Opinion
DOCKET NO. A-4612-11T4
05-08-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.J., Defendant-Appellant. IN THE MATTER OF A.J. and R.J., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.J. and R.J. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Mantineo.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-102-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.J. and R.J. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant M.J. (Mia) appeals from the Family Part's order awarding sole legal custody of her minor children A.J. (Amy) and R.J. (Ralph) to their father, W.J. (Walter). We affirm.
We have fictionalized the names of all involved.
I.
Mia and Walter are the parents of five children. At the time the complaint was filed, two of the children, Arnold and Anna, were emancipated; the order under review relates to the custody of Wes, born in 1994; Amy, born in 1999; and Ralph, born in 2003. The family initially became known to the Division of Youth and Family Services (the Division) in 1988. From 1988 through August 2007, the Division received ten referrals regarding allegations of neglect, physical abuse, inadequate supervision, educational neglect, domestic violence and abuse of illicit substances and prescription medication, against both Mia and Walter regarding their five children. The referrals were unfounded and the children remained in the custody Mia and Walter.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families and renamed the Division as the Division of Child Protection and Permanency. See L. 2012, c. 16 eff. June 29, 2012.
On September 1, 2007, the Division received a referral citing concerns for the safety and welfare of the children resulting from an incident of domestic violence at the family home where, after a night of heavy drinking, Walter returned home, Mia accidentally burned him with a cigarette, resulting in Walter striking Mia with an unknown object. The children were home during the incident but did not witness the event. When the police arrived, they found Mia "visibly" under the influence. Mia denied abusing any illicit substances but, admitted to taking the prescription drugs Zoloft, Temazepam, and Adderall. She also acknowledged a history of dependence on prescription pain medications. Walter also admitted he took various prescription medications, which he agreed could make him become "easily angered." The pair agreed they shared their prescription medication. Mia and Walter refused the Division's request to undergo substance abuse evaluations.
Thereafter, the Division filed a complaint against Mia and Walter for care and supervision of the children, pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12, and an order granting same was entered on September 12, 2007. Both parents were ordered to attend domestic violence counseling, psychological assessments and drug evaluations. Walter was ordered from the home until he completed all recommended services. The children remained with Mia.
Mia and Walter entered a stipulation on December 17, 2007, where they "knowingly, willingly, and voluntarily admitted that there were concerns of domestic violence and substance abuse allegations which constituted a need of services with the Division."
From January through December 2008, the Division received five additional referrals that included concerns of medical neglect, alleging the parents failed to obtain necessary medical and psychological care for the children. It was also alleged that the parents failed to ensure the children attended school on a regular basis. The family was referred to Family Preservation Services due to the constant level of conflict within the family unit; the home being unclean; and lack of routine for the children especially, Amy and Ralph.
The parents were ordered to enroll Anna in behavioral therapy as a result of a self-inflicted injury to her wrist. They were also ordered to ensure that Anna, who is a diabetic, received medical treatment for her diabetes. The children were ordered to attend school regularly. Mia was to explore obtaining tutoring services for Amy, who was classified as learning disabled, and to have Anna, who became emancipated during this period and refused services, enroll in a General Education Degree program. The court entered orders compelling the parents to cooperate with the services, treatment and evaluations arranged by the Division and continue attending parenting classes. Walter left the family home sometime in 2008 and did not participate in Family Preservation Services.
The Division's involvement with the family continued. Additional referrals of parental neglect were made. One involved an allegation of inadequate clothing and another alleged Mia left the children unsupervised in the family home. The Division continued to supervise the family and, during a routine urine screening on March 3, 2009, Mia tested positive for cocaine. Mia denied cocaine abuse.
The Division continued to provide services in an attempt to treat the parents' drug use, Walter's anger management issues and lack of appropriate parental supervision. The parties were receptive to services allowing the case to be closed on September 14, 2009, because the family was "linked to numerous community based resources." The children remained in the legal and physical custody of Mia and Walter. Walter was permitted unsupervised visits with the children with the condition that he remain sober and abstain from alcohol when the children visited. The Division closed the case on December 18, 2009.
The Division was alerted again on December 22, 2009, January 15, 2010, and July 28, 2010, concerning the safety and welfare of the children. Again, the allegations concerned Mia's lack of supervision of the children. The referent alleged Ralph was permitted to play outside in the snow, unsupervised without a coat or hat. Another referral concerned Mia's abuse of alcohol, pain medication, cocaine and heroin. The referent detailed that Mia frequently used drugs and was often high in the presence of her children. The referent further stated that the children were aware of their mother's substance abuse. In the ensuing months, investigations were undertaken and the allegations were unfounded.
On March 4, 2011, the Division again received a referral regarding Mia and Walter's adult daughter, Anna, who had recently given birth to a child. The referent reported the infant remained in the hospital due to his low birth weight and that Mia appeared "strung out." Again, an investigation ensued. As part of the investigation, a Division caseworker interviewed Amy and Ralph at school. While there, the worker spoke to a staff member who reported "ongoing concerns for Amy and Ralph" which "border[ed] on educational neglect" due to what appeared "to be a severe lack of parenting." The staff member noted excessive tardiness and absences for both children. She further stated the children had "on and off hygiene issues" and commented that Ralph's grades were slipping "due to not doing homework."
Subsequently, Amy and Ralph were interviewed by a Division caseworker. During the interview, Ralph reported that, in addition to smoking cigarettes, his mother and sister Anna smoked the "little ones with the papers." He further explained "mom puts the stuff in it (the paper) and then smokes it." When questioned about drugs, the caseworker noted that Amy just "stared" and refused to answer any questions.
On April 5, 2011, the Division received another referral concerning safety and welfare concerns for Amy and Ralph. The Division's caseworker interviewed the children again. Ralph was found to have sustained injuries to his right wrist as a result of an incident where Mia's paramour pulled him out of bed. During this interview Ralph reported that he did not feel safe at his home because of unknown people coming in-and-out of the house.
The caseworker then responded to Mia's home. The caseworker discussed the Division's concerns for the safety and welfare of the children because of Mia's recent arrest for possession of a controlled dangerous substance and possession of a hypodermic syringe, as well as the ongoing reports of suspicious activity and questionable people in the home. Mia denied there was any reason for concern and refused to attend a substance evaluation scheduled for later in the week.
On April 6, 2011, Mia agreed to the Division's plan for Amy and Ralph to temporarily reside with Walter. Mia and Walter were living apart and were either divorced or involved in divorce proceedings at this time. Wes refused to leave his mother's home and, given his age, seventeen, the Division allowed him to remain. The plan provided that all contact between Mia, Amy and Ralph was to be supervised. Walter signed the Division's Safety Protection Plan that day. Mia refused. On April 14, 2011, the Division filed a verified complaint against Mia and Walter, pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:40C-12, seeking care and supervision of Wes, Amy and Ralph.
A fact-finding hearing was held on July 28, 2011, and Mia entered a stipulation in which she acknowledged the Division's care and supervision was warranted to ensure the health and safety of her children due to her substance abuse issues. Physical custody of the children remained with Walter. The court continued Mia's supervised parenting time.
The parties appeared for a compliance hearing on March 6, 2012. At the time, Mia was incarcerated as a result of her guilty plea to a robbery charge. The Division requested dismissal of the protective services litigation due to the fact Mia was facing a prison term and was subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, which required Mia to serve at least eighty-five percent of the term imposed. The Division sought Mia's consent to Walter being awarded legal custody and physical custody of the children. On that day, Mia waived her right to a dispositional hearing as to the placement of her children and consented to Walter having physical custody of Amy and Ralph, but requested to retain either full or joint legal custody.
N.J.S.A. 9:6-8.50(e) provides: "If the court finds that the child is an abused or neglected child as defined in this act, it may refer any aspect of the matter, including anything related to the child and the parent or guardian, to the division, ordering that the division provide such services as are deemed appropriate to the ends of protecting the child and rehabilitating and improving family life, wherever possible. In the event of such referral, the court may suspend any dispositional hearing indefinitely."
At the conclusion of the hearing, the court initially proposed that Mia would retain legal custody while Walter would maintain physical custody. However, the court then expressed concern that joint legal custody may not be the appropriate resolution of the matter and thereafter ordered the parties to submit briefs on the issue.
The parties returned on April 3, 2012. Walter again requested sole legal custody and physical custody of the children. Mia objected to the transfer of sole legal custody to Walter and requested the matter be postponed until after she was sentenced on her robbery conviction. In support of her application for an adjournment, Mia urged the court to allow her time to make an application to the Intensive Supervision Program (ISP). She argued that if she was approved for ISP, she would be released from jail and would immediately be able to participate in the children's lives. Mia submitted "that if there is a factual difference between what [she] is proposing and what . . . [Walter] is proposing . . . perhaps some limited testimony would be appropriate."
The New Jersey Intensive Supervision Program commenced in 1983 and "provides a structure in which certain offenders, sentenced to state penal institutions in the traditional fashion, are afforded an opportunity to work their way back into the community under intensive supervision." Information regarding ISP, found at http://www.judiciary.state.nj.us/probsup/isp_ intro.htm (last checked April 19, 2013).
The Division supported Walter's request for sole legal custody and physical custody. The Division urged the court to dismiss the litigation as there were no longer any safety concerns for the children, and they had received permanency by virtue of a ready, willing and able parent to assume their care. The Law Guardian also supported Walter's request for sole legal and physical custody and suggested the children would be at risk in the event of an emergency if sole custody was not granted to Walter.
In light of these arguments, the court concluded it was not in the best interest of the children to adjourn the matter until after Mia's sentencing. In rejecting Mia's request "to take some limited testimony" the court referenced Rule 5:8-6, and stated it found no genuine issue as to custody, no material facts in dispute and, therefore, no need for a plenary hearing. The court awarded Walter sole legal custody of the children; joint physical custody was awarded to Walter and his new wife.
Rule 5:8-6 provides in part, "[w]here the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading."
On April 20, 2012, Mia was sentenced to a six-year term of incarceration, with a mandatory minimum term of five years, one month and six days. This appeal followed.
A search of the Department of Corrections website by this Court indicates that Mia was sentenced on April 20, 2012 to a six-year term of incarceration with a maximum parole date of January 19, 2017. Information found at https://www6.state.nj.us/DOC_Inmate/ inmatesearch (last checked April 19, 2013).
On appeal, Mia raises the following arguments for our consideration:
POINT I
THE TRIAL COURT'S DECISION DENYING M.J. JOINT LEGAL CUSTODY OF HER CHILDREN DID NOT SATISFY THE REQUIREMENTS OF R. 1:7-4(a).
POINT II
THE CHANGE OF CUSTODY IN THIS MATTER VIOLATED M.J.'S RIGHT TO DUE PROCESS OF LAW AS THE TRIAL COURT FAILED TO CONDUCT AN EVIDENTIARY HEARING.
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR JOINT LEGAL CUSTODY OF HER CHILDREN.
II.
"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). In general, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farm Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Our scope of review is expanded, however, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.
In reviewing the decision of the trial court the question is not whether this Court would have come to a different conclusion were it the trial tribunal. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We intervene only when convinced that the trial court's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Cesare, supra, 154 N.J. at 412 (quoting Rova Farms, supra, 65 N.J. at 484).
III.
We turn first to Mia's contention that the trial court's decision failed to satisfy the requirements of Rule 1:7-4(a), which provides in part: "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury." We have repeatedly stressed the importance of the trial court's responsibility to provide findings and conclusions to assure an informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). Without findings relevant to the legal standards, a litigant and the reviewing court "can only speculate about the reasons for a trial court's decision." Id. at 304. Thus, the trial court's obligation to make such findings of fact is critical to an appellate court's "meaningful review." Ronan v. Adely, 182 N.J. 103, 110-12 (2004).
Here, the trial court presided over this matter for approximately one-year and received periodic updates. By the time of the April 3, 2012 hearing, the court had an understanding of the issues Mia faced and the risks those issues posed to the children. The court was certainly aware of the Division's numerous unsuccessful attempts to have Mia treat her substance abuse problem. While the trial court could have expanded on its findings of fact, we are satisfied the findings made were sufficient to permit meaningful review.
The court found that it was guided by the best interests of the children. It cautioned that the children's best interests would not be served by delaying a determination on the issue of legal custody until after Mia was sentenced. While not expressly stated, it can be inferred that the court was concerned with the children's continued safety and stability. The children had been under the care of their father and his wife for approximately one-year and were adapting well to the custody arrangement. The court clearly did not want to take any action which would interfere with the children's recent progress.
The court also found that the children recognized they would face difficulties if joint legal custody was continued. We infer that Mia and Walter were parents who did not cooperate in matters involving the children, as it is clear from the record they did not amicably co-parent. In fact, the pair had a long history of domestic violence; through the years there had been numerous incidents of abuse; and both parents had been ordered to domestic violence counseling. The court was aware the children had been witness to the discord between their parents. As such, it is clear the court sought to spare the children any further problems by its custody determination.
We find the court adequately set forth the basis of its decision. It relied upon the facts developed at the hearings, together with, the briefs and arguments advanced by the parties as the framework for its findings. Accordingly, we find Mia's argument that the court failed to comply with the requirements of Rule 1:7-4(a) without merit.
IV.
Mia next argues the court's custody determination made without a plenary hearing violated her due process rights. We are not persuaded by this argument.
"Parents have a constitutionally protected right to maintain a relationship with their children." M.M., supra, 189 N.J. at 279 (citing In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Thus, any interference with this right implicates certain procedural safeguards. To that end, a parent has a constitutional right to due process when a change in the custody of a child has been requested, including the right to adequate notice and a fair opportunity to be heard. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464-66 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004); In re Registrant, C.A., 146 N.J. 71, 93-94 (1996). These protections are not diminished by the status of a parent as an incarcerated individual. See In re Adoption of Children by L.A.S., 134 N.J. 127, 135-43 (1993) (stating incarceration is merely a factor that courts must consider as materially bearing upon the capacity of a parent to care for his or her child).
"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958)). Furthermore, "a plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children[.]" Hand, supra, 391 N.J. Super. at 105 (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976); see Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary," and noting that "[w]ithout such a standard, courts would be obligated to hold hearings on every modification application")).
Ordinarily, changes in custody should not be made in the absence of a plenary hearing. See Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010) (stating, "[a]bsent exigent circumstances, changes in custody should not be ordered without a full plenary hearing"); see also R. 5:8-6 (providing "[w]here the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading"). However, in this instance, the "change" in custody did not result in a physical change in custody, nor did it affect the status quo of the children. Rather, the order merely memorialized the custody arrangement in place since April 2011. Thus, because the transfer in custody did not affect any aspect of the children's home life, the absence of a hearing does not render the result improper.
The trial court concluded a plenary hearing unnecessary as custody of the children was not a genuine and substantial issue. The court found that there were no critical facts relating to custody in dispute. We agree.
The record supports the finding that the April 3, 2012 order merely memorialized the status quo. Prior to her incarceration, Mia had limited contact with Walter, Amy and Ralph. From April 2011 to April 2012, Walter maintained physical and legal custody of the children. Although the court's earlier order awarded the parents joint legal custody, the evidence established Walter had, in fact, exercised sole legal custody during the time he had physical custody and made all of the major decisions concerning the children.
Once Mia waived her right to a dispositional hearing, Div. of Youth and Family Servs. v. G.M., 198 N.J. 382 (2009), and agreed to Walter retaining physical custody of the children, the only decision left for the court to make was the legal custody determination of Amy and Ralph. Mia did not argue that there were genuine and substantial facts in dispute regarding the welfare of the children that needed to be resolved by way of a plenary hearing.
Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399-400 (2009) (stating where the trial court has found abuse and neglect, a dispositional hearing must be held to determine if the children may be returned to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint or if some other disposition is appropriate).
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There is no absolute right to a plenary hearing. Rather, a plenary hearing is warranted if there are genuinely disputed issues and a hearing would assist the court in resolving the issues presented. P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999). Moreover, a plenary hearing is not required in every contested proceeding, but is only required if there is a genuine, material and legitimate factual dispute. Hand, supra, 391 N.J. Super. at 105 (citations omitted).
Here, there was no factual dispute. Rather, the disagreement concerned what was the proper conclusion to be drawn from the facts. Given that the issue was fully briefed and argued, and the court found no genuine custody issue presented, the court appropriately exercised its discretion not to conduct a plenary hearing.
V.
Mia's final argument is that the court erred in denying her application for joint legal custody. We disagree.
Legal custody of a child has been defined as "the legal authority and responsibility for making 'major' decisions regarding the child's welfare." Beck v. Beck, 86 N.J. 480, 487 (1981). In New Jersey joint legal custody is the "preferred arrangement since it is 'likely to foster the best interests of the child in the proper case.'" Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App Div. 2001) (quoting Beck, supra, 86 N.J. at 488)). In custody determinations, "the best interests of the child is [the] polestar" by which the court should be guided. Beck, supra, 86 N.J. at 498-99.
N.J.S.A. 9:2-4 provides that in making an award of custody, whether physical or legal, the court may consider the following factors:
[T]he parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; . . . the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; . . . the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.
Mia argues that the court failed to consider the factors set forth in N.J.S.A. 9:2-4 in making its custody determination. She also contends the only reason the court declined to award her joint legal custody was because she was incarcerated. The record refutes Mia's arguments.
Here, the trial court found that it would not be in the best interest of the children for Mia to be awarded joint legal custody. While not expressly stated, it is clear the custody issue was resolved using a best interest analysis that gave weight to the factors set forth in N.J.S.A. 9:2-4. Hand, supra, 391 N.J. Super. at 105. Although the trial court did not specifically reference the statute, the court's decision adequately addressed the relevant statutory factors. The court acknowledged its obligation to render an opinion in the "best interest of the children" and then made a finding that directly related to the particular facts of the case.
Further, the basis of the court's denial of Mia's request for sole or joint legal custody of the children can be deduced from the court's familiarity with the family. Mia's long-standing unresolved substance issues and her lengthy incarceration support the court's determination that joint legal custody would not be in the best interests of the children. In addition, the record did not support a finding that the parents had the ability to agree, communicate and cooperate in matters related to the children. N.J.S.A. 9:2-4.
A "[d]ecision concerning the type of custody arrangement [is left] to the sound discretion of the trial courts[.]" Pascale v. Pascale, 140 N.J. 583, 611 (1995). We conclude the trial court properly exercised its discretion when it awarded sole legal custody of the children to Walter.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION