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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

D.G.,

Defendant-Appellant,

and

D.R.,

Defendant-Respondent.

__________________________________

IN THE MATTER OF

V.R. and J.R., Minors.

__________________________________

February 28, 2014

 

Submitted February 10, 2014 Decided

 

Before Judges Parrillo and Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-451-12.

 

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 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for respondent D.R. (Christine B. Mowry, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for V.R. and J.R., minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant D.G. appeals the Family Part's October 24, 2012 order terminating this child protective services action and permanently transferring physical and legal custody of D.G.'s two children to their father, D.R., pursuant to an earlier order dated June 15, 2012. We affirm.

I.

D.G. and D.R. are the divorced parents of Veronica and Julie.2 3 Following the divorce, legal and physical custody was awarded to D.G.; D.R. enjoyed liberal parenting time with his daughters.

The Division first became involved with this family in 2004, following a referral alleging neglect of Veronica by D.G. The allegation was investigated by the Division and determined to be unfounded. Thereafter, the Division received two more referrals alleging that D.G. neglected or abused her children, all of which were unfounded or unsubstantiated.

A fourth referral, made on June 13, 2012, was received by the Division from the Guttenberg Police Department stating that D.G. had been arrested on charges of theft, theft by deception, and criminal attempt, for allegedly cashing fraudulent money orders. At approximately 8:00 p.m. that evening, when police officers arrived at D.G.'s home to arrest her, they found ten-year old Julie home alone. When D.G. returned home the officers arrested her and brought mother and daughter to the police station.

Upon receiving the referral from the police, a Division employee began an investigation. At first, the Division was unable to locate Veronica, who presumably was at work or with friends. After learning that D.G. would be unable to post bail, the Division effected an emergency removal of Julie pursuant to N.J.S.A. 9:6-8.29 and -8.30, and placed her (and Veronica, when located) with their father.

At the time, D.R. was living in a one-bedroom apartment with his new wife and stepdaughter. When the Division finally located Veronica, she told the Division investigator that she did not want to go live with her father, as their relationship became strained when he remarried. Ultimately, Veronica hesitantly agreed to stay with her father while the charges against her mother were resolved.

On June 15, 2012, the Division filed an order to show cause and a complaint, which sought only to transfer "legal and physical custody of the children to their father, [D.R.]," and for "care and supervision of the children in the Division." There were no allegations of abuse and neglect lodged against D.G., and the Division did not attempt to prove any. On the same day that the complaint was filed, the Family Part entered an order continuing care and supervision of the children in the Division, and, with the consent of D.G. (who was still incarcerated under the initial bail), transferred legal and physical custody of the children to D.R. At that hearing, the Family Part judge stated:

Clearly, mom is in jail, that's just the facts, she can't care for the children, and that's a fact as of today so clearly it will be contrary to the welfare of the children to return them to mom if she's not able to care for the children, she's in jail. That won't last forever. We'll address that issue when that changes.

 

The return date of the Division's order to show cause was July 18, 2012. At that time, both D.G. and D.R. were present. The Division submitted a July 10, 2012 report regarding the placement of Julie and Veronica. The Division's attorney summarized its investigation, explaining,

The children at this time are in the temporary custody of their father after the Division had conducted a DODD removal because the biological mother had been arrested and was unavailable.

 

. . . .

 

[D]uring the course of the Division s investigation, the children did report some concerns when they were residing with their mother. The younger child indicates she does not wish at this point to return home. She s made some allegations that she was left home alone often and that often there were not essentials provided to her when she was left home alone.

So as a result of that information the Division . . . did arrange for a psychological evaluation of [Julie] and that is scheduled so we would just ask that [D.R.] cooperate by taking her to the appointment.

 

. . . .

 

Other than that, the visitation, we have no restrictions on visitation and we just ask that it be worked out between the parties according to however they want to arrange it.

 

Next, the law guardian told the court that "the children have indicated that they re happy to remain with their father[.]" The law guardian also agreed with the proposal for an evaluation for Julie, and further requested that the Division arrange an evaluation for Veronica, as "it would be helpful to find out if there s anything at all that could be done to service her as well."

At a September 5, 2012 hearing, the Division advised the court that it would not be seeking a finding of abuse or neglect against D.G., stating:

[W]e re not seeking a judicial finding of abuse or neglect against [D.G.] and as result of that, there s really no basis to keep the case open in litigation.

However, when the DODD removal was conducted, the children were removed from [D.G.] and placed in the custody of [D.R.]. So I believe that that poses a [N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009)] issue which is why I sent the letter on August fifteenth advising everybody of our intention. So I m not sure what everyone s posi[tion] I mean I know what everyone s position is, I m sure they re going to put it on the record and I believe a hearing may be necessary.

 

The law guardian again expressed the children s desire to remain with their father, D.G. expressed her desire to "have her reunification," and D.R.'s position was to have the children remain with him.

The judge expressed some confusion as to whether a G.M. hearing was procedurally appropriate, but ultimately set the matter down for such a hearing. The judge "presume[d] [he] [was] going to hear from mom and . . . from dad[,]" at the hearing, that "the Division is not presenting any witnesses," and learned that the law guardian was "going to bring in both [children] because you should hear from both." The judge then explained that the matter was "still going to be an FN case but it s going to be handled almost like an MD [sic][.]" He further noted, "We re going to have a nice full hearing when we come back and I ll listen to everyone and then I ll make a decision. When I hear from everyone, not just hearing bits and pieces." When the Division's attorney asked if the judge would require a report from the Division, the judge replied, "No, you're kind of out of the case other than the we do not need a court report."

On October 24, 2012, the Family Part conducted the promised hearing. The judge stated that the issue to be resolved at a G.M. hearing is whether it is "safe to right now to return the child from the parent from whom removed." He further explained that a G.M. hearing applied only to the present tense, meaning "[G.M.] tells me is it safe today, October 24, 2012, to return the child to the parent from who the child was removed[,]" and "I have to consider what s in the best interest of the child too pursuant to [G.M.]."

The Division took no position at the hearing, as it was not seeking a finding of abuse and neglect. However, the Division supplied a report dated October 10, 2012, which was moved into evidence without objection. The report outlined the chronology of events, and stated: "Both children report they are happy and well-adjusted living with their father and do not wish to return home to reside with their mother. The Division has no concerns at the current time with the care that [D.R.] is providing the children." The report contained no criticisms of D.G. The report further indicated that D.G. had "submitted to a psychological/parenting evaluation on October 5, 2012," but "[t]he results are pending." Furthermore, Julie had submitted to a results-still-pending psychological evaluation on October 5, 2012, and Veronica's evaluation was "being scheduled." Finally, the report recommended, "The case should be dismissed from litigation at the completion of the [G.M.] hearing. The parents are encouraged to follow through with any recommendations made from the psychosocial evaluations."

At the hearing, four witnesses were heard by the judge: D.R., a Division supervisor, and Julie and Veronica in in camera interviews. D.G. did not testify or produce any evidence.

The supervisor testified that during the Division's investigation,

[Julie] was asked about her relationship with her mother. She did indicate to the investigator that she was upset and felt hurt by some of the things her mother had said to her. She did give an example that her mother screams and curses at her often. Her mom calls her stupid and that that hurt her feelings. She stated that she expressed this to her mother but her mother still continued to do it and she didn t feel comfortable using the exact words. We always ask children to give us exact words. She didn t feel comfortable saying that to the investigator that responded.

 

The supervisor explained that Julie reported being left alone "approximately ten times per month." Julie "disclose[d] that she s been hit by her mother with an open hand on her leg and her thigh . . . [and] that it really hurt." The last time this occurred was about a month before the Division s investigation began on June 13, 2012. Reportedly, D.G. confirmed that "she has cursed at her children but she stated that she does not do it often."

The supervisor explained that the Division was unable to arrange for services for the family, as the results of psychological and parenting evaluations were necessary to determine appropriate services. On cross-examination, the supervisor stated "the evaluation piece is very important because that will give us a better understanding of what the dynamic is between mom and the child and then we can see if there are services needed to be able to aid that facilitate that process."

D.R. testified that he currently resides with his wife, sixteen-year-old stepdaughter, Julie, and Veronica. D.R. and his wife are currently employed full time.

D.R. indicated that he had concerns about Julie and Veronica returning to their mother, such as, "food, clothing, doctors, schooling and basically [D.G.] swears at [his] children." D.R. explained he was concerned with D.G. "[m]aking sure [his] kids are fed." He stated, "[m]y concern is my little one used to call me and say mommy . . . hasn t fed me. And I d say why hasn t your mother fed you? She s sleeping." He further testified that his daughter would tell him "there s no food in the refrigerator," which happened "about twice a week." D.R. testified that his response has been, "basically I would go and pick [Julie] up and tak[e] her to go get something to eat."

As far as his concerns regarding clothing, D.R. said he was concerned with "[s]chool clothing, sneakers, also clothing besides what [his daughter] has to wear after school." So D.R. would "pick up [his] daughter and tell her let s go get you clothes."

With respect to the children s doctor s appointments, D.R. testified that D.G. would schedule an appointment but would "miss[] the appointment," and not take the girls. D.R. stated that this occurred "around six[] [to] eight times." D.R. then explained that he would tell his daughters to "try to get the insurance card from their mother and [he would] make an appointment for the doctor and take them there [himself]." However, D.R. testified that in September 2012, Veronica needed to go to the emergency room at 2:00 a.m., and D.G. took her.

Finally, D.R. testified that when he used to call his children, D.G. would be "cursing at one or the other [child] in the background." D.G. was reported as saying, "who s on the F ing phone, what the F are you and then she would speak to the other one, what the F are you doing?" This "happened several times . . . , [j]ust about every time [D.R. would] call."

The judge interviewed Veronica and Julie privately in his chambers.4 Veronica told the judge that her mother "treated her badly," "she would insult [her], she would hit [her]." She stated that she "always had [] ill-fitting clothes on and . . . [she] didn t have enough diversity in [her] meals." She explained her mother "would be too tired or she would just not be home to cook." Furthermore, Veronica told the judge that since she was ten years old "[m]ost of the time [she] had to take care of [Julie][,]" "because [her] mom was never around or she was too tired to do things."

Veronica also told the judge that she recently had a stomach virus and needed to be taken to the hospital. She explained that her father was unable to take her so she called her mother and her mother took her to the emergency room.

The judge asked Veronica if she preferred to live with her mother or father, and she responded she "would rather live with [her] dad . . . [b]ecause he feeds [her], he took care of [her] needs, like getting clothes or something." Veronica also told the judge her mom has not "gained the skills with moral support for her children but [her] dad, he has always been even if [she] didn t want him there, like even if [she] didn t want him calling the house or something, he would still call and be like oh I'm here for you."

Next, the judge spoke with Julie. Julie said that "[w]hen [she] was younger and it still happens, before this whole situation, [her] mom, she used to leave [Julie] alone for at least five hours." She explained that this would happen as far back as two years ago when she about eight years old. Julie told the judge when her mom left her alone it was "scary." Julie also said, "most of the time [Veronica] was taking care of me."

Julie also told the judge that D.G. "used to scream at [her], she used to curse at [her]. She used to hit [her], . . . [a]nd she used to say that she didn t want [Julie] to be her daughter for absolutely no reason." Additionally, Julie explained, "[t]here was barely any food at all and [her mom] wouldn t cook. She was just lazy."

The judge rendered an opinion from the bench. He began by explaining:

This case is difficult for me for a number of reasons because I ll make a confession . . . . [G.M.] is a bit confusing to me[,] . . . because it wasn t and I don't think I'm going out on a limb, I don't think it was written with this scenario in mind when it was written. It was written for the case where there was a fact-finding and the Division was pursuing a finding of abuse and neglect against the parents.

 

That's not what happened here. So it only makes it a little bit more confusing to me.

Notwithstanding these reservations, the judge concluded that D.R. "seem[ed] like a very nice man[,]" but there were "some contradictions in his testimony[.]" However, while not wanting to then reveal the confidences of his interview with Julie and Veronica, the judge found that "the children had the same safety concerns that the Division and/or [D.R.] had."

The judge determined that although G.M. "talk[ed] about safety[,] [i]t also talk[ed] about giving due process to [D.G.] and giving [D.G.] a fair hearing . . . ." The judge found the present case was different from G.M. where "'there was no evidence that the children feared for their safety when they were in the custody of their mother.'" He found "evidence to the contrary in this case." The judge further reasoned that he had "competent evidence . . . from [D.R.], from the case worker and most importantly from the two people who live this, that they don t feel safe being with [D.G.] based on not conjecture but based upon past behavior of being left alone, [without] sufficient food[,]" and issues with "clothing, doctors, mom cursing at the kids."

The judge then analyzed three different factors: 1) the safety concerns in returning the children to D.G.; 2) the Division s reasonable efforts to provide services; and 3) the best interests of the children.

Applying these factors, the court found that "based on the evidence that [he] ha[d], there [were] safety concerns. [He] heard that mom s been leaving a ten year old . . . alone for some period of time for up to five hours a day. That continued until June, just five months ago. That s a safety concern." Then, the judge found that "[t]he Division made minimal efforts in this case, [but] that s not a criticism. . . . The Division offered psychological evaluations . . . to determine what services are needed so that we can put the appropriate services in place." Finally, the judge stated the following:

[C]learly based on what I heard from the kids themselves, it s appropriate and it s in the best interest of the kids, based on their concerns, the history of mom not "being there" physically for the kids, not being there emotionally for the kids, the kids' concerns they re not getting food, kids concerns of being left alone, the kids concern[s] that they re not having appropriate clothing . . . [t]hat it clearly is in the best interest of the children that the kids remain with [D.R.] and . . . since the kids have been placed with him, there s not been a change in circumstances, so for all those reasons I'm going to find that this is a dispositional hearing. The disposition that . . . we are having and I'm granting custody to D.R.

 

I'm going to dismiss the FN case. If mom at any point this is also not like [G.M.] where the father where the mother in that case was left without a forum to address this. There was a forum to address custody today, right here.

 

There also is, if circumstances change, a forum to address custody again in this very building under the FM action. The parties were divorced and there was an old FM action where mom was originally granted custody.

 

Lastly, the judge ordered that D.G. could arrange visitation with Veronica directly, as Veronica was then almost eighteen years old. The judge further provided in the "FM order" that visitation between Julie and D.G. would be arranged between the parents.

This appeal followed.

II.

We start with well-established principles. We will defer to the family court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). That court is best suited to assess credibility, weigh testimony, and develop a feel for the case. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). Special deference is accorded to the Family Part's expertise. Id. at 343; Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).

D.G. argues that the trial court erred in exercising jurisdiction pursuant to Title Thirty, rather than requiring the Division to proceed under Title Nine, and proving abuse or neglect under N.J.S.A. 9:6-8.44, -8.46(b), and -8.21. Furthermore, D.G. contends,

The Division did not provide this family with a single service aligned to reunify the children with the parent from whom they were removed. With no imminent risk to [Veronica] or [Julie]'s life, safety, or health, they should have been immediately returned to their mother's care upon her release from jail.

These arguments are barred by the doctrine of invited error, because D.G. agreed to, at least, temporary custody with D.R., and never objected to the court proceeding as if G.M. controlled. See M.C., supra, 201 N.J. at 340-41. However, even if we consider these arguments, they are unpersuasive.

In its recent decision in N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J.8, 40-42, cert. denied, __ U.S.__, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013), the Supreme Court addressed the interplay between Title Nine actions and Title Thirty actions. Pertinently, the Court confirmed that even if the Division cannot prove abuse or neglect under Title Nine, the Family Part still has jurisdiction under Title Thirty to address the parent's need for services and the child's need for protection. Id. at 33. Further, the Court confirmed that where a Title Thirty action implicates issues of custody between a child's parents, the Family Part must address those issues, using the best interests' standard:

When the court conducted a custody hearing in respect of S.S., it transferred custody of S.S. to her father. The custody order was entered under the FM docket, as the child-protective litigation was dismissed at the same time. In making its determination, the family court analyzed the N.J.S.A. 9:2-4 best-interests factors.

 

In G.M., supra, we recognized that a noncustodial parent who obtains full-time care of a child after the initiation of child-protection proceedings "may always initiate a request for a change in custody," which involves a changed-circumstances inquiry and, ultimately, becomes a best-interests analysis. Here, that process was not followed precisely, but E.S. did make an application for custody of S.S. during the pendency of the child-protection litigation, which was denied at the time because the trial court did not believe it had the information necessary to perform the appropriate analysis for S.S., who was only beginning her therapeutic programs. That said, the application placed the custody question in the mix of questions that needed to be resolved in light of the children's health and safety issues. And the court in this matter used a best-interests analysis that employed the factors set forth in N.J.S.A. 9:2-4, which is commonly used in a variety of family matters before a court when making an initial custody determination or a change in custody is requested.

 

Although E.S. should have been required to show that S.S.'s placement with him was in her best interests after filing a changed circumstances application, in view of the timing of all family members' progress toward more healthy relationships, it would require blinders for this Court not to recognize that granting custody to E.S. was an appropriate disposition to end the Title 30 proceedings. In our view, the court's ultimate action was the only one that could have been judicially imposed. At the time of S.S.'s release, I.S. had not completed her required therapeutic regimen. Moreover, at the hearing, I.S. presented no expert evidence to establish that it would be safe to return S.S. to her mother's custody. Therefore, it would not have been consistent with the court's continued responsibility to act in the best interests of S.S.'s health and safety to return her to her mother's custody at that time. When custody issues become intertwined with child-protection actions, then dispositional questions that lie at the intersection of the two matters become complicated by a parent's delay in achieving circumstances that make it safe for the child to return to the former custodial parent.

 

In sum, E.S. was the only appropriate parent to award custody to at the dispositional conclusion of this fact-sensitive Title 30 proceeding. The court applied a best-interests test, and we have no difficulty deferring to the factual findings and conclusions the court reached on this record. S.S.'s best interests were served by the court's grant of custody over S.S. to E.S. when disposing of the Title 30 proceedings. Moreover, we do not find that I.S. was deprived of due process as a result of the proceedings that occurred.

 

[Id. at 40-41 (internal footnote and citations omitted).]

 

While the Court noted that it is ordinarily preferable to litigate separately the child protective action and an FM custody dispute, the Court found no reversible error in holding the custody hearing and the Title Thirty hearing together, where the court gave the parties advance notice of that procedure:

[T]he 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. In fact, the trial court heard testimony under oath from the Division's witnesses, experts, E.S., and I.S. The court then recessed in order to provide I.S. with an opportunity to obtain an expert and obtain evidence to substantiate why S.S. should be returned to her custody. I.S. did not do so. On this
 
 
 
 
record, we find those procedures were sufficient to protect her constitutional right against "governmental procedures that tend to operate arbitrarily."

 

[Id. at 42 n.6 (citations omitted).]

 

Thus, having temporarily changed legal and residential custody from one parent to another, the Family Part could not have terminated the litigation without first holding an evidentiary hearing to determine whether a permanent change in custody was in the child's best interests. That is exactly what the judge did in this case,5 subject only to our assessment of whether the judge properly deployed a best interests analysis.

We recognize that the judge did not expressly delineate the discrete factors of N.J.S.A. 9:2-4's best interests' paradigm, and he did not order the Division to complete the evaluations of D.G., Veronica, and Julie before issuing his decision. Nevertheless, he afforded D.G. a fair opportunity to be heard, and was rewarded by her decisions not to testify and not to present any evidence. After personally speaking with D.G.'s daughters, and considering the testimonial evidence of D.R. and the Division supervisor, the judge concluded that, "need[ing] to consider under [G.M.] what's in the best interests of the children," and

clearly based on what I heard from the kids themselves, it s appropriate and it s in the best interest of the kids, based on their concerns, the history of mom not "being there" physically for the kids, not being there emotionally for the kids, the kids' concerns they re not getting food, kids concerns of being left alone, the kids concern[s] that they re not having appropriate clothing. . . [t]hat it clearly is in the best interest of the children that the kids remain with [D.R.]

Because we detect substantial compliance with the principles of I.S., and observe nothing to suggest that the judge abused his discretion, we have no basis to adjust the custody determination that was properly made in this case.

Affirmed.

 

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, and renamed 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 We use fictitious names for the children to protect their privacy.

3 To the extent D.G. seeks to challenge or obtain custody of Veronica, this appeal is moot. When the FN litigation began, the children were less than eighteen years old. They were therefore within the scope and "purpose of [the abuse and neglect] act [which] is to provide for the protection of children under 18 years of age . . . ." N.J.S.A. 9:6-8.8(a). The act thus provides that an "'[a]bused or neglected child' means a child less than 18 years of age," N.J.S.A. 9:6-8.21(c) and an "'[a]bused child' means a child under the age of 18 years," N.J.S.A. 9:6-8.9. Elsewhere in Title Nine, "the word 'child' is similarly defined as 'any person under 18 years of age.'" N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 20 (2013) (quoting N.J.S.A. 9:2-13(b)). Similarly, Title Thirty addresses the care and custody of "a child," and defines a "child" as a "person under the age of 18 years." N.J.S.A. 30:4C-2(b). See N.J. Div. of Youth & Family Servs. v. W.F., ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 10).

4 The attorneys were not permitted to submit questions to the judge, nor were they allowed to listen remotely to the interviews. However, the law guardian was present during the joint interview of the children.

5 We discount any stray comments made by the Family Part judge that he was confused about G.M.'s import, because, in the end, he ultimately made a best interests determination in a due process-rich proceeding.