DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.F.
Annotate this CaseRECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1329-16T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
D.F.,
Defendant-Appellant,
and
C.W.,
Defendant.
____________________________________
IN THE MATTER OF B.W. and E.W.,
Minors.
____________________________________
Submitted January 17, 2018 – Decided February 14, 2018
Before Judges Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester
County, Docket No. FN-08-0199-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kimmo Z.H. Abbasi, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Renard
L. Scott, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Noel C. Devlin,
Assistant Deputy Public Defender, of counsel
and on the brief).
PER CURIAM
Defendant D.F. appeals from an October 27, 2016 order of the
Family Part terminating Title 30 litigation initiated by the
Division of Child Protection and Permanency (Division), awarding
sole legal custody of her children, E.W. and B.W., to their father,
C.W, and requiring D.F.'s visitation with her children be
1
supervised. We affirm.
Diane and Charles are the parents of twins, Nathan and Evan,
born August 30, 2000, and Brian, born October 9, 2001. Nathan,
who was autistic and epileptic, died on April 24, 2014. Evan and
Brian also suffer from autism and epilepsy. Brian is non-verbal,
severely epileptic, violent, self-injurious, and requires more
assistance than Evan.
1
To protect the privacy interests of the parties, we refer to
D.F., as Diane, and C.W., as Charles, the older child, E.W., as
Evan, and the younger child, B.W., as Brian. We refer to the
deceased child, N.W., as Nathan.
2 A-1329-16T1
In considering this appeal, we summarize the Division's
nearly four years of involvement with this family. This litigation
alone spanned two and one-half years.
On October 16, 2012, the Division filed a verified complaint
for the care and supervision of Nathan, Evan, and Brian, alleging
neglect. The case was closed in September 2013. Thereafter,
Diane and Charles divorced. Pursuant to the judgment of divorce,
both parents shared legal custody of the children and Diane was
granted primary residential custody.
In April 2014, the Division learned of Nathan's death and
opened a new investigation. At the time of Nathan's death, Diane
was home, but not supervising Nathan while he took a bath. The
investigation revealed that Nathan drowned in the bathtub after
suffering a seizure. A pediatrician with New Jersey Cares deemed
Nathan's death accidental, but noted his death may have been the
result of "recklessness or worse."
On May 12, 2014, the Division learned that Diane had been
arrested. According to the arrest report, Diane was drinking and
got into a motor vehicle accident. Diane was charged with
aggravated assault, reckless driving, driving while intoxicated
(DWI),2 leaving the scene of an accident, refusing to provide a
2
The incident was Diane's second DWI charge.
3 A-1329-16T1
breath sample, and having an open alcoholic beverage. During her
arrest, Diane made comments expressing thoughts of self-harm and
was transported to a psychiatric hospital.
Diane was discharged from the emergency psychiatric facility
with a recommendation that she receive follow-up treatment. Diane
began a private treatment program at Princeton House, where she
was diagnosed with depression and acute trauma. Based upon the
criminal charges against Diane, her expression of self-harm, and
her failure to comply with the Division's new investigation
following Nathan's death, the Division instituted an emergency
safety plan requiring full-time monitoring of Diane when she was
with the children.
On May 21, 2014, the Division filed a verified complaint for
the care and supervision of Evan and Brian under Title 9 and Title
30.3 A hearing was held and the Division requested that Diane be
supervised when she was with the children. The judge granted the
Division's application and appointed a Law Guardian for the
children. The judge expressed concern with Diane's mental health
and stability, especially since Nathan's death. The judge stated
3
The Division filed a single complaint, citing both Title 9 and
Title 30, as it was unsure whether to pursue neglect proceedings
based on an open investigation into Nathan's death. The Division
decided to proceed solely under Title 30 after the investigation
into Nathan's death was closed.
4 A-1329-16T1
that "[w]e have relatives describing a hard situation to handle,
kind of day-to-day life. Children stay up late. They're little.
One child is becoming increasingly violent. We had the [care
management organization] involved." The judge held that "until
the Division can recommend to the [c]ourt . . . that [Diane]'s
stable, and that any alcohol issue, or grief issue, that's being
treated, . . . any medical advice with alcohol, is dealt with,
then the supervision will need to remain in place."
At the next hearing, on June 18, 2014, Division caseworker
Anthony Simone testified that he referred the family to Epic Health
Services (Epic), an organization that works with autistic children
and their families. Epic provided overnight care of the children
and was an approved supervisor for Diane.
At this hearing, Diane asked the judge to vacate the
supervision requirement due to the financial burden associated
with paying the court-authorized supervisors. Because the
Division had not received treatment records for Diane, the judge
declined to rescind the supervision order. The judge signed an
order compelling the release of Diane's treatment records, and
requiring both parents undergo psychological evaluations.
On August 15, 2014, a different judge met with counsel to
review the status of the litigation. The Law Guardian reported
the children were doing well under Diane's supervised care, and
5 A-1329-16T1
noted that Brian would likely need residential placement in a
facility for individuals with severe autism. The judge continued
supervision for Diane and the children.
In September 2014, Diane told a Division caseworker that she
was overwhelmed, lost her job, and was having financial difficulty
caring for the children. Further complicating the situation at
that time was Brian's suspension from school for behavioral issues.
On October 24, 2014, the judge conducted a Title 30 fact-
finding hearing. Vicky Burbage, a Division caseworker, told the
judge that the Division was providing mentoring services to Evan,
and that both children were receiving services through
PerformCare. Epic continued to provide overnight care and
supervision. The Law Guardian reported that the children were
doing "as fine as can be expected."
Burbage then offered testimony regarding Diane. Burbage
stated that Diane was "fully compliant" with her private
therapist's recommendations. Therefore, the Division was willing
to lift Diane's supervision requirement. However, Burbage
believed that Diane "may not be seeing the . . . therapist that
she was seeing prior. [Diane] felt that there was a breach of
trust between the Division and her therapist, when [Burbage] called
to confirm that she was seeing the therapist." Burbage also
testified that while Diane had been referred to Services to
6 A-1329-16T1
Overcome Drug Abuse Among Teenagers, Inc. (SODAT) for an eighty-
hour alcohol urine test, she did not comply.
At the conclusion of this hearing, the judge found that "this
is a family in need of services that are being provided" and the
court retained jurisdiction in the best interests of the children.
The judge ordered Diane to comply with random eighty-hour alcohol
screens scheduled by the Division and continue mental health
counseling.
On November 20, 2014, Tsahye Bradley, an Epic home care nurse,
went to Diane's home. Bradley discovered that Evan and Brian were
alone on the first floor, and Diane was upstairs. Bradley
discovered Diane passed out on her bed and found pills "all over
the bed and the floor." Bradley collected the pills and put them
in a locked cabinet. Around 12:30 a.m., Diane woke up and came
downstairs. According to Bradley, Diane was disheveled and smelled
of alcohol. Bradley reported the incident to her supervisor, who
reported it to the Division.
A few days later, on November 25, 2014, a Division caseworker
took Diane for an eighty-hour alcohol screen. Diane tested
positive for alcohol and it was recommended that she continue out-
patient substance abuse treatment.
7 A-1329-16T1
On December 17, 2014, Burbage went to Diane's home to check
on the children. Diane refused to allow Burbage to enter the home
or see the children.
On January 23, 2015, the Division filed an amended verified
complaint seeking custody, care, and supervision of the children.
The judge signed a consent order continuing supervision of Diane
while with the children, and requiring Diane to allow access to
the children for Division safety checks. The order also required
Diane to complete a substance abuse re-evaluation, submit to random
urine tests, complete a psychological examination, attend therapy,
and continue services for the children with Epic and PerformCare.
On the morning of January 27, 2015, Diane called a Division
hotline and claimed that her children were being abused because
the Division caseworkers coming to her home caused the children
to believe that the Division was going to abduct them. Based on
this concern, Diane said she took the children and refused to
provide her location.
A caseworker went to Diane's home on January 28, 2015, to
check on the children. The caseworker rang the doorbell and
knocked on the front door, but initially no one answered.
Eventually, Diane came to the front door, but refused to let the
caseworker inside. The caseworker contacted the police. While
the caseworker was waiting for the police to arrive, she saw Diane
8 A-1329-16T1
get into her car with Evan and Brian but without a supervisor.
The caseworker called 911 and advised that Diane took the children
in violation of a court order. The police stopped Diane at a
nearby drug store. As a result, the Division conducted an
emergency removal of the children.
Later that day, the caseworker returned to Diane's home with
a police officer to check on Diane. Diane began yelling from a
second-story window, telling the police officer to "shut up" and
leave because she was not going to talk to them. The caseworker
and officer observed red wine stains on Diane's shirt.
As a result of these events, on January 30, 2015, the Division
filed a second amended verified complaint for care, custody, and
supervision of the children. A hearing on the second amended
complaint was held. The Division witnesses included the caseworker
who went to Diane's home on January 28, 2015, and the Epic nurse
who found Diane passed out in November 2014. The Division
witnesses provided testimony as to the events that had taken place
since the court proceeding in October 2014. Also testifying were
Diane, Diane's boyfriend, and Charles.
Diane admitted that she refused to give the Division access
to her home and children, and that she left the house on January
28, 2015, without a court-ordered supervisor. Diane claimed she
left the house with the children because she assumed that the
9 A-1329-16T1
caseworker had come to take the children, and Diane wanted to get
medication refills for the children to ensure they had their
medication when they were removed. When asked why she believed
the Division would take the children prior to a hearing on the new
custody complaint, Diane explained, "this is how they operate.
They've been aggressive for three years and harassed us. They've
tortured me."
Diane denied she was drunk on Tuesday, January 27, or
Wednesday, January 28, 2015. She claimed that the stains on her
shirt on January 28, 2015, were just a "really ugly" floral print.
Diane testified that her recent treatment was for post-traumatic
stress disorder and depression, not substance abuse. However,
Diane failed to provide any medical evidence or testimony to
support her claims, and declined to identify her treating
psychiatrist. Diane stated that it was in the children's best
interests to remain in her custody due to the complex nature of
their disabilities. She insisted that she was her children's only
advocate and uniquely understood their needs.
Diane's boyfriend provided testimony during the hearing.
Diane's boyfriend acknowledged that Diane drank in his presence.
He also told the judge that Diane "has an intense distrust of the
Division; and, she sees the Division as attacking her. And, she
responds in kind."
10 A-1329-16T1
At the hearing, Charles testified as follows:
[Diane] needs to . . . come to the conclusion
that she is unable to parent these children
on her own. . . . It's just too much. And,
the drinking's been going on for a long time;
and was going on during our marriage. And,
under a combination of her medications and
drinking, and being unable to supervise the
kids, it's not safe and healthy for them
. . . . We've already lost one son . . . .
It's – it's quite apparent that she has a
drinking problem. And, . . . the boys need
help, and staying in that house is just doing
them more harm than good.
Considering the testimony and evidence presented during this
hearing, the judge granted the Division's application. The judge
deemed the testimony provided by the Epic nurse, who found Diane
passed out from alcohol and surrounded by pills, particularly
credible. The judge expressed sympathy for Diane, but found that
she was not supervising her children. Based upon Diane's hostility
toward the Division and other care providers, coupled with her
alcohol consumption, depression, and failure to supervise her
children, the judge found that it was in the children's best
interests to be removed from the home so that Diane could "focus[]
on [her] own needs" and receive "a respite, some care for herself,"
and "a better perspective."
As to Brian, whose cognitive issues were particularly severe,
the judge ruled that "it would be an unacceptable risk to his
safety, health, and perhaps, life, if he remained solely in
11 A-1329-16T1
[Diane]'s care." Consequently, the judge ordered Brian removed
from Diane's care and placed in Bancroft, a residential facility
for autistic individuals.
As to Evan, whose impairments are less severe, the judge
found that Evan was "still exposed to danger" by remaining in the
home, and that "[i]t is time that [he] also be protected; and
. . . that his remaining in the home would be contrary to his
welfare . . . . [I]n order to protect his safety, health, and
life, he should be removed." The judge ordered the Division to
investigate the children's maternal grandparents as a temporary
placement option.
At the hearing, the judge spoke directly to Diane:
Putting the case into perspective, you need
to return to the strength you once had, by
focusing on your own needs. With the aid of
care givers, at least temporarily . . . .
[W]hen [Evan] is ready, he'll be returned to
you; and, I think that you'll have to be ready
for him. So, this is a time when you should
be focusing on getting better yourself,
strengthening your own abilities to care for
[Evan] . . . .
The judge ordered Diane to undergo a psychological evaluation,
comply with all recommendations, undergo a substance-abuse
evaluation, submit to random urine screens, and continue to be
supervised during visits with the children.
12 A-1329-16T1
On February 24, 2015, the parties returned to court. The
Division told the judge that Evan and Brian were doing well in a
therapeutic foster home. The Division reported that Diane was not
doing as well. During a supervised visit, Diane told the children
that it was the Division's fault they were not at home and that
the Division lied to take them away. Diane also interrogated the
children regarding their foster family. The Division believed
that Diane's behavior agitated the children and caused Brian to
lash out at the caseworkers.
The judge ordered Diane to stop agitating the children and
fostering animosity between the children and the Division. The
judge instructed Diane to comply with her mental health treatment
and urine testing. The judge found a continuing danger to the
children if placed in Diane's care, and continued custody of the
children with the Division.
On April 23, 2015, the judge held a Title 30 hearing. Brian
Jacobowski, a Division permanency worker, advised that Diane was
attending an intensive outpatient program for substance abuse at
Solstice Counseling. He reported that Diane "does not believe
that she has a substance abuse problem and therefore is resistant
to treatment," and that her program counselor believed "she
sometimes seems to go through the motions during treatment."
13 A-1329-16T1
According to Jacobowski, Diane claimed she was attending private
therapy, but refused to disclose her therapist's information.
The judge found that there was a continuing need for the
Division to retain custody, care, and supervision of the children
based on their intense needs, the significant services provided,
and the need for family therapy. He ordered Diane to attend
individual therapy, domestic violence counseling, and substance
abuse treatment, and submit to random eighty-hour alcohol screens.
The judge also ordered Diane to release her private treatment
information to the Division. Diane's visits with the children
remained supervised.
On July 27, 2015, the judge held a compliance hearing.
Jacobowski testified that while Diane's new therapist reported she
was "progressing in her treatment," Diane was discharged from
Solstice Counseling due to an incident with another resident and
a possible DWI. Jacobowski stated that Diane checked herself into
a hospital for psychiatric treatment after being discharged from
Solstice Counseling, and began attending dialectical behavior
therapy (DBT) counseling at Princeton House. According to
Jacobowski, the Princeton House therapist indicated Diane did not
need substance abuse treatment.
Jacobowski testified that Evan and Brian were doing well in
their therapeutic foster home, and that Brian had been approved
14 A-1329-16T1
for residential treatment at Bancroft. Evan requested overnight
visits with his father, which the court approved. At this hearing,
there was a discussion that custody of Evan be transferred,
temporarily, to his maternal grandmother. The parties agreed that
placement with the maternal grandmother would be beneficial, if
the grandmother could handle Evan's intense needs. The judge
ordered the Division to evaluate the grandmother for placement of
Evan.
On September 22, 2015, another judge held a compliance
hearing. Jacobowski told the judge that Brian was accepted by
Bancroft and would be admitted as a resident within five weeks.
He also confirmed that the Division was vetting the maternal
grandmother for temporary placement of Evan.
Jacobowski testified that Diane completed the Princeton House
program and was discharged with the following recommendations:
medical monitoring with a psychiatrist, individual therapy, DBT
counseling, skills group sessions, and art therapy. Jacobowski
also stated that the Division was trying to obtain a bus pass to
allow Diane to attend her urine screens, because she no longer had
a car. He further reported that Diane was participating in Robin's
Nest Family Ties visitation services.
Due to Brian's high need level, the court ordered the Division
to ask Bancroft to accelerate his admission date. Diane asked the
15 A-1329-16T1
judge for legal custody of Brian when he became a resident at
Bancroft, so that she could properly advocate on his behalf. The
judge ruled that the Division needed to retain custody to process
Brian's transfer to Bancroft, but that, when the Division case was
completed, legal custody of Brian would be jointly awarded to
Diane and Charles. The judge signed an order requiring Diane to
continue individual therapy and any services recommended by
Princeton House, and to submit to random eighty-hour alcohol
screens.
On January 4, 2016, the judge held a permanency hearing. The
Division's counsel advised that the permanency plan was for
reunification of the children with Diane. The Division's attorney
reported that Diane was attending treatment, providing negative
urine screens for alcohol, and regularly visiting Evan at the
grandmother's house. Diane's attorney confirmed that Diane "likes
. . . therapy," "wants [it] to continue," and "finds it helpful."
The Division's only concern at this hearing was whether Diane
could secure stable housing.
The Division indicated that all parties agreed it was in
Brian's best interest to remain at Bancroft. The Law Guardian
agreed that the Division's plan for both children was in their
best interests.
16 A-1329-16T1
On April 28, 2016, the judge held a permanency and Title 30
hearing. Angela Gardner, a Division permanency caseworker,
testified. Gardner stated that Diane moved to Pennsylvania since
the last court date and refused to provide her new address.4
According to Gardner, Diane relapsed and it was recommended that
she attend a program for the mentally ill and chemically addicted.
The caseworker testified that Diane failed to complete DBT
counseling and missed several urine screens. In addition, there
was an incident at the grandmother's house in January where Diane
had been drinking.
Diane did not testify at this hearing. Diane's attorney told
the judge that his client lacked visitation with her children
since January 2016, and requested an order restoring parenting
time. Diane's attorney acknowledged that Diane ceased
participating in the Division's offered services, but claimed that
"they were causing great problems with her with regard to being
able to work, being able to maintain a residence, all the things
that we need to do just to take care of our basic life functions."
When the judge questioned the explanation for Diane's failure to
receive the offered services, her counsel responded, "[Diane] has
found those services not to be particularly helpful."
4
The judge signed an order compelling Diane to disclose her
Pennsylvania address.
17 A-1329-16T1
Gardner advised the judge that the Division's new permanency
plan was for reunification of the children with Charles. Charles
had secured housing, which was approved by the Division. Charles
was made aware of the various requirements to achieve permanency,
including obtaining health insurance for the children, ensuring
continuation of the children's services through PerformCare, and
registering the children in the local school district. Diane did
not object to awarding legal and primary physical custody of Evan
to Charles. In fact, Diane's counsel stated:
at some point the Division is going to seek
to terminate this litigation. I suspect it
will be at the next hearing . . . I would
like to get [Diane] back to a point where the
[c]ourt feels comfortable in deeming her what
we call "safe," . . . so she can be the parent
at least of alternate residence at this point.
The judge approved the Division's plan for reunification with
Charles, and signed orders transferring legal custody of both
children to Charles, transferring physical custody of Evan to
Charles, and finding the family in need of continuing care and
supervision by the Division. In explaining his reasoning for the
entry of these orders, the judge stated:
the [c]ourt has considered the testimony of
Ms. Gardner. It is familiar with this case
and it has reviewed the [c]ourt report. It
has also heard the position of the Law
Guardian who does not object to the plan
. . . . [H]aving heard all the evidence, I
18 A-1329-16T1
find that the plan is in the best interest of
the two boys for reunification with dad.
The judge also issued the following instruction to Diane:
[A]lthough you may not at this point in time
evaluate the Division perhaps with a positive
assessment, I don't share in that . . . .
[T]his court is going to be bound by previous
orders and if those orders . . . require[] you
to do certain services, you're going to have
to demonstrate by going to those services.
They don't have to necessarily be the
same . . . providers that the Division has
provided to you, . . . but certainly they
would have to provide the same type of service
and the Division would have to be able to
corroborate, meaning they would get proof that
you're actually doing those things before the
Court can consider lifting supervision.
The judge directed the Division to work with Diane to select
a location for alcohol testing accessible by public transportation
from her home in Pennsylvania. He also directed Charles to make
reasonable efforts to allow Diane visitation with the children,
as long as Diane was supervised.
On August 16, 2016, the judge held a compliance hearing. The
Division was prepared to dismiss the litigation upon resolution
of the following issues: (1) Diane's claim that she was having
trouble finding supervisors for her visits with the children, and
that Charles was not providing visitation opportunities; (2)
Diane's failure to undergo a valid urine screen in eight months;
and (3) Charles's insuring both children. The Division asked the
19 A-1329-16T1
judge to keep the case open to address these issues and, hopefully,
eliminate Diane's supervision requirement by the next hearing.
The Law Guardian was unable to make any recommendations,
because Charles had not allowed her to visit Evan at his home
since the last hearing. Charles's attorney indicated that,
although the Law Guardian had not been able to visit, the Division
conducted a home visit in June and reported that "the house was
fine, [Evan] was fine."
Diane provided a letter from her new therapist stating that
therapy was going well and she was complying with her treatment
plan. Diane asked the court to vacate the supervision order and
deem her the "parent of alternate residence." Diane did not object
to Charles having legal and primary physical custody of Evan.
Diane explained that she failed to comply with the urine screens
because the Division asked her to go to Camden for the screens,
and she did not feel safe taking public transportation to that
location. Diane asked to take the tests in Pennsylvania, near her
home. The Division told the judge that it had no out-of-state
vendors to conduct urine screens and argued:
[W]e discussed this at the very last hearing.
There was agreement – previously she was
attending the urine screens somewhere other
than SODAT and she wanted us to change that,
which we did and the [c]ourt report indicates
that. Now, she's saying she wants them over
20 A-1329-16T1
in Pennsylvania. All of these are excuses for
her not doing these urine screens.
The judge ordered the Division to work with Diane to find a
testing location, other than Camden, convenient to public
transportation. The judge directed Charles to allow the Law
Guardian to visit with Evan at his home and follow a schedule for
Diane to visit with the children. The judge also ordered Diane
attend DBT counseling and submit to random eighty-hour alcohol
screens.
On October 27, 2016, the judge held a Title 30 summary
hearing. The Division sought to terminate the litigation, with
Charles retaining legal custody of the children and physical
custody of Evan.
The Division's counsel had one remaining concern regarding
custody of the children and their relationship with Diane. The
Division's attorney stated that Diane was ordered to engage in
certain services throughout the history of the litigation,
including substance abuse treatment, therapy, and random urine
screens, and that Diane failed to complete the services. The
Division was unable to contact Diane's therapist after repeated
attempts, had received no information from her therapist, and was
unable to verify the therapist's credentials. The Division
reported that Diane had not completed random urine screens and was
21 A-1329-16T1
scheduling her own testing such that the screens were not random.
The Division's counsel argued:
We have a case that has been open over 890
days and still we're here dealing with the
same issues as far as treatment, random
screens and even DBT . . . . [Diane] was
ordered to do DBT counseling, she dropped out
of that. Now, she's coming here again with
these excuses about random screens. She wants
to dictate when and where she does services
and that's not how these cases go . . . . So
we have no way of assessing her safety at this
point in time because we have no random
screens on her and she's not in DBT
counseling. We can't get any information out
of her private therapist except a letter, no
strings, no collaterals, no callbacks to [the
permanency worker] . . . . So we have nothing
to gauge her safety. Her visits should remain
supervised until she can comply.
Diane did not testify at this hearing. Nor did she submit
any medical records or urine screen results to the court. Diane's
attorney conceded that "[w]e had hoped to come here today with
. . . clean screens[,] . . . a set of screens that Your [H]onor
could look at, random screens since August, which would allay the
[c]ourt's fears, and we don't have them." Diane's counsel offered
no explanation for his client's failure to attend treatment or
provide information about her private therapy. Diane's counsel
objected to closing the litigation, stating that Diane "wants
custody of her boys back."
22 A-1329-16T1
The Law Guardian reported that there were "no concerns with
either Evan or Brian's well-being at this point." The Law Guardian
reported that Bancroft was "very happy with [Brian]'s progress,"
and that "[Evan] reports that he likes living with his dad, that
things are going well and that's where he wants to stay." Further,
the Law Guardian told the judge that "[t]he children are visiting
each other and [Evan] reports that these are . . . going well and
he wants them to continue."
At this hearing, Charles testified:
I'm just concerned from here on out that
[Diane] – my concerns are she still needs to
be supervised and that that continues. Her
place of residence where she lives right now
is not an appropriate setting for my children
and I don't believe she's mentally fit and
ready to make decisions on the children's
behalf. And she has a hard time just taking
care of herself, let alone the children. So
I just, from here on out, I really want to
make sure that her visitations, whenever she
wants them to be[,] remain supervised.
After hearing from the parties, the judge addressed Diane's
claim that the failure to provide random urine screens was the
Division's fault. The judge stated:
The Division was just trying to do their best
efforts to try to find a place after [Diane]
time and time again said I can't go there, I
can't go here, so they tried and they found
out that they don't provide those services.
So I understand that, but they were working
within the confines of what [Diane] gave them
which were very restrictive . . . . And even
23 A-1329-16T1
now, she says I'll go to Camden, but only on
my terms, on my days, at my time. That's not
a random screen . . . .
The judge found that concerns regarding Diane's substance
abuse and mental health were not resolved and, accordingly,
dismissed the litigation, with custody to remain with Charles. He
ordered the Division to keep the administrative file open for
ninety days so that "[Diane] can work with the Division to comply
with the services that have been ordered by the [c]ourt, to get
them finished." The judge explained that any further changes in
custody required a court order, and that "certainly [Diane] can
come back under an FD custody and be heard at a later time."
A final order was signed on October 27, 2016. The order
(1) terminated the litigation, (2) awarded legal custody of the
children to Charles, continued physical custody of Brian with
Bancroft, and awarded physical custody of Evan to Charles, (3)
continued Diane's supervised visitation schedule in accordance
with the prior court order, and (4) allowed Evan to decline
parenting time with Diane, with the parents "to use best efforts
to continue consistent visitation."
On appeal, Diane argues that the judge's order awarding
custody of Evan and Brian to Charles, and only permitting Diane
to have supervised visits with the children was not in the
children's best interests.
24 A-1329-16T1
Our review of a trial court's factual findings is limited.
Cesare v. Cesare,
154 N.J. 394, 411 (1998). "[W]hen there is
substantial credible evidence in the record to support the court's
findings," the decision should not be disturbed. N.J. Div. of
Youth & Family Servs. v. E.P.,
196 N.J. 88, 104 (2008). However,
we owe no deference to a trial court's interpretation of the law,
and review issues of law de novo. Mountain Hill, LLC v. Twp. Comm.
of Middletown,
403 N.J. Super. 146, 193 (App. Div. 2008).
We also extend special deference to the Family Part's
expertise. N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 342-43 (2010). Unless the trial judge's factual findings
are "so wide of the mark that a mistake must have been made"
they should not be disturbed. N.J. Div. of Youth & Family Servs.
v. M.M.,
189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty Inc.
v. BMW of N. Am. Inc.,
233 N.J. Super. 65, 69 (App. Div. 1989)).
"It is not our place to second-guess or substitute our judgment
for that of the family court, provided that the record contains
substantial and credible evidence to support" the judge's
decision. N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J.
420, 448-49 (2012).
"[P]roceedings under Title 30, other than to terminate
parental rights, are governed by the preponderance of the evidence
standard." N.J. Div. of Youth & Family Servs. v. I.S., 423 N.J.
25 A-1329-16T
1 Super. 124, 126 (App. Div. 2011).5 Under
N.J.S.A. 30:4C-12, there
must be "a showing that the parent has failed to ensure the health
and safety of the child and that the child's best interests
require" the relief sought. N.J. Div. of Youth & Family Servs.
v. I.S.,
214 N.J. 8, 27 (2013).
The paramount purpose of
N.J.S.A. 30:4C-12 is to protect
children. See N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 293 (2007).
N.J.S.A. 30:4C-12 "authorize[s] services
to children who have not been abused or neglected, . . . but whose
needs may be too complex and beyond a parent's or parents' ability
to work through without the Division extending minimal
supervision, or more intrusive involvement, coupled with services
until that is no longer necessary." I.S.,
214 N.J. at 36.
Applying these standards, we discern no basis for disturbing
the judge's determination that Evan should be placed in Charles's
care and custody with continuing services provided by the Division.
Charles "was the only appropriate parent to award custody to at
the dispositional conclusion of this fact-sensitive Title 30
5
In this case, the Division concurrently filed a Title 9 complaint
and a Title 30 complaint, but ultimately proceeded with the matter
as a Title 30 family in need of services litigation. See N.J.
Div. of Youth & Family Serv. v. N.D.,
417 N.J. Super. 96, 109
(App. Div. 2010) (terminating a Title 9 action in the absence of
an abuse or neglect finding, but allowing the Division to provide
care, custody, and supervision to children in need of services
under Title 30).
26 A-1329-16T1
proceeding." Id. at 41. Charles had a stable home, and was
willing and able to care for Evan, who wished to live with him.
Moreover, there was no objection to Charles having primary custody
of the children from the Division, the Law Guardian, or Diane.
The judge found that Diane suffered from depression and post-
traumatic stress disorder for which she received sporadic
treatment, only to relapse. Diane also had difficulty coping
emotionally, especially after Nathan's death, was unable to
maintain a steady job and secure housing, and struggled with
alcohol addiction during the course of this litigation. The judge
repeatedly urged Diane to complete the court-ordered services,
provide evidence of her compliance with the services, and undertake
any follow up services in order to have unsupervised visitation
with the children. Diane's own failure to participate in the
court-ordered services and get her life back on course resulted
in the judge's custody and visitation determinations. We are
satisfied that there was competent, credible evidence in the record
to support the judge's finding that it was not safe to return Evan
to Diane's care and custody, and that placing the child with
Charles served the child's best interests.
Having reviewed the transcripts from the fourteen hearings
conducted by the court, spanning two and one-half years of
litigation, we find sufficient credible evidence to support the
27 A-1329-16T1
judge's decision to grant custody of the children to Charles and
continue supervised visitation for Diane.
Affirmed.
28 A-1329-16T1
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