NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0000

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

M.D.,

Defendant-Appellant,

and

H.A.,

Defendant-Respondent.

__________________________________

IN THE MATTER OF

M.A. and J.A.,

Minors.

__________________________________

October 22, 2013

 

Submitted September 23, 2013 Decided

 

Before Judges Yannotti and Leone.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-155-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Melissa H. Raksa, Assistant Attorney General, of counsel; Michael A. Thompson, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for respondent H.A. (Sarah L. Monaghan, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.A. and J.A. (David R. Giles, Designated Counsel, on the brief).

 

PER CURIAM

Defendant M.D., the mother of M.A. and J.A., appeals from an order terminating the litigation because the children had been returned to the custody of their father, defendant H.A. M.D. claims she was denied due process at each stage of the litigation. To the contrary, M.D. refused to participate in much of the litigation, but was accorded due process throughout. Further, the judge's disposition was appropriate under New Jersey Department of Children & Families v. I.S., 214 N.J. 8 (2013), petition for certiorari filed September 9, 2013. Accordingly, we affirm.

 

I.

M.D. and H.A. were married, lived together, and shared joint legal and physical custody over their children. On October 29, 2010, the Division filed a verified complaint against M.D. and H.A. pursuant to "N.J.S.A. 9:6-8.21 et seq. [Title Nine] and N.J.S.A. 30:4C-12 et seq. [Title Thirty]." The complaint sought care and supervision of their son J.A., born in 1999, and their daughter M.A., born in 2005. The Division had no concern with H.A.'s ability to care for the children, but it was concerned that M.D.'s deteriorating mental state placed the children at risk.

Specifically, the complaint alleged: M.D. had been diagnosed as a schizophrenic, was not taking her medication, and had a history of acting irrationally when she did not take her medication. In July 2010, M.D. was hospitalized for four days at Raritan Bay Mental Health Center (Raritan Bay). She was talking incoherently, hearing voices, and claiming to be God. In early October 2010, M.D. did not take her medication for days, flushed all of her medications down the toilet, acted strangely, and was again admitted to Raritan Bay for nine days. On October 24, M.D. took 120 pills at once because the voices told her to, and was again hospitalized.

On October 29, 2010, the Family Part judge granted an order to show cause because M.D. was hospitalized for an ongoing mental health disorder and had not been taking her medication as prescribed. The judge granted the Division care and supervision over the children, who remained with H.A., and ordered M.D.'s future contact with the children to be supervised.

M.D. was involuntarily committed to Trenton State Psychiatric Hospital for longer-term hospitalization. At the return hearing on the order to show cause, held on November 16, 2010, M.D. was represented by counsel. The judge reiterated her prior order, and recognized H.A.'s physical custody of the children.

A psychiatric evaluation confirmed M.D.'s diagnosis of schizophrenia, and further suggested she might be bipolar, manic depressive, and psychotic. On January 6, 2011, M.D. was released from the Trenton State Psychiatric Hospital, returned home, and began outpatient treatment at Raritan Bay, which treated her for medication non-compliance.

At the February 8, 2011 hearing, M.D. appeared with counsel. The Division stated it had had concerns about M.D.'s ability to supervise the children, but the allegations of neglect were unfounded "because [in] her 14-year history of battling schizophrenia, she was never substantiated for neglect." Without objection, the Division withdrew its allegations under Title Nine, and the case preceded solely under Title Thirty. The judge ordered M.D. to continue at Raritan Bay, take her prescribed medications, and participate in the Integrated Case Management Services (ICMS) program to monitor her medications. M.D., through counsel, said she would comply.

At the next hearing on March 22, 2011, the judge ordered M.D. to participate in a part-day program at Raritan Bay, continue with ICMS, and take her prescribed medications. The judge reiterated those orders at hearings on June 15, August 16, and October 11, 2011. M.D., through counsel, stated on March 22, June 15, and October 11 that M.D. had no objections to and was fine with those requirements, and with the Division's care and supervision of the children. Indeed, during this period, M.D. was largely compliant and made progress. On June 15, 2010, at the request of M.D.'s counsel, the judge agreed to allow M.D. unsupervised visitation of and restored M.D.'s joint custody with H.A. over the children. The judge warned M.D. that joint custody was "contingent upon compliance with your treatment." On October 11, at the behest of M.D.'s counsel, the judge listed the case for dismissal at the next hearing on December 13, 2011, because M.D. had been compliant and the family had been stable for several months.

Unfortunately, M.D. never attended another hearing. At the December 13, 2011 hearing, Raritan Bay reported that M.D. had not appeared there since October 13, 2011, that attempts to contact her had failed, and that she was being dropped from the part-day program. The Division's counsel stated that she stopped taking medications on October 13. The judge ordered M.D. to continue in Raritan Bay's part-time program and medication monitoring, and be compliant with taking her medications.

At the February 21, 2012 hearing, M.D.'s counsel said he sent M.D. a letter confirming the hearing date and requesting a response, but she had not contacted him. The judge admitted a Division report relating: in January 2012, M.D. was not taking her diabetic medication, had not refilled her psychotic medicine, and was refusing to go to Raritan Bay; she was behaving irrationally, tried to attack H.A., and refused to sign a safety protection plan; she refused to cooperate with the Division, and screamed threats at the caseworker, who had police help H.A. and the children escape from M.D. The Division's counsel reported that, as of the time of the hearing, M.D. was taking her medications, but had not re-engaged with Raritan Bay. The judge ordered her to do both.

On March 9, 2012, the Division performed an emergency removal of M.D. from the home. On March 13, the Division filed an amended verified complaint and an order to show cause asking for M.D.'s continued removal from the home because she was no longer attending her mental health treatment, and was physically preventing H.A. from administering necessary diabetic and anti-seizure medication to J.A. The caseworker testified that, as a result, J.A. was having repeated seizures and his life could be endangered. M.D.'s counsel cross-examined the caseworker, and elicited that the requested sole custody for H.A. would be temporary until the litigation is resolved. The judge upheld M.D.'s removal, required her contact with the children to be supervised, and gave H.A. sole legal custody.

At the May 8, 2012 return on the order to show cause, M.D.'s counsel said he had a private investigator trying to find where M.D. was now living, and had left M.D. a message about the hearing date but received no response. The judge admitted a Division report relating: M.D. declared she did not want to have anything to do with the Division, would not be engaging in any mental health services, and was uninterested in visiting the children; her whereabouts were unknown; and it was unknown whether she was compliant with her medications. The judge expressed concern that M.D. was not locatable and "we don't know if she's on medication." The judge continued legal and physical custody with H.A., and ordered M.D. to contact the Division immediately and re-engage in the services previously ordered. The judge instructed M.D.'s counsel to inform M.D. that a dispositional hearing would be held on July 18, 2012.

At the July 18, 2012 hearing, M.D.'s counsel said that he had not heard from M.D., despite attempts to contact her, and that his investigator tried to locate her. The judge noted M.D.'s repeated failure to appear at recent hearings, despite the efforts of her counsel and the Division.

The judge admitted a court report relating that: M.D. had not been in contact with the Division; when a caseworker encountered M.D., she refused to give her address; M.D. agreed to a psychiatric evaluation only to prove that she does not need any mental health services or any medication;2 and M.D. subsequently returned to the home and refused to leave, forcing H.A. and the children to move to a motel.

The judge admitted a Court Appointed Special Advocate (CASA) report relating that M.D. had repeatedly refused to take her medications, and recommending that H.A. have sole physical and legal custody. The Division, H.A., and the children's Law Guardian agreed that H.A. should have full legal and physical custody. M.D.'s counsel could not consent because he had not heard from M.D., and counsel requested joint legal custody.

The judge took judicial notice of the history of the case and its prior orders, which noted the many exhibits previously admitted. The judge emphasized that the orders required M.D. to continue treatment with Raritan Bay and take her prescribed medication. The judge noted M.D.'s ultimate failure to follow these orders, and found it unsafe to give M.D. joint physical custody "because she's not taking her medication and [was] stopping the child from taking his."3 The judge found that nothing indicated M.D. was sufficiently mentally stable to have legal custody, which would give her the right to help make medical decisions.

The judge stated that disposition was needed. The judge ruled that the children should remain in H.A.'s full legal and physical custody based on the history of M.D.'s mental health and medication issues and her interference with H.A.'s ability to parent, and dismissed the litigation.

The attorneys for the Division, H.A., and the children stated that H.A. planned to move to Puerto Rico with the children. M.D.'s counsel again objected. The judge noted that the CASA report indicated H.A. wanted to go to Puerto Rico

[b]ecause he has family that's there willing to help him. And he wants the kids to have as normal a life as possible. And there's nothing wrong with that. And so I I think, he's clearly acting in their best interest to do so.

 

The judge's order, however, made no mention of H.A.'s desire to move.

II.

M.D. appeals from the July 18, 2012 order. We must hew to our standard of review.

[W]e defer to a trial court's factual findings "because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." We have long recognized that "[b]ecause of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding." Thus, if there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings. Nevertheless, if the trial court's conclusions are "clearly mistaken or wide of the mark[,]" an appellate court must intervene to ensure the fairness of the proceeding.

 

[N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226-27 (2010) (citations omitted).]

III.

M.D. first claims that she was denied due process because the judge did not require the Division to prove, or obtain a stipulation to, abuse or neglect in the Title Nine proceeding. However, the Title Nine proceeding was terminated without objection from M.D. or her counsel on February 8, 2011, when the judge permitted the Division to withdraw its allegations under Title Nine and to continue the litigation solely under Title Thirty. Accordingly, M.D. must show plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2.

M.D. cannot show error. Title Nine requires that the Division dismiss allegations of abuse and neglect "[i]f facts sufficient to sustain the complaint under this act are not established." N.J.S.A. 9:6-8.50c. In litigation filed under both Title Nine and Title Thirty,

"when the abuse or neglect proceeding is terminated without a finding that the allegations in the complaint are substantiated, the Title 9 action should be dismissed after exercise of jurisdiction under Title 30 and orders should be entered in accordance with the standards and procedures pertaining to Title 30 litigation."

 

[I.S., supra, 214 N.J. at 31 (quoting N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 109 (App. Div. 2010)).]

 

"'A dismissal of a Title 9 action . . . does not foreclose further intervention by the Division pursuant to N.J.S.A. 30:4C-12 to protect a child who, although not abused or neglected, is in need of services to ensure [his or her] health and safety.'" Id. at 33 (quoting N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 64 (App. Div. 2012)).

M.D. does not dispute that the children were in need of services to ensure their safety. At the time of the February 2011 order, M.A. was diagnosed with attention deficit hyperactivity disorder, and adjustment reaction with anxiety, depression, and anger. J.A. was diagnosed with attention deficit disorder, adjustment disorder with depression and anxiety, mild mental deficiency, and a history of seizures. He was later diagnosed with autism and mild mental retardation, and he needed medications to control his diabetes and seizures.

It was entirely appropriate to provide care and supervision under Title Thirty. The ability of the parents to address the children's needs was compromised. Even after M.D.'s initial hospitalizations, she had exhibited irrational behavior as a result of her mental health problems, including schizophrenia, and was still hindered by her illnesses and medications. There was concern that H.A. was overwhelmed, in part due to M.D.'s mental health and medication issues. H.A. consented to the Division's care and supervision from the very first hearing, and M.D. agreed thereafter.

M.D. nonetheless asserts Title Nine had to be used, because Title Thirty is "out-of-date," "amorphous and undefined." To the contrary, Title Thirty "is an acknowledged 'additional tool afforded [to] the Division to discern the most appropriate course of action for a child and his or her family in need of the Division's assistance.'" Ibid. (quoting N.J. Div. of Youth and Family Servs. v. J.C., 423 N.J. Super. 259, 267-68 (App. Div. 2011)). Further, N.J.S.A. 30:4C-12 provides "a multi-step process" which "establish[es] limits" and "puts important checks in place" to prevent the Division from unnecessarily intruding into the lives of families. Id. at 34-35.

IV.

On appeal, M.D. argues that the judge evaded Title Nine's procedural requirements by relying on H.A.'s stipulation to services in violation of N.D. N.D., however, concerned a proceeding under Title Nine. In N.D., the court gave custody of a child to the Division under Title Nine without a fact finding proceeding and without a finding or stipulation of abuse or neglect. N.D., supra, 417 N.J. Super. at 110. The Division in N.D. argued that the parent had stipulated to services under Title Thirty, but the court's order was entered under Title Nine and the parent's stipulation did not address custody or agree that the child was in danger. Id. at 112-13. By contrast, the judge here followed N.D.'s dictate that, absent a finding of abuse and neglect, "the Title 9 action should be dismissed after exercise of jurisdiction under Title 30, and orders should be entered in accordance with the standards and procedures pertaining to Title 30 litigation." Id. at 109. Further, the judge did not rely on H.A.'s stipulation to services as a basis to alter custody.

M.D. next claims that a fact-finding hearing was required under Title Nine before the Division could be granted legal custody over the children on March 13, 2012. In fact, the Division did not request or receive custody in the March 13, 2012 order to show cause. Instead, the judge ruled that H.A. "shall have full (sole) legal custody of both children," with the Division merely continuing "care and supervision." The judge deleted from the order the form language that would have placed the children in the custody of the Division.4

In any event, the order to show cause and amended verified complaint were filed under both Title Nine and Title Thirty. Title Thirty permits emergent action when there is "imminent danger to the child's life, safety or health," as the judge properly found in a summary hearing. See N.J.S.A. 30:4C-11.2; R. 5:12-1(d). There is no merit to M.D.'s argument that the judge had to proceed under Title Nine rather than Title Thirty. Thus, M.D. fails to show plain error on these claims.5

V.

On appeal, M.D. next tries to invoke Title Nine by arguing that a dispositional hearing was required but unavailable because no finding of abuse or neglect had been made. M.D. cites N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009), which held that "the statutory framework of Title Nine provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be." Id. at 387-88. As its holding suggests, however, G.M. was "a Title Nine abuse and neglect proceeding," id. at 387, and G.M.'s analysis was based on "the statutory framework of Title Nine," id. at 397, 400, particularly Title Nine's requirement of a "dispositional hearing" after a finding of abuse or neglect, id. at 399-401; see N.J.S.A. 9:6-8.45 to -51.

Here, by contrast, the judge proceeded under Title Thirty, which "does not discuss dispositional hearings, as delineated in Title 9." N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 23 (App. Div. 2010). Accordingly, G.M.'s requirement of a dispositional hearing after a finding of abuse and neglect is inapposite. See I.S., supra, 214 N.J. at 29-30 (distinguishing G.M. because "[i]n G.M., unlike the [Title 30] matter presently before us, we determined that the court maintained jurisdiction under Title 9"). M.D. cannot show plain error because this was not a Title Nine proceeding.

VI.

M.D. posits that under Title Thirty, a trial is required before the Division can be granted custody of a child. However, the Division never sought or obtained physical custody of the children. Nor did the Division have legal custody, with one brief exception.6 Rather, the children were merely placed under the Division's care and supervision. In any event, N.J.S.A. 30:4C-12 requires only "a summary hearing" be held at least every six months. M.D. does not dispute the adequacy of the many summary hearings which allowed the Division to provide care and supervision, with her repeated agreement.

Of course, on March 9, 2012, the judge did award legal custody to H.A., and on May 8 and July 18, 2012, it continued legal and physical custody with H.A. This custodial change occurred, however, only after M.D. dropped out of her mental health treatment regimen, refused to cooperate with the Division or her counsel, and stopped coming to the hearings.

After October 11, 2011, M.D. stopped going to her mental health treatment, stopped taking her anti-schizophrenia medicine, and began behaving irrationally again. She stopped cooperating with the Division, and threatened its caseworker. She attacked H.A., temporarily driving both father and children from the home. Finally, she insisted on physically preventing H.A. from administering necessary diabetic and anti-seizure medication to J.A., causing seizures and putting the child's life at risk. Accordingly, the judge took the necessary step of separating M.D. from the children and removing her legal power over their medical treatment. Thereafter, M.D. stopped visiting the children and said she was not interested in seeing them.

Furthermore, after October 11, 2011, M.D. refused to attend any of the court's hearings, despite personal, telephonic, and mailed notice, and repeated efforts by the court, the Division, and her counsel to procure her presence. She declined to appear at the final hearing on July 18, 2012, despite the warning that it would be dispositive. Indeed, M.D. refused to speak even to her own lawyer, and would not reveal where she was living.

Despite all this, M.D. was accorded due process by the court. The judge took testimony, allowed cross-examination, and heard argument before granting M.D.'s emergency removal and converting H.A.'s legal custody from joint to sole at the order to show cause hearing in March 2012. At the May 2012 return on the order to show cause, the judge admitted reports from the Division and CASA, had the caseworker under oath and available for examination, and listened to argument. See R. 5:12-4(d) (allowing reports by Division staff and by professional consultants to be submitted into evidence and treated as prima facie evidence).7 At the July 2012 hearing, the judge received new Division and CASA reports, had the caseworker and CASA worker under oath and available, heard argument, and also took judicial notice of the orders in the case and the history they reflected. See N.J.R.E. 201(b)(4) (allowing a judge to take judicial notice of records of the court). Throughout the proceedings, M.D. was represented by counsel, who argued, cross-examined, and objected to the transfer of custody to H.A. The due process M.D. received at these hearings was more than adequate.

M.D. focuses on the July 2012 hearing, but that hearing was a continuation of the transfer of custody begun at the March 2012 and May 2012 hearings, so all three hearings must be considered. M.D. also questions whether the July hearing was a proper dispositional hearing, as the judge described it, rather than a summary hearing. As set forth above, however, Title Thirty only requires summary hearings, not dispositional hearings. In any event, even under Title Nine, "dispositional hearing" simply "means a hearing to determine what order should be made," N.J.S.A. 9:6-8.45, at which the court can consider whether "the child's best interest demands that custody rest elsewhere." J.D., supra, 417 N.J. Super. at 22. That is what the judged did at the July 2012 hearing. M.D. has thus failed to show plain error.

 

 

VII.

Moreover, the conversion of H.A.'s custody from joint to sole was permissible under I.S. During Title Thirty actions, courts are permitted to transfer custody even from a custodial parent to a non-custodial parent. I.S., supra, 214 N.J. at 40-42.8 Here, the change was less drastic because H.A. was already a custodial parent with joint legal and physical custody. I.S. ruled that a non-custodial parent may file a motion for a change in custody, show changed circumstances, and obtain custody after "a best-interests analysis that employed the factors set forth in N.J.S.A. 9:2-4," "preferabl[y]" with "separate and distinct proceedings at which the Title 30 actions are adjudicated to disposition and FM custody matters are adjudicated." Id. at 41. We assume without deciding that the same process is preferable when a parent with joint custody seeks sole custody.

Here, as in I.S., "that process was not followed precisely." Id. at 40. Nonetheless, the process was adequate. The March 2012 and May 2012 orders of the court gave M.D. notice of the emergency transfer of custody, and she had opportunities at both the return date and the final hearing to prevent the temporary transfer from becoming the disposition adopted at the July 2012 hearing. Circumstances had clearly changed once M.D. terminated all treatment, ceased taking medication, became irrational and threatening, and put the children at risk. The judge made the change based on the children's "best interest."9 Further, "the family court informed the parties in this matter in advance of its intention to adjudicate the completion of the Title 30 proceedings, as well as the open custody dispute between the parents." Id. at 42 n.6. Thus, "the consolidated procedure followed by the court did not result in any cognizable harm to" M.D. Id. at 41-42.

More fundamentally, as the Supreme Court stated in I.S., "it would require blinders for this Court not to recognize that granting custody to [H.A.] was an appropriate disposition to end the Title 30 proceedings." Id. at 41. Given M.D.'s termination of her mental health treatment, her irrational behavior, her non-cooperation, her active endangerment of J.A., and her disinterest in visiting the children, "it would not have been consistent with the court's continued responsibility to act in the best interests of [their] health and safety to return [them] to [their] mother's custody at that time." Ibid. Accordingly, H.A. "was the only appropriate parent to award custody to at the dispositional conclusion of this fact-sensitive Title 30 proceeding." Ibid. As in I.S., the children's "best interests were served by the court's grant of custody [to H.A.] when disposing of the Title 30 proceedings," and "the court's ultimate action was the only one that could have been judicially imposed." Ibid.

M.D. notes the concerns about H.A. being overwhelmed, but those concerns arose in part from M.D.'s own mental health and medication issues and interference with his care of the children. M.D. also points to glitches in H.A.'s compliance with the court and the Division. H.A. was generally compliant, however, unlike M.D. who became wholly noncompliant. Given the risk she posed to the children, her refusal to participate further in the services offered under Title Thirty, and the resulting pointlessness of continuing the Title Thirty proceeding commenced to address her disability, M.D. can point to no better alternative than that chosen by the judge. 10

VIII.

M.D. claims that the judge's granting of sole legal and physical custody to H.A. effectively terminated her parental rights. Based on that claim, M.D. argues that she was entitled to a termination-of-parental-rights hearing, at which the Division would have been required to prove by clear and convincing evidence the standards set forth in N.J.S.A. 30:4C-15.1a. However, this was a proceeding under N.J.S.A. 30:4C-12, and a transfer of custody between parents based on the best-interest factors set forth in N.J.S.A. 9:2-4. See I.S., supra, 214 N.J. at 40. It was not a guardianship case under N.J.S.A. 30:4C-15, which requires a termination-of-parental-rights hearing and a meeting of the termination standards by clear and convincing evidence.11 "N.J.S.A. 30:4C-15 to -24 differs from both N.J.S.A. 30:4C-12 and N.J.S.A. 9:6-8.21 to -8.73 in that it provides for a permanent remedy: termination of parental rights and placement of the child under the guardianship of DYFS." N.J. Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 394-95 (1990).

More fundamentally, M.D.'s parental rights have not been terminated in law or in fact. "The termination of [parental] rights entails a permanent sundering of parental ties. This is substantially different from child custody, which is governed by a 'best interests' standard and is impermanent, being subject to alteration as changed circumstances require." R.H. v. M.K., 254 N.J. Super. 480, 484 (Ch. Div. 1991). M.D. "may move before the Family Part to request alteration of the custodial arrangement for [the children] at any time in light of changed circumstances." I.S., supra, 214 N.J. at 42. Indeed, the judge expressed the hope that M.D. would resume her treatment and medication and make an application to share custody.

M.D. argues that the judge effectively terminated her parental rights by approving H.A.'s relocation to Puerto Rico. However, that was not mentioned in the judge's written order and was not expressly stated in her oral comments. Even assuming the judge authorized H.A. to relocate under N.J.S.A. 9:2-2, that does not terminate M.D.'s parental rights. M.D. may still make an application in the appropriate court seeking custody or visitation.12

IX.

Lastly, M.D. claims that she was denied effective assistance of counsel. Specifically, M.D. faults counsel for failing to raise the meritless arguments discussed above. "It is not ineffective assistance of counsel for defense counsel not to make a meritless motion" or a meritless argument. State v. O'Neal, 190 N.J. 601, 619 (2007). M.D. misstates her counsel's efforts on her behalf, and ignores the effect of her own refusal to participate in treatment, cooperate with the Division, appear in court, or even communicate with counsel. M.D. thus fails to show that her counsel's performance was deficient or that she was prejudiced. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307-09 (2007).

X.

We recognize that a parent has a "constitutionally protected right 'to raise a child and maintain a relationship with that child.'" N.J. Dept. of Children and Families v. A.L., 213 N.J. 1, 17-18 (2013) (citation omitted). However, that right must be balanced against "'the State's parens patriae responsibility to protect the welfare of children.'" Ibid. We cannot say that the judge here struck the wrong balance.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, which included the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as the Division.

2 Nothing in the record indicates that M.D. ever attended this evaluation.

3 Based on M.D.'s interference, her failure to contact the Division, and her non-compliance with medication reflected in the court's prior orders, the judge made "the assumption that she's not taking her medication" and "is not at a stable point."

4 The judge also upheld the emergency removal of M.D. from the home. Cf. N.J.S.A. 9:6-8.27 to -8.30 (addressing the removal of a child). M.D. has not challenged her removal, so we do not address it.

5 Indeed, a determination under N.J.S.A. 30:4C-12 "is less damaging to parents [than Title Nine] in that the child abuse registry, see N.J.S.A. 9:6-8.11, is not implicated. Moreover, it is temporary and must periodically be reviewed." I.S., supra, 214 N.J. at 37.

6 At the June 15, 2011 hearing, the Division reported that J.A. needed significant medical services but no longer had health insurance. M.D. and H.A. agreed to the Division taking legal custody of J.A. to provide health coverage until they could get J.A.'s coverage restored. The judge ordered that legal custody would automatically transfer back to M.D. and H.A. once they obtained insurance, which occurred by August 1, 2011. M.D. does not challenge that brief consensual interlude.

7 M.D. claims that the judge relied on unsworn statements from attorneys, but the testimony and reports supported all the facts and reasonable inferences argued by the attorneys and relied on by the judge.

8 Such a change in custody between parents is distinct from the placement under N.J.S.A. 9:6-8.54 discussed in G.M., supra, 198 N.J. at 402-03, and N.D., supra, 417 N.J. Super. at 111-12.

9 The judge did not cite N.J.S.A. 9:2-4, but discussed several of its factors. The judge addressed the parents' ability to agree, communicate and cooperate in matters relating to the children, the parents' willingness to accept custody, the interaction and relationship of the children with the parents, the safety of the children, the needs of the children, the stability of the home environment, and the fitness of the parents.

10 M.D. argues that "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). That is true when the Division takes custody under Title Nine, ibid.; G.M., supra, 198 N.J. at 401, and may be true where the Division takes custody of children under other statutes, J.C., supra, 423 N.J. Super. at 266 (dicta). By contrast, here, as in I.S., the court did not transfer children from the custody of their parents to the Division (with the minor, consensual exception noted above), but permitted care and supervision under N.J.S.A. 30:4C-12, and returned the children to the only appropriate parent. In that situation, I.S. looked at practicalities rather than punctilios, as do we.

11 Unlike permanent termination of parental rights, which "implicate core constitutional rights and therefore are governed by the clear and convincing evidence standard," proceedings under N.J.S.A. 30:4C-12 and N.J.S.A. 9:2-4 utilize only the preponderance of the evidence standard. N.J. Div. of Youth and Family Servs. v. R.D., 207 N.J. 88, 113 (2011); see I.S., supra, 214 N.J. at 25-26, 38.

12 M.D. does not raise the visitation issues discussed in New Jersey Division of Youth & Family Services v. T.M., 399 N.J. Super. 453 (App. Div. 2008), so we do not address them.