NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0436-10T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.R.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF S.R., B.G.

and A.G.,

Minors.

____________________________________________

May 13, 2011

Submitted April 12, 2011 - Decided

Before Judges Espinosa and Roe.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-42-09K.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara Beth LeFurge, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor S.R. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors B.G. and A.G. (Jeffrey R. Jablonski, Designated Counsel, of counsel and on the brief).

PER CURIAM

Defendant, R.R., appeals from a denial by the Family Part of a motion for reconsideration of an order denying a motion to vacate a permanency order and to commence fact-finding after a second emergency removal of R.R.'s minor child, S.R., by the Division of Youth and Family Services (DYFS). We reverse the permanency order for a best interests determination and we remand for a fact-finding hearing regarding the second removal of the children in March 2010.

R.R. is the biological mother of three children, S.R., age eight; B.G., age three, and A.G., age two. W.G. is the biological father of B.G. and A.G. N.E. is the biological father of S.R., residing in an unknown location in Guatemala. N.E. is not part of this appeal.

DYFS filed for an emergency removal (DODD) pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30, and obtained custody, care and supervision of S.R. and B.G. on September 30, 2008. On January 26, 2009, R.R. admitted to abuse and neglect by inflicting corporal punishment on S.R. On February 11, 2009, DYFS obtained legal custody and supervision of A.G. when he was born. A.G. remained in his mother's physical custody after he was born. B.G. was reunited with R.R. in February 2009. S.R. was reunited with R.R. in June 2009. By September 2009, R.R. had regained legal and physical custody of all three children, though the Title 9 litigation remained open with DYFS supervising the family.

A second DODD hearing occurred when S.R. reported an injury and alleged abuse by her mother to a school nurse. S.R. was removed from R.R.'s custody on March 4, 2010. B.G. and A.G. were removed on March 8, 2010, when DYFS sought custody, care and supervision of all three children. The two younger children were removed on allegations of abuse and neglect based on reports that the home was infested with bedbugs and roaches. DYFS sought and received temporary legal custody of all three children on March 8, 2010. At that hearing, the court took testimony from various witnesses and defendant testified on her own behalf. Two orders resulted from the second hearing. One was a supplemental order sanctioning the emergency removal of S.R. by DYFS. The other was an order to show cause permitting the DYFS removal of B.G. and A.G. At the end of the hearing, the trial judge stated, "[t]he mother is still entitled to a fact-finding hearing if she demands it on this court's order today." Fact-finding never occurred.

On June 16, 2010, the matter was transferred to a different trial judge, who approved the permanency plan from DYFS for the termination of parental rights regarding S.R. The biological father, W.G. was granted legal and residential custody of B.G. and A.G. On June 25, 2010, the court denied R.R.'s motion for reconsideration of the order of permanency regarding S.R. and denied R.R.'s request for a fact-finding hearing. On August 11, 2010, the Title 9 complaint was dismissed as to S.R., over the objections of R.R. The court concluded the dismissal was justified based on the filing of a Title 30 guardianship proceeding.

On appeal, R.R. contends she was denied due process when DYFS failed to establish that the second, temporary removal of her children from her custody was necessary to avoid imminent risk to life, safety or health of the children pursuant to N.J.S.A. 9:6-8.31(b); and, the trial court abused its discretion by not conducting fact-finding after the second, temporary removal of S.R. and her siblings in March 2010. We reject the appellant's argument that she was denied due process because DYFS failed to establish that the removal of the children was necessary to avoid imminent risk of harm but conclude that the court erred by failing to conduct a fact-finding after the second removal of S.R. and her siblings.

A trial court's findings of fact "are binding on appeal when supported by adequate, substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This is especially true in family courts, which have "special jurisdiction and expertise in family matters . . . ." Id. at 413. "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless it is convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

N.J.S.A. 9:6-8.28(a) provides that the family court:

may enter an order, whereby the safety of the child shall be of paramount concern, directing the temporary removal of a child from the place where [the child] is residing before the preliminary hearing under this act, if (1) the parent or other person legally responsible for the child s care informed of an intent to apply for any order under this section; and (2) the child appears so to suffer from abuse or neglect of [the child's] parent[s] or guardian that [the child's] immediate removal is necessary to avoid imminent danger to the child s life, safety or health; and (3) there is not enough time to hold a preliminary hearing.

[N.J.S.A. 9:6-8.28(a).]

After a child has been removed without a court order, the court shall hold a hearing the next court day, "whereby the safety of the child shall be of paramount concern, to determine whether the child's interests require protection pending a final order of disposition." N.J.S.A. 9:6-8.31(a). Additionally, N.J.S.A. 9:6-8.31(b) states that if the court finds that "continued removal is necessary to avoid an ongoing risk to the child's life, safety or health, it shall affirm the removal of the child to an appropriate place or place [the child] in custody of a suitable person." Id.

Here, R.R. stipulated to abuse as alleged in the initial complaint in January 2009 and pled guilty to the fourth degree offense of child cruelty and neglect in February 2009. After regaining legal and physical custody of all three children, there were several further investigations by DYFS that did not result in additional substantiations of neglect or abuse. The second removal of S.R. occurred after DYFS received a referral from S.R.'s school nurse reporting that she complained of pains in the back of her head caused by her mother hitting her with a wooden spatula. S.R.'s two younger brothers, B.G. and A.G., were removed four days later. The court conducted a DODD hearing, took testimony from the caseworker and other service providers and permitted defendant to testify on her own behalf. In addition to the physical abuse of S.R., service providers testified that R.R.'s home was roach infested; that the children had bedbug bites and at least one witness testified the defendant blamed S.R. for her problems and that S.R. suffered devastating verbal abuse from R.R. We are satisfied there is sufficient credible evidence in the record to support the trial court's finding that the emergency removal was necessary to avoid imminent risk of harm to the children.

Next, defendant contends the trial court abused its discretion by not conducting a fact-finding hearing after the second removal of S.R. and her siblings. We agree.

The court's authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards. N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). These safeguards are designed to serve two functions: to protect innocent parents against governmental interference with their fundamental right to parent and to spare the children unnecessary emotional trauma. Id.

In N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382 (2009), the Supreme Court outlined the procedures in Title 9 cases.

If a child's life or health is in imminent danger, the authorities may temporarily remove the child[ren] from the offending parent or guardian. N.J.S.A. 9:6-8.27(a); N.J.S.A. 9:6-8.29. . . . A fact-finding hearing shall be held to determine whether the Division has shown by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46(b). . . . The evidence presented at the fact-finding hearing must be "competent, material and relevant." N.J.S.A. 9:6-8.46(b). . . . If facts sufficient to sustain the complaint are established, the court shall enter an order finding that the child is an abused or neglected child and shall state the grounds for said findings.

. . . If facts sufficient to sustain the complaint under this act are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal.

[Id. at 397-98.]

Failure to perform the fact-finding duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment, 141 N.J. Super. 1, 4 (App. Div. 1976)).

Here, a compliance review was conducted in June 2010. At that time, R.R. was incarcerated and a new judge had been assigned to the case. Without conducting a fact-finding hearing, the court held a permanency hearing, over the objection of defense counsel. The court later issued a written opinion mistakenly utilizing R.R.'s first stipulation to abuse as a justification for not conducting a second fact-finding hearing despite promises by the court to R.R. that a fact-finding hearing on the second removal would occur. Despite the court's interim findings of imminent threat to the children, defendant was entitled to a fact-finding hearing so that she could contest the Division's allegations that she abused and neglected the children. As we held in J.Y., parents are entitled to full findings of fact and conclusions of law at the fact-finding and dispositional stages of a proceeding to involuntarily remove children from their residence. J.Y., supra, 352 N.J. Super. at 245. Similarly here, the trial court failed to apply all the procedural safeguards and make specific factual findings and conclusions of law regarding the second removal. The order approving the permanency plan of termination of parental rights is reversed and the matter is remanded for a fact-finding hearing on the allegations leading to the second removal of the children in March 2011.

Reversed and remanded for a fact-finding hearing consistent with this opinion. We do not retain jurisdiction.