Opinion
DOCKET NO. A-2562-12T1
09-22-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.F., Defendant-Appellant, and B.F., Defendant-Respondent. IN THE MATTER OF B.F., Jr. and H.F., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant C.F. (Eric R. Foley, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Respondent B.F. has not filed a brief. Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Leone and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-252-09. Joseph E. Krakora, Public Defender, attorney for appellant C.F. (Eric R. Foley, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Respondent B.F. has not filed a brief. Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendants C.F. (Mother) and B.F. (Father) married and had two sons, B.F., Jr. (Junior) in 1996, and H.F. in 1997. Mother appeals the trial court's fact-finding that she abused or neglected the children. She also challenges the subsequent course of the "abuse or neglect" (FN) litigation. We affirm.
I.
On June 23, 2009, the Division filed a verified complaint under N.J.S.A. 9:6-8.21 to -8.73 (Title Nine). That same day, a Family Part judge granted an order to show cause, placing the children in the care and supervision of the Division. The court also ordered "that the children remain with [Father] at this time," that Mother submit to psychological and psychiatric evaluations, and that her visitation with the children be supervised by the Division. After Mother's requests for a stay and leave to appeal were denied, subsequent orders provided that while the parents had joint legal custody, the children were to continue in Father's physical custody.
The fact-finding hearing commenced with the submission of documentary evidence on December 21, 2009, followed by thirteen days of testimony, with closing arguments on April 7, 2011. The court heard testimony from the children's therapist, their school principal, a case worker, Father, Mother, her psychiatrist, and her therapist. On July 25, 2011, the trial court issued a written opinion finding as follows.
Mother was diagnosed with Paranoid Personality Disorder, Delusional Disorder, Post-Traumatic Stress Disorder, Bipolar Disorder, and other disorders. These disorders affect her ability to parent and her overall judgment. As a result, the family has a significant history with the Division, dating back to 2007. On May 5, 2009, the Division received a referral from the school principal relating information provided by Junior. Subsequent investigation confirmed two forms of abuse by Mother.
First, Mother made the twelve- and thirteen-year-old boys sleep with her in a single bed, and kept the bedroom door locked and alarmed at night. Mother was unable to appreciate the risk of harm created by such a situation.
Second, Mother told Junior Father was sexually harassing him. Indeed, she repeatedly told Junior, and to a lesser extent H.F., they would be sexually abused by Father. Mother's harmful utterances to the children that Father was "a sexual predator were malicious, callous, and had no basis in fact."
According to their therapists, the children endured significant exposure for a prolonged period to the manifestations of Mother's personality disorder, which had proven emotionally injurious to both children. As a result of Mother's pattern of distorted and paranoid thinking, and her need to involve them in adult concerns and make them emotionally responsible for her welfare, ongoing contact with Mother caused the children anxiety and distress. She imposed an intense emotional burden, and left the children emotionally compromised and distrustful of all resources. The court ultimately found that Mother abused the children by inflicting protracted impairment of their emotional health.
On appeal, Mother asserts that the Family Part judge's finding was not supported by relevant, credible evidence. We must "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). "Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We must examine "whether there was sufficient credible evidence to support the trial court's findings." M.C. III, supra, 201 N.J. at 342. "We will not overturn a family court's fact-findings unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We must hew to that standard of review.
In a fact-finding hearing under N.J.S.A. 9:6-8.44, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence." N.J.S.A. 9:6-8.46(b). The definition of "[a]bused or neglected child" addresses the infliction of emotional harm in two subsections.
First, under N.J.S.A. 9:6-8.21(c)(1), the definition includes a child whose parent "inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ." Ibid. This subsection, on its face, requires "physical injury," which did not occur here. Although the fact-finding opinion cited this subsection, neither we nor our Supreme Court have ever approved reliance on N.J.S.A. 9:6-8.21(c)(1) in the absence of physical injury. We must "strive to give effect to every word rather than to ascribe a meaning that would render part of the statute superfluous." N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 36, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). Accordingly, given the absence of physical injury to the children, N.J.S.A. 9:6-8.21(c)(1) is inapplicable.
Second, the definition of an abused or neglected child in N.J.S.A. 9:6-8.21(c)(4)b includes:
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
Mother argues that the evidence was insufficient to support a finding of abuse or neglect under this subsection. We disagree. The evidence amply supported the trial court's factfindings. Mother was repeatedly hospitalized for psychiatric evaluation, but stopped taking her medications and refused assistance. Her paranoia caused numerous and persistent delusional accusations.
"Mental illness, alone, does not disqualify a parent from raising a child. But it is a different matter if a parent refuses to treat [her] mental illness, [and] the mental illness poses a real threat to a child[.]" F.M., supra, 211 N.J. at 450-51. "'[A] psychiatric disability can render a parent incapable of caring for his or her children.'" New Jersey Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 585 (App. Div. 2010) (quoting New Jersey Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008)); see N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 424, 436 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Here, the effect of Mother's mental illness on the children was evidenced by their own statements, as testified to by their therapist, the school principal, and the caseworker. See N.J.S.A. 9:6-8:46(a)(4). Junior reported Mother was frequently yelling, screaming, and cursing. She repeatedly made accusations that Father would sexually abuse them and that people would break in and rob them. She installed locks and surveillance cameras throughout the house. She involved the children in marital issues between her and Father. Junior said Mother "really scared him" and "he couldn't take it anymore." H.F. was similarly afraid of Mother. The caseworker expressed concern that the children were mentally abused and upset, because Mother's paranoid statements kept them in a constant state of fear.
The children's therapist testified they were incapable emotionally of dealing with Mother's "very toxic" accusations. Her accusations were deeply confusing, caused great anxiety, imposed emotional burdens and adult responsibilities on them, and were "very very harmful." In addition to her calumny against Father, Mother told the children the Law Guardian was misrepresenting their wishes to the court, and caused them to believe that the Law Guardian, the Division, and the court were conspiring to terminate Mother's parental rights. This produced mistrust, imposed great anxiety and adult burdens on the children, and forced the court to prohibit Mother from discussing the litigation with them.
This testimony was supported by documented evidence detailing the harm to the children caused by Mother's mental problems. Even Mother's therapist conceded that telling the children their Father was going to sexually molest them would create a risk of harm and affect their psychological health. Thus, there was ample evidence that the children's "emotional condition ha[d] been impaired" by Mother's failure to provide them "with proper supervision" and by her "unreasonably inflicting" emotional harm on them. N.J.S.A. 9:6-8.21(c)(4).
The evidence also indicated that Mother failed to exercise "a minimum degree of care." Ibid. That standard requires only "'conduct that is grossly or wantonly negligent, not necessarily intentional.'" N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305 (2011). "'[A] person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury.'" Id. at 306. Here, the evidence showed Mother's conduct was "grossly negligent or reckless." Ibid. Indeed, even after being informed by the children's therapist that she was harming the children by making such accusations to them, Mother's behavior persisted.
Mother admits she was experiencing serious mental health problems. However, she argues that, even assuming the children were emotionally harmed, the root cause of that harm was Father's long-term abuse of Mother. Even Mother's psychiatrist found no factual basis for this claim. Indeed, Junior told the caseworker Mother physically attacked Father, but he did not fight back. Father also related how Mother attacked and bloodied him in front of the children. Only Mother testified about alleged abuse by Father, and the trial court found Mother was "the least credible witness in this trial." "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." New Jersey Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). We see no basis to upset the court's credibility finding.
Mother further faults Father for his delay in taking action to protect the children when she suffered mental problems. However, Father initially took action to help her, and acted to protect the children once they revealed Mother's paranoid accusations. In any event, the trial court found that it was Mother, not Father, who was impairing the children's emotional health.
Mother asserts that her mental health problems developed through no fault of her own. However, lack of moral culpability is not dispositive. In re Guardianship of R.G., 155 N.J. Super. 186, 194 (App. Div. 1977); see New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986). Where children are abused or neglected due to parents' mental health issues, "'[t]hat the parents may be morally blameless is not sufficient to tip the scales in their favor.'" I.H.C., supra, 415 N.J. Super. at 585 (quoting A.G., supra, 344 N.J. Super. at 436, 438). "Because the primary focus [of N.J.S.A. 9:6-8.21] is the protection of children, 'the culpability of parental conduct' is not relevant." M.C. III, supra, 201 N.J. at 344.
II.
Mother's remaining claims challenge the subsequent course of the FN litigation. She asserts that the court improperly suspended her visitation time indefinitely, failed to hold a dispositional hearing, and improperly dismissed the litigation.
In the July 25, 2011 fact-finding opinion, the judge ordered that "[p]ending a dispositional hearing, to be held before another judge, the residential placement of the two children is to continue with [Father]." The court also ordered Mother's supervised visitation to continue, and scheduled a dispositional review for October 12, 2011.
At a supervised visit on October 7, 2011, Mother violated the order barring her from discussing the litigation with the children. Mother told the children that the Division was conspiring to suppress the truth, and instructed them to fill out papers for use in the litigation. Mother's demand upset the children and caused an unusual division between them. When a caseworker tried to intervene, Mother physically threatened her, yelled, and cursed. Mother falsely told the children that the Division was trying to terminate her parental rights. She said she would not be able to see them again until they turned eighteen years old. She reduced H.F. to tears and left Junior visibly shaken.
As a result, on October 12, the Division moved to suspend Mother's visitation temporarily pending therapy. The successor judge held an evidentiary hearing on the motion. Mother insisted her statement was appropriate even though she conceded it probably hurt the children. The therapist opined that further visitation created a risk of ongoing harm, and that visitation should be suspended until therapy gave Mother the ability to control her impulse to involve the children in the litigation.
Crediting the therapist, the court found Mother inexcusably and knowingly harmed the children, persisted in violating the court's order barring discussion of the litigation, and would probably harm the children if visitation continued. Accordingly, the court "temporarily suspend[ed] Mother's visitation pending therapy until such time that it is documented by a licensed therapist that mother has both the awareness of her behavior is both detrimental to her children's welfare and that she has developed the appropriate emotional restraints to resist involving her children." The court told Mother she had "to get [her]self under control and then I'll be happy to reinstate visitation."
The court's order continued the parents' joint legal custody and Father's physical custody. Mother filed a motion in this court, but ultimately did not prosecute an appeal.
On January 18, 2012, the court reiterated that Mother's visitation would remain suspended until she complied with the October 12, 2011 order. Mother's counsel said Mother had reports from her therapist and psychiatrist to establish compliance. The court ordered Mother to provide discovery for a hearing to vacate the October order. The court's order scheduled a "dispositional hearing" for July 2012.
Before the July hearing, Mother fired her counsel, and received appointed counsel. The July hearing was postponed to allow appointed counsel to prepare. At the next hearing, Mother said she did not want to resume supervised visitation, and was instead seeking "to go to the Appellate Division and have this case dismissed."
Mother's appointed counsel said that the existing expert opinions were not usable, and requested that Dr. David Bogacki perform a psychological and bonding evaluation of Mother to comply with the October 12, 2011 order. The court granted that request, and scheduled a hearing for January 3, 2013.
At a pre-hearing conference, the court ordered that if Mother failed to appear for the evaluation, the FN litigation would be subject to dismissal. The court repeated that warning after Mother's counsel unsuccessfully moved to vacate that order, stating that Mother refused to attend the evaluation.
On January 3, 2013, Mother's counsel announced that Mother wanted "to bring this matter to an end today" by having the FN matter dismissed so "it's ripe for appeal." In a colloquy, Mother said she had not, and would not, attend an evaluation by Dr. Bogacki. She also said she had "no intentions of vacating the [October 12, 2011] no visitation order." Mother proclaimed she would not "seek visitation or reunification with [her] children" until she exhausted her appeal from the FN case. She confirmed she was "seeking to have this litigation dismissed."
Without consulting with her counsel, Mother obtained a report from another doctor. The report stated that the doctor would not testify. For that reason and others, the court found the report was not competent evidence.
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The Division moved for dismissal, stating that there was no threat to the safety of the children because they were in the physical custody of Father, and that all services to the children had been successfully completed. The Law Guardian agreed, noting that, though the children want to spend time with Mother, changes to custody or visitation could be addressed in the divorce litigation. In a second colloquy, Mother reiterated her position that she was not seeking modification of the orders governing custody and visitation until after her appeal. When told appeal would take about a year, she replied "[t]hen that will be that."
When the court began to rule that it was granting dismissal, Mother repeatedly interrupted and refused to be silent. Mother interjected that her rights were being violated. She claimed she would do an evaluation by Dr. Bogacki, that the FN litigation should continue, and that she wanted to seek visitation and have a dispositional hearing. After stating that, "[t]his case is no longer serving the purposes that were statutorily intended by Title 9," the court finished its ruling in a written order.
The court's order stated as follows. The January 3, 2013 hearing was to be the compliance hearing contemplated by the October 12, 2011 order. Despite the court's orders, Mother failed to produce the required expert reports, and failed to attend the expert evaluation scheduled by her attorney. "[T]he mother ha[d] been previously advised that this matter may be subject to dismissal in the event no reports are offered, and the mother ha[s] failed to present expert testimony." There was no present threat to the safety or welfare of the children, given "the current order granting joint legal custody to the parties and primary physical custody to the father." "[T]here will be no due process violation as a result of the dismissal" because all orders entered in the FN litigation relating to custody and visitation would be incorporated into the ongoing divorce litigation. Thus, the court dismissed the FN litigation.
A.
On appeal, Mother contends that the court abused its discretion in suspending her supervised visitation. Under Title Nine, "[t]he court may make an order of protection in assistance or as a condition of any other order made under this act." N.J.S.A. 9:6-8.55. "The order of protection may set forth reasonable conditions of behavior to be observed for a specified time," including awarding custody of a child to one parent, specifying when a parent may visit a child, or requiring a parent "[t]o stay away from" the child. Ibid.
Mother does not dispute that suspension was warranted after she violated the court's order and harmed the children by discussing the litigation during supervised visitation. Instead, she contends the court erred by suspending her supervised visitation indefinitely rather than for "a specified time." Ibid. To the contrary, the court specified that the suspension would last "until such time that it is documented by a licensed therapist that mother has both the awareness of her behavior is both detrimental to her children's welfare and that she has developed the appropriate emotional restraints to resist involving her children." Thus, the court's "specified time" was when Mother presented evidence that resuming supervised visitation would not harm the children. Given that the Division's supervision of the visitation had proven unable to protect the children from Mother's behavior, we find no abuse of discretion.
Contrary to Mother's claim, the court acknowledged the children's desire to see her. The court encouraged her to get treatment, obtain the requisite evidence, and resume visitation. It scheduled hearing after hearing, and gave her over fifteen months to present the evidence. She failed to do so, and refused to attend an evaluation to obtain that evidence. Instead, she proclaimed she no longer wished to resume supervised visitation, and would neither meet nor challenge the suspension order.
Mother complains that the suspension order survived the termination of the FN litigation because it was incorporated into the divorce litigation. As the court made clear, however, Mother can still satisfy the October 12, 2011 order by presenting the requisite evidence to the matrimonial judge. If Mother does not do so, she has no one to blame but herself.
B.
Mother also argues that the court erred by failing to hold a dispositional hearing. A dispositional hearing comes after the fact-finding hearing. N.J.S.A. 9:6-8.47(a), -8.48(b), -8.50(d). A "'dispositional hearing' means a hearing to determine what order should be made." N.J.S.A. 9:6-8.45.
At the conclusion of a dispositional hearing under this act, the court shall enter an order of disposition: (1) suspending judgment in accord with section 32 hereof; (2) releasing the child to the custody of his parents or guardian in accord with section 33 hereof; (3) placing the child in accord with section 34 hereof; (4) making an order of protection in accord with section 35 hereof; (5) placing the respondent on probation in accord with section 36 hereof; (6) requiring that an individual found to have abused or neglected a child accept therapeutic services[.]
[N. J.S.A. 9:6-8.51(a).]
Thus, "N.J.S.A. 9:6-8.51(a) requires the court to enter an order adopting one or more of six dispositional options, which are not all mutually exclusive." New Jersey Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 475 (App. Div. 2010). "The court shall state the grounds for any disposition made[.]" N.J.S.A. 9:6-8.51(b). Further, Title Nine anticipates that there will be "a final order of disposition," which is appealable as of right. N.J.S.A. 9:6-8.31(a), (d), -8.49, -8.50(d), -.8.70.
The Supreme Court has held that "[a] dispositional hearing must be held to determine the appropriate outcome of the case." New Jersey Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009). It is a "critical stage[] in Title Nine proceedings." Id. at 401. The hearing "must be conducted 'with scrupulous adherence to procedural safeguards,' and the trial court's conclusions must be based on material and relevant evidence." Ibid.
In G.M., the mother and father shared joint legal custody but the mother had primary physical custody. At the beginning of the Title Nine litigation, the court gave the father temporary custody. After the fact-finding hearing determined the mother committed abuse and neglect, the trial court continued the temporary placement with the father. After multiple case management conferences, but without a final dispositional hearing, the trial court granted the Division's motion to dismiss the proceeding, advising the mother that she could seek a custody modification through a matrimonial action. G.M., supra, 198 N.J. at 387.
We reversed because the proceedings had not given the mother an appropriate opportunity "to oppose the loss of physical custody of her children." Id. at 393. The Supreme Court found "[t]he key deficiency of the proceeding" in the trial court was its "failure to hold a dispositional hearing." Id. at 402. The Court held that "the statutory framework of Title Nine provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be." Id. at 387-88. "[T]he availability of a noncustodial parent to care for the children does not alter the responsibility of the Division to follow the statutory framework for litigating a Title Nine action." Id. at 402 n.3.
This case resembles G.M. in several respects. Prior to the Title Nine proceedings, the children were in the joint legal custody and joint physical custody of Mother and Father. However, the June 23, 2009 order implicitly, and all subsequent Title Nine orders explicitly, placed the children in the physical custody of Father. Under G.M., a dispositional hearing would generally be required. Indeed, the fact-finding order anticipated that a dispositional hearing would be held.
However, Mother's misconduct diverted the proceedings. The October 12, 2011 hearing was converted from dispositional review into a hearing on a motion to suspend her supervised visitation. The order granting that motion required her to provide a report before the suspension would be lifted. All subsequent hearings focused on her efforts to satisfy or vacate that order.
The Division and Law Guardian cannot identify any specific dispositional hearing. Instead, they contend that all the hearings that followed the fact-finding hearing were dispositional hearings. See New Jersey Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 20 (App. Div. 2010) ("As a matter of practice, several dispositional hearings may be held until the Title 9 litigation is concluded."). We recognize the court later referred to the October 12, 2011 order as a "dispositional order," scheduled a "dispositional hearing" for July 2012 that was postponed, and issued several "dispositional review" orders prior to the January 3, 2013 order.
However, none of these hearings constituted the dispositional hearing contemplated by G.M., because they did not ultimately "determine whether the children may safely return to [Mother's] custody, and if not, what the proper disposition should be." G.M., supra, 198 N.J. at 387-88. Moreover, none of the orders issued before January 3, 2013, could be considered the final order of disposition, because "the Title Nine action remained open, further services were ordered and the children were not returned to their mother." New Jersey Div. of Child Prot. and Permanency v. L.W., 435 N.J. Super. 189, 194 (App. Div. 2014); see New Jersey Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 164 (App. Div. 2003).
Even the January 3, 2013 hearing focused on Mother's failure to comply with the October 12, 2011 order, and the sanction of dismissal. It was not an evidentiary hearing with sworn witnesses and cross-examination, and no material and credible evidence was presented to prove whether it was safe to return the children to Mother's custody. See G.M., supra, 198 N.J. at 401-02. Similar to the order reversed in G.M., the January 3, 2013 order did not decide that issue, but simply dismissed the FN litigation, leaving Father with custody of the children, and leaving Mother to seek a change of custody in the divorce action. Thus, there was no dispositional hearing or final order of disposition in this Title Nine action.
C.
Unlike G.M., we find no reversible error here, for three reasons. First, it was Mother's own misconduct which derailed the court from its stated goal of holding a dispositional hearing. Mother's harmful violation of the court order precluding discussion of the litigation with the children forced the court instead to address the issue of suspending her visitation. She then prolonged and prevented resolution of that issue. She failed to produce the requisite report showing that she could safely have supervised visitation, and refused to attend the evaluation needed to generate such a report, even when warned that the consequence would be dismissal. We are reluctant to allow a party to claim as error the failure to hold a hearing, which her own misconduct and recalcitrance prevented.
Second, Mother asked the court to dismiss the FN litigation so she could appeal to this court. She made clear she desired dismissal and appeal before any trial court held a hearing addressing visitation or custody. Accordingly, Mother "should not be heard to complain that the trial court rendered its decision without conducting a plenary hearing." CFG Health Sys., LLC v. Cnty. of Hudson, 413 N.J. Super. 306, 321 (App. Div. 2010). "'The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" M.C. III, supra, 201 N.J. at 340. "'[A] defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, . . . then condemn the very procedure [s]he sought . . . claiming it to be error and prejudicial.'" Ibid. That is precisely what Mother did as soon as the court granted the dismissal she had sought.
Third, Mother cannot show plain error. See New Jersey Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 622 (App. Div. 2010). At the evidentiary hearing on October 12, 2011, the court properly found that Mother's intent to involve the children in the litigation made it unsafe to have supervised visitation. Thereafter, Mother was unable to obtain a report showing that supervised visitation was safe. There was no indication that her intent and the risk of harm had abated. Thus, Mother cannot show, had a dispositional hearing been held, the court would have determined "that the children may safely return to . . . her custody." G.M., supra, 198 N.J. at 387-88. Thus, any error was not "clearly capable of producing an unjust result," R. 2:10-2, let alone a "fundamental injustice that would warrant relaxing the invited error doctrine," M.C. III, supra, 201 N.J. at 342.
Mother's misconduct, her request for dismissal, and the lack of prejudice distinguish this case from G.M. The G.M. case was "especially troubling" to the Court because the mother was making great progress, and the Division recommended that the children be returned to her care, implying "that the children could be safely returned to their mother." G.M., supra, 198 N.J. at 392-93, 401. Moreover, dismissal was granted "[w]ithout prior notice," and "over the mother's 'well-founded claim of surprise.'" Id. at 393, 401-02. None of those factors were present here.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION