DIVISION OF YOUTH AND FAMILY SERVICES v. T.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2355-06T42355-06T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.C.,

Defendant-Appellant,

and

U.C., J.C., E.M. and G.C.,

Defendants.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF K.C.,

E.M. and B.C.,

Minors.

____________________________________________________________

 

Submitted July 10, 2007 - Decided July 27, 2007

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

Docket No. FN-07-149-06.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Thomas G. Hand, Designated

Counsel, of counsel and on the brief).

Anne M. Milgram, Attorney General, attorney

for respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Lisa J.

Rusciano, Deputy Attorney General, on the

brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for Minors K.C., E.M. and

B.C. (Christopher A. Huling, Assistant Deputy

Public Defender, on the brief).

PER CURIAM

T.C. is the biological mother of a daughter, K.C., born on July 29, 1999, a daughter, E.M., born on October 17, 1997, and stepdaughter, B.C., born on January 19, 2000. She appeals from three Family Part orders as they pertain to K.C.: (1) an order entered on August 15, 2006, that transferred legal custody of K.C. to G.C., K.C.'s natural father; (2) an order entered on November 16, 2006, that allowed K.C. to remain in the legal and physical custody of G.C.; and (3) a second order dated November 16, 2006, that terminated the litigation.

On appeal, T.C. presents the following arguments:

POINT I

K.C. MUST BE RETURNED HOME TO HER MOTHER T.C., OR, IN THE ALTERNATIVE, THIS CASE MUST BE REMANDED FOR A PROPER PERMANENCY HEARING ACCORDING TO STATUTE.

A. AT THE AUGUST 15, 2006 HEARING, JUDGE RYAN SHOULD HAVE ORDERED THE RETURN OF K.C. HOME.

B. JUDGE RYAN FAILED TO PROPERLY HOLD A PERMANENCY HEARING ON AUGUST 15, 2006.

C. ASSUMING JUDGE RYAN HELD A PERMANENCY HEARING AS REQUIRED BY N.J.S.A. 30:4C-61.2, HE APPLIED THE WRONG STANDARD.

POINT II

JUDGE HAYDEN IMPROPERLY DISMISSED THE LITIGATION.

Because of procedural infirmities, we reverse and remand the matter to the Family Part.

In New Jersey Division of Youth and Family Services v. J.Y., we noted a judicial determination in abuse and neglect cases "has a profound impact on the lives of families embroiled in this type of a crisis." 352 N.J. Super. 245, 264-65 (App. Div. 2002). Consequently, a trial court's determination "must be based on competent reliable evidence, N.J.S.A. 9:6-8.46; R. 5:12-4(d)," and the court's "factual findings must be supported by evidence admitted during the hearing, which shall be held on the record." Id. at 265. "Testimonial evidence must be presented through witnesses who are under oath, N.J.R.E. 603, and subject to cross-examination. N.J.R.E. 611. In short, this critically important part of the business of the Family Part demands meticulous adherence to the rule of law." Ibid. Unfortunately, that did not happen here.

On September 14, 2005, the Division of Youth and Family Services (the Division or DYFS) filed an order to show cause and a verified complaint alleging that K.C., E.M., and B.C. required the protection of the Division because T.C. used "excessive corporal punishment" to discipline the children. N.J.S.A. 9:6-8.21. Pursuant to N.J.S.A. 30:4C-12, temporary custody was awarded to the Division, and the children were removed from their home where they had resided with T.C. and her husband, J.C., B.C.'s biological father.

On October 7, 2005, the return date of the order to show cause, T.C. stipulated that K.C. sustained physical injuries, which were displayed in a photograph marked for identification, after T.C. "used a belt" to discipline the child. The order entered on October 7, 2005, noted T.C. stipulated to acts that constituted abuse, and K.C. was placed in the physical custody of her birth father, G.C., where she remains today.

During a case management review hearing on March 3, 2006, the Division's attorney advised the court T.C.'s psychological evaluation had been completed, and T.C. was attending parenting skills and anger management classes. The Division's attorney also informed the court T.C. was "compliant with services," and the Division's plan was to "reunify with close supervision." During this hearing, T.C.'s attorney noted K.C.'s sister, E.M., was being allowed to return home, and she asked the court to allow K.C. to return home so that the sisters could grow up together. Although the court acknowledged T.C.'s progress, it ordered that residential custody would remain with G.C. until a "final determination" was made at "the end of the school year."

At the next court hearing on August 15, 2006, the court initially stated that it was not going to make a final decision: "I'm not in a position to make a decision today where [K.C.] would stay, but I'm certainly not in a position today to take her away from her father either." At that point, T.C.'s attorney suggested if the court "wants more information as to where the child should remain permanently, we can prepare that and we can prepare [for] trial." Nevertheless, the court stated it didn't "need any more information."

No testimony or evidence was presented during the hearing on August 15, 2006, however, prior to rendering a decision, the court interviewed the DYFS caseworker, Ms. Becker, at side bar, off the record. After conferring with Ms. Becker, the court stated, "I've conducted what is effectively a plenary hearing by virtue of eliciting information. I'm going to put on the record some observations and put my findings on the record and give you a decision."

The court acknowledged T.C. complied "with everything that we've asked [her] to do," and it complimented Ms. Becker "on the wonderful job she's done with the mother . . . to demonstrate that reunification is the appropriate permanency plan here." The court also found "both parents are fit," and K.C. stated a preference to reside with her mother. Nevertheless, it ultimately determined G.C. was "best able to meet the needs of the child," and it ordered G.C. would "continue . . . as the primary parent."

Following the hearing on August 15, 2006, T.C.'s attorney filed a "notice of motion to amend the August 15, 2006 compliance review order." In support of T.C.'s motion, her attorney argued T.C. "was denied an opportunity to present evidence and witnesses" prior to the court's custody decision, "and she is entitled to that, to due process under the law." We agree and remand for further proceedings consistent with this opinion.

At the remand hearing, T.C. must be afforded an opportunity to present evidence and witnesses, and she must be afforded "a full and fair opportunity to challenge" any evidence considered by the court. R. 5:12-1(f). On the limited record before us, we do not reach T.C.'s argument that custody of her child should be restored to her. The remand proceedings must be held expeditiously and must comply "with required formality in the taking of evidence and the rendering of findings." J.Y., supra, 352 N.J. Super. at 264.

The orders under review are reversed and remanded. We do not retain jurisdiction.

 
 

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A-2355-06T4

RECORD IMPOUNDED

July 27, 2007