Opinion
DOCKET NO. A-1391-13T2
02-23-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.M., Defendant-Appellant, and I.E., Defendant-Respondent. IN THE MATTER OF C.E., E.E., A.E., and T.E., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant T.M. (Beth Anne Hahn, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kathryn A. Kolodziej, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent I.E. (John A. Salois, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors C.E., E.E., and T.E., (Lisa M. Black, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor A.E. (Noel Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0096-13. Joseph E. Krakora, Public Defender, attorney for appellant T.M. (Beth Anne Hahn, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kathryn A. Kolodziej, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent I.E. (John A. Salois, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors C.E., E.E., and T.E., (Lisa M. Black, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor A.E. (Noel Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant T.M. ("Mother") and defendant I.E. ("Father") are unmarried and have four children: C.E. ("Charles"), E.E. ("Emily"), A.E. ("Anthony"), and T.E. ("Tammy"). The Division obtained care and supervision, but not custody, over all four children in litigation under the FN docket. Mother appeals from the Family Part's October 1, 2013 order terminating the FN litigation. She argues that the litigation resulted in the transfer of custody of the children to Father without a G.M. hearing. As the trial court transferred custody without affording a hearing, we reverse and remand for further proceedings consistent with this opinion.
We utilize initials for the parents and pseudonyms for the children to protect the parties' privacy and for ease of reference.
The FN docket "consists of abuse and neglect matters[,]" while "[o]ther docket types include: "FD, which consists of child custody, visitation, child support, paternity, medical support, and spousal support in non-divorce matters;" and "FM, which consists of divorce, marriage nullity, and separation maintenance matters." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 22-23 n.3 (citing Admin. Directive #08-11 (Aug. 15, 2012); Admin. Directive # 16-83 and 14-83 (Sept. 30, 1983)), cert, denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013).
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009) (holding that, after a finding of abuse or neglect, "[a] dispositional hearing must be held to determine the appropriate outcome of the case." (citing N.J.S.A. 9:6-8.50)).
I.
This action arose out of an incident on November 11, 2012. As of that date, Charles was twelve, Emily was eleven, Anthony was ten, and Tammy was nine. Mother and Father shared joint legal custody of all four children, and all four children resided at Mother's house while Father lived elsewhere.
Plaintiff Division of Child Protection and Permanency ("Division") first became involved with the family in 2000. Mother and Father have an extensive history of filing criminal complaints and Division referrals against one another. The record indicates there had been sixty-three unfounded Division referrals, mostly involving altercations between Mother and Father, and claims of domestic violence, substance abuse, and abuse or neglect. The Division substantiated only one prior referral of abuse or neglect, involving a 2005 allegation of sexual abuse of Anthony by Mother's brother.
As a result, Mother's brother was incarcerated for six years.
On November 11, 2012, after an argument with Mother, Anthony allegedly attempted to commit suicide. He was not seriously injured, but, as a result, Anthony moved into Father's apartment. On November 16, 2012, Father filed an order to show cause and was granted "temporary residential custody" of Anthony under an FD order. The Division substantiated allegations of abuse or neglect against both Mother and Father based upon the Division's conclusion that each parent failed to appropriately respond to Anthony's suicide attempt. On January 3, 2013, the Division filed a complaint pursuant to N.J.S.A. 9:6-8.21 ("Title 9") and N.J.S.A. 30:4C-12 ("Title 30") for care and supervision of all four children.
At the order to show cause hearing on January 16, 2013, and again at the compliance review on March 22, 2013, Mother expressed no objection to ongoing care and supervision by the Division. Due to Father's substitution of legal counsel, the trial court held a Title 9 fact-finding hearing against Mother, alone, on June 11, 2013. At the conclusion of the hearing, the trial court found that Mother had abused or neglected Anthony. However, the next day the court reversed itself, and entered an order finding that Mother had not abused or neglected Anthony. The court determined that "this family is in need of services," and converted the proceedings against her to a Title 30 action.
Before the next scheduled court date of July 5, 2013, Mother was arrested for violating a restraining order, and ultimately served seven weeks in jail. Although it is unclear the extent to which the Division was involved in the transfer, the three remaining children moved in with Father. Mother's attorney later represented that Mother had requested that the Division place the children with their maternal grandmother instead of with Father.
In order to obtain support from the Board of Social Services, Father sought an order granting him custody of all four children. Mother's attorney took "no position" on behalf of his client, as he was unable to contact her, and could not confirm her position. On July 5, 2013, with the consent of the Division and the Law Guardians, but without a hearing or consent from Mother, the trial court entered an order ("Custody Order"), under the FN docket, transferring "residential/physical custody" of all four children to Father. The order did not reflect that it was interim or temporary.
Father's Title 9 hearing occurred on August 8, 2013. The trial court denied a finding of abuse or neglect, and converted the proceedings against Father to a Title 30 action. At the end of the hearing, Mother's counsel raised the issue of ongoing physical custody, arguing that the Custody Order was invalid, and that Tammy, Charles, and Emily should return to Mother's physical custody. The trial court deferred the issue until the following hearing.
In the meantime, the Division moved for reconsideration of the court's abuse or neglect finding regarding Mother. The trial court heard and denied the Division's motion on October 1, 2013. Mother had recently moved to Tennessee, and was not present in person, but her attorney again raised the physical custody issue with regard to Tammy, Charles, and Emily. In response, the Division moved to dismiss the case, arguing that all four children were happy and stable in Father's care and custody. The court, relying on the fact that it had converted the case to a Title 30 action, and that Father had joint legal custody, found that Mother was not entitled to a G.M. hearing, and noted that Mother could try and regain physical custody by filing a separate proceeding under an FD docket.
This appeal followed. On appeal, Mother argues that: (1) the trial court erred by continuing the Division's intervention under Title 30 without an evidentiary hearing; (2) absent consent or a hearing, the court lacked authority to indefinitely change physical custody of Tammy, Charles, and Emily; and (3) the court erred by failing to grant a G.M. hearing. The Division does not cross-appeal from the order finding that Mother did not abuse or neglect her children.
II.
We defer to family court fact-finding, and the "conclusions that logically flow from those findings[.]" I.S., supra, 214 N.J. at 32 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, where the issues are purely legal, we apply a de novo standard of review and give no special deference to the trial court. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
A.
As to the trial court's continuation of the case under Title 30, Mother raises this argument for the first time on appeal. Accordingly, it falls under the plain-error rule, and we will not reverse unless the error is "clearly capable of producing an unjust result." R. 2:10-2.
The Division "usually pleads Title 9 and Title 30 claims concurrently in order to facilitate the efficient processing of assistance to the family[.]" I.S., supra, 214 N.J. at 31. Title 30 allows the Division to intervene on a temporary basis in order to protect children and "effectuate services to children in need[,]" and reflects the Legislature's intent to permit the Division to "obtain custody, care, or supervision of a child[,]" whether or not "a finding of abuse or neglect is established under Title 9[.]" Id. at 33.
In order to obtain care and supervision under Title 30, the Division must demonstrate that intervention is in the best interests of the child. Id. at 34-35. Court-mandated intervention cannot exceed six months unless the court, "upon application by the [D]ivision, at a summary hearing held upon notice to the parent, . . . extends the time of the order." N.J.S.A. 30:4C-12.
Here, although the Division filed a Title 30 action, Mother consented to the Division's care and supervision on January 18, 2010. The court continued care and supervision, without objection from either parent on March 22, 2013, and the Division remained involved for the following eight months, until October 1, 2013. In the four hearings held during that period, Mother never rescinded her consent, and instead zealously argued that the matter should continue beyond October 1, 2013, in order to hold a G.M. hearing.
At the conclusion of each of the hearings on June 11, 2013, and August 8, 2013, the trial court issued orders renewing the Division's care and supervision of the parties' children. Although the court never explicitly addressed the best interests of the children regarding the Division's continuing care and supervision, the Title 9 fact-finding hearings and frequent custody reviews effectively satisfied the purpose of the six-month summary hearing requirement of Title 30.
Moreover, the record overwhelmingly supports the conclusion that continuing Division involvement was necessary. In addition to the clear need for counseling, Mother was first evicted from her home, and was then incarcerated for seven weeks. Therefore, any failure to explicitly address ongoing Division care and supervision was not "clearly capable of producing an unjust result[.]" R. 2 :10-2.
B.
We conclude that the ex parte Custody Order and denial of a dispositional hearing was improper. The court lacked the requisite statutory authority under Title 9 or Title 30 to effect the transfer of custody that occurred here, and otherwise failed to perform the changed-circumstances analysis required in an independent custody proceeding.
Title 9 provides that the Division can "become involved against the wishes of a parent when a child is abused or neglected." I.S., supra, 214 N.J. at 14 (citing N.J.S.A. 9:6-8.21). Prior to a Title 9 fact-finding hearing, "[i]f a child's life or health is in imminent danger, the authorities may temporarily remove the child from the offending parent or guardian." G.M., supra, 198 N.J. at 397 (citing N.J.S.A. 9:6-8.27(a), -8.29). Thereafter, the offending parent may apply at any time for return of the child, "which should be granted unless there is 'an imminent risk to the child's life, safety or health.'" Id. at 398 (quoting N.J.S.A. 9:6-8.32).
If the court makes a finding of abuse or neglect, it maintains jurisdiction in order to hold a dispositional G.M. hearing "to determine the appropriate outcome of the case." Id. at 399 (citing N.J.S.A. 9:6-8.50). At that hearing, the court may:
[E]nter 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).Transfer of physical custody to a parent with joint legal custody constitutes such a placement under Title 9. Id. at 404-05.
[Id. at 399-400.]
Under Title 30, the Division may temporarily place a child under its care and supervision. N.J.S.A. 30:4C-12. This involvement may include physical removal and Division custody. Ibid. However, as previously discussed, Division intervention under Title 30 is not indefinite, and the court can only temporarily grant physical custody to the Division in six-month intervals. Ibid.; I.S., supra, 214 N.J. at 37-38.
Finally, "a noncustodial parent . . . 'may always initiate a request for a change in custody,' which involves a changed circumstances inquiry and, ultimately, becomes a best-interests analysis." I.S., supra, 214 N.J. at 40 (quoting G.M., supra, 198 N.J. at 402 n.3). If a parent brings such an application during the pendency of a Title 9 or Title 30 action, it is preferable for the trial court to adjudicate the custody dispute as a separate action. Id. at 41.
However, in I.S., supra, 214 N.J. at 41, our Supreme Court found that "[w]hen custody issues become intertwined with child-protection actions, then dispositional questions that lie at the intersection of the two matters" can become complicated by subsequent developments. Id. at 41. In such cases, the then-existing circumstances may preclude strict adherence to procedure, and the court can consolidate a Title 30 dispositional hearing with related custody matters. Id. at 41-42.
Here, the trial court entered the Custody Order under the Title 9 and Title 30 FN docket. The court never held a dispositional hearing, or performed a best-interests analysis. Furthermore, although the trial court here stated that Mother could obtain a hearing by instituting a new custody action, such a hearing would depart significantly from the consolidated hearing approved in I.S. Notably, Mother would not be entitled to representation by the Office of Parental Representation.
C.
We therefore turn to the appropriate remedy for the failure to afford Mother an opportunity for a hearing regarding the custody issue.
While Mother's "rights are fundamentally important, they are not absolute, and must be balanced against the State's . . . responsibility to protect the welfare of children." G.M., supra, 198 N.J. at 397 (citation and internal quotation marks omitted). Accordingly, we take note of the following subsequent developments. First, the children have apparently been happily living with Father for over eighteen months. Second, Mother does not seek physical custody of Anthony at this time, so granting her physical custody of the remaining children would necessarily isolate them from Anthony. Third, and most importantly, Mother moved out of the State, and, unless she is prepared to return, could not bring the children with her without Father's consent or a successful removal application under N.J.S.A. 9:2-2 and Baures v. Lewis, 167 N.J. 91, 116-17 (2001).
Given these subsequent developments, as well as the fact that by entering the Custody Order under the FN docket, the trial court inextricably intertwined the Title 30 action with independent custody issues, we conclude that the consolidated hearing approved in I.S. is also appropriate here. The trial court must first decide whether the "children may safely be released to the custody of their mother[.]" G.M., supra, 198 N.J. at 402. If so, then the court must next determine whether changed circumstances and the children's best interests nevertheless require that Father retain physical custody. I.S., supra, 214 N.J. at 22.
If Mother still resides out of the State, then she may also apply to remove the children under N.J.S.A. 9:2-2 and Baures, supra, 167 N.J. at 116-17.
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Lastly, N.J.S.A. 9:6-8.43 provides that a parent has a right to legal representation in Title 9 actions. Moreover, the State must provide legal counsel to indigent parents whenever the Division temporarily or permanently transfers custody. Ibid.; N.J. Div. of Youth & Family Servs. v. R.G., 397 N.J. Super. 439, 449-50 (App. Div. 2008). Given the extent of the State's involvement in the ongoing physical custody of the children here, we find that either parent, if indigent, is entitled to court-appointed counsel for the entirety of the remand hearing.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION