Opinion
DOCKET NO. A-4535-13T4 DOCKET NO. A-4536-13T4
06-03-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.P. and D.C., Defendants-Appellants. IN THE MATTER OF I.C., Minor.
David A. Gies, Designated Counsel, argued the cause for appellant D.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Gies, on the briefs). Anastasia P. Winslow, Designated Counsel, argued the cause for appellant M.P. (Joseph E. Krakora, Public Defender, attorney; Ms. Winslow, on the briefs). Kathryn A. Kolodziej, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Kolodziej, on the brief). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-165-12. David A. Gies, Designated Counsel, argued the cause for appellant D.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Gies, on the briefs). Anastasia P. Winslow, Designated Counsel, argued the cause for appellant M.P. (Joseph E. Krakora, Public Defender, attorney; Ms. Winslow, on the briefs). Kathryn A. Kolodziej, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Kolodziej, on the brief). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief). PER CURIAM
Defendant M.P. and defendant D.C., the biological parents of their daughter, I.C., appeal from an October 30, 2012 order finding they abused and neglected her. D.C. also appeals from a permanency order dated November 26, 2012, transferring custody of I.C. to M.P. We reverse the findings of abuse or neglect and remand for a hearing on the custody and visitation arrangements between the parents.
We are required to discuss in detail the parties' history in our court system, which includes acknowledging errors made by the parties tasked with protecting the child and providing her with permanency.
Defendant M.P., who we will refer to as Mary, has three children. Her youngest child I.C., who we will refer to as Iris, is presently nine years old. The defendant D.C., who we will refer to as Dave, is the father of Iris.
Fictitious names are used to protect the identities of the parties.
In January 2012, Iris was four years old and living with Dave. Mary lived at another residence with her son, K.P., who was then 17 years old. K.P. was not Dave's child. On or about January 6, 2012, Dave and Mary had a physical confrontation in the presence of Iris. The findings of abuse or neglect against both defendants, that are the subject of this appeal, stem from that event.
The relevant facts follow. Mary claims she went to Dave's home to assist him in cleaning the apartment because Iris suffered from scabies. Dave was sitting in a chair with Iris on his lap. Dave went to put socks on Iris, and Mary, believing the socks were dirty, became upset. A verbal argument ensued, which turned physical.
It was never proven the child actually had scabies.
Mary contended Dave hit her. Dave claimed he did not get out of his chair, and Mary came behind him and placed her hands over his mouth and nose. Dave contended he was unable to breathe and gasped for air. Mary's finger was in Dave's mouth and he admits he bit her finger. He claims he acted in self-defense. Mary claims she was the victim of his aggression.
When the police arrived, both defendants were in the hallway arguing. Dave had a small scratch on his nose and his glasses were bent. Mary was described by police as having a cut on her finger, which was bleeding. Mary and Iris went to the emergency room where Mary was treated for her wound. Dave was arrested. Dave and Mary filed cross-complaints in which each alleged domestic violence was committed by the other. It was conceded by both defendants that Iris was present throughout the fight, and Dave testified she was sitting on his lap when Mary tried to choke him.
On February 6, 2012, there was a hearing to determine whether either party was guilty of domestic violence and whether final restraining orders should issue. The judge found Mary was not credible, and he stated he believed Dave's description of the confrontation. Dave was substantially older than Mary and the judge questioned Mary's description of being overpowered by him. The judge found Dave not guilty of domestic violence and found Mary guilty of domestic violence and entered a final restraining order against her.
At different points in time there were several different judges who entered orders in various cases involving Iris. Before this appeal, there were also two other appeals resulting in opinions issued by our court reversing orders entered and remanding for further proceedings.
The Division of Child Protection and Permanency (DCPP) had prior involvement with both defendants who lived separately. Iris lived with Mary for the first two and a half years of her life. Earlier, in 2009, a Title 9 action was initiated by DCPP against Mary and Dave, (FN-1), during which Iris and K.P. were removed from Mary's care and custody. After a fact finding hearing, an order dated August 30, 2010, stated both Mary and Dave had abused or neglected the children. Following that order, DCPP created a permanency plan where K.P. was to be returned to Mary and Dave was to be given custody of Iris.
To terminate the FN-1 case, the judge ordered Dave to file a separate complaint for custody of Iris, which he did. On March 3, 2011, a permanency plan went into effect and a custody order was entered giving Dave both physical and legal custody of Iris. Mary waived any appearance in family court, and DCPP consented to the transfer of custody of Iris to Dave. K.P. was returned to Mary's custody and FN-1 was terminated on May 16, 2011.
Both Mary and Dave filed appeals of the FN-1 order finding them guilty of abuse or neglect. Iris was still in Dave's custody when the altercation over the socks took place, and DCPP renewed its involvement in their lives with the filing of this second Title 9 complaint (FN-2). Meanwhile, Mary and Dave's appeals from the FN-1 order, now consolidated, remained pending.
DCPP opened an investigation after being notified about the sock altercation. Iris was still living with Dave at that time. When DCPP workers came to his home, Dave told them he would not let them in without a court order. On the same day, Mary allowed the workers into her home and discussed the altercation.
Following their initial investigation, DCPP filed FN-2. On April 20, 2012, Iris, who resided with Dave since March 2011, was removed from Dave's home. Custody was transferred to DCPP, pending a fact finding hearing on charges of abuse or neglect against both Mary and Dave. The judge stated both Mary and Dave appeared to be avoiding DCPP services and home inspections.
DCPP filed a complaint for care and supervision of K.P. and I.C., on April 11, 2012, against M.P. and D.C., in the Superior Court of New Jersey, Family Part, under Docket No. FN-16-165-12.
Throughout the proceedings that followed, Dave's statements on the record reflected his dissatisfaction with everyone involved. He accused DCPP of unfairly taking his child and refused to tell the judge or DCPP where Iris was located on the date custody was granted to DCPP. The judge asked Dave where Iris was located and threatened to hold Dave in contempt if he did not answer. Dave refused to answer, stating "I'm not going to sacrifice my daughter on [DCPP's] table one more time." The judge found Dave was in contempt of the court. As Dave was taken into custody for contempt, he stated on the record to counsel for DCPP, "[y]ou're going home to your kids, aren't you? I'm not going to sacrifice my daughter on this alter [sic] of new slavery. No. It's not happening. She suffered enough." Dave was confined in the county jail for three days. At a later court conference, Dave remarked off the record that the law guardian was like "Hitler." The court ordered Dave to apologize; he stated, "[i]f you're not Hitler[-]like, I'm very sorry about that, but, you know, that's the impression you make on me."
Mary on the other hand did not always cooperate, but was more cooperative with DCPP than Dave. However, she also expressed her disagreement on the record. Her counsel told the judge that Mary did not always allow DCPP workers in her home because she did not trust DCPP.
It is clear from the statements in the transcripts that both Dave and Mary believed DCPP and the court had been unfair to them. This belief was understandably reinforced by the rulings in their favor in their two prior appeals, which are discussed infra. More importantly, however, there were allegations that while in DCPP custody, during the FN-1 proceeding, Iris was sexually abused in her foster home. The lack of cooperation and the distrust both defendants asserted on the record stems from this unfortunate history.
While Iris was in foster care during FN-2, Dave called DCPP almost every day. At one review hearing, the judge told Dave that he did not have the right to constantly be on the phone with DCPP, or for him to have "24-hour-a-day oversight of [Iris]." Dave responded that the reason for his constant calls was that he did not feel his questions about Iris were being answered by DCPP.
Dave also repeatedly asserted the child needed more religious training. He and Mary are Jehovah's Witnesses and were concerned Iris was not learning scripture in accordance with the teachings of their religion. DCPP did eventually place the child in a foster home where the parties' religion was practiced.
While Iris was in foster care, Dave was only allowed one hour of supervised visitation and Mary was only allowed two hours of visitation per week. It was reported Iris regularly cried when she separated from her mother at the end of these visits. The law guardian also confirmed on several occasions that Iris wanted to live with her parents. Although Dave and Mary lived separately they shared time with Iris when FN-2 was filed.
At the request of DCPP, Dr. Donna LoBiondo performed a psychological evaluation of Iris on May 24, 2012, for approximately forty-five minutes, and subsequently wrote a report. Dr. LoBiondo stated she reviewed the DCPP's reports, including reports from pre-2012 court proceedings, 2010 and 2011 psychological evaluations of Mary and Dave, DCPP's investigation summary, the April 20, 2012 order to show cause, and the April 11, 2012 verified complaint.
As to Iris's mental status, Dr. LoBiondo stated that she "presents as an attractive and friendly child who smiled often and separated easily from her foster mother for evaluation." Iris greeted Dr. LoBiondo with a hug and "was mildly fidgety but not hyperactive." Dr. LoBiondo found her mood "cheerful and bright," but she appeared "sad and . . . anxious when discussing her parents' fights." She told Dr. LoBiondo that everyone in her foster home was nice. When asked by Dr. LoBiondo why her parents were fighting, Iris responded that they were fighting over socks, but her mother told her it was because they were no longer married. She recalled that they both hit each other; her mother held her father's nose and put her finger in his mouth, and then he bit the finger and it began to bleed. Iris recalled crying during the incident because she felt sad. She stated that she hated watching her parents fight and seemed upset her mother was hurt.
According to Iris, when she lived with Dave, they played with her toys and often went to church. She stated her mother did not play with her like her father did. According to Iris, she slept without nightmares. When asked who she wanted to live with, Iris said "everybody, and my mommy and daddy!"
Iris's IQ score was found to be 98, placing her in the average range. Dr. LoBiondo found that despite the problems at home, Iris loved her family. It was Dr. LoBiondo's opinion the fights between her parents made her sad and worried, which "are disruptive emotions that unduly burden and therefore interfere with crucial developmental tasks" in a child Iris' age. According to Dr. LoBiondo, "[r]epeated domestic violence episodes by the parents, especially in the child's presence, constitute a form of emotional abuse or psychological maltreatment." She concluded that Iris should not be returned to her parents before they were adequately rehabilitated, otherwise she would be at a high risk "for continued emotional abuse or psychological maltreatment."
After the Dr. LoBiondo report was written, but before it was received by the parties and before the fact finding hearing commenced, this court rendered a decision on the appeals filed by defendants in FN-1. We reversed the finding of abuse or neglect against Dave. In that prior litigation, the family court judge found Dave abused or neglected the children when he slapped Mary. The slap was heard but not seen by the older child, K.P. In our opinion, we found that this event was "stale" having occurred approximately five years before the FN-1 hearing. The findings of domestic violence, by the family court judge were declared by this court insufficient to prove abuse or neglect. We ordered the FN-1 complaint against Dave dismissed and the finding of abuse or neglect against him vacated. We note the slapping incident that was the focus of the DCPP allegations against Dave in FN-1 did not involve Iris as it appears she had not yet been born.
As to Mary, she was alleged to have provided inadequate housing for her children and not to have provided an adequate education for K.P., largely as a result of moving between Arizona and New Jersey. Iris was not of school age at that time. We reversed any finding of abuse or neglect against Mary based on domestic violence, but remanded to the family court for further findings of fact within thirty days on the issues of failure to provide a sufficient education to K.P. and adequate shelter for K.P. and Iris. The opinion was critical of what appeared to be an insufficient basis in the existing record for a finding of abuse or neglect on those issues also, at least without additional findings.
The FN-1 complaint was immediately dismissed as to Dave after our opinion was issued. However, there is no evidence in the record that further findings of fact were made as to the charges of abuse or neglect against Mary, nor that any order was entered by the court dismissing the finding against her. It appears that other than dismissing the complaint against Dave, the instructions of this court to the family court were ignored.
As stated above, FN-1 had been terminated by order before the appeal and FN-2 was in progress before the appellate opinion was issued. A different judge presided over the fact finding hearing in FN-2 than the judge who had ruled on the domestic violence complaint.
Prior to the fact finding hearing in FN-2, Dave requested to have another expert appointed to evaluate Iris in addition to Dr. LoBiondo, but DCPP objected. Despite the obvious conflict of interest, the judge ordered DCPP to obtain from Dr. LoBiondo an opinion as to whether another psychological exam would be detrimental to the child. Dr. LoBiondo opined in a letter, that repeated evaluations of children about domestic violence or abuse could traumatize them. The judge subsequently denied Dave's request for a second evaluation. At one point, the judge made a statement that perhaps an expert could be retained by the father solely to opine on whether a second exam would traumatize the child, but no further consideration was given to this option which would have further delayed a decision.
Whether to allow a second expert exam is a decision, involving consideration of both the welfare of the child and due process, which only the judge can make. Over-reliance on expert opinions, while comforting to a court, can also result in unnecessary delays in decisions involving children.
On September 7, 2012, DCPP filed an amended verified complaint for custody, care, and supervision of Iris, and named Mary and Dave as defendants. K.P. had been dismissed from the litigation because he turned 18. The amended complaint added allegations about Dave refusing to tell his attorney, DCPP, or the judge where Iris was on April 20, 2012.
The fact finding hearing was held on September 19, 2012. The first witness for DCPP was one of two officers called to the scene of the domestic incident on January 6, 2012. When he arrived, Dave, Mary, and Iris were present. According to the officer, Iris appeared upset about the domestic violence incident, although he also reported he thought she may not have understood what was going on.
The second witness was a DCPP worker who spoke with Iris about the January 2012 domestic violence incident a few days after it occurred. Iris disclosed to him she witnessed Mary and Dave fighting. When asked by the DCPP worker how she felt during the incident, Iris reportedly said she felt sad and cried. On cross-examination, the worker conceded that he did not ask Iris if that was the first physical fight she witnessed between her parents, but confirmed she spoke solely of the January 2012 incident.
The fact finding hearing continued on October 23, 2012. Dr. LoBiondo was qualified as an expert in psychology without objection.
Dr. LoBiondo testified about the psychological impact of the incident on Iris. According to Dr. LoBiondo, Iris was "forthright" and "very descriptive," leaving "no question" that she remembered the incident. Iris seemed particularly worried about her mother.
Dr. LoBiondo testified she could not come to a conclusion about the parenting abilities of Dave and Mary based upon her interview with Iris. However, she then testified that Iris was not in a position to return to her parents, because "the parents were not in a position to protect her and take care of her in a way that would help her through the trauma . . . she's undergone." After an objection, Dr. LoBiondo admitted that she needed evaluations with the parents in order to reach this conclusion and recommended evaluations be done.
Dr. LoBiondo's conclusion from her exam of Iris was that Iris suffered emotional harm as a result of witnessing domestic violence between her parents. According to Dr. LoBiondo, there was only one act of physical violence that Iris told her she witnessed. Iris told Dr. LoBiondo that her parents yelled "all the time," but Dr. LoBiondo conceded she did not probe this topic further. Dr. LoBiondo specified that she knew the family history, and she was concerned in part by the fact this was "the second removal for a similar reason," referring to the FN-1 litigation. The last witness was Dave, who described the altercation with Mary.
Dr. LoBiondo testified that she was aware the January 2012 incident was "not the first such incident in [the] family," she chose to limit the interview because "a child [Iris'] age" has a limited attention span.
The judge stated after the fact finding hearing:
Very simply, I find that the Division has proven by a preponderance of the evidence that . . . [Iris] is an abused and neglected child under [N. J.S.A. 9:6-8.46(a)] And I say that for the following reasons:
Because I believe that there was an altercation between [Mary] and [Dave] on the day in question. And notwithstanding the findings of [the prior judge] who listened to this matter, I have come to the conclusion that, in essence, both of these
parties engaged in eventually what one could term as mutual combat. Very simply, they were both injured. They were both arguing. [Mary] had an injury to her finger. [Dave] had an injury to his nose. Obviously, some altercation occurred. A serious altercation occurred. . . .
The judge acknowledged that one act of domestic violence in front of a child is usually not enough to prove abuse or neglect saying:
Now is one incident enough to find [Iris] to be abused and neglected? No. . . . But there is a history in this family . . . of domestic violence, which the child has observed. This family is familiar to [DCPP]. And, in this particular case, this child observed a very serious argument between the parents. . . .
There was an altercation between the parties on [January 6, 2012], and the court finds that both parties engaged in mutual combat while the child was present. The court finds that there is a history of domestic violence in this family in which the child has been a witness. According to Dr. Lo[B]iondo's testimony, the child has been clearly affected by the parent's turbulent relationship and their repeated altercations resulting in emotional abuse.
We set forth the applicable law and our conclusions regarding the decision by the judge to enter the order of October 30, 2012, finding both defendants guilty of abuse or neglect. Following that, we will discuss the transfer of custody.
First, we address the argument that the judge's finding at the February 6, 2012 domestic violence hearing that Dave was not guilty of domestic violence should have estopped the FN-2 judge from holding a hearing on the charge of abuse or neglect based on the same incident. The doctrine of res judicata "contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation." Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960). "The application of res judicata doctrine requires substantially similar or identical causes of action and issues, parties, and relief sought." Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). There also must be a "final judgment by a court or tribunal of competent jurisdiction." Charlie Brown of Chatham, Inc. v. Bd. of Adjustment, 202 N.J. Super. 312, 327 (App. Div. 1985).
Here, the parties were not identical as DCPP and Iris were not parties to the domestic violence litigation. The disputed issue was also different, as domestic violence and abuse or neglect are different causes of action brought under different statutes. Because the parties and issues were different, we conclude the prior ruling on the domestic violence complaint did not preclude the judge from holding the hearing on abuse or neglect. However, we note that conflicting findings on the credibility of witnesses' description of an event by different judges can create a question in litigants' minds as to the fairness of legal proceedings and should be avoided when possible. The hearing, however, was not barred by the prior proceeding.
We turn to Dave and Mary's challenges to the sufficiency of the evidence presented at the fact finding hearing, to determine whether DCPP sustained its burden of proof. We recite the legal standards governing this issue.
A court must decide at the fact finding hearing "whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. DCPP "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). "[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). "The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence. However, corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence 'need only provide support for the out-of-court statements.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).
The relevant statute defines an "[a]bused or neglected child" as
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.
[N. J.S.A. 9:6-8.21(c)(4)(b).]
When we review an order finding that a child has been abused or neglected, our review is deferential. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). We will uphold the decision of a Family Part judge if the decision is supported by sufficient credible evidence in the record. Id. at 342.
Here, we conclude the evidence in this record does not support the judge's conclusion, which adopted Dr. LoBiondo's opinion. The expert in reaching her opinions, and the judge in reaching his decision relied upon a history of abuse or neglect and domestic violence that was not in evidence. The expert explained her opinions were influenced by this "history of domestic violence," which had previously resulted in removal of the child, but the previous finding of abuse or neglect involved K.P. allegedly receiving inadequate schooling and the children living in an inadequate shelter. Although we remanded for findings of fact on those allegations, no findings were ever made. As to the previous domestic violence episode, we found it was "stale," and we reversed the domestic violence finding. Most significantly, only the alleged inadequate shelter allegation involved Iris. Therefore the judge's finding "there is a history of domestic violence in this family in which the child has been a witness" is unsupported by the evidence in this record and cannot be sustained.
While there was some evidence that the parties regularly shouted at each other, there is no credible evidence that this rose to a level of abuse or neglect or caused any harm to Iris. Dr. LoBiondo describes a happy loving child who has no nightmares and no signs of emotional trauma, other than feeling sad when asked to discuss her parents' disputes. If arguing in front of a child is sufficient to support a finding of abuse or neglect, a large percentage of parents could be adjudged guilty of the same. We recognize that in an extreme case, repeated verbal abuse by one parent against another parent might result in harm to a child, but the evidence does not support that conclusion in this case.
We also recognize that one episode of violence if sufficiently intense and traumatic committed in front of a child may be enough to find abuse or neglect. However, usually one episode of domestic violence in front of a child is not enough to result in a finding of abuse or neglect. Certainly it was not enough here where the child exhibited no signs of fear of either parent and no signs of distress except when specifically asked about the single incident of violence. See N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-23 (2004), (stating a mother who was holding her young child while she was being choked and punched did not commit abuse or neglect because there was no evidence in the record that the child, by witnessing the incident, suffered emotional damage), certif. denied, 182 N.J. 426 (2005).
We conclude DCPP failed to prove Mary and Dave were guilty of abuse or neglect. We reverse the October 30, 2012 order finding them guilty. In light of the fact that no findings of fact were ever placed on the record substantiating abuse or neglect against Mary in the 2010 litigation, we find the prior order under FN-1 must be vacated as to her as it was to Dave. Both parents' names should be removed from the registry.
The FN-2 litigation involving Dave and Mary continued after the fact finding hearing determining abuse or neglect. Iris remained in the custody and care of DCPP with both parents requesting they be given custody. We now review defendants' challenges to custody orders entered during the dispositional phase of the litigation.
On April 4, 2013, Mary and Dave appeared before the judge who began the hearing by stating he was going to reunite Iris with Mary, with visitation for Dave. DCPP's counsel objected, because she felt further assessments were needed, and Dr. LoBiondo did not have availability to meet with the parents for a few months. Dr. Miller, another psychologist DCPP frequently consults with, had availability the next month. The judge determined the evaluation would be performed by Dr. LoBiondo. When asked whether he consented to Mary having custody of Iris, Dave responded "I'm not objecting at this . . . time." Dave confirmed that nobody was "forcing . . . or threatening" him to make the decision. However, he asserts on appeal that although he did not object, he never consented to Mary having custody because he always requested he be awarded custody. Clearly both parents wanted Iris removed from DCPP's custody. According to the April 4, 2013 order entered by the judge, DCPP continued to have care and supervision of Iris, but legal and physical custody was transferred to Mary. Both Mary and Dave were in need of counseling according to Dr. LoBiondo's recommendations, but only Dave was ordered to attend counseling and therapy. Dave continued to have limited supervised visitation. Educational assistance services were to be placed in Mary's home, and she was required to allow DCPP to continue with inspections. Dave was restrained from going to Iris's school or Mary's residence. The court noted that DCPP objected to Iris's reunification with Mary. The judge, however, found that Iris could be with Mary because she had "complied with all recommended services and has presented positive reports from service providers."
Another compliance review was held on June 12, 2013. DCPP's counsel asserted that since Iris had been in Mary's custody, Mary refused to allow workers into her home, and removed Iris from kindergarten. Mary said she would probably homeschool Iris, but did not provide DCPP with a curriculum plan. DCPP asked that Iris be returned to its custody. Dr. LoBiondo provided a letter stating she did not feel she could be a neutral evaluator given her contact with DCPP in this case and because Mary was not complying with DCPP. Dr. Miller, however, was available to evaluate the parents the next day.
Mary's counsel represented that Mary did not trust DCPP. However, Mary contended she had allowed service providers into her home on several occasions. As to schooling, the school year was about to end. She had not made a final decision about whether to homeschool in the fall. She had experience homeschooling her son up through the eleventh grade.
It was at this conference that Dave made his reference to "Hitler." The judge stated on the record that Dave's outrageous comments did not mean he could not parent Iris, however as our colleagues noted in the second appeal in this matter, the judge seems to have lost his composure, abruptly asserting that Iris was "not going back to either [Mary or Dave] today." Pursuant to the order entered on June 12, 2013, legal and physical custody of Iris was transferred back to DCPP without a hearing. Visitation, as well as restraints on Dave, remained the same. Mary and Dave were ordered to attend psychological evaluations with Dr. Miller the next day. Additionally, Dave was to attend an anger management program arranged by DCPP and was ordered to obtain stable housing. Dave's counsel was relieved of her duties at his request at the June 12 hearing, because he did not believe he could afford contributing $25 per hour toward her fees as assigned counsel.
Another compliance review hearing was held on September 10, 2013. Mary appeared with counsel and Dave appeared pro se. The judge stated that according to reports, Mary had not opened her door when the DCPP visited and Dave did not comply with the court's orders. Dave responded that he would comply with recommendations and court orders once his daughter was returned to him or after an appellate court found him to have neglected or abused his child. The judge was advised that DCPP workers had filed a complaint against Dave for making terroristic threats, alleging that he made an implied threat to bomb their office if Iris was not returned to him. Dave denied knowing about any such complaint.
Dave acknowledged he still did not have a residence suitable for Iris. Iris was living with her maternal grandmother, but the grandmother was unwilling to make a long-term commitment to care for her. Iris had been in placement sixteen of the previous twenty-two months. DCPP stated it was moving toward requesting termination of parental rights, and the parental grandmother might be the "best option."
The judge stated Iris was in Dave's custody for some time before the January 2012 incident, and there had been no previous issue before January 2012. He also noted that many parents have custody of children despite having bizarre ideas and making threats. In response, DCPP's counsel stated the court should consider Dave for possible placement only if he secured stable housing. Mary's counsel again argued that she had complied with services and Iris should be returned to her.
At the conclusion of the review, custody remained with DCPP. Another compliance review and permanency hearing was held on November 19, 2013. Prior to the hearing, Mary completed a psychological evaluation. Dave also began his evaluation, but it was delayed because Dr. Miller believed Dave was tape recording him. The written report on the evaluation of Mary had not been completed. DCPP requested termination of parental rights.
The judge stated he would permit the filing of a guardianship proceeding, but would also continue the FN-2 matter, pending a decision on whether Iris could return home to one of the parents. The law guardian stated she agreed with the plan to keep both cases open and wait for written reports on the psychological evaluations to be completed. Mary's counsel argued there were no safety issues or substance abuse issues, so Iris should be returned home to her mother.
Dave asserted that he complied with all the orders of the court, specifically regarding psychological evaluations and housing. He claimed to have spoken with social services, and was told he would not receive housing assistance until he had a court order indicating that Iris would be returned to him. The judge stated that this "Catch 22" housing situation was common in these cases. He suggested he was leaning toward reunification with Dave, but was concerned Dave had no adequate housing.
Ultimately, the judge left open the possibility of returning Iris to one of the parents' homes. He found that it would not be safe to return Iris home in the foreseeable future because psychological evaluations had not been received and Dave did "not yet have stable housing."
Physical and legal custody of Iris was ordered to continue with DCPP. The court ordered docket numbers FN-16-165-12 (FN-2) and FG-16-32-14 remain open concurrently "only until" the court received the psychological evaluation and recommendations from Dr. Miller.
On January 2, 2014, another hearing was held. Counsel for DCPP cited to Dr. Miller's report, and his opinion that Iris was "triangulated" between the parents, explaining that both parents had personality disorders that impaired their ability to parent, and they were more interested in hurting each other than caring for Iris. Dr. Miller concluded reunification with either parent would not be in the best interest of the child at that time.
Mary's counsel objected to the discussion of Dr. Miller's report, because the expert was not in court to testify. The judge, without any analysis of the rules of evidence, stated that he would consider the report, but would not base his decision "solely" on it.
Dave again asserted he could find housing as soon as he had a custody order. Mary noted that there were factual mistakes in Dr. Miller's report, including her age. She also argued that he was biased against her and relied upon misinformation provided by DCPP.
At this point the judge vented on the record that the case began as a domestic violence problem which had already resolved. He also acknowledged that one or two domestic violence incidents do not typically result in permanent emotional damage to a child. Echoing in large part Dr. Miller's opinion, despite the fact he had not heard his testimony, the judge tentatively concluded Iris should not be returned to either parent. The judge stated:
The prognosis in this case is poor that either parent will be able to make sufficient use of services in order to
rehabilitate for mental deficits or pathological interpersonal functioning in a timely fashion.
Neither parent has demonstrated minimal parental capacity to provide consistent care . . . for this child. And both have demonstrated primary motivation to control or to take the high moral ground from the other [former] partner.
. . . .
They use [Iris] as a source of control of the other. Both demonstrate a personality disorder that has significantly impaired their parental capacity to provide safety, consistent care and sensitive . . . responses for their daughter.
They appear primarily motivated to harm or hurt the other parent and unable or unwilling to consider how their behavior has been destructive to [Iris's] development and security, emotional and social and academic development.
. . . .
So, the problem on one hand the problems that brought this case here are alleviated, kind of don't exist anymore, or don't rise to that level of abuse or neglect.
On the other hand, I have a doctor that basically says they're not emotionally capable of raising this child.
. . . .
Now, I indicated this morning that I was not going to base my decision solely upon this report by Dr. Miller. I am considering it, but I'm considering it along
with all the other information that I'm aware of in this case.
Including erratic behavior by [Mary], inappropriate behavior by [Dave] with respect to his threats to the Division and how he would, he has indicated that he will not comply with services until his daughter's returned to him, or not get housing until his daughter's returned to him because there's no need for him to do that. And it's the tail wagging the dog type of situation which is inappropriate here.
. . . .
I can conclude here very easily that the . . . findings by Dr. Miller in actuality support my observations of both defendants, and support my knowledge of their actions in this case, both with the Division, with their daughter and with each other.
And his report does concern me. Are there a lot of people that are like this [narcissistic] out there? I said that before; yes. But in my opinion, I think [Mary] and [Dave] just maybe take it one step further.
I'm really concerned with [Mary's] interview. She says [she has] a real estate license. In further questioning, she denied having a real estate license and described a course in real estate. I own my own business, Oasis Reflexology, but she could provide no further detail regarding her business including location or purpose of her business. And then I was a private investigator but I don't even remember the year.
. . . .
With respect to [Dave], he was less than forthright and only answered when he thought it was appropriate for him, or what he believed to be would be beneficial for him to answer.
. . . .
I'm reluctant to do so, because it's not the reason why the case came here, but I believe that there's enough in Dr. Miller's report for me to come to the conclusion that it would not be proper to return this child to either one of the parents at this time.
. . . .
Now, the next court . . . can send it back to me if either one of you do what you're supposed to do. Okay?
But right now, the bottom line is also that I have to consider permanency for your child. It's been too long.
. . . .
But at this point in time, the child needs permanency and I don't think . . . it would be appropriate at this time for her health, safety and welfare to be with either one of the parents at this time.
Mary asserts that she did own a business called Oasis Reflexology and provided all the related information to Dr. Miller. Her counsel made it clear to the judge that she disputed the facts underlying Dr. Miller's opinion.
An order was entered terminating the FN-2 litigation and a new complaint was filed, docketed under FG-16-32-14. Custody of Iris remained with DCPP.
On February 12, 2014, appeals were filed by Dave and Mary attacking the sufficiency of the evidence relied upon by the trial judge in ordering removal. In an opinion filed on February 27, 2014, the Appellate Division reversed and remanded on Mary's challenge to the June 12, 2013 court order removing Iris from her home without an evidentiary hearing. We found that once Iris was returned to Mary, "any subsequent change in custody must again be subject to" the same statutory requirement necessary for the initial removal, "the court must find that to place the child in the parent's custody and care 'presents an imminent risk to the child's life, safety or health.'" N.J.S.A. 9:6-8.32. While we noted that parents must comply with DCPP offers of services, we also stated that DCPP advanced its argument that Mary was non-compliant based solely on the contentions of counsel, without testimony. We concluded that even if the allegations of non-compliance were true, "such evidence did not demonstrate [Iris's] health, safety or life were in jeopardy or that DCPP engaged in reasonable efforts to prevent [Iris's] removal from her home."
The Appellate Division opinion noted that the family judge should not overlook Mary's disregard for court orders. However, we directed the family court to consider alternative ways for Mary to take advantage of DCPP's offers of services that might not involve repeated visits to her home.
The opinion also stated it was necessary to "remind the trial judge to avoid conclusory findings and of the necessity to state with specificity factual findings related to the defined legal standards that support any entered order." We vacated the June 12, 2013 order, and we remanded for an evidentiary hearing to determine whether Iris should be removed. The family court on remand scheduled an evidentiary hearing for April 22, 2014, but an emergent hearing was held on April 1, 2014, at the request of Mary's counsel.
At the hearing, the judge first explained to counsel his belief that the February 2014 Appellate Division decision merely stated that an evidentiary hearing should have been held, not that the decision to change custody was wrong. Mary's counsel, however, noted that the opinion questioned whether even if all the assertions were accepted, they were sufficient to demonstrate that Iris's health, safety, or life were in jeopardy, or that DCPP engaged in reasonable efforts to prevent Iris's removal from Mary's residence. The judge then concluded that the Appellate Division opinion found his decision was wrong, and Iris should not have been removed. Dave argued that based on the Appellate Division's logic, Iris's prior removal from his care was even less justified. Dave stated he did not object to having Iris returned to Mary's care; but nonetheless he believed Iris should be returned to him.
The judge then stated that the June 2013 order was vacated, but he had concerns because of Dr. Miller's November 2013 report. He determined that the February 2014 Appellate Division decision meant a return to the April 2013 status quo with Iris placed back with Mary saying:
My order is vacated and that means to me that we go back to the status quo. Which is in April of [2013] so [Iris] goes back to [Mary] today . . . . [The Appellate Division decision] said the order is vacated.
That means the entire order is, has no force and effect. That means to me [Iris] goes back to [Mary.]
And then to have a hearing, and we have that scheduled, to determine whether or not at that point after hearing all the evidence, based on what I heard that day, I should . . . back in June, I should take the child again.
And I may or may not; depends on what I hear.
In an order, legal and physical custody of Iris was transferred to Mary. Restraints against Dave continued and he was given limited visitation. Mary was also ordered to allow DCPP continued monthly inspections and was to ensure the child was being properly educated.
On April 22, 2014, the judge held the final hearing. DCPP stated that a resolution had been reached and it no longer sought custody of Iris, but wanted to continue care and supervision. The law guardian was "adamantly opposed" to holding an evidentiary hearing stating Iris needed stability and she was worried that Iris would become a "ping pong ball." The judge stated he was inclined to dismiss the case.
Dave objected to Iris remaining with Mary because he originally had custody before DCPP filed FN-2; therefore, she should be returned to him. The judge responded he was not giving Dave custody unless he had a suitable residence. He also advised Dave he could file a complaint for custody or visitation.
Dave also expressed his concern that Mary was not committed enough to being a Jehovah's Witness to raise Iris properly. --------
The judge issued an order terminating the litigation, over the objections of both the DCPP and Dave. Iris had been returned to the custody of Mary, and the court found she was "not in danger or at risk of danger."
On June 4, 2014, Dave appealed the November 26, 2012 fact finding and the order terminating litigation and awarding custody to Mary; Mary appealed the November 26, 2012 fact finding order, perfected by the order terminating litigation and awarding custody to her. On April 10, 2015, a motion by Mary for leave to file a brief in opposition to Dave's request for a remand on the issue of custody was granted.
We address the legal principles that apply to the issue of whether Dave is entitled to a remand for an evidentiary hearing on the issue of custody as between himself and Mary. Following a finding of abuse or neglect, an offending parent or guardian is entitled to a dispositional hearing to determine if the children can safely be returned to his or her custody. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88 (2009). Parents have a constitutionally protected right to keep a relationship with their children, but these rights are not absolute. Id. at 397. Following a fact finding hearing where abuse or neglect is found, "[a] dispositional hearing must be held to determine the appropriate outcome of the case." Id. at 399.
When FN-2 was filed, Dave had custody of Iris. He argues that since Iris was subsequently removed from his home, she should have been returned to him or a dispositional hearing should have been held as required by G.M. to determine who should be awarded custody of Iris.
Mary urges us to conclude Dave waived his right to a hearing when he did not object to custody being transferred from DCPP to Mary during the April 2013 conference. We cannot conclude that Dave knowingly waived his right to this hearing when he failed to object to Iris being transferred from the custody of DCPP to Mary in April 2013. At that point, a dispositional hearing was still planned. Dave did object at the final hearing to Mary getting custody of Iris and the litigation ending without a dispositional hearing.
When the judge dismissed the FN-2 and the guardianship litigation he stated on the record Dave could file for custody in family court. This placed Dave in the position of having to prove a change in circumstances in order to have custody transferred. Dave went from having custody of Iris to having extremely limited visitation rights without an evidentiary hearing on the issues.
There has never been a hearing in the years of litigation to determine custody and visitation based on the best interests of the child. We conclude that all prior findings of abuse or neglect as to Dave and Mary must be vacated. DCPP did not appeal the dismissal of their actions so the only issue is which parent should have custody of Iris.
The Assignment Judge shall assign the case to a judge who has not previously been involved in the litigation. The judge assigned this case shall hold an initial conference with the parties within two weeks of assignment. At that conference, a date shall be scheduled for a hearing to determine the parents' custody and visitation rights. Both parties shall be advised that they can testify on that date and must produce on that date any witnesses they wish to testify. There shall be no consideration by the trial judge of the prior psychiatric evaluations unless new experts are allowed by the court to testify. We doubt that any experts are required since the issue is no longer whether the defendants are fit to parent but which one should have custody and what visitation is appropriate.
Instead of a court ordered evaluation of Iris, she shall have the opportunity to be interviewed by the judge and any expert evaluation of her should only be ordered if the judge then deems it necessary. We normally would not be so specific in our directions, but we conclude it is essential for there to be a prompt and fair resolution of this matter based on its history.
We do not suggest in any way what the outcome of the hearing should be and leave it to the judge to make whatever decision he or she deems is in the best interest of the child. The decisions that have been made up to now on custody have been made without the benefit of a full hearing. The judge should view these prior decisions as non-binding. Additionally, there is no requirement there be proof of changed circumstances to change custody if it is determined to be in the best interest of the child. This does not mean the judge cannot consider the circumstances that currently exist and the impact of any change on Iris.
If the parties consent to a custody agreement based on a non-dissolution complaint, then a dispositional hearing may not be necessary. See N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 297-300 (App. Div.) (holding that where a father and mother agreed to joint custody in a family non-dissolution case, there was no need for a dispositional hearing), certif. denied, 218 N.J. 275 (2014). Because of the difficult and complicated history of this case, any agreement must be reviewed with the parties in open court and the terms placed both in a written order and on the record. The judge shall take both defendants' testimony under oath to ensure the agreement is voluntary, and that they are waiving the right to a hearing and understand the order will be final. Absent such an agreement, the evidentiary hearing shall proceed as ordered.
Reversed and remanded for proceedings in accordance with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION