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This case can also be found at 199 N.J. 132, 970 A.2d 1048.
(NOTE: The status of this decision is unpublished.)





DOCKET NO. A-2537-07T4












a minor.



Submitted December 17, 2008 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FN-02-072-07.

Howes & Howes, attorneys for appellant (W. Timothy Howes, on the brief).

Anne Milgram, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Sandra Wilson Moss, attorney for respondent P.P.

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor, T.P. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).


S.P., the mother of T.P., born October 12, 1998, appeals from a November 15, 2007 order of the Family Part that dismissed the Title 9 protective services litigation filed by the Division of Youth and Family Services (DYFS) and transferred physical custody of the child from S.P. to the child's father, P.P., without an evidentiary hearing. We reverse.


When S.P. and P.P. were divorced, the court awarded them joint legal custody, but granted sole physical custody of T.P. to S.P. DYFS involvement with S.P. began in January 2006, when the agency received a referral alleging that S.P. was drinking heavily and taking prescription medication that made her so drowsy she was unable to climb the stairs in her home. The referent also alleged that S.P. drove while intoxicated with her two daughters in the car. In response to that referral, a DYFS caseworker interviewed both girls at school. Each denied ever seeing her mother drink more than one glass of wine or seeing her intoxicated. The girls reported that their mother cooked dinner every night, helped them with their homework, functioned properly as a mother and imposed appropriate discipline. The principal of the girls' school reported no concerns about S.P. and commented that both girls were doing well academically.

On February 1, 2006, a second referral was received from an anonymous female who alleged that S.P. consumed alcohol daily and had recently become so drunk that she passed out and was "comatose." The caller alleged that S.P. had no food in the house for her daughters, who often had to fend for themselves to find food. As in January, both girls again reported their mother provided appropriate care.

In response to the February 2006 referral, a DYFS caseworker interviewed S.P. During the course of that interview, S.P. reported that P.P. tested positive for cocaine in August 2005. S.P. also alleged that P.P. had threatened to kill her, and expressed frustration that no one was helping her. Later that month, at DYFS's request, S.P. was assessed by Preferred Behavioral Health (PBH) concerning her alcohol and drug use. She reported to PBH her use of alcohol starting at age fourteen and her use of cocaine at various points in her life. S.P. also acknowledged suffering from significant anxiety, for which prescription anti-anxiety medications had been prescribed. After the assessment, PBH reported to DYFS that S.P. did not require treatment at that time.

In April, although S.P. had agreed to provide a urine drug screen, she was unable, or refused, to provide a sufficient sample to be tested. By mid-May 2006, S.P. had been evicted from her apartment and began receiving assistance from the Homeless Prevention Program.

In mid-June 2006, S.P. rebuffed DYFS's efforts to obtain a urine drug screen, stating she was so busy looking for housing and employment that she did not have time to come to the DYFS office. A few days later, S.P. reported to a DYFS worker that T.P. was staying with P.P. until S.P. was able to find housing. The DYFS worker then provided a list of community resources that could assist her in her search. On June 27, 2006, S.P. again refused to provide a urine drug screen, and DYFS filed a verified complaint for investigation on August 1, 2006.

In its complaint, DYFS sought an order directing S.P. and P.P. "to permit the immediate investigation by [DYFS] of the circumstances" of T.P. A few weeks later, on August 17, 2006, DYFS filed an amended complaint seeking care and supervision of T.P. pursuant to N.J.S.A. 9:6-8.33. In that complaint, DYFS alleged that S.P. continued to be uncooperative with urine drug screens, whereas P.P. had been attending drug treatment on a regular basis and his last two to three urine screens were negative.

Over the next fifteen months, three different judges held a total of ten hearings, most of which were designated as compliance review hearings. At the last hearing on November 15, 2007, designated a dispositional hearing, the court entered an order approving DYFS's motion to terminate the litigation and to continue T.P.'s placement with her father. Other than the hearing on August 31, 2006, which was the second of the ten hearings, no testimony was ever elicited. Instead, the hearings were limited to attorney argument and review of DYFS court reports.

We begin our review with the first hearing, which occurred on August 17, 2006. At the August 17, 2006 hearing, P.P. acknowledged that he was in treatment for substance abuse. The judge agreed that if S.P. were to test negative for drugs on the next scheduled testing date of August 22, 2006, residential custody of the children would be returned to her. At the conclusion of the August 17, 2006 hearing, urine drug screens were administered to P.P., who tested positive for cocaine, and to S.P., who tested negative. Consequently, the children were permitted to return to S.P.; however, she tested positive for cocaine on August 22 and August 28, 2006. As a result, at the end of the hearing on August 31, 2006, the judge ordered that both girls reside with J.R. until S.P.'s parents were able to assume custody. The maternal grandparents took custody of T.P. and T.R. a few weeks later.

During the next hearing, which was held on September 8, 2006, P.P. stipulated to drug use and placing the children at risk of harm. The court ordered him to cooperate with a psychological evaluation.

At the October 5, 2006 compliance review hearing, DYFS reported that S.P. had failed to attend two drug treatment programs to which she had been referred by DYFS, although she had enrolled in the Addiction Recovery Program two days before the hearing. Furthermore, an August 22, 2006 report from S.P.'s physician established that S.P. was on disability due to panic attacks, chest pains, anxiety and migraines. As to P.P., a psychological evaluation was received in evidence opining that P.P. was receiving a level of care appropriate for his drug relapse. The report noted that P.P. was actively participating in group and individual sessions. Additionally, all of P.P.'s drug and alcohol screenings were reported as negative.

S.P., on the other hand, was not faring as well. On October 10, 2006, she was involuntarily committed to Bergen Regional Medical Center (BRMC) after making suicide threats while at the DYFS office. She was discharged three days later. Urine drug screens conducted at that time were negative.

At the November 9, 2006 hearing, the judge denied S.P.'s request for unsupervised visits with T.P. both because of S.P.'s recent psychiatric hospitalization and her failure to enroll in intensive out-patient drug treatment. However, by the time of the December 21, 2006 hearing, S.P. had made dramatic progress. She had successfully completed a seven-day detox program at BRMC and had enrolled in its mentally ill chemical abuser (MICA) program. S.P. was also attending AA and had tested negative for drugs, other than those prescribed as part of the detox process. During the December 21, 2006 hearing, DYFS presented a psychological report for P.P., prepared in November 2006, in which the psychologist concluded that:

[P.P.] is not prepared to assume unsupervised parenting of his daughter. His recovery from marijuana addiction is fragile and he continues to evidence denial tendencies. He also evidenced an intention to be dishonest about his most recent relapse. [P.P.] is an immature, narcissistic adult who has difficulty with placing the needs of others before his own and empathizing with others. He also has stress management difficulties to which he attributed his relapse. [P.P.] is in need of continued recovery services [and] psychotherapy.

P.P.'s private therapist also issued a separate report opining that T.P. would not be at risk if she lived with her father.

At the next hearing on January 23, 2007, S.P. stipulated that her past chemical dependency problems had resulted in neglect of her children. She assured the judge that she had gained insight into her drug problem and was currently involved in a number of recovery programs. She reported that all of her urine drug screens had been negative.

During that hearing, DFYS reported its intention to place T.P. with P.P. as soon as the home evaluation was completed by child protective services officials in Westchester County, New York, where P.P. lived. The Law Guardian, in contrast, notified the court that T.P. "would like to go home" to her mother. He reported that both T.P. and T.R. "have seen an improvement in their mom since this case has started." The Law Guardian did not, however, request that T.P. be returned to her mother's custody. At the conclusion of that hearing, the judge continued a prior order that required S.P.'s visitation with T.P. to be supervised.

During the next hearing, which took place on May 17, 2007, a psychological report on S.P. was admitted in evidence. The psychologist described S.P. in many of the same terms that had been used to describe P.P. in the November 2006 report. The psychologist concluded that S.P. "is not prepared to resume unsupervised parenting responsibilities at this time. She is in need of psychotherapy to address difficulties with mood, poor judgment, problematic personality traits and parenting skills deficits. In addition, she is in need of continued recovery services and psychiatric medication management."

The report DYFS submitted during the May 17, 2007 hearing also established that S.P.'s new two-bedroom apartment "would be appropriate once properly furnished." The report writer also commented that S.P. "is compliant with appointments and medication" at BRMC.

The Law Guardian, as he had done at the January 23, 2007 hearing, reported that T.P., when interviewed by an investigator on April 24, 2007, again expressed her desire to return to her mother. He commented that on April 24, 2007, his investigator visited the home of P.P. in Westchester County, where T.P. had been living since February 16, 2007. The Law Guardian reported that T.P. was well-adjusted and happy living with her father.

On July 12, 2007, the first of two permanency hearings was held. Although DYFS commended S.P.'s progress, the agency recommended that T.P. not be returned to her because she had not yet sustained a sufficiently long period of stability, given her long history of illegal and prescription drug use and psychological problems. The Law Guardian, as he had done at the two prior hearings, advised the court of T.P.'s desire to return to her mother.

During that hearing, S.P. objected to the permanency plan proposed by DYFS, which recommended that T.P. remain with P.P indefinitely. S.P. asserted that her successful completion of a drug program and parenting skills classes, as well as her continued attendance at counseling, entitled her to unsupervised visitation. The judge responded that "complying with services is good, but it doesn't mean that you're at a point where you don't pose a risk to your child." When asked by S.P.'s attorney to elaborate on why S.P. posed a risk to T.P., the judge declined to do so. At no time did S.P. request an evidentiary hearing.

At the conclusion of the July 12, 2007 hearing, without making any findings of fact, the judge accepted the permanency plan submitted by DYFS in which T.P. would remain in the physical custody of P.P. The judge scheduled another hearing for August, rather than finalize the plan at that time, because T.P. had not yet been in New York with her father for the six months required by the interstate compact. After giving preliminary approval to DYFS's plan to keep T.P. in the physical custody of P.P., the court set the matter down for a second permanency hearing in August.

At the August 23, 2007 hearing, DYFS reported that S.P. and P.P. were fighting over custody. The judge expressed confusion, asking "is this a matrimonial?" When DYFS replied no, the judge said, "well, and that's not what this is docketed for." After DYFS announced that it would not pay for the custody investigation set forth in Rule 5:8-1, the judge directed the parties to decide how to split the cost of such investigation. At no time did S.P. undertake that investigation or request an evidentiary hearing. The permanency hearing was adjourned until November 15, 2007, because, contrary to earlier expectations, the interstate compact report had still not been received from child protective services officials in New York.

When the November 15, 2007 hearing began, DYFS moved to dismiss its complaint and to permit T.P. to remain in the residential custody of P.P. in New York, with the parties to share joint legal custody. S.P. did not object to dismissal of the Title 9 complaint, but objected to the permanency plan that continued residential custody of T.P. with P.P. S.P.'s attorney commented, "[W]e had a permanency hearing where the child was placed in [her father's] custody, as opposed to [S.P.'s] custody. We objected to that. I mean, that's been decided and we are not--we know that's not on the table today." A few moments later, S.P.'s attorney commented that his client "agree[d] to the visitation, the dismissal, joint custody." Without making any findings of fact or conclusions of law concerning T.P.'s continued residency with her father, and without making any findings to justify the change in physical custody from S.P. to P.P., the judge granted DYFS's request to dismiss its complaint. No further proceedings or hearings were scheduled and the litigation came to an end.

On appeal, S.P. raises a single claim. She argues that the Family Part erred "when it dismissed the litigation without either returning [T.P.] to [her] or conducting a plenary hearing." The Law Guardian agrees with the position taken by S.P. and raises an additional argument, namely that the judge "fail[ed] to articulate the legal and factual bases for its order dismissing the litigation and awarding custody of [T.P.] to P.P.[.] [Consequently,] the trial court was unable to establish that its decision was based upon the best interests of the child."

In contrast, P.P. urges us to affirm the November 15, 2007 order, arguing that the appeal should be dismissed because the order under review is merely interlocutory. He also maintains that no hearing was required before physical custody was transferred to him because the evidence before the court "overwhelmingly supported" the transfer of custody.

For its part, DYFS urges us to respect the Family Part's "feel of the case" based upon the extensive evidentiary submissions over the course of the fifteen months of litigation. DYFS also maintains that because there was no dispute that T.P. now resides with a fit parent in a stable and nurturing environment, DYFS oversight is no longer required and therefore dismissal of the Title 9 protective services litigation was proper. DYFS suggests that any plenary custody hearing be left for future FD or FM proceedings.


P.P.'s argument that S.P.'s appeal is interlocutory and should be dismissed because leave to appeal was not granted lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We turn now to the central issue raised by this appeal: whether the order that changed residential custody to P.P. required an evidentiary hearing. DYFS is charged with the responsibility of investigating child abuse and neglect. N.J.S.A. 9:6-8.21 to -8.73. Once a trial court makes a finding of abuse or neglect, it "shall determine" whether the child requires protection by way of a preliminary order "pending a final order of disposition." N.J.S.A. 9:6-8.50(d). Following the dispositional hearing the court must enter an order of disposition from among the alternatives provided by the statute. Those alternatives are:

(1) suspending judgment in accord with [N.J.S.A. 9:6-8.52]; (2) releasing the child to the custody of his parents or guardian in accord with [N.J.S.A. 9:6-8.53]; (3) placing the child in accord with [N.J.S.A. 9:6-8.54]; (4) making an order of protection in accord with [N.J.S.A. 9:6-8.55]; (5) placing the respondent on probation in accord with [N.J.S.A. 9:6-8.56]; (6) requiring that an individual found to have abused or neglected a child accept therapeutic services, and this order may be carried out in conjunction with any other order of disposition.

[N.J.S.A. 9:6-8.51(a).]

Here, the court proceeded in the fashion set forth in subsection (2) when it "releas[ed] the child to the custody of [a] parent[ ]." N.J.S.A. 9:6-8.51(a)(2). Two recent decisions by this court have reached starkly divergent results in their application of subsection (2). In New Jersey Division of Youth & Family Services v. R.G., 397 N.J. Super. 439, 447-48 (App. Div. 2008), we held that the court was not required to hold a permanency hearing before transferring custody to the non-abusive parent because transfer of the child from the offending parent to a non-abusive parent is not a "placement" within the meaning of N.J.S.A. 9:6-8.54(a). A few weeks later, another panel of this court held that even though the transfer of physical custody to the non-abusive natural parent is not a "placement" within the meaning of the statute, Division of Youth & Family Services v. G.M., 398 N.J. Super. 21, 43 (App. Div.), certif. granted, 195 N.J. 520 (2008), "our traditional jurisprudence . . . permits the court to modify an agreed upon custodial arrangement when faced with a change of circumstances, and when such modification was in the individual child's best interests." Id. at 44. The panel held that such a determination requires a complete adjudicative hearing and application of the statutory factors that guide a custody decision. Id. at 45-46. In New Jersey Division of Youth & Family Services v. I.Y.A., 400 N.J. Super. 77, 95 (App. Div. 2008), another panel of this court agreed with the holding of G.M.

The present appeal does not require us to decide which of those two opinions establishes the preferred course. However, we are not prepared to say, as the panel held in G.M., that an evidentiary hearing is always required whenever residential custody is switched from one parent to the other at the conclusion of Title 9 proceedings. We can anticipate that in some instances the evidence will be so one-sided and so uncontradicted that a plenary hearing would serve no useful purpose. See Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007).

Here, however, a hearing was required. Both parents had a significant history of substance abuse. Psychologists who evaluated P.P. and S.P. on behalf of DYFS reached nearly identical conclusions about the two, finding that both had significant personal faults and psychological difficulties that potentially interfered with successful parenting. Indeed, the December 15, 2006 report assessing P.P. characterized him as "a rather immature, narcissistic" and "self-centered" adult who "can have difficulty placing the needs of others before his own." The psychologist concluded that P.P. was "not prepared to assume unsupervised parenting of his daughter."

Furthermore, by the time of the dispositional hearing on November 15, 2007, S.P. had made great strides. She had completed intensive out-patient drug treatment, had undergone a week-long detox program and had submitted clean urine screens since December 2006. Her living arrangements were suitable and she had abided by court orders that required her to refrain from discussing the litigation with T.P. The record suggests that at the time the judge transferred residential custody to P.P., there was little difference between the fitness of S.P. and P.P. The principal distinguishing factor is that P.P. may have made faster progress in resolving his substance abuse problem than S.P. made.

Moreover, and perhaps most important, by not conducting a plenary hearing, the judge missed the opportunity to conduct an in camera interview of eleven year-old T.P., see Rule 5:3-2(a), who consistently expressed her desire to be reunited with her mother. Although T.P.'s wishes regarding custody would not have been controlling or dispositive, she was certainly in a position to provide relevant and current information to the court. The absence of a plenary hearing prevented her from doing so.

Additionally, at the time the court dismissed the Title 9 proceedings on November 15, 2007, no current reports were introduced in evidence to refute S.P.'s description of her progress in treatment, nor did DYFS present anything to refute S.P.'s contention that she had regained the ability to care for her daughter. Moreover, the court dismissed the Title 9 litigation on November 15, 2007, without making any findings of fact or conclusions of law, despite the requirements of Rule 1:7-4. The court's failure to do so, standing alone, requires reversal. However, when combined with evidence in the record showing that this was not the clear-cut case that would warrant the transfer of residential custody without a hearing, we conclude that a remand for a plenary hearing is necessary. We agree with S.P. that the record establishes she had made considerable progress in overcoming her addiction and maintaining stability. Consequently, she was entitled to a plenary hearing before the judge entered the November 15, 2007 order that dismissed the Title 9 litigation and transferred physical custody of T.P. to her father.

Reversed and remanded for an evidentiary hearing.


S.P. is also the mother of an older daughter, T.R., who lives with her father, J.R. That child was dismissed from the litigation. Consequently, the issues on appeal relate solely to S.P.'s custody of T.P.

We also observe that as a result of the November 15, 2007 order, S.P. has been left in a vague and uncertain status, tantamount to a legal limbo. If she seeks to regain residential custody of T.P., is she required to demonstrate a change of circumstances, as would ordinarily be required? See Ibid. Or, because there was no plenary hearing, would the judge consider the proofs as though there had been no prior order of custody? Our disposition of this appeal makes resolution of that issue unnecessary, although this uncertainty is further evidence of the infirmity of the order in question.






January 16, 2009