Opinion
DOCKET NO. A-4022-14T4
09-26-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.W., Defendant-Appellant. IN THE MATTER OF C.B., O.B., P.W., and A.W., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-57-11. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant D.W. appeals from two orders dated January 11, 2011 and March 9, 2011, as to her sons Owen and Carl, and June 18, 2012 and May 15, 2013, as to her daughter Paige. We affirm.
We use initials and pseudonyms to protect the family's privacy.
I
On this record, there is no dispute that defendant has struggled with alcoholism for many years. In January 2011, the Division of Child Protection and Permanency (Division) removed three children - Owen, Carl, and Andrew - who were then in defendant's sole custody, on an emergency basis. The Division then filed an order to show cause and verified complaint under both Title 9 and Title 30.
The youngest child, Andrew, was eventually returned to defendant's custody; he is not the subject of this appeal. --------
Following hearings on January 7, 2011 and January 11, 2011, the court ordered that Owen and Carl be placed with their father, due to defendant's inability to safely care for them. Defendant did not contend that she was able to care for the children, but expressed her preference that they be placed with her father. The judge disagreed and transferred legal and physical custody of the children to their father. At that point, all counsel and the court contemplated that at some future time, after defendant had an opportunity to obtain further treatment for her alcoholism, the court would hold a dispositional hearing to determine whether defendant would regain custody of the children.
On March 9, 2011, the day of the scheduled Title 9 fact finding hearing, the parties appeared in court and advised the judge that they had agreed that the case would be converted to a Title 30 action for the provision of services. See N.J.S.A. 30:4C-12. At that point, there was no dispute that defendant still was not able to safely care for the children, and she had been unable to complete inpatient treatment due to medical problems in addition to her alcoholism.
The Division and the father advocated for dismissal of the litigation as it pertained to the father, Owen and Carl. Defendant's attorney articulated her client's position that defendant should be given more time to complete her alcoholism treatment, after which she would be entitled to a hearing, in the FN docket, to determine whether she should regain custody of the children. The father's attorney objected and asked the judge to hold the dispositional hearing immediately, arguing that if the court had held the scheduled fact finding hearing, a dispositional hearing would have been held promptly thereafter. The judge called a recess to give the parties an opportunity to discuss settlement of the case.
After the recess, the parties advised the judge that they had reached a settlement. The judge gave the parties additional time to discuss any further details of the settlement, after which they returned to the courtroom, and defendant's attorney unequivocally stated that they had reached a settlement. The judge recapitulated the settlement, which provided that the children would remain in the father's custody, defendant would have supervised visitation, and the father, Carl and Owen, would be dismissed from the case. All parties acknowledged that the Title 30 (FN) case would continue with respect to the third child, Andrew, who was in foster care.
With respect to Carl and Owen, the judge stated that if there were a change of circumstances, defendant had the right to apply for a change of custody. The judge explained that if the FN case was still pending when she filed the application, it could be filed in the FN docket; otherwise it should be filed in the FD docket. However, he also directed that if such an application was filed in the FD docket within the next six months, it should "be referred to the children-in-court-judge."
The memorializing order, dated March 9, 2011, specifically stated that the father, Owen and Carl were dismissed from the FN litigation, and that the attorneys who had been assigned to represent the father and those two children were relieved as counsel. The order also stated that if either parent wished to file a motion for a change of custody, the motion could be filed in the FN docket if it was still open, or in the FD docket.
After the March 9, 2011 hearing, the FN case remained open and the court held multiple hearings concerning the placement of Andrew. In October 2011, defendant gave birth to another child, Paige. By December 2011, the Division had returned Andrew to defendant's custody, and she was living with him and Paige in a supervised living situation at the Family Preservation House.
In 2012, defendant filed a motion in the FN docket for a change of custody of Owen and Carl. She sought unsupervised visitation and joint legal custody with the father. At a hearing on May 10, 2012, the father appeared pro se, and the two children did not have a Law Guardian to represent them; defendant was represented by counsel. The father contended that defendant was still abusing alcohol; she denied his allegation. The judge sent the parties to mediation as though it were an FD case, stating that if they could not resolve their differences, he would hold a plenary hearing on the motion. At mediation, the parties agreed to a visitation schedule, but apparently the father was unwilling to share joint legal custody of the children with defendant.
On June 4, 2012, the parties returned to court. At that hearing, defendant's counsel told the judge that her client was not seeking a change in the children's living arrangement with their father; she only sought visitation and the opportunity for input into their medical care and similar issues. After holding a plenary hearing, the judge granted defendant exactly what she asked for - joint legal and physical custody of the children, leaving the father as the parent of primary residence.
By June 18, 2012, the Division had conducted an emergency removal of Paige and Andrew from defendant's custody, due to her relapse into alcohol abuse, as well as allegations of child abuse. The Division filed an amended complaint under Title 9 and Title 30, concerning Paige and Andrew. At the June 18 hearing, defendant's counsel asked that Paige be placed with her godmother, K.G., and after hearing testimony from K.G., the judge approved that arrangement. The judge granted K.G. sole legal and physical custody of Paige, in part to enable K.G. to obtain health insurance for the child. Defendant's attorney did not object to any of those provisions.
On August 2, 2012, the court heard an application from the father in the FD docket, seeking sole custody of Owen and Carl because of defendant's alleged continued alcohol abuse. The judge ordered that defendant have supervised, rather than unsupervised, visitation.
At a subsequent hearing on September 25, 2012, defendant's counsel conceded that her client had relapsed into alcohol abuse. By January 25, 2013, the court approved the Division's plan to seek termination of defendant's parental rights to Paige and Andrew. In opposing that motion, defendant's attorney argued that there was no need to seek termination of defendant's parental rights to Paige, because Paige was not living with a stranger but rather was in the legal and physical custody of her godmother. By April 11, 2013, the Division confirmed that it would not seek termination of parental rights as to Paige.
At a hearing on May 15, 2013, the Division informed the court that Paige was still living with K.G. The Division recommended "that [Paige] be dismissed from litigation and remain in the custody of [K.G.]. We are amenable to [defendant] sharing legal custody of [Paige] but not physical custody." The Law Guardian did not object. Defendant's attorney did not object. In fact, defense counsel's only remarks were directed to a vigorous advocacy of defendant's eventual reunification with Andrew, at a future time when defendant had completed her recovery.
When the Law Guardian asked the judge at the end of the hearing if [Paige] was "dismissed from litigation," the judge confirmed: "Oh, yes. [Paige] is dismissed from litigation. There will be joint, legal custody with her current foster mother and with her mother, with residential custody being with the foster parent." Again, there was no objection from defendant. The May 15, 2013 order reflected the court's ruling.
Thereafter, the court held numerous hearings concerning the placement of Andrew, who had severe behavioral problems. During that time, defendant also gave birth to yet another child, who was living with her in a supported residential treatment program. By August 2014, defendant had completed the treatment program and moved into an apartment in Trenton. By November 14, 2014, Andrew had been returned to defendant's custody. During this time, and at the several subsequent hearings, defendant, who was represented by the same capable and zealous attorney who had handled her case all along, did not raise any issue concerning the custody of Owen, Carl, or Paige.
On March 27, 2015, the parties appeared for one final hearing. At that hearing, the Division attorney advised the court that defendant had been successfully reunited with Andrew, and proposed "that the litigation terminate at this point." The Law Guardian agreed. When the court asked defendant's counsel for her position on dismissal, the attorney responded, "My client does not oppose dismissal." Based on the positions stated by all counsel, the judge then dismissed the litigation in a March 27, 2015 order that confirmed defendant's legal and physical custody of Andrew.
II
On this appeal, defendant raises the following issues:
I. THE TRIAL COURT'S ORDERS PERMANENTLY TRANSFERRING CUSTODY OF P.W. TO K.G. SHOULD BE VACATED AND THE CHILD RETURNED TO THE MOTHER BECAUSE THE COURT LACKED JURISDICTION TO ENTER SUCH ORDERS.
II. THE TRIAL COURT'S ORDERS AWARDING J.B. CUSTODY OF O.B. AND C.B. INDEFINITELY MUST BE VACATED BECAUSE THE COURT LACKED JURISDICTION TO ISSUE SUCH ORDERS.
III. ASSUMING, ARGUENDO, THAT THE TRIAL COURT DID MAINTAIN JURISDICTION TO ENTER ORDERS PURSUANT TO TITLE 9, IN ENTERING THE DISPOSITIONAL ORDER, THE TRIAL COURT DENIED D.W. DUE PROCESS BECAUSE IT FAILED TO CONDUCT A G.M. HEARING TO DETERMINE WHETHER IT WAS SAFE TO RETURN THE BOYS TO HER CUSTODY, AND D.W. WOULD HAVE PREVAILED UNDER G.M. HAD THE HEARING BEEN HELD.
We conclude that those issues, which were not raised in the trial court, are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). However, we add the following comments.
Defendant agreed to the child placement arrangements embodied in the orders she now seeks to appeal, did not object to the dismissal of the litigation as to any of the children, and did not request a dispositional hearing in connection with any of the dismissal orders. We conclude that she cannot appeal from orders to which she consented, and on this record we may properly decline to entertain issues she never raised in the trial court. See State v. Robinson, 200 N.J. 1, 19 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In particular, with respect to Owen and Carl, the March 9, 2011 order stated all of the terms which the judge had clearly explained on the record, and to which defendant and her counsel clearly consented. Having consented to that disposition of the case, and the entry of the March 9, 2011 order, defendant may not now appeal from that order. See N.J. Div. of Youth & Family Services v. W.F., 434 N.J. Super. 288, 298-301 (App. Div.), certif. denied, 218 N.J. 275 (2014). Moreover, her consent to the March 9, 2011 order renders moot any objection she now raises to the January 11, 2011 order, which initially placed the children with their father. Id. at 301-02.
Likewise, with respect to Paige, defendant agreed to her placement with K.G., and she then invoked K.G.'s legal and physical custody of Paige as a defense against a termination-of-parental-rights-action. Her attorney later raised no objection to the May 15, 2013 dismissal of the Division's litigation concerning Paige, or to the custody arrangements memorialized in the May 15, 2013 order. In the nearly two years thereafter, defendant raised no issue concerning Paige's custody and did not object to the dismissal of the FN litigation on March 27, 2015. In the context of this case, we conclude that, having failed to request a dispositional hearing, and having expressed no objection to the dismissal of the FN litigation with respect to Paige before the trial court, defendant is not entitled to our consideration of the issue for the first time on this appeal. See Robinson, supra, 200 N.J. at 19.
Both Title 9 and Title 30 (as it relates to families in need of supervision) contain provisions designed to address changes of child custody. Title 9 requires that, after making a finding that a parent abused or neglected a child, the court must hold a dispositional hearing to determine custody, before dismissing the litigation. See N.J.S.A. 9:6-8.50, -8.51; N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382, 399 (2009). Title 30 provides that, absent court approval or the parent's consent to services under N.J.S.A. 30:4C-11, child placement orders "shall not be effective beyond . . . six months from the date of entry." N.J.S.A. 30:4C-12; see N.J. Div. of Youth and Family Servs. v. T.S., 426 N.J. Super. 54, 66 (App. Div. 2012). "[T]he court - in its discretion - may extend the [Title 30] order provided that it is satisfied, by the preponderance of the credible evidence, that the best interests of the child require continuation of that order." N.J. Dept. of Children and Families v. I.S., 214 N.J. 8, 37-38 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013).
However, a defendant may resolve a custody issue by consent, and in that context, the court may dismiss a Title 9 or Title 30 action without a plenary hearing or other adversarial proceeding concerning the child's placement. See W.F., supra, 434 N.J. Super. at 294-95; Div. of Youth and Family Servs. v. M.D., 417 N.J. Super. 583, 621 (App. Div. 2011). In essence, that is what happened here. Moreover, given defendant's repeated relapses into alcohol abuse, dispositional hearings held on the dates of the 2011, 2012 and 2013 orders defendant now challenges would have produced the same - or less favorable - results as those to which she consented. Hence, even if there had been errors in the procedures the trial court followed, on this record the errors would have been harmless. See I.S., supra, 214 N.J. at 39-41. Accordingly, we affirm the orders on appeal.
However, because defendant retains her parental rights to all of the children, nothing in this opinion, or in the orders entered by the trial court, precludes defendant from returning to the trial court to seek modification of the current custody arrangements. See I.S., supra, 214 N.J. at 42; W.F., supra, 434 N.J. Super. at 299.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION