DCPP VS. N.M. AND W.F., IN THE MATTER OF S.F. (FN-18-0129-15, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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

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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)

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 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.

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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.

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