Saturday, May 22, 2010
However, my family ended up in a very ugly place. My youngest brother is a drug addict and "lost it" when he found out our mother was in the fourth stage of lung cancer which had matestisized to her brain. She lost all control of her bodily functions, her muscle tone is about five percent and she's showing serious incompetence which appears to resemble dementia.
Anywho, ya might be wondering what one has to do with the other..
Our youngest brother who I just mentioned is a drug addict, stole everything and every cent from her over the last two months including the house! Bills are building up like bad plaque.
I had to contact an attorney to see how we could get out of this disaster and well..thank God, we got the house back and he (drug addicted brother) ended up in a psychiatric ward for attempted suicide.. which he tried with a 5 inch dull crucifix, a bottle of zanax and a bottle of benadryl. (shaking my head)
This attempted suicide happened this weekend when he found out we knew what he had done and were reversing it all.. and pressing charges, he lost it!
I've had to sell all of her brick- a- brack.. her old sewing machines and her bedroom are going next. The dogs had to go as well, they were to much for us to handle-- but I gave them away, didn't have money to put an ad out.. so I put them on craigs list. Hopefully their new owner is picking them up in the morning. (Sunday May 21, 2010)
Ok so here's the million dollar question. If you've found the work I do on this page or when I appear in court or at the ACS office as your/their/her/his advocate helpful. Would you consider donating through pay pal, if I hooked it up?
I would only ask for donations until I sucessfully help my family back on their feet, from the devistation that our drug addict brother caused. Then it would be back to normal~ You read, learn, and get help just cause I'm paying it forward and it makes me feel good to know my nightmare can help others not get srewed by our system.
Leave me a comment if you would be willing to help with a donation and if I get more than two people willing to help.. I'll see what I have to do in order to set up a pay pal account.
Thank you in advance for any help you can afford to give.
P.S. Oh and if anyone wants to go visit our drug addicted brother who caused us more drama and financial hardship than I've ever witnessed in my life.. he's in Mamonidies psych unit.. he's the 34 year old selfish bastard who is probably going through horrid withdrawals, after his two month crack and zanax binge! Just ask for the guy who can't stop meeting crack head women who over the years have aided him in stealing everything my mother ever tried to own.. including her food-stamps month after month.. all for the love of drugs!
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Wednesday, May 19, 2010
Thursday, May 13, 2010
Published: May 12, 2010
A federal lawsuit is seeking to bar New York City from allowing troubled foster-care children to be kept in psychiatric hospitals after doctors have recommended their release, a practice that routinely adds months to a hospitalization despite laws that require such children to be placed in the least restrictive environment possible.
The suit, filed on Wednesday in United States District Court in Brooklyn, claims that the practice means that children who no longer require hospitalization are being kept in locked quarters where they have limited access to schooling, family visits and even walks outside.
The suit also claims that the Administration for Children’s Services, which oversees the care of about 16,000 foster children in New York City, and its subcontractors have been “using certain psychiatric hospitals as if they are detention centers,” sending some children to hospitals for disciplinary reasons, like breaking curfew, running away or getting in fights, rather than for mental health reasons.
A spokeswoman for the city’s Corporation Counsel declined to comment on the suit, saying the city had not yet had a chance to review it.
The suit was filed by the Legal Aid Society on behalf of three unnamed foster-care children who are currently hospitalized despite doctors’ recommendations that they be released.
“Every day that it continues, plaintiffs’ extended, wrongful confinement in these institutions is causing them irreparable damage,” the lawsuit says.
One of the children, a 6-year-old boy identified as S. M. who was placed into foster care last year, was hospitalized in Westchester in January, after “misbehavior” in his foster home, according to the complaint. The boy, who was in kindergarten, has been ready for discharge since April 2.
Another child, a 13-year-old boy identified as M. M., remains hospitalized on Long Island, though he was recommended for discharge on Jan. 26.
Legal Aid, a nonprofit group that represents foster-care children in New York, is seeking a preliminary injunction ordering the release of the three children, as well as a court order prohibiting the city from continuing to place foster-care children in hospitals unless doing so is medically necessary, and requiring that less-restrictive placements are made available for any child ready for release within 24 hours. The lawsuit also seeks financial damages.
Legal Aid requested class-action status for the lawsuit and identified two dozen more cases in which it claimed that children were held inappropriately, Nancy Rosenbloom, one of the Legal Aid lawyers handling the case, said. There is a high incidence of mental illness among foster-care children, who have been separated from their families, many after suffering physical or sexual abuse, said Marcia Lowry, executive director of the advocacy group Children’s Rights.
The suit cited a study by the group that estimated that about 14 percent of the foster care children in New York had been admitted to a psychiatric hospital in the course of a single year. Under both state and federal law, the city is required to place the children in the “most homelike” environment.
But foster homes, group homes and residential treatment centers can be unable or unwilling to accept children with mental illness or severe behavioral problems. The city has a policy against transferring children discharged from psychiatric hospitals to its Children’s Center, which temporarily houses other children during transition periods, according to Legal Aid.
“Some of these kids do have serious mental-health needs that may require hospitalization,” Ms. Rosenbloom said. “But the point of this case is once they’re ready to get out, they should get out.”
City Agency Accused of Mistreating Foster Children - NYTimes.com
Tuesday, May 11, 2010
Two people were pulled from the Hudson River early Tuesday afternoon, authorities said.
Nothing about their identities, nor their conditions, was immediately known.
Initial reports indicated the victims may have been a mother and a child, but all reports are preliminary at this point.
Check back for updates on this developing story.
Tuesday, May 4, 2010
The deision was interesting.
SEGAL v. LYNCH
MOSES SEGAL, Individually, E.S., A Minor By Her Guardian ad Litem, MOSES SEGAL, and W.S., A Minor By His Guardian ad Litem, MOSES SEGAL, Plaintiffs-Appellants,
CYNTHIA LYNCH, An Individual, Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Argued January 5, 2010.
Decided May 3, 2010.
Steven M. Resnick argued the cause for appellants (Budd Larner, attorneys; Mr. Resnick, of counsel and on the brief; Christopher R. Paldino, on the brief).
Helen A. Nau argued the cause for respondent (Krovatin Klingeman, attorneys; Ms. Nau, on the brief).
Before Judges Fuentes, Gilroy and Simonelli.
The opinion of the court was delivered by
This appeal requires us to determine whether the tort of intentional infliction of emotional distress is a cognizable cause of action when the supporting factual allegations are rooted in the parent-child relationship. Specifically, plaintiff, the father of two minor children, filed a complaint in the Law Division alleging on his own behalf, and as guardian ad litem for the children, that defendant, the children's mother, intentionally or recklessly engaged in extreme and outrageous conduct designed to poison his relationship with his children, which alienated the natural bond and affection that should exist between them and caused both he and the children emotional distress.
The trial court dismissed plaintiff's complaint as a matter of law pursuant to Rule 4:6-2(e), finding that the facts alleged therein failed to state a claim upon which relief could be granted. The trial court's ruling was based primarily on the proscriptions codified in N.J.S.A. 2A:23-1, otherwise referred to here as the Heart Balm Act. Independent of this statutory impediment, the trial judge also found that plaintiff's action was precluded by the Entire Controversy Doctrine because the allegations forming the basis of this civil complaint should have been raised as part of a Family Part action filed by plaintiff in 2006. Finally, accepting arguendo all of the factual allegations in plaintiff's complaint as true, the court found that plaintiff failed, as a matter of law, to state a cognizable claim for intentional or negligent infliction of emotional distress. Additionally, acting on defendant's application for the imposition of sanctions under the frivolous litigation law, N.J.S.A. 2A:15-59.1 and R. 1:4-8, the trial court found plaintiff had brought this action in bad faith and awarded defendant counsel fees in the amount of $42,912.50.
Plaintiff now argues that the trial court erred in finding that his cause of action for intentional infliction of emotional distress was barred under the Heart Balm Act. He also argues that the motion judge improperly made credibility findings against him based only on the parties' history of litigation, and thereafter, used those findings as a basis to dismiss his complaint and impose sanctions against him under the frivolous litigation law.
After carefully reviewing the record before us, we affirm the judgment of the trial court dismissing plaintiff's complaint. We do so, however, for reasons other than those expressed by the trial court. Aquilio v. Continental Ins. Co., 310 N.J. Super. 558, 561 (App. Div. 1998). We are satisfied that the Heart Balm Act does not bar plaintiff's claim because the statute's prohibitions were intended to apply only to causes of action alleging alienation of affection arising out of and dependent upon a marital relationship.
We acknowledge with equal force, however, that plaintiff's cause of action raises profound questions of public policy concerning the propriety of permitting a parent to utilize a child's loss of affection for him or her as grounds for civil liability against the other parent. On its face, such a cause of action has the potential to deteriorate into an abusive process; it can be wielded like a sword by an emotionally distraught parent with little to no consideration of how the litigation will affect the child. Most alarming is the potential for great harm such a cause of action would pose to the child.
Our overarching consideration in all matters concerning children involved in the judicial system is "the best interests of the child." This principle is embedded in the doctrine of parens patriae, which authorizes the court to intervene when necessary to prevent harm to the child. Application of this principle to the case at hand leads us to one inexorable conclusion: plaintiff's cause of action for intentional infliction of emotional distress must be barred as inimical to and irreconcilable with the best interests of the children involved in this suit.
Despite this holding, we reverse the imposition of sanctions under the frivolous litigation framework because plaintiff advanced a good faith argument in support of his legal position in a novel, complex, and heretofore relatively unexplored area of the law.
Because the trial court dismissed plaintiff's complaint as a matter of law, we recite all of the relevant factual allegations in the light most favorable to plaintiff. R. 4:62-(e).
The parties never married. They lived together in Toronto, Canada for approximately six years and had two children during their relationship: a girl, born in 1994, and a boy, born in 1998. The parties physically separated in 2001, but continued to reside within blocks of each other in Toronto; the children resided with their mother, and plaintiff, by his own admission, enjoyed frequent and liberal contacts with his children during the time he remained in Toronto.
Plaintiff moved to New Jersey in 2003. According to him, after the move, defendant "refused to establish a schedule of parenting time," which limited most of his interactions with the children to email messages and telephone calls. Despite what he characterized as defendant's "obstructive efforts," plaintiff concedes that he continued to enjoy a relationship with his children after his relocation to this State. Although no set schedule was established, plaintiff saw the children approximately every two weeks from June 2005 to June 2006. He did not seek judicial intervention to increase his contacts with the children during this time period.[ 1 ]
Conversely, defendant brought an action in the Superior Court of Justice in the City of Toronto seeking custody of the children, financial support from plaintiff for herself and the children, and to compel plaintiff to pay to her a portion of the proceeds from the sale of certain properties owned by the parties. By order entered June 20, 2005, the Canadian court granted defendant custody of the children and ordered plaintiff to pay: (1) a lump sum award of child and "spousal"[ 2 ] support in the amount $8,350,747 in Canadian currency (CDN); (2) child upport arrears in the amount of $378,135.77 CDN; (3) a debt owed by plaintiff to defendant in the amount of $1,445,664.99 CDN; and (4) defendant's share of proceeds from the sale of their home in Lyford Cay, Bahamas, in the amount of $963,084. CDN. The award totaled $11,137,631.76 CDN.
In June 2006, defendant relocated to New Jersey, changed her telephone number, and terminated all contact and communication between plaintiff and his children. Specifically, defendant blocked all of plaintiff's emails and forbade the children from emailing or otherwise contacting their father. As a result, plaintiff did not have any contact with the children for over three months. Plaintiff alleges, "[u]pon information and belief," that defendant used this time period to alienate the children from him "by telling them false and spiteful things about their father."
Through a private investigator, plaintiff learned where defendant and the children had relocated and that the children had been enrolled in the local school district under their mother's surname. Plaintiff filed a complaint in the Family Part seeking "various injunctive relief" including "resumption of parental time and contact with the children." The Family Part granted plaintiff supervised visitation commencing in October of 2006.
According to plaintiff, "[o]nce visitation resumed, it became apparent to [him] that defendant's actions had a negative impact on his relationship with the children." Plaintiff further claimed that a court-appointed psychologist determined that defendant engaged in "alienating behavior with the children." The record before us does not include a report from this psychologist verifying plaintiff's claim.
Against this factual backdrop, plaintiff, for himself and on behalf of the parties' two minor children, filed a complaint against defendant for intentional and negligent infliction of emotional distress.
The matter first came before the trial court by way of defendant's motion to dismiss plaintiff's complaint in lieu of an answer pursuant to Rule 4:6-2. After noting the parties' repeated references to the history of litigation involving both the Canadian case and the action in the Family Part, the court decided to review defendant's motion to dismiss under the standard applicable to a motion for summary judgment. R. 4:46-2. Thus, accepting plaintiff's allegations as true and giving him all favorable inferences therefrom, the trial court granted defendant's motion to dismiss, finding that plaintiff had not presented a legally cognizable cause of action.
The trial court based its ruling on three legally independent grounds: (1) plaintiff's cause of action was barred by the Heart Balm Act; (2) the facts alleged by plaintiff in the complaint failed to state a claim of intentional or negligent infliction of emotional distress as a matter of law; and (3) the case was barred by the Entire Controversy Doctrine, Rule 4:30A and Rule 5:1-2(a), because plaintiff could have raised these same issues in the context of the Family Part action.
Although we agree with the trial court that plaintiff has not brought forth a legally cognizable cause of action, we are satisfied that such a bar is not predicated upon the proscriptions codified in the Heart Balm Act. Our authority to preclude this cause of action in this context emanates from our parens patriae responsibility, which authorizes the court to intervene where it is necessary to prevent harm to a child. Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009).
We first address the inapplicability of the Heart Balm Act. Commencing after June 27, 1935, the Legislature formally abolished "[t]he rights of action formerly existing to recover sums of money as damage for the alienation of affections, criminal conversation [adultery],[ 3 ] seduction or breach of contract to marry." N.J.S.A. 2A:23-1. Known collectively as the Heart Balm Act, these statutes also: prohibited actions to recover damages for breach of a contract to marry, or to otherwise sue for enforcement of such a contract, N.J.S.A. 2A:23-2; rendered "unlawful" the filing, service, or even the threat to serve any pleadings "seeking to recover a sum of money upon any cause of action abolished or barred by this chapter," N.J.S.A. 2A:23-3; voided all "contracts and instruments . . . executed within the State in payment, satisfaction, settlement or compromise of any claim or cause of action abolished or barred by" the Act, N.J.S.A. 2A:23-4; and made a violation of these proscriptions a "misdemeanor," punishable by a fine not to exceed $1,000, imprisonment for no more than one year, or both, N.J.S.A. 2A:23-5. Thus, the theme of the Act is the abolishment of the common law right to recover damages for conduct which undermines the conjugal rights associated with marriage, such as the breach of a promise to marry or the tort of alienation of affection, proximately caused by the actions of a third party.
The Heart Balm Act has been found to preclude a cause of action seeking damages for lost services and emotional distress brought by the father of an adult woman who was seduced and became pregnant under a promise to marry. Magierowski v. Buckley, 39 N.J. Super. 534 (App. Div. 1956). Writing for the panel in Magierowski, Judge Goldmann emphasized that the Act was intended to eliminate the "abuses attending the so-called `heart balm' actions — alienation of affections, criminal conversation, seduction and breach of promise to marry." Id. at 547. By the time the Act was passed,
[t]he public had come to look upon "heart balm" suits as devices for extracting large sums of money without proper justification. They were a fruitful source of coercion, extortion and blackmail. Manufactured suits, with their always present threat of publicity, were often used to force a settlement. Thus, an unscrupulous and unprincipled father could threaten to sue, or actually sue, a reputable or wealthy or important member of the community for an alleged act of seduction, timing his action so as to coincide with an important event in the man's life, such as the forthcoming announcement of his engagement, marriage, or his candidacy for public office. If the person charged stood his ground and went to court, he was faced with proof of damages grossly magnified to catch the sympathy of the jury. And juries were generally very liberal in their awards in seduction cases.
The Magierowski court's characterization of the Act's purpose was expressly supported by the statement of policy set out in the preamble to L. 1935, c. 279, the bill that formed the basis for the actual statute:
Whereas, [t]he remedies herein provided for by law for the enforcement of actions based upon alleged alienation of affections, criminal conversation[,] seduction and breach of contract to marry have been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases have resulted in the perpetration of frauds, it is hereby declared as the public policy of the State of New Jersey that the best interests of the people of the State will be served by the abolition of such remedies. Consequently, in the public interest, the necessity for the enactment of this article is hereby declared as a matter of legislative determination.
[Id. at 548.]
By contrast, in Grobart v. Grobart, 5 N.J. 161 (1950), the Court found the Heart Balm Act inapplicable to an action sounding in slander and libel brought by a wife against third parties who allegedly conspired to cause her husband to abandon the marital residence and seek a divorce based on her alleged adultery. The plaintiff claimed that her brothers and sisters-in-law wickedly and maliciously conspired to injure her "in her marital relationship with her husband." Id. at 163-64. The plaintiff in Grobart accused the defendants of the following wrongs: (1) depriving her of her rights in personal and real property; (2) preventing her from obtaining judicially ordered maintenance from her husband; (3) forcing her to settle a claim she had against a municipality for less than its true value; (4) inducing her husband to file a divorce action against her based on adultery; (5) forcing her to file for divorce based on desertion; (6) requiring her to spend $10,000 in counsel fees related to her marital dispute; and (7) impairing her "good name and reputation." Id. at 164.
In concluding that the plaintiff's cause of action was not barred by the Heart Balm Act as a suit for alienation of affection, the Grobart Court emphasized that:
The gist or gravamen of the action for alienation of affections is the loss of consortium by which term is meant loss of the marital affections, comfort, society, assistance and services of a spouse who has been wrongfully enticed away and the damages recoverable are peculiarly referable thereto. The action is one in tort and the substance of this remedy is not the destruction of affection per se but loss of the conjugal society with its mutual rights and obligations directly referable thereto.
[Id. at 165.]
By contrast, the plaintiff's complaint was
not based upon the marriage relationship itself. The gravamen of this pleading is not laid in alienation of affections but rather in conspiracy to perpetrate wrongs that have no relation whatever to the interdictions of the [Heart Balm Act] and recovery is not sought for loss of the conjugal society and services of the plaintiff's husband.
[Id. at 166-67].
The reasoning in Grobart was applied and extended by the Chancery Division to permit a cause of action for intentional infliction of emotional distress brought by a man against his wife's paramour. C.M. v. J.M., 320 N.J. Super. 119, 125 (Ch. Div. 1999). The claimant in C.M. sought to recover economic and emotional distress damages after discovering that the person he believed to be his biological child was actually fathered by his wife's paramour. Id. at 122-23. Citing Kleinow v. Ameika, 19 N.J. Super. 165, 166, 168 (Law Div. 1952), in which the trial court dismissed a wife's third-party complaint claiming alienation of affection against her husband's paramour for enticing him away from her and his children, the paramour in C.M. argued that J.M.'s claim was similarly barred under the Heart Balm Act. C.M., supra, 320 N.J. Super. at 126. In rejecting this argument, the court in C.M. held that the claimant was seeking "damages for his splintered relationship with his alleged children, not for his dissolved marital relationship." Ibid.
We are thus satisfied that the Heart Balm Act does not bar plaintiff's cause of action for intentional infliction of emotional distress. Plaintiff's allegations of alienation are not predicated on the loss of a conjugal relationship with defendant. Plaintiff alleges that defendant, as the mother of his two children, has engaged in conduct intended to alienate him from the love and affection of his children. None of the underlying principles that support the adoption of the Heart Balm Act as explained in Grobart and Magierowski are implicated here.
We turn next to the question of whether plaintiff's cause of action is otherwise cognizable under the current state of the common law. In abolishing inter-spousal immunity in Merenoff v. Merenoff, 76 N.J. 535, 557 (1978), the Court lifted the bar that prevented one spouse from suing the other for injuries proximately caused by the conduct of his or her spouse. The following year the Court clarified
that the abolition of the doctrine pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of excessive behavior such as gross negligence, recklessness, wantonness, and the like. The only kind of marital conduct excepted from the abolition was that involving marital or nuptial privileges, consensual acts and simple, common domestic negligence, to be defined and developed on a case-by-case approach.
[Tevis v. Tevis, 79 N.J. 422, 426-27 (1979) (internal citation omitted).]
In Giovine v. Giovine, 284 N.J. Super. 3, 13 (App. Div. 1995), we recognized the right of a woman diagnosed with battered woman syndrome to sue her spouse in tort for the physical and emotional injuries sustained by continuous acts of battering during the course of the marriage, provided there is medical, psychiatric, or psychological expert testimony establishing that the wife was caused to have an "inability to take any action to improve or alter the situation unilaterally."
Although not explicitly stated, we also acknowledged in Giovine a spouse's right to other forms of relief available through traditional tort claims sounding in negligence and intentional infliction of emotional distress, where the measure of damages is not dependent upon a physical injury, but can be established through competent evidence showing the defendant's outrageous or otherwise actionable conduct:
It is therefore clear that plaintiff must be permitted to present proofs of all acts of cruelty which occurred during the course of her marriage to defendant. Those prior acts may be offered to prove plaintiff's cause of action for divorce predicated on the grounds of extreme cruelty, or they may be offered as relevant evidence in conjunction with plaintiff's claim for damages attributable to battered woman's syndrome, intentional infliction of emotional distress and negligence.
[Id. at 22 (emphasis added).]
Two trial court opinions have also recognized the existence of a cause of action for intentional infliction of emotional distress brought by one spouse against the other. Ruprecht v. Ruprecht, 252 N.J. Super. 230 (Ch. Div. 1991); C.M., supra, 320 N.J. Super. at 122.[ 4 ]
We thus see no legal impediment in permitting one spouse to bring an action against the other which asserts only emotional distress as the measure of damages. The underlying conduct that may give rise to such a cause of action must be consistent with the established definition of the alleged tort. In the case of intentional infliction of emotional distress:
[T]he plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe. Initially, the plaintiff must prove that the defendant acted intentionally or recklessly. For an intentional act to result in liability, the defendant must intend both to do the act and to produce emotional distress. Liability will also attach when the defendant acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.
Second, the defendant's conduct must be extreme and outrageous. The conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Third, the defendant's actions must have been the proximate cause of the plaintiff's emotional distress. Fourth, the emotional distress suffered by the plaintiff must be "so severe that no reasonable [person] could be expected to endure it."
[Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988) (internal citations omitted).]
The question before us, however, raises issues that have not been directly addressed in any reported decision in this State. Specifically, this court must examine whether the father of two minor children may file a complaint in the Law Division alleging on his own behalf, and as guardian ad litem for his children, that the children's mother has intentionally or recklessly engaged in extreme and outrageous conduct designed to poison his relationship with his children, thus alienating the natural bond and affection that should exist between them and thereby causing both he and the children emotional distress. Consistent with our parens patriae responsibility, and guided by the best interests of the child standard, we are compelled to answer in the negative.
In Fawzy, our Supreme Court addressed the question of
whether parties to a matrimonial action may agree to submit questions regarding child custody and parenting time to binding arbitration, and if so, what standard of review will apply. More particularly, we have been asked by a matrimonial litigant to declare arbitration of issues involving children an affront to the exercise of our parens patriae jurisdiction. Alternatively, we have been requested to establish a best-interests standard as the basis for judicial intervention into an otherwise binding arbitration award.
[Fawzy, supra, 199 N.J. at 461.]
In addressing this question, the Court was compelled to balance the constitutionally protected right of parental autonomy, which includes the right to select the forum in which to adjudicate disputes concerning child custody and rearing, id. at 461-62, against the court's obligation, under the doctrine of parens patriae, to intervene where it is necessary to prevent harm to the child. Id. at 474-75. The Court diffused this tension by upholding a parent's constitutional right to choose the forum through which to adjudicate "any family controversy, including one regarding child custody and parenting time," tempered by the best interests of the child as a standard of review for arbitration awards in which a party claims "adverse impact or harm to the child." Id. at 477-78.
In Fawzy, the Court defined the doctrine of parens patriae as the capacity of the state to care for and protect those unable to do so for themselves such as children. Id. at 474 n. 3. In so doing, the Court recognized the doctrine's "deep roots," tracing its origins "back to the Book of Genesis." Ibid. The authority and responsibility of the court to protect children in their role as civil litigants is well-settled. Hojnowski v. Vans Skate Park, 187 N.J. 323, 333-34 (2006); R. 4:44-1. Additionally, under parens patriae, we are empowered to intervene to protect children from both physical and emotional harm. In Re Commitment of N.N., 146 N.J. 112, 134 (1996).
With these principles in mind, we turn our attention to the unique and perplexing issues presented by this appeal. This case pits the fundamental principles of a child's best interests against the right of a civil claimant to obtain compensation for his or her injuries from a tortfeasor. Even a cursory examination of this question reveals the profound public policy implications raised by either permitting or denying such a cause of action; either option would protect one legal principle at the expense of the other.
It is clear to us that the overarching force driving this civil action is not the best interests of the two children involved here. In this complaint for intentional infliction of emotional distress, plaintiff's goal is to obtain monetary damages and defendant's countervailing goal is to avoid liability. In such a contest, the children are merely the measure of damages.
That being said, we are not blind to scenarios in which one parent intentionally or recklessly imbues a child with such calumnious accounts of the other parent, so wicked in their intent and so destructive in their effect, that the situation necessitates civil redress. For example, a case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts. The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification.
However, sound public policy should not be driven by extreme scenarios or developed as an abstract academic exercise. We are not being asked to solve a law school riddle. Our decision here will have profound practical implications that will be played out in the real-life crucible of a courtroom. More importantly, before the parties even get before a judge, competent counsel will do their best to conduct probing and exhaustive discovery directed at the key witnesses in the case: the children.
We can plausibly envision such children being deposed about: (1) what mom or dad said; (2) when and how often mom or dad said it; (3) who else was present when they said it; and (4) how did the child feel when mom or dad said it. These depositions will surely be followed or preceded by psychological examinations of the child by experts selected by each side; teachers, counselors, schoolmates, extended family members, and other confidants will also be interrogated and called as witnesses.
In the midst of this litigation tug-of-war will be the children. After all, liability will be established only if plaintiff can show that the bond and affection that would have otherwise existed between him and the children has been severely compromised by defendant's outrageous and malicious acts. Thereafter, the measure of damages will depend upon the extent of the injury to that parent/child relationship. Here again, the children will be featured as the key witnesses.
In a Family Part proceeding involving custody or parenting time, where the governing principle is the best interests of the child, the judge proceeds from the well-established notion that under most circumstances a child is better off having a relationship with both parents. The family judge is thus responsible for shielding the child from the animosity that each parent may have against the other and promoting a spirit of selflessness where the parent subordinates his or her own personal grievances to the best interests of the child. As the Court noted in Sacharow v. Sacharow:
Indeed, by seeking a divorce and invoking the jurisdiction of the Family Part, each party assented to the possibility that there will be some curtailment of what would otherwise be the ordinary rights concomitant to parenthood. For example, a party may be denied custody. Visitation may be circumscribed. Vacations may be shared or lost. One parent may be granted the right to move away with the child. All such orders impair to some extent one of the parties' parental rights, and the party participants are deemed to have consented to the possibility of such impairment when they submit their disagreement to a court . . . In such cases, the sole bench mark is the best interest of the child.
[177 N.J. 62, 80 (2003) (internal citations omitted).]
Exactly the opposite is the case in a civil trial for alienation of a child's affection. In that contest, the child must take sides because he or she is the key witness against one parent. Extending the tort of intentional infliction of emotional distress to this context directly contravenes the principles embodied in the best interests of the child standard.
As noted in Fawzy, when the court is presented with a prima facie case of harm to a child, it is empowered to intervene and prevent such harm from coming to fruition. Fawzy, supra, 199 N.J. at 478-79. We are satisfied that plaintiff's cause of action, under the facts presented, constitutes a prima facie case of potential harm to the children named as parties thereto. Accepting plaintiff's factual allegations as true, and giving him all favorable inferences therefrom, plaintiff has not established a cause of action for intentional infliction of emotional distress.
As noted earlier, to make out a prima facie case of intentional infliction of emotional distress, plaintiff must show that: (1) defendant acted intentionally; (2) defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community;" (3) defendant's actions proximately caused him emotional distress; and (4) the emotional distress was "so severe that no reasonable [person] could be expected to endure it." Buckley, supra, 111 N.J. at 366.
We review plaintiff's allegations under the standards applicable to a motion brought pursuant to Rule 4:6-2(e). We are thus bound to search "the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (internal quotation and citation omitted).
Here, the gravamen of plaintiff's case rests on defendant's actions after she relocated to this State in 2006. According to plaintiff, defendant established a residence with the children in this State without his knowledge or consent, blocked all forms of communications between him and the children, and matriculated the children in a local school district under her surname. All this was intentionally done by defendant as a means of unlawfully depriving plaintiff of his parental rights to see and enjoy a relationship with his children. This period of isolation lasted for approximately three months. The facts recited, on their face, do not constitute a cause of action for intentional infliction of emotional distress as a matter of law.
As a matter of public policy, the grievances raised by plaintiff in this suit must be brought before and addressed by the Family Part as part of an action for custody or parenting time, where the governing principle for adjudication will be the best interests of these two children. In these matters, the Family Part has both the expertise and the power to correct abuses by one parent against the other, while shielding the children from the type of emotional injury that is inextricably linked to a civil action for damages.
However, we do not foreclose the possibility that a cause of action may be brought alleging facts that are "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," thus satisfying prong two of the Buckley standard. Buckley, supra, 111 N.J. at 366. As we previously noted, cases involving prolonged parental abduction, where children are intentionally removed to foreign jurisdictions for the purpose of frustrating the innocent parent's custodial rights, or intentional false accusations of parent/child sexual abuse, are but two examples of factual scenarios that may satisfy the outrageous conduct requirement under Buckley.
Because such claims raise issues that are uniquely suited to the function and expertise of the Family Part, they must be brought as part of an action seeking custody or parenting time under the Family Part's well-established ancillary jurisdiction as recognized by the Court in Tevis. That being said, it is imperative that this determination be made by the Family Part at the preliminary stages of the litigation process. In order to avoid entangling the children in the emotionally destructive process of discovery, a reviewing court must evaluate and determine the legal efficacy of this cause of action upon joinder of issue or in the context of a motion brought pursuant to Rule 4:6-2(e).[ 5 ]
We recognize that our role as an intermediate appellate court is to decide appeals that come before us by applying established principles of law, whether the source of that authority is by legislative enactments or through the evolution of our State's common law. As the ultimate arbiter on the development of our laws, we leave to our Supreme Court to extend or otherwise modify the principles we have outlined herein.
As a final matter, we reverse the trial court's award of counsel fees to defendant as a sanction against plaintiff under the law against frivolous litigation. In deciding whether sanctions are appropriate, a court must determine whether the litigation before it is frivolous.
In order to find that a complaint, counterclaim, cross-claim or defense of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:
(1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or
(2) The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
Because the statutory language is phrased disjunctively, a valid claim in law or equity, N.J.S.A. 2A:15-59.1b(2), could be frivolous if it were brought for the improper purposes cited, N.J.S.A. 2A:15-59.1b(1). Conversely, even without an improper purpose, N.J.S.A. 2A:15-59.1b(1), a claim could be frivolous if it utterly lacks a "reasonable basis in law or equity" and lacks a good-faith argument for extension of the law, N.J.S.A. 2A:15-59.1b(2).
In K.D. v. Bozarth, 313 N.J. Super. 561, 566, 575 (App. Div.), certif. denied, 156 N.J. 425 (1998), we upheld the trial court's denial of frivolous litigation sanctions sought by defendants against a juvenile who filed a class action civil rights suit against a number of municipal officials in Pemberton Township. Despite the clear absence of liability by the named defendants, we affirmed the trial court's denial of counsel fees because the plaintiff had "good faith" in instituting the action. Id. at 574. The key to determining "good faith" is objective reasonableness. Iannone v. McHale, 245 N.J. Super. 17, 29 (App. Div. 1990).
Plaintiff's arguments in support of his right to bring an action for intentional infliction of emotional distress on behalf of himself and his two minor children are objectively reasonable. As our analysis shows, plaintiff's complaint raised profound public policy questions. His legal position on these issues was not facially meritless. As Judge Pressler wisely cautioned in Iannone, "honest and creative advocacy should not be discouraged." Id. at 28.
In granting defendant's application for sanctions, the trial court focused on plaintiff's decision to file this cause of action in the Law Division, rather than in the Family Part where there was a pending matter concerning both custody and parenting time. The court thus emphasized that, even if plaintiff had a legitimate cause of action, because of "the circumstances, the history, everything that went on . . . the conduct of [plaintiff] could not, as a matter of law . . . constitute such a tort . . . It is singularly inappropriate for this Court to be engaged in parallel litigation which still remains outstanding in the Family [Part]."
Plaintiff's counsel's decision to file this complaint in the Law Division, instead of including it as a Tevis claim in the Family Part, is not, in and of itself, the type of conduct that warrants sanctions under the frivolous litigation law. As this opinion illustrates, the law in this area was not settled. Under these circumstances, an attorney's tactical decision to pursue this tort claim in the Law Division does not rise to "bad faith, solely for the purpose of harassment, delay or malicious injury." N.J.S.A. 2A:15-59.1b(1).
We therefore affirm the trial court's order dismissing plaintiff's complaint for intentional infliction of emotional distress. We reverse the award of counsel fess in favor of defendant imposed as a sanction against plaintiff under the frivolous litigation law.
Affirmed in part, reversed in part.
1. We note, that plaintiff was not disinclined to file a legal action against defendant in areas not directly related to the children. During this same time period, plaintiff filed a defamation suit against defendant in the Law Division in Morris County. Although the record before us does not include the substance of that action, by order dated April 1, 2005, Judge Smith dismissed this suit "for lack of jurisdiction." On plaintiff's direct appeal, we affirmed the judgment of the trial court. Segal v. Lynch, Docket No. A-4501-04 (App. Div. Feb. 14, 2006), certif. denied, 186 N.J. 607 (2006).
2. Although the parties were never married, the Canadian court nonetheless characterized the award to defendant as "spousal support."
3. See S.B. v. S.J.B., 258 N.J. Super. 151, 154 (Ch. Div. 1992).
4. Although not binding on this court, other jurisdictions have similarly recognized the right of one spouse to assert a claim of intentional infliction of emotional distress against the other. See, e.g., Pugliese v. Superior Court, 53 Cal. Rptr. 3d 681, 684 (Cal. App. 2d Dist. 2007); Feltmeier v. Feltmeier, 798 N.E.2d 75, 82 (Ill. 2003); Christians v. Christians, 637 N.W.2d 377, 382 (S.D. 2001); Henriksen v. Cameron, 622 A.2d 1135, 1140 (Me. 1993); Twyman v. Twyman, 855 S.W.2d 619, 624 (Tex. 1993); Hakkila v. Hakkila, 812 P.2d 1320, 1322-25 (N.M. App. 1991).
5. In such cases where the facts pled permit the prosecution of an intentional infliction of emotional distress claim, the parent plaintiff cannot serve as the guardian ad litem for any child who is also named as a plaintiff in the action. The Family Part Judge must appoint a guardian ad litem who will represent the child in the action, independently evaluate the merits of the claims, and advise the child whether it is in his or her best interest to prosecute, dismiss, settle, or try the case to finality.
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While there are no official tallies of parents whose adult children have cut them off, there is no shortage of headlines. The Olympic gold medal skier Lindsey Vonn reportedly hasn’t spoken to her father in at least four years.
A number of Web sites and online chat rooms are devoted to the issue,
Joshua Coleman, a San Francisco psychologist who is an expert on parental estrangement, says it appears to be growing more and more common, even
“We live in a culture that assumes if there is an estrangement, the parents must have done something really terrible,” said Dr. Coleman, whose book “When Parents Hurt” (William Morrow, 2007) focuses on estrangement.
Dr. Coleman himself experienced several years of estrangement with his
Not every parent is so successful. Debby Kintner of Somerville, Tenn.,
Ms. Kintner talks of life as a single parent, raising an honor student who insisted her mother accompany her on a class trip to London, a college
“I knew parents and children had fights, but there was enough love to come back together,” Ms. Kintner said. “This is your mother who gave you a nice life and loved you.’ “
Judith, a mother in Augusta, Ga., who asked that her last name not be used, tells of a loving, creative daughter who experienced a turbulent adolescence. At college graduation, the parents were shocked when their daughter unleashed an angry tirade about her childhood. Later, the daughter asked for financial help paying for an Ivy League graduate school. The parents agreed, but a visit to see her on the East Coast was marred by another round of harsh words and accusations. They withdrew their financial support and returned home.
“I’ve done a lot of crying,” said Judith, who has sought therapy to cope.
Dr. Coleman says he believes parental estrangement is a “silent epidemic,” because many parents are ashamed to admit they’ve lost contact with their children.
Often, he said, parents in these situations give up too soon. He advises them
After all, he went on, parents and children have very different perspectives. “It’s possible for a parent to feel like they were doing something out of love,”
Friends, other family members and therapists can often help a parent cope with the loss of an estranged child. So can patience: reconciliation usually takes many conversations, not just one.
“When I was going through this, it was a gray cloud, a nightmare,” Dr. Coleman said. “Don’t just assume if your child is rejecting you that that’s the end of the conversation. Parents have to be on a campaign to let the child know that they’re in it for the long haul.”
Saturday, May 1, 2010
We began telling Johnny’s story over the last few days here on WXYZ.com. In that time, the response has been overwhelming and your comments confirm that Michigan’s children need a better foster care system.
Johnny’s mother, Elena Andron, dedicated her life to caring for her wheelchair-bound son. All she wanted was a little help.
The state’s answer was to put him in a foster care facility. One year later, Johnny starved to death.
“He was a big part of my life. He was my life,” Andron told Action News Investigator Heather Catallo.
The state is quick to take kids from parents and put them in foster care, especially poor parents. The state makes it very hard to get them back. Experts say the state has a financial incentive to keep kids away from their families.
Johnny, who was nine at the time, could not walk, talk or feed himself. He had cerebral palsy and epilepsy.
“He was a lot of work, like any single mother, it was kind of hard,” says Andron.
Things got even tougher when she lost her factory job.
She turned to the Michigan Department of Human Services, a decision she will regret for the rest of her life.
The foster care facility where the state sent Johnny failed to feed him enough food. Andron says she watched her son waste away as she begged for help.
“I just wanted to carry him out of there, just pick him up and take him, and just take him home,” she says.
If only it was that simple.
Bill Mitchell knows how difficult it can be to get your kids out the state’s hands. He had to fight all the way to the Michigan State Supreme Court to get his three boys back.
“They’re my kids. I’m not going to give up on my kids,” says Mitchell.
Why did Mitchell and Andron have to fight so hard to try to get their children back? Some say it’s because the state gets a lot of cash for foster kids.
“Termination of parent rights is very high in Michigan,” says Warner. “But it’s also very high nationwide and it happened because of some laws that were passed by the federal government and encouraged states to terminate parental rights more often than they used to and promise to send them money if they would terminate rights and have the children adopted.”
According to the state’s own figures, the federal government gave Michigan about $110 million last year for foster care. That’s compared to the $26 million in programs that help parents keep their kids. Foster facilities also have an incentive to keep kids away from their parents. In Andron’s case, the foster home got about $12,000 a month from the state for Johnny.
“You’re getting paid, you’re getting a lot of money,” says attorney Arnold Reed, who represents Andron in a lawsuit against the foster care facility and several other state-contracted groups.
Reed says the foster facility profited big time off of Johnny.
“There is no shortage of money, plus you’re getting a stipend, you’re getting a clothes stipend and you’re getting a stipend for food,” says Reed.
But not enough of that food made it to Johnny.
“He started deteriorating so quick I could not believe my eyes,” says Andron. “He had gotten so weak to where he was just shaking constantly.”
She agreed to make her son a temporary ward of the state. She was supposed to bring him home after a year - once she got back on track financially. But she says the state didn’t tell her that she would be put on a central registry for parents who abuse and neglect their kids. To get Johnny back she would have to fight to get off of the registry by attending parenting classes and meeting other requirements—something that Andron says was nearly impossible to do with a new job.
“They wanted me to go through some evaluations, which I did,” says Andron.
When she complained about Johnny losing weight, she says the state turned on her.
“They didn’t care. None of my complaints mattered,” says Andron.
The Department of Human Services did not like Andron’s complaints or her efforts to get her son back. They took her to court and asked that she not be allowed to see Johnny.
Andron says the first time she met her court-appointed lawyer was that day in court. She says the lawyer didn’t put up much of a fight. The judge sided with the state. The next time Andron heard about Johnny he was dead.
“I entrusted people with my son and I thought they were good people. They were licensed,” says Andron.
Johnny weighed 120 pounds when he went into foster care, she says. An autopsy report shows he was only 48 pounds when he died of malnutrition.
“I just cannot believe that someone can have that kind of a heart, to starve a child like that,” says Andron.
Bill Mitchell also fought the state. His boys were living with their mom when his children were taken. Mitchell tried to get the boys, but the state asked the court to terminate his parental rights too, primarily because of his finances.
“I have the right to choose where I want to work,” says Mitchell, who is an engineer and works at Walmart. The state held this against him. DHS also didn’t like that he couldn’t keep up the mortgage on the family home after the boys’ mom walked out.
“She was responsible for $300 of the thing and it was too much for me to maintain, you know, all by myself,” Mitchell says.
The state also said Mitchell didn’t try hard enough to get his kids back. But he says he changed his shift to work nights to make state scheduled visits with his sons and parenting classes.
“It wouldn’t have mattered what I said or what I did, they had already determined their course and now we were just going through the motions,” says Mitchell, who didn’t even get a court appointed lawyer until nine months and three hearings into the case.
The lower court sided with the state and terminated bill’s rights but he appealed and three long years later the Michigan Supreme Court sided with him.
“You shouldn’t have to go to this point,” says Mitchell.
The ruling says Mitchell’s finances should never have been held against him. Mitchell is set to get his kids back. But he says it’s all taken a toll.
“Birthdays, first time they discover something, first time they make a new friend, things that will never be returned to me,” he says.
“He’s one of the most outstanding parents ever to have been run through a termination preceding, and if it can happen to him, it can happen to anybody,” says attorney Elizabeth Warner.
“We’re spending a ton of money for putting these kids in foster care,” says Vivek Sankaran, an assistant professor at the Child Advocacy Law Clinic at the University of Michigan Law School. “But for these children we are irreparably scaring them by damaging the bonds that they form with their families.”
Sankaran says only about nine percent of the 16,000 kids in foster care were sexually or physically abused. The majority were taken from their parents because of poverty-related neglect.
“Removal is too often thought of as the first option for protecting children and child welfare rather than working with families, engaging with them, providing them services in the home,” says Sankaran.
His organization, the Detroit Center for Family Advocacy, helps parents on the front end—getting them the services they need so their kids are not taken. He says so far they have had 100 percent success.
“We need to create a culture where parents are willing to say, ‘I need help, help me, I need to become a better parent, here is what I need,'” says Sankaran.
That is exactly what Andron tried to do, but with heartbreaking results.
“I gave them my healthy child and to get him back in a casket. I feel like he’d still be a live today if he was home with me,” says Andron.
State officials would not speak on camera. But they told Action News that their top priority is to return kids to their birth parents. The state also says the number of kids in foster care is down by about 3,000 and fewer parents had their rights terminated last year.
As for the foster home that housed Johnny, the state shut it down.
We are working on an additional story for Friday night, on Action News at 11 p.m., about what some people go through as they try to adopt relatives who are in the Michigan foster care system.
Please keep your comments coming below. As we continue to work on these foster care stories, they are very helpful.
Original link- Pictures- Video- Investigators: Starved to Death in State Care WXYZ.com WXYZ-TV / Detroit Detroit News, Weather, Sports and More