RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5488-15T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
N.M.,
Defendant,
and
W.F.,
Defendant-Appellant. ________________________________
IN THE MATTER OF S.F., a Minor. ________________________________
Submitted January 8, 2018 – Decided August 7, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FN-18-0129-15.
Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lea C. Deguilo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
PER CURIAM
Following a fact-finding hearing in this Title Nine action
initiated by the Division of Child Protection and Permanency,
the court found defendant W.F. (father) had physically abused
his six-week old daughter (baby or child). After the hearing,
the court entered an order of protection, see N.J.S.A. 9:6-8.55,
restraining the father from having contact with the child until
she turns age eighteen. However, the order also provides:
[I]f [the father] seeks to modify the order of protection to allow for parenting time, [the father] shall show that he complied with all of the recommendations contained in the risk assessment completed by Dr. Alan Gordon and that there is a change in circumstances.
The father appeals from this order. After reviewing the record
and the applicable legal principles, we affirm in part and
reverse in part.
During the fact-finding hearing, the uncontroverted
testimony provided by one of the baby's treating pediatricians
2 A-5488-15T1 was that, while under the father's care, the baby sustained a
transverse, displaced fracture to her right femur; significant
bruising to her buttocks and about her face and eyes; and
intracranial bleeding. The doctor stated the injuries were not
caused accidentally but by a "physical assault on the child
multiple times." The father did not testify or offer any
evidence. As stated, the court found the father physically
abused his daughter. Specifically, the court found the father
committed an act of abuse in violation of N.J.S.A. 9:6-
8.21(c)(4)(b). The father does not challenge that finding. He
appeals from only the order of protection.
Before the fact-finding hearing, psychologist Alan Gordon,
Ed.D., examined the father and discovered he had been diagnosed
with bipolar disorder, manic type, with schizophrenic
tendencies, for which he was taking medication. Gordon
concluded that if the father did not take his medication for
these afflictions "the risk toward children would be high."
Gordon recommended the father take medication, engage in
psychotherapy, and complete parenting skills classes. It is not
disputed these recommendations are those to which the order of
protection refers.
On appeal, the father contends the order of protection
effectively terminates his parental rights to his daughter
3 A-5488-15T1 without due process, because he cannot have any contact with her
until she turns eighteen years of age, unless he meets the
conditions set forth in the order. He also argues the order
interferes with his constitutional right to have parenting time.
In general, parents have a constitutionally protected right
to enjoy a relationship with their children and to raise them
without State interference. N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 102 (2008). However, this right is not
absolute, as it is limited by the "State's parens patriae
responsibility to protect children whose vulnerable lives or
psychological well-being may have been harmed or may be
seriously endangered by a neglectful or abusive parent." N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).
Yet, notwithstanding the State's responsibility to protect
children, a party's parental rights cannot be eliminated unless,
following a trial and the implementation of other procedural
protections, the State proves the four factors in N.J.S.A.
30:4C-15.1 by clear and convincing evidence.1
1 These four factors are:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(continued)
4 A-5488-15T1 Here, by entering an order prohibiting the father from
having any contact with his daughter until she turns eighteen,
the court effectively terminated the father's parental rights,
and did so without affording him the due process protections to
which he is entitled. Before a parent's rights to his or her
child can be terminated by the court, among other things, a
parent is required to be served with a petition to terminate his
or her parental rights and to be provided with counsel, if the
parent is eligible. A trial must be conducted, during which the
State bears the burden of proving all of the factors in N.J.S.A.
30:4C-15.1 by clear and convincing evidence. In this matter,
(continued) (2) 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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable 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
(4) Termination of parental rights will not do more harm than good.
5 A-5488-15T1 none of these measures was implemented. Defendant did not
receive the benefit of the "comprehensive . . . judicial and
legislative mechanisms . . . in place to gauge whether a
parent's right to his child should be severed permanently
. . . ." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.
145, 151 (2010).
The subject order does provide that if the father meets
certain conditions, he may be able to see the child before she
turns eighteen. However, unless the father prevails on a motion
to obtain parenting time, he may not have any contact with her.
Thus, the provision prohibiting the father from contacting the
child is tantamount to terminating his parental rights and, for
the reasons stated, such provision is impermissible under the
law.
We recognize that, during his daughter's childhood, the
father may not make an effort to or cannot overcome his mental
health challenges to the extent he would not place his daughter
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5488-15T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
N.M.,
Defendant,
and
W.F.,
Defendant-Appellant. ________________________________
IN THE MATTER OF S.F., a Minor. ________________________________
Submitted January 8, 2018 – Decided August 7, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FN-18-0129-15.
Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lea C. Deguilo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
PER CURIAM
Following a fact-finding hearing in this Title Nine action
initiated by the Division of Child Protection and Permanency,
the court found defendant W.F. (father) had physically abused
his six-week old daughter (baby or child). After the hearing,
the court entered an order of protection, see N.J.S.A. 9:6-8.55,
restraining the father from having contact with the child until
she turns age eighteen. However, the order also provides:
[I]f [the father] seeks to modify the order of protection to allow for parenting time, [the father] shall show that he complied with all of the recommendations contained in the risk assessment completed by Dr. Alan Gordon and that there is a change in circumstances.
The father appeals from this order. After reviewing the record
and the applicable legal principles, we affirm in part and
reverse in part.
During the fact-finding hearing, the uncontroverted
testimony provided by one of the baby's treating pediatricians
2 A-5488-15T1 was that, while under the father's care, the baby sustained a
transverse, displaced fracture to her right femur; significant
bruising to her buttocks and about her face and eyes; and
intracranial bleeding. The doctor stated the injuries were not
caused accidentally but by a "physical assault on the child
multiple times." The father did not testify or offer any
evidence. As stated, the court found the father physically
abused his daughter. Specifically, the court found the father
committed an act of abuse in violation of N.J.S.A. 9:6-
8.21(c)(4)(b). The father does not challenge that finding. He
appeals from only the order of protection.
Before the fact-finding hearing, psychologist Alan Gordon,
Ed.D., examined the father and discovered he had been diagnosed
with bipolar disorder, manic type, with schizophrenic
tendencies, for which he was taking medication. Gordon
concluded that if the father did not take his medication for
these afflictions "the risk toward children would be high."
Gordon recommended the father take medication, engage in
psychotherapy, and complete parenting skills classes. It is not
disputed these recommendations are those to which the order of
protection refers.
On appeal, the father contends the order of protection
effectively terminates his parental rights to his daughter
3 A-5488-15T1 without due process, because he cannot have any contact with her
until she turns eighteen years of age, unless he meets the
conditions set forth in the order. He also argues the order
interferes with his constitutional right to have parenting time.
In general, parents have a constitutionally protected right
to enjoy a relationship with their children and to raise them
without State interference. N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 102 (2008). However, this right is not
absolute, as it is limited by the "State's parens patriae
responsibility to protect children whose vulnerable lives or
psychological well-being may have been harmed or may be
seriously endangered by a neglectful or abusive parent." N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).
Yet, notwithstanding the State's responsibility to protect
children, a party's parental rights cannot be eliminated unless,
following a trial and the implementation of other procedural
protections, the State proves the four factors in N.J.S.A.
30:4C-15.1 by clear and convincing evidence.1
1 These four factors are:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(continued)
4 A-5488-15T1 Here, by entering an order prohibiting the father from
having any contact with his daughter until she turns eighteen,
the court effectively terminated the father's parental rights,
and did so without affording him the due process protections to
which he is entitled. Before a parent's rights to his or her
child can be terminated by the court, among other things, a
parent is required to be served with a petition to terminate his
or her parental rights and to be provided with counsel, if the
parent is eligible. A trial must be conducted, during which the
State bears the burden of proving all of the factors in N.J.S.A.
30:4C-15.1 by clear and convincing evidence. In this matter,
(continued) (2) 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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable 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
(4) Termination of parental rights will not do more harm than good.
5 A-5488-15T1 none of these measures was implemented. Defendant did not
receive the benefit of the "comprehensive . . . judicial and
legislative mechanisms . . . in place to gauge whether a
parent's right to his child should be severed permanently
. . . ." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.
145, 151 (2010).
The subject order does provide that if the father meets
certain conditions, he may be able to see the child before she
turns eighteen. However, unless the father prevails on a motion
to obtain parenting time, he may not have any contact with her.
Thus, the provision prohibiting the father from contacting the
child is tantamount to terminating his parental rights and, for
the reasons stated, such provision is impermissible under the
law.
We recognize that, during his daughter's childhood, the
father may not make an effort to or cannot overcome his mental
health challenges to the extent he would not place his daughter
at risk were he to see her, even in a supervised setting. In
that case, as a practical matter he would not be able to see his
daughter until she were an adult. But he may not be prohibited
from ever seeing his daughter on the basis of his conduct,
despite how reprehensible it was, unless his parental rights are
terminated in accordance with the law. Accordingly, we reverse
6 A-5488-15T1 and vacate the provision in the order that bars him from seeing
his daughter until she turns eighteen.
The father next argues the paragraph in the order that
requires he comply with Dr. Gordon's recommendations and show a
change in circumstances before he may have parenting time unduly
interferes with his right to see his child. In general,
parenting time between a child and parent is "the presumptive
rule." V.C. v. M.J.B., 163 N.J. 200, 228 (2000). However,
parenting time may be denied if a parent poses a risk of harm to
the child. See Wilke v. Culp, 196 N.J. Super. 487, 503 (App.
Div. 1984). Given the father's egregious behavior toward the
child, this matter is one of those cases.
The father brutally beat and inflicted significant injuries
upon his six-week old daughter, and suffers from very serious
mental health problems. Under these particular facts, the court
did not violate the father's due process rights because it
conditioned the father's eligibility for parenting time upon
adhering to Dr. Gordon's recommendations. The fundamental
purpose of Title Nine is to protect a child's safety, see N.J.
Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 21
(App. Div. 2010), and N.J.S.A. 9:6-8.55 specifically authorizes
the court to impose protections for the benefit of a child,
including ordering that a parent have no contact with a
7 A-5488-15T1 particular child. N.J.S.A. 9:6-8.55(a). In sum, we discern no
basis to disturb this provision of the court's order
conditioning the father's parenting time.
Affirmed in part and reversed in part. We do not retain
jurisdiction.
8 A-5488-15T1