NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.C and D.M IN THE MATTER OF T.M
Annotate this CaseRECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0725-08T4
NEW JERSEY DIVISION OF YOUTH AND
FAMILY SERVICES,
Plaintiff-Respondent,
v.
A.C.,
Defendant-Appellant,
and
D.M.,
Defendant-Respondent.
IN THE MATTER OF T.M.,
Minor.
________________________________________________________________
Submitted September 21, 2009 - Decided October 7, 2009
Before Judges Lisa and Baxter.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Essex County, Docket No. FN-07-673-05.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Chanima K. Odoms,
Designated Counsel, of counsel and on the
brief).
Anne Milgram, Attorney General, attorney for
respondent Division of Youth and Family
Services (Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Steven J.
Klein, Deputy Attorney General, on the
brief).
Yvonne Smith Segars, Public Defender,
attorney for respondent D.M. (Christine B.
Mowry, Designated Counsel, on the brief).
Yvonne Smith Segars, Public Defender, Law
Guardian, attorney for minor T.M. (Melissa
R. Vance, Assistant Deputy Public Defender,
on the brief).
PER CURIAM
This is a Title 9 abuse and neglect case. The order
terminating the litigation, from which the appeal is taken, was
entered on August 19, 2008, prior to the Supreme Court's April
7, 2009 decision in New Jersey Division of Youth and Family
Services v. G.M.,
198 N.J. 382 (2009). The order transferred
custody1
physical of T.M. from her mother, A.C., who had
committed an act of neglect, to her father, D.M. The order was
entered after a best interests custody hearing, at which both
parents were represented by counsel, testified, and presented
expert witnesses. The judge conducted that hearing in
compliance with this court's decision in G.M.,2 Division of
1
The order actually continued the custody status previously
ordered in the proceedings, namely joint legal custody to both
parents, with physical custody to D.M.
2
The court had previously entered an order on December 4, 2007
terminating the litigation and continuing the transfer of
physical custody to D.M., but later granted A.C.'s motion to
(continued)
A-0725-08T4
2
Youth and Family Services v. G.M.,
398 N.J. Super. 21 (App. Div.
2008), aff'd in part, modified in part, and remanded,
198 N.J.
382 (2009).
However, in G.M. the Supreme Court modified this court's
decision. The Court said: "The key deficiency of the
proceeding below was not in the failure to hold a custody
hearing, but in the failure to hold a dispositional hearing."
G.M., supra,
198 N.J. at 402. The Court continued that at such
a hearing the trial court must "determine whether the children
may safely be released to the custody of their mother, who was
responsible for their 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." Ibid. (emphasis added).
A.C. argues that the trial court erred in not conducting a
dispositional hearing, but that the evidence at the best
interests hearing and the judge's findings supported the
conclusion that both parents were fit and capable of parenting,
as a result of which, had the Title 9 child welfare standard
been applied, as would be the case at a dispositional hearing,
T.M. would have been returned to her. She asks that we so
(continued)
reopen the case and hold a best interests custody hearing in
light of this court's January 23, 2008 decision in G.M.
A-0725-08T4
3
order. Alternatively, she seeks a remand for a dispositional
hearing.
D.M., the Division of Youth and Family Services (Division),
and the Law Guardian oppose the appeal. They argue that the
best interests hearing was comprehensive and fair and that the
resulting decision was justified and should not be disturbed.
Underlying this position is the argument that the best interests
of the child are always the polestar of child welfare cases and
there is no automatic right of return to the offending parent
when it is in the child's best interests to remain with the non-
offending parent. They argue that T.M., who has just turned
nine years old,3 has been in her father's physical custody for
more than two years, since June 8, 2007, is doing very well, and
is entitled to stability and permanency. They argue that it
would be inappropriate and a waste of judicial resources to
require further proceedings. They contend that the Supreme
Court's decision in G.M. should not be given retroactive effect
because of the long passage of time in this case and because it
announced a new rule of law. They further contend that the
result would be the same because the judge's well-supported
findings after the best interests hearing implicitly concluded
3
T.M. was born on September 29, 2000.
A-0725-08T4
4
that T.M. could not be safely returned to the physical custody
of her mother.
Our review of the record and our consideration of the
Court's rationale and holding in G.M. persuades us that a remand
for a dispositional hearing is required.
The Court did not announce in G.M. a new rule of law. It
set forth the correct application of the interrelated provisions
of Title 9, which require a dispositional hearing. Contrary to
the Division's argument that the hearing already conducted in
this case was sufficient even though it "was not characterized
as a dispositional hearing pursuant to N.J.S.A. 9:6-8.50," more
than labels are at stake. As the Court made clear in G.M., the
standards for determination in the two kinds of hearings differ
significantly. Id. at 399-402. Indeed, the Court remanded for
a dispositional hearing notwithstanding the fact that a best
interests custody hearing was in process in accordance with this
at 402-03 n.3. That was required
court's decision. Id.
because, although a non-custodial parent always has the right to
seek a change of custody, "the availability of a non-custodial
parent to care for the children does not alter the
responsibility of the Division to follow the statutory framework
for litigating a Title Nine action." Ibid.
A-0725-08T4
5
The Court's action in G.M. also sways us against the
argument that because of the passage of time and the need for
stability and permanency we should leave undisturbed the order
under review. In G.M. the children had been removed from their
Id. at
mother and placed with their father on March 31, 2006.
389. After the passage of three years, the Court, in its April
7, 2009 decision, remanded for a dispositional hearing,
notwithstanding that a best interests custodial hearing was in
process. Id. at 405. Less time has passed here since the
transfer of custody.
We are also not persuaded that a remand would cause a
waste of resources and expenditure of unnecessary additional
energy and effort. The judge who managed this case for an
extended period of time and conducted the best interests hearing
is assigned for the current court term to the Family Part. The
judge is thoroughly familiar with the case and is available to
conduct such further proceedings as are required to arrive at to
a conclusion under the proper standard. All of the evidence
already presented may be considered, and the hearing previously
held may, in effect, be reopened, continued, and supplemented.
We reject the arguments of both sides that the evidence and
findings at the best interests hearing render unnecessary a
further hearing and findings. Each side argues that if the
A-0725-08T4
6 Title 9 child welfare standard were applied to the evidence and
findings at that hearing each parent, respectively, would be
entitled to custody. This position is flawed for two reasons.
First, neither the parties nor the judge focused on the
narrower Title 9 standard. Had they done so, the parties might
well have produced different evidence and made different
arguments. The judge would also have directed her findings to a
different legal standard.
Second, the evidence was not overwhelming in one direction
or the other as to whether T.M. could be safely returned to her
mother, and the judge's findings on the subject (only one factor
in the best interests analysis) were mixed. Although we have
found it unnecessary in this opinion to set forth the very
lengthy factual and procedural history of the case, we now set
forth a very brief summary of the facts that support this point.
The removal occurred on June 24, 2005 because T.M. was left
alone in the home unsupervised.4 The Division commenced this
action on June 28, 2005. T.M. was then under the sole care and
supervision of A.C. D.M. was incarcerated at the time. The
4
The Division had received several previous referrals involving
T.M., including one in July 2003 indicating that T.M. was found
outside in the street at 6:15 a.m. According to the Division's
verified complaint in this case, "[T.M.] was not injured, but
the Division confirmed that [A.C.] was responsible for not
providing appropriate supervision."
A-0725-08T4
7
court entered an order awarding the Division custody of T.M.,
who was placed in the home of a family friend. A.C. exercised
visitation. On August 16, 2005, A.C. waived a factfinding
hearing and stipulated that she had left T.M. improperly
supervised, thus constituting neglect. The order of August 16,
2005 required A.C. to cooperate with various services, including
a psychological evaluation and counseling, and contemplated the
return of T.M. to A.C. within two weeks. However, A.C. was
substantially non-compliant with the ordered services. When
A.C.'s compliance reached an appropriate level, the court
ordered the child returned to her on August 22, 2006. The
Division retained custody and further services were ordered.
During this removal and apparently prior to it, T.M. spent
some time with her paternal grandmother in Pennsylvania. There
was tension between A.C. and the paternal grandmother, who had
sought visitation rights, expressed a desire to have T.M. placed
with her, and attended some of the court hearings.
A.C.'s compliance with the required counseling, including
mother-child counseling, was poor. Although the Division
acknowledged that A.C. was providing appropriate care for T.M.
and that T.M. was doing well in school, it suggested it might
seek transfer of custody to the paternal grandmother if A.C.
continued to be noncompliant.
A-0725-08T4
8
In June 2007, while T.M. was visiting her grandmother in
Pennsylvania, she had marks on her thigh and was taken to a
hospital for evaluation. Hospital personnel believed the marks
were from physical abuse. The Division filed an amended
complaint alleging abuse by A.C. The child was removed from
A.C. and placed with her father. However, the Division had T.M.
examined by a pediatric physician, who opined that the marks
were not caused by a belt or any other kind of physical abuse,
but resulted from T.M. scratching insect bites or a rash on her
thigh. The Division therefore acknowledged that abuse was not
substantiated and withdrew the allegation. Nevertheless, the
court ordered that T.M. remain in the physical custody of her
father.
In the ensuing months, counseling and visitation continued.
On December 4, 2007, the Division presented to the court its new
permanency plan, namely that the litigation be terminated, but
that services continue, with the parents being granted joint
legal custody, and physical custody to remain with the father.
Over A.C.'s objection, the court so ordered. That status
continued, with ongoing counseling and A.C. exercising
visitation.
After this court's January 23, 2008 decision in G.M., in
which we held that a best interests custody hearing is required
A-0725-08T4
9
before changing physical custody in a Title 9 case, A.C. moved
for reconsideration and for such a hearing. The court granted
the motion and reopened the case. The hearing was conducted on
July 21 and August 11, 2008, and the judge rendered an oral
decision on August 19, 2008.
The judge comprehensively analyzed the evidence as
applicable to each of the statutory best interests factors. See
N.J.S.A. 9:2-4c. The judge prefaced that analysis by stating:
"The issue here is residential custody. Although abuse [sic -
neglect] was substantiated two times in 2003, 2005, this case
does not turn on a finding that [A.C.] is currently unfit." The
judge later stated that, with respect to "[t]he fitness of the
parents[,] [b]oth are able to adequately parent." The judge
continued, however, by noting that this was an overall best
interests evaluation. She said: "But . . . when we're looking
at the best interest we have to look at the . . . father and the
mother." The judge noted that A.C. had not regularly complied
with counseling obligations, seemed to place her needs above
T.M.'s, and had somewhat unstable living arrangements. After
announcing her decision on physical custody, the judge addressed
visitation arrangements. She said, "I don't want [A.C.] to have
overnight visitation until she's had -- actually had family
counseling with her child."
A-0725-08T4
10
The judge did not squarely address whether T.M. could be
safely returned to the physical custody of A.C. As we
previously stated, the judge's findings as to that aspect of the
overall best interests evaluation were mixed.
The remand proceedings shall be conducted by the same judge
who conducted the best interests hearing. The parties may
present such additional evidence, including updated information
of events that have transpired since entry of the order under
review, as they deem appropriate and as the judge, in her
discretion, allows. Any such additional evidence shall be
considered in conjunction with that which has previously been
presented. The ultimate determination shall be made in
accordance with the principles laid down by the Supreme Court in
G.M.
Reversed and remanded. We do not retain jurisdiction.
A-0725-08T4
11
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