Guardianship of K.L.F., Matter of

Decision Date30 June 1992
Citation129 N.J. 32,608 A.2d 1327
PartiesIn the Matter of the GUARDIANSHIP OF K.L.F., A Minor.
CourtNew Jersey Supreme Court

Lauren Fleischer Carlton, Deputy Atty. Gen., for appellant N.J. Div. of Youth and Family Services (Robert J. Del Tufo, Atty. Gen. of N.J., attorney; Andrea M. Silkowitz, Asst. Atty. Gen., of counsel).

Carol Ann Personette, Hackensack, for appellant law guardian for K.L.F. (Personette & Personette, attorneys).

Grace T. Meyer, River Vale, for respondent.

Cecilia M. Zalkind, Newark, submitted a brief, on behalf of amicus curiae Ass'n for Children of N.J. (Cecilia M. Zalkind, attorney; Cecilia M. Zalkind and Shirley Brandman, of counsel and on the brief).

Carl C. Bowman, Woodbury Heights, on behalf of amicus curiae N.J. State Child Placement Advisory Council, joined in the brief, submitted by amicus curiae Ass'n for Children of N.J.

The opinion of the Court was delivered by


This appeal raises the same issues and invokes the same concerns as the companion case, In re J.C., 129 N.J. 1, 608 A.2d 1312 (1992). In this case, the mother voluntarily placed her newborn infant with the Division of Youth and Family Services (DYFS or Division or agency) for temporary custody and care. Following a long period of separation of mother and child the Division brought an action to terminate the parental rights of the mother in order to prepare for the permanent placement of the child. The trial court refused to terminate the mother's parental rights, concluding that the mother had not abandoned the child and was fit to raise the child, and, further, that the child would not suffer psychological harm in being removed from her foster parents and returned to her mother. The Appellate Division affirmed. The Court granted the petition for certification. 127 N.J. 549, 606 A.2d 362 (1991).


B.F. became pregnant with K.L.F. after having been gang-raped in New York City. She came to New Jersey to have her child, believing that New York City was too dangerous a place in which to raise children. She gave birth to a healthy daughter at Hackensack Hospital in Bergen County in November 1988.

At the time she gave birth, B.F. was homeless. Unable to find shelter for herself and her daughter she entered into a temporary custody agreement with the Division of Youth and Family Services and consented to the temporary placement of K.L.F. in foster care. N.J.S.A. 30:4C-11. The agency arranged for B.F. to live at the Bergen Shelter, a facility that did not allow infants or children.

B.F. visited with K.L.F. twice during December at the DYFS offices in Hackensack. When B.F. came for a third visit, she was unable to see K.L.F. because the social worker handling the case was sick. Shortly thereafter, B.F. left the shelter, and returned to New York City in search of permanent housing.

During the year and a half that followed, B.F. had neither work nor a home, and lived in shelters and with friends. At trial, she testified that she called DYFS from pay phones in New York numerous times during that period but was unable to reach an agency worker who knew about K.L.F.'s case.

In the meantime K.L.F. lived in the home of foster parents. DYFS caseworkers sent letters to various State agencies and made phone calls but were unable to communicate with B.F. In May 1990, eighteen months after K.L.F. had first been placed, DYFS concluded that she needed a permanent home and moved her to a new set of pre-adoptive foster parents with whom she currently lives.

Less than a month later B.F. reached K.L.F.'s new case worker at DYFS, and requested to see her child so that she might eventually regain custody. DYFS informed B.F. that the agency was bringing a legal action for guardianship and that she would have to wait for a court to decide whether visitation should occur. DYFS also told B.F. that she would have to release medical information and later undergo psychiatric evaluation before visitation could be permitted. Because the agency refused to allow her to visit her child, B.F. concluded that she had to go to court to obtain visitation. She traveled from Staten Island to the Bergen County Courthouse in Hackensack to file a pro se motion for visitation. Although Bergen County was the correct venue, employees at the courthouse sent her to the Passaic County Courthouse in Paterson. When B.F. finally arrived in Paterson, she was not permitted to file her motion there and was directed to return to Bergen County. Frustrated, B.F. returned to Staten Island without having filed a motion for visitation or otherwise obtained assistance.

B.F. thereafter did find a stable living situation, signing a three-year lease on an apartment in Staten Island where she now lives with another daughter. Nonetheless, on March 23, 1991, DYFS petitioned for guardianship and termination of parental rights based on abandonment and the best interests of the child. N.J.S.A. 30:4C-15. At that time K.L.F. had been living with her current foster parents for ten months. DYFS concluded that K.L.F. had bonded with them and that moving her again would cause her psychological and emotional harm.

At the trial both parties introduced evidence chronicling the foregoing events primarily on the issue of whether B.F. had abandoned her child. In addition, both parties presented expert testimony relating to B.F.'s parental fitness and to harm to the child resulting from separation from her foster parents.


The legal framework within which the issues must be resolved is set forth in In re J.C., supra, 129 N.J. 1, 608 A.2d 1312. As in that case, the mother, B.F., voluntarily agreed to place her child in the temporary custody of DYFS. Under the voluntary-placement scheme, the initial decision to place a child in foster care rests solely with the child's parent or guardian. However, before actually providing foster care services DYFS must itself determine that a child's welfare is endangered and that the child's needs cannot be met either through financial assistance or placement with family or friends. N.J.S.A. 30:4C-11. To obtain guardianship over children who have been placed in foster care, the agency must bring an action to terminate the natural parents' rights under N.J.S.A. 30:4C-15 (section 15). In this case, DYFS proceeded under subsections c and d of section 15, which authorize it to seek guardianship respectively when that is in the best interests of the child and when the parent has abandoned the child. Guardianship cannot be awarded in an action brought pursuant to section 15 unless the court itself determines that it is in the child's best interest under N.J.S.A. 34:4C-20.

Those broad statutory standards were explained by this Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 512 A.2d 438 (1986). We there noted that the statutory scheme must balance the constitutional rights of parents against the interests and rights of their natural-born children. Id. at 599-60, 512 A.2d 438. The statute requires DYFS to make an affirmative demonstration that the child's best interests will be "substantially prejudiced" if parental rights are not terminated. Id. at 603, 512 A.2d 438. That demonstration ordinarily requires clear and convincing evidence of serious impairment of the child's health or development caused by the parent, the inability of the parent to rectify or overcome that kind of harm, the detrimental effects of delay in arranging for permanent placement of the child, and the absence of alternatives to termination of the parental rights. J.C., supra, 129 N.J. at 8-9, 608 A.2d 1312 (summarizing A.W.).

We also pointed out in J.C. that the Legislature, in 1991, amended N.J.S.A. 30:4C-15, the statute governing agency action in the termination of parental rights. L. 1991, c. 275, § 7. Those amendments adopted substantially the standards in A.W. Reflecting an important societal goal of preserving the natural family as a unit, the statutory scheme requires a finding that the natural parents would themselves do substantial harm to the child if parental rights are not terminated and the child is returned. The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause harm to the child. J.C., supra, 129 N.J. at 10-11, 608 A.2d 1312.


Following the trial, the court determined that B.F. had never abandoned the child. It found that B.F. had consented to the placement of K.L.F. because she believed it was in the child's best interest, but that she had done so under the impression that she would be reunited with the child in a shelter facility that allowed mothers to stay with their children. According to the court, B.F. had not been aware of the "tortuous legal procedures through which she would have to go" to regain custody of the child.

The court found that after she had placed K.L.F. with DYFS, B.F. had no income and no home and was therefore unable to receive telephone calls or the many letters D.Y.F.S. sent her. The court found that she had made "numerous" and "persistent," albeit "ineffectual, paltry, and meager" attempts to communicate with DYFS in order to see the child and that those efforts included phone calls to DYFS on numerous occasions. Specifically, the court found that no phone calls were separated by more than a year and that "no effort to communicate with the Division or to see the child were separated by more than a year."

In further support of its finding that B.F. had not abandoned the child, the court noted that after she had placed K.L.F. in foster care, she began to prepare for life with her children. The court credited B.F. with rehabilitating her "lifestyle" and with finding and furnishing an apartment in a neighborhood conducive to raising children. It also emphasized that she had worked persistently to regain custody of her child, including a...

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