Opinion
DOCKET NO. A-4822-10T3
05-09-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.O., Defendant-Appellant, and W.L., SR., Defendant-Respondent. IN THE MATTER OF B.L. and W.L., JR., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Larry Leung, Designated Counsel, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief). W.L., Sr., respondent pro se. Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor B.L. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor W.L., Jr. (Michele C. Scenna, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-0082-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Larry Leung, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief).
W.L., Sr., respondent pro se.
Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor B.L. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor W.L., Jr. (Michele C. Scenna, Designated Counsel, on the brief). PER CURIAM
Defendant L.O. appeals from an April 28, 2011 Family Part order terminating this Title Nine proceeding, awarding her and her husband, W.L., Sr., joint legal custody of their two minor children, B.L. and W.L., Jr., and granting W.L., Sr. interim physical custody of the children. Because the New Jersey Division of Youth and Family Services (the Division) failed to establish abuse or neglect and the Title Nine action was dismissed, we conclude that the children must be returned to L.O., the parent from whose custody they were removed. Accordingly, we vacate the trial court's order and remand for further proceedings.
The record discloses the following facts and procedural history on appeal.
On August 14 2009, W.L., Sr. drove L.O. and their two children to their maternal grandmother's house for an extended visit while W.L., Sr. remodeled their marital home. Within days after their arrival at the maternal grandmother's, W.L., Sr. called L.O. and expressed his desire for a divorce. Ensuing telephone conversations between W.L., Sr. and L.O. prompted L.O. to obtain a domestic violence temporary restraining order against W.L., Sr., which was grounded in his alleged threats to hurt someone with a knife.
Following entry of the restraining order, the Division received a referral, reporting that L.O. had alleged W.L., Sr. sexually abused their young daughter, B.L. Following her report to the authorities, L.O. voluntarily committed herself for psychological evaluation as a result of stress and risk of suicide.
The Division subsequently filed a complaint pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 against both L.O. and W.L., Sr., alleging abuse and neglect of their children.
During the course of the ensuing investigation of the sexual abuse allegation against W.L., Sr., Division caseworker Albert Weedon determined that L.O.'s claim was unfounded. Nevertheless, the domestic violence temporary restraining order prevented the children's placement with their father and with L.O. as she was undergoing evaluation. Weedon further determined that future placement at the maternal grandmother's home was unsafe due to ongoing construction work, exposed wiring, pipes, outlets, and the lack of walls and ceilings.
The Division removed the children from their maternal grandmother's house and temporarily placed them with a maternal cousin. Thereafter, the children's paternal grandmother offered to stay with the children at the marital home, as W.L., Sr. had agreed to move out. However, safety issues regarding exposed wires and ongoing construction to the marital home made placement there unsafe. The children were then temporarily placed at their paternal grandparents' house while repairs to the marital home were being completed.
L.O. was released from the hospital on August 30, 2009. In September, she withdrew the domestic violence temporary restraining order and complaint against W.L., Sr. On October 16, the judge ordered "interim residential custody" of the children to be relocated with W.L., Sr. at the marital home. The paternal grandparents were ordered to serve as supervisors. Two months later, the Family Part dismissed the obligation of supervision imposed on each parent. At that time, W.L., Sr. continued physical custody of the children, while L.O. had biweekly overnight visitation privileges. On January 12, 2010, W.L., Sr. filed a complaint for divorce against L.O.
Several case management conferences ensued with regard to the Division's abuse and neglect complaint and, on January 13, 2011, the Family Part held a trial. Weedon testified that there were no longer any safety concerns or outstanding service requirements for either parent. On January 20, 2011, the Division rested its case and L.O. moved for a directed verdict.
On January 25, 2011, the trial judge entered a directed verdict in favor of L.O. and dismissed the Title Nine action. However, the trial judge did not alter the residential placement of the children with W.L., Sr. Relying on New Jersey Division of Youth and Family Services v. G.M., 198 N.J. 382 (2009), the judge determined that the ongoing matrimonial dispute with regard to the children's custody obviated the need for his further action. He stated that he was ". . . not going to alter the residential placement of these two children with their biological father. Nor am I going to modify or change any access, visitation, or parenting time order that I have created as an interim measure as this case was moved along."
Because the Division could not meet its burden with regard to the Title Nine proceedings, the court never conducted a dispositional hearing. The trial judge deferred the issue of physical custody of the children to the divorce proceedings, concluding "any remaining legal or custodial issues that either [L.O.] or [W.L., Sr.] have can be addressed in the context of the pending divorce litigation."
On appeal, L.O. argues:
THE SUPREME COURT'S INTERPRETATION OF TITLE NINE LITIGATION IN NEW JERSEY DIV. OF YOUTH & FAMILY SERVS. V. G.M. AND THE APPELLATE DIVISION'S INTERPRETATION OF NEW JERSEY DIV. OF YOUTH & FAMILY SERVS. V. J.D. AND NEW JERSEY DIVISION OF YOUTH & FAMILY SERVS. V. N.D. REQUIRES THE TRIAL COURT TO RETURN THE CHILDREN TO THEIR MOTHER, WHO WAS CARING FOR THE CHILDREN AT TIME OF DYFS'S REMOVAL, WHEN THERE IS NO FINDING OF ABUSE OR NEGLECT.
The Law Guardian for B.L. supports this position, maintaining that because L.O. was not found to have committed an act of abuse or neglect, the trial court was obligated to hold a plenary hearing prior to dismissing the action, regarding a change of custody.
On the other hand, W.L., Jr.'s Law Guardian asserts the matrimonial court is the appropriate jurisdiction to address custody issues following a dismissal of a Title Nine action wherein no finding of abuse or neglect was made. The Division concurs with this position, asserting resolution of the custody dispute should be determined with the other divorce issues.
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)). However, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
While the Law Guardian has an obligation to advocate for the wishes of a child over ten who is able to express his or her own view on the issue, see N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 112-14 (2008), in this case neither child was over ten at the time of the trial. The Law Guardian, while actively representing and speaking for the child, has to advocate for the best interests of a child too young to speak for himself, and represents neither adversary in the case. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. 418, 433 (2009) (citation omitted).
Although L.O. and W.L., Sr.'s parenting issues will likely be addressed in the context of the divorce proceedings, the trial judge misapplied the holding in G.M. We conclude he misinterpreted the court's obligations when the Division removes a child and does not prevail in its assertion that the custodial parent engaged in acts of abuse and neglect.
"Both the fact-finding hearing and the dispositional hearing are critical stages in Title Nine Proceedings. Those hearings must be conducted 'with scrupulous adherence to procedural safeguards,' . . . and the trial court's conclusions must be based on material and relevant evidence[.]" G.M., supra, 198 N.J. at 401 (quoting Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004)). A fact-finding hearing must be held prior to a dispositional hearing in order "'to determine whether the child is . . . abused or neglected.'" N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 110 (App. Div. 2010) (alteration in original) (quoting N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.47). "A dispositional hearing 'may commence' upon completion of the fact-finding hearing if 'the required findings are made.'" Ibid. (quoting N.J.S.A. 9:6-8.47(a)).
If the judge determines that abuse or neglect is not established, the Title [Nine] action must be dismissed. . . . [A]n order of disposition placing a child with a person other than the parent from whose custody the child was removed may be entered pursuant to
N.J.S.A. 9:6-8.51 only if there is first a finding of abuse or neglect.
[Ibid. (citing N.J. Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 394 (1990)) (emphasis added).]
In G.M., the Court determined a transfer of physical custody to the non-offending parent constituted a "placement" under Title Nine, stating: "Although 'placement' is not defined in Title Nine, we believe that the Legislature intended to include a non-custodial parent, such as the father here, as 'a relative or other suitable person' with whom the Division was authorized to place the child." Supra, 198 N.J. at 403 (quoting N.J.S.A. 9:6-8.54(a)). Further, N.J.S.A. 9:6-8.54b(1), provides:
Placements under this section may be for an initial period of 12 months and the court, in its discretion, may at the expiration of that period, upon a hearing make successive extensions for additional periods of up to one year each. The court on its own motion may, at the conclusion of any period of placement, hold a hearing concerning the need for continuing the placement.In order for a placement to continue, in the absence of abuse or neglect by the former custodial parent, the trial court must comply with the required statutory procedures including the right to a plenary hearing regarding the children's placement. This remains true, even when the placement rests with the children's other parent.
In this matter, W.L., Sr. was a named defendant because of allegations of domestic violence and aberrant conduct. However, he was not the custodial parent from whom the children were removed. Because the Division's allegations of neglect were not sustained, a dispositional hearing was necessary to discern whether any harm would result by returning the children to their custodial parent, L.O.
We conclude that the trial judge erred in abrogating this determination that placement could be resolved in the matrimonial action once the Title Nine action was terminated. The trial judge effectuated a change in custody by continuing the Title Nine placement, a result specifically rejected by G.M.
The specific purpose of the dispositional hearing is to discern whether the children may safely return home, which in this matter would be to the custody of L.O. The error here was arbitrarily continuing placement without determining the need for its continuance, as mandated by N.J.S.A. 9:6-8.54b(1). This error mandates the order of placement be vacated.
We remand this matter to the trial court for a dispositional hearing on whether the children can safely be returned to L.O. from whom they were removed. This determination does not alter W.L., Sr.'s right to seek physical custody of the children in the matrimonial proceeding. We express no opinion as to the outcome of that matter.
Vacated and remanded with instructions.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION