NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.H. and K.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1013-07T41013-07T4

A-1014-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Appellant,

v.

J.H. and K.H.,

Defendants-Respondents.

IN THE MATTER OF

T.H.,

A Minor.

__________________________________________________

 

Argued October 29, 2007 - Decided

Before Judges Stern, C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-197-07.

Mervin A. Bourne, Jr., Deputy Attorney General argued the cause for appellant (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lisa J. Rusciano, Deputy Attorney General, on the brief).

Bernardo W. Henry argued the cause for respondent J.H.

Philip Ross argued the cause for respondent K.H.

Phyllis G. Warren, Assistant Deputy Public Defender, argued the cause for minor T.H. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Warren, on the brief).

PER CURIAM

I

On July 12, 2007, following an evidentiary hearing, the trial judge found that T.H., then a thirteen-year old girl, had been sexually molested by her stepfather, defendant K.H., in September and October 2006. The judge concluded that K.H.'s acts rendered T.H. an abused or neglected child as defined by N.J.S.A. 9:6-8.21; the judge, however, declined to hold that the acts or omissions of defendant J.H., the child's mother, in failing to cooperate or comply with the case plans, constituted abuse or neglect. Orders memorializing those determinations were entered on July 12, and August 15, 2007.

Plaintiff Division of Youth and Family Services (the Division) filed a motion for leave to appeal the order of August 15, 2007 insofar as the judge had refused to find that J.H. engaged in any conduct that amounted to abuse or neglect. That motion was still pending when the Division sought emergent relief as a result, among other things, of J.H.'s unilateral removal of T.H., and her two step-siblings, to the State of Georgia.

In the proceedings that followed, the trial judge denied the Division's request for a transfer of physical custody of T.H. from her mother to the Division. This determination prompted the Division to file, on October 22, 2007, a second motion for leave to appeal and for emergent relief. We decided to hear all these motions on an expedited basis. J.H. and the Law Guardian provided written submissions, and we heard oral argument on October 29, 2007.

By orders entered on October 30, 2007, we granted both motions for leave to appeal; we also indicated in those orders our decision to consolidate the matters and accelerate them for disposition. We now reverse that part of the August 15, 2007 order that concluded J.H. had not engaged in conduct constituting abuse or neglect of T.H., and we reverse that part of the trial judge's October 19, 2007 order that did not compel a change in physical custody of T.H. from her mother to the Division.

II

A

This action was commenced on November 15, 2006 when the Division -- having effected the day before an emergency removal of T.H. from the home of her mother and stepfather -- filed a complaint alleging that T.H. was an "abused or neglected child" within the meaning of N.J.S.A. 9:6-8.21. At that time, the trial judge entered an order requiring defendants to show cause at a later date why an order should not be entered continuing the Division's legal and physical custody of T.H. This status continued through subsequent reviews of the matter and during the fact finding hearing.

The trial judge heard testimony on March 14, April 18, June 13, and July 12, 2007. On July 12, 2007, the judge also heard the summations of counsel and thereafter delivered his oral decision. Although acknowledging it was a close case, the judge found that K.H. had sexually molested T.H. and concluded that this constituted abuse or neglect. As noted earlier in a footnote, K.H. did not seek leave to appeal this interlocutory order.

As for the allegations against T.H.'s mother, the trial judge found that J.H. "has been . . . somewhat uncooperative and combative versus the Division and I'm not positive the mother has always acted as I would have or as wisely as she should have." The judge compared J.H.'s failures in this matter with the circumstances in N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596 (2007), which had been decided a few days before the trial judge's oral decision in this matter. The trial judge viewed the allegations against J.H. and her failure to comply with the multiple case plans in this matter -- and, in particular, her failure to insulate T.H., as she had promised in the case plans, from her stepfather -- as similar to the defendant's refusal to condemn her husband for the death of a child in G.L. The Supreme Court in that case described the wife's persistence in that view as being "unrealistic and a tactical error," but that it "did not justify the loss of her parental rights." Id. at 608. As a result, the judge similarly viewed J.H.'s conduct here as "a tactical error," and that he did not think it was "quite enough to constitute abuse and neglect," amplifying those conclusions with his finding that she had not been "as cooperative as [she] should [have] be[en]," and that had "bothered" him, but "there doesn't seem to be proof that [J.H.] allowed [the stepfather] to be in a position to harm [T.H.] again."

We discern from the judge's later comments during the colloquy that followed, that his finding that J.H. did not again allow the stepfather to be "in a position to harm" T.H. was limited to his belief that she did not permit an opportunity for K.H. to physically harm T.H. again. The Division argued that the claim of abuse or neglect regarding the acts or omissions of the mother also included its assertion that, by failing to conform to the case plans, the mother had created an opportunity for emotional or psychological harm to T.H. by allowing K.H., her molester, to be in T.H.'s presence after T.H. had made her allegation of sexual abuse. In response, the judge again emphasized that he viewed J.H.'s failure to cooperate with the case plans as a "tactical error" such as described by the Court in G.L., stating that he "continue[d] to believe that the recent Supreme Court decision does provide -- does state that a parent can make an error, as I said, . . . conduct can [constitute an] unrealistic and tactical error and, nonetheless, not [be] subject to judicial sanctions." The order memorializing the judge's findings regarding J.H. was entered on August 15, 2007.

B

On August 27, 2007, the Division submitted to this court a motion, which sought both leave to appeal and an extension of time to file a supporting brief. That motion was apparently misplaced en route, and not filed until September 21, 2007. The Division's brief and appendix were not submitted until October 1, 2007.

While those papers were being gathered for our disposition, other troubling events arose in the trial court. T.H. had been placed in Tilmes House, a temporary shelter for girls. She had gone missing from the shelter several times between August 28 and September 5, 2007, but had always returned. However, according to a report from the Tilmes House, T.H. returned to the shelter on September 5, 2007 at approximately 5:45 a.m., appearing to be in pain and wearing dirty clothes. The shelter called local police, but T.H. left before she could be interviewed by police.

At the Division's request, an emergent hearing was conducted in the trial court. Over the Division's objection, however, the trial judge ruled, on September 12, 2007, that when T.H. was ultimately found she should be "temporarily returned to the custody of [J.H.], provided that [K.H.] is not in [the] home and has no contact [with T.H.] whatsoever."

Another emergent hearing took place on September 20, 2007. At that time, the judge heard testimony from Q.J., a teenager who had run away from Tilmes House with T.H. on September 3, 2007. Q.J. testified that she observed T.H. and another girl walk into a store in Paterson. This other girl later told Q.J. that "a light-skinned, fat, bald man," fitting the description of K.H., hit T.H. over the head, forced her into a white truck, which fit the description of K.H.'s vehicle, and drove off. During this hearing, the judge heard from T.H. by telephone; she stated that she had not been sexually assaulted, that she had twisted her ankle and that she was then in Trenton. Her specific location was revealed only to the judge and J.H.

The judge permitted J.H. to pick up T.H. at this undisclosed location, and ordered J.H. to contact Nevada Patterson, a Division caseworker, by 9:30 a.m. the next morning to make an appointment for physical evaluations of T.H. by a pediatrician and a gynecologist. He again ordered that "[J.H.] shall not allow, nor shall [K.H.] have any contact whatsoever with [T.H.]." The Division's motion for a stay pending appeal was denied.

C

Matters did not end there. The Division wrote to the trial judge on October 1, 2007, asserting the following:

1. [J.H.] has not allowed DYFS to see [T.H.] since she was allegedly picked up by the mother from an unknown (to DYFS) address in Trenton, N.J. Since the court hearing on 9/20/07 the DYFS case manager has not seen or spoken to [T.H.].

2. [J.H.'s] home telephone is now disconnected, and she does not answer her cell phone when Ms. Patterson calls her. She does not return messages.

3. The court order dated 10/20/07 makes it clear that [J.H.] was supposed to call Ms. Patterson to set up the physical and gynecological examination for [T.H.]. [J.H.], to date, never called the Case Manager, Ms. Patterson[,] so that they could arrange and take [T.H.] to the doctor. Ms. Patterson has received two emails from [J.H.], one sent at 11:13 am and another at 4: 12 PM on 9/21/07. According to [J.H.], she took [T.H.] to the ER (hospital unknown), they assessed her (given history unknown), and will be producing a report at some future date (unknown). DYFS has no idea if this exam actually took place, when, where, or in what manner. We do not know if [T.H.] has seen a gynecologist. If [J.H.'s] objective is to prolong an observation of [T.H.] by medical professionals, without an accurate history, then she has certainly succeeded.

4. DYFS has physically gone to the home of [J.H.], however no one answers the door (though someone is home). A letter left at the residence by DYFS received no response to date.

[Emphasis in the original deleted.]

DYFS further argued in this letter that J.H. had not and would not keep K.H. away from T.H., that J.H. had and would continue "to do as she pleases" regardless of Division intervention or the court's orders, and that the events described "made it clear" that the Division had been rendered "absolutely powerless in this case to protect [T.H.] in any way whatsoever, and that your ordering her to remain in the legal custody of DYFS means absolutely nothing to [J.H.]." The Deputy Attorney General closed his letter with the prescient request that an order be entered prohibiting "anyone from taking [T.H.] out of the State until further court order."

The judge conducted an evidentiary hearing on October 9, 2007 for the purpose of examining the Division's allegations. Although the testimony revealed that J.H. had not complied with the actual terms of the judge's prior order, the October 9, 2007 order, which resulted from this hearing, directed: that the prior orders remain in full force and effect; that defendants allow telephone communication between themselves and the Division; that T.H. decide which high school she desired to attend; that, by October 11, 2007, defendants provide the Division with updated information regarding their employment; that, by October 11, 2007, counsel for J.H. submit a brief explaining why defendants should not be required to provide vehicle information; that T.H. submit to a gynecological examination, which would be scheduled for October 10, 2007; that "[T.H.] shall not be removed from [the] jurisdiction of this court without further court order"; and that "[J.H.] shall not allow, nor shall [K.H.] have, under any circumstances, any contact, with [T.H.]."

D

On October 12, 2007, the Deputy Attorney General wrote to the judge. He advised that a Division case worker, Nevada Patterson, had scheduled the gynecological exam for T.H. for October 15, 2007 and that J.H. had been so informed. The Deputy Attorney General also advised that the employment information required by the October 9, 2007 order had not been received, and, since he had not received a brief from J.H.'s attorney, as also required by the October 9, 2007 order, he inquired as to whether the court had received anything.

On October 18, 2007, the Deputy Attorney General again wrote to the trial judge requesting an emergent hearing for the next day, asserting that: T.H. had not been in school since October 9, 2007; J.H. did not bring T.H. for counseling on October 17, 2007; since the prior court date, J.H. had not responded to any of the telephone messages left by Nevada Patterson; the Division suspected J.H. had severed her employment relationship; the Division had not received the requested information regarding the family vehicles; the Division had not received the ordered information regarding defendants' places of employment; the Division's attempt to visit the home was unsuccessful; and, as a result of all this, the Division had not been able to see or speak to T.H. since the prior court date.

The trial judge responded quickly and conducted a hearing into these allegations on October 19, 2007. During that hearing, it was revealed that J.H. had moved, with T.H. and her two step-siblings, to Georgia. The judge also heard testimony by telephone from J.H., who indicated she had separated from K.H. and acknowledged she was in Georgia with the children and without K.H. Despite the clarity of the prior order's prohibition on leaving this State, J.H. testified she did not know she could not leave. The judge was not persuaded and held J.H. "in contempt of court"; he directed that J.H. check in with the child protective agency in Georgia. He also directed that K.H. appear in court by 4:30 p.m. that day, to prove he was still in New Jersey, or else a warrant would issue for his arrest. Although the judge's order indicated that the Division "may arrange to physically return [T.H.] and her siblings" to New Jersey, "subject to consultation with child protective services agency in Georgia," the judge denied the Division's request for physical custody of T.H. or legal or physical custody of her step-siblings. He also denied the Division's motion for a stay pending appeal.

The record reveals that K.H. did not appear in court by 4:30 p.m. on October 19, 2007. He did, however, "appear" by way of a three-way telephone conversation with the judge and counsel. The judge directed that K.H. appear before the court on Monday, October 22, 2007 with proof that he had been in New Jersey or on Long Island, as he had claimed during the telephone conference. In the trial judge's absence, K.H. appeared before another judge of the vicinage on October 22, 2007; the order has not been provided, but we are informed that the judge ordered K.H. not to enter the State of Georgia. Obviously, K.H.'s appearance in New Jersey on October 22, 2007 does not discount the possibility that he had also been in Georgia on or before October 19, 2007.

J.H. did take T.H. to Georgia's child protective services agency, as directed. That agency, however, appears to have taken the position that it has no jurisdiction over the matter. Its representative, who spoke with the trial judge on the record on October 19, 2007, did advise that when the agency was able it would conduct a home assessment of J.H.'s residence in Georgia, as a courtesy.

III

As we observed at the outset, the Division moved for leave to appeal that part of the August 15, 2007 order that rejected the claim that J.H.'s acts or omissions had rendered T.H. an "abused or neglected child," as defined by N.J.S.A. 9:6-8.21. In its emergent motion submitted to us last week, the Division sought reversal of that part of the October 19, 2007 order that denied the Division's request for physical custody of T.H. and denied the Division's request for legal and physical custody of T.H.'s step-siblings.

On October 29, 2007, we granted leave to appeal both orders and accelerated disposition of these appeals on their merits. We now: (a) reverse that part of the August 15, 2007 order that denied the Division's claim that J.H. had abused or neglected T.H.; (b) reverse that part of the October 19, 2007 order that denied the Division's application for a change of physical custody of T.H. from J.H. to the Division; and (c) affirm that part of the October 19, 2007 order that denied the Division's application for legal and physical custody of T.H.'s step-siblings.

A

The standard of appellate review requires that we defer to a trial judge's findings of fact when supported by evidence adduced at trial. N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004). That standard, however, does not require our deference to findings that are "so wide of the mark as to be 'clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Formosa v. Equitable Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979)). In addition, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." G.L., supra, 191 N.J. at 605 (quoting J.T., supra, 269 N.J. Super. at 188-89); see also C.B. Snyder Realty Inc. v. BMW of N. Amer., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989).

In concluding that we should not defer to the trial judge's ultimate finding that J.H. had not abused or neglected T.H., we observe that the judge found that J.H. did not comply with the case plans for the child. There are many disturbing instances of such non-compliance following the commencement of the Division's investigation into T.H.'s claim that her stepfather had sexually penetrated her and otherwise inappropriately touched her in September and early October 2006. After T.H. revealed the incidents to school officials, the Division investigated and obtained J.H.'s consent to a case plan that included an agreement that the stepfather would not be allowed in the home until the investigation was completed. Notwithstanding, the Division produced evidence that J.H. did not comply with this plan, and that she did not prevent the stepfather from being in the home or from being in T.H.'s presence. For example, a Division case worker testified that upon arriving for a home visit, the door was answered by a man, who stated that J.H. was not home. When asked for his identity, the man stated that his name was Wright. Soon thereafter, the case worker contacted the police to accompany her to the home. The same man answered the door, this time conceding that he was K.H. The police officer requested that J.H., K.H. and T.H. accompany him and the case worker to the police station, where T.H. advised the police that K.H. had twice before been in the home during the investigation period and that she had gone to her room at those times to avoid contact with him.

There was evidence of another incident when T.H. was dropped off at a caretaker's residence. At that time, she was driven to the caretaker's home, and the caretaker observed that both J.H. and K.H. were in the car.

The judge never concluded that he did not find these and other similar allegations -- including evidence that J.H. had failed to take T.H. for medical evaluations relating to the charge of sexual molestation, excused only by J.H.'s claim that she "forgot" -- to be lacking in credibility. Indeed, there was no dispute about J.H.'s failure to comply with the case plans in these and other regards because J.H. never testified at the evidentiary hearing. Instead, the judge excused J.H.'s various acts of non-compliance as constituting "tactical errors" on her part. As we have already observed, the judge greatly relied on the Supreme Court's decision in G.L., which had been decided a few days prior to the judge's oral decision. We find this reliance to have been mistaken for a number of reasons.

G.L. was an action that sought the termination of the mother's parental rights. The evidence revealed that the parents' first child, Isaac, had died while the father (Ted) was caring for Isaac, who was just an infant; the mother (Gloria) was not present at the time. Evidence revealed that Isaac died from Shaken Baby Syndrome. As a result, Ted was indicted and charged with second-degree manslaughter and third-degree endangering the welfare of a child. 191 N.J. at 600. He was eventually acquitted of the former and convicted of the latter, and sentenced to a nine-year prison term with a three-year period of parole ineligibility. Id. at 603 n.2.

While the criminal proceeding was pending, Gloria became pregnant. By the time the child (Mary Jane) was born, Gloria and Ted had been living apart for a few months. Id. at 600. Although Gloria "was not convinced that Ted had shaken Isaac to death," she consented to the protective order sought by the Division in order to maintain custody of Mary Jane. Ibid. One of the restrictions imposed was a prohibition on Ted having unsupervised visitation of Mary Jane; another required Gloria's participation in counseling. Even though Gloria maintained that her "religious life provided all the therapy she needed," persisted in her view "that the [counseling and evaluation] process was overly intrusive," and was "demoraliz[ed] over the fact that she could not live under the same roof as her husband and her daughter," Gloria engaged in and complied with all recommendations. Id. at 602.

The Division's stated goal in G.L. at the outset was to reunite Gloria and Mary Jane. Ibid. The trial judge, however, disagreed and rejected this plan of reunification, expressing her concern "that Mary Jane would be at risk because Gloria refused to acknowledge that Ted shook their infant son to death" and because "Gloria advanced her own theory of Ted's guilt -- that his wrongdoing was in failing to call 911." Id. at 602-03. As a result, the Division changed its permanency plan and pursued a plan of adoption of Mary Jane by relatives. The Division thereafter filed a complaint seeking the termination of Gloria's parental rights. Id. at 603. After hearing the evidence, including evidence of psychological evaluations that the Court described as being "in equipoise," the trial judge concluded that Gloria's continued relationship with Ted was unacceptable and Gloria's unwillingness or inability to sever her ties with Ted posed a serious risk to Mary Jane regardless of Gloria's "absolute compliance with all of DYFS's strictures." Ibid. Finding all four prongs of the test set forth in N.J.S.A. 30:4C-15.1(a) to have been met, the judge terminated Gloria's parental rights.

In G.L., we deferred to the trial judge's findings and affirmed. 191 N.J. at 604. The Supreme Court granted certification and reversed, finding, among other things, there was "no proof" that Gloria had endangered Mary Jane's safety, health or development. Id. at 607. Instead, the Court observed that Gloria was "an accomplished person," who was "an accountant with a responsible job, the assistant pastor of her church, and an able and loving mother who successfully raised another child." Moreover, the Court noted that Gloria had "never harmed Mary Jane," had complied "with every requirement imposed on her by DYFS and [had] satisfied both DYFS and the experts as to her ability to function as Mary Jane's mother." Ibid. The Court also stressed the following:

More importantly, given what this case is really about, DYFS also failed to show by clear and convincing evidence that Gloria was unwilling or unable to eliminate the threat posed by Ted to Mary Jane. The record underscores that Gloria never allowed Ted to see his daughter without supervision and covenanted to maintain that stance. She also underwent numerous psychological and psychiatric evaluations and participated in whatever counseling DYFS requested with the result that reunification was DYFS's goal.

[Ibid.]

In addition, the Court distinguished Gloria's conduct from that of M.M. in N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261 (2007), where M.M. had insisted on continuing to live with his substance-abusing wife despite the threat she posed for their special-needs child. 191 N.J. at 607. In that circumstance, the Court agreed that the evidence fully supported a termination of M.M.'s parental rights. 189 N.J. at 293.

Following these observations, the Court turned to what it referred to as the "heart of the issue," namely, Gloria's "refusal to condemn Ted for the death of Isaac." 191 N.J. at 608. The Court emphasized that, despite what the autopsy revealed about Isaac's death and the jury's verdict that Ted was guilty of child endangerment, Gloria's stance -- in words greatly relied upon the trial judge in the matter now before us -- "was unrealistic and a tactical error," which "did not justify the loss of her parental rights." Ibid. (emphasis added).

There are obvious factual distinctions to be drawn between G.L. and the matter at hand. In G.L., Gloria had fully complied with the conditions imposed, whereas the record here revealed no dispute about J.H.'s failure to cooperate with the Division or comply with the case plans regarding her obligation to keep T.H. away from her stepfather. But, more to the point, G.L. was an action to terminate parental rights, and not, as here, an action seeking a finding that a child was abused or neglected. Other than the different goals sought in these different actions, an action seeking the termination of parental rights pursuant to Title 30 requires clear and convincing proof of four specific elements, N.J.S.A. 30:4C-15.1(a); N.J. Div. of Youth & Fam. Serv. v. A.W., 103 N.J. 591, 604-11 (1986), whereas this Title 9 abuse and neglect matter required only that the Division prove by a preponderance of the evidence, N.J.S.A. 9:6-8.46; N.J. Div. of Youth & Fam. Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002), that T.H. was a child "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or guardian . . . to exercise a minimum degree of care," N.J.S.A. 9:6-8.21(c)(4)(emphasis added).

The lower and broader standard in Title 9 cases was erected not only to provide protective services to children who have been subjected to actual harm but also to protect children from harm yet to have occurred. As the Legislature declared in Title 9, the safety of children is "of paramount concern," and the legislative intent in adopting Title 9 was "to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected." N.J.S.A. 9:6-8.8(a). For that reason, the finding sought by the Division did not turn on whether J.H. had actually harmed the child. Instead, the Division was required only to prove, by a preponderance of the evidence, that T.H.'s physical, mental or emotional condition was in imminent danger of being impaired because of J.H.'s failure to exercise a "minimum degree of care." N.J.S.A. 9:6-8.21(c)(4).

In addition, the similarity in G.L. and the matter at hand, as revealed by both wives' disbelief that their husbands had engaged in the wrongful conduct charged, has little relevance here since the thrust of the Division's case did not turn on whether there was justification for J.H.'s disbelief of T.H.'s allegations of sexual molestation but rather J.H.'s failure to sufficiently protect T.H. by failing to assume, out of a proper abundance of caution, that the molestation did occur. In other words, J.H. was not required to assume the worst of her husband, but she was required to protect her daughter until the questions about the molestation were resolved. The evidence submitted to the judge by the Division, which went undisputed, thoroughly demonstrates J.H.'s failure in that regard.

We conclude that the judge mistakenly compared J.H.'s non-compliance in this matter with Gloria's sincere but erroneous belief in the innocence of her husband in G.L. As we have discussed, the case at hand is a Title 9 action and G.L. was a termination case brought pursuant to Title 30. The finding sought by the Division in the former would lead to further Division involvement in this family and, perhaps, unification of the family, whereas the latter had the potential to forever end the parental relationship. As such, it was a mistake for the trial judge to place such extensive reliance upon G.L.

And not only was the judge mistaken in believing that the cases were similar, but his great reliance upon the Court's holding in G.L. fueled the erroneous conclusion that the plan crafted by a court for one family must apply with equal force in all other circumstances with similar surface facts. As Count Leo Tolstoy perspicaciously observed in 1873, in his famous opening statement in Anna Karenina, "All happy families are alike; each unhappy family is unhappy in its own way." By the same token, how one court may have intervened in the problems of one unhappy family need not provide the proper approach in intervening in another. Again, experience dictates that each unhappy family is unique and requires its own special approach if there is to be an effective remedy for its problems. Accordingly, what may appear as persuasive precedent for application in similar circumstances often provides in family court only a delusive expectation of what ought to be done.

Lastly -- even assuming that Gloria's misguided belief in her husband's innocence in G.L. bears similarities to J.H.'s disbelief of her daughter's allegations -- we discern from the trial judge's extensive reliance upon the Court's view of the facts in G.L. that he may have mistakenly saddled the Division with the more strenuous clear and convincing standard of proof that governed the decision in G.L. and not the preponderance standard applicable to this Title 9 action.

In short, we conclude there was ample evidence to support the judge's finding that J.H. was not cooperative or compliant with the multiple case plans in this matter. As we have observed, J.H. never took the witness stand to rebut any of the Division's evidence regarding her failure to comply. Coupling that evidence with the finding that K.H. had in fact sexually molested T.H., we are satisfied that J.H. failed to protect T.H. from the further emotional harm caused by being in the presence of her molester. By describing J.H.'s lack of cooperation as a mere "tactical error," the trial judge adopted a far too narrow view of what it means for a child to be abused or neglected within the scope of Title 9. Accordingly, we conclude that the undisputed evidence compelled a finding of abuse or neglect, as committed by J.H., and that the judge's ultimate evaluation of those undisputed facts and the implications to be drawn therefrom are not the types of determinations that command our deference. G.L., supra, 191 N.J. at 605; M.M., supra, 189 N.J. at 279; J.T., supra, 269 N.J. Super. at 188-89. In rejecting the judge's classification of J.H.'s noncompliance as a "tactical error," we conclude that the undisputed evidence preponderated in favor of the Division's contention that J.H.'s acts and omissions constituted abuse or neglect as defined by N.J.S.A. 9:6-8.21. We remand for the vacating of that part of the trial court's August 15, 2007 order that concluded to the contrary, and direct that an order be entered in conformity with our opinion.

B

The trial judge said on July 12, 2007 that his decision to find that J.H.'s failure to cooperate or comply with the case plans or his orders was "a close case" and that he "was tempted . . . to find against" her. As a result, he cautioned J.H. to be "careful" in the future.

Subsequent events reveal that J.H.'s narrow escape from a trial court finding of abuse or neglect, and the cautionary tone in the judge's decision, did not cause an alteration in J.H.'s approach to what was expected and required of her, as appears to have been the judge's hope. Instead, J.H.'s conduct subsequent to the judge's favorable ruling abundantly buttresses our understanding that she viewed the judge's reluctance to rule against her as further cause to do as she pleased.

"[A] page of history," Justice Holmes once said, "is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S. Ct. 506, 507, 65 L. Ed. 963, 983 (1921). The history of J.H.'s earlier noncompliance with the multiple case plans followed by her willful failure to comply with the court's orders overwhelms any logic to be found in the judge's decision to deny the Division's request for a change of physical custody. Those subsequent circumstances only amplify and exacerbate the harm being caused to this child, and the potential for greater harm. The judge recognized this when he held J.H. in contempt of his recent orders, although J.H.'s history of noncompliance did not result, as it should have, in a change of physical custody.

In short, the judge's contempt holding has had no impact on the circumstances. J.H. continues to flout the court's orders by remaining beyond the courts' and the Division's jurisdictional reach. By disregarding the trial court's orders, J.H. has secured the freedom to comply with those things she chooses and to ignore those that do not conform to her own personal case plan for T.H. Indeed, only a leap of faith permits an assumption that J.H. is complying with the most important aspect of the case plans and the judge's many orders -- keeping K.H. away from T.H.

We cannot allow the status quo to remain unchanged, and we cannot leave to chance the protection of T.H. Much can be said in support of permitting J.H. to remain in Georgia with her children if the trial court could be assured that K.H. will not attempt to visit the family in the presence of T.H. and that Georgia agencies would provide services to the family. However, Georgia understandably views this as a New Jersey matter in light of J.H.'s existing right to physical custody of T.H., which was confirmed as recently as the trial court's October 19, 2007 order. As a result, we cannot expect that officials in Georgia will approach the matter with any great fervor without a change in the status quo. J.H. and the children are viewed as visitors to Georgia and the Division's counterparts in Georgia would appear to view -- as the recorded telephone conversation between the trial judge and a Georgia child protective services representative reveals -- our jurisdiction as superior to any jurisdiction Georgia may possess over this family. Accordingly, because our paramount concern is the return of T.H. to New Jersey, we find it imperative to immediately compel a change in physical custody from J.H. to the Division.

We observe in this regard that the Law Guardian continues to maintain that the best interests of the child warrant the child's remaining in her mother's physical custody. We emphasize that our goal is not so much to separate T.H. from J.H. as it is to bring T.H. back to the State of New Jersey. If a consequence of our order is a temporary separation of J.H. and T.H., it is a consequence brought about by J.H.'s unilateral actions. J.H.'s retention of physical custody -- when that relationship is unaccompanied by an understanding that she must comply with the conditions imposed upon her for the future protection of T.H. and when, also, that relationship is unfettered by our courts' ability to compel compliance with conditions imposed for T.H.'s benefit and safety -- constitutes continuing abuse or neglect of T.H. and is inimical to her best interests. Unquestionably, the child's presence in Georgia permits J.H. to exercise custody over T.H. in any manner she deems fit regardless of what our courts have ordered or may order in the future. These circumstances compel a change in the status quo.

There should be no mistake about our present goal and, at the risk of repetition, we shall state it plainly. In reversing in part the October 19, 2007 order, and in thereby mandating a change in physical custody from J.H. to the Division, we endeavor to secure T.H.'s immediate return to New Jersey. We assume that with the entry of such an order the Division will obtain the full cooperation of its counterpart in Georgia that has not yet been forthcoming in light of the limitations in the trial court's October 19, 2007 order. We direct the trial judge to forthwith enter an order that vacates that part of the October 19, 2007 order that continued J.H.'s retention of physical custody over T.H. and that immediately awards physical custody of T.H. to the Division.

C

Along with seeking relief regarding T.H., the Division contends that we should also compel a change in the legal and physical custody of T.H.'s step-siblings. The Division has forcefully asserted that the record of J.H.'s failings regarding T.H. provide ample proof that her step-siblings are also abused or neglected because -- even though there is no evidence of actual harm having been caused to them -- their physical, mental, or emotional conditions are "in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). Evidence of neglect or abuse of one child can support a finding that another child, not actually harmed or abused, is an abused or neglected child within the meaning of this statute. N.J.S.A. 9:6-8.46(a)(1).

However, no civil action has yet been brought with regard to these other children. As a result, our consideration of the arguments regarding T.H.'s step-siblings is premature. We leave the matter to the trial judge when, and if, such an action is brought with regard to these other children.

IV

To summarize, we reverse that part of the August 15, 2007 order that found J.H. had not abused or neglected T.H., and remand for the entry of an appropriate order memorializing our determination. We also reverse that part of the October 19, 2007 order that denied the Division's application for a change in physical custody of T.H. to the Division, and remand for the entry of such an order without delay, as well as any additional orders, that will speed the return of T.H. to New Jersey.

We make no attempt at this time to further alter the status quo. The future course of this action may very well turn on the reaction of the parties to today's decision. Since we have no crystal ball to learn of those reactions and the parties' future conduct, we can only leave the future course of this action, beyond the changes in the status quo we have made, to the judgment of the trial court. We commend the trial judge's prior willingness to conduct evidentiary hearings on an expedited basis in this difficult case and recognize that the judge's former hands-on approach may be further warranted in this case.

 
Reversed in part, affirmed in part, and remanded for further proceedings in conformity with the letter and spirit of our opinion. We do not retain jurisdiction.

We observe that neither K.H. nor J.H. have moved for leave to appeal any of the interlocutory orders entered by the trial court to date.

The judge candidly stated that he found "by around a 51 or 55 percent, I can't quantify it, margin that [K.H.] committed abuse on [T.H.]," but that if required to find "by 70 or 90 percent, I think, I would come out differently."

J.H. had withdrawn T.H. from Newark Collegiate Academy and enrolled her, without the Division's permission, at Irvington High School.

The Court observed that "Gloria had visited Ted ten times during his incarceration and had initially lied about the contact." Id. at 604.

(continued)

(continued)

31

A-1013-07T4

RECORD IMPOUNDED

November 2, 2007