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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3541-05T43541-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v

T.S.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF J.N.

and M.N.,

Minors.

________________________________________________________________

 

Submitted March 21, 2007 - Decided April 20, 2007

Before Judges Wefing, C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FN-06-123-04.

Yvonne Smith Segars, Public Defender, attorney for appellant T.S. (Michael Confusione, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors J.N and M.N. (Michael McCafferty, Designated Counsel, of counsel and on the brief).

PER CURIAM

T.S. is the biological mother of a son, J.N., born on October 3, 1991, and a daughter, M.N., born on January 13, 1993. She appeals from the January 9, 2006 order of the Family Part that 1) awarded custody of the two children to her husband, their stepfather, D.S.; and 2) terminated the litigation. She raises five points on appeal.

POINT I

THE TRIAL COURT'S PURPORTED FINDING OF ABUSE AND NEGLECT WAS INVALID.

POINT II

BECAUSE THERE NEVER WAS A VALID FINDING OF ABUSE AND NEGLECT AGAINST T.S., THE MINOR CHILDREN SHOULD BE RETURNED TO THEIR MOTHER'S CUSTODY.

POINT III

THE TRIAL COURT ERRED IN GRANTING CUSTODY OF THE MINOR CHILDREN TO D.S., THE STEPFATHER, AT THE END OF THE ABUSE AND NEGLECT PROCEEDINGS.

POINT IV

THE TRIAL COURT ERRED IN TERMINATING THE LITIGATION WITHOUT PROVIDING ANY CONCRETE VISITATION RIGHTS TO T.S. OR APPRORIATE SERVICES DESIGNED TO REDRESS THE ALLEGED PROBLEMS NECESSITATING D.Y.F.S.' INTERVENTION IN THE FIRST PLACE.

POINT V

T.S. WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

We have carefully considered these contentions in light of the record and applicable legal standards. We reverse and remand the matter to the Family Part for further proceedings consistent with this opinion.

I.

On March 8, 2004, at 12:50 a.m., the Division of Youth and Family Services (D.Y.F.S.) was contacted by the local police and told that D.S. reported his stepson, J.N., was missing since the night before. D.S. told the police that his wife, T.S., the boy's mother, argued with her son and told him to leave the house. J.N. left and had not returned since. The police were familiar with the family because of "numerous domestic[]" incidents.

Shortly after receiving the report, the police located J.N. under a trailer behind a local shopping mall. At police headquarters, J.N. told the D.Y.F.S. worker that he had been suspended from school Friday afternoon for fighting. When he arrived home, his mother was waiting for him. She pushed him, told him to run before she called the police, and told J.N. he could not live there anymore. After leaving his mother, he had wandered about, slept outdoors Friday evening and spent Saturday at the mall. J.N. told the worker that he feared his mother and stepfather. He recounted numerous incidents during which his mother, in anger, had threatened him, accidentally hit him with a three-pound weight she had thrown, and had broken all the windows in the trailer where they resided. J.N. stated that his mother had previously been taken away by the police during one of the episodes to be "screened," and that she had recently stopped taking her medication.

J.N. told the worker that the last time he was suspended from school, D.S. had hit him so hard that he was "bruised." He was aware of an earlier domestic violence charge his mother made against D.S. because the police had come to the trailer and taken his stepfather away. However, he also indicated that D.S. would "corner" his mother during her episodes so that she could not harm him or his sister, M.N.

The D.Y.F.S. worker interviewed T.S. who acknowledged that she "threw stuff and broke things" in the trailer out of anger, but claimed it was all a result of her son's problems at school. She acknowledged prior psychiatric hospitalizations because of "depression," and told the worker that she had stopped taking her prescribed medication. The worker noted that T.S. had cut off most of her hair and it lay strewn about the floor of the trailer.

D.Y.F.S. removed both children from the home on an emergency basis and filed a verified complaint and order to show cause against both T.S. and D.S. seeking temporary custody of the children pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. At the hearing held on March 9, D.S. was represented by counsel, T.S. was not. D.S.'s attorney requested the judge to "schedule[] . . . a psychological and psychiatric evaluation" of T.S. He also requested supervised visitation with the children for both T.S. and D.S. The judge then noted,

[Y]ou represent D.S. Can you -- you cannot stipulate on behalf of [T.S.] under the circumstances, [] so I would have to take testimony in regard to the actual underlying aspects of the complaint, would I not?

Defense counsel responded by posing the following question to T.S.:

I believe that while I'm not representing her . . . she would have no objection to this order being entered; correct?

T.S. simply replied, "Correct."

With that, D.S.'s counsel then read the following stipulation:

[T.S.] stopped taking her medication, because of side effects that she was advised of from this medication without a doctor's approval. And that that then became the problem which developed in her action with her children. I think that would be sufficient for purposes of this hearing.

After making inquiry of the deputy attorney general as to the sufficiency of this stipulation, the judge had defense counsel question both T.S. and D.S. about their understanding of the proceedings, the stipulation and its effect. He then found the stipulation sufficient to continue the children in the care, custody, and control of D.Y.F.S., ordered T.S. to undergo psychological and psychiatric examinations, and carried the return of the order to show cause until April 5.

On that date, the court conducted a further hearing. Since her removal from the home, M.N. was living with a family friend in the same trailer park where T.S. and D.S. resided. She saw her mother on a daily basis apparently without incident. J.N., however, was in a foster home since the emergency removal a month earlier. He reportedly remained fearful of any return to his home; however, his concern centered on his mother's violent behavior, and his stepfather's inability to control her. D.Y.F.S. brought to the court's attention the serious mental health issues raised by T.S.'s behavior.

All of these developments were elicited through colloquy with the deputy attorney general, the law guardian, and the two defense lawyers. No testimony was taken, and no documentary evidence was formally introduced. The judge continued the children in D.Y.F.S.'s custody and care, ordered immediate evaluations of T.S. and ordered any visitation with the children was to occur at the D.Y.F.S. office under the supervision of D.S.

At the next hearing, on June 4, defendant, represented by counsel and under oath, answered her attorney's questions as follows:

Q. Now the deputy [attorney general] has advised me, and I advised you that instead of seeking a judgment of abuse or neglect under Title 9, they're willing to convert this to what they call a Family in Need of Services under a different section of the law. And under what they call Title 30.

And you've indicated you're willing to accept that as a -- 'cause you acknowledge there is a need for services in your family, is that right?

A. Correct.

Q. And you understand if that -- if the Court approves that, then there will be no finding of abuse or neglect against you; you understand that?

A. Correct.

. . . .

Q. Did anyone force or threaten you to cause you to enter into this agreement?

A. No.

Q. Are you under the influence of any medication, drugs, alcohol, anything that would affect your ability to understand what's going on today?

A. No, I am not.

Q. And you agree that your family is in need of services?

A. Yes, I do.

The judge entered an order converting the action into a Title 30 proceeding, and specifically noted he was doing so "without a finding of abuse or neglect." Once again, representations were made by the various attorneys regarding the progress of evaluations and the conditions of the two children, but, with the exception of T.S.'s voluntary agreement to convert the proceeding into a Title 30 case, no other testimony was taken. Despite the fact that the action named T.S. and D.S. as defendants, D.S. was never voir dired regarding the conversion of the proceedings, nor was the complaint against him dismissed.

Over the next nine months, the court conducted numerous compliance reviews while T.S. and D.S. were evaluated by a number of mental health clinicians. At a March 10, 2005, compliance review hearing, the children's law guardian indicated that M.N., who had now been placed in a foster home and no longer saw T.S. and D.S. on a daily basis, wished to return home. D.Y.F.S. objected and introduced into evidence the various reports from those evaluations. Based upon the transcripts provided to us, this was the first time any documents were introduced into evidence before the judge. Once again, at this hearing, no witnesses testified and the judge relied solely upon the information conveyed by the various attorneys.

One of the reports received in evidence was an April 2004 substance abuse evaluation of T.S. She acknowledged past substance abuse, including "severe" abuse of cocaine and experimentation with "rock cocaine" in the past. Although T.S. initially denied any history of psychological problems, she later acknowledged a psychiatric hospitalization in 2003 and a suicide attempt in 2002. The evaluator noted, "Due to client's distorted perceptions it is difficult to separate client's reality from her misperceptions."

Another report introduced was that of Pamela Kane, a psychologist, who interviewed T.S. and noted she was in "emotional distress." She questioned a prior diagnosis that T.S. suffered from "Bi-polar Disorder," but noted there was "reason to pursue th[e] issue" with further evaluation and testing. Kane noted T.S.'s claims of domestic violence at the hands of D.S. and determined "[e]ven if some of her perceptions are distorted, she could not make progress in assessing medications and using treatment while she remains with [D.S.]."

A third report was that of Dr. Clifford W. Jones, a psychiatrist, who also evaluated T.S. When he conducted his evaluation in May, T.S. had moved to a "women's shelter." Jones noted that T.S. had stopped taking all medications and believed she had been misdiagnosed with bi-polar disorder. He concluded that T.S. "present[ed] no committable behaviors," but "[ran] the risk of relapse" without the medications, treatment and individual counseling. Jones did not offer a specific diagnosis of T.S.

The last report moved into evidence was a February, 2005, evaluation of T.S. by Dr. Eileen M. O'Connor, a board certified psychiatrist. During that evaluation, T.S. denied abusing drugs, claimed she did not need her prescription medication, and denied any assaultive behavior. O'Connor's diagnostic impression was that T.S. suffered from "Possible Adjustment Disorder with depressed mood," and "Probable Mixed Personality Disorder." O'Connor recommended that before M.N. was allowed to return home, "the marital situation [needed to] be further addressed and [T.S. needed to] be under the care of a psychiatrist for treatment with antidepressant medication."

The judge carried the matter and ordered D.Y.F.S. to furnish Dr. O'Connor with all prior reports so that a more complete evaluation could be made. The record does not indicate one was every completed.

On May 17, the judge interviewed M.N. to determine whether she could be reunited with her parents. D.Y.F.S. objected, noting that T.S. had "not participated in any type of psychiatric services, as has been recommended by everyone who's seen her" and "maintains [] she has no problems and does not need any type of services." Although counsel were not present during the judge's interview of M.N., and, once again, no witnesses were produced at the hearing, the judge concluded, based upon the representations of all the attorneys, and his interview of M.N., that weekend overnight visitations between M.N. and T.S. and D.S. were appropriate. The judged urged D.S. to ensure M.N.'s safety in the event of any altercation, noting D.S. was "the first line of defense for [M.N.]."

After one overnight session, the parties were again before the court on May 27. During the weekend visit, M.N. and T.S. apparently argued, D.S. interceded, and T.S. filed a domestic violence complaint against him. That resulted in a temporary restraining order against D.S. and his removal from the home. The judge suspended overnight visitation, took jurisdiction over the domestic violence complaint, and ordered a hearing on the application for a final restraining order.

At the June 2 hearing, T.S., D.S., and the D.Y.F.S. caseworker testified. The judge essentially concluded that T.S.'s version of the events was not credible and he dismissed the domestic violence complaint. He concluded that D.S. was following the court's prior instructions and interceded to protect M.N. from the possibility of physical violence at her mother's hands. On June 28, the judge held a further hearing and ordered D.Y.F.S. to "evaluate the home of D.S. when he obtains residence for placement of [M.N.]."

In July, 2004, Kane had also evaluated D.S. She found him to be an "intelligent man [] determined to remain with his wife and to see her children returned." Kane noted that D.S. had struggled "with a serious addiction to alcohol" but that he understood his wife's mental health problems. She also opined that D.S. "is often emotionally stressed, is susceptible to depression and may react impulsively." Kane noted D.S. denied any domestic violence toward T.S., but "[h]is failure to acknowledge such violence does not mean that it did not occur." She noted that T.S. had returned home to live with D.S., and that he needed to "become a more active participant as a helpful spouse." The record fails to disclose whether Kane's report of her evaluation of D.S. was ever introduced in evidence or seen by the judge.

On July 12, 2005, T.S.'s counsel moved to be relieved. In his certification, he claimed that T.S. had accused him of not "fighting" for her interests, and of "threatening" her; T.S. intended to make an ethical complaint against him. He also noted that on at least two occasions, he had written to his client and told her that she needed to get help for her mental health issues and "take her medications."

The motion was heard on August 2 before the same judge who had conducted all the prior hearings. T.S. contested some of the factual assertions in her attorney's certification, but she agreed that their relationship had entirely broken down and she did not oppose the relief. The judge entered an order relieving counsel and allowing D.S. to have "unsupervised visits" while D.Y.F.S. evaluated his new home. No witnesses were produced at this hearing and no reports were introduced into evidence.

At a hearing held on September 6, T.S. was represented by new counsel. The deputy attorney general told the judge D.Y.F.S.'s recommendation was "the same as it was the last time we were here," placing M.N. in the custody of D.S. T.S.'s counsel requested that her client be evaluated by her own expert. Having just received the voluminous file, she noted,

[The deputy attorney general] made reference to diagnoses of some sort of mental illness. . . . There are conflicting diagnoses. So one of the questions that I have is if [T.S.] is being told to follow a doctor's order -- orders, there's some question in my mind as to which doctor. Because not all the doctors have arrived at the same conclusions . . . . So, it's hard for me to hear someone say that my client is not following a doctor's orders, when the doctors themselves cannot seem to agree on what the diagnosis is.

Without any testimony, apparently without any further evaluative reports, and relying upon the representations of counsel, the judge ordered M.N. placed in the legal custody of D.S. and permitted J.N. to transition into D.S.'s custody through weekend overnight visitations.

In an October 31 order, the judge transferred custody of J.N. to D.S. and ordered T.S. be allowed supervised, weekly visitation with the children. He also ordered the family to continue ongoing family counseling with Dr. Eric Schafer, a licensed professional counselor. In an October 20 report, Schafer, who had been meeting with the family for several months, noted that "one strained visit" in which T.S. "incessantly berated [D.S.]" was unsettling for M.N. Schafer found both children were doing very well in their interaction with D.S. But, as to T.S. he noted,

It was hoped that the same experience could be accomplished with their mother. However, when [T.S.] was last seen . . . she was demonstrating the emotional upheavals and lability as before with the same diatribe toward her husband. . . . It is difficult to counter or interface with [T.S.]'s idiosyncratic thinking, her perceptions and sense of personal alienation from others. . . . It must be reiterated that [J.N.] and [M.N.] have no desire to lose their mother, they simply are overwhelmed and feel their own inadequacy to respond to their mother's needs.

There is no indication in the record that the October 20 report, which was addressed to D.Y.F.S., was introduced into evidence and the court's order does not reflect that it was considered.

On January 9, 2006, the matter came before the court for a final time. D.Y.F.S. proposed terminating the proceedings and noted that the children were doing fine with D.S. No one, including T.S., opposed the termination of the case. Although the children, D.S. and T.S. were all participating in supervised visitation at the D.Y.F.S. office, D.S. sought the court's permission to allow him to supervise visitation outside the office. The deputy attorney general reiterated that until T.S. appropriately sought treatment and took her medications, family counseling would be counterproductive. No testimony was taken, and neither the transcript of the proceedings nor the court's order reflects any further evaluations were considered. An evaluative report of T.S. conducted by her own expert was apparently never completed.

The judge entered the final order in the case which defendant now appeals. He concluded that both "children [were] doing well with D.S." and that T.S. "refuse[d] to address psychiatric issues." The judge terminated the proceedings, transferred custody of M.N. and J.N. to D.S., and ordered "visitation [would] be worked out between the parties in a public place."

II.

Since, as we noted above, the judge never made any finding of "abuse and neglect" of the children, defendant's first and second points are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). We therefore consider defendant's third point which, as clarified in her reply brief, attacks procedurally and substantively the trial court's decision denying her custody as the children's biological parent, and awarding custody to their stepfather.

As we noted in N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 258 (App. Div. 2002), "[D.Y.F.S.'s] legal authority to bring an emergent application seeking the involuntary removal of a child from his or her place of residence is exclusively derived from two separate statutory schemes, N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-11 to -14." Thus, despite the voluntary conversion by the parties of the complaint into a "Title 30" proceeding, the court must still meet its responsibilities under the statutory scheme.

While a proceeding under Title 30 may not result in the same consequences to the parent -- a finding of abuse or neglect -- the Legislature has nonetheless spoken clearly that the interests of the children at issue are paramount and the obligations of D.Y.F.S. are clearly defined. For example, N.J.S.A. 30:4C-11.1 requires

In any case in which the division accepts a child in care or custody, the division 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.

Except in certain circumstances that do not apply here, at any dispositional hearing, the judge is required to find facts supporting the conclusion that D.Y.F.S. has made "reasonable efforts." As we noted in J.Y., supra, 352 N.J. Super. at 268, a proceeding "conducted with the [] informality and general lack of adherence to fundamental evidentiary rules" is inadequate.

Our review of the record indicates that with the exception of the domestic violence trial, no witness ever testified in any of the numerous court proceedings in this matter. No expert was ever called by any party. T.S., whose two attorneys sought to conduct a psychiatric evaluation on her behalf and furnish an expert opinion to the judge, never was allowed to rebut any of D.Y.F.S.'s rather inconclusive medical evaluations.

We fully recognize that the attorneys and the judge may have viewed the January 6, 2006, order as temporary, and they may have anticipated future modifications through applications made in the Family Part's non-dissolution docket. We note that at the final hearing, counsel for D.S. indicated that custody of the children was "temporary," and that D.S. would not "stand in the way" of T.S. regaining custody in the future.

The fact remains, however, that by terminating the proceedings, the judge left T.S. on her own, without the benefit of appointed counsel or experts, to challenge the custody award or, for that matter, to secure adequate visitation rights with her children.

III.

Because of these procedural infirmities, we must reverse and remand the matter to the trial judge for further proceedings consistent with this opinion. In doing so, we do not reach the merits of T.S.'s argument that custody of her children should be restored to her. After the appropriate adjudicative process, the judge may still conclude that D.S. should be awarded custody of J.N. and M.N. Our disposition does not imply that a different result is necessarily required. We only conclude that the procedures set forth in Title 30 must be scrupulously followed, and the trial judge must bear the "ultimate responsibility of conducting adjudicative proceedings in a manner that complies with required formality in the taking of evidence and the rendering of findings." J.Y., supra, 352 N.J. Super. at 264. Because of our disposition, we do not consider defendant's final two points on appeal.

Reversed and remanded. We do not retain jurisdiction.

 

We were not provided with a transcript of the June 28 hearing and cannot discern how, and by whom, the possibility of M.N. residing with D.S. was first broached with the court.

(continued)

(continued)

19

A-3541-05T4

RECORD IMPOUNDED

April 20, 2007