a permanency hearing to determine whether the goal for the children should be reunification with their parents or adoption. The court found that initiating proceedings to terminate parental rights would be appropriate because Troy failed to comply with services to address his mental health and addiction problems and Fernanda had only recently begun to comply with services and make progress. In May 2009, DYFS filed a guardianship petition, pursuant to N.J.S.A. 30:4C-15, seeking termination of Troy's and Fernanda's parental rights on grounds that termination would be in the childrens' best interests. Court-ordered bonding evaluations by the psychologist revealed that Quinn and Troy, Jr. were bonded to their foster parents more strongly than to Fernanda, the children regarded the foster parents as their psychological parents, and termination of Fernanda's parental rights would not result in psychological harm. A psychological evaluation of Fernanda revealed that she minimized Troy's drug and violence issues. Although the psychologist viewed Fernanda as a low risk for committing child abuse, it found that she was not in a position to parent the children because of her judgment with regard to Troy. Although Fernanda told the psychologist that she had severed her relationship with Troy, that statement was contradicted by witnesses who observed her with Troy both before and after the evaluation.

The family court conducted a termination of parental rights hearing in January and February 2010. Four DYFS employees and the evaluating psychologist testified. Fernanda did not present a bonding or psychological expert to rebut the State's evidence. Testifying on her own behalf, Fernanda denied that she had ever lived with Troy, that he had assaulted her, and that he was currently visiting her. In March 2010, the family court found that Fernanda was not credible and that DYFS had proven the four factors of the best-interests test set forth in N.J.S.A. 30:4C-15.1(a). The court terminated Fernanda's parental rights to both children because (1) the parental relationship endangered the children's safety, health or development because of Fernanda's commitment to Troy; (2) Fernanda was unable or unwilling to provide a safe and stable home for the children and delay of permanent placement would add to the harm; (3) DYFS had provided substantial services directed toward reunification; and (4) based on the evaluations, termination would not do more harm than good. The Appellate Division affirmed in an unpublished opinion, holding that the family court's findings were supported by clear and convincing evidence. The panel, however, did not address an issue that was raised for the first time on appeal-whether DYFS was properly awarded the statutory care and custody of the children, which is a prerequisite to termination under N.J.S.A. 30:4C-15(c). The Supreme Court granted certification. 206 N.J. 329 (2011).

HELD: In this termination of parental rights case pursuant to N.J.S.A. 30:4C-15, the record supports the family court's decision to terminate defendant F.M.'s parental rights, and the doctrine of laches bars her claim, raised for the first time on appeal, that a statutory prerequisite for the commencing the termination of her parental rights was not met.

1. To initiate a guardianship petition with the goal of terminating parental rights, one of five grounds set forth in N.J.S.A. 30:4C-15(a) to (f) must be met. The provision relied on by DYFS in this case, subsection 15(c), directs DYFS to file a petition to terminate parental rights whenever it appears that the best interests of any child under its care or custody require that he or she be placed under guardianship. N.J.S.A. 30:4C-12 outlines the required procedures for DYFS to obtain care or custody. It provides that if an investigation reveals that the child requires care and supervision by DYFS, the division may apply to the family court for an order placing the child under its care. The court must then hold a summary hearing on notice to the parents. Any order granting DYFS care or custody is effective for six months unless the court conducts another summary hearing and extends the order. Interim relief may be granted by a court if the child's life, safety or health may be in danger before notice can be given or a hearing held. DYFS may bring an action for the termination of parental rights under N.J.S.A. 30:4C-15 without first bringing an abuse or neglect action. (pp. 25-28)

2. Laches is an equitable doctrine that denies 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. With regard to Fernanda's claim that DYFS did not possess the requisite "care or custody" over the children before initiating a guardianship hearing-a claim that she raised for the first time on appeal-the Court notes that the family court granted DYFS interim care and supervision in January 2008, followed by six hearings between January 2008 and March 2009 before the guardianship hearing was held. At all but one of the six hearings, Fernanda was represented by counsel. She had notice and an opportunity to be heard, and at any one of her court appearances or at any time in between she could have challenged DYFS's right to assume care or custody of the children and demanded a factfinding hearing. She did not do so. At the very least, she was required to contest whether DYFS had the authority to exercise care or custody at or about the time of the filing of the guardianship petition. Because Fernanda had a sufficient opportunity to assert her claim in the family court, DYFS proceeded in good faith, and the children formed strong bonds with the foster parents, the doctrine of laches applies to bar her claim. (pp. 28-32)

3. It is the State's responsibility to protect children whose lives or psychological well-being may have been harmed or may be seriously endangered by neglectful or abusive parents. The focus of a termination of parental rights hearing is the best interests of the child. The burden is on the State to satisfy by clear and convincing evidence the four-factor test set forth in N.J.S.A. 3:4C-15.1(a), which requires that (1) the child's safety, health or development has been or will be endangered by the parental relationship; (2) the parent is unwilling or unable to eliminate the harm; (3) DYFS has made reasonable efforts to provide services to help the parent correct the situation; and (4) termination will not do more harm than good. An appellate court must determine whether the decision of a family court was supported by substantial and credible evidence on the record. A family court's findings of fact will be upheld unless they are so wide of the mark that intervention is necessary to correct an injustice. (pp. 32-35)

4. There is substantial and credible evidence in the record to support the family court's findings that the State satisfied the first and second prongs of the statutory test for termination of parental rights. Troy's criminal past, drug addiction and mental illness, including his delusions, resulted in a DYFS case plan to protect Quinn by ensuring that Troy had no unsupervised contact with the child. Despite case plans and court orders, Fernanda permitted Troy to have unsupervised contact with the child. Fernanda's commitment to and dependency on Troy overwhelmed her willingness or capacity to protect her children and provide a stable home. Additionally, Fernanda's credibility was undermined by her repeated denials of a continuing relationship with Troy despite substantial evidence proving otherwise, and by her recantation of domestic violence. DYFS also satisfied the third prong of the statutory test by making reasonable efforts to provide services to help Fernanda reunite with her family. The trial court enumerated nineteen resources and services provided to Fernanda and her children in support of reunification. Finally, the fourth prong of the test, which is a "fail-safe" inquiry guarding against an inappropriate or premature termination of parental rights, was satisfied by the psychological evaluations of the children, Fernanda, and the foster parents. Those evaluations revealed that the foster parents had become the children's psychological parents and that severing those bonds at this point would cause the children enduring harm. Fernanda did not offer expert testimony to rebut those findings and the family court held that termination of Fernanda's parental rights would not do more harm than good. The record contains substantial and credible evidence to support the family court's findings on all four prongs of the best-interests-of-the-child test. The decision to terminate Fernanda's parental rights is not so wide of the mark and falls squarely within the permissible bounds of discretion accorded to the family court. (pp. 35-43)

The judgment of the Appellate Division is AFFIRMED.


Argued January 4, 2012

JUSTICE ALBIN delivered the opinion of the Court. Defendant F.M. (Fernanda) appeals the termination of her parental rights to her now five-year-old daughter, Quinn, and four-year-old son, Troy, Jr.*fn1 Both children were born of a relationship between Fernanda and T.J. (Troy). The family court found that Troy had committed an act of domestic violence against Fernanda, had an intractable drug-addiction problem, and suffered from mental illness that induced delusional thoughts that he was God. On this basis, the court considered Troy a danger to the physical well-being of the children.

The termination of Fernanda's parental rights was premised on the court's findings that she was incapable and unwilling to protect her children from the dangers presented by Troy. The court barred Troy from having unsupervised contact with Quinn, the only child born of their relationship at the time. In violation of court orders and earlier consent agreements with the Division of Youth and Family Services (DYFS or Division), Fernanda allowed Troy to have access to Quinn in her home. Fernanda's inability to shield Quinn from her father led to the child's removal from the home and later to the removal of Troy, Jr. after his birth.

After a four-day guardianship hearing, the family court determined that DYFS established by clear and convincing evidence that the best interests of both children required the termination of Fernanda's parental rights. The Appellate Division affirmed.

First, we determine that the prerequisite for the commencement of termination of parental rights was met in this case -- Quinn and Troy, Jr. were both in the "care or custody" of DYFS at the time of the filing of the guardianship complaint. See N.J.S.A. 30:4C-15(c). We come to this conclusion because Fernanda never raised any objection to "care or custody" before the family court, and therefore she is barred from doing so now based on the doctrine of laches.

Second, we uphold the family court's determination to terminate Fernanda's parental rights. We invest the family court with broad discretion because of its specialized knowledge and experience in matters involving parental relationships and the best interests of children. We defer to the family court's findings unless they are so wide of the mark that our intervention is required to avert an injustice. So long as the record contains substantial and credible evidence to support the family court's decision, we may not second-guess its judgment. We conclude that the court's findings are adequately supported by the record.


The record in this case was developed at a four-day termination-of-parental-rights hearing at which four DYFS employees, a psychologist, and Fernanda testified, and dozens of documents, including reports and court orders, were placed into evidence.


Fernanda began dating Troy when she was fourteen and he was twenty-five years old. She had only completed the eighth grade when, at the age of seventeen, she gave birth to Troy's child, Quinn, in June 2007. At the time, Fernanda lived with her aunt and other family members in a two-bedroom apartment in Paterson. Troy resided with his mother in a home directly behind Fernanda's apartment.

Troy had an extensive criminal record; six years of his young life had been spent behind bars. He suffered from a serious drug-addiction problem and was chronically unemployed. In October 2007, he was diagnosed with "Schizoaffective Disorder Bipolar Type," "Polysubstance Dependence," and "Antisocial Personality Disorder."

On the evening of November 9, 2007, Fernanda called the Paterson Police Department to report a domestic dispute she was having with Troy in her apartment. Quinn, at the time, was five months old. When the police arrived, Fernanda related that Troy had been arguing with her and that she feared that the exchange of words would escalate to a physical assault. Fernanda explained that, several days earlier, Troy had assaulted her, causing minor injuries to her face. She averred in a certification that Troy "put his hand on [her] and busted [her] lip twice." Although Fernanda declined to press charges on her own or to seek a domestic-violence-restraining order, the police arrested Troy, charged him with simple assault, and contacted DYFS. A DYFS investigation then ensued.

On November 16, Fernanda told a DYFS caseworker that the assault occurred after Troy had taken ecstasy pills. She added that Troy's mental illness had recently worsened and that he sometimes talked to himself. In a case plan prepared by DYFS, Fernanda agreed that Troy would not be permitted to enter her home until an assessment was made concerning the risk to Quinn.

Later in November, after interviewing Troy, a DYFS caseworker determined that his "unmedicated mental illness pose[d] a risk to the family." Although the DYFS worker determined that the allegation of child neglect was unfounded --apparently because Quinn was not present during the altercation between Fernanda and Troy -- both parents agreed in another case plan that Troy would not have unsupervised contact with Quinn. Troy also agreed to submit to a psychological evaluation and anger-management counseling. DYFS later arranged for members of the Emergency Child Abuse Program to conduct random visits of Fernanda's home to ensure compliance with the case plan.

Troy's December 10, 2007 substance-abuse assessment revealed an extensive history of drug use -- marijuana, cocaine, crack, hallucinogens (LSD and PCP), ecstasy, and amphetamines.

He also admitted to numerous hospitalizations for psychological and emotional problems, including several in the previous month.

The next day, Fernanda reported to a DYFS caseworker that Troy's behavior had grown increasingly erratic. Troy claimed that he was "GOD and that his kingdom [was] coming on" December

25. Additionally, at times, for no apparent reason, he would turn to her and ask why she was "disrespecting him." Although Fernanda did not fear for her or Quinn's safety, she believed that Troy needed to be hospitalized.

The following day, December 12, Troy repeated to a DYFS caseworker that he was God and that his kingdom was coming on December 25. He also said that he had a friend, the biblical Moses, who would help him and that "many influential people in high places" would take care of him. That same day, Troy was diagnosed at St. Joseph's Regional Medical Center as schizophrenic and released on medication, and Fernanda was warned by a DYFS caseworker that Troy was not to have access to Quinn.

On December 13, the DYFS worker told both Fernanda and her aunt categorically that Troy was not allowed to return to their home or to leave with Quinn. They were instructed that if they failed to comply, the Division would remove Quinn and place her in a foster home. These warnings were not heeded.

Shortly after midnight on December 14, 2007, a DYFS caseworker responded to Fernanda's apartment based on an anonymous tip that Troy was present there. The worker found Troy in a bedroom watching television. Quinn was asleep and appeared to be in good health. Fernanda explained that she thought Troy's presence was allowed because he had completed a psychiatric evaluation. The caseworker informed the parents that Troy would have to leave and was not permitted to return to the home unless authorized by the Division. They were told that failure to comply would place Quinn at risk of removal from the home. Afterwards, random visits to the home did not reveal a violation of the case plan.


On December 31, 2007, DYFS filed a verified complaint in the Superior Court, Chancery Division, Family Part, seeking care, custody, and supervision of Quinn pursuant to N.J.S.A. 30:4C-12 and N.J.S.A. 9:6-8.21 to -8.73. A week later, based on the testimony of a DYFS caseworker at an ex parte hearing, the family court ordered that DYFS be given interim "care and supervision" of Quinn to avoid an "ongoing risk" to the child's "life, safety or health." The show-cause order -- captioned as a child abuse-neglect action -- was premised on the earlier act of domestic violence, Troy's use of illegal drugs, and his mental instability. The court ordered Fernanda and Troy to show cause on January 28 why "an order should not be entered continuing [Quinn] under the care and supervision of the Division." The court further ordered, among other things, that Troy undergo domestic violence counseling, a psychiatric evaluation, and anger-management training; that he comply with the recommendations of his substance-abuse program; and that he not enter Fernanda's home or have unsupervised contact with Quinn. Fernanda was directed "to comply with the order restraining [Troy] and notify the authorities and the Division of any violations."

On January 28, 2008, the family court amended its earlier order, this time granting DYFS custody as well as care and supervision of Quinn.*fn2 Under the court's order, Fernanda maintained physical custody of her daughter, and Troy was restrained from entering Fernanda's home and from having any contact with Quinn unless supervised by DYFS. The order provided for services for Troy and Fernanda and evaluations of both. They were warned that a failure to comply with the order might "result in the commencement of a termination of parental rights proceeding."*fn3

On February 14, 2008, Eric Kirschner, Ph.D., conducted psychological evaluations of both Troy and Fernanda.

Dr. Kirschner determined that Troy's "failure to recognize his psychological impairments and . . . to remain in consistent psychiatric care has likely compromised his ability to provide an adequately safe and nurturing environment . . . thereby placing his daughter at increased risk for child endangerment." Troy was not receiving any mental health services at the time. Dr. Kirschner expressed "limited confidence" in Troy's "ability to be compliant with recommended services." He concluded that "[w]ithout treatment, the threat of persistent negligence and child endangerment remains prominent."

In Dr. Kirschner's opinion, Fernanda "presented as an individual who was dependent on [Troy] particularly in terms of financial support." She minimized the domestic-violence incident and "denied having any concern about [Troy's] ability to provide a safe and protective environment for" Quinn. Fernanda's responses raised "significant concerns" about her "ability to ...

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