NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. B.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

B.M.,

Defendant-Appellant,

and

J.G.,

Defendant-Respondent.

___________________________

IN THE MATTER OF I.G.,

A Minor.

___________________________

January 14, 2014

 

 

Before Judges Reisner, Alvarez and Carroll.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-0185-07.

 

Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the brief).

 

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).

 

Robert H. McGuigan, Designated Counsel, argued the cause for respondent J.G. (Joseph E. Krakora, Public Defender, attorney; Mr. McGuigan, on the brief).

 

Melissa R. Vance, Deputy Public Defender, argued the cause for minor I.G. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Jeffrey R. Jablonski, Designated Counsel, on the brief).

PER CURIAM

Defendant B.M. appeals from a September 27, 2011 order finding that she abused and neglected her child, I.G., placing the child in the legal and physical custody of his father, J.G., and providing defendant with a supervised visitation schedule.2

The proceedings in this case lasted from 2007 to 2012, and the hearing record comprises forty-seven volumes of transcript, including the trial judge's ninety-page oral opinion.3 However, the issues are relatively narrow. On this appeal, defendant argues that the trial judge erred in combining the fact-finding and dispositional hearings, and she contends that the judge employed the wrong legal standard in making the finding of abuse and neglect. She argues that the trial judge erred in crediting the State's experts instead of the defense experts, and contends that the judge should not have permitted defendant's neighbors to testify as to certain alleged instances of neglect. Defendant presents these arguments in the following points:

POINT I

 

THE DECISION BELOW SHOULD BE REVERSED BECAUSE THE COMBINED FACT-FINDING/DISPOSITIONAL HEARING DENIED B.M. DUE PROCESS.

 

A. B.M. Was Entitled, Under Title 9, to have a Fact-Finding Hearing, Followed by a Dispositional Hearing.

 

B. B.M. Was Entitled to a Summary Hearing and Periodic Six-Month Reviews Under Title 30 to Confirm that the Division's Services Were Still Necessary.

C. The Court did not Follow the Appropriate Legal Standard in Determining that B.M. Abused and Neglected I.G.

POINT II

 

THE TRIAL COURT'S CUSTODY DETERMINATION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY CREDITED THE NET OPINION OF THE DIVISION'S EXPERT, DR. ALEXANDER IOFIN; IGNORED INCONSISTENCIES IN THE OPINION OF DR. SIGAFOOS AS TO J.G.'S COMPETENCY AS A PARENT; ERRONEOUSLY QUALIFIED I.G'S TREATING THERAPIST AS AN EXPERT FOR THE PURPOSE OF DETERMINING CUSTODY AND PARENTING TIME; AND ERRED IN DISCREDITING THE TESTIMONY OF B.M.'S EXPERT, DR. ALBERT GREENWOOD.

 

A. The Trial Court Erred in Crediting the Net Opinion of the Division's Expert, Dr. Iofin.

 

B. The Trial Court Erred in Qualifying Thomas Hansen as an Expert Witness Concerning Custody and Parenting Time.

 

C. The Court Overlooked Important Evidence Suggesting that J.G. Should Not be Awarded Custody of I.G.

 

D. The Court Erred in Discrediting the Testimony of Dr. Albert Greenwood.

POINT III

 

THE TRIAL COURT ERRED IN PERMITTING THE TESTIMONY OF B.M'S NEIGHBORS AS TO UNFOUNDED REFERRALS.

 

Having reviewed the record, we find no merit in any of those arguments, and we affirm.

I

Although the issues on appeal are relatively limited, we discuss the procedural history and the testimony at some length, because they illuminate the evolution of the case, the trial judge's findings, and our own conclusions.

On January 23, 2007, the Division filed a Title 9 and Title 30 complaint alleging, among other things, that defendant was suffering from mental illness, was behaving irrationally, and was repeatedly locking her son out of the house. On July 18, 2007, the court was prepared to hold a fact-finding hearing on the Title 9 allegations. However, the parties reached an agreement to dismiss the Title 9 complaint and keep the case open as a Title 30 case for provision of services. The agreement was conditioned on defendant's undergoing a psychiatric evaluation, and was without prejudice to the Division's right to reinstitute the Title 9 complaint if defendant did not cooperate with the evaluation. The child continued to live with defendant, although the father expressed his willingness to care for the child if defendant was unable to do so.4

On October 6, 2007, the Division conducted an emergency removal and placed the child with the father, after the father asserted that when he arrived for visitation on October 5, defendant told him that she had no idea where the child was. The police were called and found the six-year-old child wandering around the apartment complex where he and defendant lived. On October 10, 2007, the Division filed an amended Title 9 and Title 30 complaint that included those allegations.

At an October 24, 2007 hearing, the judge granted the father's request, which the Division supported, to transfer legal custody of the child to the father. That request was based on the October 5 incident, concerns about defendant's mental illness, her refusal to sign releases for her psychiatric records, and the father's desire to be able to make decisions about the child's welfare without constantly having to obtain the Division's advance approval.5 The Division also alleged that defendant was engaging in irrational behavior, such as calling the police to complain that her six-year-old son was misbehaving. Without objection from defendant, whose attorney assured the court that defendant would comply with psychological evaluation, the case was continued for purposes of providing services and supervision. The court also scheduled a best interests hearing for June 2008 on the custody issue.

The case was subsequently transferred to a second judge, who held a status hearing on May 5, 2008. At that hearing, the Division reported that defendant continued to refuse a psychological evaluation, despite her earlier promises to comply. Defense counsel argued that his client was trying to comply and would do so. The best interests hearing was adjourned to permit psychological evaluations. At a July 24, 2008 hearing, no testimony was taken; the parties agreed to therapeutic visitation between defendant and the child.

On August 19, 2008, the case was scheduled for a best interests hearing on the custody issue and a fact finding hearing on the Division's Title 9 complaint.6 At 4:00 p.m. on August 18, defendant filed a motion to dismiss the fact finding hearing and to reunify the child with defendant. Alternatively, while agreeing that the court was "on schedule" in holding the best interests hearing, see N.J.S.A. 30:4C-12, counsel asked for the hearing to be adjourned to give him more time to "properly prepare." The judge denied counsel's applications. Counsel did not object to holding both a best interests hearing and a fact finding hearing in the same proceeding.7

The hearing began with evidence about the Title 9 complaint. The Division presented testimony from Patrol Officer Kathleen Delanoy, who responded to two calls relating to defendant on October 5, 2007. First, defendant called the police to report that her son threw a baseball at her and hit her with it. Delanoy explained to her that calling the police was not an appropriate way to handle a problem of that type.

The second call was from the father, who reported that the child was missing. According to Delanoy, when she arrived, the child had been located. Defendant told Delanoy, in a "nonchalant" tone, that the child disappeared "a lot, and she [doesn't] know where he goes or what to do." This seemed odd to Delanoy, who was accustomed to finding parents in a panicked state when their young children went missing. She emphasized to defendant the importance of knowing where her six-year-old was at all times.

The father testified to the same incident, stating that when he arrived, defendant handed him the child's overnight bag at the front door. When he asked where the child was, she responded, "I don t know where [I.G.] is, he's gone. And [she] just shut the door." At that point, the father called the police. A few minutes later, the child emerged from a different building in the complex, and told his father that he had been "with my friend." The father also testified that defendant had a habit of calling the police to report that the child was misbehaving - for example, by refusing to get into his car seat - and this would upset the child.

Instead of immediately taking testimony from defendant concerning the Title 9 allegations, the court allowed the Division to begin presenting evidence relevant to defendant's mental health and parenting capability. There was no objection to proceeding in this fashion. Dr. Alexander Iofin, a psychiatrist, testified that he evaluated defendant and diagnosed her as having a delusional disorder, persecutory type. In other words, she suffered from delusions that authority figures and persons close to her, such as the child's father, were persecuting her. Dr. Iofin opined that, if she had the child in her custody, she was likely to communicate these beliefs to him, leading to the child developing a similar, delusional view of the world.

In reaching his diagnosis, Dr. Iofin considered the report of another psychiatrist, Dr. Karen Wells, who evaluated defendant in February 2007 and diagnosed her with paranoid personality disorder. Dr. Iofin agreed with that diagnosis but also believed defendant suffered from delusional disorder. Along with that disorder, he opined that she was also "egosyntonic", meaning that she did not recognize that she had a mental disorder and hence would tend to be very resistant to seeking or accepting treatment.

The Division also presented testimony from a psychologist, Dr. Chester Sigafoos, who evaluated the father on February 25, 2008, and concluded that he could effectively parent the child, had no need for any psychological therapy, and posed no risk to the child. Dr. Sigafoos also found no evidence of psychological traits that would make the father likely to engage in domestic violence.

The Division next presented testimony from Thomas Hansen, a licensed clinical social worker from the YMCA's Family Support Program. Hansen was providing "play therapy" to the child, to assist in the transition from living with his mother to living with his father and the father's wife. Over defense objections, the court allowed Hansen to testify as an expert in emotional child abuse, based on his training and years of experience in that field. Hansen testified on the issue of custody and visitation, opining that the child should remain with the father and should have limited, therapeutic supervised visits with defendant.

According to Hansen, during the therapy sessions, the child emphatically stated that he felt safer living with his father than with his mother. Hansen also expressed strong concerns about reports that the mother was trying to "sabotage" the child's placement with the father, by telephoning the child and urging him to "tell DYFS" that he wanted to live with her.

Hansen's testimony was briefly interrupted so that the father could authenticate a tape-recorded message that defendant left for the child on the father's answering machine on January 28, 2008. On the tape, a transcript of which is in the trial record, the mother made denigrating remarks about the father, who is black, and about his country of origin, Haiti. Hansen opined that those remarks, as well as other incidents in which defendant, who is white, allegedly made racist remarks about the father in front of the child, constituted a form of emotional child abuse. He also testified that frightening the child by calling the police when he misbehaved was a form of child abuse.

Division case worker Xavier Abreu confirmed that the agency's concerns over defendant's mental health dated back to 2006. Abreu testified to an incident in which the child told him that defendant locked him out of the house and said she was going to "kill" him. Defendant denied that allegation and told Abreu the child said he would "kill" her. After investigating, Abreu concluded that child abuse could not be substantiated, but he believed that defendant had some mental health issues and that the parents had a tempestuous relationship marked by frequent arguments. Abreu was aware that the father had initiated a "non-dissolution" custody action, which resulted in a December 18, 2006 order that the parents attend counseling. He recommended that defendant also undergo a psychological evaluation.

Another Division case worker, Crystal Glenn, testified to an incident that occurred when she took the child to a visit with defendant on July 13, 2008. During the visit, she heard defendant telling the child that his father "didn't want him" and "didn't want him to be born." She also heard defendant tell the child that his father "was a pedophile" who "didn't love him." Glenn told defendant to stop making those comments. Defendant responded that Glenn could not "tell her what to do and that she never lies to her son." Glenn testified that, later in the visit, in the child's presence, defendant began screaming at other children who were having visits in the same facility.8

Division case worker Jacqueline Jones was assigned to the family in November 2007. She testified that it was difficult to arrange visits between defendant and the child, because every agency the Division contracted with claimed that defendant was disruptive, and declined to continue supervising the visits. Jones also testified that part of her job was to have monthly visits with defendant, but defendant failed or refused to meet with her on numerous occasions. By contrast, she conducted regular visits with the father and son, and observed that the child appeared to have a close and loving relationship with the father and his wife. The child told Jones that he "loves" living with his father.

On August 5, 2009, the father testified that he and defendant began dating when they were about fifteen years old, and had a child when they were about twenty years old. They separated a few months after the child was born, and then lived together at defendant's parents' house for a few more months before again living separately.

The father testified that he and defendant argued frequently, but he denied ever hitting her. However, on one occasion he had admitted to scratching defendant's neck during an argument; a final restraining order (FRO) was entered on that basis, although defendant later agreed to dismissal of the FRO. He testified that, thereafter, defendant repeatedly filed, and then withdrew, false accusations of domestic violence against him.

The father testified that, on occasion, defendant would call him the "N word" and other insulting terms in front of the child, and would frighten the child by calling the police when the child misbehaved. He reconfirmed his earlier description of the incident in which he arrived to pick up the child, and defendant said she had no idea where he was. The father also testified that since coming to live at his house, the child had a good relationship with his wife, was doing well in school, and engaged in normal childhood activities such as soccer.

At the conclusion of the August 5, 2009 hearing, the Law Guardian brought to the judge's attention the fact that defendant was broadcasting information about the ongoing DYFS case on the internet. The judge ordered that defendant cease that activity.

On August 6, 2009, the court heard testimony on the issue of whether defendant could begin unsupervised visitation with the child. The defense presented testimony from Dr. David Lipton, a psychologist whom defendant retained privately to supervise her visits with the child. While giving testimony that was in some respects sympathetic to defendant, Dr. Lipton repeatedly stated that he could not "rule out" the possibility that defendant suffered from a delusional disorder.

Later in his testimony, over the State's objection that Lipton had not provided an expert report, the judge let him testify as to his diagnosis of defendant, based on his many observations of her at the supervised visits. Lipton opined that she might have paranoid personality disorder or post-traumatic stress disorder, but he was most comfortable with a diagnosis of personality disorder not otherwise specified (NOS). He explained that personality disorders are "very difficult to treat because one characteristic of them is, that the individuals that have it, they don't think anything is wrong with them, they think it's the world."

Addressing his observations of the child, Lipton testified that he was difficult to manage: "[the child is] one of those children where you have to be on your game, as far as behavior management all the time." He recounted one incident in which the child began punching and kicking defendant during a visit. The mother was not able to calm the child, and the doctor had to physically restrain him. Dr. Lipton testified that when the father came to pick the child up, he told him about the incident. The father brought the child in "to apologize later and that was the end of it." According to Lipton the child's behavior improved since then.

Dr. Lipton opined that it might be possible to allow defendant to have some unsupervised visits with the child. However, he acknowledged that defendant's history of parental alienation might pose a problem, and to that extent, unsupervised visits could represent "a high risk situation" for the child. Asked directly, Lipton did not recommend that the child be returned to defendant's custody; he opined it would be counterproductive to the child's interests.

The Law Guardian presented testimony from several of defendant's neighbors, concerning incidents in which defendant neglected the child by leaving him alone in a car while she did her laundry, and letting him play by himself outside unsupervised. On one occasion, a neighbor saw the child playing under a car and eating dirt. Another neighbor testified that in June 2007, the child appeared at her door and asked her to take care of him because his mother was hurt. When the neighbor approached defendant, she said she had cut her foot and the child tried to "kill" her by leaving broken glass on the floor. The neighbor cared for the child for several days until the Division placed the child with his father.

On October 28, 2009, in the middle of this lengthy hearing, defendant insisted on releasing her court appointed attorney and representing herself. Acting pro se, she attempted to present testimony from Barry Goldstein, an attorney who was knowledgeable about domestic violence. On voir dire, Goldstein admitted that his license to practice law in New York was suspended. He also had no degree in either psychology or social work. The judge declined to let him testify as an expert.

Thereafter the hearing was delayed for months, until defendant agreed to accept legal representation. The hearing resumed on June 23, 2010, with several days of testimony about a recent incident in which the child went to defendant's house without his father's knowledge or permission. Defendant did not call the father to tell him the child was with her, and the father called the police. As a result of this incident, the Division filed an amended complaint on October 25, 2010, and defendant's unsupervised visits with the child were temporarily suspended.9

The hearing did not resume on the substance of the Title 9 and Title 30 issues until January 31, 2011, when defendant testified. According to defendant, the father was physically abusive to her after the child was born in 2001; she obtained a restraining order but later dismissed it at his request in return for his agreement to provide child support. She contended that when the child was five years old, he had behavior problems, which seemed to become worse after he had visits with his father. She testified that when she called the police about the child's behavior, she was not intending to complain about the child himself but about the father's "effects on" the child, and his failure to show up for scheduled visits on time.

Defendant testified that, during the June 2007 incident when she cut her foot on broken glass, she made arrangements for someone to care for the child before she went to the hospital. She testified that she was unable to care for the child for several days, because hospital personnel inexplicably forced her to remain in the hospital against her will. After her release from the hospital, she saw no need to obtain a psychiatric evaluation, because, as she testified, "I have no psychiatric issues." However, pursuant to a court order, she began seeing Dr. Markowitz.10

Defendant's version of the October 5, 2007 incident was as follows. The father was late arriving to pick up the child, and she and the child waited for him outside the house. According to defendant, she called the police to report that the father was late for visitation. She then went inside briefly to get the child's overnight bag, and at that moment the father arrived. In her testimony, defendant denied that the child was missing and she denied telling the father, or the police, that she did not know where he was. She testified that she did not understand why the father called the police, and she was shocked when the Division arrived the next day and told her that the child would be removed from her custody. Contrary to the neighbors' testimony, she also denied ever neglecting the child or letting him play outside unsupervised.

Defendant admitted making the phone call in which she made abusive and derogatory comments about the father, and she admitted she directed the recorded message to her son. However, she testified that she intended that the father hear the message and she did not expect that he would let the son listen to it. She testified that she was angry because the father would abruptly interrupt her phone calls with the son if he felt she was saying anything inappropriate.

Defendant's explanation of the incident in which the child ran away from his father's house was as follows. The child appeared at her house, carrying his hamster, after walking about two miles from the father's home. He was upset with his father for disciplining him. She was concerned that if she immediately called the father or the police, she would be blamed for the son leaving home, and she did not want the son to think she was betraying his trust by coming to see her. Therefore, she called her attorney for advice but was unable to reach him. She then went out and bought her son swimming trunks and swim toys and took him swimming at her apartment complex pool. According to defendant, the police appeared hours later and unfairly blamed her for not telling anyone where the son was.

After defendant testified about the fact finding issues, her attorney asked the judge for permission to present her testimony on the dispositional or best interests aspect of the hearing. The judge agreed. Defendant testified that she had stable housing, a good job, and would allow the child to have an ongoing relationship with his father if custody were returned to her.

Over defendant's objection that the witness had insufficient experience to testify as an expert, the court allowed the Division to present testimony from the child's therapist, Joseph Smolinski, a licensed clinical social worker. Like Hansen, Smolinski testified about whether unsupervised visitation with defendant was in the child's best interests. According to Smolinski, the child loved both of his parents, but would become distressed when defendant would call the police and try to involve the child in her disputes with the father.

Smolinski suggested that defendant undergo a psychological evaluation before he could make a recommendation as to whether she should have unsupervised visits with the child. He also recommended an incremental approach, under which defendant's visitation would be increased if she displayed appropriate behavior with the child and decreased if she displayed inappropriate conduct that was harmful to the child. Despite Smolinski's reservations, at the end of the February 17, 2011 hearing, the judge granted defendant limited overnight visitation with the child on alternate weekends.

On April 8, 2011, defendant presented expert testimony from Dr. Albert Greenwood, who had been her treating psychiatrist since September 2009.11 Dr. Greenwood was also presented as a forensic expert, for his analysis of defendant's prior medical records. He initially diagnosed defendant as having mild to moderate anxiety syndrome, which could be treated with medication. He saw no sign of psychosis. Greenwood offered a lengthy critique of defendant's psychiatric hospitalization in June 2007. He opined that the hospital's record keeping was sloppy and that defendant may have been over-medicated, possibly causing symptoms of apparent mental illness that were in fact produced by the medication. He therefore questioned the hospital diagnosis of psychotic disorder.

Dr. Greenwood criticized Dr. Iofin's report, as being inconsistent with defendant's June 2007 hospital records. He disagreed with Dr. Iofin's diagnosis of delusional disorder, which is a psychosis; Greenwood believed that defendant suffered from anxiety disorder, which is not a psychosis. He also disagreed with the diagnoses of Dr. Markowitz, a prior treating psychiatrist, who found that defendant had paranoia, and Dr. Wells, who found she had paranoid personality disorder. According to Dr. Greenwood, defendant had responded well to some medication he had prescribed to treat anxiety and depression. He opined that she posed no threat of harm to her son and could safely care for him. On cross-examination, he admitted that defendant never told him the reasons why she lost custody of her son, and he either was not provided or had not read the Division's many reports of incidents involving defendant.

On May 12, 2011, the judge suspended defendant's unsupervised visitation and reinstituted supervised visitation, after the child told his father, and his Law Guardian, that during a visit on April 30, 2011, his mother threw a shoe at him and told him that she was moving to Virginia and he would never see his father again. On the record on May 12, defendant's attorney acknowledged that defendant was moving to Virginia. On August 3, 2011, defendant testified that, during the April 30 visit, she told the child she was moving, but did not say that he was coming with her or that he would never see his father again. She also denied throwing a shoe at the child. She testified that the child made up that story because she would not let him stay up late playing on his computer.

Defendant also testified that her supervised visits at the Division office had been suspended in the past month, after she had several confrontations with the security guards, all of whom she believed were acting unreasonably. After hearing her direct and cross-examination, the judge found that unsupervised visits were not in the child's interest and "it is detrimental to carry on supervised visitation when she cannot behave herself during the course of those visits." He ordered that defendant, who was still living in Virginia, continue to have regular telephone contact with the child. After defendant returned to New Jersey, the court continued to require that visitation be supervised.

On September 27, 2011, the Family Part judge issued a lengthy oral opinion addressing all issues in the case. He began by reviewing the extensive documentation of defendant's bizarre behavior, including the many episodes in which she called the police to report alleged misbehavior by her very young son, her disruptive behavior with Division staff, her refusal to cooperate with treatment providers or the Division, and her refusal to provide access to her prior psychiatric history.

The judge also considered evidence that defendant repeatedly made demeaning remarks about the father in the son's presence, including stating that the father was a sex offender and that he did not love the son. The judge reasoned that her conduct was harmful to the child:

[T]his would have to be, after so many times, a terrible weight on this child to be there, present and at each one of these [episodes]. How many times [can] he hear these things from this mother and not feel affected by it? It's been reported many times and been observed by this court that one of the worst things a mother or a father could do to their child's wellbeing . . . is to say anything negative about the other parent. [Defendant] has done this consistently and in the most damaging way.

 

With respect to the June 10, 2010 incident, where the child went to defendant's house without permission, the judge found defendant's explanation not credible. He stated, "it was clear to the court at the time that the mother . . . was knowingly and [intentionally] trying to interfere with the custody orders of the [c]ourt." The judge also found that, shortly before he was scheduled to interview the child in camera, defendant bought the child a journal, and encouraged him to write in it false accusations about the father and bring the journal to the interview. The judge also considered Smolinski's opinion that defendant's behavior was traumatic to the child. He further considered defendant's repeated inappropriate conduct in posting confidential information about the case, including information about the son, on the internet.

The judge credited the testimony of Dr. Iofin concerning defendant's severe mental illness. On the other hand, the judge found Dr. Greenwood's testimony incredible. In particular, the judge was unimpressed with Dr. Greenwood's attempt to explain away defendant's June 2007 psychiatric hospitalization as a product of the hospital's incompetence. After noting that the Division had produced the hospital's staff to corroborate the accuracy of the hospital's records, the judge observed that:

[W]hat Dr. Greenwood was doing . . . was feeding into the paranoia and the delusions of the mother and this is the man who is supposedly treating her. I have rarely seen a doctor who is supposedly caring for a client so absorbed himself into the very delusions that the client is espousing.

The judge concluded that defendant had abused and neglected the child over the years by failing to supervise him, making accusations about him to the police in highly inappropriate ways, making "foul and abusive statements" about the father in the child's presence, and isolating the child from friends and neighbors. He found that "[a]ll who dealt with [defendant] became her enemy." He further found that due to her psychiatric delusions, and her bizarre inability to get along with others, it would be harmful to the child to live with defendant.

Addressing the dispositional issue, i.e., the issue of child custody, the judge found: "there is no doubt in my mind that [defendant] is unfit to raise this child and it is unsafe for the child to be with her without supervision there. Indeed, even with supervision there[,]. . . it's likely she will continue to create trauma in the mind of [the child.]" He found that the Division had made every reasonable effort to provide defendant with services, but she had largely failed to cooperate with those services. Acknowledging that the father had filed a custody application "under an FM docket, FD docket" the judge considered whether, under N.J.S.A. 9:2-4 and Baures v. Lewis, 167 N.J. 91 (2001), "custody should be awarded to the one parent or the other." After reviewing the fourteen statutory factors, the judge concluded that "custody should be awarded to the father" and that the mother's visitation with the child should be supervised.

II

On this appeal, we will defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). Special deference is accorded to the Family Part's expertise. Id. at 343; Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super.81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)), certif. denied, 190 N.J.257 (2007).

Having reviewed the extensive record with those legal principles in mind, we find no basis to disturb the Family Part judge's well-reasoned ninety-page decision in this case. His factual findings are amply supported by the record. We will not second-guess his credibility determinations as to the lay and expert witnesses who testified at the trial. We are as convinced as was the trial judge that defendant is both mentally ill and unwilling to acknowledge her condition.

In considering the Title 9 complaint, we are equally convinced that defendant was grossly negligent in failing to supervise the child, and that the October 5, 2007 incident was not an anomalous event but was typical of her parenting style at the time. SeeN.J.S.A. 9:6-8.21(c)(4); N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). It is also clear that she traumatized the child by repeatedly making appalling comments about the father in the son's presence, including racial slurs and accusations that he was a "pedophile" who did not love his child. The record supports a finding that defendant has no appreciation of the harmful impact that her bizarre conduct has on her son. There is no doubt that the Division proved its Title 9 and Title 30 allegations, and that child custody belongs with the father.

Defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E). However, we add the following comments.

Defendant argues that the trial court erred in combining the Title 9 hearing with the dispositional hearing. That argument is barred by the doctrine of invited error, because defense counsel agreed to that procedure and, in fact, asked the court to take testimony from his client on both issues. See N.J. Div. of Youth & Family Servs. v. M.C., III, supra, 201 N.J. at 340-41. However, even if we consider the argument, it is without merit.

In its recent decision in I.S., supra, the Supreme Court addressed the interplay between Title 9 actions and Title 30 actions. Pertinently, the Court confirmed that even if the Division cannot prove abuse or neglect under Title 9, the Family Part still has jurisdiction under Title 30, to address the parent's need for services and the child's need for protection. Id. at 33. Further, the Court confirmed that where a Title 30 action implicates issues of custody between a child's parents, the Family Part must address those issues, using the best interests standard:

When the court conducted a custody hearing in respect of S.S., it transferred custody of S.S. to her father. The custody order was entered under the FM docket, as the child-protective litigation was dismissed at the same time. In making its determination, the family court analyzed the N.J.S.A. 9:2-4 best-interests factors.

 

In G.M., supra, we recognized that a noncustodial parent who obtains full-time care of a child after the initiation of child-protection proceedings "may always initiate a request for a change in custody," which involves a changed circumstances inquiry and, ultimately, becomes a best-interests analysis. Here, that process was not followed precisely, but E.S. did make an application for custody of S.S. during the pendency of the child-protection litigation, which was denied at the time because the trial court did not believe it had the information necessary to perform the appropriate analysis for S.S., who was only beginning her therapeutic programs. That said, the application placed the custody question in the mix of questions that needed to be resolved in light of the children's health and safety issues. And the court in this matter used a best-interests analysis that employed the factors set forth in N.J.S.A. 9:2-4, which is commonly used in a variety of family matters before a court when making an initial custody determination or a change in custody is requested.

 

Although E.S. should have been required to show that S.S.'s placement with him was in her best interests after filing a changed circumstances application, in view of the timing of all family members' progress toward more healthy relationships, it would require blinders for this Court not to recognize that granting custody to E.S. was an appropriate disposition to end the Title 30 proceedings. In our view, the court's ultimate action was the only one that could have been judicially imposed. At the time of S.S.'s release, I.S. had not completed her required therapeutic regimen. Moreover, at the hearing, I.S. presented no expert evidence to establish that it would be safe to return S.S. to her mother's custody. Therefore, it would not have been consistent with the court's continued responsibility to act in the best interests of S.S.'s health and safety to return her to her mother's custody at that time. When custody issues become intertwined with child-protection actions, then dispositional questions that lie at the intersection of the two matters become complicated by a parent's delay in achieving circumstances that make it safe for the child to return to the former custodial parent.

 

In sum, E.S. was the only appropriate parent to award custody to at the dispositional conclusion of this fact-sensitive Title 30 proceeding. The court applied a best-interests test, and we have no difficulty deferring to the factual findings and conclusions the court reached on this record. S.S.'s best interests were served by the court's grant of custody over S.S. to E.S. when disposing of the Title 30 proceedings. Moreover, we do not find that I.S. was deprived of due process as a result of the proceedings that occurred.

 

[Id. at 40-41 (footnote omitted) (citations omitted).]

 

While the Court noted that it is ordinarily preferable to litigate separately the child protective action and an FM custody dispute, the Court found no reversible error in holding the custody hearing and the Title 30 hearing together, where the court gave the parties advance notice of that procedure:

[T]he family court informed the parties in this matter in advance of its intention to adjudicate the completion of the Title 30 proceedings, as well as the open custody dispute between the parents. In fact, the trial court heard testimony under oath from the Division's witnesses, experts, E.S., and I.S. The court then recessed in order to provide I.S. with an opportunity to obtain an expert and obtain evidence to substantiate why S.S. should be returned to her custody. I.S. did not do so. On this record, we find those procedures were sufficient to protect her constitutional right against "governmental procedures that tend to operate arbitrarily."

 

[Id. at 42 n.6 (citations omitted).]

 

At the September 14, 2009 hearing, the judge and defendant's counsel acknowledged precisely those principles. The judge stated that "this is really essentially a G.M. hearing, a best interest hearing at this point, right?" Defense counsel responded, "it's fact finding as well, Your Honor . . . [concerning] the facts that occurred that led to the removal." The judge responded that, even if the State failed to prove the Title 9 allegations, the court would still need to decide which parent should have custody of the child. Defense counsel responded: "[f]rom the moment the child was removed from the mother's residence until today, I agree that that's a determination of ultimately the child's best interest."

In other words, after deciding the merits of the Title 9 and Title 30 complaint, the court still needed to decide whether a permanent change in custody was in the child's best interests based on current circumstances. That is exactly what the judge did in this case, and on this record, his conclusions are unassailable.

Affirmed.

 

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 The case became ripe for appeal when the Family Part entered a final order terminating the litigation on October 27, 2011.

3 The hearing lasted as long as it did because the trial judge had very limited amounts of time to devote to the case on each scheduled hearing day, and the expert witnesses also had limited availability. Additionally, despite the judge's best efforts to move the hearing along, the attorneys spent extended amounts of time questioning the witnesses about matters that appear to us to have marginal relevance. Further, after fifteen months of hearings, defendant terminated the services of her attorney and proceeded pro se. This delayed the hearing for many months until she finally once again accepted legal representation.

4 At the time, the parents, who were never married to each other, had shared legal custody of the child, with defendant being the parent of primary residence and the father having the child on the weekends.

5 At this hearing, the judge stated that he would arrange for all pending disputes over the child's custody, in the FM docket or any other Family Part docket, to be transferred to him, so that he could resolve the entire controversy over the child's best interests in one proceeding.

6 By letter dated May 30, 2008, addressed to the judge with copies to all counsel, the Division's attorney had asked the judge to consolidate the fact finding hearing with the best interests hearing, noting that the Division had filed its complaint under both Title 9 and Title 30. There was no objection from defense counsel in response to that letter.

7 In this case, the parties apparently had various applications pending in different Family Part dockets, all of which were being heard by one judge. The judge and parties used the term "best interests" hearing, evidently meaning either the dispositional hearing required by Title 9, see N.J.S.A. 9:6-8.50, or the six-month hearing required by N.J.S.A. 30:4C-12. In any event, having temporarily changed legal and residential custody from one parent to another, the Family Part could not have terminated the litigation without first holding an evidentiary hearing to determine whether a permanent change in custody was in the child's best interests. See N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 40-42, 42 n.6 (2013); N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398-400 (2009).

8 At a December 18, 2008 case review hearing (four months after the trial began), the judge heard oral argument on defendant's motion for unsupervised visitation with the child. The court entered an order continuing supervised visitation pending the court's receipt of further psychological reports.

9 In 2009, the judge had permitted defendant to begin having unsupervised visits with the child on Sundays, on the understanding that the child would see his therapist on Mondays.

10 According to the testimony of Officer Marshall Brown, defendant called the police from the hospital to report that she was being held against her will. When Brown arrived, it appeared that defendant needed psychiatric treatment, and she eventually agreed to remain in the hospital for that purpose. A hospital employee also testified that defendant voluntarily admitted herself to the psychiatric section of the hospital, but signed herself out a few days later against the doctors' advice.

11 On cross-examination, Dr. Greenwood admitted that, apart from his first one-hour session with defendant, all of his other sessions with her lasted twenty minutes each.