NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Y.M., and H.M

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0527-18T3
A-0529-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

Y.M., and H.M.,

Defendants-Appellants/
Cross-Respondents.
______________________________

IN THE MATTER OF HE.M.,
HEN.M., and S.M., minors,

Respondents/Cross-Appellants.
_______________________________

Argued February 11, 2020 – Decided May 4, 2020

Before Judges Hoffman, Currier and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FN-16-0196-18.
Clara S. Licata, Designated Counsel, argued the cause
for appellant/cross-respondent Y.M. (Joseph E.
Krakora, Public Defender, attorney; Clara S. Licata, on
the briefs).

Jawanza Phoenix, Assistant Deputy Public Defender,
argued the cause for appellant/cross-respondent H.M.
(Joseph E. Krakora, Public Defender, attorney;
Jawanza Phoenix, of counsel and on the briefs).

Nancy P. Fratz, Assistant Deputy Public Defender,
argued the cause for respondents/cross-appellants
He.M., Hen.M., and S.M. (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Nancy P. Fratz, of
counsel and on the brief).

Yedelka R. Felipe, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Donna Arons, Assistant Attorney
General, of counsel; Yedelka R. Felipe, on the brief).

PER CURIAM

Defendants Y.M. (Yvette) and H.M. (Harold) appeal from a September

20, 2018 Family Part order permitting the Division of Child Protection and

Permanency (the Division) to voluntarily dismiss its Title 9 action against them,

before holding a fact finding hearing. 1 We listed their appeals back-to-back, and

consolidate their appeals for purposes of this opinion.

1
We use initials and pseudonyms when referring to defendants and their
children, pursuant to Rule 1:38-3(d)(12).
A-0527-18T3
2
Defendants argue the Family Part committed reversible error by granting

the Division's motion to dismiss, leaving defendants with only an administrative

avenue to contest the agency's internal substantiation of them for abuse and

neglect. After initially supporting the dismissal motion in the trial court, the

Law Guardian sought leave to appeal the dismissal order as within time, which

we granted. On appeal, the Law Guardian contends the trial court's dismissal of

the Title 9 proceedings, before a fact finding hearing, constituted plain error.

We affirm.

The Division's involvement with defendants began on the afternoon of

March 5, 2018, when it received a referral reporting the arrest of both defendants

for possession of a controlled dangerous substance with the intent to distribute.

Earlier that day, defendants were traveling in their Jeep Cherokee in Paramus

with their fourteen-month-old daughter (Susan), when police discovered 115

bricks of heroin in a concealed compartment in their vehicle, following a routine

traffic stop.2 Police also charged defendants with endangering the welfare of a

child. Upon receiving the report, the Division immediately removed Susan, as

2
When interviewed later that day, Harold told a Division case worker he
purchased the car in New York from a random person, who was advertising it
for sale with a sign in the window, approximately two to three months earlier.
A-0527-18T3
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well as defendants' two other children – five- and seventeen-year-old sons, who

had been at school and work, respectively. The Division placed the two younger

children with a family friend and the oldest with a cousin.

The next day, the Division filed a complaint for care, custody, and

supervision of the children. At a hearing two days later, defendants denied

illegal drug use or participation in any other criminal activity, explaining they

bought their vehicle just a few months earlier and lacked any knowledge of

narcotics hidden inside. The Division sought custody of the children pending

further investigation, particularly urine and follicle testing, that could reveal

whether defendants had used or handled illicit substances in the recent past.

Defendants objected to the removal of the children, maintaining their children

were safe in their care; nevertheless, they agreed to cooperate with the Division's

investigation. The court concluded the quantity of drugs found in defendants'

possession warranted the removal of their children and granted the Division's

request for custody, notwithstanding defendants' lack of prior criminal history

or Division involvement.

Both defendants submitted to court-ordered urine and hair follicle testing.

While their urine and Yvette's follicle sample all tested negative for any illegal

substances, Harold's hair and nails were, at the time, too short to yield an

A-0527-18T3
4
adequate sample. Based on these test results, on March 26, 2018, the court

ordered the Division to return the children to Yvette, but on the condition that

Harold remain outside the home until the completion of his follicle testing. The

court then scheduled a fact finding hearing for June 18, 2018; however, the court

adjourned the hearing at the Division's request, after it unexpectedly received

additional evidence from the county prosecutor's office. Neither defense

counsel nor the Law Guardian objected to the adjournment.

When the matter returned for the rescheduled fact finding hearing on

September 20, 2018, the Division orally moved for dismissal of its complaint. 3

At that point, the children had been previously returned to Yvette's care, and,

because Harold's follicle testing showed no evidence of contact with illegal

substances, the Division no longer found any need to restrain him from the

family home. The Division further represented that it had no remaining concerns

for the children's safety, and that the family required no further services. The

Division acknowledged that its internal investigation had determined that the

allegations of abuse and neglect at issue in this Title 9 matter were

3
Before the hearing, the Division submitted its court report dated September
13, 2018, advising of its intention to recommend dismissal of the case.

A-0527-18T3
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substantiated,4 but emphasized that defendants maintained the right to contest

that substantiation in a hearing before the Office of Administrative Law (OAL).

The Law Guardian did not oppose dismissal, noting that the "children are

doing very well[,] with the parents providing . . . wonderful care . . . ." However,

both defense counsel did object, but solely on the ground that dismissal would

result in defendants losing their entitlement to continued representation by the

Public Defender to pursue their administrative appeal.

Relying on our decision in New Jersey Division of Child Protection and

Permanency v. V.E., 448 N.J. Super. 374, 402-04 (App. Div. 2017), 5 the court

found defendants' administrative avenue for relief sufficient to satisfy the

demands of due process, notwithstanding their loss of continued representation

by the Public Defender before the AOL; in addition, because the court found the

4
The Division substantiated defendants for neglect based upon their
transportation of their fourteen-month-old daughter in a vehicle found to contain
115 bricks of heroin in a hidden compartment.
5
In V.E., this court held that considerations of due process and fundamental
fairness did not entitle a parent to a hearing before the Superior Court to
challenge allegations or investigatory findings of abuse and neglect. Rather, we
found that "plenary administrative review" afforded an opportunity to challenge
the investigatory finding and would adequately safeguard the parent's due
process and provide fundamental fairness. Id. at 402-03. We therefore
concluded that the trial court's dismissal of a Title 9 action prior to a fact finding
hearing did not amount to an abuse of discretion. Id. at 403-04.
A-0527-18T3
6
children's safety no longer remained in question, it concluded that dismissal of

the Title 9 action was warranted. As a result, the court entered an order

dismissing the action and removing the remaining restraint against Harold.

Each defendant appealed from the dismissal order and the Law Guardian

filed a cross-appeal. Harold argued the trial court erred by following V.E. and

violating his right to a fact finding hearing. Yvette maintained that she would

suffer prejudice by the lack of guaranteed counsel in the administrative

proceeding, now explicitly characterizing it as a deprivation of due process. In

addition, she also raised, for the first time on appeal, arguments concerning Rule

4:37-1(b), the entire controversy doctrine, Title 9 jurisdiction, and

Constitutional fundamental fairness.

In addition to filing a cross-appeal challenging the dismissal of the Title

9 proceedings, the Law Guardian unsuccessfully moved before this court ,

seeking a remand for a fact finding trial. The Law Guardian raised substantially

the same arguments as defendants, but further argued that the dismissal will

deprive defendants' children of any participation in the administrative

proceeding, not only guaranteed representation. According to the Law

Guardian, "In the OAL, children lack notification, representation, and

participation."

A-0527-18T3
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After defendants filed their initial briefs on appeal, this court decided the

case of N.J. Dep't of Children & Families v. L.O., 460 N.J. Super. 1, 18 (App.

Div. 2019), where we addressed the issue of whether an indigent mother –

substantiated for child abuse – had the right to the appointment of counsel at the

administrative level and in any appeal of right. Answering the question in the

affirmative, we held, "[I]ndigent litigants are entitled to the appointment of

counsel when faced with a Division declaration that its investigation has

substantiated that litigant for child abuse or neglect." Ibid. We further held

"that free transcripts must also be provided." Id. at 20.

While "conced[ing] that the L.O. case weakens . . . his right to counsel

argument[,]" Harold maintains it does not defeat it. Because L.O. directs

Administrative Law Judges to utilize the Madden6 list to secure counsel for

indigent litigants who challenge substantiations for child abuse or neglect, id. at

20, Harold contends that "an attorney obtained from the Madden list will not

have the same expertise as an OPR7 attorney." Yvette similarly argues "the

process afforded [to] parents challenging" a child abuse or neglect substantiation

in the OAL "is not the same as what the parent[s] would receive in Superior

6
Madden v. Delran, 126 N.J. 591 (1992).
7
Office of Parental Representation.
A-0527-18T3
8
Court, with no right to [OPR] [c]ounsel and an evidentiary standard of review

of mere relevance."

We review the trial court's dismissal of the Division's Title 9 complaint,

prior to a fact finding hearing, for abuse of discretion, pursuant to Rule 4:37-

1(b). N.J. Div. of Child Protection and Permanency v. V.E., 448 N.J. Super.
374, 403 (App. Div. 2017). Our standard of review is deferential:

When reviewing the trial court's exercise of discretion,
we do not "decide whether the trial court took the wisest
course, or even the better course, since to do so would
merely be to substitute our judgment for that of the
lower court[,]" which is an improper course of action.
Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528
(App. Div. 1996) (quoting Gittleman v. Cent. Jersey
Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div.
1967), rev’d on other grounds, 52 N.J. 503 (1968)),
certif. denied, 144 N.J. 174 (1996). We review only
"whether the trial judge pursue[d] a manifestly unjust
course[,]" which requires reversal. Ibid. (quoting
Gittleman, 103 N.J. Super. at 179). We are not,
however, bound by the trial court’s application of the
law, as a "trial court's interpretation of the law and the
legal consequences that flow from established facts are
not entitled to any special deference." Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).

[Burns v. Hoboken Rent Leveling & Stabilization Bd.,
429 N.J. Super. 435, 443 (App. Div. 2013).]

A-0527-18T3
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None of the issues raised on appeal were raised in the trial court.

According to Rule 2:10-2, an appellate court will not reverse an error not

brought to the attention of the trial court unless the appellant shows that it was

"plain error," that is, "error clearly capable of producing an unjust result." R.

2:10-2. We may decline to consider issues not properly presented to the trial

court when an opportunity for such a presentation was available unless we find

the issues 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). Based upon our review of the record and the parties' briefs, we

conclude the issues raised do not involve the jurisdiction of the trial court nor

do they concern matters of great public interest. Nevertheless, we provide the

following comments.

Rule 4:37-1(b) provides that a court can dismiss an action after an answer

has been filed, upon application by the plaintiff. We acknowledge that t he

procedure for voluntary dismissal with leave of court, under Rule 4:37-1(b), is

meant to prevent manipulation of the court's calendar and protect defendants'

rights. Burns, 429 N.J. Super. at 445-46. Consequently, dismissals without

prejudice late in litigation are often disfavored. Shulas v. Estabrook, 385 N.J.

Super. 91, 100-01 (App. Div. 2006). Here, the record reflects no dispute that

A-0527-18T3
10
the Division alerted all counsel of its intention to request dismissal of the Title

9 litigation in its September 13, 2018 court report. Nor does the record reflect

any dispute that all parties had an opportunity to object and were heard by the

court.

While we acknowledge the dismissal was granted in favor of an

administrative proceeding, which had not yet begun, where both defendants

would not have the same counsel, the decision remains a discretionary one.

Burns, 429 N.J. Super. at 446. As the trial court recognized, this court held in

V.E., 448 N.J. Super. at 403-04, that dismissal of a Title 9 action, which

primarily concerns the protection of children rather than their parents'

culpability for abuse or neglect, may be warranted in favor of an administrative

hearing where the safety of the children is no longer in dispute. Indeed, the

statute provides that the court "shall dismiss the complaint" if it "concludes that

its assistance is not required on the record before it." N.J.S.A. 9:6-8.50(c).

While the Division did not file formal motion papers before the hearing,

the Division's court report advised of its intention to recommend dismissal of

the case. We further note that defendants did not object to the lack of a formal

motion in the trial court, and the Law Guardian did not object to the motion at

A-0527-18T3
11
all. In addition, defendants were afforded the opportunity to raise their argument

concerning loss of guaranteed counsel before the court reached its decision.

At the time of the September 20, 2018 hearing, there were no safety

concerns regarding the children, who continued to reside with their mother, both

parents had complied with Division recommended services, and Yvette was

scheduled to complete her drug treatment program that month; in addition, the

Division did not recommend any additional services for either parent. Relying

on V.E., the Division, with the express support of the Law Guardian, requested

the court to permit Harold to return to the family home and to dismiss the

litigation.

Consistent with V.E., the trial court found that the availability of a hearing

in the OAL would serve to adequately protect defendants' due process rights.

Both parents' objection to the dismissal was based solely on the argument that

the Public Defender's Office would not continue to represent them in that forum.

The trial court rejected this argument, declining to find that a hearing before the

OAL "would in any way negate their opportunity [for] a plenary administrative

review."

After expressly supporting the Division’s application for dismissal, the

Law Guardian now argues that the Division failed to file a motion as required

A-0527-18T3
12
by Rule 4:37-1(b). Moreover, the Law Guardian did not simply fail to object,

but joined in the Division’s application for dismissal. This constitutes invited

error. As our Supreme Court has explained, the doctrine of invited error

prevents a litigant from "beseech[ing] and request[ing] the trial court to take a

certain course of action, and upon adoption by the court," condemn the very

procedure requested, "claiming it to be error and prejudicial." Div. of Youth

and Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010).

Contrary to Yvette’s contention that allowing the Division to voluntarily

dismiss Title 9 litigation encourages forum shopping, the statutory and

regulatory framework expressly permits the Division to pursue an abuse or

neglect finding administratively, judicially, or concurrently. V.E., 448 N.J.

Super. at 387 (citing Div. of Youth and Family Servs. v. D.F., 377 N.J. Super.
59, 64 (App. Div. 2005)). We agree with the Division that,

Far from being improper, this flexible approach is
consistent with the purpose of the Title [9] litigation –
to protect children and/or ensure that any necessary
services are implemented for the parents and the
children involved. And, to the extent a party in any
particular case could demonstrate to the trial court that
the dismissal was improper and inconsistent with the
purposes of Title [9], that court could exercise the
discretion afforded under Rule 4:37-1(b) and refuse to
dismiss the Title [9] claims.

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Here the trial court properly exercised its discretion in dismissing the

protective services litigation as legal custody of the children had been returned

to Yvette and Harold, who had complied with the services recommended by the

Division, and no safety concerns remained. Dismissal of an action that no longer

sought relief did not constitute an abuse of discretion. In addition, refusal to

dismiss the matter would not serve judicial economy. The Superior Court can

only determine whether abuse or neglect occurred. If it made such a finding,

the parents would then be entitled to an OAL hearing to determine if the finding

of abuse should have been deemed "established" rather than "substantiated."

N.J.A.C. 3A:10-7.3(i). Dismissal of the Superior Court matter, as in this matter,

results in one evidentiary hearing rather than two.

We reject defendants' argument that relaxation of the rules of evidence in

administrative hearings deprives them of due process. We agree with the

Division that the "OAL's standard for the introduction of evidence, requiring

mere relevance, [N.J.A.C. 1:1-15.1(c)], places the parties on equal footing,

particularly if the parents choose to represent themselves, and are unfamiliar

with the many evidentiary rules applicable in Superior Court." In addition, we

note that, "Notwithstanding the admissibility of hearsay evidence, some legally

competent evidence must exist to support each ultimate finding of fact to an

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extent sufficient to provide assurances of reliability and to avoid the fact or

appearance of arbitrariness." N.J.A.C. 1:1-15.5(a).

Neither defendants nor the Law Guardian provide any convincing

arguments for this court to find that they are entitled to an evidentiary hearing

in Superior Court in this case. As noted by the Division, "Dismissal of the

protective services litigation left Yvette and Harold in the same position they

would have been in had litigation never been brought, and any delay in the

administrative proceedings has no appreciable impact on Yvette or Harold and

provides no basis for this court to overturn the precedent established in V.E."

Regarding defendants' children, we find no compelling reason to order

representation for the children in this case. The record contains no suggestion

of any physical abuse of the children nor any suggestion that any child will be

called as a witness in the proceedings before the OAL.

Any arguments not addressed lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-2(e)(1)(E).

Affirmed.

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