New Jersey Div. of Youth and Family Services v. v. K

• Decision Date: 11 October 1989
• Citation: 565 A.2d 706,236 N.J.Super. 243
• Parties: NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. V.K. 1 , Defendant-Appellant, and L.K., Defendant. In the Matter of J.K. and V.K., Minors.
• Court: New Jersey Superior Court — Appellate Division

Page 243

236 N.J.Super. 243

565 A.2d 706

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. V.K. ¹, Defendant-Appellant and L.K., Defendant In the Matter of J.K. and V.K., Minors.

Superior Court of New Jersey Appellate Division.

Submitted Sept. 20, 1989.

Decided Oct. 11, 1989.

V.J.K., appellant, pro se.

Peter N. Perretti, Jr., Atty. Gen., for respondent (James J. Ciancia, Asst. Atty. Gen., of counsel; Modestino Carbone, Deputy Atty. Gen., on the brief).

Alfred A. Slocum, Public Advocate, for Law Guardian Program (Susan Slaff, Asst. Deputy Public Defender, on the brief).

Before Judges KING, SHEBELL and KEEFE.

The opinion of the court was delivered by

SHEBELL, J.A.D.

Defendant V.J.K. appeals from an order of the Family Part terminating parental rights. We reverse and remand.

On June 8, 1982, the New Jersey Division of Youth and Family Services (DYFS) brought a complaint against V.J.K. and L.K. for custody of the defendants' two children, J.K. and V.K., whereupon the court ordered that DYFS be granted custody of the two children pending a final order of disposition. The trial court conducted hearings intermittently until March 6, 1985. DYFS moved before the trial court on July 18, 1984 to amend its pleadings to petition for the termination of V.J.K. and L.K.'s parental rights. Its motion was denied, and DYFS appealed. We summarily reversed the trial court's order, permitting DYFS to amend its pleadings.

On May 30, 1985, the trial court denied DYFS' petition to terminate parental rights. The court found the allegations of abuse and neglect to be supported by a preponderance of the evidence, but concluded that DYFS did not show by clear and convincing evidence that V.J.K. and L.K.'s parental rights should be terminated. The court stated "there is no strong evidence that this family cannot overcome its past problems with proper treatment and supervision." On June 24, 1985, the court ordered that the parties arrange for defendants to be interviewed by the Robert Eisner Institute for the purpose of determining the feasibility and logistics of reunification of V.J.K. and L.K.'s family.

DYFS appealed the trial court's determination. We granted DYFS' motion for a stay and remanded for "reconsideration of the June 24, 1985 order in light of current circumstances...." We further ordered that the trial judge "take the testimony of [L.K.] and [V.J.K.] and hear any other testimony and receive any other evidence relevant to their presentation...."

By order dated May 28, 1986, the trial court terminated the rights of both parents and committed V.K. and J.K. to the guardianship of DYFS. Both parents appealed; however, on April 5, 1988, L.K. submitted a certification in which she stated, "I do not wish to be involved in the appeal of the lower court decision, and I respectfully request that I be allowed to remove myself from the case altogether." We granted V.J.K.'s request for nonjoinder and modification of the appeal, and dismissed the appeal as to L.K.

V.J.K. and L.K. were married on January 25, 1976. Two children are the subject of the within action; V.K., born December 27, 1977, and J.K., born March 31, 1979.

This matter first came to the attention of DYFS after L.K. called the Saint Mary's Hospital Hotline in February 1981 for assistance. She felt "overwhelmed" with the care of her children, ages 3 and 2, and was referred by the hotline to DYFS. The family had moved from Maryland three weeks earlier, where they had been receiving assistance from an agency which performed services similar to those provided by DYFS. Both parents have a history of emotional instability and inability to control their behavior. The trial court heard extensive testimony of physical and sexual abuse of the two children involving the parents. The parents were informed that DYFS intended to place the children in a foster home, but they would not agree to voluntary placement of the children. After DYFS was granted custody of the children by the trial court, the children were placed in a foster home. The parents received regular supervised visitation with V.K. and J.K.. The children later informed a DYFS worker that they enjoyed the visits with their natural parents, but preferred living in their foster homes and did not want to go home with their parents because their parents did "bad things." V.J.K. and L.K. were tried on criminal charges of child abuse in February 1985 and were acquitted.

I.

Appellant's contention that due process was denied, and the defense unfairly prejudiced because of the disparity in resources between DYFS and the defendant, is clearly without merit. R. 2:11-3(e)(1)(E). Any disparity of resources is counterbalanced by the requirement that the State be held to a standard equal to or greater than that of "clear and convincing evidence" in order to terminate parents' rights to their children. Santosky v. Kramer, 455 U.S. 745, 768-70, 102 S.Ct. 1388, 1402-03, 71 L.Ed.2d 599, 616-17 (1982).

II.

Appellant asserts that the trial judge reviewed and adopted the recommendation of the Child Placement Review Board (Board) and did not make an independent determination based on the evidence before him.

The Board is established in each county pursuant to N.J.S.A. 30:4C-57. The Family Part judge is specifically authorized pursuant to N.J.S.A. 30:4C-61 to review the Board's report prior to rendering a decision, however, such review is not mandatory. While the trial court would have been acting within its statutory authority if it had reviewed the Board's recommendation prior to rendering its decision, it is clear from the record that the trial court did not view the Board's recommendation prior to rendering a decision. The trial court was of the opinion that this was the more fair procedure to follow. Thus, appellant's assertion is without factual basis in the record and cannot be accepted. Therefore, appellant's arguments as set forth in Points II and III of his brief are without basis.

III.

Appellant contends that the acquittal of himself and his wife in the criminal jury trial on charges of child abuse precludes under principles of double jeopardy the trial court's determination that defendants abused their children and that termination of their parental rights was warranted. There is no merit to this contention. Cf. State v. DeLuca, 208 N.J.Super. 422, 429, 506 A.2d 55 (App.Div.1986), rev'd on other grounds, 108 N.J. 98, 527 A.2d 1355 (1987), cert. den. 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987).

Appellant also argues that the State is barred under res judicata principles from pursuing the civil action after his acquittal in the criminal proceeding. The standard in the criminal proceeding required the State to prove all elements of its case beyond a reasonable doubt. As noted above, the standard in this case is lesser. Thus, res judicata principles are not appropriate here. See State v. Pitner, 42 N.J. 251, 256, 200 A.2d 104 (1964); see also In re Pennica, 36 N.J. 401, 418, 177 A.2d 721 (1962); Galbraith v. Hartford Fire Insurance Company, 464 F.2d 225 (3d Cir.1972).

The present civil matter is not barred as a result of appellant's criminal acquittal under either double jeopardy or res judicata principles.

IV.

Appellant contends that the method used to obtain the testimony of the children constitutes a serious denial of his right of confrontation. He states that "[t]he infringement on the right of confrontation means that both the guardianship and the abuse findings must be reversed."

"The constitutional right of confrontation afforded by the Sixth Amendment of the United States Constitution as well as N.J. Const. (1947), Art. 1, par. 10, in general guarantees the accused the opportunity of cross-examination in criminal proceedings." State v. Cranmer, 134 N.J.Super. 117, 121, 338 A.2d 830 (App.Div.), certif. den. 68 N.J. 283, 344 A.2d 317 (1975) [Emphasis supplied]. The Sixth Amendment right of confrontation is not applicable to civil proceedings. See Williams v. Trans World Airlines, 149 N.J.Super. 585, 589, 374 A.2d 486 (Ch. Div.1977); M. v. F., 95 N.J.Super. 165, 172, 230 A.2d 192 (J. & D.R. Ct.1967). "The right of confrontation, although respected in the civil sphere, is primarily a criminal right. It is not carried to its full extent in civil proceedings." State in Interest of S.F., 139 N.J.Super. 337, 339-40, 353 A.2d 573 (J. & D.R. Ct.1976).

We have recognized that in a termination proceeding "it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and that the answering parent be given the fullest possible opportunity to test the reliability of the petitioner's essential evidence by cross-examination." In re Cope, 106 N.J.Super. 336, 343, 255 A.2d 798 (App.Div.1969). Nonetheless, it is clear that "[i]n a custody proceeding the judge has broad discretion to conduct a private examination of a child." N.J. Youth & Family Serv. Div. v. S.S., 185 N.J.Super. 3, 7, 447 A.2d 183 (App.Div.), certif. den. 91 N.J. 572, 453 A.2d 883 (1982).

Appellant's reliance on Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) is misplaced. In Coy the Court found that the Sixth Amendment to the Constitution requires that a defendant be permitted a face-to-face confrontation with his accuser. Id. at ----, 108 S.Ct. at 2802, 101 L.Ed.2d at 866. The Court specifically noted that this right was one accorded under the Sixth Amendment to criminal defendants. Id. at ----, 108 S.Ct. at 2799-800, 101 L.Ed.2d at 863.

We cannot conclude that the trial judge acted unreasonably in balancing the need to protect the children against appellant's need to see and participate when the children answered the judge's questions or answered questions submitted by the attorneys. S.S., 185 N.J.Super. at 7, 447 A.2d 183.

Appellant's contention that the trial court erred in permitting the children's attorney to be present while...