Opinion
DOCKET NO. A-3011-14T2 DOCKET NO. A-3489-14T2
04-12-2016
D.S., Plaintiff-Appellant, v. D.B., Defendant-Respondent, and H.S., Defendant. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.B., Defendant-Respondent, and H.S., Defendant. IN THE MATTER OF M.B., Minor.
Shira Katz Scanlon argued the cause for appellant D.S. (Martine & Katz Scanlon, P.A., attorneys; Ms. Scanlon, on the brief). Joseph D. Sams argued the cause for respondent D.B. (Ferguson & Sams, LLP, attorneys; Mr. Sams, on the brief). James Griffin, Jr., Deputy Attorney General, argued the cause for respondent, Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief). David Valentin, Assistant Deputy Public Defender, argued the cause for minor M.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-0205-15 and FN-03-0045-15. Shira Katz Scanlon argued the cause for appellant D.S. (Martine & Katz Scanlon, P.A., attorneys; Ms. Scanlon, on the brief). Joseph D. Sams argued the cause for respondent D.B. (Ferguson & Sams, LLP, attorneys; Mr. Sams, on the brief). James Griffin, Jr., Deputy Attorney General, argued the cause for respondent, Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief). David Valentin, Assistant Deputy Public Defender, argued the cause for minor M.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief). PER CURIAM
In this consolidated appeal, D.S., the maternal grandmother of M.B., appeals an order entered by the Family Part judge denying her motion to intervene in a matter alleging abuse and neglect against M.B.'s parents, H.S. and D.B. (the FN matter), as well as an order denying her application for custody of M.B. (the FD matter). We reverse both orders and remand for further proceedings.
M.B. was born to H.S. and D.B. in 2012. Both parents have a significant history of drug abuse. H.S., the mother, has a history of mental illness. D.B., the father, has a criminal history in New Jersey, including separate convictions for eluding and distribution of a controlled dangerous substance. M.B. currently resides in Florida with D.B. and the paternal grandmother, L.B. There is some suggestion in the record that L.B. may have a history of mental illness and has been the victim of domestic violence. There is also some suggestion in the record that D.B. may have a history of physically abusing H.S.
On August 2, 2014, a Medford police officer and a caseworker for the Division of Child Protection and Permanency (Division) accompanied D.S. to her home, where H.S. was staying with M.B. D.S. was seeking a temporary restraining order against H.S. because H.S. was harassing D.S. and abusing heroin. H.S. was found with heroin in her possession and arrested. D.B. was living with L.B. in Florida at the time, purportedly undergoing treatment for drug and alcohol abuse.
H.S. took M.B. to New Jersey from Florida allegedly because she was the victim of domestic violence by D.B. D.B. claimed it was because she had difficulty finding heroin in Florida.
On August 5, 2014, the Division initiated the FN matter by filing a verified complaint seeking custody and care of M.B. based upon allegations of abuse and neglect. On the same date, a Family Part judge entered an order to show cause granting the Division custody of M.B., directing the Division to submit an Interstate Compact on the Placement of Children (ICPC) request to Florida regarding D.B., and ordering H.S. to appear for psychological evaluations and urine screening. M.B. was placed in the physical custody of D.S., who is now retired and resides in New Jersey.
D.S. initiated the FD matter by filing a complaint for custody of M.B. on August 19, 2014. Similar applications were filed on August 25, 2014 by L.B., as well as J.B. (the paternal grandfather of M.B.) on August 27, 2014.
On August 27, 2014, the judge on the order to show cause in the FN matter held a hearing and continued legal custody of M.B. with the Division and physical custody with D.S. The Division was also ordered to arrange a "home study/interstate referral regarding [D.B.] to be completed by Florida[.]" Case management conferences in the FN matter were held on October 10 and December 15, 2014, which maintained M.B.'s custody and placement status. H.S. was ordered to undergo a psychological evaluation, and both parents were ordered to submit to random drug and alcohol screenings. A fact-finding hearing based on the allegations in the complaint was scheduled for January 15, 2015.
On January 6, 2015, D.S. filed a motion to intervene in the FN matter. Three days later, counsel for D.S. requested that the judge "defer a placement decision" for M.B. until her custody application in the FD matter could be heard on January 27, 2015. The judge scheduled the motion to be heard on February 5, 2015, but declined to postpone the January 15, 2015 hearing.
No testimony was heard at the January 15, 2015 hearing. Instead, the parties stipulated to the entry of the Division's investigation summary as evidence, and counsel made closing arguments. H.S. appeared telephonically from a halfway house in Florida. The record is unclear as to whether D.S. was physically in the courtroom on January 15, 2015, though the judge acknowledged that D.S. "is or could be here." Her counsel at the time was present, but was instructed to leave by the judge before the hearing commenced. The Division did not pursue a case against D.B., but argued that H.S. put M.B. "at a substantial risk of harm" by using heroin and possessing heroin while M.B. was in her care. Following summations and a review of the investigation summary, the judge found that H.S. did not abuse or neglect M.B. and converted the proceedings into a custody hearing.
During the custody portion of the January 15, 2015 proceedings, the Law Guardian, on behalf of M.B., expressed concerns regarding the safety of the Florida home where D.B. lived with L.B., as well as the potential for unsupervised contact between H.S. and M.B. Despite those concerns, the judge returned legal custody of M.B. to D.B. and H.S., and awarded D.B. physical custody in Florida. The judge relied in part upon the testimony of D.B. that he was in drug treatment, as well as representations by the Division that Florida's ICPC office approved L.B's home for custody. The judge described D.S.'s allegations in her motion regarding D.B. as "self-serving[.]" No cross-examination of the parents took place, nor did the Division caseworker present at the hearing testify. No written documentation of D.B.'s completion of drug-treatment or the Florida ICPC's approval of L.B.'s home was provided. The FN matter was then terminated, and the judge "dismissed" the motion to intervene as moot.
D.S.'s custody application in the FD matter was not heard until February 23, 2015, by the same judge who heard the FN matter. D.S., H.S. and D.B. were sworn prior to their testimony. L.B. and J.B. engaged in unsworn colloquies with the judge. Only D.S. was represented by counsel. The Division did not participate in the proceedings.
The judge held that the court lacked jurisdiction because he granted D.B. custody in Florida on January 15, 2015, "just shy of six months from July [27], 2014[,]" which is when M.B. was brought to New Jersey. As a result, the judge concluded that he had no jurisdiction to hear the FD matter pursuant to N.J.S.A. 2A:34-65 (setting forth the requirements for establishing New Jersey courts' jurisdiction to make initial child custody determinations, including the requirement that New Jersey be the "home state of the child within six months before the commencement of the proceeding and the child is absent from this [s]tate but a parent or person acting as a parent continues to live in this [s]tate[.]") and N.J.S.A. 2A:34-54 (defining "[h]ome state" in child custody matters as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding."). These consolidated appeals followed.
D.S. raises the following points on appeal:
POINT I
THE [TRIAL COURT] ERRED IN FAILING TO PERMIT D.S. TO INTERVENE IN THE FN MATTER.
A. D.S IS AN [INDISPENSABLE] PARTY AND SHOULD HAVE BEEN PERMITTED TO INTERVENE, AS SHE CAN DEMONSTRATE THAT SHE IS A PSYCHOLOGICAL PARENT TO M.B.
B. THE [TRIAL COURT] ERRED IN PLACING THE CHILD INTO THE CARE OF D.B. IMMEDIATELY AFTER THE FACT-FINDING HEARING AND BEFORE HEARING D.S.'S MOTION TO INTERVENE.
POINT II
THE COURT BELOW ERRED IN FAILING TO PERMIT D.S. TO PRESENT A STATEMENT TO THE COURT OUTLINING HER POSITIONS CONCERNING M.B.'S BEST INTERESTS AND WELL[-]BEING RELATIVE TO THE FN MATTER.
POINT III
THE [TRIAL COURT] ERRED BY HOLDING THAT NEW JERSEY DID NOT HAVE JURISDICTION TO HEAR D.S.'S CUSTODY APPLICATION STATE[D] UNDER THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT [(UCCJEA)].
A. NEW JERSEY HAS JURISDICTION OVER M.B., BECAUSE NEW JERSEY IS M.B.'S HOME STATE UNDER THE UCCJEA.
1. NEW JERSEY IS M.B.'S HOME STATE IN LIGHT OF HER EXTENDED RESIDENCE HERE PRIOR TO HER RETURN TO FLORIDA WITH HER PARENTS IN OR ABOUT [JANUARY 2014].
2. THE [TRIAL COURT] BELOW ERRED IN FAILING TO CONCLUDE THAT WHEN H.S. AND D.B. RETURNED TO FLORIDA IN [JANUARY 2014], THAT CONSTITUTED A TEMPORARY ABSENCE FROM NEW JERSEY.
3. FLORIDA DOES NOT HAVE JURISDICTION OVER THE CUSTODY MATTER; D.S., M.B., H.S. AND D.B. HAVE SIGNIFICANT CONNECTIONS WITH NEW JERSEY AND SUBSTANTIAL RELEVANT EVIDENCE AS TO M.B. IS AVAILABLE IN NEW JERSEY.
POINT IV
THE [TRIAL COURT] ERRED IN FAILING TO HOLD A PLENARY HEARING ON THE ISSUE OF JURISDICTION UNDER THE UCCJEA AS TO THE FD MATTER.
A. THE [TRIAL COURT] ERRONEOUSLY ACCEPTED TELEPHONIC TESTIMONY OF D.B. AND H.S. WITHOUT THE ABILITY TO MAKE TRUE CREDIBILITY DETERMINATIONS.
B. MATERIAL FACTS WERE IN DISPUTE AS TO THE INTENTIONS OF D.B. AND H.S. CONCERNING THEIR RESIDENCE IN NEW JERSEY.
D.B. opposes the appeal, and the Division opposes the appeal as to the FN matter only. The Law Guardian argues that the judge improperly relinquished the court's responsibility to ensure that M.B. would be safe in the custody of D.B. In particular, the Law Guardian argues that the judge improperly reunified M.B. with D.B. "without any supporting documentation and based mainly upon the unsworn colloquy of counsel and hearsay assertions of [D.B.]."
In reviewing the decision of a family court, we "defer to the factual findings of the trial court[,]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), 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)). "Concomitantly, reviewing courts should defer to the trial court's credibility determinations." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). "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 and Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). 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." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
We first address D.S.'s contention that the judge erred by adjudicating the FN matter before permitting her to intervene. D.S. argues that she was an indispensable party who should have been permitted to participate in the FN proceedings, particularly because she was a psychological parent to M.B. and because she witnessed the behavior of D.B. and H.S. first-hand.
N.J.S.A. 9:6-8.19a states:
In any case in which the [Division] accepts a child in its care or custody, the child's resource family parent or relative providing care for the child, as applicable, shall receive written notice of and an opportunity to be heard at any review or hearing held with respect to the child, but the resource family parent or relative shall not be made a party to the review or hearing solely on the basis of the notice and opportunity to be heard.Rule 5:12-4(i) similarly requires notice to the foster parent or person providing residential care to a minor child of all hearings and other proceedings involving abuse or neglect or protective services. Rule 5:12-4(i) also permits the caregiver "the right to appear at that time to make a statement to the court of his or her views regarding the case and the interests of the child[,]" but states that the caregiver is not a party to the case and "may not be permitted to be present in the courtroom except for purposes of making a statement to the court." In New Jersey Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 594, 599 (App. Div. 2011), we cited N.J.S.A. 9:6-8.19a, N.J.S.A. 30:4C-12.2, and Rule 5:12-4(i) as authority emphasizing the "vital role resource parents play[]" in Title 9 and Title 30 proceedings. Thus, although resource parents do not have a fundamental right to be a party, they do have a right to be heard at those proceedings. D.P., supra, 422 N.J. Super. at 599-600.
Here, while it is unclear if D.S. was physically in the courtroom on January 15, 2015, she had no opportunity to offer a statement or otherwise participate. Her counsel was present, but was ordered by the judge to leave the courtroom. We view counsel's presence and D.S.'s motion to intervene, regardless of its merit, as demonstrative of her intention to be heard in the FN matter. D.S., in her capacity as resource parent, was not permitted to participate in the January 15, 2015 proceedings, as was her right pursuant to N.J.S.A. 9:6-8.19a and Rule 5:12-4(i). Thus, without addressing the merits of the judge's factual and legal findings, we are constrained to reverse the order in the FN matter and remand to permit D.S. to participate in her role as resource parent at the fact-finding hearing. In light of our determination, D.S.'s appellate arguments with respect to her motion to intervene are moot. That motion may be renewed before the Family Part in accord with the applicable process delineated in our court rules.
We next address the manner in which both the January 15 and February 23, 2015 hearings were conducted. In N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002), we cautioned against informal proceedings which "include[] none of the elements ordinarily deemed indispensable to an adjudicative hearing[,]" such as reviewing and considering documents without identification for the record, which violates basic rules of trial practice, R. 1:2-3, and inhibits the appellate process by depriving the appellate court of a complete record on appeal, S.R.H. Corp. v. Rogers Trailer Park, Inc., 54 N.J. 12, 18-19 (1969); permitting attorneys to make material factual representations that are then accepted by the court in lieu of sworn testimony from witnesses; and permitting litigants and other individuals with an interest in the case, such as caretakers, to casually address the court on material issues of fact without being sworn as witnesses or subjected to cross-examination.
Moreover, in Aqua Marine Prods., Inc. v. Pathe Comput. Control Sys. Corp., 229 N.J. Super. 264, 274-75 (App. Div. 1988), we disfavored the use of telephonic testimony except in "special situations in which there is either exigency or consent and in which the witness'[s] identity and credentials are known quantities." Our Supreme Court endorsed the Aqua Marine test in State v. Santos, 210 N.J. 129, 140-43 (2012), and underscored the legal system's centuries-long requirement "that witnesses deliver testimony in person and in open court" and "the factfinder's all-important function of observing the demeanor and evaluating the credibility of each witness that comes before the court." Id. at 138-39.
Here, during the custody portion of the hearing in the FN matter, despite the Law Guardian's expressed concerns, the judge accepted unsworn assertions of counsel (as well as telephonic "testimony" from H.S.), unsupported by documentation, that the Florida home was a safe environment for M.B. No cross-examination of H.S., D.B., or the Division caseworker took place. Given the record of drug abuse by both parents, the allegations of domestic violence in the Florida home, and the allegations of mental illness of H.S. and L.B., we agree with the Law Guardian that there were and are significant concerns about the conditions and safety of the Florida home as the primary residence for M.B. Under the circumstances presented here, we are satisfied that an appropriate determination of custody must abide a plenary hearing in this jurisdiction before a Family Part judge.
Similarly, the judge received and considered testimony from both H.S. and D.B. via telephone in the FD matter. The judge also relied upon unsworn assertions made by counsel and the paternal grandparents during colloquy (with L.B. appearing telephonically). As we noted, the testimony was not corroborated by reliable documentation, and no cross-examination of any of the parties took place. The judge's ruling as to jurisdiction was based upon M.B.'s state of residence — an issue in contest whether it was New Jersey or Florida. His determination was largely based on his acceptance of telephonic testimony on the issue despite that this critical issue was dependent upon a finding of credibility. As with the FN matter, the issues addressed in the FD matter (i.e., jurisdiction and custody) must also abide a plenary hearing in this jurisdiction before a Family Part judge.
It is unclear from the record whether the judge considered the Aqua Marine test in either the FN or FD matters before permitting telephonic testimony from H.S. and D.B. and unsworn telephonic statements from L.B. Should the parties, witnesses, or caregivers seek to appear telephonically in either the FN or FD matters at the remand hearings, the judge should hew to the procedure enunciated in Aqua Marine and Santos.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION