Small v. Rockfeld

Conford, P. J. A. D.,

Temporarily Assigned (dissenting). My view is that resolution of the highly portentous question argued regarding extension of the right of action in tort by infant children against parents beyond the limitations set by this court only five years ago in France v. A.P.A. Transport Corp., 56 N. J. 500 (1970), should await a considered determination in this case as to whether the welfare and best interests of the child, Scott, call for the prosecution of the action. A fuller record than that here before us is necessary for an adequately informed decision on that delicate question, and my vote at this point in the case is for a remand with directions for a hearing and finding by a trial judge on the stated question, this court retaining jurisdiction in the interim. If it were ultimately determined that the child’s best interests and welfare would not be served by prosecution of this action, the substantive legal question decided by the majority could be resolved at a future date, hopefully on a more satisfactory record, less complicated by conflicting ad hoc familial considerations than the present one.

There can be no question as to the right and duty of the court, in the exercise of its ancient Chancery parens patriae *254 jurisdiction in an appropriate case, to look into and supervise tiie taking of any action affecting the welfarei of an infant child, its person, property or custody. 42 Am. Jur. 2d Infants, § 22, p. 27; Fanlony v. Fanlony, 21 N. J. 525, 535 (1956); Henderson v. Henderson, 10 N. J. 390, 395 (1952); Moreland v. Hollo, 15 N. J. Super. 135, 138 (App. Div. 1951). I have no doubt that a court should exercise such jurisdiction, in a proper case> on its own motion, since the parties to the litigation may not discern the welfare problem that catches the eye of the court. Moreover, it is well said that “* * * the court’s action [parens patriae] is not limited by any narrow bounds but [it] is empowered to stretch forth its arm in whatever direction its aid and protection may be needed”. 42 Am. Jur. 2d, ubi cit. supra.

In the present case the court should be particularly alert to the matter of the child’s interests as the administratrix ad prosequendum may well be in a position of conflict of interest with the child in that regard. Understandably, the administratrix is interested in punitive action against the defendant, who she believes is responsible for her daughter’s death. She was not emotionally in a position, in deciding to institute this action, essentially one on behalf of the child, see Heyman v. Gordon, 40 N. J. 52, 54 (1963), fairly to judge and to give consideration to whether the child’s best interests would be served by such an action.

The prospective harm to the child in a personal and psychological sense in the bringing of this action lies in the threat of a favorable judgment therein to the future father-son relationship of the defendant and the child. See infra. On the basis of what is now known, however, the viability of that relationship is in some question, and requires clarification. The pending Chancery Division action mentioned in the majority opinion was instituted by Dr. Rockfe-ld, present defendant, to secure a statutory adjudication of the death of his wife. In its course, the maternal grandparents of the child sought an order, opposed by Dr. Rockfeld, permitting them to have periodic overnight. visitations with the child *255 at their own home. This request was granted by the court after a hearing in May 1973, in which, as related by the majority, Dr. Rockfeld testified on direct examination that he had discussed with his sister and brother-in-law, who were then earing for the child, the possibility of their eventual adoption of it. It may be suspected that this testimony might have been geared to minimize the prospect of a future close relationship between the maternal grandparents and the child. In any event, on an application by Dr. Rockfeld some months later for modification of the order to eliminate the overnight visitations, which was granted, he testified that he intended to retain his parenthood over the boy, in a reconstructed family, explaining that his earlier consideration of adoption by his sister was the product of a distraught condition following the death of his wife.

It would be inappropriate and unfair to all concerned for us to come to a present determination as to the probabilities of a good parenthood relation between defendant and the child, for parens patriae purposes, on the testimony aforementioned, as it was taken in a different proceeding involving different issues. Moreover, the parties have not yet been heard on this issue. It was raised not by the defendant but by the writer of this opinion. Roxbury State Bank. v. Clarendon, 129 N. J. Super. 358, 375 (App. Div. 1974), certif. den. 66 N. J. 316 (1974). A remand for the express purpose of determining where lie the best interests of the child would be likely to produce all the available evidence relevant to that question — most significantly the matter of the future status of the child vis a vis the defendant.

But as the matter now stands, unless a different picture is developed on a remand, the presumption must be that the future relationship of the defendant and the child will continue to be that of father and' son, probably ultimately in a different household from that which they now share with the Doris. The assumption must also be that the.normal filial respect and affection which attend the relationship between a father and a young son will exist here, although *256 subject to the hazards that others may attempt to impair that relationship. The need of a young boy for his father is undoubtedly accentuated by the loss of a mother, and the future destruction or substantial impairment of that tie may well be the gravest threat that this child faces in the years ahead.

I strongly dissent from the intimation in the court’s opinion that the child’s interests will necessarily be served by a verdict in the present action in that when he reaches understanding age he will “want to know the truth”. In the first place, the jury verdict will of course not constitute a revelation of “the truth” of the matter, whether or not it is in favor of plaintiff, but merely a collective guess from circumstances apparently not likely to be expanded beyond those objective facts which are now known, which create substantial suspicion but seemingly will still leave a permanent question mark. We were told at oral argument that despite a full investigation by the Florida authorities no action has been taken by the local grand jury.

But apart from the fact that the adjudication will not apprise the child of the. “truth” I am clear that the prospective normal, loving association between father and son wdiich may be substantiated on a fuller record (and until then is a natural inference) — a relationship of incalculable benefit to the child — would best be safeguarded by permitting this episode to lapse into obscurity. (I of course am not alluding to any appropriate action by the law enforcement authorities.) To confront the child when he reaches understanding age (or 'possibly even before) with the fact that a court adjudicated his father culpably responsible for the' death of his mother — in witness whereof there is a trust fund of money damages exacted by the court from the father to repair the child’s loss of his mother — would in my view be calculated to visit immediate and continuing psychological harm on the child and to threaten the vitiation of the father-son nexus then existing, with consequent further irreparable injury.

*257 I am further in disagreement with the suggestion in the court’s opinion that a jury verdict in favor of the plaintiff could justify “further proceedings” for “additional protection” of the child, if what is meant is termination of the father’s custody. On the objective facts now known or in reasonable prospect of discovery, I am not in accord. On those facts this child’s present and future need for his father should clearly outweigh a civil jury’s adverse appraisal of his conduct in relation to the tragic episode.

While ordinarily a prospective money judgment in favor of an infant plaintiff is of course to his advantage, this is not the ordinary case. The potential for psychological and familial damage has been discussed. As a counter to the pecuniary benefits of such a judgment, the child can pre-sumabty, without it, look forward to financial support, sustenance and beneficence from a father to whom he will always represent the natural object of the father’s bounty. The need for defendant to satisfy such a judgment out of personal assets (there apparently is no insurance) may constitute yet another irritant in the family relationship. In view of the child’s half-million dollar inheritance from his mother alone, his future financial welfare seems assured without the necessity of securing for him a recovery in this case.

The matter of the best interests of the child should be fully explored on a remand, to be followed by such later proceedings as are mentioned above.

For reversal — Justices Jacobs, Hall, Sullivan and P ashman — 4.

For affirmance — Justice Clifford — -1.

For remandment — Judge Conford — 1.