NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

C.B.,

Defendant-Appellant,

and

M.C.,

Defendant-Respondent.

IN THE MATTER OF B.B. and R.C. Jr.,

Minors.

December 23, 2013

Argued November 4, 2013 Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FN-18-130-09.

Angelo G. Garubo, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Garubo, on the brief).

Michael S. Harwin, Designated Counsel, argued the cause for respondent M.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief).

Elizabeth S. Sherwood, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Sherwood, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor B.B. (Joseph E. Krakora, Public Defender, attorney; Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant C.B. appeals from the January 17, 2012 order of the Family Part terminating the protective services litigation and returning his daughter B.B. to her mother M.C. Defendant also appeals from an earlier order of December 2, 2011 denying his motion to enforce litigant's rights as to his visitation with B.B., and an October 20, 2011 order denying his motion for reconsideration of orders dated April 15 and August 23, 2011. We affirm.

By way of background, B.B. was born in July 2000 to M.C., who was then married to defendant, the child's biological father. The couple divorced on July 8, 2002, and an order was entered in the matrimonial (FM) matter barring defendant from visitation with his daughter until further order of the court, and granting M.C. sole legal and physical custody of B.B. Following his divorce from M.C., defendant engaged in a lengthy period of multi-substance abuse. He relocated to Georgia, where he was incarcerated in state prison for four years as a result of drug convictions. Following his release from incarceration, defendant remained on parole through late 2008, about the same time the Division of Youth & Family Services (Division) applied for and was granted care, custody and supervision of B.B., who was then eight years old, and who had not communicated with defendant since she was eleven months old.2

At the time the Division filed its initial complaint, B.B. and her half-brother R.C. Jr. were living in New Jersey in the home of their maternal grandparents with their mother M.C. and stepfather R.C., who was R.C. Jr.'s father. Prior to 2008, the family resided in Florida, where M.C. and R.C. were investigated numerous times by the Florida Child Welfare Agency, the Division of Children and Families (the Florida Division). The Florida Division substantiated three of the referrals the agency received regarding the couple. On September 3, 2008, M.C. and R.C. signed a safety plan in Florida, and the agency planned to place services in the family's home. However, on that same evening, M.C. and R.C. packed up their home and drove their children and belongings to New Jersey to stay with the children's maternal grandparents, without notifying the Florida Division.

On September 10, 2008, the Florida Division contacted the Division in New Jersey. After receiving the referral, the Division investigated the couple and determined it was necessary to remove the children and place them with their maternal grandparents. Accordingly, the Division effected an emergency removal of B.B. and R.C. Jr.3pursuant to the Dodd Act, N.J.S.A.9:6-8.21 to 8.82.

As noted, on September 12, 2008, the Division filed a verified complaint seeking custody of B.B. and her half-brother, R.C. Jr., and charging M.C. and R.C. with abuse and/or neglect of the children. The Division's initial complaint was premised on couple's long history of substance abuse and domestic violence. Defendant was named in the complaint solely as a dispositional party because he is the biological father of B.B. No allegations of abuse or neglect were made against him.

On the same date as the Division's complaint, the Family Part judge placed the children in resource care with their maternal grandparents, finding their removal was necessary due to the risk of imminent harm posed by M.C. and R.C.4 Defendant was first notified of the Division's action by a letter from the agency dated December 15, 2008, seeking his assistance in formulating a permanent plan for B.B.

By the next hearing, which was a fact-finding hearing conducted on March 30, 2009, defendant had been released from incarceration and participated in the proceeding by telephone, albeit without counsel. At the conclusion of the hearing, the court found that R.C. had abused and neglected the children, in that he admitted to marijuana use in August and September of 2008. No similar finding against M.C. was requested by the Division or entered by the court. Defendant was asked whether he had any questions, to which he replied he did not.

Thereafter, defendant was represented by counsel, who appeared on defendant's behalf at a permanency hearing on October 7, 2009, the children having been in Division custody for over one year.5 Defendant again participated by telephone. At the time, the Division informed the court of its plan to terminate M.C.'s and R.C.'s parental rights, followed by adoption of the children. Defendant's counsel represented that defendant resided in Georgia and had "come late" to the case, and thus that he was in no position to dispute what any of the counsel had said. Defendant's attorney also represented that defendant took no position as to the permanency plan for B.B. The court found by a preponderance of the evidence that the Division's permanency plan was appropriate and acceptable in part because defendant had never parented B.B., and continued physical custody of the children with their maternal grandparents. Thereafter, on December 7, 2009, in accordance with the court's earlier order, the Division filed a complaint for guardianship of B.B. and R.C. Jr., seeking to terminate the parental rights of defendants M.C. and R.C. On that same date, the Title 9 complaint was dismissed.

Nine months later, at a permanency hearing on October 1, 2010, the law guardian opposed the Division's permanency plan of termination of parental rights and advocated for reunification of the children with M.C. Following the hearing, the court agreed, and rejected the Division's proposed plan in favor of reunification, noting that there were "extraordinary factors in this case that require more time to assess what should be happening." In the interim, there had been a July 22, 2010 bonding evaluation conducted by Dr. Alan Gordon, who found M.C. to be appropriate with the children and that the children were happy in her care. It was also learned that M.C. and R.C. had separated in 2009, although she maintained contact with him when she traveled to Florida. Furthermore, Dr. Alexander Iofin had performed a psychiatric evaluation of M.C. and his report of August 29, 2010 concludes that M.C. would benefit from continuation of treatment with her mental health providers. And on September 30, 2010, the Division received correspondence from Melissa Richardson, FNP-BC of Somerset Family Practice, who reported that the medications that M.C. was prescribed, when used appropriately, would not interfere mentally or physically with her ability to care for others.

During this same time period, on July 16, 2010, B.B. first came to learn that defendant was her biological father, having previously been led to believe that R.C. enjoyed that status. The issue of how B.B. was to be apprised of this fact was the subject matter of a recommendation by B.B.'s therapist, Melissa Callen, at Richard Hall Community Mental Health Center. Consequently, on June 21, 2010, the court ordered that visitation for defendant be temporarily suspended pending further order of the court and until such time as B.B. was informed of defendant's identity, at which point he was entitled to supervised parenting time. It was also ordered that B.B. be notified that defendant was her father not later than July 5, 2010.

Although the Division made efforts to facilitate visitation, problems were encountered, complicated by the extant no-contact court order in the FM matter as well as M.C.'s strenuous resistance. Specifically, the Division arranged therapy sessions for B.B. to the end of facilitating a meeting between her and defendant. Frustrated by the lack of progress, on August 24, 2010, defendant moved to enforce the court's June 21, 2010 order directing the Division to provide supervised parenting time to defendant.

Two days later, the Division received correspondence from Somerset Pediatric Group, P.A., reporting that B.B. had been diagnosed with probable panic attacks and had been referred to a psychiatrist for further care. In August, the Division also learned that B.B. would be resuming counseling on a weekly basis with Callen. Thereafter, Callen reported that "[B.B.] maintained that she [did] not want to meet [her] biological father." Moreover, in September 2010, Dr. David F. Bogacki performed a psychological evaluation of B.B. and found that B.B. "adamantly states that she does not want to visit her father. The degree to which she does not want to visit her father, who she has never met, appears to have a direct correlation with information that was shared with her by her mother and maternal grandfather." However, Dr. Bogacki opined that supervised visitation between B.B. and defendant would not cause any enduring emotional harm.

Consequently, at the October 1, 2010 permanency hearing during which, as previously noted, the court favorably considered a plan of reunification with M.C., the court also concluded that parenting time between B.B. and defendant was presently not in her best interests, although it was in her best interests ultimately. Accordingly, the court ordered that should B.B.'s therapist recommend that B.B. have contact with defendant, this could occur without further court order, and that, in the meantime, defendant could write letters to B.B., which would be shared with her during therapy.

Thereafter, the Division received correspondence from various mental health professionals, including Dr. Gordon and Dr. Iofin, that supported reunification of the children with M.C. Specifically, M.C.'s medical doctors opined that her physical condition and medications would not interfere with her ability to parent her children. Moreover, M.C. had complied with the recommendations of the Division. M.C.'s parents were receptive to M.C. moving in with them, and thus, M.C. had an appropriate residence. M.C. had also separated from R.C.

Dr. Gordon opined that a strong bond existed between M.C. and the children, and that it would be a very workable plan for M.C. to move in with her parents and co-parent her children. Dr. Gordon further opined that this plan would be in the best interests of B.B. As concerns defendant, Dr. Gordon, who conducted psychological evaluations of B.B. on October 27 and December 9, 2010, concluded that B.B.'s introduction to defendant should be very slow and gradual because B.B. required time to digest the information, and recommended that until defendant was evaluated and B.B. becomes more comfortable with the letters, he should not be introduced further.

A permanency hearing was held on December 14, 2010, at which time the Division presented, and the court approved, a permanency plan of reunification of both children with M.C., although it was requested that M.C. be supervised with the children. The law guardian supported the Division's plan as in the best interests of the children. Accordingly, the court determined that the circumstances that led to the removal of the children had been corrected in that M.C. had engaged in services with both of her children. Additionally, M.C.'s physician had opined that her medications did not interfere with her ability to parent her children, and Dr. Gordon recommended that M.C. have the opportunity to co-parent her children.

That same date, the court ordered that custody of B.B. and R.C. Jr. be transferred to M.C., but with supervision, and that the children continue under the care and supervision of the Division. The guardianship litigation was dismissed with the matter reverting to litigation under the FN docket number. Finally, the court ordered that B.B. continue in therapy and that defendant be permitted to write letters to B.B., to be shared with her during therapy. The court reserved on the issue of parenting time with defendant and B.B. until a protocol was received from B.B.'s therapist. Nevertheless, the court again found that although parenting time with B.B. and defendant was presently not in her best interests, ultimately, it would be.

Subsequently, on April 15, 2011, over defendant's objection, the court granted M.C. unsupervised parenting time with the children, provided that M.C. continue to reside with her parents, until further order of the court. Several months later, on August 23, 2011, the judge granted defendant's August 24, 2010 motion to enforce the court's June 21, 2010 order granting defendant supervised visitation with B.B. The court found that while the Division had acted appropriately in providing reasonable efforts towards establishing parenting time between defendant and B.B., it was in the child's best interest that additional steps be taken, including the commencement of therapeutic parenting time. The judge then ordered the Division to arrange parenting time, and stated that her order shall serve to amend the existing restraining order under the FM docket, in order to permit contact between defendant and B.B.

The therapeutic parenting time ordered by the judge never took place however. M.C. moved for a stay of that portion of the court's August 23, 2011 order, and when relief was denied, further moved to prevent defendant's visitation with B.B., which was also denied. In addition, on October 20, 2011, the judge denied the Division's request to dismiss the protective services litigation because of concern over circumvention of her orders. The judge further ordered that defendant be allowed visitation with B.B., with the following conditions: (1) Dr. Gordon must meet with B.B. first to determine whether or not therapeutic visitation shall move forward; and (2) the visitation would be supervised by Dr. Gordon.

On October 21, 2011, Dr. Gordon sent the Division a letter stating that he had scheduled a therapeutic visitation between B.B. and defendant, to occur on October 7, 2011. However, on October 5, 2011, M.C. indicated that she would not cooperate with the visit, and therefore, Dr. Gordon only interviewed defendant.

Following the interview, defendant filed a motion seeking to enforce litigant's rights. Specifically, defendant sought to have the court find that M.C. had violated his rights by failing to comply with the court's August 23, 2011 order granting defendant supervised parenting time with B.B. M.C. once again opposed defendant's motion, certifying that the reason she did not bring B.B. to the scheduled visitation was that B.B. became extremely upset and suffered anxiety in anticipation of meeting defendant. In support of her certification, M.C. attached a letter from Dr. Trupti Patel, dated October 7, 2011, which stated that she saw B.B. on that date, and that B.B. had suffered panic/anxiety episodes over the previous twenty-four hours.

On December 2, 2011, the court issued an order denying defendant's motion to enforce litigant's rights. In doing so, the court took note of Dr. Patel's October 7, 2011 letter, and stated that its ultimate concern is the best interest of the child.

On December 15, 2011, Dr. Gordon conducted another psychological evaluation of B.B., for the purpose of determining whether therapeutic visitation with defendant should go forward. During the evaluation, B.B. stated that she would prefer not to see a picture of her father, that her mother does not want her to see him, and that she is afraid her father is going to take her away from her mother. In his report, Dr. Gordon indicated that the question is not if B.B. should see defendant, but when. However, Dr. Gordon ultimately concluded that visits between defendant and B.B. would not be productive at this time. Dr. Gordon opined that B.B. needed time to absorb the fact that defendant is her biological father, and time to adjust, and therefore, he recommended that B.B. remain in therapy with the goal of visitation with defendant.

The matter was again reviewed on January 17, 2012, when the Division again sought dismissal of the protective services litigation, representing that M.C. and R.C. had successfully completed services, and there were no further recommendations for treatment. Further, the Division suggested that any outstanding visitation and custody issues between defendant and M.C. would be appropriately addressed under a different docket, without the Division's involvement, as those issues are not part of the Title 9 litigation. Moreover, because there had notbeen a transfer of custody, there was no need for a hearing pursuant to New Jersey Division of Youth & Family Services v. G.M., 198 N.J.382 (2009). The law guardian concurred in the Division's motion to dismiss, as it was not in the best interest of the children to keep the matter open, and because all the originating issues had been resolved.

Defendant opposed dismissal of the litigation, arguing that M.C. engaged in parental alienation and was herself unfit to parent B.B., and that issues of parenting time and custody should be addressed under the FN docket.

The court dismissed the matter from litigation finding that the issues of abuse and neglect that had brought the family before the court in the first instance had since been remediated; that the Division had made reasonable efforts to facilitate visits between defendant and B.B.; and that any outstanding issues related to custody and visitation should be addressed under the FM docket.

This appeal follows in which defendant raises the following issues:

I. THE COURT BELOW DID NOT CONDUCT THE PROCEEDINGS IN A MANNER WHICH PROTECTED THE RIGHTS OF C.B. AND AS SUCH C.B. SUFFERED PREJUDICE.

II. THE COURT BELOW DID NOT CONDUCT A DISPOSITIONAL HEARING BEFORE AWARDING CUSTODY OF B.B. TO HER GRANDPARENTS WITH VISITATION TO HER MOTHER.

III. THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO PREVENT THE PLACEMENT OF B.B. AND FAILED TO ACT TO PLACE THE CHILD WITH HER FATHER.

IV. FAILURE TO RETURN B.B. TO HER FATHER WAS NOT IN THE CHILD'S BEST INTEREST.

We find no merit to any of these contentions.

Generally, the scope of appellate review of the trial judge's factual finding of abuse or neglect is limited; and we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super.77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J.394, 412 (1998)). We generally defer to the trial court because that forum is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 342-43 (2010); Cesare, supra, 154 N.J.at 413.

"Parents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007). However, parental rights are not absolute. In re Guardianship of K.H.O., 161 N.J.337, 347 (1999). Parental rights "must be balanced against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.596, 605 (2007) (internal quotation marks omitted) (citations omitted).

Title 9, N.J.S.A.9:6-8.8 to -8.73, establishes procedures that the Division must follow in order to protect the health and welfare of children. The paramount concern of the Division is the safety of children. N.J.S.A.9:6-8.8(a). Indeed, protective services litigations are intended to protect children from abuse and/or neglect.

"In any case [in] which the [D]ivision accepts a child in care or custody, the [D]ivision shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home. After placement, the Division shall make reasonable efforts to make it possible for the child to safely return to his home." N.J.S.A. 9:8-8(b)(2). It is only after the Division concludes that reunification is no longer the ultimate goal, that it must make "reasonable efforts" "to place the child in a timely manner." N.J.S.A. 9:6-8.8(b)(4).

In order to determine whether or not a child is abused or neglected, the court will conduct a fact-finding hearing. N.J.S.A. 9:6-8.44. At the hearing, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence" and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).

At the conclusion of the fact-finding hearing, "[i]f 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 dismissal." N.J.S.A. 9:6-8.50(c). However, if the court makes a finding of abuse or neglect, a dispositional hearing must be held to determine the appropriate outcome of the case. G.M., supra, 198 N.J. at 398-99 (citing N.J.S.A. 9:6-8.50). At both the fact-finding and dispositional hearing, the court may consider "only material and relevant evidence." N.J.S.A. 9:6-8.46(c).

Therefore, under Title 9, a court may dismiss a complaint "if it concludes that either its assistance is not required on the record before it, or if the Division failed to establish abuse or neglect." G.M., supra, 198 N.J. at 401; N.J.S.A. 9:6-8.50(c). Only when a court makes a finding of abuse or neglect is dismissal not appropriate. See G.M., supra, 198 N.J. at 401. Even then, however, once the circumstances that led to the filing of the protective services litigation are remediated, and children have been safely returned to the parent from whom they were removed, dismissal of the litigation is appropriate along with withdrawal of the Division from the family's life.

Here, a fact-finding hearing was conducted on March 30, 2009, at the conclusion of which the court found that R.C. abused and neglected the children, but rendered no such finding as to M.C. Moreover, there was sufficient credible evidence developed during the course of the protective services litigation supporting the court's adoption of the Division's reunification plan and the court's later decision in April 2011 lifting the supervision requirement, thereby permitting M.C. unfettered access to her children. Thus, the return of B.B. to her mother was appropriate as soundly based on the record evidence. Accordingly, the trial judge properly dismissed the litigation because the conditions that led to the removal of the children were remediated, specifically both M.C. and R.C. had successfully completed services. Simply put, dispositionally B.B. had been returned to the parent, M.C., from whom she was removed.

Contrary to defendant's contention, he was accorded all the process due. He participated in the fact-finding hearing in which he was named solely as a dispositional defendant. Thereafter, he was appointed counsel to represent him at all subsequent proceedings until dismissal of the litigation in January 2012. Significantly, defendant and his counsel were present at the December 2010 permanency hearing, at which time the Division amended its permanency plan to reunification with M.C. Defendant's counsel was copied on the request for unsupervised time for M.C., which was granted in April 2011. Counsel also affirmatively moved the court for relief throughout the litigation and was afforded the opportunity to argue the positions he advanced as well as oppose those advanced by the Division and/or M.C. We view defendant's participation as meaningful and adequate, and are further satisfied that the protective services litigation was properly conducted by the court.

Moreover, the issue of visitation with B.B. was consistently raised throughout the litigation and, contrary to defendant's contentions, efforts were made to establish visitation between defendant and B.B. Specifically, the Division scheduled multiple evaluations of defendant and B.B., and arranged for defendant to fly to New Jersey to attend them. The Division worked with B.B.'s therapists to formulate a plan to introduce defendant into B.B.'s life. The Division encouraged defendant to communicate with B.B. via written correspondence.

Visitation, however, was unable to go forward prior to dismissal of the protective services litigation not because of any lack of effort on the part of the Division, but rather due to the expert proof that it was not in B.B.'s best interests for visitation to occur at that time. Indeed, B.B. was observed to suffer physically when the idea of meeting with her father was presented to her.

As the trial judge noted in finding that the Division had made efforts to facilitate visitation between defendant and B.B.:

On October 20[], 2011, the parties appeared before [the judge] and, at that time, a new order was entered granting [defendant] visitation supervised by a therapist with certain conditions and one of those conditions was that Dr. Gordon first must meet with the child and . . . opine whether or not a therapeutic visit shall move forward between the child and [defendant].

Subsequent to that, Dr. Gordon did prepare a report indicating that, at this time, it is the feeling of the psychologist that visits between [B.B.] and [defendant] would not be productive. He did, however, recommend that [B.B.] participate in therapy with the goal of visitation with her father and that a visit may be able to take place in late spring or summer.

We concur with the trial court's determination that the Division's efforts to effectuate visitation were reasonable.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including 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.

2 Since his release, defendant has kept a steady job as a foreman for a construction company for the past three and one-half years. He continues to reside in Georgia with his wife and their infant son. In addition, according to defendant, he has had B.B.'s child support garnished from his wages since 2007, and she is covered under his health insurance.

3 R.C. Jr. is not a party to this appeal.

4 On November 6, 2008, Dr. Alan Gordon performed an initial psychological evaluation of M.C. and R.C. to determine the couple's ability to adequately provide care and protection for their children. Dr. Gordon recommended that the parents complete both parenting skill and anger management classes, continue to reside in New Jersey, participate in marital therapy, and that the children remain with their grandparents until the parents had made substantial progress.

5 Earlier, on July 14, 2009, defendant filed a motion pro se under the FM docket (in Warren County) seeking custody of B.B. The motion was denied due to the pendency of the protective services litigation (in Somerset County), with the caveat that the matter should be addressed in the pending litigation.