Opinion
DOCKET NO. A-3350-13T1
09-04-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.D., Defendant-Respondent, and R.R., Defendant-Appellant. IN THE MATTER OF A.D., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant R.R. (Mark E. Kleiman, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Melissa H. Raksa, Assistant Attorney General, of counsel; Justina Young, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent J.D. (John A. Salois, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.D. (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Tassini. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-126-13. Joseph E. Krakora, Public Defender, attorney for appellant R.R. (Mark E. Kleiman, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Melissa H. Raksa, Assistant Attorney General, of counsel; Justina Young, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent J.D. (John A. Salois, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.D. (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
This appeal arises from Title Nine litigation brought by plaintiff, the Division of Child Protection and Permanency (DCPP or the Division), against defendants R.R. and J.D. (Joe), the parents of A.D. (Amanda). In the course of the Title Nine litigation, Joe was awarded sole legal and physical custody of Amanda and, without court approval, moved to Florida with Amanda to live with his father and stepmother.
To maintain confidentiality, we have fictionalized the first names of those involved.
Defendant R.R. now appeals from the February 19, 2014 Family Part order that terminated the Title Nine litigation (the FN order). The judge held a dispositional hearing pursuant to New Jersey Division of Youth and Family Services v. G.M., 198 N.J. 382 (2009), and the FN order reflects the judge's conclusion that it was not safe to return Amanda to defendant. The order awarded defendant and Joe joint legal custody of Amanda, and awarded Joe physical custody of Amanda pursuant to the terms of a second order entered under the FD non-dissolution docket (the FD order).
Joe had initiated the FD proceedings on August 5, 2012, shortly after the Division had filed its verified complaint in the Title Nine case. The FD order similarly awarded defendant and Joe joint legal custody of Amanda, Joe sole physical custody of Amanda and further provided that the parties shall arrange all visitation between themselves. Both orders provided that the Division must be notified if either party applied to the court for a change in "custody or and/or visitation."
The date of the filing was revealed during later proceedings. The actual complaint is not in the record.
Before us, defendant contends that, during the dispositional hearing, see N.J.S.A. 9:6-8.50(d), the judge failed to consider Joe's removal of Amanda without court approval, and Amanda's best interests as required by Baures v. Lewis, 167 N.J. 91 (2001). She asserts, among other things, a violation of her due process rights. Defendant further argues that the disposition ordered by the judge was inconsistent with controlling provisions of Title Nine. She urges us to reverse and remand the matter to the Family Part for another dispositional hearing, or, in the alternative, for a hearing pursuant to Baures.
The Division counters by arguing that the dispositional hearing complied with the requirements of Title Nine and G.M., and the judge appropriately concluded Amanda should remain in her father's custody. It urges us not to remand the matter and argues against re-opening the Title Nine litigation at this point. Likewise, Joe urges us to affirm, arguing defendant's due process rights were honored at the dispositional hearing, and the judge based her decision to award him physical custody of Amanda on the evidence adduced and after considering the child's best interests. Through her Law Guardian, Amanda also urges us to affirm the order under review.
We have considered these arguments, in light of the record and applicable legal standards. We affirm.
I.
Amanda was born in 2001. From 2006 through 2012, the Division investigated numerous referrals regarding defendant's care of her family, which included Amanda and three other children not subjects of this action. With one exception, those referrals were found to be unsubstantiated. However, in February 2011, the Division substantiated a referral for neglect occasioned by defendant's arrest on outstanding warrants and allegations that she unlawfully possessed prescription drugs.
In July 2012, the Division received a referral regarding a physical altercation between defendant and her paramour that resulted in his stabbing. The fight took place in front of Amanda and two of defendant's other children. The incident required police intervention and resulted in the emergency removal of all three children, two of whom were immediately placed with relatives.
Defendant asserted the man stabbed himself. Police noted that defendant was apparently under the influence. She acknowledged having taken one Xanax the night before; her paramour claimed she had taken twenty pills.
The Division filed this Title Nine action seeking care, custody and supervision of Amanda. On July 16, 2012, the return date of the order to show cause, defendant tested positive for the presence of morphine. The judge approved Amanda's removal and placed her in Joe's custody. At a fact-finding hearing held on November 8, 2012, defendant voluntarily stipulated to a finding that she violated N.J.S.A. 9:6-8.21(c) by "engag[ing] in domestic violence while in the presence of her children thereby placing them in significant risk of harm." The judge continued Joe's physical custody of Amanda.
In February 2013, the Division was notified that police had responded to a domestic violence incident between defendant and Joe that occurred in Amanda's presence. There were allegations that Joe was intoxicated and had assaulted defendant during an argument. Joe admitted that he had spent the night at defendant's home, and that a quarrel ensued over money. He acknowledged drinking the night before. As a result, the Division emergently removed Amanda from Joe's custody and placed the child with a cousin, B.M. (Brenda). After a compliance hearing held on March 1, 2013, the judge entered an order continuing Amanda's physical custody with Brenda, and requiring Joe to attend psychological and substance abuse evaluations and a domestic violence assessment.
At a May 21 hearing, the judge concluded that the Division had failed to meet its burden of proving that Joe had abused or neglected Amanda as a result of the February incident. He ordered that the substantiated finding already entered against Joe be removed from the Division's Central Registry. The judge also indicated that the court would continue to exercise jurisdiction over the case pursuant to Title 30.
The record does not contain any order resulting from the May 21, 2013 conference.
At a subsequent hearing in July, Joe sought Amanda's return to his custody. The Division expressed some "concerns," and the Law Guardian stated that Amanda wanted to visit with her father but did not "desire to live with him." Defendant, who testified by phone, objected, claiming Amanda did not want to live with Joe and feared he would take her out of state. The judge decided to interview Amanda.
While Joe had custody of Amanda, both were living at his father's home, along with Joe's aunt and uncle. After the February removal, Joe's father had filed an application seeking custody of Amanda under the FD docket. The judge denied that request at the July hearing and entered a conforming order.
During the judge's in camera interview, Amanda indicated that she liked living with her father at the house they shared with her grandparents and other relatives. But, when the judge asked her directly where she would like to live for the "foreseeable future," Amanda said with her mother. Amanda wanted to see more of her father, but she expressed doubts about living with Joe, noting "if I live with my [d]ad, I just feel like he won't give me back to my [m]om."
At an August 1 hearing, Brenda testified that she was pregnant, and it was difficult for her to continue caring for Amanda. Brenda stated that Amanda was very happy whenever her father was around. Joe again requested that custody be restored to him, noting that although his father and stepmother had moved to Florida, he would continue to live in the same house with his aunt and uncle. The Law Guardian noted that since Brenda could no longer retain custody of Amanda, and because defendant was "still a long way from getting her act together," "it would be in [Amanda's] best interest to be returned to her [f]ather." Defendant was not present, but her attorney objected on her behalf.
The judge noted that Amanda had lived with Joe "for significant periods of time," and he noted Amanda's concern that Joe would not give her back to defendant. Without deciding whether such was the case, the judge noted Joe's claim that Amanda's concern about never seeing her mother resulted from defendant's statements to the child. Nevertheless, the judge concluded there was no evidence that harm would result to Amanda if she were returned to Joe's custody because the child loved her father and his aunt and uncle, and she was "quite happy" living there. The judge found that Amanda cared for defendant and wished she could live with her, but defendant was unable to care for the child at present. Noting Joe's compliance with the Division's programs and instructions, the judge transferred legal and physical custody to Joe and ordered the Division to maintain services and Joe to comply.
Before the session ended, defendant arrived in the courtroom and immediately objected to the judge's decision. She claimed Joe had not complied with the Division's instructions and was now unemployed. Joe acknowledged that he was receiving unemployment benefits and looking for work. The judge did not reconsider the ruling.
On August 27, Joe wrote a letter to the judge, indicating that he wished to advise the court of changes that had occurred since the August 1 hearing. Joe and Amanda had moved to Florida. Joe explained that on August 24, he and his daughter were asked by his aunt and uncle to leave because "they were moving and had no room for us." Noting that defendant was "incarcerated," Joe explained that he sought help from other family members without success. His father and stepmother welcomed him to come to Florida, so Joe moved because he "had no other option."
At a later hearing, it was revealed that defendant was incarcerated from August 1 through October 27, 2013, although the reasons for that are unexplained. At another point during subsequent proceedings, defense counsel acknowledged defendant was first incarcerated in July 2013. --------
At the next hearing, October 25, 2013, the Division requested that the Title Nine litigation be dismissed since Amanda was in Florida and apparently "doing very well." Defendant, who was present in court, objected. Her counsel noted that Joe had removed Amanda from New Jersey without court approval, and defendant requested that Joe be ordered to return the child. Defendant argued that if Joe had no place to stay, Amanda should "be placed in foster homes[] rather than Florida." At defense counsel's request, the judge refused to dismiss the litigation, ordered a "G.M. hearing," and further ordered that summonses issue for the parties to appear in the pending FD litigation.
The subsequent hearing on January 8, 2014, was held before a different judge. The Division's caseworker testified regarding her contacts with Amanda, as well as the school and child welfare authorities in Florida. She reported Amanda was happy and doing well.
Defendant also testified. She was living in a home with other people, including a man she had met on the Internet. Defendant was not paying rent, was not on the lease and shared a bedroom with this gentleman and his daughter. Defendant was seeking employment and asserted that she had maintained her sobriety since her release from jail. Defendant stated that Joe would not speak to her, but she knew he was still abusing alcohol. The Division's "Court Report" was received in evidence without objection. It revealed that Joe completed a substance abuse assessment, but failed to enroll in any treatment program or in a domestic violence counseling program.
Joe was not available by phone, and the judge continued the hearing until February 19, 2014. By then, the Florida Department of Children and Families had furnished a report, admitted in evidence without objection, that revealed the results of a face-to-face interview with Amanda and Joe, and an evaluation of the home in Florida. It suffices to say the report was entirely positive.
Joe testified telephonically and confirmed the contents of the report. He testified that Amanda made "honor roll" at her school and had regular phone contact with defendant. Joe was employed full time, and his parents greeted Amanda when she came home from school and before he returned from work. Joe expected to visit New Jersey when Amanda finished school in May, and he did not oppose defendant having extended parenting time with Amanda during the summer.
Defendant offered rebuttal testimony that refuted some of Joe's assertions. She testified that her living conditions remained the same, and she continued to look for employment.
In brief summations, defense counsel argued that the burden was on Joe to demonstrate "a change of custody [wa]s appropriate." Defendant asked the judge to order Amanda's return to New Jersey and grant defendant physical custody of the child. Joe's counsel contended that there was no burden on his client to prove a change in circumstances because Joe had custody of Amanda by court order since the removal in 2012. The Law Guardian argued that pursuant to G.M., defendant was required to show "it's now safe for the child to be returned to her," and defendant had failed to do so. The Division joined in the Law Guardian's argument.
The judge rejected defendant's argument that Baures applied and noted this was a "G.M. hearing" pursuant to Title Nine, where the only question was whether it was safe to return Amanda to her mother's custody. The judge found that defendant's housing situation was "not stable," and she was "still very much in the early stages of her recovery." The judge concluded it was not safe to return Amanda to defendant. She granted the Division's request to dismiss the Title Nine litigation and entered the order under review. Noting there had never been a custody order entered under the FD docket, the judge entered the FD order referenced above.
This appeal followed.
II.
As the Court has made clear, in Title Nine proceedings, "[f]ollowing the fact-finding hearing, the dispositional hearing may commence immediately or at some other time." G.M., supra, 198 N.J. at 399 (citing N.J.S.A. 9:6-8.47). "Prior to the dispositional hearing, 'the court may . . . make inquiry into the surroundings, conditions, and capacities of the persons involved in the proceedings.'" Ibid. (quoting N.J.S.A. 9:6-8.48(b)). As the Court explained:
A dispositional hearing must be held to determine the appropriate outcome of the case. N.J.S.A. 9:6-8.50. . . . Notably, the court has multiple alternatives in determining the appropriate disposition. The court may enter a suspended judgment, N.J.S.A. 9:6-8.52; release the child to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint, N.J.S.A. 9:6-8.53; place the child with "a relative or other suitable person," N.J.S.A. 9:6-8.54(a) ; make an order of protection, N.J.S.A. 9:6-8.55; place the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or require the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a). In all cases the court "shall state the grounds for any disposition made." N.J.S.A. 9:6-8.51(b).At the dispositional hearing, the court must determine whether the child "may safely be released to the custody of [the offending parent], who was responsible for [her] care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate." Id. at 402.
[Id. at 399-400 (emphasis added).]
In this case, the judge strictly adhered to the Court's holding in G.M. Represented by counsel, defendant was accorded the opportunity to confront the evidence produced by the Division and Joe, and she presented evidence on her own behalf. The judge concluded that based upon that evidence, Amanda could not be safely returned to her mother.
It is well accepted that "appellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We accord particular deference to fact-finding by the family court "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We find no reason to disturb the judge's factual findings and legal conclusion in this case that Amanda could not safely be returned to defendant's custody.
Subsequent to G.M., we recognized that "any dispositional review must consider not only whether the offending parent has abated the harm previously posed, but also must consider whether other parties have asserted the child's best interest demands that custody rest elsewhere." N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 22 (App. Div. 2010). Here, the judge clearly assessed Joe's assertion that Amanda's best interests were served by continuing her in his custody in Florida. The evidence of Amanda's progress in school and the stability associated with her living situation in Florida supported the judge's conclusion. We find no basis to conclude that the judge failed to conduct the dispositional hearing in accordance with Title Nine, and we find no reason to disturb the provisions of the FN order that granted Joe physical custody of Amanda.
Defendant concedes that Amanda's placement with her father was permitted pursuant to N.J.S.A. 9:6-8.54(a), but she argues the statute does not permit an out-of-state parent "who has not made the showing required under Baures, [and] where neither the non-custodial parent nor the child herself consented to the move." We disagree.
In Baures, supra, 167 N.J. at 116-17, the Court set forth a variety of factors the judge must assess in deciding a "removal application" made by a custodial parent who seeks to relocate to another jurisdiction. When "the noncustodial parent . . . exercises the bulk of custodial responsibilities due to the incapacity of the custodial parent," however, any application for custody is governed "by a changed circumstances inquiry and ultimately by a simple best interests analysis." Id. at 116 (emphasis added).
In G.M., as in this case, the defendant-mother had custody of the children prior to the filing of the Title Nine complaint; during the Title Nine proceedings, the judge ordered the placement of the children with their non-offending father in Florida. G.M., supra, 198 N.J. at 388-90. The Court specifically rejected our court's conclusion that "a custody determination based on the best interests of the child standard" applied to a dispositional hearing. Id. at 402. Rather, the Court noted that the non-offending, out-of-state father always had the ability to request a "change in custody" pursuant to Baures, which was "'governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis.'" Ibid. n.3 (quoting Baures, supra, 167 N.J. at 116). In this case, Joe had initiated those proceedings prior to the dispositional hearing and before he moved to Florida.
We in no way condone Joe's decision to move to Florida with Amanda prior to obtaining the court's approval, and clearly similar facts were not present in G.M. Nevertheless, we believe the Court's guidance in G.M. is clear and we are bound to follow.
We have recognized a certain tension between a custodial order entered at the dispositional hearing, and an order awarding custody in an FD or FM proceeding.
Biological parents or relatives, who assume custody at the Division's request pending services to aid the putative offending parent, cannot merely rely on that placement as a final determination of the child's status. The non-offending parent must initiate an action and demonstrate a basis for a change in any custody order or agreement existing prior to the Division's intervention. Although the proof burdens and interests of a biological parent seeking to make the child's placement permanent may vary from those of the Division in the Title 9 litigation, the same Family Part judge must preside over the third-party actions that are inextricably intertwined with the Division's case.As already noted, Joe made such an application. Although the FD order is not the subject of our review, since it is referenced in the FN order, we simply note that in our opinion, the judge clearly assessed Amanda's best interests at the time, albeit she did so implicitly and without specific reference to the factors contained in N.J.S.A. 9:2-4. We see no reason to address the issue further since defendant is not foreclosed from seeking modification of the FD order.
[J.D., supra, 417 N.J. Super. at 22.]
To the extent we have not otherwise specifically addressed them, we conclude defendant's other arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION