NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. V.W. and B.G.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5196-08T45196-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

V.W.,

Defendant-Respondent,

and

B.G.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF B.W., a minor.

__________________________________

 
Argued telephonically February 10, 2010 -Reargued June 9, 2010 - Decided

Before Judges Stern, Sabatino, and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-61-07.

Michael S. Harwin, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Harwin, on the brief).

Durrell Wachtler Ciccia, Designated Counsel, argued the cause for respondent V.W. (Yvonne Smith Segars, Public Defender, attorney; Ms. Ciccia, on the brief).

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for the minor B.W. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).

Respondent New Jersey Division of Youth and Family Services has not filed a brief.

PER CURIAM

Appellant B.G., the biological father of an eight-year-old girl, B.W., seeks review of the Family Part's order dated May 5, 2009, which terminated litigation in Docket No. FN-06-61-07 brought under Title 9 by the Division of Youth and Family Services ("DYFS") against the child's biological mother, V.W., and appellant. Appellant also seeks review of related orders and findings by the Family Part in the Title 9 matter respecting custody of B.W. and appellant's rights of visitation.

As of the time of the most recent oral argument before us in June 2010, appellant was on active military duty and stationed at a military base in Colorado. He recently completed a tour of combat duty in Afghanistan, and before that had been on active duty twice in Iraq and once in Korea. The trial court found that appellant is fit to be a parent, even though he has not enjoyed or shared residential custody of his daughter since she was the age of one. Meanwhile, B.W. is and has been residing for several years in New Jersey in the residential care of B.T., who is her great-grandmother and is the grandmother of V.W.

In particular, appellant is concerned that the trial court's finding in the Title 9 matter that B.T. has heretofore functioned as a "psychological parent" to the child will impede his ability to attempt to gain residential custody of her at some future time. Appellant is also concerned that the termination of the Title 9 litigation, and the related closure of the FN case docket, will cut off his eligibility for parental support services from DYFS and legal assistance from the Office of the Public Defender, thus further impeding his long-term desire to be reunited with his daughter.

Although we appreciate the practical and equitable concerns raised by appellant, we discern no legal justification to reverse the trial court's termination of the Title 9 action, inasmuch as the sole parent found to have committed abuse and neglect, the mother, has not contested the court's final determinations and has not sought relief on appeal. In addition, we do not adopt appellant's request to vacate the trial court's well-supported "psychological parent" finding as to the great-grandmother, who is not a party to this appeal. However, we do leave open the future ability of appellant to argue that this prior judicial finding in the FN matter should not be dispositive or carry presumptive force in a subsequent custodial proceeding.

We summarize the pertinent facts, recognizing that the facts and procedural history are more extensive and complicated than those mentioned in this opinion.

The child who is the subject of this case was born in 2002. At the time of the filing of this complaint, the mother had two other children, one born in 2004 and the other born in 2006. Neither of those other two children is involved in this appeal.

The child's parents developed an intimate relationship with one another when they were both in high school and each fifteen years old. A year later, the mother informed appellant that she was pregnant. Believing at the time that he was the forthcoming child's father, appellant told the mother that he was happy about her pregnancy. He obtained a job, in an effort to help take care of the baby and the mother. Disagreements, however, arose before the child was born. In particular, appellant stated that he wanted to attend prenatal classes but the mother was opposed to them. In addition, appellant contends that even though he wanted to be involved in the pregnancy, the mother refused to share information with him about it.

At the child's birth in 2002, another male named "Brandon" appeared at the hospital and claimed he was the child's father. When asked about the true identity of the father, the mother responded to hospital staff that she did not know. Appellant attempted on several occasions to establish the child's paternity, but he alleges that the mother's family did not want a paternity test performed. Appellant also contends that the mother told him that "Brandon" was the child's biological father. In any event, it is undisputed for purposes of this appeal that appellant is indeed the child's biological father.

The child's contact with appellant diminished as she got older. From her birth through the age of one, the child lived with the mother in what appellant considered to be a series of "marginal homes." However, appellant was able to maintain periodic contact with the child. Then the mother began relocating with the child to various locations, first moving to Virginia, then to South Carolina, then back to New Jersey. These repeated moves increased the difficulty of appellant staying in touch with his daughter.

In August 2003, after the mother and the child had moved to Virginia, appellant voluntarily enlisted in the United States Army. He was then eighteen years old. At the time, appellant was aware that the mother might not have been taking good care of their daughter because the great-grandmother had allegedly warned him of the mother's "problems." He also acknowledged that he "felt [the mother] was very unstable," and had some "reservations" about her ability to care for the child.

Since his enlistment in the Army, appellant has had only limited contact with his daughter. Even so, appellant contends that he has assisted financially with the child's care, although that assistance has not been documented. The great-grandmother, who has had residential custody of the child since 2006, denies receiving any financial support from appellant except for Christmas presents.

DYFS' initial contact with the mother and her children occurred on May 28, 2006. On that day, the mother took her youngest daughter, D.W., to Cooper Hospital in Camden because she thought D.W. was having seizures due to overheating. The hospital staff contacted DYFS and made a referral because there was a concern that D.W. had a body temperature of ninety-five degrees, and that her glucose level was abnormally low possibly because of malnutrition. After the referral, DYFS monitored the family and determined that there was no abuse or neglect at that time.

Subsequently, on October 11, 2006, there was another referral to DYFS arising out of concerns that the mother could not provide baby formula for D.W., and that she had failed to enroll in the Women, Infants, and Children ("WIC") Program, which could provide assistance in obtaining food for the children. There was also concern about the mother's paramour at the time, who had been recently released from prison and was living in a halfway house. Further investigation confirmed that the mother had not attempted to obtain WIC benefits for the children. Additionally, DYFS discovered that B.W., who was old enough to be enrolled in a government sponsored pre-school educational program at that time, had not been signed up for it that year or in the previous year. Furthermore, DYFS learned of allegations that the mother had left her second child, D.M., who was not yet two years old, in a partially filled bathtub unattended. When questioned about the bathtub incident, the mother displayed a lack of understanding of why her actions were dangerous to D.M.

Thereafter, on November 3, 2006, DYFS removed the children on an emergency basis and placed them in a foster home. After the mother was served with a notice of emergency removal, she told the DYFS case worker that she wanted her children to be placed with her grandmother, B.T.

On November 8, 2006, DYFS filed a Verified Complaint with an Order to Show Cause under an FN case docket, seeking custody of the children. At about the same time, the great-grandmother and the mother's own father made an application for temporary custody of the children. On that same day, the Family Part conducted a removal hearing. At the hearing, the court was informed that appellant was absent because he was on active duty in Iraq; however, his own parents attended the hearing.

At the initial removal hearing, the great-grandmother testified that the child had already been living with her for more than a year. According to the great-grandmother, the child's mother did not live with her, but resided in a boarding house in Millville. At the conclusion of the continued hearing on November 30, 2006, the trial court directed the child and her two half-siblings to be placed with the great-grandmother so that the great-grandmother could receive financial assistance from DYFS.

On March 27, 2007, the trial court conducted an interim fact-finding hearing. At that hearing, the mother agreed to receive services from DYFS under Title 30. The mother also stipulated that she did not have adequate housing for the children.

Subsequently, on May 21, 2007, the court held a compliance review hearing. At that time, the children were still living with the great-grandmother and they were reportedly "doing well." The great-grandmother informed the court that appellant had been telephoning her once a month to speak to his daughter. The court further directed the mother to attend parenting skills training, and ordered DYFS to provide her with bus tickets to facilitate her visitation with the children.

The court was advised at this same hearing that appellant was then on active duty in Iraq. This prompted the court to appoint a lawyer from the Office of Parental Representation within the Public Defender's Office to represent appellant. The court also ordered DYFS to explore the availability of a two-way videoconferencing that would enable appellant and his daughter to see one another, although there is no evidence in the record indicating whether DYFS followed through on that investigation.

Several more compliance review hearings ensued. Appellant's parents attended such a hearing on August 8, 2007, and acknowledged that they knew the child was living with her great-grandmother. Additionally, appellant's parents filed an application for out-of-state visitation with the child at their home in Maryland, which the court granted over DYFS's objection.

At an ensuing compliance review hearing on September 13, 2007, appellant was again absent because he was still in Iraq, but his attorney was present. Through his counsel at this hearing, appellant stated his interest in seeking custody of his daughter.

At the next compliance review hearing, on October 9, 2007, the court learned that the mother was then incarcerated at a detention center in Maryland. The court also learned of the birth of the mother's fourth child, who was then the custody of the State of Delaware's child protective services.

During the next compliance review hearing on December 17, 2007, at which the mother was present, appellant's counsel alerted the court that his client intended to apply for custody of the child upon his anticipated return from Iraq. Consequently, the court entered a permanency plan at that time, which envisioned the eventual reunification of appellant with his daughter.

By the time of the next compliance review hearing, on January 29, 2008, appellant had returned from Iraq although he was still on active duty in the Army and was in attendance in court. At this hearing, appellant requested that the court grant him custody of B.W., which both the great-grandmother and DYFS opposed. After hearing testimony from both appellant and the great-grandmother, the court ordered that the child remain in residence with the great-grandmother, and denied appellant's custody application without prejudice. However, the court did order DYFS to increase appellant's contact and visitation opportunities with his daughter.

The next compliance review hearing was conducted on April 7, 2008. Appellant, still serving in the military and stationed in Colorado, appeared telephonically and renewed his custody application. The court again denied appellant's application for custody, without prejudice, allowing him to develop his proofs more at a later proceeding. The court permitted the child and her half-siblings to remain with the great-grandmother, but ordered DYFS to provide appellant with increased visitation.

At a May 6, 2008 permanency hearing, DYFS recommended a plan that involved termination of parental rights and adoption by the great-grandmother, concurrent with efforts to attempt to reunify B.W. with one of her two parents. The court continued the hearing until the next month and suspended out-of-State visitation with the child's paternal grandparents until such time as the paternal grandfather successfully underwent an evaluation and alcohol screen.

On June 17, 2008, the court conducted another compliance review and ordered that the children remain with the great-grandmother. Additionally, the court provided for the child to have at least a two-week visit with appellant during the summer, and ordered DYFS to facilitate the visit.

Following several more compliance review hearings and certain expert evaluations, the trial court scheduled a plenary hearing to determine whether the child should be removed from the great-grandmother's care and placed with appellant. That plenary hearing was conducted over two intermittent days on December 18, 2008, and January 27, 2009.

At the outset of the first day of the hearing, B.W.'s two half-siblings were dismissed from the FN docket, as DYFS had filed a guardianship complaint with regard to them. The hearing thus continued, addressing only the care and custody of B.W.

The trial court heard expert testimony at the plenary hearing from the Law Guardian's expert, Roberta Dihoff, Ph.D., a psychologist who had performed a bonding evaluation. Dr. Dihoff concluded, as is stated in her written report, that the child was "very attached to her great[-]grandmother," with whom she has lived for most of her life. Dr. Dihoff underscored the negative impact that would likely ensue if the child were separated from her half-siblings who have been raised with her. Dr. Dihoff also noted that the child had expressed distress about the prospect of moving to live far away with her father, with whom she had not had any extended visits. On the whole, Dr. Dihoff opined that it would be "extremely detrimental" if the court were to "disrupt [the child] again and move her across the country to a place she does not know and where she would be surrounded by strangers."

The court also considered a written report from Roger T. Barr, Ed.D., a licensed psychologist who had performed a psychological evaluation of appellant at the request of DYFS. Dr. Barr found that appellant did not exhibit "a personality pattern, either by interview or formal testing, indicative of major psychopathology or personality disorders." Dr. Barr continued, finding that appellant, "for all intents and purposes, conducts his life in a consistent and stable manner in the military[.]" He found no clinical reason that would impugn appellant's capacity to parent his daughter, or which would contravene his desire to reunify with her. Dr. Barr also noted that his earlier interview with the child "strongly indicated" that her reluctance to move and reside with her father had been influenced by the "coaching" of others within her great-grandmother's household.

Additionally, the trial court considered, as part of the evidence at the plenary hearing, a report issued by a local child protective services in Colorado, which had found appellant capable of caring for his daughter permanently and which also inspected and found his two-bedroom apartment in Colorado suitable for the child. The court further considered a written report from another psychologist, Janet Cahill, Ph.D., Chair of the Psychology Department at Rowan University. Dr. Cahill found that appellant presented as "a stable and effective parent." Like Dr. Barr, Dr. Cahill found nothing that would counter-indicate awarding appellant custody of his daughter. Dr. Cahill also recommended that the great-grandmother be directed not to criticize appellant in the presence of his daughter.

Apart from these various experts, the trial court took testimony from appellant and the great-grandmother, in which they each presented their competing views as to which of them should have residential custody. In written summations, DYFS, sided with the father's request for residential custody, while the Law Guardian and the mother advocated that the great-grandmother should continue to be the primary custodian.

On March 23, 2009, the trial judge issued a detailed written opinion, finding it in the child's best interests to remain living with her great-grandmother. The judge further ordered the great-grandmother and appellant to share legal custody of the child.

In the course of his detailed written opinion, the judge recognized that appellant has the capacity to serve as a fit parent. Nevertheless, the judge also determined that the great-grandmother, who the judge likewise found to be fit, has been functioning as the "psychological parent" of the child, and that appellant had not persuaded the court of the wisdom of removing the child from the great-grandmother's residential custody while appellant continues to be on active military duty, whether in Colorado or abroad.

However, the judge also named appellant as "the parent of alternate residence" and ordered that the child be permitted to spend "summer[s] with her father in Colorado" as well as "lengthy vacations with her father when there is a break from school." The judge further noted in his written opinion that "if the father moves back to this locale, it would be a significant change in circumstance that could warrant a reconsideration of the custodial arrangement."

On May 5, 2009, the trial court entered an order terminating the FN litigation. This appeal ensued. The appeal is opposed by the Law Guardian on behalf of the child. DYFS, however, takes no position on the appeal, nor does the mother. The father did not apply for a stay of the termination of the FN docket pending appeal.

In his briefs and oral arguments before this court, appellant variously contends that the trial court did not adhere to the standards for a dispositional hearing under N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009); that a dispositional hearing improperly took place in his physical absence while he was in the military (although it does not appear that the father applied to the trial court for a military stay pursuant to the federal and state statutes); that the father never consented to the great-grandmother assuming residential care of his daughter and therefore the great-grandmother cannot qualify as a psychological parent; that the Dr. Dihoff did not perform an appropriate bonding evaluation between the father and the child; that Dr. Dihoff impermissibly provided net opinions; and that the best interests of the child warrant the development of a relationship with her father, not her great-grandmother.

In amplifying his arguments and concerns in oral argument before us, appellant's counsel stresses his client's concerns about the ultimate impact that the court's disposition of the FN matter, and its associated findings, may have when appellant eventually completes his military obligations or otherwise is in a better position to assume custody of his daughter. In particular, appellant requests that we vacate the trial court's order terminating the FN litigation so that he can continue to receive services from DYFS and representation from the Public Defender's Office.

Appellant contends that, as a practical matter, he will be in a weak position to attempt to reunify with his daughter if he does not have the benefit of such services and publicly-financed legal representation. Furthermore, the father is concerned that the trial court's custodial ruling and the finding that the great-grandmother is the child's psychological parent will result in imposing a high "change of circumstances" burden upon him, see Beck v. Beck, 86 N.J. 480, 496 n.8 (1981), when and if he presents an application for residential custody under a new docket number (presumably in the "FD" non-dissolution docket). He therefore asks that we vacate the trial court's psychological parent finding, even if we do not disturb the court's custodial decision in the FN matter.

Our scope of review of the Family Part judge's ruling in this case is, of course, a limited one. Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Such deference is especially warranted in the realm of custody decisions. The conclusions of trial judges regarding custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958).

Given these well-settled review standards, we reject appellant's various challenges to the merits of the Family Part's decisions, and affirm the orders at issue, substantially for the reasons well articulated in the comprehensive written opinion of Judge Darrell M. Fineman, dated March 23, 2009. There is ample and substantial credible proof in the record, including the opinions of multiple experts, that supports all of the trial judge's findings, including, among other things, the judge's considered determination that the great-grandmother has, in fact, functioned heretofore as the child's psychological parent. See V.C. v. M.J.B., 163 N.J. 200, 223 (2000).

In essence, the trial court was faced with a difficult situation with two family members that are both fit to care for the child, but one the great-grandmother has capably fulfilled that role for several years and bonded with the child. Meanwhile, the other the child's father has been necessarily attending to his still-incomplete military obligations and, despite reasonable visitation orders, has not yet developed a close parent-child relationship with B.W. The judge's custodial ruling was not only consistent with the proofs, but also largely dictated by very real and practical considerations. We concur with the judge's determination that appellant, either implicitly or explicitly, acquiesced to the great-grandmother serving as the child's primary caretaker when he left for military service in 2003.

None of the legal arguments raised by appellant to assail the merits of Judge Fineman's decision are persuasive, and they do not warrant independent comment in this opinion, in light of the judge's thorough analysis and our ultimate conclusion. We will explicitly note, however, that we reject appellant's legal argument that the trial judge strayed from the law in not conducting a "dispositional hearing" in appellant's presence pursuant to N.J.S.A. 9:6-8.51 and -8.54. Those statutory provisions, and the cases that have applied them, speak to scenarios unlike the present one, in which the court must consider a removal of a child from a parent who actually has residential custody of a child, and who has been accused by DYFS of engaging in abuse and neglect. See, e.g., G.M., supra, 198 N.J. at 397-400. Here, by contrast, the father has not resided with the child for any substantial portion of her life, and he was not the residential custodian when the FN litigation that triggered this custody assessment was brought. Moreover, the abuse-and-neglect allegation that led to the child's removal stemmed from the conduct of the child's mother, not appellant.

Having sustained the merits of the trial court's decision, we do wish to comment upon the longer-range concerns of the father in potentially reunifying with his daughter. In that vein, we note that Judge Fineman did not by any means foreclose the father from bringing a future application for residential custody. As noted earlier, and worth reemphasizing, his written opinion designates the father as the "parent of alternate residence," and specifically finds that "it would be important to the child to get to know her father and believes this can best be accomplished by her spending the summer with her father in Colorado," and also "lengthy vacations with [him] when there is a break from school." The judge also noted that "[o]bviously[,] if the father moves back to this locale, it would be a significant change in circumstance that could warrant a reconsideration of the custodial arrangement." Unfortunately, we were advised at oral argument that the father has not fully availed himself of these visitation opportunities, perhaps due to his intervening combat duties in Afghanistan, since the time of the trial judge's decision over a year ago.

Although we understand the motivation for it, we cannot accept the father's earnest request that the FN docket be left open until such time as the father may renew a custodial application on stronger footing. The abuse-and-neglect issues arising from the mother's irresponsible conduct that prompted DYFS to file the Title 9 action have been adjudicated; there is nothing left in that respect for the court to decide. There is no reason to leave the case open indefinitely. The fact, as is undisputed by the parties, that the father's representation by the Public Defender will cease upon the termination of this FN matter, and that DYFS will likewise be out of the litigation, is an inevitable consequence of the Title 9 case reaching its endpoint. That being said, we cannot presume that appellant will be unable to obtain competent legal representation, and appropriate parenting skills training and expert assistance, albeit at his own expense, in the future. Moreover, this opinion and the trial court's written opinion, which detail the litigation background, will be easily accessible for reference to the facts and procedural history concerning what was decided and why.

We are equally mindful of the father's desire to reunify with his daughter and his concern that he may have difficulty convincing a court in the future that the child should be entrusted to his primary care, in light of his lack of success on that issue in this FN litigation. Even so, we will not vacate the trial court's "psychological parent" finding respecting the great-grandmother. That finding was soundly supported by the present record and was not superfluous.

That being said, however, we shall not dictate here what the evidentiary significance of the psychological parent finding will be in a future custodial proceeding brought, for example, by the father against the great-grandmother under the non-dissolution docket. The child's personal needs and preferences, and her relationships with her relatives and half-siblings, may evolve in a manner that cannot be presumed or reliably forecast at this time. In that regard, we bear in mind that appellant's military service, unless it is not renewed or extended, is scheduled to end in May 2011. The end of appellant's military duty may well make it more feasible for him to develop more contact with his daughter and a closer relationship. We also are cognizant that the great-grandmother is presently in her eighties, and that although we certainly do not wish it to happen her continued good health and vigor could diminish as the months and years progress. Given these considerations, and other dynamic factors, we think it is best to leave it up to the Family Part in a future proceeding to evaluate the continued evidentiary significance of the court's March 2009 finding of psychological parentage. We also bear in mind that the most likely adverse party in a future custody proceeding the great-grandmother is not before us on this appeal to present competing arguments.

Neither must we decide at this juncture what the appropriate legal burden of proof would or will be if the father does bring a future application to obtain residential custody. Again, this is an unripe issue that is best decided at a future time. The most that we are prepared to say at this time is that the father is free to argue to the Family Part, in such a future proceeding, that he should not be required to surmount the heavy burden of proving a "change in circumstance" because of the prior outcome of the FN litigation. See Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (reaffirming that "changed circumstances" is the conventional standard for custody modification applications). The Family Part shall consider that argument, and any competing considerations about the applicable legal standard, when and if such a custodial application is made.

The only guidance that we offer at this time is that the Family Part should be cautious in any future custodial proceeding not to penalize the father for discharging his military obligations in the service of our country, or to make the fact of that service a pivotal consideration in awarding or denying residential custody. See Faucett v. Vasquez, 411 N.J. Super. 108, 130-34 (App. Div. 2009) (detailing the various custodial dilemmas posed by "the current state of our armed forces and the military commitments requiring the deployment and re-deployment of our nation's citizen-soldiers"). We are aware that the Law Guardian has argued to us that the father voluntarily chose to enlist in the military only after failing to fulfill his parental responsibilities, and that he had also failed, even while serving in the military, through his own inattention to take full advantage of visitation and contact opportunities with his daughter. Those fact-sensitive issues can be explored more fully, and appropriately on a fresh record, when and if a new custodial application is presented to the Family Part under the appropriate case docket.

 
Affirmed.

Counsel for V.W. participated in the telephonic argument on February 10, 2010, but did not appear at the reargument on June 9, 2010.

Because so many of the persons involved in this matter have a first name starting with the letter "B", to avoid confusion we will hereafter usually refer to B.W. as "the child," to B.G. as "the father" or as "appellant", and to B.T. as the "great-grandmother." We will also refer to V.W. as "the mother."

The record reflects that the mother gave birth to a fourth child during the pendency of the Family Part proceedings. The record further reflects that this fourth child was placed in the care of the State of Delaware shortly after that child's birth. The fourth child is not a party to this litigation.

Apparently, the relatives' custodial application was consolidated with, or subsumed within, the FN case brought by DYFS, although the record is not clear.

See the Servicemember's Civil Relief Act, 50 U.S.C.A. App. 501-96 ("the SCRA"), and the New Jersey Soldiers' and Sailors' Civil Relief Act of 1979, N.J.S.A. 38:23C-1 to -26.

We need not resolve whether the father would be entitled to services and representation if, for example, either DYFS or the mother returned to court for relief, altering the status quo resulting from the FN litigation.

(continued)

(continued)

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A-5196-08T4

RECORD IMPOUNDED

July 12, 2010