DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.C.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1007-16T1


NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

       Plaintiff-Respondent,

v.

C.C.,

       Defendant-Appellant,

and

S.J.,

     Defendant-Respondent.
_______________________________________

IN THE MATTER OF G.M.C.-J.,

     a Minor.
_______________________________________

              Submitted September 25, 2017 – Decided June 11, 2018

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union
              County, Docket No. FN-20-0027-16.
          Joseph E. Krakora, Public Defender, attorney
          for appellant (Joseph F. Kunicki, Designated
          Counsel, on the brief).

          Christopher S. Porrino, Attorney General,
          attorney for respondent Division of Child
          Protection and Permanency (Andrea M.
          Silkowitz, Assistant Attorney General, of
          counsel; Julie B. Colonna, Deputy Attorney
          General, on the brief).

          Williams Law Group, LLC, attorneys for
          respondent S.J. (Allison Williams, of
          counsel and on the brief; Elizabeth A.
          Joyce, on the brief).

          Joseph E. Krakora, Public Defender, Law
          Guardian, attorney for minor (Danielle Ruiz,
          Designated Counsel, on the brief).

PER CURIAM

     Defendant C.C. (the mother) appeals from an October 20,

2016 order dismissing the within child protective services

matter, filed and litigated pursuant to 
N.J.S.A. 30:4C-12.     The

Family Part judge terminated the matter when the Division of

Child Protection and Permanency (the Division) ceased providing

services to the mother, and the judge determined defendant S.J.

(the father) was able to provide an adequate home for

defendants' daughter, G.M.C.-J. (Gwen).1   We reverse and vacate

the dismissal order, and remand for further proceedings.



1
    We use initials and pseudonyms to protect the identity of
those involved.

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                                I

    At the time of Gwen's birth in July 2015, the mother

advised the hospital staff she was addicted to and used heroin

during the pregnancy.   There was no evidence the baby was harmed

as a result, but the hospital staff notified the Division of her

use of heroin during the pregnancy.

    During its investigation that immediately followed, the

Division learned the mother lived with the baby's maternal

grandmother (the grandmother) and was prepared to care for Gwen

with the grandmother's assistance.    The mother was also

interested in substance abuse treatment and, while still in the

hospital, successfully completed an inpatient detoxification

program and entered into a methadone treatment program.

    The mother and the father signed a Division safety

protection plan, the terms of which included that the baby was

permitted to live with the mother in the grandmother's home, as

long as the mother's contact with the baby was supervised by the

grandmother or the father.   The plan also provided the mother

was to engage in substance abuse treatment.

    To ensure the mother received ongoing services, the

Division filed an order to show cause and a verified complaint

against both defendants seeking care and supervision of the baby

pursuant to 
N.J.S.A. 30:4C-11 and 
N.J.S.A. 30:4C-12.    At the
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initial hearing on the order to show cause, the parties,

represented by counsel, appeared and consented to the Division

having care and supervision of their child.

    At the conclusion of the hearing, defendants entered into a

consent order, dated July 31, 2015.   The principal terms of the

consent order were that:    (1) the parties share joint legal

custody, with physical custody placed with the mother; (2) the

mother have only supervised contact with Gwen; (3) the

grandmother and the father act as the designated supervisors;

(4) the father have liberal parenting time; and (5) the mother

engage in substance abuse treatment and individual therapy.

    The return of the order to show cause was on September 24,

2015.   It was undisputed the parties were abiding by the July

31, 2015 order, the terms of which were placed into an order

dated September 24, 2015.    The new order included a provision

the father was to care for Gwen when the grandmother worked (she

worked five days a week), and the Division was to arrange for

the mother to have psychological and psychiatric evaluations.

    On January 7, 2016, the parties appeared for a summary

hearing.   The Division reported the mother was complying with

services and her drug screens had been negative since she

commenced treatment the previous July.   The judge entered an

order continuing the terms of the previous order.    In addition,
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because the psychological evaluation recommended such services,

the mother was ordered to attend parenting classes and a MICA2

program.

      As a result of the father filing an application for an

emergent hearing, on April 4, 2016, counsel and all parties,

with the exception of the mother appeared in court.    The

Division reported the father had learned the mother had relapsed

and entered into an inpatient facility, believed to be in

Pennsylvania.   The father sought an emergent hearing for the

purpose of obtaining physical custody of the baby.

      It was not known by those assembled in court where the

mother was located.   The Division had endeavored to find her

before the hearing but were unsuccessful.     The mother’s attorney

stated she had been out of the office the previous week (April

4, 2016 was a Monday) and had only learned of the emergent

hearing earlier that day.     She informed the court the mother was

unaware of the hearing.     Despite such fact, the court proceeded

with the hearing in her absence.

      Because the mother had relapsed, was unavailable to care

for Gwen, and the father was a suitable caretaker of the baby,

the judge transferred physical custody of the child to the


2
    MICA stands for "mentally ill chemically addicted."

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father; defendants continued to share joint legal custody of the

baby.   The judge also ordered the mother's parenting time be

supervised by the Division at its offices and that she continue

with treatment previously ordered.

    On July 7, 2016, all counsel and the parties, including the

mother, appeared for a compliance review hearing.   The Division

reported the mother was doing well.   She had been in the

inpatient facility from March 28, 2016 to April 10, 2016 and,

since leaving such facility, had been engaging in an intensive

outpatient (IOP) MICA treatment in Pennsylvania, a six-day per

week program she had discovered on her own.    The mother

testified she had three more months of treatment in the IOP

program.   In a "summary finding order" entered that day, the

judge found the Division's continued care and supervision of the

matter was warranted because of the mother’s progress and

participation in treatment.

    At the conclusion of a summary hearing held on October 20,

2016, the judge terminated the litigation.    At that time, it was

reported that the mother had been successfully discharged from

the IOP MICA treatment program in Pennsylvania, and was doing

well in a "step-down" IOP in New Jersey, which she had selected

without the Division's assistance.    She anticipated completing

the step-down program in mid-November.
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       The Division argued the litigation should be dismissed

because it was no longer providing any services for the mother,

who was successfully securing any necessary treatment on her

own.   Further, defendants were privately arranging for the

mother's parenting time between themselves, removing the

mother’s need to have the Division supervise her visitation.         In

addition, there was evidence the father was ably caring for the

child.

       The mother wanted the matter to remain open so she could

make an application for the return of Gwen to her physical

custody when her treatment ceased.      However, the judge found it

appropriate to terminate the litigation for the reasons

advocated by the Division, and noted the mother could file a

non-dissolution (FD) action in order to seek a change in the

custodial and parenting time arrangement when she was ready.

                                  II

       On appeal, the mother contends the judge erred when he

terminated the matter without ordering a hearing on custody and

parenting time, thus providing her "an opportunity . . . to be

returned to status quo ante[.]"       The mother also contends the

judge failed to conduct a "proper evidentiary hearing" on

October 20, 2016 before terminating the litigation.


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    We decline to address the latter contention because it was

not raised before the Family Part judge, a fact the mother

readily concedes.    We do not consider issues that were not

properly presented to a trial judge, "unless the questions so

raised on appeal go to the jurisdiction of the trial court or

concern matters of great public interest."     Nieder v. Royal

Indem. Ins. Co., 
62 N.J. 229, 234 (1973) (quoting Reynolds

Offset Co., Inc. v. Summer, 
58 N.J. Super. 542, 548 (App. Div.

1959)).    As neither consideration is present, we do not address

this particular question.

    
N.J.S.A. 30:4C-12 authorizes the Division to provide

services to children in need.    N.J. Div. of Youth & Family

Servs. v. I.S., 
214 N.J. 8, 14 (2013).    Here, the primary relief

the Division sought and initially provided was referring the

mother to services to help her overcome her substance abuse, so

that she would parent her child.     The Division also effectuated

a custodial and parenting time arrangement to enable the mother

to parent Gwen, albeit supervised.

    As stated, when the mother relapsed and entered into a

rehabilitation hospital, the court placed the baby in the

father’s physical custody at the conclusion of the emergent

hearing.   In our view, it was error to have transferred physical

custody of the baby before the mother had notice of the hearing
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and, in particular, the father’s request for a transfer of

custody.   The mother’s right to due process was not protected in

this case.

    A parent has a constitutional right to due process when a

change in custody of his or her child has been requested,

including the right to adequate notice and a fair opportunity to

be heard with respect to such issue.   See Div. of Youth & Fam.

Servs. v. M.Y.J.P., 
360 N.J. Super. 426, 464 (App. Div. 2004)

(citing Matter of C.A., 
146 N.J. 71, 93-94 (1996)).     A

proceeding to terminate a parent's right to the physical custody

of a child is of sufficient importance such that it should not

proceed unless the parent has been noticed of the proceeding or

the parent has waived the right to be present.   See Test v.

Test, 
131 N.J. Eq. 197, 200-01 (E. & A. 1942) (requiring

adequate notice when custody of children is to be determined).

    The mother’s attorney had been away the week preceding the

hearing and learned of it only hours before it commenced.      She

advised the court the mother was not yet aware of the

proceeding, yet the judge did not take any steps to facilitate

the mother’s presence.

    The hearing could have been delayed a few days or even

longer to provide the attorney an opportunity to locate and

communicate with the mother about the father’s request for a
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change in custody.   In the interim, Gwen could have been

temporarily placed in the father’s physical custody.   If the

mother was noticed of the hearing but unable to leave the

inpatient facility, she may have been able to appear at the

hearing by telephone.   At the least, the mother could have

consulted with and enabled counsel to adequately represent her

interests at the hearing.

    The mother is not seeking to vacate the order that

transferred physical custody or continued such custody of Gwen

in the father.   She is merely seeking a hearing so she can show

why she is entitled to regain custody.   In light of the fact

Gwen was removed from the mother’s physical custody without due

process, it is fitting she have that opportunity to correct the

wrong that occurred here.   Therefore, the dismissal order is

reversed and matter remanded for an evidentiary hearing on the

issue whether the mother is entitled to physical custody of

Gwen.

    Reversed and remanded for further proceedings consistent

with this opinion.   We do not retain jurisdiction.




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