Opinion
DOCKET NO. A-4621-10T2
02-16-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. A.M., Defendant-Appellant, and H.E., Defendant. IN THE MATTER OF D.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole T. LaFerriere, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.M. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Grall.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-186-08.
Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole T. LaFerriere, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.M. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
A.M. appeals from an order of the Family Part finding that she abused and neglected her three-year-old son, D.M., and from a later order of March 29, 2011, dismissing the Title 9 litigation, awarding custody to the child's maternal relatives, and limiting A.M.'s visitation with D.M. We affirm the abuse and neglect adjudication and remand for a dispositional hearing.
By way of background, A.M. is the biological mother of D.M., born February 25, 2005. Three years later, on February 28, 2008, the Division of Youth and Family Services (Division) effected an emergency removal of D.M., N.J.S.A. 9:6-8.29 to -8.30, and placed him in the care of his maternal great-aunt and uncle. This action followed the Division's investigation of a referral that same day from Jackson Township Police, who initially reported that A.M. and her father — D.M.'s maternal grandfather — had been in a domestic dispute, and under the influence of narcotics and alcohol; that A.M. was then arrested for possession of drug paraphernalia; and that a "no contact" order was made a condition of her bail. The Division's subsequent investigation substantiated neglect based in part on drugs and drug paraphernalia found in the home within reach of the child and on the overall unsanitary condition of the residence. Specifically, when the Division caseworker arrived, he found a clearly ill maternal grandmother living in a very cold home. The boiler was broken and the home was being heated with the stove and several small, inadequate space heaters. The residence was in deplorable condition with cigarette butts strewn about, old food and dirty dishes in the child's room and the kitchen, and clean and dirty laundry tossed throughout. When the caseworker later observed A.M. in her cell at the police station, she appeared to be under the influence, with bloodshot eyes and smelling of alcohol, slurring her words and frothing at the mouth. The maternal grandfather also appeared to be under the influence because he too had bloodshot eyes and reeked of a strong odor of alcohol.
H.E. is the purported biological father of D.M. and at the time of the emergency removal was at the Bo Robinson treatment facility in Trenton.
When the matter returned to court on April 8, 2008, the Division reported that A.M. was not complying with random urine screens. Later, when the matter was again heard on May 19, 2008, the Division reported that D.M. had "bottle-rot," a condition affecting the teeth and gums requiring at least five dental appointments to remedy. D.M. was not potty-trained and was in need of a Child Study Team evaluation to determine whether there were any developmental delays.
A fact-finding hearing into the Division's allegations of abuse and neglect was held on June 20, 2008. At the close of evidence, the Family Part judge found by a "preponderance of the credible evidence" that A.M. neglected and abused D.M. as a result of the events that occurred on February 28, 2008. Subsequent court orders detailed the services A.M. was required to avail herself of. On February 10, 2009, an order was entered providing for a permanency plan of reunification, wherein D.M. was returned to the shared legal and physical custody of A.M. and the maternal grandfather, who was to supervise A.M.'s contact with her son. A.M. was ordered to continue to engage in substance abuse treatment and counseling. All parties consented to the terms of this order.
Subsequent case management orders through March 19, 2010, allowed for physical custody of D.M. to remain with A.M. and with legal custody shared between A.M. and H.E. In fact, the orders dated February 18, 2010, March 12, 2010 and March 19, 2010 indicated physical custody was with A.M. alone, and consequently A.M. no longer needed to have her contact with D.M. supervised.
Thereafter, however, the matter returned to the court on April 23, 2010 on the Division's emergent application, occasioned by an incident wherein A.M. had stabbed herself in the leg and attempted to obtain multiple prescriptions for pain killers. Although A.M. was not present because she was hospitalized, her counsel did not offer any proof contrary to the Division's representations. In fact, counsel advised that if the court were not to return the child to A.M., "we should be amenable to the child being placed with [the] maternal great aunt." Accordingly, at the suggestion of the Law Guardian, the court placed D.M. in the legal and physical custody of his prior caregiver, his maternal great aunt. A subsequent order of June 10, 2010, consented to by all the parties, provided for visitation for both A.M. and H.E. and added the maternal great uncle and paternal grandfather as D.M.'s legal custodians. Consent orders of September 16, 2010 and February 4, 2011, provided continued services for A.M., directed A.M. to confirm her visitation in advance and be on time, addressed supervised visitation for H.E., and continued legal custody of D.M. with the paternal grandfather and legal and physical custody with the maternal great aunt and uncle.
On March 29, 2011, the court heard an application by the Division to dismiss the case providing that D.M. would remain in the sole legal and residential custody of his maternal great aunt and uncle with whom he had been residing, and, on the other hand, a motion by counsel for A.M., requesting D.M. be placed in the joint custody of A.M. and the maternal great aunt and uncle, and for a hearing regarding same. The Law Guardian also requested that the court conduct a hearing but did not support a shared custodial arrangement involving either A.M. or the paternal grandfather.
After hearing argument from counsel, including the Division's update regarding A.M.'s non-compliance with court-ordered services, continued drug use, and lack of consistent visitation, the court held that A.M. did not establish the threshold showing of prima facie evidence of changed circumstances entitling her to a hearing. The court advised that no testimony would be taken, that A.M.'s motion would be denied without prejudice, and that she could apply for custody based on changed circumstances under a separate docket number. The court ordered that legal and physical custody of D.M. remain with the maternal relatives and then dismissed the litigation without a hearing, concluding:
The defendant [A.M.] has . . . brought a motion essentially to shift, not residential custody, but legal custody so that it would be a joint status between the [maternal relatives] and his client, [A.M.]. Under the Court Rule and case law, I think
the first thing before we get into a plenary hearing on that is that there has to be a prima facie case shown by the petitioner for a change in that and it has to show changed circumstances and I don't believe that that burden has been met on a number of fronts.
First of all, I don't think that there is an adequate relationship between . . . [A.M.] and the [maternal relatives] that would [be] indeed, in the best interests of the child, so that they would be able to effectively communicate with one another. I think [A.M.] is still dealing with issues of her own. I think she would be better served to deal with those issues right now and get herself better and to be more compliant with services and the program and visitation and showing up when you're supposed to show up on time.
. . . I don't believe that [a] plenary hearing is necessary. If I did, then I would have heard from the [maternal relatives]. I would have heard from [A.M.]. I would have heard from any other fact witnesses. But I don't believe [A.M.] has met the threshold first of showing a prima facie case of changed circumstances which would entitle [A.M.] to a plenary hearing. So, therefore, the Court doesn't find a need to speak with the caregivers at this point.
And, accordingly, the request of the defendant, [A.M.], is denied. Of course, it's always denied without prejudice. Custody is never a permanent thing. I mean, she can apply for custody . . . under a different docket at such time that she believes that changed circumstances warrant a change in the legal custody and/or residential custody of [D.M.]. But at this point in time, I don't believe that's been shown.
This appeal follows, in which A.M. challenges the finding of abuse and neglect and the failure to conduct a dispositional hearing before awarding custody of D.M. to the maternal relatives. Although we find sufficient credible evidence to support the abuse and neglect finding, an order of disposition terminating the Title 9 litigation and placing D.M. in the custody of his maternal relatives could not have been entered without a plenary hearing, which was not afforded A.M. in this instance. We, therefore, remand for such proceedings.
I
As a threshold matter, the scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We "uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." Id. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Moreover, we recognize that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to the family court factfinding.'" N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
A finding of abuse and neglect within the meaning of Title 9 requires at a minimum that the child has a "physical, mental or emotional condition [that] has been impaired or is in imminent danger of becoming impaired as the result of the failure of his or her parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education[] [or] medical . . . care" even though the parent is financially able to do so either through his or her own means or through offered aid. N.J.S.A. 9:6-8.21(c)(4)(a); see also N.J.A.C. 10:129-1.3. The failure to provide for a child's needs when a parent is capable of doing so supports a finding of actionable neglect when a child's condition has been demonstrated to be impaired or in imminent danger of being impaired. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 552-56 (1994).
Here, there is ample credible evidence to support the abuse and neglect finding. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). The Division's proofs detailed an acute threat to D.M. in having suspected heroin and drug paraphernalia within the child's reach; living in unsanitary conditions with little or no heat; and being cared for by a parent under the influence of an illegal substance. Additionally, D.M. suffered severely decayed teeth and gums due to A.M.'s inattention. These circumstances, collectively considered, provide a sufficient basis for the court's conclusion that D.M. was harmed and at substantial risk of continuing harm, and, as such was an abused and neglected child within the meaning of N.J.S.A. 9:6-8.21(c)(4).
II
Under Title 9, after the fact-finding hearing, the court may dismiss the complaint if it concludes that either its assistance is not required on the record before it, or the Division failed to establish abuse or neglect. N.J.S.A. 9:6-8.50(c). Neither of these alternatives obtained here. Consequently, because the trial court made a finding of abuse and neglect, dismissal in this instance was not appropriate. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009). Rather, where the trial court has found abuse and neglect, a dispositional hearing must be held to determine the appropriate outcome of the case. Id. at 399; N.J.S.A. 9:6-8.50.
Because the dispositional hearing is a critical stage in Title 9 proceedings, G.M., supra, 198 N.J. at 401, it must be conducted "with scrupulous adherence to procedural safeguards[,]" N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004), and the trial court's conclusions must be based on material and relevant evidence, N.J.S.A. 9:6-8.46(b), (c). The witnesses should be under oath and subject to cross-examination. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). "[B]oth sides may present material and relevant evidence for the court to determine whether the [child] may safely be released to the custody of [the] [offending] [parent], who was responsible for [the] [child's] care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate." G.M., supra, 198 N.J. at 402.
Alternatives in determining the appropriate disposition are multiple and include entering a suspended judgment, N.J.S.A. 9:6-8.52; placing the child with "a relative or other suitable person[,]" N.J.S.A. 9:6-8.54(a); making an order of protection, N.J.S.A. 9:6-8.55; placing the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or requiring the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a). In all cases the court "shall state the grounds for any disposition made . . . ." N.J.S.A. 9:6-8.51(b). In sum, as we stated in J.Y., supra, "this critically important part of the business of the Family Part demands meticulous adherence to the rule of law." J.Y., supra, 352 N.J. Super. at 265. Just as important, the trial court must state the grounds for its disposition. N.J.S.A. 9:6-8.51(b).
Here, despite the express request of A.M.'s counsel and the Law Guardian, the trial court failed to hold a dispositional hearing to determine whether D.M. could have been safely released to A.M.'s custody or whether any number of available alternative dispositions would have been appropriate. The court denied the request under the mistaken view that A.M. had to satisfy a threshold prima facie showing of "changed circumstances" when, in fact, no such burden befalls her. To the contrary, a dispositional hearing replete with procedural safeguards flows automatically from an abuse and neglect finding and the deprivation of such a critical stage in this instance denied A.M. her "basic due process rights[,]" G.M., supra, 198 N.J. at 402, at the final proceeding on March 29, 2011, when the court dismissed the Title 9 litigation and effectively awarded custody to the maternal relatives indefinitely, a disposition not authorized by Title 9 in any event. N.J.S.A. 9:6-8.54(b)(1); Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 111 (App. Div. 2010). Instead of the dispositional hearing to which A.M. was clearly entitled, the March 29, 2011 proceeding was fatally inadequate due to the lack of sworn witnesses, the failure to introduce documentary evidence, the failure to call expert witnesses, and the termination of the proceeding over A.M.'s objection. Consequently, we remand for a dispositional hearing.
Affirmed in part; remanded in part.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION