DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.E.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5334-15T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

T.E.,

Defendant-Appellant,

and

V.S.,

Defendant.
_____________________________

IN THE MATTER OF C.B.,

Minor.
_____________________________

Argued December 4, 2017 – Decided January 24, 2018

Before Judges Sabatino and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FN-05-0082-15.

Janet A. Allegro, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Janet A. Allegro,
on the briefs).

Tara K. Catanese, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Tara K. Catanese, on the brief).

Olivia Belfatto Crisp, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Olivia Belfatto Crisp, on the
brief).

PER CURIAM

Defendant T.E. (Theresa)1 appeals from two orders of the trial

court: (1) granting joint legal and physical custody of her son,

C.B. (Carl), to his biological father, V.S. (Victor), and a

resource family, K.D. (Kate) and her husband (collectively the

resource family), and (2) terminating the litigation under the FN

docket. For the reasons that follow, we reverse and remand.

We discern the following facts from the record on appeal.

Carl was born to Victor and Theresa in December 2013. When the

Division of Child Protection and Permanency (Division) became

involved, Victor and Theresa were not romantically involved, did

not live together, and lacked a formal custody arrangement for

1
We use pseudonyms to protect the identity of the parties and to
allow for ease of reference. By doing so, we mean no disrespect
to the parties.

2 A-5334-15T
4 Carl. On November 6, 2014, after the police responded to Theresa's

house and arrested her for drug charges, they found evidence that

Carl had recently been present in the home around drug activity,

and notified the Division.

Theresa and Victor signed a safety protection plan (SPP),

which required Theresa to be supervised by Victor whenever she

spent time with Carl. Soon after, Victor submitted a sample for

a drug screening, which returned as clean; Theresa also submitted

a sample, which tested positive for marijuana and opiates.

Additional Recovery Systems (ARS) reported to the Division that

Theresa was discharged from its program twice due to non-

compliance, including the continued use of drugs, and was not

welcome back.

In November and December 2014, Theresa missed two scheduled

substance abuse evaluations. From December 13 through December

19, 2014, Victor attended an ARS inpatient treatment program in

Florida, while Carl remained in New Jersey under the supervision

of Victor's father.

In early January 2015, the Division received a call from a

detox center in Texas, where Theresa had entered and then checked

out, against medical advice, to return to New Jersey. Shortly

thereafter, the Division confirmed Theresa returned to New Jersey.

Theresa repeatedly declined services offered by the Division,

3 A-5334-15T4
including a substance abuse program, stating she wanted to try to

get clean on her own.

Later that month, Theresa attended a substance abuse

evaluation and was referred to a treatment program to begin in

February 2015. That same month, the Division received reports

that Victor was using drugs. He submitted two drug screenings;

one returned negative and the other was being sent out for "further

testing." Due to these concerns, the Division implemented another

SPP, signed by Victor and his father, requiring Victor to be

supervised when with Carl. Victor attended a substance abuse

treatment program, and was scheduled to attend an intensive

outpatient program (IOP) four times a week.

On February 2, 2015, the Division filed a complaint for care

and supervision of Carl with restraints. When the parties appeared

before the trial court, the judge ordered Theresa to complete an

IOP, attend a psychological evaluation, and submit to random drug

screenings. The judge also ordered Victor to attend a

psychological evaluation, submit to random drug screenings, comply

with substance abuse treatment recommendations, enroll in a

twelve-step program, attend ninety meetings in ninety days, find

a sponsor, obtain a group home, and comply with all

recommendations. Both Theresa and Victor consented to these

services.

4 A-5334-15T4
On March 11, 2015, the parties appeared in court and reported

they were currently seeking inpatient treatment to address their

substance abuse issues. The parties agreed the Division would

take custody of Carl, and Kate, would serve as the resource home

and a supervisor for any parental visitation. The order setting

forth Carl's placement stated there would be no change, absent

exigent circumstances, without consent of counsel or court

approval.

In April 2015, the parties entered into knowing and voluntary

stipulations, accepted by the court, under
N.J.S.A. 30:4C-12, that

they were a family in need of services. Victor testified he had

completed thirty-one days in an inpatient program in Florida, and

since being back, he attends IOP three times a week and meetings

on days when there is no IOP. Theresa testified she had completed

a substance abuse evaluation, an inpatient detox program for seven

days, and now attends an IOP program.

On November 4, 2015, the parties appeared in court, and the

Division opposed an application by Theresa for unsupervised

visitation with Carl, arguing that although she had recently

started attending a substance abuse treatment center, she had

tested positive throughout October. The Division indicated that

if her time at the treatment center went well, it would consider

a recommendation to expand her visitation. However, the Division

5 A-5334-15T4
stated it was ready to expand Victor's visitation to include one

night of overnight unsupervised visitation and represented it was

pursuing reunification with Victor.

On February 10, 2016, the Division requested and received an

extension on the deadline to file for termination of parental

rights, because Victor had completed services but was not

financially ready to have full custody; both the resource family

and Theresa agreed to the extension. Theresa had not been

compliant with her IOP, relapsed, and refused drug screenings in

January, so she was again denied expanded visitation. Theresa

returned positive drug screenings in March and April 2016.

On June 29, 2016, the parties met for a final permanency

hearing. The Division declined to maintain custody and requested

custody be shared under an arrangement between Victor and the

resource family, where Carl's primary residence would be with the

resource family, Victor would have unsupervised visitation time,

and Theresa would have supervised visitation time. Further, the

Division requested the court terminate the litigation, and direct

that all future matters be referred to the FD docket. At that

time, Victor had been sober and submitted clean screenings for a

year, had completed all other services, and had physical custody

of Carl four days a week. Although Theresa was compliant with

services at that time, the Division was not ready to recommend

6 A-5334-15T4
unsupervised visitation. However, she could "continue services

and make an application in the future when it's appropriate to

seek some unsupervised visitation."

That same date, the judge issued his decision terminating the

litigation and transferring custody to Victor and the resource

family. He declined to hold an evidentiary hearing, as requested

by Theresa, stating he was not taking away any of her rights, and

she could pursue remedies under the FD docket. Further, since

Victor was an appropriate caretaker, and Theresa was not, there

was no point in continuing the litigation.

The resulting order granted joint custody to Victor and the

resource family, and stated that, while Theresa had recently been

compliant with services, it was not and would not be safe to return

Carl to her in the foreseeable future because of positive drug

screenings in January and March. A separate order terminating the

FN litigation indicated that joint legal/physical custody was

transferred to Victor and the resource family, with Victor as the

parent of primary residence. Theresa was granted supervised

visitation2 as arranged with the resource family.

This appeal followed.

II.

2 On January 26, 2017, Theresa received unsupervised visitation
with Carl three times a week.

7 A-5334-15T4
On appeal, Theresa argues the trial court violated her due

process rights by terminating her legal and physical custody rights

to Carl without an evidentiary hearing, specifically a

dispositional hearing under N.J. Div. of Youth & Family Servs. v.

G.M.,
198 N.J. 382 (2009).

Ordinarily, "because of the family courts' special

jurisdiction and expertise in family matters, appellate courts

. . . accord deference to family court fact-finding." Cesare v.

Cesare,
154 N.J. 394, 413 (1998). However, "when no hearing takes

place, no evidence is admitted, and no findings of fact are made,

different principles apply. On those rare occasions, appellate

courts need not afford deference to the conclusions of the trial

court." G.M.,
198 N.J. at 396. In such a case, we conduct a de

novo review of the record. N.J. Div. of Child Prot. & Permanency

v. S.W.,
448 N.J. Super. 180, 189 (App. Div. 2017); D.W. v. R.W.,

212 N.J. 232, 245-46 (2012).

Parents have a constitutionally protected right to maintain

a relationship with their children. N.J. Div. of Youth & Family

Servs. v. M.M.,
189 N.J. 261, 279 (2007) (citing In re Guardianship

of K.H.O.,
161 N.J. 337, 346 (1999)). Those rights are

fundamentally important, though not absolute, and "must be

balanced against the State's parens patriae responsibility to

protect the welfare of children." N.J. Div. of Youth & Family

8 A-5334-15T4
Servs. v. G.L.,
191 N.J. 596, 605 (2007) (citation omitted). In

balancing those competing concerns, a court must ensure that the

statutory and constitutional rights of the parent or guardian are

carefully protected. In re Guardianship of J.C.,
129 N.J. 1, 10

(1992). "[T]he court's authority to remove children from the

custody of their parents must be exercised with scrupulous

adherence to procedural safeguards." N.J. Div. of Youth & Family

Servs. v. J.Y.,
352 N.J. Super. 245, 261 (App. Div. 2002).

In G.M., our Supreme Court mandated that, following a finding

of abuse and neglect under Title 9, "[a] dispositional hearing

must be held to determine the appropriate outcome of the case."

198 N.J. at 399.

Here, the court made no findings of abuse or neglect under

Title 9. Instead, Theresa and Victor stipulated under Title 30

to being a family in need of services. These stipulations are not

a substitute for an abuse and neglect proceeding. J.C.,
423 N.J.

Super. at 267.

In Division of Youth & Family Services v. I.S., the Supreme

Court clarified a Family Court judge conducting an abuse and

neglect fact-finding hearing may, without a finding of abuse or

neglect under Title 9, enter an order continuing the Division's

care custody and supervision of a child under Title 30 based on a

determination that the court's continued assistance is required

9 A-5334-15T4
if appropriate procedural due process is satisfied and the

requisite evidentiary standards of each statutory scheme are met.

214 N.J. 8, 36-37 (2013). Here, neither such standards outlined

under Title 9 nor Title 30 were satisfied.

We have said the requirement for hearings under G.M. may be

applied to proceedings involving stipulations under Title 30. See

N.J. Div. of Youth & Family Servs. v. N.D. (In re T.W.),
417 N.J.

Super. 96 (App. Div. 2010); see also I.S.,
214 N.J. at 8.

In N.D., a child was removed from his mother under Title 9,

and at the fact-finding hearing, the mother entered into a Title

30 stipulation.
417 N.J. Super. at 101-02. At a permanency

hearing, the court declined to allow the mother to "retry the

removal," stating she had stipulated to child welfare concerns and

to the court's jurisdiction. Id. at 107. After various

presentations of testimony, the court considered whether the child

could be safely returned to the mother's custody and awarded

custody to the father. Id. at 108.

We reversed and remanded, finding the Title 30 stipulation

"was not an adequate substitute for a Title 9 fact-finding hearing

or sufficient to permit entry of a Title 9 order of disposition."

Id. at 110. Thus, "without a finding or stipulation of abuse or

neglect, the judge had no authority to enter any order of

disposition under Title 9." Ibid. Even if the court had made

10 A-5334-15T
4 Title 9 findings, a G.M. hearing would have been required before

placing the child "outside the home of the parent who had custody

at the time of removal . . . ." Id. at 110-11 (quoting G.M.,
198 N.J. at 402).

Here, there were no evidentiary hearings conducted as

mandated by G.M. Instead, after hearing the unsworn legal and

factual arguments from the attorneys and the parties, the judge

ordered both legal and physical custody transferred from the

Division to Victor and the resource family.

The Law Guardian urges us to find that the trial judge

intended to maintain joint legal custody with Theresa, and only

granted joint physical custody to Victor and the resource family.

The Law Guardian asserts the trial court was unambiguous in the

custodial status in its oral opinion, and thus the language of the

order was merely a clerical error.

However, there was nothing unambiguous about the language of

the judge's oral opinion regarding the custodial status of the

parties. He stated "what we're talking about, is whether today

is an appropriate end to the case with [the resource family]

sharing custody with [Victor]." In the end, the result was "a

joint custody order between [Victor] and the caretakers who've

taken care of [Carl] for some 15 or 16 months." Furthermore, the

court advised Theresa to pursue remedies under the FD docket.

11 A-5334-15T4
The orders, meanwhile, explicitly grant joint legal/physical

custody to Victor and the resource family, with Victor as the

parent of primary residence. The oral statements, when paired

with the very clear language of the orders, deprived Theresa of

joint custody rights. She was granted only visitation.

Possibly, this transfer of custody without the benefit of a

trial or evidentiary hearing was not the result intended by the

trial court, and if so, the court must clarify the custodial status

of the parties involved. However, if the removal of Theresa's

custodial rights was the intended effect, the court must then

conduct a full G.M. hearing to determine whether the child cannot

be safely returned to her care.

III.

Theresa further argues the trial court erred by relying on

the unsworn statements of the attorneys, the parties, and the

resource parents in coming to its decision. We agree.

Appellate review of evidentiary rulings of a trial judge are

ordinarily under the abuse of discretion standard. "Traditional

rules of appellate review require substantial deference to a trial

court's evidentiary rulings." Benevenga v. Digregorio,
325 N.J.

Super. 27, 32 (App. Div. 1999) (quoting State v. Morton,
155 N.J.
383, 453 (1998)). "Absent a manifest denial of justice, we do not

disturb a trial judge's reasoned exercise of his or her broad

12 A-5334-15T4
discretion when making relevance and admissibility

determinations." N.J. Div. of Youth & Family Servs. v. N.S.,
412 N.J. Super. 593, 622 (App. Div. 2010) (citation omitted).

"However, the trial judge has the ultimate responsibility of

conducting adjudicative proceedings in a manner that complies with

required formality in the taking of evidence and the rendering of

findings." J.Y.,
352 N.J. Super. at 264. Ultimately, when an

evidentiary decision is made without a valid foundation, the trial

court's actions constitute an abuse of discretion. See Estate of

Hanges v. Metro. Prop. & Cas. Ins. Co.,
202 N.J. 369, 374 (2010).

In the fact-finding and dispositional hearings required by

Title 9, the conclusions of the trial court must be based on

"material and relevant evidence," and all "witnesses should be

under oath and subject to cross-examination." G.M.,
198 N.J. at
401 (citing
N.J.S.A. 9:6-8.46(b) and (c)). In Title 30 hearings,

"the Division must provide sufficient competent and credible

evidence to satisfy the court." N.J. Div. of Youth & Family Servs.

v. T.S.,
426 N.J. Super. 54, 65 (App. Div. 2012) (citation

omitted).

Judicial findings based on unspecified
allegations, hearsay statements, unidentified
documents and unsworn colloquy from attorneys
and other participants erodes the foundation
of the twin pillars upon which the statute
rests: (1) that no child should be exposed to
the dangers of abuse or neglect at the hands

13 A-5334-15T4
of their parent or guardian; and,
commensurately, (2) that no parent should lose
custody of his/her child without just cause.

[J.Y.,
352 N.J. Super. at 265.]

At the permanency hearing, there were no sworn witnesses, the

attorneys made factual representations which were accepted by the

court in lieu of sworn testimony, and the resource family addressed

the court without being sworn in or subject to cross examination.

Furthermore, the court report was admitted at the last minute,

without any established foundation, and over counsel's objection.

Under N.J.R.E. 902(a) "[a] document purporting to bear a signature

affixed in an official capacity by an officer or employee of the

State of New Jersey or of a political subdivision, department,

office, or agency thereof" does not require extrinsic evidence to

establish its authenticity. It may be that this report qualifies

as a business record exception to the general prohibition on

hearsay evidence, N.J.R.E. 803(6). However, the court did not

hear arguments on this issue and made no findings of fact or law

concerning the evidentiary status of this document; it merely

accepted the report into evidence, over the objection of counsel.

Taken together, the procedures followed and evidentiary decisions

of the trial court are not entitled to our deference.

Reversed and remanded. On remand, the court should clarify

the custodial status of Theresa and Victor regarding Carl within

14 A-5334-15T4
forty-five days. If the effect of the court's decision is to

deprive Theresa of joint legal custody, a G.M. hearing must be

conducted to determine whether or not the child may be safely

returned to her custody, upon which only relevant and material

evidence may be considered. We do not retain jurisdiction.

15 A-5334-15T4

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