Opinion
DOCKET NO. A-0350-14T4
06-16-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.D., Defendant-Appellant, and L.C., Defendant. IN THE MATTER OF A.D., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony N. Barbieri, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashley L. Davidow, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.D. (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-27-14. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony N. Barbieri, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashley L. Davidow, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.D. (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant M.D. appeals from a July 24, 2014 order terminating litigation by the Division of Child Protection and Permanency (Division) under the auspices of N.J.S.A. 30:14C-12, which authorizes court supervision of a family in need of services from the Division. We affirm.
I
We glean the following facts from the record. As of April 14, 2010, defendant and L.C. (the mother), who were never married to each other, had joint custody of their daughter A.D. (the child) pursuant to an order entered under an FD docket. See N.J. Dept. of Children and Families v. I.S., 214 N.J. 8, 22 n.3 (2013) (explaining the Family Part docketing system). As recited in the 2010 order, by agreement of the parties, the mother was the parent of primary residence and defendant was the parent of alternate residence, with parenting time being "equally split between the parties."
The Division did not present any legally competent evidence at any of the hearings on the Title 9 or Title 30 hearings. The Division and Law Guardian have cited to the Division's verified complaint as though it constituted evidence of the facts cited therein, even though it was certified on the affiant's "knowledge, information and belief." We have not considered any of the allegations in the complaint for their truth, but only for the fact that the allegations were made. Nonetheless, the critical evidence of defendant's persistent substance abuse problem is undisputed on this record.
On July 31, 2013, the Division filed a complaint and order to show cause, pursuant to N.J.S.A. 9:6-8.28 and N.J.S.A. 30:4C-12, seeking legal custody and supervision of the child, who was then four years old. The Division alleged that defendant suffered from depression, had a serious substance abuse problem, used heroin while caring for the child, and was selling drugs from the home where the child visited him. On July 31, 2013, defendant and the mother consented to the entry of an order for "continued supervisory restraints" limiting defendant to supervised visitation with the child. The paternal grandmother was to supervise defendant "at all times" while the child was visiting. The consent order required the grandmother to contact the Division case worker immediately if defendant appeared to be under the influence of drugs and was to call the police if defendant was "out of control." Defendant agreed to comply with drug evaluation and treatment.
The July 31, 2013 order stated that visits were to take place "on a liberal basis, [as] arranged by the parties." The order did not state whether or not defendant was entitled to overnight visitation with the child. An order dated August 27, 2013 specifically provided that defendant's visits with the child were to be supervised by "the Division or its designee, including supervision by the PGM [paternal grandmother] . . . as arranged by the parties, during the day time."
At a hearing on November 18, 2013, defendant's counsel asked the court to allow overnight visitation. The Division did not object, because defendant had undergone four drug tests which were all negative. However, without presenting any legally competent evidence, the Law Guardian and counsel for the mother opposed the application; they claimed that defendant might have falsified one of his drug tests and asserted that defendant continued to smoke tobacco in front of the child, who was asthmatic. Neither parent was present at this hearing.
The judge denied the request for overnight visits, noting that neither parent was present and that another hearing was scheduled for December 6, 2013. On the judge's inquiry, the Division's attorney confirmed that the Division would not pursue a Title 9 complaint, N.J.S.A. 9:6-8.28, but instead would proceed under Title 30, N.J.S.A. 30:4C-12. Thus, the December 6 hearing would proceed as a dispositional hearing under Title 30, rather than a fact finding hearing under Title 9.
At the December 6, 2013 hearing, the Division's attorney confirmed again that the Division withdrew its allegations of abuse or neglect under Title 9 and therefore did not seek a fact finding hearing. Instead, the Division attorney asked that the court "enter a judgment pursuant to . . . Title 30, finding this is a family in need of services, specifically with regard to [defendant]." Defendant testified at the December 6 hearing, confirming that he was willing to waive his right to a hearing on the Title 30 allegations. He agreed that the family was in need of services, and he agreed to participate in a drug treatment program.
Immediately thereafter, at the same December 6 hearing, the judge conducted a dispositional hearing. Again, the mother was not present, despite being offered the opportunity to appear by telephone. However, her counsel provided unsupported hearsay allegations in furtherance of her argument that defendant should not have overnight visits with the child. The mother's attorney also alleged that the paternal grandmother might be using drugs and requested that the grandmother submit to a drug test. At this hearing, the Division neither supported nor objected to overnight visits but noted that defendant had, that morning, submitted a urine specimen that was lower than normal body temperature, and he had failed to appear for a drug treatment evaluation. At the judge's direction, the grandmother and defendant were asked to submit to a drug screening during a break in the hearing, but neither was able to produce a urine sample. The judge denied the application for overnight visits, based on the probation officer's report as to defendant's suspect drug test. He ordered that the mother be present for the next hearing.
We infer from the record that the judge was provided a copy of the probation officer's report concerning this drug test, but the report was not marked or admitted in evidence.
The next hearing was held on March 6, 2014. Defendant was present with his attorney. The mother was not present at this hearing, although she had appeared for a February 28 hearing that was adjourned. The judge excused the mother from attending on March 6. The Division reported that defendant had successfully completed a twenty-eight-day inpatient drug program in January 2013, but the Division was concerned that he should continue with follow-up outpatient treatment as well. The Division attorney also expressed concern that defendant's participation in drug treatment was at odds with his prior insistence that he did not have a drug problem. The Division attorney reported that the grandmother had taken a drug test, which was negative.
There appears to be no dispute that the mother was working three jobs, and had great difficulty getting time off from work to attend court hearings.
Defendant's attorney strenuously argued that her client's right to overnight visitation should be restored, and her client's participation in drug treatment should be viewed as a positive factor not a negative. Contrary to the representations by the mother's attorney that defendant failed to visit the child, defendant's attorney told the judge that there was "bad blood" between the parents, and the mother had not been returning defendant's phone calls seeking visitation. The mother's attorney responded that if the court was considering restoring defendant's overnight visitation rights, she wanted a plenary hearing. Defendant's attorney did not request a testimonial hearing.
The judge declined to restore supervised overnight visitation due to concerns that defendant was not currently attending any follow-up outpatient treatment. The judge also denied without prejudice defendant's request for a six-hour block of visitation time over the weekends. At the judge's urging, the parties agreed to attend mediation to try to agree on a schedule for parenting time. However, the mediation did not occur.
The parties next returned to court on July 24, 2014 for what was described as "a summary review hearing." At that point, the Title 30 case had been pending since December 6, 2013, although neither party had previously asked the court to dismiss the case. See N.J.S.A. 30:4C-12. Neither parent was present in court on July 24. They had both been present in court for several hours on the previous day, but their case was not reached "due to an overcrowded docket." For that reason, the judge excused both parents from appearing at the hearing, at their attorneys' request.
At the hearing, the Division's attorney, with the support of the mother's attorney and the Law Guardian, asked the judge to dismiss the Title 30 case and continue the status quo, which was that defendant did not have overnight visits with the child, and his daytime visits were being supervised by the mother.
The Division's attorney reported to the judge that defendant was continuing to struggle with his addiction. He was attending a local methadone maintenance program at the John Brooks facility, but during June 2014 he had repeatedly tested positive for heroin. In addition, the Division's attorney advised the court that defendant admitted to his Division case worker that he had used heroin in mid-July 2014; the worker observed needle marks on defendant's arm and "he was sweating profusely during their entire interview."
Defendant's counsel did not contradict any of that information, and did not ask for a plenary hearing. Instead, she argued that defendant should be given more time, with the Division's assistance, to overcome his drug addiction. She also argued that defendant's visits with the child should be supervised by the grandmother rather than by the mother. Defendant's attorney did not ask the judge to reinstate defendant's overnight visits with the child. Rather, she asked that his visitation be increased when and if he progressed in treatment.
In his oral opinion, the judge began by reviewing the history of the case, noting that defendant had admitted back in December 2013 that he needed drug treatment and that the family was in need of services. The judge recounted that, as a result of defendant's agreement to undergo drug treatment, the Division withdrew its Title 9 complaint. However, the judge observed that "[a]s recently as this month, [defendant was] still actively using heroin." The judge found that the goal of the Title 30 action was to ensure the child's safety, and the child was safe in the care of her mother. The judge found that "the Division has made reasonable efforts to try to assist this family with [defendant] getting the help that he needs so they can safely co-parent, but he continues to struggle and . . . it is not fair to [the mother] for this case to continue and it is not fair for anyone to have to wait for [defendant] to get these issues under control."
Consequently, the judge determined, over defendant's objection, to terminate the litigation, leaving in place the existing restraints on defendant's visitation rights, including the requirement that defendant's visits with the child be supervised at all times by the mother "or her designee." However, the judge also directed that "if [defendant] is able to show a substantial change in circumstances, he may apply to the court under an FD docket to lift these restraints," on notice to the Division and Law Guardian. The judge ordered the Division to keep its file open administratively for sixty days, so that the agency could continue to provide services to defendant at his request.
Notably, the July 24, 2014 order also provided that both parents would continue to have joint legal and physical custody of the child. In that respect, the July 24 order did not modify the custody provisions of the April 14, 2010 FD order. Rather, it continued the restraints on defendant's visitation rights because he "continues to struggle with substance abuse issues," and gave him the future right to "apply to the court under an FD docket to lift these restraints" if his circumstances substantially changed, i.e., if he brought his addiction under control.
II
Pursuant to N.J.S.A. 30:4C-12, the Division is authorized to investigate complaints that a person responsible for a child "is unfit to be entrusted with the care and education of such child, or shall fail to provide such child with proper protection, maintenance and education, or shall fail to ensure the health and safety of the child, or is endangering the welfare of such child." N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 64 (App. Div. 2012) (quoting N.J.S.A. 30:4C-12). The court must conduct a summary hearing before authorizing the Division's involvement, and may place a child under the care and supervision of the Division if "satisfied that the best interests of the child so require." T.S., supra, 426 N.J. Super. at 65 (citation omitted). The term "best interests" is not statutorily defined, but courts have interpreted it to mean "protection of children from harm when the parents have failed or it is 'reasonably feared' that they will." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. Wunnenburg, 167 N.J. Super. 578, 586-87 (App. Div. 1979)). In this case, defendant consented to the court's intervention under Title 30.
Where an order of care and supervision has been entered pursuant to N.J.S.A. 30:4C-12, it is only effective for six months. T.S., supra, 426 N.J. Super. at 66. When services are needed for a longer period, the Division must establish grounds for an extension of its authority "at a summary hearing held upon notice to the parent, parents, guardian, or other person having custody of the child." Ibid. (citation omitted). "Absent a showing that services or supervision or both appear to be in the best interests of the child because the services are needed to ensure the child's health and safety, a case should be dismissed." Ibid.
"Because of the family courts' special jurisdiction and expertise in family matters," we owe particular deference to "family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We will not disturb the trial judge's decision so long as it is supported by substantial credible evidence. Id. at 411-12. However, we review the trial court's legal interpretations de novo. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).
On this appeal, defendant presents the following points of argument for our consideration:
I. THE TRIAL COURT'S FAILURE TO ADHERE TO PROPER TITLE 30 EVIDENTIARY PROCEDURES IN THIS LITIGATION PREJUDICED M.D.'S PARENTAL RIGHTS.
II. M.D. WAS DEPRIVED OF THE NECESSARY SERVICES FOR FAMILIES IN NEED PURSUANT TO TITLE 30.
Defendant first argues that the court should have terminated the Title 30 litigation after the six-month time limit expired. See N.J.S.A. 30:4C-12. This is an argument he did not raise in the trial court. The case was converted to a Title 30 matter with defendant's consent on December 6, 2013. The six months would have expired in early June 2014. The July 24, 2014 hearing was a few weeks past the deadline; however, on that date, defendant's counsel strenuously opposed dismissal. Defendant now argues that if the case had been dismissed in the narrow window of time between the expiration of the six months and his relapse into heroin use, he would have regained his right to overnight visitation with the child. We conclude that the argument was waived as not raised in the trial court. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (stating that "issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest."). But even if we consider the argument, it is without merit. If defendant's parenting time had been restored in May or early June 2014, it would have promptly been suspended again due to his renewed heroin use.
The case was scheduled for a hearing on May 30, 2014, but the hearing was adjourned due to a power outage that caused the courthouse to be closed that day. --------
Next, defendant contends that the court terminated the litigation too soon without giving him sufficient time to get control of his addiction. He argues that, due to the court's crowded docket, the case was repeatedly adjourned, and when the hearings took place, they were conducted without procedural safeguards. He contends that the trial court improperly denied supervised visitation based on hearsay and representations from attorneys, rather than based on legally admissible evidence.
We agree with defendant that some of the hearings were unduly informal. The parties were not present for several of the hearings, due to no fault of theirs. On more than one occasion, either or both of them were in court all day waiting for their case to be heard, only to be told that the court could not reach their case. When the case was called on the next day, they were sometimes unable to attend. As a result, the parties were not available to provide first-hand testimony concerning their circumstances and their allegations against each other, and the court permitted the attorneys to make factual representations without requiring them to produce supporting evidence. On the other hand, the judge did not base his decisions on contested allegations but only on factual representations - such as defendant's failure to attend drug treatment - which defendant's attorney did not dispute.
More importantly, any procedural errors which occurred in the periodic review hearings did not affect the court's ultimate disposition of the case. At the July 24, 2014 hearing, there was no dispute that defendant had again relapsed into heroin use and was unfit to exercise his parenting rights except on a limited, supervised basis during the day. Those undisputed facts were central to the judge's decision and provided the substantial credible evidence needed to support his determination. See Cesare, supra, 154 N.J. at 412.
Although the court's final order provided that when and if defendant got control of his addiction, he could apply for expanded parenting time in the FD docket, defendant contends that procedure placed him at an unfair disadvantage. He argues that, if he files a motion in the FD docket seeking additional parenting time based on changed circumstances, he will not be entitled to representation by the Parental Representation Unit, as he would in a Title 30 action.
Defendant's arguments provide no basis to disturb the July 24, 2014 order. The court's disposition of this case was consistent with the Supreme Court's observations in I.S. "When custody issues become intertwined with child-protection actions, then dispositional questions that lie at the intersection of the two matters become complicated by a parent's delay in achieving circumstances that make it safe for the child to return to the former custodial parent." I.S., supra, 214 N.J. at 41 (citation omitted). In those situations, we focus on whether the process that the trial court employed resulted in prejudice to the defendant. Id. at 41-42.
Although it is preferable for the court to ensure that there occurs separate and distinct proceedings at which Title 30 actions are adjudicated to disposition and FM custody matters are adjudicated, this case shows that procedure may not always prevail. In this matter, the consolidated procedure followed by the court did not result in any cognizable harm to I.S. The parties had been litigating the twins' custody at the time the Division initiated the child-protection proceedings, and the custody matter remained open before the Family Part. I.S. may move before the Family Part to request alteration of the custodial arrangement for S.S. at any time in light of changed circumstances.
[Ibid. (emphasis added and footnote omitted).]
Although the Family Part judge did not combine the FD and FN cases, we reach the same conclusion as the Court did in I.S. The judge reached the correct result with respect to the child's protection, and the disposition "did not result in any cognizable harm" to defendant. Ibid. The Division repeatedly attempted to provide defendant with services, but he continued to use heroin. We agree with the judge that the child's welfare did not require that the court or the Division keep the Title 30 case open indefinitely for defendant's benefit. "Absent a showing that services or supervision or both appear to be in the best interests of the child . . . a case [pending under N.J.S.A. 30:4C-12] should be dismissed." T.S., supra, 426 N.J. Super. at 66. Moreover, whether the July 24 hearing occurred in the Title 30 docket or in the FD docket, the result would have been the same. Defendant's visitation rights would have been suspended, except to the limited extent the court allowed in the July 24, 2014 order. See I.S., supra, 214 N.J. at 41.
Pursuant to the July 24, 2014 order, defendant has an avenue available to expand his parenting time when he overcomes his active addiction. We need not address here defendant's right to legal representation in such a future application. That issue is not properly before us on this appeal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION