NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.P.

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NOT FOR PUBLICATION WITHOUT THE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 CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.P.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF I.C., a minor.

_______________________________

February 27, 2014

 

 

Before Judges Sapp-Peterson and Lihotz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-165-12.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Shayka, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Kathryn Kolodziej, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for respondent minor I.C. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

We granted leave to appeal from the June 12, 2013 interlocutory order granting plaintiff the Division of Child Protection and Permanency (the Division) care and custody of defendant M.P.'s minor child, I.C. M.P. challenges the sufficiency of the judge's findings that she failed to comply with the prior court orders and attacks the constitutional propriety of removing her child without benefit of an evidentiary hearing. Following our review, we agree and reverse.

The Division began working with the family in 2006, following a referral alleging the educational neglect of M.P.'s older child K.P., who was then twelve. Later referrals addressed concerns regarding domestic violence, M.P.'s lack of housing, and questions of parental fitness respecting the care of both K.P. and I.C. This matter was initiated following a January 9, 2012 referral, wherein M.P. and the children's father, D.C., appeared at the Passaic County Courthouse, each seeking a temporary domestic violence restraining order. The parental disagreement centered on I.C.'s custody: earlier D.C. had been awarded legal custody of I.C.; however, M.P. refused to return the child to his care. It was reported that then five-year-old I.C. was present during her parents' altercation and she was suffering from scabies.

Accordingly, the Division initiated this complaint seeking care and supervision of I.C. The judge granted the application, I.C. was returned to D.C.'s physical custody, and the parents were ordered to comply with services.

As the matter progressed, the parents allegedly were uncooperative with services. Consequently, the Division amended its complaint and sought custody of I.C., and care and supervision of K.P., who remained with M.P. I.C. was removed on April 21, 2012, and placed in a resource home.

A four-day factfinding hearing was held.1 The Family Part judge concluded M.P. and D.C. had abused or neglected I.C. Relying on expert testimony, the judge found I.C. had suffered emotional abuse after repeated exposure to parental violence. The November 26, 2012 order required I.C. to remain in the Division's custody, mandated M.P. and D.C. attend individual therapy, and to complete a batterer's intervention program.

When M.P. demonstrated she completed all ordered services and could care for her child, the judge placed I.C. in her legal and physical custody with the consent of the Law Guardian, no objection from D.C., but over the objection of the Division. The April 4, 2013 order directed the Division to continue care and supervision of I.C., which included the right to make unannounced home visits. The parents were ordered to continue to comply with required services, identified as psychological evaluations, individual counseling, and batterer's intervention. Further, the order stated: "ECAP services to be placed in the home" and M.P. was to allow the Division monthly visits.2 D.C. was granted visitation, ordered to complete parenting skills training, and restrained from M.P.'s home and I.C.'s school.

During the next court review held on June 12, 2013, the Division sought I.C.'s removal, alleging M.P. was non-compliant with the terms of the prior order, which conditioned custody of I.C. on M.P.'s participation in services. The Division first noted the updated psychological assessments had not been completed because the new caseworker failed to schedule the appointments. Next, the Division asserted M.P. had refused to allow ECAP workers to enter her home to review the child's safety and also was disrespectful to Division caseworkers. Most important to the Division, in light of the history of the case, was M.P.'s removal of I.C. from kindergarten without transferring her to a new school. On this issue, M.P. had advised her caseworker she intended to pursue homeschooling, but the Division alleged there was no proof this was done. The transcript from this hearing reflects the judge reviewed documents submitted by the Division comprised of the caseworker's notes and ECAP reports, but these were not admitted into evidence.3

The Law Guardian supported removal and expressed her concerns for I.C. When the Law Guardian visited her client, no one answered the door at M.P.'s residence. Then M.P. came from the back and explained the front door "was sealed." The Law Guardian and her investigator were admitted through the rear door. M.P. offered a chair, but explained the legs were broken. The thermostat had been raised to 90 degrees, making it "unbelievably hot" despite the cool weather. M.P. stated I.C. was not in school because "she lent the Division [her] birth certificate[,]" which had not been returned, and, accordingly, she could not register the child. M.P. also told the Law Guardian she intended to homeschool the child, but when asked, M.P. stated the proposed curriculum was not yet in place. In the conversation, M.P. also suggested she was moving to California.

M.P. would not allow the Law Guardian to speak privately to I.C. Her investigator attempted to talk to I.C., who was "very guarded," but "happy."

M.P. was not asked to testify, but her attorney explained she distrusted the Division because of their "long rocky relationship." Counsel suggested a misunderstanding regarding ECAP access arose. M.P. did not understand she was to permit ECAP spot checks as the order designated in-home services. Nevertheless, ECAP conducted two one-hour visits and at other times visits did not occur because M.P. was not home when the ECAP workers arrived. Regarding I.C.'s schooling, M.P. admitted she removed the child for the last month of kindergarten after submitting an April 7, 2013 request to the Board of Education to provide homeschooling. M.P. noted her prior experience homeschooling K.P. Finally, counsel expressed he had spoken "at length" to M.P., who now understood ECAP's role and consented to future spot checks.

D.C. appeared representing himself. He refuted the Division's claims that he failed to cooperate, stating the Deputy Attorney General (DAG) had "consistently misrepresented [his] position." At one point he made an untoward reference regarding the Deputy Attorney General.4 The judge, in his own words, became "irate" and ordered D.C. to apologize, which he did. The judge stated he had missed the apology and ordered it repeated. D.C. stated: "Once again, I apologize for the [c]ourt's impression of what I said." It is clear from this remark and those that preceded and followed that D.C. was baiting the judge, who unfortunately reacted by losing his patience, thereby side-tracking the hearing.

When M.P. requested to address the judge, he responded: "No, no, no." He then allowed her to speak. She started to apologize for what she believed was a misunderstanding, stating she was "not trying to be defiant." M.P. explained she found a notice from ECAP in her mailbox directing her to call a phone number and ask for the named person. She checked with the Division caseworker, who advised her of ECAP's role. M.P. mentioned ECAP had not been given her correct telephone number and she assured the court a representative could contact her at any time.

We find it important to detail the judge's remarks, which followed:

THE COURT: Okay. All right. Have a seat. I've heard enough for today.

 

. . . .

 

But you know what? And this side of the room or this table here may think that, you know, that I'm not right. Okay? But this man is who he is. Okay? He's not going to change. You can therapy him from now until the cows come home, he's going to be who he is. Okay?

Now, here's what I'm thinking. The initial removal was from a domestic violence issue. And no matter how how bizarre you want to say their behavior is or how inappropriate it is or whatever, at some point, okay, I guess what we have to be concerned about is is he are they this couple going to engage in domestic violence in front of this child again.

 

The fact that [D.C.] may have made veiled threats to this [c]ourt or made outrageous remarks as he did this morning doesn't mean that he can't parent his child. She's not going back to either one of them today. But we're going to end this this case just has to end because, you know what? If it doesn't, if I don't stop this case in its tracks at some point and realize that, you know, we're really spinning our wheels here, because I think we are, I want the psychologicals done tomorrow.

 

[D.C.], listen to me carefully. I want you to take a parenting class, a new one. I want you to take an anger management course and I want you to take a domestic violence or I'd like the Division to set up a domestic violence what would you call it course, whatever. If he completes them, well, what am I going to do?

 

[DAG]: Judge, well, even if he completes them I think he would have to have a home with this child to be placed with him.

 

THE COURT: Well, that's the next thing, because the last time you were here you were living in a car. And don't for a second, [D.C.], think I will send your daughter back to you to live in an automobile. Okay?

 

Thereafter, the judge and D.C. engaged in a discussion about what type of home was necessary and which of the ordered items he should complete first. M.P.'s attorney attempted to make a request. The judge snapped,

THE COURT: I'm sorry. I gave you know what? Everybody, she got her chance.

 

[COUNSEL]: I know, [j]udge. But I just have to ask

 

THE COURT: Her behavior, unacceptable.

 

[COUNSEL]: Judge, for purposes of the record, what findings is Your Honor making that the child is at risk of harm

 

THE COURT: Because she didn't comply with ECAPs. That's [n]umber [o]ne. Okay? Number [t]wo, she wouldn't let them speak with the child alone. Number [t]hree, she wouldn't let them into her home when they did arrive. Okay. Number [f]our, she turned the heat up to 90 degrees so

 

[M.P.]: My heat is turned off in April. No.

 

THE COURT: [E]verybody would want to get out of there as quick as they could.

 

[M.P.]: Your Honor, I can bring proof that my heat is turned off in April.

 

THE COURT: Okay.

 

[M.P.]: My apartment complex turns my heat off in April. Sometimes we have to even boil water to keep warm when it gets cold. My heat is turned off in April automatically, Your Honor.

 

THE COURT: Okay.

 

[M.P.]: Does Your Honor have proof of these lies? I would like to know before you remove my child from me again and traumatize her. She was molested and raped in the Division's care. She has six cavities.[5]

THE COURT: Let's let's get something straight, [M.P.]. I didn't remove your child. I only

 

[M.P.]: But on a basis of their lies you're going to remove my daughter from me?

 

THE COURT: did what you I only did or I'm only doing what you have brought me to do.

 

[M.P.]: I've not done anything.

 

THE COURT: It's basically your decision and his decision, not mine.

 

[M.P.]: We're not together.

 

THE COURT: Okay.

 

At this point, the judge recited statements included in the caseworker's notes, which he found referenced inappropriate conduct. Specifically, he read the caseworker's comment depicting how he was asked to leave after thirty seconds, M.P. suggested she thought D.C. was recording her in her apartment, she made remarks about working as a stripper and "proceeded to act like a stripper." The judge then said, "[w]ell, that in and of itself is not enough for me to take your child." The judge further commented, "[M.P.] didn't comply with court orders." M.P.'s request to know where the child would be placed went unanswered.

On appeal, M.P. argues her due process right to be heard was infringed and she attacks the sufficiency of the evidence relied upon by the trial judge to remove I.C. from her care. She maintains there was no proof the child's life, safety or health were in danger. We find the court should have conducted an evidentiary hearing prior to removal.

In our review, we must determine whether there is satisfactory evidentiary support for the trial court's findings underpinning its legal conclusions. N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 477 (App. Div. 2012). We defer to a trial court's factual findings "unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations omitted). Further, if "the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). "In such instances, deference is appropriately accorded to factfinding; however, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review." L.J.D., supra, 428 N.J. Super. at 477 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In considering the issues presented on appeal, we underscore the right of a parent to raise his or her child is constitutionally protected. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010). See also In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. 1998) ("The Federal and State Constitutions protect the inviolability of the family unit." (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)), vacated on other grounds, 163 N.J. 158, 176 (2000)). This right, while constitutionally protected, is not absolute. Ibid. (citation omitted). The State "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)).

"The New Jersey Legislature recognizes the importance of strengthening and preserving the integrity of family life. However, in the exercise of its parens patriae responsibility, it acknowledges the paramount concern remains the health and safety of the child." L.J.D., supra, 428 N.J. Super. at 478 (citing N.J.S.A. 30:4C-1(a)). The Division "shall immediately take such action as shall be necessary to insure the safety of the child and to that end may request and shall receive appropriate assistance from local and State law enforcement officials." N.J.S.A. 9:6-8.11. Our courts have the ultimate responsibility to balance these competing interests to assure children are protected from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382-83.

The statutory framework of Title Nine allows the Division to seek temporary custody, care and supervision of a child to assure the child is protected and safe from harm inflicted by his or her parents. N.J.S.A. 9:6-8.29. "[U]pon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88 (2009). See also N.J.S.A. 9:6-8.32 (providing for hearing to determine if child may safely return to a parent's care). Once returned to a parent's care, any subsequent change in custody must again be subject to this same statutory standard; that is, the court must find that to place the child in the parent's custody and care "presents an imminent risk to the child's life, safety or health." N.J.S.A. 9:6-8.32.

The Division is charged with assuring children in its care are safe and secure. N.J.S.A. 9:6-8.8(a) (stating the purpose of child protection legislation is "to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected"). Parents adjudicated to have abused or neglected their children must allow the Division to perform its safeguarding function, and the court must react if a parent attempts to prevent the Division from performing this critical task. This intrusion into parental autonomy is constitutionally permitted. In performing its protective services role, the Division must "make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his [or her] home." N.J.S.A. 9:6-8.8(b)(2).

Here, the Division argued M.P. was noncompliant with specifically ordered services. This position was advanced solely on the arguments of counsel. Documentary support was not introduced into evidence and the caseworker's testimony was not provided. However, even if all the assertions were accepted as true, such evidence did not demonstrate I.C.'s health, safety or life were in jeopardy or that the Division engaged in reasonable efforts to prevent I.C.'s removal from her home.

Finally, once M.P. attempted to explain what she believed was a misunderstanding and offer documents refuting the Division's proffer, an evidentiary hearing was necessary to consider the competing factual assertions. N.J. Div. of Youth & Family Servs. v. S.S., 405 N.J. Super. 1, 6 (App. Div. 2008).

This court has provided guidance to trial judges assigned to consider similar controversies:

Where the custody of children is at stake, courts are required to balance the constitutional rights of parents to raise their children against the State's responsibility to protect the welfare of children. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). "[I]n order to relieve the tension created by these potentially disparate constitutional principles, the court's authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards." Ibid. In addition to constitutional considerations, we have also recognized that "[t]he judge's determination has a profound impact on the lives of families embroiled in this type of a crisis . . . . The judge's determination, therefore, must be based on competent reliable evidence." Id. at 264-65.

 

[S.S., supra, 405 N.J. Super. at 6.]

Our opinion in S.S. also articulated the evidential standards governing the court's review:

Because a custody determination significantly impacts the relationship between a parent and child, the court's decision "must be supported by evidence admitted during [a] hearing, which shall be held on the record. All documentary exhibits considered by the court must be clearly identified for appellate review. R. 1:2-3. Testimonial evidence must be presented through witnesses who are under oath, N.J.R.E. 603, and subject to cross-examination. N.J.R.E. 611."

[Ibid. (quoting J.Y., supra, 352 N.J. Super. at 265).]

 

We reject the Law Guardian's suggestion that this case differs from S.S. because M.P. did not voice an objection to the informality of the hearing. Similarly unpersuasive is the contention that no evidentiary hearing was held when "the child was initially returned to [M.P.] . . ."

After the court determined I.C. could be safely returned to M.P.'s care, a subsequent removal could occur only upon the Division's proof that I.C.'s life, safety or health were subject to "an imminent risk." N.J.S.A. 9:6-8.32. M.P.'s pleas signaling a desire to present evidence to refute the Division's claims sufficiently triggered the need for full evidential review. Moreover, the court must always insure a litigant's due process rights are respected. "We have consistently vacated trial court decisions that rely only on representations of counsel, rather than on competent evidence, and have remanded such matters with instructions to conduct proper evidentiary hearings." Id. at 7. (citations omitted). This matter is no different.

ECAP services were ordered to check the day-to-day transition of I.C.'s return to M.P.'s care. The judge made no findings on how many ECAP appointments were missed and whether M.P.'s unavailability resulted because she simply was not home. The judge ignored two ECAP reports of full visits and made no assessment of reported findings from these completed visits. The Law Guardian also entered M.P.'s home. Although the Law Guardian stated M.P. was not completely cordial, cooperative, or forthright, raising suspicion, she nevertheless described I.C. as "happy" but "guarded."

Further, no review of the school issue was made by the judge, other than to note the child had been withdrawn. During the permanency hearing M.P. told the court she had no problem with placing I.C. in the Hawthorne school system, but the April 4, 2013 order makes no mention of this requirement. When told the child was removed from kindergarten, the judge did not evaluate possible attendant circumstances, determine how many days of school were missed, whether the schooling was compulsory or optional, or whether M.P. had taken steps toward homeschooling. Finally, the judge did not relate these facts to the child's harm. See N.J.S.A. 18A:38-25 (permitting parents to engage in home education of their children).

We do not mean to suggest the court should overlook M.P.'s disregard of court orders, if such a specific finding based on evidence is made. Rather, we direct the court to address this conduct by considering alternative available procedures. The judge could have ordered I.C. brought to the Division's office or another venue to permit ECAP and the Law Guardian to meet with the child. Alternatively, the Division could have arranged for ECAP to see I.C. while she was staying with her grandmother, who cared for I.C. daily while M.P. attended an internship. A judge, performing the parens patriae role, must be sensitive to repeatedly uprooting a child, using removal as the last resort, not the first reaction. I.C. had already experienced extensive trauma in her young life. Disrupting her reunification with M.P. in the absence of demonstrated harm to the child was error.

We again remind the trial judge to avoid conclusory findings and of the necessity to state with specificity factual findings related to the defined legal standards that support any entered order. The mandate to trial judges set forth in Rule 1:7-4 provides "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury." (Emphasis added). Without such critical findings, a litigant and the reviewing court can only guess about the reasons for a decision in efforts to provide "meaningful review." Ronan v. Adely, 182 N.J. 103, 110-12 (2004).

Finally, we note the trial judge became side-tracked by D.C.'s behavior, which appears to have impacted the court's assessment of whether M.P.'s actions or omissions actually warranted I.C.'s removal. Certainly, D.C. was testing the limits of the judge's control. Unfortunately, the trial judge succumbed to this manipulation and lost his composure. In fact, "irate" with D.C., the judge attempted to end the hearing, announcing, "[s]he's not going back to either one of them today." Thereafter, he blurred his findings supporting removal and our review suggests D.C.'s antics impacted M.P.'s rights. Most important, I.C. appears to have been removed unnecessarily.

"Parental rights are individual in nature and due process requires that fitness be evaluated on an individual basis." M.M., supra, 189 N.J. at 288 (citations omitted). The parents were not living together. Consequently, the court must make an individual assessment of each parent's respective circumstances. Id. at 288-89.

The manner in which this hearing was conducted was improper and the judge's conclusory determinations unfounded. Accordingly, the June 12, 2013 order is vacated and the matter is remanded for an evidentiary hearing to permit all parties to present proofs and compel the court to make factual findings actually based on "material and relevant evidence." N.J.S.A. 9:6-8.46(c).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

1 The transcript of this hearing was not provided.

2 "ECAP," the Emergency Child Assistance Program, refers to a third-party agency that provides in-home services to parents at the request of the Division.

3 The Law Guardian's brief attaches a "Court Report" recording a history of the matter, which includes statements from ECAP workers. These reports reflect (1) the ECAP worker rang the wrong doorbell and was given the wrong phone number for M.P. by the Division during the week of April 1, 2013; (2) a comprehensive visit was conducted on April 14, 2013; (3) M.P. did not allow the ECAP worker in on April 16, 2013, stating it was a bad time and no one answered on April 21, 2013; (4) the ECAP worker was unable to contact M.P. the week of April 22, 2013; (5) a visit was conducted on May 9, 2013; (6) a visit was conducted on May 12, 2013; (7) no one answered on May 14, 2013 and M.P. denied access on May 19, 2013, stating it was a bad time; and (8) access was denied on May 23, 2013.

4 The exact remark was not initially captured on the transcript. However, when played back, D.C., who was commenting on his impression of the DAG's treatment of him, stated the DAG "reminds [him], sir, with all due respect to the [c]ourt, of a Hitler-like . . . ."

5 Later in the record, M.P. references a February 2010 order requiring the Division to have the child evaluated "to rule out child molestation." Counsel stated the order was entered because the child had vaginitis while residing in foster care. This order is not in the record.