NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.V.

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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0777-17T3
                                                                     A-2184-17T3

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

          Plaintiff-Respondent,

v.

D.V.,

          Defendant-Appellant,

and

A.W.,

          Defendant.


IN THE MATTER OF C.V.,

          a Minor.


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,
v.

S.H.,

        Defendant,

and

A.A.,

        Defendant-Appellant.


IN THE MATTER OF Y.A.,

        a Minor.


             Argued December 5, 2018 – Decided January 11, 2019

             Before Judges Alvarez, Reisner and Mawla.

             On appeal from Superior Court of New Jersey,
             Chancery Division, Family Part, Bergen County,
             Docket Nos. FN-02-0213-16 and FN-02-0079-17.

             Clara S. Licata, Designated Counsel, argued the cause
             for appellants (Joseph E. Krakora, Public Defender,
             attorney; Clara S. Licata, on the briefs).

             Peter D. Alvino, Deputy Attorney General, argued the
             cause for respondents (Gurbir S. Grewal, Attorney
             General, attorney; Jason W. Rockwell, Assistant
             Attorney General, of counsel; Peter D. Alvino, on the
             brief in A-0777-17; Victoria Kryzsiak, Deputy
             Attorney General, on the brief in A-2184-17).



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            Nancy P. Fratz, Assistant Deputy Public Defender,
            argued the cause for minors (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Nancy P. Fratz, on
            the briefs).

PER CURIAM

      In these consolidated cases, defendants A.A. and D.V. appeal from Family

Part orders permitting the Division of Child Protection and Permanency

(Division) to withdraw its Title 9 complaint, based on the Division's

administrative finding that the charges against each defendant were

"established" rather than "substantiated." See N.J.A.C. 3A:10-7.3(c). In each

appeal, defendant argues that the Family Part should have held a fact finding

hearing at which defendant could contest the established finding. In both cases,

the Family Part judge reasoned that a defendant was not entitled to an

evidentiary hearing to contest an established finding.

      We affirm the orders on appeal. 1      However, the Family Part orders

predated our opinion holding that a defendant is entitled to an administrative

hearing to contest an established finding.     See N.J. Div. of Child Prot. &

Permanency v. V.E.,  448 N.J. Super. 374 (App. Div. 2017). In the interests of

justice, we deem each defendant's notice of appeal amended to include the


1
   In A.A.'s case, the order is dated December 8, 2016. In D.V.'s case, the order
is dated August 25, 2016.
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Division's established finding and we summarily remand both matters to the

Division with direction to promptly afford each defendant an administrative

hearing.

      V.E. makes clear that a defendant is entitled to an administrative hearing

to contest an established finding, and that the Family Part need not keep the Title

9 case open solely to permit a defendant to contest an established finding. Id.

at 403-04. On this appeal, defendants raise a plethora of arguments supporting

an asserted right to a fact finding hearing in the Family Part. Among other

things, they contend that an administrative hearing is an inadequate remedy,

because a defendant is not entitled to court-appointed counsel at an

administrative hearing. The Law Guardian also contends that the trial judge

should conduct a fact finding hearing, so that the child's interest can be

represented by the Law Guardian in that hearing. Neither defendants nor the

Law Guardian raised those issues in the trial court, and we decline to address

them for the first time on this appeal. 2 See N.J. Div. of Youth & Family Servs.

v. M.C. III,  201 N.J. 328, 339 (2010).




2
  In D.V.'s case, the Law Guardian told the trial judge that "the Law Guardian
doesn't take a position [on the fact finding hearing]. It doesn't impact this child."
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      In fact, with respect to the appeals from the Family Part orders, we

conclude that in both of these cases, the issue is moot, because the Title 9 and

Title 30 complaints have been dismissed. Moreover, defendants and the Law

Guardian are asking this court to address issues they could have raised in the

trial court. Specifically, in A.A.'s case, the trial court denied his request for a

fact finding hearing on December 8, 2016. V.E. was decided on February 1,

2017. Thereafter, between April 4, 2017 and December 7, 2017, the trial court

conducted four hearings in A.A.'s case. If A.A. or the Law Guardian believed

that an administrative hearing would be inadequate to protect his ability to

contest the established finding, they had multiple opportunities to ask the trial

court to revisit the issue and hold a fact finding hearing. They did not. Likewise

in D.V.'s case, there were three Family Part hearings after V.E. was decided, but

D.V. and the Law Guardian did not ask the Family Part judge to revisit her prior

ruling.

      As significantly, nothing in the facts of either case suggests that holding

a fact finding hearing, when the Division withdrew the Title 9 complaint, would

have changed the outcome of the remaining Title 30 complaint for care and

supervision. See  N.J.S.A. 30:4C-12. In each of these cases, the defendant parent

temporarily lost custody of a child due to unfitness, and the child was placed in


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the sole physical custody of the other parent. When the Division withdrew its

Title 9 complaints, neither defendant had recovered sufficiently to warrant

regaining physical custody of the child.

      While A.A. denied that he caused his son to be abused or neglected, he

did not deny the underlying facts that were essential to the Title 30 supervision

case. A.A. did not deny that he collapsed from a heroin overdose at home, in

front of the son, although he contended that the child was not endangered

because the mother was present. A.A. did not deny that he kept heroin and drug

paraphernalia in the house, but he denied that it was readily within the child's

reach. Most importantly, however, A.A. did not deny that he was addicted to

heroin, crack and Suboxone, and his addiction rendered him unable to safely

care for his son without supervision. Fortunately, by the end of the Title 30

case, A.A. had successfully engaged in treatment for his drug addiction and

depression, he was able to return home, and the trial court dismissed the Title

30 complaint. Sending A.A.'s case back to the trial court to hold a fact finding

hearing now would not change the result.

      In D.V.'s case, the child was placed in the father's custody, due to D.V.'s

persistent issues with substance abuse. Although D.V. was also accused of

committing domestic violence against her mother, those incidents only affected


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whether the mother could supervise D.V.'s visits with the child. While D.V.

asked for a fact finding hearing, she did not contest that her substance abuse

issues made her unable to safely parent the child. In fact, at a subsequent hearing

on March 24, 2017, her attorney told the judge "we understand why [the child]

needed to be removed and my client's not debating that." Counsel also stated

that defendant "has just recently started . . . to get her life back in order."

      In summary, we find no abuse of the trial judge's discretion in permitting

the Division to withdraw its Title 9 complaints without a fact finding hearing .

However, the trial judge did not have the benefit of our decision in V.E. at the

time the orders on appeal were entered. While we affirm both of those orders,

in the interests of justice we deem the notice of appeal in each case to be

amended to include the Division's established finding. We summarily remand

both cases to the Division with direction to give each defendant the

administrative hearing required by V.E. The Division shall transmit each case

to the Office of Administrative Law within two weeks of the date of this opinion.

      Affirmed as to the Family Part. Remanded as to the Division of Child

Protection and Permanency.




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