DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.M.

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                        NOT FOR PUBLICATION WITHOUT THE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-5112-15T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

K.M.,

        Defendant-Appellant,

and

S.M.,

     Defendant.
___________________________________

IN THE MATTER OF

L.M., Minor.
___________________________________

              Submitted January 10, 2018 – Decided April 11, 2018

              Before Judges Fuentes, Koblitz, and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FN-02-0077-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Ingrid A. Enriquez, Designated
              Counsel, on the briefs).
              Christopher S. Porrino, Attorney General,
              attorney for respondent (Andrea M. Silkowitz,
              Assistant Attorney General, of counsel; Jill
              N. Stephens-Flores, Deputy Attorney General,
              on the brief).

              Joseph E. Krakora, Public Defender, Law
              Guardian, attorney for minor (Linda Vele
              Alexander, Designated Counsel, on the brief).

PER CURIAM

      K.M. appeals the June 16, 2
016 Order Terminating Litigation

(Order) in this action filed under 
N.J.S.A. 30:4C-12 (Title 30).

Under the Order, K.M.'s daughter continued in the physical custody

of the child's maternal grandmother.             K.M. contends the Order was

entered      without   an   appropriate       dispositional     hearing,     which

deprived her of due process.          We reject this argument and affirm

the Order.

                                      I

      K.M. (Kim) and S.M. (Sam) have two children.                  L.M. (Laura)

was   born    in   2004.    A.M.   (Albert)    turned    eighteen    during     the

litigation and was dismissed from it.1

      In     August    2014,   the   Division     of    Child   Protection      and

Permanency (Division) filed a complaint under 
N.J.S.A. 9:6-8.21(c)



1
  We use fictitious names to protect the confidentiality of the
family members and children. R. 1:38-3(d)(12).



                                          2                                A-5112-15T1
(Title 9) and Title 30, seeking care and supervision of the

children based on Sam's arrest for possession of heroin and his

refusal to attend a substance abuse evaluation without a court

order.    Sam was the subject of the Division's investigation at the

time.     However, because Kim was groggy when Division workers

arrived at the house, took prescription medications, and the

children indicated to the caseworker that her medicine made her

sleepy, the Division requested an order from the court that both

parents     undergo      drug     testing.       Sam     was     positive     for

tetrahydrocannabinol (THC), the active chemical in marijuana.                 Kim

tested positive for THC, benzodiazepines, and phencyclidine (PCP).

She     contended   that   the     positive    findings    resulted    from     a

prescription medication, Lovenox, that she took for blood clots.

       The court placed the children under the care and supervision

of the Division and required all parental contact to be supervised.

Kim suggested that she and the children live with her mother, M.B.

(Marge), who could provide supervision.              Kim and Sam were ordered

to    undergo   random   urine    screens,    hair    follicle   examinations,

substance abuse evaluations, psychological evaluations, and to

sign releases for medical and pharmaceutical records.

       When they returned to court in September 2014, Kim again

tested positive for THC, and her hair follicle examination was

positive for opiates.           Her psychological evaluation recommended

                                       3                               A-5112-15T1
that she attend a MICA program.2      The court ordered her into the

program over her objection.    Sam was ordered to attend substance

abuse treatment because his drug testing was positive for THC.

     Later that month, the Division conducted an emergency Dodd3

removal of the children because of conflicts between Kim and Marge.

The Division's safety protection plan was not being followed, as

Kim was having unsupervised contact with the children.            The

conflicts between Kim and Marge led to police intervention on two

occasions.     One of the conflicts stemmed from Kim's decision to

allow the children to stay home from school when they were not

sick, a decision with which Marge disagreed.

     Following a hearing, the court found that it was contrary to

Laura's welfare for her to remain in the physical custody of Kim

"and that she would be in imminent risk of harm based upon the

Division's concerns regarding the mother's substance issue and the

conflicts in the home between the mother and the grandmother."

The court found that "reasonable efforts to prevent placement

prior to the removal [were made] as indicate[d] within [the

complaint]."     The court noted that Laura was "very comfortable


2
   Reference here is to the Mentally Ill Chemical Abuser (MICA)
program at Bergen Regional Medical Center.
3
   A "Dodd" removal permits the emergency removal of a child from
the parent's home without a court order. 
N.J.S.A. 9:6-8.29.


                                  4                          A-5112-15T1
with her grandmother."   Although the children would continue under

the care and supervision of the Division, the court ordered that

Marge would have physical custody of Laura and Andrew, and that

Kim, Sam and Marge would share legal custody of both children.

None of the parties objected to this arrangement, which avoided

placing the children in the custody of the Division.

     Kim and Sam continued to test positive for THC at elevated

levels.    Kim also tested positive for opiates and hydrocodone.

She attended an intake session at the MICA program and Sam was in

a drug treatment program.

     At the January 26, 2015 fact-finding hearing, the Division

asked the court to dismiss the Title 9 portion of the case and to

continue   providing   services   to   the    family   under   Title   30.

Alexander Curry, the Division caseworker, testified about the

family's continued need for services.        Sam had relapses and wanted

to enroll in a substance abuse program.         Kim attended outpatient

psychiatric medication monitoring but had not started treatment

at MICA.    She exercised supervised visitation with Laura, but

would inappropriately tell Laura that she would be going to a

foster home.

     The court dismissed the Title 9 portion of the case with

prejudice with the consent of the parties, and ordered the Title

30 part to continue "because I find that it is in the best interest

                                  5                               A-5112-15T1
of [Laura]" so that both parents could continue treatment.              Kim

was ordered to attend substance abuse treatment at the MICA

program.     Sam was ordered to attend level one substance abuse

treatment.

     At    the   compliance   hearing   in   February   2015,   the   court

commented on its interview with Laura, who had told the court

about text messages from Kim that were upsetting to her.                The

court found Laura "articulate, very mature for her age, and very

credible."       Laura wanted to live with her father, but Sam had

relapsed.    Kim was not exercising supervised visitation with Laura

and had been hospitalized for a suicide attempt.

        Sam continued substance abuse treatment through May 2015 and

was looking for an apartment.           Kim had not started the MICA

program.    She wanted phone contact and visitation with Laura, who

was apparently not ready to resume contact with her mother.

     In September 2015, Laura's attorney asked the court to close

the Title 30 case, but both parent's objected. The court continued

the litigation because Kim needed services although Sam was doing

well.

     At the December 2015 compliance hearing, Kim represented to

the court that she was engaged in a MICA program and was attending.

The court ordered supervised visitation between Kim and Laura at



                                    6                             A-5112-15T1
the request of the child, but declined to close the case at that

time.

     At the compliance hearing in March 2016, Marge testified that

after the child's interactions with Kim, Laura's behavior "becomes

crabby, and it becomes short, and then we have to like let her

calm down, let her process it.               It keeps her awake at night."

Also, Sam relapsed, and he sometimes did not call or appear for

scheduled visitation.         The court ordered that, based on the health

and welfare of Laura, the Title 30 litigation remain open because

there was a need to continue services for the parents.

     On    June   16,    2016,    the    court    terminated    the     Title    30

litigation.       At    the   hearing,   the     Division's    "court   report,"

certified to by the Division caseworker and supervisor, was placed

in evidence without objection.               In the report, the Division

recommended terminating the litigation and continuing Laura in the

physical custody of Marge, although Kim, Sam and Marge would share

legal custody.      The report also detailed the caseworker's weekly

contacts with the family.         It reported that Kim was not "engaged

in a drug rehabilitation facility," and had not complied with hair

follicle tests.        Sam had relapsed.

        Marge testified that Laura was a "wreck" after visiting with

her parents.      Laura was concerned about Kim's health and that she

might die.     She became upset when her father did not visit.                  The

                                         7                                A-5112-15T1
visits with Kim ended up with Marge and Kim "in a screaming match."

Marge wanted the court to set limitations on the number of phone

calls from Kim.

       Kim testified in response to the Division's report.               She

objected to continuation of the custody arrangement.              She would

consent to dismissal of the case if she had sole physical custody

of Laura and if she and Sam shared legal custody.          Kim contended

the child was not safe with Marge because Marge had disclosed

confidential information to Laura.      Kim asserted she was a "pillar

within [her] community" because she had been active in the PTA and

Laura's school functions.

       Kim continued to assert that Lovenox caused false positive

drug   screen   results.   When   the   court   asked   whether    she   had

supporting documentation, Kim asserted that another judge who had

handled an earlier case in 2004 had that information.                 Kim's

attorney acknowledged to the court that Kim's drug screens remained

positive.

       In response to the court's request for documentation about

Lovenox creating false results, Kim testified:

            [Kim]: The pharmaceutical company doesn’t even
            have it, that makes the Lovenox. There’s no
            request for it.

            THE COURT: So how do you know it?

            [Kim]: Because we did an order of elimination?

                                   8                                A-5112-15T1
           THE COURT: Oh okay.

           [Kim]: We went through the whole entire thing
           with the Judge and the Sheriff’s Department,
           and my doctors; okay. And that’s why I was
           tested every day for my amounts of Lovenox;
           okay? And it gradually, . . . pull[ed] down
           my THC levels.


      Based on the testimony and evidence, the court found that Sam

had relapsed and that the "child suffers as a result."              The court

found Kim's testimony about Lovenox causing false positives as

"almost implausible for me."          He did not find her answer to be

credible and it raised concerns "about [her] spaces in reality

right now."   He found the parents were not constant in the child's

parenting, and that he could not return the child to either parent.

The   court   found   the   parties    had   consented   to   the    custody

arrangement at the Dodd hearing to avoid the Division obtaining

custody.   Laura was safe with Marge, who was trying to protect the

child emotionally. The court remarked that the case would not

close but for the fact that Marge had custody because the parents

had not taken advantage of the services provided to them.

      The Order terminated the litigation.        Laura remained in the

physical custody of Marge.      Kim, Sam and Marge shared joint legal

custody.   The court did not preclude either parent from filing for

custody under a non-dissolution (FD) or matrimonial (FM) docket


                                      9                               A-5112-15T1
upon a showing of changed circumstances and lack of safety concerns

for   the   children.    The   court   ordered   continued   supervised

visitation.

      On appeal, Kim raises the following issues:

            POINT I

            THE JUDGMENT BELOW SHOULD BE REVERSED BECAUSE
            THE TRIAL COURT DENIED K.M. HER DUE PROCESS
            RIGHTS BY FAILING TO CONDUCT A PROPER
            DISPOSITIONAL CONCLUSION TO THE TITLE 30
            LITIGATION

            A. THE DIVISION FAILED TO ESTABLISH THAT IT
            WAS IN L.M.'S BEST INTEREST TO TERMINATE THE
            TITLE 30 PROCEEDINGS LEAVING PHYSICAL CUSTODY
            WITH MS. B.

            B. THE PROCEDURES EMPLOYED BY THE TRIAL COURT
            IN CONDUCTING THE JUNE 16, 2016 SUMMARY
            HEARING DEPRIVED K.M. OF DUE PROCESS.

                                II

      We accord "great deference to discretionary decisions of

Family Part judges," Milne v. Goldenberg, 
428 N.J. Super. 184, 197

(App. Div. 2012), in recognition of the "family courts' special

jurisdiction and expertise in family matters."      N.J. Div. of Youth

& Family Servs. v. M.C. III, 
201 N.J. 328, 343 (2010) (quoting

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."    Hitesman v. Bridgeway, Inc., 
218 N.J. 8, 26 (2014)


                                 10                             A-5112-15T1
(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995)).

     
N.J.S.A. 30:4C-12 "provides the means for the Division to

effectuate services to children in need when a parent does not

consent to the Division's supervision, care or custody."                N.J.

Div. of Youth & Family Servs. v. I.S., 
214 N.J. 8, 33 (2013).

It's "purpose is to protect children."          Ibid. (citing N.J. Div.

of Youth & Family Servs. v. M.M., 
189 N.J. 261, 293 (2007)).

"Section 12. . .     is triggered by the appearance that a child's

welfare is endangered."      N.J. Div. of Youth & Family Servs. v.

A.L., 
213 N.J. 1, 32 (2013).

     Under Section 12, the Division can file a complaint "whenever

it shall appear" that a parent "shall fail to ensure the health

and safety of the child, or is endangering the welfare of [a]

child[.]"   I.S.,   
214 N.J.   at   34   (quoting   
N.J.S.A.   30:4C-12).

Following its investigation, and if the child appears to require

care and supervision, the Division can file a complaint for care,

supervision or custody of the child. Upon application by the

Division, "at a summary hearing held on notice to . . . the

parents," the court may issue an order of care, supervision or

custody "if satisfied that the best interests of the child so

require" it.   I.S., 
214 N.J. at 35 (quoting 
N.J.S.A. 30:4C-12).

Under the statute,

                                      11                            A-5112-15T1
          the court must conclude that it is in the best
          interests of the child to award the Division
          an order of care, supervision, or custody.
          The court may then order the services that the
          Division's    investigation   revealed    were
          necessary.

          [I.S., 
214 N.J. at 35.]

     The initial order under Section 12 "shall not be effective

beyond a period of six months from the date of the entry unless

the court" extends the time of the order at a summary hearing

based on notice.      Ibid. (quoting 
N.J.S.A. 30:4C-12).      Then, the

court may in its discretion extend the order if "it is satisfied,

by the preponderance of the credible evidence, that the best

interests of the child require continuation of that order."          I.S.,


214 N.J. at 37-38.

     "Best interests" is not defined in Title 30.        However, "[I]n

construing     this   statute,   our    courts   have   considered    the

Legislature's underlying purpose — protection of children from

harm when the parents have failed or it is 'reasonably feared'

that they will."      N.J. Div. of Youth & Family Servs. v. T.S., 
426 N.J. Super. 54, 65 (App. Div. 2012) (quoting N.J. Div. of Youth &

Family Servs. v. Wunnenburg, 
167 N.J. Super. 578, 586-87 (App.

Div. 1979)).     Given the scope of this inquiry, we do not agree

that the trial court erred by terminating this litigation and




                                   12                           A-5112-15T1
continuing     physical    custody        of      Laura    with     her    maternal

grandmother.

     This custodial arrangement was entered into twenty months

earlier   with   the   tacit     consent     of   the     parties   to    avoid    the

Division's     custody    of     the   child       after    emergency      removal.

Subsequent   compliance        reviews4     continued      to   demonstrate       that

Laura's care and supervision was required to ensure her health and

safety.

      At the June 2016 hearing, Sam did not contest that he

relapsed repeatedly and was not available to parent Laura.                         His

visits lacked certainty. His attorney acknowledged that Sam failed

at times to attend visits because he was under the influence.

     The court found Kim's claim that Lovenox caused false positive

results was not credible.         She did not actually dispute that the

test results were positive for drugs; her contention was that

Lovenox caused these results.          At the hearing, she admitted there

was no pharmacological proof of this.              Her far-fetched contention

was that a judge, who was not assigned the case, knew of proof

from ten years earlier. Furthermore, Kim never disputed that, even


4
  A "compliance review"     "is not to check-up on and review a
parent's compliance or to manage the case. The purpose is to
require the Division to demonstrate that continued care and
supervision is still in the best interests because there is a need
to ensure the child's health and safety. N.J.S.A. 30:4C-12." T.S.,

426 N.J. Super. at 67.

                                       13                                   A-5112-15T1
if she did attend the court ordered MICA program, that she did not

complete it.

     Kim's reliance on N.J. Div. of Youth & Family Servs. v. V.T.,


423 N.J. Super. 320, 330-31 (App. Div. 2011) and A.L., 
213 N.J.

at 1, is not persuasive.       Those cases involved abuse and neglect

findings.    The court did not have to find that Kim and Sam's drug

use actually harmed Laura to maintain her custody with Marge; Sam

was not able to maintain sobriety and Kim did not accept the need

for treatment.     There also was testimony that Kim's comments to

Laura were inappropriate.      She did not offer emotional support to

Laura; Marge did.       The court found that Marge was trying to

emotionally protect the child.       The parties had been before the

court for twenty months with little or no improvement and with the

parties having failed to cooperate with or complete services.             It

was not error on these facts to terminate the litigation with

Laura in Marge's physical custody. Marge was the only option for

Laura at the time.     We have no difficulty deferring to the factual

and legal conclusions of the Family Part judge who terminated the

Title 30 litigation and ordered that Laura's physical custody

remain with Marge with the parties sharing joint legal custody.

     We   also   are   not   persuaded   by   Kim's   arguments   that   the

procedures followed were deficient under I.S., or violated due

process under N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J.

                                   14                              A-5112-15T1
382, 387-88 (2009), a Title 9 case in which the Court held that

an "offending parent is entitled to a dispositional hearing to

determine when the children may safely return to her custody

. . . ."    "Title 30 does not discuss dispositional hearings, as

delineated in Title 9." N.J. Div. of Youth & Family Servs. v.

J.D., 
417 N.J. Super. 1, 23 (App. Div. 2010). Rather, "the [c]ourt

. . . may proceed to hear the matter in a summary manner and if

satisfied that the best interests of the child so require may

issue an order as requested." Ibid.

      I.S., 
214 N.J. at 1, involved a combined Title 30 and

matrimonial case which was not the factual circumstance here.

Although the trial court in I.S. did analyze the custody factors

under 
N.J.S.A. 9:2-4, I.S. did not hold that analysis of these

factors is required in a Title 30 action involving out of home

placement   of    a    child.   Certainly,     their   consideration      may    be

warranted   where       applicable    in     determining     the    child's    best

interest,   but       the   dispute   does   not   involve    two    parents    and

therefore, may require consideration of facts different from the

enumerated list.

      Kim contends the hearing was procedurally flawed.                 However,

none of the parties objected to the entry in evidence of the

Division's report.          See R. 5:12-4(d); In re Cope, 
106 N.J. Super.
 336, 344 (App. Div. 1969).             There also was testimony by Marge

                                       15                                 A-5112-15T1
about the child and the effect on her of visitation. Kim testified

to rebut the report.      The court made credibility determinations

based   on   the   testimony.   Although   it   might   also   have   been

preferable to hear testimony from the Division's caseworker, we

cannot say, as Kim contends, that the court's findings lacked

support in the record, required the testimony of an expert or

deprived her of due process.

     Affirmed.




                                  16                             A-5112-15T1