NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.C.



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5844-05T45844-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.C.

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF S.C. AND J.C.,

Minors.

____________________________________


Submitted December 13, 2006 - Decided January 16, 2007

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

FN-02-143-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel

and on the brief).

Stuart Rabner, Attorney General of New Jersey,

attorney for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel; Frances

McGrogan, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian

attorney for minors, S.C. and J.C. (Cynthia McCullouch

DiLeo, Designated Counsel, on the brief).

PER CURIAM

K.C. appeals from a May 25, 2006 order of the Family Part dismissing the Title 9 abuse and neglect action against her but awarding the natural father, F.C., physical custody of their two children, S.C. and J.C. We affirm.

The facts are not in dispute. K.C. and F.C., since divorced, are the parents of two sons, S.C., born July 23, 1999, and J.C., born May 9, 2001. Although the Division of Youth and Family Services (DYFS) had prior involvement with this family, the most recent referral concerned a report by F.C. on January 9, 2005, that K.C. had struck five-year old S.C. with a hairbrush on his chest, leaving a bruise. Upon investigation, including an interview with S.C. who reported his mother hit him often, DYFS substantiated an act of abuse and neglect by K.C. and consequently filed a complaint and order to show cause for supervision on January 13, 2005. The Family Part judge continued both children in F.C.'s legal and physical custody and ordered K.C.'s contact with them to be supervised. On the return date, January 20, 2005, K.C. who had earlier agreed to placing both children with their father, stipulated to an act of child abuse within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b), by hitting S.C. with a brush, causing bruises. The court ordered DYFS to arrange for psychological evaluations of all family members, a psychiatric assessment of K.C., medical evaluations of the children, and Red Cross parenting classes for K.C. Contact between K.C. and both children remained supervised.

The court maintained jurisdiction and supervision over the family for a period of more than sixteen months, holding seven subsequent hearings culminating on May 25, 2006. In the time prior to this hearing, both parents complied with all court-ordered services, including psychological evaluations, psychiatric assessments, parenting classes and individual and family therapy. On October 20, 2005, the court ordered unsupervised visitation between K.C. and J.C. upon recommendation of J.C.'s therapist, but ordered DYFS to continue to supervise visits between K.C. and S.C., who continued to receive trauma-specific therapy. Based on a further review, on February 23, 2006, the court transferred legal custody of the two children to both parents but retained physical custody in F.C., with liberal, unsupervised parenting time between K.C. and her two sons. The court denied K.C.'s request to separate the children and to grant her physical custody of J.C.

On May 25, 2006, DYFS reported that "no risk factors [existed] at this time," and that both parents had complied with all court-ordered services. DYFS therefore recommended dismissal of the protective services matter, leaving the children in the parents' joint legal custody and the physical custody of F.C. with liberal unsupervised visitation between the children and their mother. The court agreed, concluding that K.C.'s "conditions have been remediated." Over K.C.'s objection, the court dismissed the Title 9 action, directing continued placement of the children in the parents' joint legal custody and in F.C.'s physical custody, with K.C. to enjoy liberal, unsupervised parenting time.

On appeal, K.C. essentially argues that the Family Part judge erred in failing to continue the Title 9 action until it was appropriate for her to regain physical custody of the two children. We disagree.

Protective services litigation arises out of Title 9 for the purpose of protecting children. N.J.S.A. 9:6-8.8. To this end, N.J.S.A. 9:6-8.50(e) provides that

[i]f the court finds that the child is an abused or neglected child as defined in this act, it may refer any aspect of the matter, including anything related to the child and the parent or guardian, to [DYFS], ordering that [DYFS] provide such services as are deemed appropriate to the ends of protecting the child and rehabilitating and improving family life, wherever possible.

In this case, DYFS provided services to all family members for a period in excess of sixteen months before the protective services litigation was terminated. Contrary to appellant's intimation, although N.J.S.A. 9:6-8.8(b)(2) requires that "reasonable efforts" be made to preserve and reunify the family, DYFS is under no statutory obligation to continue supervision and services indefinitely after determining that the risk to the children's safety has been eliminated and that the conditions leading to their removal from the physical custody of the abusive parent have been remediated. Moreover, there is no statutory bar to dismissing Title 9 litigation after placing physical custody with the non-abusive parent following a period of agency supervision aimed at rehabilitating the abusive parent. In other words, DYFS is under no duty to remain involved until it is judicially determined that the best interests of the children require physical placement with their mother. Indeed, natural parents have a constitutionally protected and fundamental liberty interest in raising their children without interference from the State. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed.2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Once a court has determined that the best interests of the children are served by physical custody with one parent and liberal and unsupervised visitation with the other, nothing in Title 9 prevents termination of protective services litigation, or warrants continued agency intrusion in the familial relationship. The court is free to dismiss the matter with such protective and reasonable conditions as it finds necessary to protect the best interests of the child, including custody determinations. N.J.S.A. 9:6-8.55; see also New Jersey Div. of Youth & Family Servs. v. E.D., 233 N.J. Super. 401, 410 (App. Div.), certif. denied, 118 N.J. 232 (1989); New Jersey Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 394-95 (1990).

Here, the Family Part judge, in continuing physical custody with the father, obviously recognized the children's preference and the need, contrary to K.C.'s request, to keep them together as a family unit. As the trial judge correctly noted, any residual issues of visitation or custody may be addressed by the Family Part under its non-dissolution docket, free of DYFS interference.

To be sure, permanency hearings are required when children are in placement with a "relative or other suitable person". N.J.S.A. 9:6-8.54(a). However, we do not view the transfer of custody to a non-abusive parent a "placement" under the statute. Accordingly, there was no need for a permanency hearing prior to placing the children in their father's physical custody and dismissing the litigation.

Affirmed.


According to the State, despite dismissal of the Title 9 action, DYFS continued to provide services to the family, who were successfully discharged from a sixteen-week group therapy program on August 9, 2006.

(continued)

(continued)

7

A-5844-05T4

RECORD IMPOUNDED

January 16, 2007