OF YOUTH AND FAMILY SERVICES v. C.K and J.E and M.T IN THE MATTER OF A.E a minor 2011 -

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3273-10T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.K.,

Defendant-Appellant,

and

J.E.,

Defendant-Respondent,

and

M.T.,

Defendant.

__________________________________

IN THE MATTER OF A.E., a minor.

__________________________________

December 29, 2011

Argued December 5, 2011 - Decided

Before Judges Sabatino, Ashrafi and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-000181-10.

Michael S. Harwin, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief).

Mark E. Kleiman, Designated Counsel, argued the cause for respondent J.E. (Joseph E. Krakora, Public Defender, attorney; Mr. Kleiman, on the brief).

Katherine J. Bierwas, Designated Counsel, argued the cause for minor A.E. (Joseph E. Krakora, Public Defender, attorney; Ms. Bierwas, on the brief).

Respondent Division of Youth and Family Services has not filed a brief.

PER CURIAM

Defendant-mother C.K. appeals from a January 27, 2011 final disposition order of an abuse and neglect complaint filed by the Division of Youth and Family Services (DYFS). By that order, defendant-mother waived her right to a fact finding hearing and agreed that she is a parent in need of services, and DYFS agreed to remove her from the Central Child Abuse Registry. See N.J.S.A. 9:6-8.11. Mother challenges the parts of the order that continued temporary custody of her daughter in Texas with the child's father, defendant J.E., and ceded jurisdiction to the courts of Texas to decide the contested custody dispute between mother and father. Having determined that the Family Part correctly applied the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, we affirm.

I.

Father and mother were divorced in Texas on February 21, 2006. The child has lived periodically in Texas and New Jersey since her birth in Texas in October 2004. Following the divorce, the child lived in New Jersey with her mother and her boyfriend, defendant M.T., but she also lived for months at a time with her maternal grandparents in Texas. The child's father continued to live in Texas.

On September 4, 2009, the Galveston County, Texas court entered a consent order modifying the custody and related parenting arrangements for mother and father. The order indicates that both were represented by attorneys and that they had reached agreement through mediation. The Texas court found it had "continuing exclusive jurisdiction" of the custody case, although it also designated New Jersey as the child's home state. In seventeen single-spaced pages, the order confirmed that the parents had the equivalent of New Jersey's joint legal custody, and it established a tightly-detailed parenting plan and schedule as well as the financial support obligations of the parties.

With respect to where the child would reside, the order stated that mother "shall have the exclusive right to designate the child's primary residence within either the State of Texas or the State of New Jersey." After entry of the consent order, the child lived in Texas with her maternal grandparents through the end of 2009. On or about January 1, 2010, mother took the child back to live with her and her boyfriend in Atlantic County, New Jersey.

In April 2010, DYFS in New Jersey took temporary custody of the child by means of emergency removal from mother's home pursuant to N.J.S.A. 9:6-8.29 and -8.30. DYFS filed an order to show cause and a complaint for temporary custody alleging abuse or neglect of the child after incidents of domestic violence in the home were reported to the police on April 26, 2010.

According to the DYFS complaint, the police were called to the home twice on that date, the first time in the early morning hours shortly after midnight. The police reported that mother had punched her boyfriend during an argument and he had responded by hitting her in the face and kicking her head. The boyfriend accused the mother of being intoxicated. Mother may have lost consciousness for some minutes as a result of the fight. The second police call was in the evening of April 26 in response to an allegation that the boyfriend had kicked mother in the stomach because she had not prepared dinner when he expected it. Mother refused to seek a restraining order, but the police arrested the boyfriend nevertheless and filed criminal charges against him.

The DYFS complaint alleged further that mother had significant bruising around her eye, but she denied her boyfriend was to blame. Both mother and boyfriend claimed she had been injured in an accidental fall. DYFS also determined that a prior assault had occurred in September 2009 when the boyfriend smashed a computer screen into mother's face because he did not approve of an internet site she was viewing.

Despite advice from DYFS to protect herself and her child, mother intended to seek dismissal of the charges against her boyfriend, as she had done previously, and to seek lifting of a no contact order against him. She wanted her boyfriend back home and did not believe her daughter would be harmed. Mother acknowledged to DYFS that she had previously been hospitalized for a mental condition but denied any alcohol or substance abuse in the home. Drug testing of the mother was negative.

On May 4, 2010, a hearing was conducted in the Family Part pursuant to N.J.S.A. 9:6-8.31 and -8.32 to address the emergency removal of the child by DYFS. Mother was present and represented by an attorney. Father and the child's maternal grandmother flew to New Jersey from Texas to attend the hearing. The boyfriend was also present. Father was not represented by an attorney at that time.

At the hearing, the attorney for DYFS stated that the parties had come to an agreement acceptable to DYFS. Father would take temporary custody pursuant to N.J.S.A. 9:6-8.55 and return with the child to Texas. Mother and her boyfriend would be provided counseling services pending a further determination of the New Jersey court on the abuse or neglect allegations. The court took testimony from father regarding his relationship with his daughter, his housing and employment, and arrangements for the child's schooling. The court then approved the temporary custody arrangement.

The court told father that the temporary arrangement would not deprive New Jersey of jurisdiction to decide any future custody issue. The court stated: "New Jersey will retain jurisdiction no matter how long it takes . . . . Under New Jersey law, as soon as [mother] does everything that [is required, the child] will come back to live with her, and then if you [father] decide that you want custody, then you would have to litigate that custody issue here in New Jersey." Father said he understood.

At the time of a compliance review hearing on September 14, 2010, a different Family Part judge had been assigned to the DYFS case. DYFS reported that mother had attended counseling and that the child could be safely returned to her care. The attorney appointed to represent father objected to return of the child, disputing that the child would be safe. The court scheduled a fact finding hearing for January 27, 2011, in accordance with N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88 (2009).

Before that hearing, in October 2010, father filed a motion in Texas for change of custody. On November 16, 2010, the New Jersey judge informed the parties that she would confer with the judge in Texas, as required by N.J.S.A. 2A:34-62, about which state had jurisdiction of the custody dispute. On November 19, 2010, the New Jersey and Texas judges spoke on the telephone, keeping a record of their conversation. The two judges agreed that the UCCJEA required that Texas exercise jurisdiction of the custody dispute and that New Jersey would exercise jurisdiction only over the DYFS case.

By December 2, 2010, the attorneys had received the record of the telephone conversation between the two judges. The Family Part judge in New Jersey advised the parties that they could file a motion for reconsideration or modification of the jurisdictional order the court would enter, or seek leave to file an interlocutory appeal. On December 6, 2010, the New Jersey court issued a jurisdictional order consistent with the judges' discussion. Neither party challenged the order at that time. On January 27, 2011, the dispositional order was issued in New Jersey as previously described, and the DYFS case was concluded. On March 14, 2011, mother filed a notice of appeal.

In the meantime, on February 11, 2011, mother had appeared with counsel at court proceedings in Texas. The Texas court found it had jurisdiction of the custody dispute and continued temporary custody of the child with father pending a hearing scheduled for June 6, 2011.

On the latter date, mother appeared again in the Texas court, but this time without an attorney. Father's attorney stated that the parties had reached an agreement and placed its terms on the record. Essentially, they agreed that father would have custody of the child and determine the place of her residence. Mother would have certain specified parenting rights and would pay child support to father beginning in July 2011. The Texas judge questioned both parties to confirm their understanding and agreement. Mother stated she agreed, and she believed the arrangement was in the child's "best interest."

At the Texas hearing, the judge was reminded that mother's New Jersey appellate attorney had written to the Texas court indicating that Texas was an inconvenient forum to decide the custody issue. The Texas judge reviewed the factors under the UCCJEA pertaining to the alleged inconvenience of the forum, see Tex. Fam. Code Ann. 152.207; N.J.S.A. 2A:34-71, and made findings on the record in that regard. He concluded that the Texas court was not an inconvenient forum and would not relinquish jurisdiction to New Jersey.

II.

As an initial matter, father and the law guardian for the child argue in opposition to mother's appeal that we should dismiss the appeal as moot because mother voluntarily entered into the Texas agreement to change custody of the child. In response, mother initially filed a motion before us to supplement the record with her certification stating that she only agreed to the change of custody because she could not afford an attorney in Texas and felt compelled by the judge to agree to the terms of the Texas order. We denied mother's motion, but without prejudice to her seeking a "temporary remand for relief in the Family Part." She made a motion in the Family Part to supplement the record but did not first obtain our authorization for the limited remand. The Family Part declined to consider the merits of mother's motion because it lacked jurisdiction while the appeal was pending. Mother then filed motions before us to stay the appeal and to grant a temporary remand.

We will now deny mother's pending motions because we conclude that the jurisdictional issue before us is not moot.1 "[O]ur courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993). Here, the jurisdictional controversy continues to exist. When mother entered into the custody agreement in Texas, the Texas court was informed that she contested in New Jersey the ceding of jurisdiction to Texas. The Texas court undertook to make a jurisdictional ruling pertaining to the convenience of that forum even after mother indicated her agreement to the terms of the new custody arrangement. The record establishes that mother did not intend to abandon her New Jersey appeal by agreeing to the terms of a custody arrangement in Texas.

Although mother did not appeal the Texas court's ruling in that state, and we do not suggest we have authority to review the decisions of the Texas court, we presume that a decision favorable to mother on the merits of her appeal would be given respectful consideration in Texas if procedures are available for her to raise the custody issue again. The jurisdictional controversy before us has not been finally resolved, and we may consider mother's appeal on its merits. There is no need to supplement the record to decide the mootness argument.

III.

As to the merits of mother's appeal, we conclude that the UCCJEA placed jurisdiction of the custody dispute in the Texas court, including the determination of whether Texas should relinquish jurisdiction to New Jersey on grounds of inconvenience of the forum or otherwise.

The UCCJEA clearly establishes Texas as the state that made the initial child custody determination in this case. The February 21, 2006 Texas divorce decree and the September 4, 2009 Texas consent order preceded any custody application or order in New Jersey. At the time of the divorce, Texas was the child's home state. Tex. Fam. Code Ann. 152.102; N.J.S.A. 2A:34-54 (definition of "home state"). Texas had jurisdiction to enter the initial custody order in accordance with Tex. Fam. Code Ann. 152.201. See N.J.S.A. 2A:34-65.

The September 4, 2009 consent order correctly stated that the Texas court had "continuing exclusive jurisdiction" of the custody case. Under the UCCJEA, another state, such as New Jersey, could take jurisdiction of a custody matter pertaining to this child only if neither the child nor either parent continued to live in Texas. N.J.S.A. 2A:34-66(a)(2); see Tex. Fam. Code Ann. 152.202(a)(2). Here, father lived in Texas in September 2009. Only Texas itself could relinquish custody on another ground, such as if the child and mother no longer had a "significant connection" to Texas and "substantial evidence" about the child was no longer available in Texas. N.J.S.A. 2A:34-66(a)(1); see Tex. Fam. Code Ann. 152.202(a)(1).2 New Jersey could not exercise jurisdiction as a state with a more "significant connection" with the case under subsection (1) of the statute unless Texas declined to exercise jurisdiction. See Dalessio v. Gallagher, 414 N.J. Super. 18, 23 (App. Div. 2010).

We considered application of subsection (1) in Griffith v. Tressel, 394 N.J. Super. 128, 142-48 (App. Div. 2007). In that case, the jurisdictional facts were reversed. New Jersey had made the initial custody determination at the time of the parties' divorce. The child and mother had subsequently moved to Maryland, but the father remained a resident of New Jersey. Id. at 133. We said that New Jersey had acquired "exclusive, continuing jurisdiction" and the resultant inquiry was "whether, during the time between the initial order and the filing of the motion for modification, circumstances have changed so as to divest this state of that jurisdiction." Id. at 140. For New Jersey to cede jurisdiction to Maryland, the mother would have had to show both that a "significant connection" of the child with New Jersey no longer existed and that "substantial evidence" concerning the child's welfare and care was no longer available in New Jersey. Id. at 145. We recognized in Griffith that only the state that has exclusive, continuing jurisdiction, New Jersey in that case, can determine that it has lost jurisdiction under subsection (1). Id. at 141 and n.5.

In this case, the Texas court would have to make findings similar to those discussed in Griffith to determine that under Tex. Fam. Code Ann. 152.202(a)(1) it no longer had jurisdiction over the custody dispute. The record did not support such findings. The child and her father continued to have a significant connection to Texas, and substantial evidence relevant to the custody dispute was available in Texas.

Mother argues that the September 4, 2009 consent order granted her the right to determine which state would have jurisdiction of future custody proceedings because it gave her the right to determine whether the child would live in Texas or New Jersey and it identified New Jersey as the child's home state. The residence or home state of the child, however, does not by itself supersede the provisions of the UCCJEA establishing exclusive, continuing jurisdiction. Nothing in the September 4, 2009 consent order refers to jurisdiction being relinquished to New Jersey at mother's option.

Mother also contends incorrectly that New Jersey had jurisdiction under N.J.S.A. 2A:34-67 to modify the custody arrangement if it determined that New Jersey was a more convenient forum than Texas to hear the custody dispute. She argues that the DYFS removal proceedings occurred in New Jersey, and witnesses and documents relevant to the removal could not be conveniently produced in Texas. However, New Jersey did not have jurisdiction to modify the Texas custody order on the ground that New Jersey might have been a more convenient forum. The New Jersey court could only exercise jurisdiction to modify the Texas order if it determined under N.J.S.A. 2A:34-67(b) that the child and neither parent lived in Texas, or as a temporary emergency measure under N.J.S.A. 2A:34-68 to protect the child. If jurisdiction was to be relinquished to New Jersey under N.J.S.A. 2A:34-67(a) because Texas was an inconvenient forum, the Texas court would have to make that decision.

Mother argues she agreed during court proceedings on May 4, 2010, that father would take the child to Texas only because the Family Part judge announced that New Jersey would retain jurisdiction over any custody dispute "no matter how long it takes." She argues that father agreed to the jurisdictional condition imposed by the New Jersey court.

We do not read father's statements at the May 4, 2010 hearing as an agreement to allow New Jersey to exercise jurisdiction if the UCCJEA requires otherwise. Rather, father indicated his understanding of the New Jersey judge's comments, which were either limited to jurisdiction over the DYFS proceedings or were mistaken. For the reasons we have stated, New Jersey courts did not acquire jurisdiction of the custody dispute in May 2010 except as a temporary emergency measure under N.J.S.A. 2A:34-68. The judge could not make a broader jurisdictional determination.

Even if father had agreed to allow New Jersey to determine any custody dispute, he would not be bound by that agreement. See Griffith, supra, 394 N.J. Super. at 137 (citing Neger v. Neger, 93 N.J. 15, 35 (1983); Peregoy v. Peregoy, 358 N.J. Super. 179, 184 (App. Div. 2003)); cf. N.J.S.A. 2A:34-71(b)(5) ("any agreement of the parties as to which state should assume jurisdiction" is one factor a court must consider).

Mother argues next that the New Jersey and Texas judges erred in failing to discuss during their November 19, 2010 telephone conference the inconvenience of the Texas forum. She also argues that the New Jersey court erred by failing to give her an opportunity to present facts and legal arguments relevant to the jurisdictional issue, as required by N.J.S.A. 2A:34-62. Neither that statute nor any other provision of the UCCJEA specifically requires that the conferring judges discuss the relative convenience of the two forums. While such a discussion may certainly occur, its omission is not fatal to the jurisdictional decision. Also, the New Jersey court informed the parties that any disagreement with its jurisdictional ruling could be raised through a motion for reconsideration or modification of its December 6, 2010 order, but mother did not file such a motion.

Regardless of any alleged procedural deficiency in the conference between the two judges, mother fails to demonstrate why New Jersey was in fact a more convenient forum than Texas. Although evidence of the DYFS removal case and the domestic violence incidents was located in New Jersey, the child was in Texas and had a history of living in Texas as well as New Jersey. By January 27, 2011, when the New Jersey court finally ceded jurisdiction to Texas, the child had lived about forty-three months of her life in New Jersey and about thirty-three months in Texas. The child's residence, schooling, counseling, and current health records were in Texas at that time, as well as relatives on both sides of the family. The Texas court had been more deeply involved in determining custody and parenting issues than the New Jersey court. Father and mother would have comparable financial difficulty in funding litigation in a distant state.

On the other hand, mother could present the DYFS and police evidence in Texas without requiring New Jersey witnesses to travel out of state. See Tex. Fam. Code Ann. 152.111, 152.112; N.J.S.A. 2A:34-63, -64. Mother was not precluded from presenting evidence in the Texas court pertaining to the abuse or neglect case in New Jersey through methods other than subpoenaing witnesses and incurring the heavy costs of litigation and travel. Considering the findings of the Texas court on June 6, 2011, addressing inconvenience of the forum, see Tex. Fam. Code Ann. 152.207; N.J.S.A. 2A:34-71, an informal discussion between the judges over the telephone would not have made a difference in either court's rulings.

In sum, we conclude the Family Part in New Jersey decided correctly that the UCCJEA required that New Jersey cede jurisdiction of the custody dispute to Texas.

A

1 At oral argument before us, counsel for mother agreed that her motion to supplement the record, and consequently her motions for a stay and a remand, are only intended to address the mootness contention of respondents.

2 N.J.S.A. 2A:34-66(a) provides that:

[A] court of this State that has made a child custody determination consistent with [the UCCJEA] has exclusive, continuing jurisdiction over the determination until:

(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or

(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.

[(Emphasis added); see Tex. Fam. Code Ann. 152.202(a).]