Opinion
DOCKET NO. A-3462-11T1
03-06-2013
OCEAN COUNTY BOARD OF SOCIAL SERVICES as assignee of R.H., Plaintiffs-Respondents, v. D.R., Defendant-Appellant.
David S. Rochman argued the cause for appellant. John J. Hopkins, III, argued the cause for respondent R.H. Jean L. Cipriani argued the cause for respondent Ocean County Board of Social Services (Gilmore & Monahan, P.C., attorneys; Ms. Cipriani, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-153-94S.
David S. Rochman argued the cause for appellant.
John J. Hopkins, III, argued the cause for respondent R.H.
Jean L. Cipriani argued the cause for respondent Ocean County Board of Social Services (Gilmore & Monahan, P.C., attorneys; Ms. Cipriani, on the brief). PER CURIAM
Defendant D.R. appeals from a February 1, 2012 Family Part order requiring him to pay $154 per week in child support for Dawn, who was born in 1997. The action was filed by plaintiff Ocean County Board of Social Services as assignee for R.H., the child's mother, since she and the child receive benefits under the Work First New Jersey/Temporary Aid for Needy Families. D.R. also appeals the court's grant of custody of Dawn to R.H., decided that same date.
We refer to the child by the pseudonym "Dawn" for ease of reference.
Approximately four years ago, D.R. obtained custody of Dawn and a second older child, who remains with him, as a result of R.H.'s substance abuse and the family's subsequent involvement with the Division of Child Protection and Permanency (DCPP), then known as the Division of Youth and Family Services. Thereafter, on March 13, 2009, D.R. and R.H.'s mother, H.H., entered into a written agreement whereby D.R. transferred custody of Dawn to H.H. in exchange for her promise not to hold him "responsible for any educational, personal, medical or financial matters pertaining to [the child]." Since the DCPP proceedings, R.H., who resides with H.H., has completed an inpatient substance abuse program, an intensive outpatient treatment program, asserts she is monitored by her physician for drug use, and that she remains drug-free.
On this appeal, like he did before the trial judge, D.R. explains that he does not wish to take custody of the child. Instead, he contends the court's transfer of custody from maternal grandmother to the biological mother on the limited record available was error. D.R. questions R.H.'s sobriety. In reaching its decision, the court considered certifications submitted by the parties and heard oral argument.
We affirm the order essentially for the reasons stated by the Family Part judge in his cogent initial written decision, as supplemented on May 1, 2012, pursuant to Rule 2:5-1(b), with the following brief comments. No plenary hearing was conducted, but in the final analysis, there were no differences in the material facts which required such a hearing. The court in both written decisions found that R.H. had achieved sobriety, based on documentation regarding her successful completion of substance abuse programs. Despite expressing skepticism regarding R.H.'s assertions, D.R. proffers no actual circumstance which would cast doubt on R.H.'s claims of sobriety or the judge's conclusion that R.H. had achieved it.
Given that D.R.'s doubts about R.H.'s sobriety were unsubstantiated, nothing in the record causes us to question the judge's conclusion that R.H., who resides, as she has for years, with her mother and with Dawn, had become drug-free and was therefore able to resume custody of her child. We also note that the February 1, 2012 order directed that R.H.'s custody of the child required the continuing supervision of the maternal grandmother.
Furthermore, as the court observed, D.R. was not seeking the transfer of custody to himself, but only to prevent the biological mother from obtaining it. Ordinarily, changes in custody should not be made in the absence of a plenary hearing. See R. 5:8-6; Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). But in this instance, the "change" in custody did not in any sense affect the real world status quo — R.H., her daughter, and her mother merely continued living together as a family unit.
The transfer in custody did not affect any aspect of the child's home life. Therefore in this unusual case, the absence of a hearing was not a fatal flaw. D.R. was essentially seeking only to compel the court to enforce an agreement between himself and a third party, thereby compelling that third party to retain custody of Dawn over the biological parent. See Faucett, supra, 411 N.J. Super. at 119 (a fit parent is presumptively entitled to custody in a dispute between the parent and a third party).
In any event, that the mother became drug-free and was able to document her treatment efforts constituted sufficient changed circumstances. See Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div.), certif. denied, 192 N.J. 73 (2007). The burden of proof was clearly on R.H., and she met that burden. See ibid. Even if the dispute had been between the maternal grandmother and R.H., the presumption in favor of the biological parent would only have been overcome on "a showing of unfitness, abandonment, gross misconduct, or 'exceptional circumstance' . . . ." Watkins v. Nelson, 163 N.J. 235, 246 (2000).
D.R.'s objection to being ordered to pay child support is based on his agreement with the maternal grandmother relieving him from the obligation. But as the Family Part judge stated, the right to child support belongs to the child and cannot be waived by the parents. See Pascale v. Pascale, 14 0 N.J. 583, 591 (1995). Indeed, such agreements are unenforceable. Ordukaya v. Brown, 357 N.J. Super. 231, 241 (App. Div. 2003) (citing Monmouth Cnty. Div. of Soc. Servs. for D.M. and G.D.M., 308 N.J. Super. 83, 95-96 (Ch. Div. 1997)). Since the agreement is unenforceable, and the Board was entitled to child support payments on behalf of Dawn, the court did not err in this regard either. An agency entitled to receive support, such as the assignee here, may file a summary action under Rule 5:6-1. The right to support exists regardless of where the child is living, or who technically may have custody. Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION