(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 AND FAMILY SERVICES V. K.M., SR.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. R.M. (A-148/149-93)
Argued February 28, 1994 -- Decided June 22, 1994
GARIBALDI, J., writing for a unanimous Court.
R.M. and K.M., Sr. (defendants) are the parents of three young children: S.W., K.M., Jr., and R.M.
Although physically and financially capable of taking care of their children, defendants have failed to provide
for their children's basic needs of food, clothing and shelter. The Division of Youth and Family Services
(DYFS) investigated the home and family in June 1989 and uncovered dangerous and filthy living conditions.
Although some of the conditions were attributable to the landlord, DYFS concluded that defendants lacked
essential parenting skills. Defendants voluntarily placed the children in foster care, moved to a three-bedroom apartment in Atlantic City, and signed a service agreement with DYFS in which they agreed to
provide the children with a clean home and adequate medical care. DYFS was especially concerned about
the medical care of the young infant, R.M., who was failing to thrive because of inadequate and infrequent
feeding and no medical attention.
After the children were returned to the home, DYFS made regular visits and again found
substandard living conditions and poorly nourished children. On November 30, 1989, R.M. was hospitalized
for failure to thrive, dehydration and malnutrition. He was immediately placed in foster care with parental
consent. The two older children remained in the home. Defendants signed another service agreement with
DYFS and entered an intensive parenting-skills program at the Family Life Center. Unfortunately,
conditions in the home did not improve and, on February 8, 1990, defendants again voluntarily placed the
two older children in foster care. Since that date, the children have not been returned to defendants.
On October 25, 1990, defendants sought the return of their children by revoking the voluntary-placement agreements. In response, DYFS filed for temporary custody of the children pursuant to a Title 9
abuse-or-neglect proceeding. At the conclusion of the proceedings, the trial court determined that, by a
preponderance of the evidence presented, the children had been abused or neglected. Finding that
defendants had failed to exercise a minimum degree of care in supplying their children with adequate food,
clothing, and medical care despite they had the means to do so, the trial court, on July 16, 1991, entered a
final order of disposition continuing DYFS's custody of the children.
On October 23, 1991, defendants appealed the abuse-or-neglect decision to the Appellate Division.
On October 16, 1991, DYFS had filed a Title 30 complaint seeking termination of defendants' parental rights
and for guardianship of the children. None of the attorneys participating in the termination matter had
previously participated in the abuse-or-neglect matter. Different judges also presided over the two cases.
Based on much of the same evidence before the trial court in the abuse-or-neglect proceeding, plus
psychological evaluations of defendants and evidence of their lack of progress since the determination of
abuse-or-neglect, the trial court, on March 23, 1993, terminated defendants' parental rights and granted
guardianship of the children to DYFS. A final order of guardianship was filed on April 20, 1993. No appeal
was taken from that order nor did defendants seek a stay of the termination proceeding.
On June 12, 1993, the Appellate Division panel that was reviewing the Title 9 abuse-or-neglect appeal was advised that another trial court had granted DYFS a final order of guardianship terminating parental rights. Nevertheless, on August 4, 1993, the Appellate Division issued its opinion in the Title 9 case, remanding the matter and directing the trial court that heard the abuse-or-neglect case to 1) conduct a
hearing to determine whether the children could be returned to their parents; 2) require DYFS to provide
appropriate services; and 3) suspend further disposition. Finding that the termination trial should have been
delayed until the abuse appeal had been concluded, the Appellate Division also instructed the trial court that
had heard the termination matter to entertain a prompt application to set aside its final termination order.
DYFS filed a motion for reconsideration, which was denied.
The Supreme Court granted certification. Because it determined that the interests of justice
required a prompt disposition of DYFS appeals, the Court issued its disposition and orders in this case prior
to issuing the written opinion.
HELD: The Division of Youth and Family Services is statutorily empowered to bring concurrent but
separate Title 9 abuse-or-neglect proceedings and Title 30 termination proceedings against the
same parents. Furthermore, the Appellate Division, in its review of the abuse-or-neglect appeal,
improperly addressed the termination decision not before it.
1. Abuse-or-neglect and termination proceedings are brought under separate statutory schemes, require
different burdens of proof, and allow for different remedies. DYFS may bring such actions concurrently.
Termination proceedings under Title 30 do not require a prior determination of abuse or neglect. In
addition, any determination of abuse or neglect under Title 9 must be based on a preponderance of the
evidence while the burden of proof in a Title 30 termination case is by a clear-and-convincing-evidence.
Moreover, Title 9 authorizes a temporary remedy by enabling a court to place a child on protective custody
for a period of up to eighteen months. On the other hand, Title 30 provides for permanent placement.
Enabling Title 9 and Title 30 actions to proceed independently of each other furthers the important
legislative preference for the permanent placement of children. (pp. 10-16)
2. DYFS's handling of the Title 9 and Title 30 proceedings in this case should have been better
coordinated. In many cases, different attorneys represent the same defendants in two separate actions
concerning their parental rights. However, in this case, separate counsel made the matter unnecessarily
complicated and the lack of communication between the attorneys and the courts and the resulting delays
may have caused irreparable harm to the children. Once DYFS made the decision to pursue a permanent
remedy of guardianship through Title 30 termination proceedings, the court that was handling the appeal of
the Title 9 abuse-or-neglect determination should have been promptly notified so that a motion could be
made either to stay or to dismiss that appeal. To avoid such confusion in the future, it is suggested that one
case worker and one Deputy Attorney General be assigned to one family. The Court is aware that this may
be a difficult task given the current DYFS case load. Moreover, because defendants had to defend their
interests in two separate matters involving common issues, the Court renews its suggestion made in
Guardianship of G.S. that the Legislature combine both avenues of child advocacy under a single title with a
single mandate to the Office of the Public Defender to provide the necessary representation. (pp. 14-20)
3. Because they are separate causes of action, an appeal from a Title 9 abuse-or-neglect does not give
the Appellate Division jurisdiction over the Title 30 action and vice versa. Although similar issues and facts
may appear in the two actions, it is the parties who are responsible for deciding whether to appeal. In this
case, the termination proceeding was not appealed and, therefore, was final. As such, the Appellate Division
improperly reviewed a judgment not before it. (p. 20)
The Appellate Division's affirmance of the court's finding of abuse and neglect is AFFIRMED, the
Appellate Division's reverse and remand of the trial court's grant of the custody application in the abuse-or-neglect matter is REVERSED and the Appellate Division's direction to the trial court in the termination
proceeding to entertain a motion to vacate its order of termination is REVERSED.
JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN and STEIN join in JUSTICE
GARIBALDI's opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-148/
149 September Term l993
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
Plaintiff-Appellant,
v.
K.M., SR.,
Defendant-Respondent,
IN THE MATTER OF:
S.W., K.M., Jr., and R.M.,
Minors-Appellants.
_______________________________
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
Plaintiff-Appellant,
v.
R.M.,
Defendant-Respondent,
IN THE MATTER OF:
S.W., K.M., Jr., and R.M.,
Minors-Appellants.
_________________________________
Argued February 28, l994 -- Decided June 22, 1994
On certification to the Superior Court,
Appellate Division.
Mark Singer, Deputy Attorney General, argued the cause for appellant Division of Youth and
Family Services (Deborah T. Poritz, Attorney
General of New Jersey, attorney; Mary C.
Jacobson, Assistant Attorney General, of
counsel).
Janet L. Fayter argued the cause for
appellant Law Guardian on behalf of minors
S.W., K.M., Jr., and R.M. (Susan L. Reisner,
Acting Public Defender, attorney; James A.
Louis, Deputy Public Defender, of counsel;
Ms. Fayter, Mr. Louis, and Phyllis G. Warren,
Assistant Deputy Public Defender, on the
briefs).
Michele A. Adubato, Designated Counsel,
argued the cause for respondent K.M., Sr.
(Susan L. Reisner, Acting Public Defender,
attorney).
Jay M. Grossman, Designated Counsel, argued
the cause for respondent R.M. (Susan L.
Reisner, Acting Public Defender, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal concerns the intervention of the New Jersey
Division of Youth and Family Services ("DYFS") with one troubled
family in two separate court proceedings. DYFS first brought a
Title 9 abuse-or-neglect proceeding against defendants seeking
temporary custody of their children. The trial court found for
DYFS and awarded it custody of the children for eighteen months.
While that disposition was still subject to appeal, DYFS brought
a Title 30 proceeding against defendants seeking to terminate
their parental rights and assume permanent guardianship of the
children. Soon thereafter defendants appealed the abuse-or
neglect case. While that appeal was pending, the Title 30
proceeding was concluded, resulting in termination of defendants'
parental rights. That decision was not appealed.
Despite the termination of defendants' parental rights, the
Appellate Division continued its review of the abuse-or-neglect
action. In an unreported opinion it affirmed the trial court's
determination that the children had been abused and neglected but
reversed and remanded the trial court's order granting DYFS
custody for eighteen months. Further, it found that "it was
improper for DYFS to proceed with the termination proceedings
while this matter was before us * * *." Accordingly, it ordered
the trial court in the termination proceeding "to entertain a
prompt application for relief under R. 4:50-l from [its] final
order of termination * * *."
This appeal presents two issues: whether DYFS may bring a
Title 30 termination proceeding while an earlier Title 9 abuse
or-neglect proceeding against the same parents is still subject
to appeal, and whether the Appellate Division, in its review of
the abuse-or-neglect appeal, properly directed another trial
court to vacate its order to terminate the parental rights of the
same family.
We conclude that DYFS is statutorily empowered to bring
concurrent but separate Title 9 abuse-or-neglect proceedings and
Title 30 termination proceedings against the same family.
Further, we conclude that the Appellate Division erred by
addressing the termination decision not before it.
Defendants R.M. and K.M., Sr. are the parents of three children: S.W., born August l5, l986; K.M., Jr., born May 22, l988; and R.M., born March l5, l989. Unlike the stereotype of a troubled family that draws the attention of DYFS, no substance abuse or physical abuse is involved in this case. The father has been fairly consistently employed, while the mother has remained at home with the three young children. Although physically and financially capable of doing so, the parents have failed to provide for their children's basic needs of food, clothing and shelter.
DYFS first became involved with the family in June l989, when S.W. fell from a window of the family's second-story apartment. Miraculously, she was not injured but the DYFS investigation that followed uncovered dangerous and filthy living conditions in the home. The one-room apartment was roach-infested, with holes in the walls, exposed wiring, open windows without screens, and gnats stuck to dried paint on the walls. Although some of these deplorable conditions were attributable to the landlord, DYFS concluded that defendants lacked essential parenting skills. R.M. and K.M., Sr. voluntarily placed their children in foster care the same month.
While the children were away, defendants moved to a three-bedroom apartment in Atlantic City and signed a service agreement with DYFS. In the agreement, R.M. and K.M., Sr. agreed to
provide the children with a clean home and provide adequate
medical care. DYFS' concern for the children's medical care
focused primarily on R.M., the youngest, who was born prematurely
weighing only two pounds, nine ounces, and who had gained very
little weight under defendants' care due to inadequate and
infrequent feeding and no medical attention. R.M.'s medical
problems were so severe that he had to remain in foster care for
a few weeks after S.W. and K.M., Jr. were returned to their
parents to stabilize his condition.
DYFS made regular visits to the home after the children were
returned, and again found substandard living conditions. The
children were inadequately dressed, wearing only dirty
undershirts and dirty diapers, and the home itself was
persistently filthy. Due to improper feeding, the children had
lost weight after being returned to their parents. R.M.'s
medical condition was particularly precarious, and on November
30, l989, he was hospitalized for failure to thrive, dehydration
and malnutrition. He was immediately placed in foster care with
his parents' consent on his release from the hospital.
With only S.W. and K.M., Jr. remaining in the home,
defendants signed a second service agreement with DYFS. They
then entered an intensive parenting-skills program at the Family
Life Center that offered supervised interaction between the
parents and the children for eight hours a day, five days a week.
Even that, however, did not improve the conditions at defendants'
home. On February 8, l990, defendants again voluntarily placed
S.W. and K.M., Jr. in foster care. Since that date, the children
have not been placed back into their parents' custody.
Defendants continued their parenting skills courses on an
irregular basis.
On October 25, l990, defendants sought the return of their
children by revoking the voluntary-placement agreements. DYFS
was then faced with two options: return the children or file for
custody of the children under Title 9. It chose the latter, as
the parents had made no visible progress at the Family Life
Center and still posed a risk to the children. In addition,
despite the many services DYFS provided to the family, including
a registered nurse who visited the home regularly and the Jewish
Family Service In-Home Treatment Program to provide parenting
skill counseling, personnel from the various services continued
to report on-going neglect.
DYFS filed a verified complaint to begin an abuse-or neglect proceeding seeking temporary custody of the three children under N.J.S.A. 9:6-8.2l to -8.73 and N.J.S.A. 30:4C-l2. At the abuse-or-neglect proceeding, DYFS presented the testimony of two caseworkers assigned to the family as well as testimony from the director of the Family Life Center. The trial court correctly applied the standard that "any determination that the child [has been abused or neglected] must be based on a
preponderance of the evidence" under N.J.S.A. 9:6-8.46b, and
found that the children had been abused or neglected. Its
findings included the following:
R.M. failed to thrive as a result of improper
feedings by the defendants . . . that the
emotional condition of all three children was
impaired as a result of the parents' failure
to exercise a minimum degree of care . . .
that [S.W.] suffered from bottle mouth . . .
the parents failed to provide proper
supervision . . . that R.M. does not have
insight into [R.M.'s feeding] problem . . .
that defendants failed to exercise a minimum
degree of care in supplying their children
with adequate food, clothing, medical care,
though having means to do so.
After a series of initial hearings, the trial court on July
l6, l99l, entered a final order of disposition continuing DYFS'
custody of the children.
[I]t does not appear that [defendants] have
the ability to understand what must be done
and the capability to carry forward with that
understanding to properly take care of the
children on a daily basis . . .
On October 23, l99l, defendants appealed the abuse-or
neglect decision. By the time the matter was submitted to the
Appellate Division on November l6, l992, the children had been in
foster care nearly three years.
On October l6, l99l, however, DYFS filed a complaint for
guardianship pursuant to N.J.S.A. 30:4C-l2 to -22, seeking
termination of defendants' parental rights and for guardianship
of the children. None of the attorneys in the termination matter
had participated in the initial abuse-or-neglect matter.
Different judges also presided over the two matters.
After a lengthy trial, the trial court rendered an oral
decision in the termination case on March 23, l993. Based on
much of the same evidence before the trial court in the abuse-or-neglect proceeding, plus psychological evaluations of defendants
and evidence of their lack of progress since the determination of
abuse-and-neglect, the trial court terminated defendants'
parental rights and granted guardianship of the children to DYFS.
The court found that the "health and development of all three
children have been seriously impaired by the parental
relationship." The court also cited numerous incidents of abuse
and neglect, such as S.W.'s fall from a window, S.W.'s rotten
teeth caused by improper feeding, deplorable living conditions
that were not the result of poverty, the children's and parents'
routinely filthy physical appearance and foul odor, the parents'
failure to nurture R.M., which caused him to become listless and
almost without a personality, all the children's developmental
delays, and defendants' failure to follow through with proper
medical care. In terminating parental rights the court found
that
[t]hese children were exposed to dangerous
situations by parents who did not and do not
have the ability to anticipate or appreciate
situations which pose serious physical and
emotional risk to their children . . . .
The court also found that DYFS worked extensively to reunite the
family, but that there was "literally no improvement!" And,
specifically with regards to R.M., the court noted that the
parents had not visited him since October l990 and that the
"positive transformation of R.M. since he has been in foster care
is quite remarkable." The final order for guardianship was filed
on April 20, l993. No appeal was taken from the order. Nor did
defendants ever seek a stay of the termination proceeding.
On June l2, l993, the law guardian for the minors in the
Title 30 termination matter advised the Appellate Division panel
that was reviewing the abuse-or-neglect matter that another trial
court had granted DYFS a Final Order of Guardianship terminating
defendants' parental rights. Nevertheless, on August 4, l993,
four months after that termination was ordered, the Appellate
Division issued its opinion in the abuse-or-neglect case -
almost three years after DYFS originally brought the abuse-or
neglect proceeding, almost two years after DYFS brought the
termination proceeding, and almost four months after the
termination proceeding was concluded.
On ordering the remand, the Appellate Division directed the
trial court that heard the abuse-or-neglect case to (l) conduct a
hearing to determine whether the children could be returned to
the parents; (2) require DYFS to provide appropriate services;
and (3) suspend further disposition. The Appellate Division also
instructed the trial court that had heard the termination matter
to entertain a prompt application to set aside its final
termination order, and found that the termination trial should
have been delayed until the child-abuse appeal had been
concluded. The Appellate Division entered that judgment despite
the fact that the termination matter was not before it and that
it had never reviewed the record in that trial.
DYFS' motion for reconsideration was denied by the Appellate
Division, and we granted certification, ___ N.J. ___ (l994).
Because we determined that the interests of justice required
a prompt disposition of DYFS' appeals, prior to issuing this
opinion, we entered a three-part order affirming the Appellate
Division's affirmance of the court's finding of abuse and
neglect, reversing the Appellate Division's reverse and remand of
the trial court's grant of the custody application in the abuse-or-neglect matter, and reversing the Appellate Division's
direction to the trial court in the termination proceeding to
entertain a motion to vacate its order of termination.
Abuse-or-neglect and termination proceedings are brought under separate statutory schemes, require different burdens of proof, and allow for different remedies. The applicable statutes do not prohibit DYFS from bringing a termination proceeding while an abuse-or-neglect proceeding was pending in the court. Not only may DYFS bring such actions concurrently, but in many
instances DYFS in fact must bring concurrent actions to remain in
compliance with Title 30.
Abuse-or-neglect proceedings are brought under N.J.S.A. 9:6-8.2l to -8.73, collectively known as Title 9. The definition of
an abused or neglected child is provided in N.J.S.A. 9:6-8.2l:
c. "Abused or neglected child" means a child
less than l8 years of age whose parent or
guardian, as herein defined * * * (2) creates
or allows to be created a substantial or
ongoing risk of physical injury to such child
by other than accidental means which would be
likely to cause death or serious or
protracted disfigurement, or protracted loss
or impairment of the function of any bodily
organ; * * * (4) or a child whose physical,
mental, or emotional condition has been
impaired or is in imminent danger of becoming
impaired as the result of the failure of his
parent or guardian, as herein defined, to
exercise a minimum degree of care (a) in
supplying the child with adequate food,
clothing, shelter, education, medical or
surgical care though financially able to do
so or though offered financial or other
reasonable means to do so, or (b) in
providing the child with proper
supervision or guardianship, by unreasonably
inflicting or allowing to be inflicted harm, or
substantial risk thereof * * * .
Therefore, either the action or the inaction of a parent, as is
the case here, may constitute grounds to find abuse or neglect.
On the confirmation of abuse or neglect, N.J.S.A. 9:2-18
permits agencies to file a complaint in Superior Court seeking to
terminate parental rights pursuant to Title 30. However,
termination proceedings, which are brought pursuant to N.J.S.A.
30:4C-l5, do not require a prior determination of abuse or
neglect. The statute, in fact, offers a number of possible bases
on which to initiate a termination proceeding:
Whenever (a) it appears that a court wherein
a complaint has been proffered as provided in
. . . Title 9 . . . has entered a conviction
against the parent or parents, guardian, or
person having custody and control of any
child because of abuse, abandonment, neglect
of or cruelty to such child; or . . . (c) it
appears that the best interests of any child
under the care or custody of the Division of
Youth and Family Services require that he be
placed under guardianship; or (d) it appears
that a parent or guardian of a child . . .
has failed for a period of one year to remove
the circumstances or conditions that led to
the removal or placement of the child,
although physically and financially able to
do so, notwithstanding the division's
diligent efforts to assist the parent or
guardian in remedying the conditions, and
that additional services available from the
division within program and fiscal
constraints will not enable the child to be
reunited with the parent or guardian; a
petition setting forth the facts in the case,
may be filed with the Family Part of the
Chancery Division of the Superior Court in
the county where such child may be at the
time of the filing of such petition. A
petition as provided in this section may be
filed by any person or any association or
agency, interested in such child, or by the
division in the circumstances set forth in
items (c) and (d) hereof.
[N.J.S.A. 30:4C-l5.]
As stated above, "a petition . . . may be filed" to terminate parental rights where one of the aforementioned criteria have been met. Ibid. (emphasis added). Therefore, a finding of abuse or neglect under Title 9 is only one of the bases on which DYFS or "any person or any association or agency,
interested in such child" may initiate a termination proceeding.
Ibid. Moreover, the statute makes clear that that is not the
only basis for such a petition, nor is it a requisite basis.
N.J.S.A. 30:4C-15.1, on the other hand, requires DYFS to
file for guardianship by instituting a termination proceeding
when such action would be in the best interest of the child:
The division shall initiate a petition to
terminate parental rights on the grounds
of the "best interest of the child"
pursuant to [N.J.S.A. 30:4C-15] . . . if
the following standards are met:
a. The child's health and development have
been or will continue to be endangered by
the parental relationship;
b. The parent is unwilling or unable to
eliminate the harm facing the child or is
unable or unwilling to provide a safe and
stable home for the child and the delay of
permanent placement will add to the harm;
c. The division has made diligent efforts
to provide services to help the parent
correct the circumstances which led to
the child's placement outside the home
and the court has considered alternatives
to termination of parental rights; and
d. Termination of parental rights will
not do more harm than good.
[N.J.S.A. 30:4C-15.1.]
DYFS' discretion to act in those cases is limited, as it "shall
initiate a petition to terminate parental rights on the grounds
of the `best interest of the child'" so long as the four criteria
are met. Ibid. (emphasis added).
The burden of proof under both statutes is also different.
The burden of proof in abuse-or-neglect proceedings is that any
determination of abuse or neglect must be based on a
preponderance of the evidence. N.J.S.A. 9:6-8.46. The burden of
proof in a Title 30 termination case, however, is the higher
clear-and-convincing-evidence standard. In re Guardianship of
J.C., l29 N.J. l, l0 (l992).
The remedies available in a termination proceeding also
differ from the eighteen-months-custody remedy available in
abuse-or-neglect determinations. If a court determines that a
child has in fact been abused or neglected, Title 9 authorizes
the court to place a child in protective custody with a relative
or DYFS pursuant to N.J.S.A. 9:6-8.54a, but the initial placement
can be only for a period of up to eighteen months. N.J.S.A. 9:6-8.54b. As described in New Jersey Division of Youth & Family
Services v. D.C.,
118 N.J. 388, 394-95 (1990),
[Title 30] differs from . . . [Title 9] in
that it provides for a permanent remedy:
termination of parental rights and placement
of the child under the guardianship of DYFS.
Whereas temporary remedies deprive parents
of custody only, leaving the extent of parental
visitation for further adjudication, a successful
guardianship action under [the termination
statute] necessarily entails a cessation of
visitation. That path leads to freeing the
child for adoption.
Title 30's "freeing the child for adoption" is therefore very
different from the temporary remedies available with an abuse-or-neglect finding.
Recognizing the separate and distinct natures of Title 9 and
Title 30 proceedings, we conclude that they may proceed
independently of each other. That result also furthers the
important policy preference for the permanent placement of
children. In the Child Placement Bill of Rights Act, N.J.S.A.
9:6B-1 to -6, all children placed outside their homes by DYFS or
other agencies have the right to a placement plan "designed to
facilitate the permanent placement or return home of the child in
a timely manner." N.J.S.A. 9:6B-4j. The Legislature explicitly
recognized the benefits of permanent placement for children in
the Child Placement Act:
b. Research has shown that the longer children
remain in the foster care system, the greater
number of placements they experience. As a
result of these multiple placements, from
natural family to foster home and from one
foster home to another foster home, children
develop emotional and psychological problems,
making it more difficult for them to develop
a positive self-image; and
* * * *
d. The obligation of the State to recognize
and protect the rights of children in the child
welfare system should be fulfilled in the
context of a clear and consistent policy which
limits the repeated placement of children in
foster care and promotes the eventual placement
of these children in stable and permanent homes.
[N.J.S.A. 30:4C-53.1.]
In recognition of that preference for permanency for
children, DYFS is required to prepare a placement plan with a
goal of permanency for any child placed in foster care for the
second time. N.J.S.A. 30:4C-53.3. Also, the "best interests"
test under N.J.S.A. 30:4C-15.1 requires finding that a delay of
permanent placement further harms a child. Case law also
supports the importance of permanency for children. See New
Jersey Div. of Youth & Family Servs. v. A.W.,
103 N.J. 59l, 610
(l986) (stating that permanence is important to nurturing child);
In re Guardianship of S.C., 246 N.J. Super. 414, 425 (App. Div.)
(finding that delay of permanent placement would "only work to
[child's] detriment"), certif. denied,
126 N.J. 334 (1991).
If DYFS cannot bring a termination proceeding until an
abuse-or-neglect action finally winds its way through the courts,
the Legislature's goal of achieving permanency in the placement
of children will be frustrated and the child will suffer. For
example, in the almost three years that passed between the time
the abuse-or-neglect complaint was filed to the time the
Appellate Division remanded the matter for a new disposition,
both S.W. and K.M., Jr. lost a potential pre-adoptive home
because of the uncertainty of their availability for adoption and
the family's unwillingness to take the emotional risk of bonding
with the children in the face of that uncertainty.
Although DYFS properly commenced both the Title 9 and Title 30 proceedings, its handling of both matters should have been better coordinated. This case should never have become so
complicated. In our recent decisions in New Jersey Division of
Youth and Family Services v. E.B. & D.W., ___ N.J. ___, ___
(l994) (slip op. at 6), and In re Guardianship of G.S. III, ___
N.J. ___, ___ (l994) (slip op. at l5), we discussed the overlap
of Title 9 and Title 30 in connection with the payment of
litigation expenses for indigent defendants. In E.B. & D.W.,
supra, we recognized that "DYFS's statutory mission is to protect
the health and welfare of the children of the State" and that it
does so under both Title 9 and Title 30. ___ N.J. at ___ (slip
op. at 5). We likewise recognized the "overlapping of Titles 9
and 30 causes occasional misunderstanding." Id. at ___ (slip op.
at 6). Specifically, referring to this case, we noted that
although termination of parental rights can occur without child
abuse and neglect, "such overlapping often occurs when child
abuse or neglect is involved in Title 30 parental-rights-termination cases." Ibid. In Guardianship of G.S. III, supra,
we noted the "unnecessary complexity introduced into the
disposition by the parallel but not congruent track of Title 9
and Title 30 proceedings." ___ N.J. at ___ (slip op. at l5).
We recognize that many problems arise, as in this case,
because Title 9 provides compensation for legal representation of
indigents and Title 30 does not. In D.C., supra, ll
8 N.J. 388,
we held that attorneys assigned to represent indigent parents and
their children in Title 30 parental-rights-termination
proceedings were not entitled to public compensation. Instead,
we required lawyers to provide pro bono service. See R. 3:27-2.
Many times, therefore, different attorneys represent the
same defendants in two separate actions concerning their parental
rights. Defendants R.M. and K.M., Sr. were represented by
different counsel in all three proceedings: the abuse-or-neglect
proceeding, the termination proceeding, and, finally, the abuse-or-neglect appeal. Separate counsel not only made this matter
unnecessarily complicated but their lack of communication and the
resulting delays caused by both the parties and the courts in the
proceedings may also have caused irreparable damage to three
small children.
Although the situation would be much better if defendants
had had the same attorney in the various proceedings, DYFS was
the moving party in both actions. DYFS was also represented by
the Office of the Attorney General in both proceedings, albeit
not by the same deputy attorney general. Unfortunately, it seems
that none of the attorneys were aware that the two proceedings
involved the same defendants.
This Court cannot micromanage DYFS or any other agency. We
are aware of the overwhelming numbers of matters handled by DYFS.
However, once the institutional decision was made by DYFS to
pursue a permanent remedy of guardianship via a termination
proceeding, the court that was handling the appeal of the abuse-or-neglect determination should have been promptly notified so
that a motion could be made either to stay or to dismiss that
appeal.
At oral argument, we were advised that this was an unusual
case, and that typically on the filing of the termination
complaint, a motion to stay or dismiss an appeal in the abuse
or-neglect proceeding is made. Nonetheless, to avoid this
confusion from recurring, we suggest that one caseworker and one
deputy attorney general be assigned to one family. Thus, at
least one person other than defendants would have knowledge of
both proceedings.
We understand that having one caseworker and one deputy
attorney general may be hard to implement, given DYFS' current
workload. Likewise, we recognize that the traditional notion of
one court/one family may be difficult to practice with the
massive numbers of family matters on the dockets. However, if
one caseworker working with the same deputy attorney general
notified the court of all cases involving the same family,
unnecessarily repetitive or potentially moot cases, such as the
appeal of the abuse-or-neglect determination in this case, may be
eliminated and the process can be streamlined.
We also must recognize that this multiple litigation raises
issues of fairness to the parties. The parents, R.M. and K.M.,
Sr., had to defend their interests on two fronts involving common
issues. Accordingly, we renew our suggestion that the
Legislature could combine both avenues of child advocacy under a single title with a
single mandate to OPD to provide the
necessary representation. Any savings
thought to be achieved by current use of pro
bono lawyers may be diluted by the legal
manuevers required to sort out the differing
responsibilities of DYFS, OPD, the private
bar, and public-interest firms.
V
The second issue presented in this case is whether the
Appellate Division may review a judgment not before it when a
related case has been appealed. As previously described, during
the Appellate Division's review of the trial court's abuse-or-neglect determination, the Appellate Division ordered the trial
court that heard the termination case to entertain a motion for
relief from its judgment of termination.
As previously found, a Title 9 abuse-or-neglect action is a
separate cause of action from a Title 30 termination action. An
appeal in one does not grant the Appellate Division jurisdiction
over the other. Similar issues and facts will undoubtedly appear
in the two actions, but the parties are responsible for
determining whether they will appeal a determination. An appeal
"may be taken to the Appellate Division" by a party as of right
or by leave. R. 2:2-3(a), (b) (emphasis added). Because the
termination proceeding was not appealed, it was final.
For the aforementioned reasons, we affirm the Appellate Division's affirmance of the court's finding of abuse and neglect, reverse the Appellate Division's reverse and remand of the trial court's grant of the custody application in the abuse-or-neglect matter, and reverse the Appellate Division's direction to the trial court in the termination proceeding to entertain a motion to vacate its order of termination.
Justices Clifford, Handler, Pollock, O'Hern, and Stein join in this opinion. Chief Justice Wilentz did not participate.