NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES Cross- v. M.C.V.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3122-09T2

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent/

Cross-Respondent,

v.

M.C.V.,

Defendant-Appellant/

Cross-Respondent,

and

F.V.,

Defendant.

_____________________________

IN THE MATTER OF J.V., M.V., and S.V., minors,

Respondents/Cross-Appellants.

_____________________________

March 16, 2011

Argued February 14, 2011 - Decided

Before Judges Grall, LeWinn and Coburn.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-83-10.

Michael S. Harwin, Designated Counsel, argued the cause for appellant/cross-respondent M.C.V. (Yvonne Smith Segars, Public Defender, attorney; Mr. Harwin, on the brief).

James Gentile, Deputy Attorney General, argued the cause for respondent/cross-respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Gentile, on the brief).

Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for respondent/cross-appellant, minor J.V. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Fratz and Seetha John-Holmes, Assistant Deputy Public Defender, on the brief).

Jeffrey R. Jablonski, Designated Counsel, argued the cause for respondents/cross-appellants, minors M.V. and S.V. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Jablonski, of counsel and on the brief).

PER CURIAM

M.C.V. (Mary) and F.V. (Frank), husband and wife, are the natural parents of M.V. (Matt), born in 2002, and S.V. (Steven), born in 2004; Frank is not the natural father of J.V. (John), born in 1998, but he adopted the boy during the marriage.1 Since March 2009, Mary and Frank have been in the throes of divorce litigation that includes a highly contentious custody battle.

On May 27, 2009, Frank filed an order to show cause under the matrimonial docket based on an incident that had occurred the previous day, when John reported to Frank that Mary had hit him with a belt. Frank called the Division of Youth and Family Services (DYFS), with whom the family had had prior involvement. The judge held a hearing on May 28; a Deputy Attorney General was present on behalf of DYFS, but did not enter a formal appearance. DYFS caseworker Genea Bullock testified as to her involvement with the family since April 2009. Bullock had interviewed John about the belt incident and, based on her interview, testified that DYFS's position was that Frank should be awarded temporary custody of the children.

At the conclusion of the hearing, the judge entered an order granting Frank custody of all three children "[o]n a temporary basis" and ordering that Mary's parenting time be supervised by her parents "subject to DYFS review."

Because Frank worked full-time, he needed assistance with caring for the children. His sister helped for a while but stopped due, in part, to John's behavioral problems. Frank then asked Mary's parents to take the children; starting in June 2009, Frank would see the children weeknights and weekends.

On November 16, 2009, DYFS filed a complaint for the care and supervision of the children, alleging abuse/neglect by both Mary and Frank. The same judge presiding over the parties' divorce litigation held a hearing under the FN docket, noting that there were "intricately intertwined issues." The judge entered an order under the FN docket placing the children under DYFS's supervision, requiring John to undergo a psychological evaluation, and permitting Frank unsupervised parenting time. Law guardians were appointed for the children; one law guardian represented John and another represented the two younger children.

On January 20, 2010, DYFS made an application to the judge to withdraw its FN complaint. DYFS noted that Mary and Frank were before the same judge in "a hotly-contested matrimonial case where the ultimate issue . . . is one of the custody of the children." DYFS posited that

[i]f either of the parties deems . . . the children to be at risk of harm at the hands of the other, it's anticipated that they would bring an order before the [c]ourt seeking a protective order with regard to the children, which is the role typically [DYFS] serves in child protective services cases.

DYFS also "believe[d] that [its] presence in this case likely would antagonize two individuals who seem to be antagonized towards each other. . . . [A]nd [DYFS's] presence likely is not going to assist the [c]ourt in focusing on any issues."

The law guardian representing John noted that she had obtained an expert psychological report indicating that DYFS's intervention was no longer necessary and there was "no risk of harm at this point for . . . these children having unsupervised visitation with" both parents. The law guardian noted that John had expressed the desire for unsupervised parenting time with his mother and stated that, if the judge would not permit that, she would "object[] to [DYFS] getting out." The law guardian representing Matt and Steven had no objection to DYFS's request.

Mary also had no objection to termination of the FN litigation provided that she was permitted unsupervised parenting time. Frank agreed with DYFS's request but objected to giving Mary unsupervised parenting time based solely upon the report of the law guardian's expert and without the benefit of a plenary hearing.

The judge granted DYFS's request to withdraw the abuse/neglect complaint. Regarding Mary's request for unsupervised parenting time, however, the judge noted that the "decision to have supervised visitation [with Mary] was made . . . on the basis of . . . the evidence that was presented . . . on the return of the [o]rder to [s]how [c]ause" and concluded that "[i]n view of the dismissal of the FN matter, . . . it would be appropriate to return to the [c]ourt's order of May 28, 2009[,]" entered under the parties' FM docket, awarding custody of the three children to Frank and affording Mary supervised parenting time. The judge entered an order dismissing the FN litigation "without prejudice[,]" adding:

In the event that [DYFS] receives any additional referrals with regard to the children named herein, copies of [DYFS's] records and reports generated as a result of the referral immediately shall be provided to the court as set forth at N.J.S.A. 9:6-8.10a(b)(6). The court then shall apply the criteria of the statute and case law to determine if the records should be released to counsel within the context of the . . . matrimonial action.

The order noted that it was entered "over the objection of the law guardian."

Mary appeals and contends that custody of the three children should be returned to her or, alternatively, the matter should be remanded for a dispositional hearing pursuant to N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009); she also seeks removal of her name from the Central Registry that contains all substantiated reports of child abuse/neglect pursuant to N.J.S.A. 9:6-8.11, N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13. 26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

Both law guardians cross-appeal. John's law guardian contends that the judge prematurely terminated the FN litigation, thereby depriving the children of legal representation and failing to consider an appropriate disposition of the matter. The law guardian for Matt and Steven asserts standing to "raise issues for review by the trial court including . . . advocacy as to the wishes of the children[,]" adding that DYFS failed to make reasonable efforts with respect to the children's best interests.

In their briefs, appellant and cross-appellants sought relief in the form of a remand for a dispositional hearing. At oral argument, however, counsel for Mary and the law guardian for Matt and Steven stated that they sought a remand to have a fact-finding hearing pursuant to N.J.S.A. 9:6-8.44 and -8.46(b), followed by a dispositional hearing under N.J.S.A. 9:6.8-50 and G.M., supra, 198 N.J. at 399.

For the reasons that follow, we are satisfied that neither remand request is appropriate. We, therefore, affirm the January 20, 2010 order terminating the FN litigation. We modify that order, however, to remove the designation "without prejudice" and to delete the paragraph quoted above that reserves to DYFS the right to submit to the court the reports generated by the May 2009 referral "in the event of future referrals." In light of the dismissal of the FN complaint based upon DYFS's representation that its "presence likely is not going to assist the [c]ourt in focusing on any issues[,]" we discern no basis for this provision. If in the future DYFS determines a new basis exists to warrant filing a new FN application, it is, of course, free to do so.

DYFS's involvement in this matter spanned only two months from the date it filed the abuse/neglect complaint. Notwithstanding DYFS's initial involvement in supporting Frank's order to show cause to gain custody of the children in May, it appears the agency soon realized that the children were more at risk from their parents' mutual antagonism than potential "victims" of abuse or neglect requiring DYFS's intervention.

We conclude that the judge properly granted DYFS's application to withdraw its FN complaint. Under N.J.S.A. 9:6-8.50(c) a judge is permitted to dismiss an abuse/neglect complaint "[i]f facts sufficient to sustain the complaint . . . are not established, or the court concludes that its assistance is not required on the record before it[.]" Here, the judge found "no . . . continuing imminent harm to the children[,]" and concluded that there was "no need for continued . . . care, custody or supervision with respect to the children . . . in the FN docket." We are satisfied the judge's findings are based upon "adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs v. G.L., 191 N.J. 596, 605 (2007). We are bound, therefore, to defer to those findings. Ibid.

In the absence of a fact-finding hearing, a remand for a dispositional hearing is not proper. G.M., supra, 198 N.J. at 399. Rather, the parties are now free to pursue resolution of all custody issues within the context of their divorce litigation, and are urged to do so on an expedited basis.

We turn briefly to the concerns expressed by the law guardians. The Office of the Law Guardian is a statutorily created agency that provides representation to children in abuse and neglect proceedings brought under Title Nine. N.J.S.A. 9:6-8.23. While the FN complaint was pending in this case, the law guardians had an obligation to advance the children's interests. With the dismissal of that complaint, however, the formal role of the law guardians is terminated.

If the law guardians remain convinced that the children's best interests can only, or best, be protected in an FN proceeding, they are entitled to institute such a proceeding. N.J.S.A. 9:6-8.34(d) provides that "[a]ny person having knowledge or information of a nature which convinces him that a child is abused or neglected" may institute an abuse/neglect proceeding.

Finally, we address Mary's contention that her name should be removed from the Central Registry. She did not raise this issue before the trial judge. Nor did she request an administrative hearing to challenge the placement of her name in the registry. See N.J. Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 64 (App. Div. 2005) (where DYFS substantiates a charge of child neglect or abuse, "any person whose name is placed in the Central Registry is entitled to a trial-type hearing to challenge this finding"). As this issue was not properly preserved below, we will not consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

The judgment of January 20, 2010 is affirmed as modified herein.

1 We refer to the parents and children by fictitious names.