DIVISION OF YOUTH AND FAMILY SERVICES v. IN THE MATTER OF D.D and R.H Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4603-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

E.D.H.,

 

Defendant-Appellant.

 

_________________________________

IN THE MATTER OF D.D. and R.H.,

Minors.

_________________________________

April 11, 2012

 

Submitted March 5, 2012 - Decided

 

Before Judges Parrillo and Grall.

 

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Ocean County, Docket No. FN-15-109-09.

Joseph E. Krakora, Public Defender,

attorney for appellant (Anthony J.

Vecchio, Designated Counsel, on the

brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A.

Scheindlin, Assistant Attorney General,

of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

 

 

Joseph E. Krakora, Public Defender,

Law Guardian, attorney for minors (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

E.D.H., the biological mother of D.D. and R.H., appeals from a dispositional order entered in a proceeding commenced by the Division of Youth and Family Services (Division) in the exercise of its authority to protect children under provisions of Title 9, N.J.S.A. 9:6-8.8 to -8.73, and Title 30, N.J.S.A. 30:4C-11 to -24. The order placed D.D. in the custody of her biological father, C.D., and terminated the proceedings. Because the court entered those orders on the mistaken assumption that E.D.H. had stipulated to abuse and neglect of D.D., we reverse and remand for further proceedings.

The Division received the referral that led to this litigation on October 31, 2008. The reporter advised that E.D.H., who was pregnant, did not look healthy and had tested positive for cocaine and admitted substance abuse. At that time, twelve-year-old D.D. was living with E.D.H. and W.H., the expectant father.

E.D.H. told the Division's caseworker that she took medication prescribed for her Bipolar Disorder but, with the exception of "a hit of pot" two months earlier, had not taken any other drugs. On the caseworker's request, E.D.H. signed a case plan agreeing to keep her home free of "abuse, neglect and substance abuse."

On December 1, 2008, the Division filed a complaint and order to show cause seeking responsibility for the care and supervision of D.D. D.D.'s father, C.D., who lived with E.D.H. until D.D. was two years old, was named in the Division's complaint. The court granted the Division's request, placed D.D. in the residential custody of her maternal grandparents, and scheduled a hearing on the order to show cause for January 2, 2009. C.D. appeared at the hearing. At that time, C.D. was living with his mother in a four-bedroom house. He asserted that he was ready, willing and able to care for D.D.

E.D.H. did not attend because she had given birth to R.H. days earlier. At his birth, R.H. was "lifeless, with no pulse," but he was revived and transported to a neonatal intensive care unit at another hospital, where he was prescribed methadone to address his withdrawal symptoms.

E.D.H. and W.H. married on January 2, 2009. On January 6, the Division amended its complaint to include R.H., and on January 7, the court granted the Division responsibility for the care and custody of R.H., who was still hospitalized. The court also directed the Division to consider whether D.D. could be placed with C.D. Subsequently, in August 2009, the court gave the Division approval to place D.D. with C.D.

Although the Division was scheduled to prove its allegations of abuse and neglect at a "fact-finding hearing," N.J.S.A. 9:6-8.44, on March 25, 2009, E.D.H. agreed to stipulate that she had abused and neglected R.H. The Division reported that there would be "a stipulation under Title 9" from E.D.H.1 E.D.H.'s attorney stressed that her stipulation would relate "only to the newest child, [R.H.]." Thereafter, E.D.H. was placed under oath, and testified as follows:

Q: You realize we're here for a fact-finding hearing, a trial, where the Division would have the obligation of proving the case, that they present witnesses, I would have an opportunity as your attorney to cross-examine witnesses and we could present our own witnesses, you understand that, correct?

 

A: Yes.

 

Q: Instead you've indicated you want to stipulate to certain facts that you did in fact abuse and neglect a child and you're waiving your right to a trial, correct?

 

A: Yes.

 

Q: Specifically, do you acknowledge that you did use a controlled dangerous substance and you did misuse prescription drugs during the course of your pregnancy and as a result of that, the child did exhibit effects from the usage?

 

A: Yes.

On that testimony, the court accepted E.D.H.'s stipulation and stated it found abuse and neglect "pursuant to her stipulation." In addition, the court order summarized E.D.H.'s admissions as follows:

[M]other did use controlled dangerous substances and did misuse prescription drugs during her pregnancy and as a result child did exhibit effects from her usage.

The Division offered services to E.D.H., and although she was dismissed from one inpatient program and denied admission in another, she managed to complete inpatient treatment in September 2009. About a month earlier, the court gave the Division approval to place D.D. with C.D. E.D.H. continued to struggle with her addiction, testing positive for

cocaine in November 2009, benzodiazepines in March 2010 and cocaine in December 2010.

A dispositional hearing conducted on various dates was concluded on January 13, 2011. Testimony presented included conflicting expert opinion on E.D.H.'s capacity to parent. In addition, the judge interviewed D.D. At that time, D.D. was in high school, involved in cheerleading and had been living with her father and his mother since August 2009. She explained that she stays with her mother at her home in Egg Harbor on alternate weekends. On occasion, her brother R.H., who is doing well, is there. D.D. said she loves her mother, likes W.H., and is not afraid of being alone with either of them, but she also said she and her mother argue and her mother argues with W.H. She stated her preference for remaining with her father and for not leaving her cheerleading, school and friends.

The judge who presided over the dispositional hearing was not the judge who accepted E.D.H.'s stipulation in March 2009. He proceeded with that hearing, which had been scheduled by the prior judge, on the mistaken assumption that E.D.H. had stipulated to abusing and neglecting D.D. and to the need for the Division's assistance under Title 30.

In the written decision issued after the dispositional hearing on February 25, 2011, the judge reiterated his mistaken understanding of E.D.H.'s stipulation. The judge then determined that D.D. could not safely be returned to her mother. Concluding that the Division had done all that could be reasonably expected, he dismissed the Title 9 action. To "fully resolve the matter," the judge assigned C.D. sole legal and residential custody of D.D. subject to E.D.H.'s visitation on alternate weekends, and he directed review of the order under Title 30 within ninety days.

A compliance review hearing was held on April 4, 2011, before the ninety-day period allowed. At that hearing the Division urged the court to dismiss the portion of the case relating to D.D. With respect to R.H., the Division initially sought to have E.D.H. and W.H.'s visitation supervised, but by the conclusion of the hearing moved to dismiss the portion of the case relating to R.H. as well, with unsupervised visitation being left to the discretion of the maternal grandparents. With no discussion relevant to D.D., the court entered an order dismissing D.D. and C.D. from the litigation.

The standards governing our review are well-established. We afford particular deference to the findings of a family court in light of its special expertise in the field of family matters. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009); Cesare v. Cesare, 154 N.J. 394, 413 (1998). But we owe no deference to a family court's legal conclusions, N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011), and do not defer if the family court has gone "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007)).

In conducting this dispositional hearing, the family court incorrectly determined that E.D.H. "stipulated to a Title 9 finding of abuse and neglect against her two children. . . ." (emphasis added). She did not; she stipulated only to abuse and neglect as to R.H., and her refusal to extend the stipulation to encompass D.D. was expressly stated.

Based upon our review of the record, the trial court's written opinion and the orders entered subsequent to the hearing, we conclude that a remand for reconsideration is necessary. Our standard of review does not permit us to affirm a determination that is based on facts contradicted by the record, and in this case we cannot be confident that the court's finding that D.D. could not be safely returned to the custody of her mother was not influenced by its misunderstanding of E.D.H.'s stipulation. Our confidence is further undermined by the apparent and unexplained inconsistency between the court's conclusion that D.D. could not safely be returned to her mother's custody and the court's approval of D.D.'s having unsupervised visitation with E.D.H. on alternating weekends.2

Although E.D.H. did not object to the court proceeding with a dispositional hearing on the ground that her abuse and neglect of D.D. had not been established or stipulated, on remand, the court should address the question of abuse and neglect of D.D. as well.

At the outset of its written opinion, the court indicated that this dispositional hearing was conducted "pursuant to N.J.S.A. 9:6-8.47, 51." But under Title 9, a judge has "no authority to enter any order of disposition" in the absence of "a finding or stipulation of abuse or neglect." N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 110 (2010); see also N.J.S.A. 9:6-8.47(a) (providing that the dispositional hearing may commence "[u]pon completion of the fact-finding hearing"). "A fact-finding hearing is a critical stage in a Title 9 proceeding," and it is a "prerequisite to a Title 9 disposition." N.D., supra, 417 N.J. Super. at 100, 110; cf. N.J. Div. of Youth & Family Servs. v. I.S., 422 N.J. Super. 52, 72 (App. Div. 2011) (a case in which an order shifting custody was entered under Titles 30 and 9 after a determination that the Division failed to establish abuse or neglect), certif. granted, ___ N.J. ___ (2012).

We reject the Division's contention that the stipulation as to abuse and neglect of R.H. was an adequate basis for this hearing. Without question, E.D.H.'s admission to abuse and neglect of R.H. is admissible on the question of her "abuse or neglect of any other child." N.J.S.A. 9:6-8.46a(1). The stipulation is not determinative of E.D.H.'s abuse and neglect of D.D., however. See, e.g., N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616-17 (App. Div. 2007) (holding that there was sufficient evidence to sustain a finding that parents abused or neglected one child but insufficient evidence to sustain a finding that they abused or neglected his two siblings); see also V.T., supra, 423 N.J. Super. at 330-32 (reversing a determination of abuse and neglect based solely on evidence that a parent ingested marijuana and cocaine days prior to a supervised visit with the child and reasoning that "[d]rug rehabilitation does not generally progress without incident" and holding that a parent's "failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect"). "Title 9 is not intended to extend to all parents who imbibe illegal substances at any time." V.T., supra, 423 N.J. Super. at 331.

R

emanded for further proceedings in conformity with this opinion; pending further order of the trial court, the arrangement for custody and parenting time in place should continue.

1 At the same fact-finding hearing, the court accepted a stipulation from W.H. stating that because R.H. was born with medical issues he was unable to care for him and the services of the Division were needed.

2 Of course, a finding that D.D. can be safely returned to E.D.H. would not preclude C.D. from initiating a request for change in custody, pursuant to N.J.S.A. 9:2-4, and that application would be governed by a simple best interests analysis. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 402 n.3 (2009).