Opinion
DOCKET NO. A-5837-13T3 DOCKET NO. A-5883-13T3
09-06-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.J. and C.J., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF Ca.J. and Ch.J., Minors.
Jordan A. Stern, attorney for appellant J.J. Joseph E. Krakora, Public Defender, attorney for appellant C.J. (Cecilia M.E. Lindenfelser, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Peter Alvino, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FL-14-22-13 and FL-14-23-13. Jordan A. Stern, attorney for appellant J.J. Joseph E. Krakora, Public Defender, attorney for appellant C.J. (Cecilia M.E. Lindenfelser, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Peter Alvino, 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
Defendants J.J. (Jay) and C.J. (Clea) jointly appeal from a Family Part summary judgment order granting kinship legal guardianship (KLG) of two of their children, Ca.J. (Blair) and Ch.J. (Casey), to their relative caregivers. The Law Guardian for these two children supports their appeal. The New Jersey Division of Child Protection and Permanency (the Division) opposes the appeal. For the reasons that follow, we vacate the summary judgment order and corresponding KLG judgment, and remand the matter for a full hearing.
We use pseudonyms for the parents and their children to protect their privacy and for ease of reference.
I.
We have previously outlined the salient facts in our related 2014 opinion. See N.J. Div. Child Prot. & Perm v. C.J. & J.J., A-0326-11T4, A-0194-12T4, A-0197-12T4 (App. Div. Aug. 8, 2014). Defendants are the parents of three children born of their marriage: Alex, Blair, and Casey. In 2009, they adopted Clea's cousin's two children, Emerson and Franki. This family first came to the attention of the Division in April 2010, following a report that Franki had been admitted to the hospital. During the course of the Division's investigation, additional concerns were raised with regard to defendants' methods of discipline. The Division subsequently removed the children and placed them in resource care, and the Family Part ordered that the Division retain custody of the children. Following several case management conferences — and after conducting in camera interviews of the older children — the court held a fact finding hearing, which began on October 21, 2010, and continued sporadically until the court rendered its decision on August 4, 2011. On that date, the Family Part found the defendants abused and neglected all five children, pursuant to N.J.S.A. 9:6-8.21. See C.J. & J.J., supra, slip op. at 56-57.
The matter subsequently continued to the guardianship phase of litigation and a ten-day guardianship trial. The court found every one of the Division's witnesses credible, and it also found credible each witness produced by each Law Guardian. Conversely, the court found the testimony of Jay and Clea not credible, and most of the testimony of their experts either incredible or unreliable with respect to the issues before the court. In a written opinion dated August 22, 2012, the court terminated defendants' parental rights to Alex, Emerson, and Franki, but determined that the Division had not clearly and convincingly proved that termination of parental rights was in the best interests of Blair and Casey. Id. at 93. Specifically, the court found the parental rights of Jay and Clea should not be terminated in light of the Division's failure to consider KLG, and the children's strong bond with their parents. Ibid.
Accordingly, the Family Part reopened the abuse and neglect matter as to Blair and Casey, requiring the Division to present a new permanency plan for them. On April 19, 2013, the Division filed a motion to amend the abuse and neglect complaint to seek KLG pursuant to N.J.S.A. 30:4C-87(a), and on October 23, 2013, the court approved the Division's permanency plan of KLG. Meanwhile, defendants appealed from the Family Part decision that they abused or neglected their five children, and separately appealed from the Family Part order terminating their parental rights to their oldest child and two youngest children. See C.J. & J.J., supra, slip op. at 2-3.
We consolidated the three appeals for purposes of our August 8, 2014 opinion. Ibid. We also highlighted that the proofs the Division presented at the respective hearings to prove their allegations, which defendants adamantly denied, and the evidence defendants presented to refute the Division's allegations, resulted in a record exceeding 9000 pages of documentary evidence and transcripts. Ultimately, after carefully considering defendants' arguments in light of the extensive record and controlling law, we concluded that the Family Part judge's findings of fact in the abuse or neglect hearing were insufficient to support its conclusion that defendants abused or neglected Blair and Casey. Id. at 3. With that exception, however, we determined that the Family Part judges who presided over the remaining hearings found facts and made credibility determinations that were supported by substantial evidence in the record, and the judges soundly applied relevant legal principles to the facts they found. Accordingly, we affirmed the finding of abuse or neglect as well as the termination of defendants' parental rights to their remaining children. Ibid.
Importantly, with regard to Blair and Casey, we noted that "[t]he Division developed no evidence in the record documenting the existence of bruises, scars, lacerations, fractures, or any other medical ailment suffered by either Blair or Casey as a result of Clea's conduct." Id. at 103. While acknowledging N.J.S.A. 9:6-8.46(a)(1) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child of, or the responsibility of, the parent or guardian[,]" we noted that "the abuse of one child is [not] conclusive evidence of abuse of another child." Id. at 104 (emphasis added). While the Family Part judge concluded the behavior of Blair and Casey "suggests they were abused or neglected as a result of witnessing excessive corporal punishment of the adopted children," we found these statements conclusory and not supported by the record. Ibid. Notably, there was no "psychological evidence, testimonial or documentary, to support its conclusion that by witnessing the excessive corporal punishment of their younger siblings, Blair and Casey were emotionally damaged." Id. at 104-05. We determined that "[t]he Division is required to independently establish abuse or neglect of the 'observing' child by a preponderance of the evidence . . . [t]he evidence cited by the trial court in this case does not support such a finding." Id. at 106. Accordingly, we reversed. Id. at 132.
Meanwhile the Division filed a motion for summary judgment on its KLG complaint, and on June 30, 2014 — prior to issuance of our August 8, 2014 opinion — the Family Part determined that, based on clear and convincing evidence, the Division proved all four prongs of the KLG statute, N.J.S.A. 3B:12A-6(d). The Family Part judge then entered the KLG judgment by way of summary judgment, without a plenary hearing. In particular, the court determined that "[Blair and Casey's] health and development have been, and would continue to be, endangered by the parental relationship." Moreover, the court found defendants "are unwilling or unable to eliminate the harm despite reasonable efforts by the Division to remediate the conditions that led to the children's placement outside the home." The court further concluded that the Division exercised reasonable efforts to reunify the children with defendants by, in part, providing psychological evaluations, therapeutic services, exploration of relative resources, and supervised visitation. The court noted that it was bound by a different Family Part judge's earlier opinion and findings, and "[a]s res judicata, [d]efendants cannot now argue the merits of reunification." See Velasquez v. Franz, 123 N.J. 498, 505 (1991) (explaining that "[t]he term 'res judicata' refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated").
On September 19, 2014, the court declined to consider defendants' order to show cause to vacate the June 30, 2014 order of KLG. Defendants had argued that — based on this court's August 8, 2014 opinion reversing the finding of abuse and neglect entered after the August 4, 2011 fact finding hearing with respect to Blair and Casey — the order of KLG must be vacated. Nevertheless, the Family Part judge declined to consider defendants' order to show cause because it found itself divested of jurisdiction, pursuant to Rule 2:9-1. This appeal followed.
Both defendants had filed their notices of appeal in August 2014.
II.
On this appeal, defendants and Blair and Casey's Law Guardian argue that the trial court erred in granting KLG because the underlying basis — that is, the finding of abuse and neglect — was reversed by this court, and the trial court failed to subsequently hold a hearing to independently consider the statutory requirements. We agree.
The standards governing our review are well-known. "We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "We recognize that the cold record, which we review, can never adequately convey the actual happenings in a courtroom." Ibid. (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). "We will not overturn a family court's factfindings unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." Ibid. (citation omitted).
However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). We accord no deference to the judge's legal conclusions, which we review de novo. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011). As such, we review a ruling on summary judgment de novo. Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014).
The Legislature in 2001 passed the Kinship Act (Act), N.J.S.A. 3B:12A-1 to -7, because it "recognized that an increasing number of children who cannot safely reside with their parents are in the care of a relative or a family friend who does not wish to adopt the child." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222-23 (2010) (citing N.J.S.A. 3B:12A-1(a), (b)). KLG is "an alternative to termination of parental rights and subsequent adoption." N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 339 (App. Div. 2008). In 2006, the Legislature broadened the Act to include not just relatives and family friends, but also "a resource family parent as defined in [N. J.S.A.] 30:4C-26.4." N.J.S.A. 3B:12A-2.
Under the Act, a court "shall appoint a caregiver as a kinship legal guardian if, based on clear and convincing evidence," the court finds that:
(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;
(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;
(3) . . . (a) the division exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and
(4) awarding kinship legal guardianship is in the child's best interests.
[N. J.S.A. 3B:12A-6(d).]
While the Family Part judge concluded that the Division proved all four prongs of the KLG statute, her decision was predicated on a finding that defendants abused or neglected Blair and Casey. However, our intervening August 8, 2014 opinion reversed this finding, after our analysis of the record revealed insufficient evidence to support it. See C.J. & J.J., supra, slip op. at 132. Thus, without the benefit of a full hearing, the Family Part judge improperly assumed that "[Blair and Casey's] health and development had been, and would continue to be, endangered by the parental relationship . . . ." In the absence of a finding of harm to the children, the record fails to support the finding that the Division proved all four prongs of the KLG statute by clear and convincing evidence. The Family Part judge later acknowledged our ruling, and "would have been pleased to resolve these issues and feels capable of doing so," but concluded defendants' filing of this appeal divested the trial court of the opportunity to consider the claims advanced on the motion to vacate. R. 2:9-1. We now vacate the June 30, 2014 KLG order, and remand for a full hearing on the merits of the KLG application.
Vacated and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION