OF YOUTH AND FAMILY SERVICES v. L.J and B.O. and H.O IN THE MATTER OF K.O and T.O Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0269-10T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.J.,

Defendant-Appellant,

and

B.O. and H.O.,

Defendants.

_________________________________

IN THE MATTER OF K.O. and T.O.,

Minors.

_________________________________

December 12, 2011

Submitted November 7, 2011 - Decided

Before Judges Grall and Alvarez.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Warren County, Docket No. FN-21-171-08.

Joseph E. Krakora, Public Defender,

attorney for appellant (Richard

Sparaco, Designated Counsel, on the

brief).

Paula T. Dow, Attorney General, attorney

for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel; Andrea D'Aleo, Deputy Attorney General,

on the brief).

Joseph E. Krakora, Public Defender,

Law Guardian, attorney for minors (Noel C.

Devlin, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

L.J., the biological mother of K.O. and T.O., appeals from an order of disposition entered in a Title 9 action, N.J.S.A. 9:6-8.8 to -8.73, filed by the Division of Youth and Family Services (Division). Although the Division alleged and the judge found the children were neglected by their father, B.O., and stepmother, H.O., the dispositional order prohibits L.J. from having any contact with her children for an indefinite period. Because this order of protection is not authorized by N.J.S.A. 9:6-8.55 and was entered without affording L.J. adequate notice or an opportunity to be heard, we reverse.

The Division commenced this litigation in April 2008 after investigating a report from the Lopatcong Police Department about conditions in the father's home in March of that year. At that time, the children were living with their father and stepmother.

This was not the Division's first contact with this family. In July 1999, the children were placed under the Division's care and supervision, and the Division provided services to address their parents' alcohol abuse and domestic violence. A guardianship case was opened, and both parents participated in programs for substance abuse, domestic violence, anger management and parenting skills. In November 2000, that case was closed with a final order placing the children in the legal and physical custody of their father and providing supervised visitation for L.J.

In August 2002, the judge who presided over the guardianship action modified the arrangement in a custody case in which the Division did not participate. Under the terms of that order, the parents had joint legal custody and mother had unsupervised parenting time on alternate weekends. That arrangement for custody and parenting time was also incorporated by reference in an amended final restraining order entered on B.O.'s applications in September 2002 and December 2003. Division records indicate that L.J.'s parenting time was subsequently suspended in February 2007 on B.O.'s motion filed in the custody case. Although the Division did not participate in that proceeding, it was investigating a referral made by a police officer who expressed concerns about the children based on his observations of L.J.'s apparent intoxication. During that investigation, T.O. told a caseworker he did not want to visit his mother because she acted "weird" and had fallen asleep on the lawn after using prescription medication. K.O., however, said she enjoyed her visits with her mother and felt safe with both of her parents. B.O. told the caseworker he did not think the children were unsafe with their mother but was concerned about her drug use and L.J.'s boyfriend. The Division arranged a substance abuse evaluation for L.J. After canceling several appointments, L.J. complied, and the evaluator concluded that there was no need for intervention. The Division concluded the referral was not substantiated and closed the case.

According to the caseworker's notes from the final visit before closing the case, L.J.'s daughter wanted to continue visits with L.J., and B.O. told the caseworker that the judge entered an order providing L.J. with visitation supervised by Catholic Charities. He also said he intended to ask the supervisors about counseling for their son. The Division left the parents to resolve the issues in the Family Part through their custody case and without Division involvement.

As noted at the outset of this opinion, L.J. was not involved in the March 2008 incident that led the Division to file this complaint alleging abuse or neglect and did not make the referral. A police officer from the Lopatcong Police Department contacted the Division to report that the children's father and stepmother were intoxicated and the stepmother had been taken to a hospital where a gash on her head was closed with fifteen staples and several stitches. The stepmother first indicated that B.O. pushed her against the garage door but later said she sustained the injury in a fall.

During the investigation that followed, the children told caseworkers that their father and stepmother regularly drank and that there was sometimes funny-smelling cigarette smoke in the house. They denied seeing any violent behavior, but they reported that the father and stepmother regularly consumed alcohol, which caused them to act "funny" and sometimes led to their stepmother passing out. In addition, the Division's nursing consultant determined that both children were behind on immunizations and due for check-ups, and the Division learned that L.J.'s son was refusing to visit her.

The Division commenced this litigation for care and supervision of the children by filing a complaint and an order to show cause on April 30, 2008. Father, stepmother and mother were named as defendants. Father appeared pro se at the initial hearing, but the other defendants did not appear. The judge gave the Division responsibility for care and supervision of the children but did not remove the children from the father's home. On the Division's representation that L.J. had supervised visitation, the judge included a provision providing for continued supervised visitation. The judge's order directed the Division to arrange substance-abuse evaluations for B.O. and the stepmother but no services for L.J.

On the return date, June 18, 2008, all three defendants appeared, and L.J. was represented by appointed counsel. Noting that the order provided supervised visitation for L.J., her attorney asked the court to require the Division to provide her with psychological and substance abuse evaluations and any necessary services. The Division and the children's law guardian asserted that L.J.'s visitation should be addressed in the non-dissolution case, and the judge denied L.J.'s request. The judge reasoned that L.J. was not part of the Division's case, was "a party because she's a parent," but was not entitled to services because she was not charged with abuse or neglect. The judge concluded that L.J.'s visitation was a matter between the parents that could be addressed in the custody case.

A fact-finding hearing on the allegation of abuse and neglect by B.O. and the stepmother was conducted on October 15, 2008. The judge found that the children had been neglected by their father and stepmother. The Division presented no evidence as to abuse or neglect by L.J., and the judge did not find that she had committed abuse or neglect.

Immediately after the fact-finding hearing, the judge reviewed the parties' compliance with prior orders. During that portion of the hearing, the Division's attorney reported on positive conditions in the father's home and that the children were doing well. The Division's lawyer indicated that the Division had assumed responsibility for supervising visitation due to the son's refusal to see L.J. According to the law guardian, L.J. had not asked for visitation since the Division took over and so none had been arranged. She advised that L.J.'s son had bad memories of L.J.'s drinking and "knew" she had not stopped. For him, visits with L.J. were a reminder of something he did not want to deal with. In her opinion, the cessation of visits was "really working" for the children.

At the next hearing on February 18, 2009, nearly one year after this litigation was commenced, the Division switched its position on L.J.'s entitlement to services. After reporting on the progress made by the father and stepmother in addressing their alcohol abuse, the caseworker, who was not placed under oath, advised that the Division had made arrangements to have L.J. see the children. The visits were unsuccessful because the children refused to get out of the car. Relying on the children's opposition to seeing L.J., the Division asked the judge to order her to comply with psychological and substance evaluations and follow the resulting recommendations.

Although L.J. did not speak at this hearing, she was present. Her attorney, noting that he had requested such assistance on his client's behalf months before, indicated that L.J. would comply. The attorney also detailed his client's efforts to address her substance abuse, referring to logs of her attendance at AA, women's group meetings and counseling sessions. The attorney for the Division, a caseworker and the law guardian made additional representations about the children's opposition to seeing their mother and participating in family therapy. None of which were made under oath or subject to cross-examination.

On June 17, 2009, L.J. and her attorney appeared for a hearing. The Division's attorney advised the judge that L.J. had been "somewhat compliant" with services but had cancelled several appointments for a substance evaluation and suggested that she was avoiding urine tests. L.J.'s attorney offered reasons for the cancellations and advised the court that she was not seeking to force visits with the children but simply wanted the opportunity to see them when they were willing.

On June 11, 2010, the judge interviewed the children, but no recording was made. At a subsequent hearing on June 16, 2010, apparently scheduled to address whether L.J. would be permitted to communicate with her children, the judge reported that the children had maturely explained that they did not want to see their mother because they did not want to be exposed to her drinking again. L.J.'s attorney had requested an adjournment prior to the hearing because she had been injured, and the judge granted the request but directed L.J.'s lawyer to let L.J. know that it would be difficult for the judge to allow her to communicate with the children based on what the children had told her.

L.J. and her attorney attended the next hearing on July 21, 2010. In the interim, L.J. had contacted her daughter on Facebook. Although the judge indicated that she had read that communication and was concerned about the content, it was not introduced into evidence and is not included in the record on appeal. L.J.'s attorney argued that a hearing should be held before entry of any order terminating the litigation that included a prohibition on L.J. from contacting the children. The judge rejected the argument, noted that L.J. had not appeared at several hearings and declined to conduct a hearing. The final order provides for the following: dismissal of the abuse and neglect action on the ground that B.O. and the children's stepmother had remediated the conditions that led to the Division's involvement; joint legal custody; residential custody with B.O.; and a directive that L.J. have no contact with the children "by telephone, internet, text, Twitter, or in person," with the exception of annual birthday cards to be screened by B.O. and given to the child if the child wishes to have it.

On appeal, L.J. argues that this order was entered without adequate findings and in violation of her due process rights. We conclude that this order of protection must be vacated.

Parents' rights to a relationship with a child are "'balanced against the State's parens patriae responsibility to protect the welfare of children.'" N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382, 397 (2009) (quoting N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Courts have the obligation to "ensure that the statutory and constitutional rights of the parent or guardian are scrupulously protected." Ibid. That mandate was not followed in this case.

Title 9 authorizes entry of an order of protection at the conclusion of a dispositional hearing following a finding of abuse and neglect. N.J.S.A. 9:6-8.51. The conditions under which orders of protection may be issued and limitations on their scope are set forth in N.J.S.A. 9:6-8.55.

The statute permits entry of an order of protection against a parent who is not charged with abuse or neglect. It authorizes a court to "make an order of protection in assistance or as a condition of any other order made under this act," that "set[s] forth reasonable conditions of behavior to be observed for a specified time by a person who is before the court and is a parent or guardian responsible for the child's care or the spouse of the parent or guardian, or both." Ibid. Among the permissible restrictions are orders directing a parent to "stay away from the home, the other spouse or the child;" visit at times specified; and "abstain from offensive conduct against the child or against the other parent or against any person to whom custody of the child is awarded . . . ." N.J.S.A. 9:6-8.55a-c.

We recognize that, when the dispositional order was entered, L.J. retained legal, albeit not residential custody. Accordingly, the judge could consider the propriety of imposing statutorily authorized conditions despite the fact that L.J. was not the parent charged with abuse or neglect.

This order cannot be sustained, however, because it imposes conditions that are not authorized by the statute. First, the restrictions are of unlimited duration, not imposed for "a specified time" as N.J.S.A. 9:6-8.55 requires. Second, the statute does not permit a court to prohibit a parent from having any contact with his or her children. The restrictions authorized regulate parental contact but do not foreclose it. N.J.S.A. 9:6-8.55a-e.

There is an additional and more fundamental reason for our decision to vacate this order. L.J. did not have the notice or the opportunity to be heard that due process requires. N.J. Div. of Youth and Family Servs. v. B.M., 413 N.J. Super. 118, 126-27 (App. Div. 2010). At the earliest stages of this protracted Title 9 proceeding, and at the urging of the Division and law guardian, the judge determined not to address the question of L.J.'s visitation and to leave that question as an issue for the parents to address in their custody case. There was no indication that the judge was considering entry of an order restricting L.J.'s visitation after the dismissal of the abuse and neglect case, and the judge erred by denying L.J.'s request for a hearing when it became clear that she intended to do so.

Setting aside the fact that this order exceeded the scope of an order of protection authorized by N.J.S.A. 9:6-8.55, there is no question that it could not be entered without a hearing comporting with the basic requirements of due process. Those principles are violated when a judge makes a decision about parental rights based on informal representations and documentary evidence and without giving the parent an opportunity to present a defense. G.M., supra, 198 N.J. at 401-02; N.J. Div. of Youth and Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004); N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). For the foregoing reasons, we reverse the provisions of the order addressing custody and parenting time. We remand the matter to permit the judge to determine whether custody and visitation should be addressed on motion of either party filed in the custody case or whether to conduct a hearing in the Title 9 action preliminary to entry of an order of protection that is authorized by N.J.S.A.9:6-8.55.

Reversed and remanded. We do not retain jurisdiction.