Opinion
DOCKET NO. A-0897-10T1
01-19-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.W., Defendant-Respondent, and S.W. and R.C., Defendants. IN THE MATTER OF K.W., Minor-Appellant.
Randi Mandelbaum, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Mandelbaum, on the brief). Kendra Andrews, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Andrews, on the brief). Rebekah E. Heilman, Designated Counsel, argued the cause for respondent L.W. (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson, and Ostrer.PER CURIAM
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-286-07.
Randi Mandelbaum, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Mandelbaum, on the brief).
Kendra Andrews, Deputy Attorney General, argued the cause for respondent New Jersey
Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Andrews, on the brief).
Rebekah E. Heilman, Designated Counsel, argued the cause for respondent L.W. (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief).
The law guardian appeals from the Family Part order issued by Judge Verna Leath dismissing a Title 30 complaint against L.W., the biological mother of K.W., born September 1, 1988. The law guardian sought a conditional dismissal of the complaint. Judge Leath, who, before dismissing the complaint, had presided over the proceedings for three years, determined there was no basis under Title 30 to impose upon the Division of Youth and Family Services (Division) the obligation to continuously supervise L.W. indefinitely when K.W. was no longer at risk. In addition, because she determined there was no jurisdictional basis to order a conditional dismissal, the judge found there was no reason to postpone the dismissal of the complaint pending resolution of the law guardian's motion filed three days before the dismissal hearing. We affirm.
L.W. is the mother of ten children, Natalie, Stacey, Kelly, Preston, Shannon, K.W., Sean, Jerry, Bryan, and Nathan, whose ages ranged from seven months to twenty-two years old at the time the court dismissed the Title 30 complaint in October 2010. K.W., who is the subject of this appeal, suffers from Partial Tetrasomy 15Q Deletion, a rare chromosomal abnormality that causes multiple medical and developmental issues. He is a nonverbal child who communicates through a combination of hand gestures and limited vocalization. His medical issues include scoliosis, partial hearing loss and difficulty reaching and maintaining a healthy weight.
All of the children's names are fictitious, with the exception of K.W.
In 2003, L.W. separated from K.W.'s biological father, S.W., who was accused of sexually molesting one of L.W.'s older daughters. She returned to Jamaica, her native country, with K.W. and her other minor children. After two and one-half years there, L.W. experienced financial difficulties and lost her apartment. The family moved to the United African Improvement Association ("UAIA"), a children's home and shelter.
In October 2006, L.W. left Jamaica without her children and returned to the United States. She left two of her children, including K.W., in the care of relatives, and the other minor children at the UAIA. Upon her arrival in the United States, she began to renovate a home she owned jointly with her mother, Z.W. L.W. and Z.W. had a strained relationship, although her eldest child, Natalie, resided with Z.W.
On January 9, 2007, L.W. contacted the Division to report that Natalie, at Z.W.'s urging, had returned to Jamaica and was bringing Stacey and Kelly back to the United States. L.W. told the Division that Natalie was removing the children from Jamaica without her consent, she objected to the children residing with Z.W., and she was unable to provide housing for her children at that time. L.W. was at Newark International Airport when Stacey and Kelly, as well as Preston, arrived the next day and a dispute erupted between L.W. and Z.W. Port Authority Police intervened, took the children into custody, and contacted the Division.
On January 12, a Dodd hearing was held with regard to Stacey, Kelly and Preston. Preston was placed in a foster home, and Kelly and Stacey were placed in a homeless youth center. The three children told the Division they had been homeless and living "on the street" in Jamaica for two weeks prior to Natalie retrieving them because their relatives had put them out. L.W., however, reported that the children had run away.
A Dodd hearing follows the filing of an order to show cause after an emergency removal of a child from the home without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, as amended. The legislation was authored by former state senator, Frank J. "Pat" Dodd in 1974.
On January 20, Shannon, K.W., Sean, and Jerry also arrived at Newark International Airport, Natalie having once again returned to Jamaica to remove them without her mother's consent. Following their arrival, Z.W. placed the children with a friend, who resided in a two-bedroom apartment. On January 24, Z.W. contacted the Division, requesting placement of the children in its custody. Learning that Z.W. had left the children to sleep for several days on the floor of her friend's apartment, the Division removed the children.
On January 30, 2007, a second Dodd hearing was held and Shannon, K.W., Sean, and Jerry were added to the open abuse and neglect action. Shannon, Sean, and Jerry were placed in separate foster homes, and K.W. was hospitalized. During this second hearing, the court learned that L.W. had left her children in the care of a children's shelter in Jamaica while she returned to the U.S. to ready their home in Irvington. However, L.W.'s plans for renovation "could not be brought to fruition" at that time. The court ordered weekly therapeutic visitation between L.W. and her seven children. L.W. attended visitation regularly and took an interest in her children's grades and behavior in school.
Although litigation was initiated under an abuse and neglect docket, it was converted to a Title 30 matter on May 7, 2007, after L.W. entered into a stipulation that she was unable to provide adequate housing for her children when they arrived and agreed to surrender her children to the Division's custody until such time as she had adequate housing for all seven children. The stipulation was also entered without any finding of abuse or neglect on her part and provided that the "natural mother agrees that the Division shall make application to International Social Services in order that the Jamaican address that she provides is assessed and approved before custody is returned" and "upon approval by International Social Services of the address presented, the Division is willing to assist [L.W.] and the children to return to Jamaica."
By order dated May 7, 2007, the court amended the complaint from Title 9 to Title 30.
By July 26, 2007, K.W. had been placed at Dooley House,while his siblings remained in foster placement. In October of 2007, the Division recommended that L.W. be evaluated by a psychiatrist and noted that up to that point, the Division had been unable to assess her ability to care for her children as she was residing in Jamaica.
Founded in 1988, Dooley House provides a residence for medically fragile children twenty-four hours a day, 365 days a year. In a homelike atmosphere, on-call physicians, registered nurses and health care assistants provide medical and personal care. http://dooleyhouse.org. (last visited Jan. 06, 2012).
In January 2008, the Division presented Judge Leath with a permanency plan to reunite L.W. with her four youngest children, Shannon, K.W., Sean and Jerry, within three months. The Division initially intended to reunite K.W. and L.W. and, depending upon the success of that reunification, later reunite L.W. with Shannon, Sean and Jerry. In anticipation of L.W.'s reunification with K.W., a child study team assessed K.W.'s educational needs for special needs placement.
In May 2008, the Division presented a revised permanency plan which proposed that Stacey, Kelly and Preston be adopted by Z.W. The plan also proposed that L.W.'s four youngest children be subject to concurrent plans for reunification and/or termination of parental rights.
By September 2008, Stacey, Kelly and Preston were in Z.W.'s custody, while Shannon, K.W., Sean, and Jerry remained in foster placements. By then, L.W. had completed a Mentally Ill Clinical Abuser ("MICA") program and all other programs the Division had recommended. L.W. also submitted to regular urinalysis and never tested positive for any illegal substances. L.W. continued to receive individual counseling.
At a permanency hearing held on October 28, 2008, the Division presented a plan for Preston, Shannon, K.W., and Jerry, which proposed terminating L.W.'s parental rights to the children, followed by adoption. This change from the May 2008 permanency plan of reunification was not based on any evaluations performed. Rather, the Division recommended the change because L.W. "gave birth to [Bryan] and did not disclose that birth and did not obtain medical care[.]"
On July 2, 2009, the Division presented Judge Leath with a written permanency plan to terminate L.W.'s parental rights to Stacey, Kelly and Preston, followed by adoption by Z.W. In addition, the Division proposed reunification for Shannon, K.W., Sean, and Jerry with L.W. Approximately three weeks later, the law guardian requested a permanency hearing if the Division intended to pursue its most recent goal of reunification as to K.W. Judge Leath inquired as to the nature of the law guardian's objection to the Division's most recent permanency plan and specifically inquired as to whether the objection was based upon K.W.'s physical needs and an opinion that those needs would not be met by L.W., or whether there was some other objection. The law guardian responded:
Although Stacey was included in the initial plan, she turned eighteen on October 7, 2009, and as of that date, the litigation as to her was dismissed.
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I think it is a combination from what I can gather [from the verbal discussion with psychologist Dr. Susan Esquilin, Ph.D., ABPP]. . . . A piece of it is her concerns about the instability of the mother. And, so, she's . . . not opining as to the other children. I haven't asked her to. But I think what we discussed this morning was that she had some concerns in general about the mother's overall psychological makeup and instability that may be relevant to at least the law guardian to the younger children.The judge granted the law guardian additional time to submit a report from Dr. Esquilin.
Her ultimate recommendation[] combines also her concerns about the needs -- the exceptional needs of [K.W.] and is only to [K.W.]. I hope that answers --
On September 14, 2009, Judge Leath ordered that physical custody of Shannon, Sean, and Jerry be transferred to L.W. by October 26, 2009. The order expressly noted that "[t]he conditions/circumstances leading to the removal of the child(ren) have been . . . corrected and it is safe to return the children because [L.W.] has successfully completed individual counseling and is in compliance with the Division's case plan." At the same time, the judge also approved the Division's plan to terminate L.W.'s parental rights to Kelly and Preston, and their adoption by Z.W.
On March 15, 2010, the Division presented a new permanency plan to the court, changing its goal of termination of L.W.'s parental rights to K.W. to reunification. The Division advised Judge Leath that K.W.'s siblings, who had been reunited with their mother the previous year, were doing well under her care. The law guardian "strongly opposed" the change in the permanency plan as to K.W. She expressed her concern about
the complexity and severity of [K.W.]'s medical and developmental needs, coupled with the mother's mental illness. Four of these experts, Dr. Singer, Iofen (phonetic), Dyer, and [Esquilin,] have all diagnosed this mother with some form of a personality disorder, and that coupled with the complexity of [K.W.]'s illnesses makes for a very grave situation.The law guardian also expressed the view that the Division had been neglectful of K.W.'s needs.
Judge Leath responded to these expressed concerns by noting that K.W.'s special needs that could not be met by the "custodial guardian were needs that had to be supplied by outside vendors." She continued:
But the question before this [c]ourt in assessing the appropriateness of the change of the permanency goal is not whether [K.W.] does and will continue to present with cognitive and physical deficits. But whether he will be at risk of harm when returned -- reunited with his mother.
The Division has not and does not represent that this is a child who's going to be adopted by someone because he needs [a] certain something that cannot be provided by his mother. Nothing before me has yet, and I'm listening to hear, and you
can continue with your examination, that there are any services that are being provided in South Jersey that cannot be provided in North Jersey. That there are any functions that are being performed by current care givers that cannot be performed by his birth mother.
The law guardian referenced the opinions of the experts who conducted evaluations of L.W. and found her to be emotionally unstable and who also noted K.W.'s poor health condition:
[K.W.] was without proper care during his time in Jamaica. The [m]other seems to have recognized that he needed other services[,] [s]tating that when she goes back, she's going to provide them. One wonders why she didn't arrange for that when she left him for [fifteen] days prior to this litigation.
He came back to this country needing hospitalization because of the condition that he was in. The older children, the children able to verbalize, talked about not having enough food and things to eat. Given [K.W.]'s difficulty with weight gain and other things, these things are very concerning for me.
In response, Judge Leath stated:
Since [K.W.] has been in the care of the Division, and since K.W. has been given dietary supplements, including PediaSure[,] on a regular basis, his endocrinologist still notes . . . his failure to thrive. That's a function of his gastrointestinal disorder.
. . . .
What I'm saying is he's been in a setting and . . . as we speak[,] remains in a setting. If it's failure to thrive based on parental neglect and/or abuse because a child is not being fed, which is the indi[c]ation that you used when referring to the diagnosis of failure to thrive when [K.W.] came into the custody of the Division. Several years later, in 2010[,] the diagnosis still remains that this child present[s] with failure to thrive, not as a function of him not being fed. The information now is not there is dietary -- that he's not being given a proper diet. The question is his ability to absorb it. So that would remain whether he was in the continued care of the Division, or if he continued in the care of his birth mother[,] [w]hich means it speaks a need as has been [noticed by] the experts, broken system monitoring [sic]. Not that she's not able to continue to give him the same food that he's been getting while he's in the care of the Division.
. . . .
The question is whether the conditions that were in place at the time the children were taken into the custody of the Division . . . have been or can be remediated. All right? And we're not repeating this over and over again.
This [m]other has complied with all services.
The judge ruled that the Division's decision to change its permanency plan from termination of parental rights to reunification was not arbitrary, capricious, or unreasonable. In reaching this decision, the judge found:
The [c]ourt has heard and does not dismiss the ardor with which the [l]aw [g]uardian has argued that the child should not be returned to his birth parent. But . . . what the [c]ourt finds [is] that I have not been able to hear, one, that [L.W.] has not satisfied, again, all requirements that have been offered [to] her by the Division . . . . She has been and is in full -- and has been in full compliance with the Division's recommendations even from the -- even as far back as the outset of this case in which she vehemently contested the Division's right to have inserted itself into the life of she and her children.
While we're discussing [K.W.] for purposes of this proceeding[,] we do not do so in a vacuum. All parties sitting before this [c]ourt, including particularly [counsel for L.W.] and [the deputy attorney general,] who should . . . shortly follow the preceding [deputy attorney general]. No[,] this is not a child in isolation. We have, and for that reason[,] the [c]ourt will discuss the degree of effort that we had to arrive with which we had -- that we've arrived is towards the rationale we use in finally arriving at the place where we think it's safe to return the other children. We -- that unlike [K.W.], the other children[,] with the exception of [Bryan,] the infant[,] and the new little one's name I don't know, . . . are verbal, were in the position to discuss with all parties who met with them, what they recalled of the conditions in Jamaica, and what they have -- and how they described their relationship with their mother and with their maternal grandmother, [Z.W.,] with whom several of the children live. The Division did not have to rely upon second-hand or third-hand reports of what happened or did not happen in Jamaica because you had live witnesses who had active memories. Somewhat -- some of those memories may have
been colored by the fact that the children are young. Some of those memories, and some of those recitations may have been colored by what a particular child's relationship is with his or her mother. But in sifting through the information that . . . was received through contact [with] the Consulate of Jamaica, and the information that was received based on interviews with the maternal grandmother, and information again supplied, by what I think [is] the most telling way, by the care[]giver in Jamaica, Ms. Blackwell.
We learned a few things. I mean . . . as this child's progress[] has not only been in the Division's efforts to work with [L.W.], and the defense attorney's efforts to defend [L.W.], we've not only had -- we've been placed in a position where we had to look or consider not only whether -- it is making a determination as to risk and safety factor as defeating [a] return of the other children. We had to look at the things that had happened, and look at the allegations through a prism not only of . . . a cultural norm specific to a[n] enduring culture, but a cultural norm specific to Jamaica, a cultural norm specific to Rastafarianism, a cultural norm specific to . . . a blending of cultures[,] and come up with and look at, you know, is there a continuing harm being presented to the children such that would prevent them from being united with their mother[?]
. . . .
The only argument that the [l]aw [g]uardian makes, and continuously make[s] through expert reports[,] is that the [m]other is too emotionally unstable to meet the child's medical needs. Without being redundant with that issue, the [c]ourt finds [it] to have been resolved by the [m]other having complied with services, having
established a period of stability. The record shows that the only period that was determined to have been unstable was when . . . the children were living in Jamaica. There's nothing in the general record that shows from day one that the [m]other wasn't committed to loving this child.
The [c]ourt notes that the [l]aw [g]uardian has argued that the child presents with failure to thrive. For the record, in this specific instance[,] we need to be very clear that failure to thrive is typically described or is a growth deficiency. It's a condition in which the child's weight and living and growth fall in the low standard measures, or significantly drop without a physical cause. Children untreated can suffer permanent physical, cognitive, and behavioral problems. Failure to thrive in infants and children results from inadequate nutrition to maintain physical growth and development. In it[]s extreme form, failure to thrive[,] secondary to neglect[,] may be fatal. The [c]ourt is using the definition that is included in the American Academy of Pediatrics, Commission on Child Abuse and Neglect, and Commission on Nutrition. The article was Failure to Thrive as a manifestation of child neglect, 116 Pediatrics Report 1234. The article was written in November 2005.
Here, so that we know from those who may read this without having the benefit of the history[,] [K.W.]'s failure to thrive diagnos[i]s was not a failure to thrive as a result of the child -- as an incident of neglect, him being deprived [of] food. As we noted in the record, he was diagnosed with failure to thrive when he was an infant and is still diagnosed with failure to thrive . . . for the time that he's been in the care of the Division. And there's nothing before the [c]ourt that shows that the Division hasn't procedurally given him
the nutrition that he needs. But[,] again, [it] is an offset, a byproduct of his endocrinological position.
Judge Leath agreed that it was necessary to ensure that all external services necessary to address K.W.'s special needs were in place and indicated that it would "review the plan." The court concluded "that there's nothing before the [c]ourt that should alter [the Division]'s statutory goal of reunification simply because [K.W.] presents with a congenital birth defect."
The Division returned K.W. to L.W.'s care on May 27, 2010. The next month, the judge conducted a review hearing, during which the caseworker reported on the status of the medical appointments being scheduled, as well as the educational plan for K.W. The law guardian requested additional supervision, which the court interpreted as the law guardian "looking for someone to monitor, to go out and observe the home to see if the child is being mistreated, which is not a function of the home health aide or a homemaker." The law guardian acknowledged that what she was seeking was a form of monitoring. Judge Leath reiterated, however, that it is "not the function of a home health aide . . . to do any form of monitoring." With the law guardian's concurrence, the court agreed that it would approve intensive supervision for a "defined period of time," specifically, sixty days.
On September 27, 2010, three days before the return date on the Division's application to dismiss the Title 30 complaint, the law guardian filed a motion requesting that the court "issue an order, along with the order of dismissal, that [L.W.] not be permitted to move the minor child, [K.W.], out of . . . New Jersey, without seeking approval of this [c]ourt, by providing a plan that ensures that the child's highly specialized needs will be met in the new location."
During the September 30 hearing, Judge Leath considered the concerns raised by the law guardian in her motion and specifically asked the law guardian what relief was being sought. The law guardian first acknowledged that K.W. "seems to be doing pretty well, but we do believe, however[,] that dismissal would be premature" based upon a Special Protection Response Unit ("SPRU") referral the Division received on September 23, 2010. She argued that this report was "somewhat corroborated" based upon a law guardian's investigator's report from the summer reporting that the investigator witnessed K.W. "get up, go out of the front door, mom not seeming . . . concern[ed] or responding to him . . . stepping out the front door." The law guardian acknowledged that K.W. never went past the stairs just outside his front door.
The Division objected to the court considering this alleged observation since the investigator who authored the report had not been produced as a witness. The court agreed. The law guardian advised the court that she would like to have the matter investigated further.
Judge Leath responded that it was not addressing the merits of the law guardian's motion, but noted that the Division had been "triaging" K.W. and that L.W. "has always demonstrated an appreciation for -- and concern for [K.W.]." The court inquired as to what specific relief the law guardian was seeking in her motion, "supervision" or "medical care and treatment." The law guardian advised the court that she was seeking "supervision."
Defense counsel pointed out that the investigation occurred "a while ago" and that if the law guardian had genuine concerns about supervision, then the law guardian would not have filed a motion
asking for a dismissal to be conditional because by doing so you're essentially saying we can still dismiss this case although I have serious concerns about this child being . . . supervised by the mother. When you file that motion, you almost say, I've looked at my investigative report, I don't have legitimate concerns that call into question whether the case should be dismissed. . . . [B]ut I think just by chronology, what we should be talking about is this case should not be dismissed. That only . . . came about after the law guardian received [the Division's] submission. If
the[re] really [are] concerns that [K.W.] is not being supervised, I would be coming before the [c]ourt saying[,] no way this case should be dismissed for these reasons. And I would have had this investigative report before you and said[,] this is what my investigator said. None of that happened. . . . I think the law guardian's trying to piggyback on what is in the . . . S-P-R-U report about supervision. Oh, by the way, my investigator, when he investigated, whenever that was, whether that was months ago, found this. Well, we never heard anything about that. And if we didn't hear about it, I presume it was not of a level to cause them any genuine concern or I don't think they would be asking for a conditional dismissal.
In granting the Division's motion to dismiss, Judge Leath determined, for a number of reasons, that the court could grant the Division's motion without presiding over a plenary hearing on the issue of a conditional dismissal. First, the judge expressed the view that the court was unable to find anything in the arguments that had already been advanced, or that would be advanced if the motion were heard later, that would warrant or permit the court to "dictate the movements of a private citizen who is no longer under State supervision." Second, the judge noted there were no safety concerns advanced by the Division, nor risk factors advanced by the Department of Children and Families. Third, the judge remarked that the case had moved through the court system at a "glacial pace" because the objective by everyone was to "make certain that every single possible concern related to each of these children had been addressed."
Judge Leath additionally found:
This case moved so slowly through the system that at least two of the minors who were formerly subject to this [c]ourt's jurisdiction are now . . . in the majority. The Division has done case plans. The Division has consulted with international authorities. The Division has looked at medical providers. The Division[,] on behalf of [K.W.], when the places where he was formerly housed were either closing or under some form of scrutiny, [the law guardian] brought that to the [c]ourt's attention. We tried to make certain that he's been safely and comfortably protected. But we . . . do not have anything in the statu[t]e under Title 9 or Title 30, that this [c]ourt has read[,] that would warrant that we enter an order in effect "sentencing" or imposing the State's interference and intervention in the life of [L.W.] for what would be indefinitely.
Based upon these findings, the court granted the Division's motion and denied the law guardian's motion for a stay. The court, however, offered that the "law guardian obviously can file a motion for reconsideration and can envelope the arguments that are now included in the brief in support of court conditional dismissal and advancement in that form." Reconsideration was not sought. Rather, the law guardian filed the present appeal as well as a motion to "stay the order of dismissal of September 30, 2010." The Division and L.W. opposed the motion. By order dated November 12, 2010, we granted the stay "to the limited extent that defendant L.W. and any person or entity acting on her behalf are hereby barred, pending further order of this court, from removing K.W. from the State of New Jersey."
On appeal, the law guardian raises the following points for our consideration:
I. THE APPELLATE COURT HAS THE ABILITY TO REVERSE AN ERRONEOUS DETERMINATION OF THE TRIAL COURT.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT ISSUING A PROTECTIVE ORDER WITH THE ORDER OF DISMISSAL.
A. PURSUANT TO N.J.S.A. § 9:6-8.55, THE TRIAL COURT HAS THE AUTHORITY TO ISSUE A PROTECTIVE ORDER.III. DUE TO THE COURT'S PARENS PATRIAE OBLIGATIONS, IT WAS REVERSIBLE ERROR FOR THE TRIAL JUDGE TO DISMISS THIS MATTER WITHOUT IMPOSING A REASONABLE CONDITION ON THE ORDER OF DISMISSAL.
B. THE TRIAL COURT SHOULD HAVE ISSUED A PROTECTIVE ORDER WITH THE ORDER OF DISMISSAL IN THIS CASE.
A. WELL-ESTABLISHED PRINCIPLES OF PARENS PATRIAE PERMIT COURTS TO INFRINGE UPON PARENTS' CONSTITUTIONAL RIGHTS IN ORDER TO PROTECT CHILDREN FROM HARM.
B. A COURT'S PARENS PATRIAE POWERS ALLOW[] IT TO EXTEND ITS JURISDICTION TO QUESTIONS RELATING TO THE MEDICAL HEALTH AND WELL-
BEING OF CHILDREN, EVEN AGAINST THE WISHES OF A PARENT.IV. COURTS ROUTINELY IMPOSE GEOGRAPHICAL RESTRICTIONS UPON PARENTS WHEN SUCH RESTRICTIONS ARE IN THE BEST INTERESTS OF THE CHILD.
A. NEW JERSEY CASE LAW MAINTAINS THAT COURTS ARE PERMITTED TO IMPOSE REASONABLE GEOGRAPHIC RESTRICTIONS ON PARENTS.V. SHOULD THIS COURT DECIDE TO REMAND THE MATTER, IT SHOULD BE REMANDED TO A NEW JUDGE WHO CAN FAIRLY EVALUATE THE EVIDENCE.
B. COURTS THROUGHOUT THE COUNTRY HAVE IMPOSED REASONABLE GEOGRAPHIC RESTRICTIONS ON PARENTS.
On appeal, we defer to the Family Part's findings of fact because of that court's special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We are bound to accept those findings unless we conclude they "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Unlike factual findings, however, we owe no deference to a trial court's legal conclusions, but review them independently. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). See also State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) (noting "[a]lthough we must defer to the trial court respecting the factual findings underpinning its determination, we owe no deference to the determination itself"), certif. denied, 182 N.J. 148 (2004); State v. Brown, 118 N.J. 595, 604 (1990) (reasoning that if a trial court "acts under a misconception of the applicable law, however, the appellate court need not give such deference").
With the above principles informing our discussion, we address the central issue raised in this appeal, whether a conditional dismissal in a Title 30 proceeding is an authorized disposition. Before doing so, however, we first address the law guardian's contention that the court erred in dismissing the action without first hearing her motion and reaching its findings on the merits and conclusions without conducting a plenary hearing.
I.
"A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). There were no factual disputes before the court at the time it considered the Division's dismissal motion. The court determined, as a matter of law, that it did "not have anything in the statu[t]e under Title 9 or Title 30, that this [c]ourt has read[,] that would warrant that we enter an order in effect 'sentencing' or imposing the State's interference and intervention in the life of [L.W.] for what would be indefinitely." Thus, resolving whether the court, jurisdictionally, could grant a conditional dismissal is a question of law. Consequently, the court did not err in resolving the issue without first hearing the law guardian's motion on the merits.
Moreover, assuming the court erred in resolving the issue of a dismissal versus conditional dismissal without first considering the law guardian's motion on the merits, the error was harmless. The substance of the law guardian's motion, L.W.'s unstable emotional state and K.W.'s particularized needs, were issues the law guardian had repeatedly raised during earlier proceedings. As previously discussed, the law guardian, in July 2009, raised the issues of L.W.'s mental state and K.W.'s special needs in objecting to the change in the permanency plan from termination of parental rights to reunification. These issues were raised again during proceedings held in March and June 2010. Dr. Esquilin's report expressing her concerns for L.W.'s emotional stability and K.W.'s special needs was referenced during those proceedings as well. Each time the law guardian raised objections to reunification based upon these concerns, the court made clear that it was more persuaded by the Division's evidence demonstrating L.W.'s compliance with all mandated services and the reports from the caseworker who regularly visited with the family after K.W. and his siblings were returned to the physical custody of L.W. Finally, the court noted further that notwithstanding who ultimately would serve as K.W.'s guardian, the child required external support services, and there was nothing to suggest that L.W. would not avail herself of those services.
The court is free to accept all of an expert's opinion, part of the opinion, or none of the opinion. Pansini Custom Design Assocs., LLC v. City of Ocean City, 407 N.J. Super. 137, 143 (App. Div. 2009). The expert's opinion is accorded the weight the fact-finder deems appropriate in the context of all of the evidence considered on the disputed issues. Torres v. Schripps, Inc., 342 N.J. Super. 419, 430-31 (App. Div. 2001).
II.
A. Title 9
Title 9 affords relief on behalf of an abused or neglected child that may include the issuance of any order intended to ensure that the "lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected." N.J.S.A. 9:6-8.8a. Once the Division determines that the risk to a child's safety has been eliminated and that the conditions leading to the child's removal from the physical custody of the parent have been remediated, nothing in Title 9 prevents termination of protective services litigation or warrants the Division's continued intrusion in the familial relationship. Rather, the Division may move to dismiss the matter, and the court, in granting a dismissal, may impose such protective and reasonable conditions as it finds necessary to protect the best interests of the child, but only for a "specified time." N.J.S.A. 9:6-8.55.
The law guardian relies upon Title 9 in urging that a conditional dismissal was warranted here. The present matter, however, was no longer before the court under an abuse or neglect docket, there having been a stipulation in the early stages of the litigation that there had been no finding of abuse or neglect on the part of L.W. As such, the court amended the complaint to an action pursuant to Title 30. N.J.S.A. 30:4C-1 to -40.
B. Title 30
While the purposes underlying Title 30 include the protection of children from abuse and neglect, its scope is much broader than a child's protection and includes "permanency and well-being of children." N.J.S.A. 30:4C-1.1. To that end, the range of relief embodied in an order issued by the court under Title 30 may reflect minimal intrusion into the lives of a particular family, such as when counseling and financial assistance is provided, or may involve more intrusive action, such as when the Division effectuates an emergency removal or ultimately seeks guardianship and termination of parental rights. New Jersey Div. of Youth and Family Servs. v. I.S., 422 N.J. Super. 52, 68 (App. Div. 2011). The ultimate goal under Title 30 is to achieve permanency for children. New Jersey Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 558-59 (1994). Title 30 does not, however, contemplate the Division's indefinite involvement in the lives of a family. Rather, the Legislature has mandated that where a child has been under the care, supervision, or custody of the Division for any of the reasons set forth under N.J.S.A. 30:4C-15(a), and (c) through (f) "for [fifteen] of the most recent [twenty-two] months, [the Division must file a petition for termination of parental rights], unless the division establishes an exception to the requirement to seek termination of parental rights in accordance with [N.J.S.A.] 30:4C-15.3." N.J.S.A. 30:4C-15.
The law guardian did not oppose dismissal of the Title 30 action, but instead sought continued oversight by the Division in order to ensure that L.W. would not remove K.W. from Newark without a guarantee of comparable services in the new location.
We agree, as the Division urges, that it cannot, under Title 30, be required to continue supervision indefinitely, having determined that K.W. is no longer at risk. Such a proposition is unreasonable in both scope and duration. Likewise, we find unpersuasive the law guardian's attempt to invoke the court's jurisdiction to enter such an order based upon its authority to do so pursuant to N.J.S.A. 9:2-2, which governs the "[c]ustody of children of divorced or separated parents within the jurisdiction of Superior Court."
The purpose of this statute is to preserve the rights of the non-custodial parent and child and to maintain and develop their familial relationship by ensuring that the child will not be removed from this state without the non-custodial parent's consent, unless, for good cause, the court determines otherwise. Morgan v. Morgan, 205 N.J. 50, 61 (2011). Unlike the non- custodial parent, the Division, in its role as the custodian and caregiver of K.W., has no interest in developing and maintaining a familial relationship. Rather, its goal is permanency, whether through reunification or, ultimately, termination of parental rights, followed by adoption. N.J.S.A. 30:4C-53.3.
As the trial court observed, the Division's involvement with L.W. and the children spanned three years. The court, at the conclusion of the hearing, was satisfied from the testimony of the Division's representatives and the record before it that L.W. had complied with all of the Division-recommended services and had successfully reunified with all of her children, including K.W., findings the law guardian did not dispute. As such, those factual findings are entitled deference. Cesare, supra, 154 N.J. at 411-12. Because we concur with the trial court's legal conclusion that a conditional dismissal is not a remedy available under Title 30, the court properly dismissed the complaint without imposing conditions.
The remaining points raised by the law guardian are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. The stay ordered on November 11, 2010, barring K.W.'s removal from the State of New Jersey, is vacated.