Opinion
DOCKET NO. A-3010-13T1
11-17-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. B.C., Defendant-Appellant. IN THE MATTER OF N.C., A.C., B.C. & A.C., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Emily J. Daher, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Maynard, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors N.C., A.C., B.C. and A.C. (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-772-13. Joseph E. Krakora, Public Defender, attorney for appellant (Emily J. Daher, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Maynard, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors N.C., A.C., B.C. and A.C. (Karen A. Lodeserto, Designated Counsel, on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Defendant B.C. (Brad) appeals from an October 11, 2013 Family Part fact-finding order that he abused or neglected four children: his two children with A.E. (Amanda), and Amanda's two children from different fathers. Brad also appeals from a January 27, 2014 order terminating the FN litigation and granting legal and physical custody of his children to their maternal grandparents, J.D. (Judy) and G.D. (Gregory). We reverse the finding of abuse or neglect, the dismissal of the FN litigation, and the award of custody under the FD docket, and remand for a permanency hearing.
We use pseudonyms for convenience of the reader, and to protect the family's privacy.
I.
A.
The fact-finding order was entered after what can be described as a "trial on the papers." That is, the parties agreed to forego the presentation of witnesses and to have the court decide the case based solely on documents offered into evidence by the Division. The defense offered no proofs.
The evidence presented consisted of a redacted screening summary regarding an incident on June 20, 2013; an investigation summary regarding the June 20, 2013 incident, which was approved August 15, 2013; and a fact-finding order entered June 11, 2012. We discern the following facts from this record.
Although Brad refers only to the "investigation summary" and not the "screening summary," we conclude that both were admitted into evidence. The exhibit label is affixed to the screening summary. A second fact-finding order was apparently admitted into evidence, but it pertained only to Amanda. We note that the screening and investigation summaries contain extensive embedded hearsay that would otherwise be inadmissible. Brad did not object at the hearing, and does not raise the issue before us.
Amanda and Brad lived together in their Camden home with five-year-old A.C. (Annie); four-year-old B.C., Jr. (Junior); two-year-old A.C. (Alicia); and N.C. (Norris), almost two years old. Brad was not the father of Annie or Junior (notwithstanding his name). The family had an extensive history of involvement with the Division, "including several substantiations," and had an open file with the Division's Gloucester East office. Amanda used heroin and crack cocaine and was under the supervision of Drug Court.
The record reflects that at the time of the court's decision, Annie's father was deceased. Amanda described Brad as the only father Annie knew. J.I., who was identified as Junior's biological father, participated in the proceedings.
A Division worker was prompted to visit the home on June 20, 2013 by a report from a probation officer, who was apparently connected to Drug Court. The probation officer stated that Amanda reported she had relapsed, but failed to appear in court as promised. When the Division worker arrived at the Camden home in the late morning, Brad and the children were home. The Division worker explained what prompted her visit, and stated that she wanted Brad and Amanda to go for a urine drug screen that day.
Brad admitted that he and Amanda had both been using drugs, "but not together." However, he asked "if he could do his urine test tomorrow because he will be clean then." Brad described his drug use:
[Brad] stated that he used cocaine two days ago. [Brad] stated that he does not do it often . . . . Worker asked [Brad] where does he go to get high and he said in the streets, not in the home around his children. Brad stated that [Amanda] is never home with the children, she is gone a lot and he cares for the children.
The worker decided to initiate a Dodd removal, rather than implement a safety protection plan, due to "parental drug use." The worker also determined that the maternal grandmother was unable to take the children.
A "Dodd removal" refers to the emergency removal of a child from his or her home without a court order, as authorized by N.J.S.A. 9:6-8.29.
Amanda arrived home as the worker was getting ready to leave with the children. Amanda asked the worker "why the children could not stay with [Brad] because it's her with the problem not him." The worker told Amanda, "because he is using too . . . ." Amanda also insisted she was "'never home . . . [Brad] is home with the children.'"
At the fact-finding hearing, the Division's counsel argued that Brad's admission of cocaine use two days before the worker's visit meant the children were "left in the care of parents who were under the influence of drugs." She contended that this posed a "significant risk of harm." Brad's attorney responded that there was no evidence that Brad was under the influence the day of the visit or that the children had been in his care two days earlier. Consequently, he argued the Division failed to meet its burden.
The judge found that Brad abused or neglected the children, stating:
The Court finds, with respect to [Brad], that the Division has met its burden of proving by a preponderance of the evidence that his conduct rose to the level of reckless conduct that created a substantial risk of harm for the children. He admitted that he was the, if not sole, at least certainly primary care giver for the children. He admitted to using cocaine two days beforehand.
. . . [W]ith drug use cases it's not a requirement that the Division catch the person red-handed in terms of being seen as under the influence at the time the Division is there.
Rather, in this Court's view, when a person is the sole, or virtually the sole care giver of children, and admits to or tests positive for using illegal drugs, it's -- it is appropriate and reasonable to infer that at some point while the children were in that person[']s care that person was under the influence of those illegal drugs.
B.
On appeal, Brad argues that the evidence presented was insufficient to establish that he abused or neglected the children. We agree.
We accord deference to the Family Court's fact-finding in part because of the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, that deference is tempered when the trial court did not hear testimony or make credibility determinations based on the demeanor of witnesses. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) ("[W]hen no hearing takes place, no evidence is admitted, and no findings of fact are made, . . . appellate courts need not afford deference to the conclusions of the trial court."). We shall uphold the court's fact findings if supported by sufficient, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). However, we will not hesitate to set aside a ruling that is "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011).
We also accord no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46(b)).
The statutory definition of an "abused or neglected child" consists of seven subparts. Although the court did not expressly identify the provision upon which it based its finding, we surmise based on the court's decision that it relied on N.J.S.A. 9:6-8.21(c)(4), which declares a child to be abused or neglected if the child's
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 . . . 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. . . .
Courts need not wait for harm to occur, but the Division must present proof of "'imminent danger or a substantial risk of harm to a child by a preponderance of the evidence.'" N.J. Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015) (emphasis in original). Also, "[t]o find abuse or neglect, the parent must 'fail . . . to exercise a minimum degree of care.'" Id. at 179 (quoting N.J.S.A. 9:6-8.21(c)(4)(b)). This requires "'conduct that is grossly negligent because it is willful or wanton . . . but not necessarily intentional.'" Ibid. (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999)).
Whether a parent has failed to exercise a minimum degree of care "is fact-sensitive and must be resolved on a case-by-case basis." Id. at 192. Courts undertaking this analysis "must avoid resort to categorical conclusions." Id. at 180 (citing Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011)). In E.D.-O., the Court rejected a "categorical rule" that leaving a child in a motor vehicle for any length of time automatically constituted abuse or neglect. Id. at 192-93.
Our decisions have likewise eschewed a categorical approach to cases involving the mixture of drugs and parenting. We recognize that a parent's use of drugs while caring for an infant puts the infant at risk at "the slightest parental misstep." See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). However, proof of a parent's drug use by itself was not enough to sustain a finding of abuse or neglect in V.T., where a parent used drugs prior to his visits with an eleven-year-old child. Ibid. We held that a father's use of cocaine and marijuana and failure to complete drug treatment did not "inherently create[] a substantial risk of harm" to the child. Id. at 330. "[A] failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect." Id. at 331. We noted there was no expert proof showing how the father's drug use posed a risk of harm to the child. Ibid.
We reached a similar conclusion in New Jersey Division of Child Protection & Permanency v. R.W., 438 N.J. Super. 462, 468-70 (App. Div. 2014), where we reversed a finding of abuse or neglect that was based solely on the mother's use of marijuana on one occasion while the child was in her care. We noted the absence of detailed proof regarding the "circumstances of her ingestion," whether "the baby was solely in her mother's care when she was intoxicated," and "the magnitude, duration, or impact" of the intoxication. Id. at 470. "Instead of filling in missing information, an understandable response by judges who regularly witness the evils inflicted on children by their parents' drug use, judges must engage in a fact-sensitive analysis turning on 'particularized evidence.'" Id. at 470 (quoting N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 28 (2013)).
In A.L., supra, a newborn tested positive for cocaine after delivery as a result of his mother's prenatal cocaine use. 213 N.J. at 9-10. The Court noted that the newborn did not experience any complications and held that the presence of cocaine, "without more, does not establish proof of imminent danger or substantial risk of harm." 213 N.J. at 27-28. The Court recognized that "[p]roof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant" to the issue of imminent danger or substantial risk of harm. Id. at 23. However, "not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect[.]" Ibid.
A court must also be mindful of the standard-of-care language. Proof of imminent danger or significant risk is not enough. "The Division must establish that, at a minimum, a parent acted with gross negligence or recklessness to succeed in a prosecution under N.J.S.A. 9:6-8.21(c)(4)(b)." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 181 (2014). "Whether a parent exercised a minimum degree of care must be analyzed in light of the dangers and risks associated with the situation." Id. at 184 (internal quotation marks and citation omitted).
In Y.N., a mother's newborn suffered from neonatal abstinence syndrome as the result of the mother's participation in a methadone program. Id. at 170. The Court concluded that proof that the child was born suffering from an actual impairment was insufficient by itself to establish abuse or neglect, without proof of parental fault. Id. at 183-84. Parental fault was not established where the child's impairment resulted from the mother's participation in a medically prescribed methadone maintenance program, and no other evidence of parental fault was presented. Id. at 183-86.
Applying these principles, we are persuaded that the Division's proofs fell short. Defendant's admission that he used cocaine two days prior to the worker's visit did not establish that he did so while he was responsible for the children's care. The Division did not elicit where the children were when defendant used cocaine. Defendant stated he did not use drugs often, and used the drugs in the street, not in the home. Thus, accepting the truth of defendant's undisputed statement, he attempted to avoid mixing drug use and parenting.
Nor did the Division present expert testimony to describe defendant's level of use, which a drug screen might have indicated, or connect defendant's level of use with impairment. We therefore find insufficient evidence for the court's inference that "at some point while the children were in [defendant's] care [he] was under the influence of those illegal drugs." See E.D.-O., supra, 223 N.J. at 183 ("'the standard is not whether some potential for harm exists'"); A.L., supra, 213 N.J. at 28 ("Judges . . . cannot fill in missing information on their own or take judicial notice of harm.").
Even if the Division had proved the children were present when defendant was impaired, that would not suffice. The Division did not elicit any evidence regarding how the children's physical, mental or emotional condition might have been affected by defendant's alleged drug use. See A.L., supra, 213 N.J. at 330 (stating that a parent's drug use, standing alone, is not enough to sustain a finding of abuse or neglect). In sum, the Division failed to present sufficient, credible evidence that the children were in imminent danger or at a significant risk of harm as a result of defendant's failure to exercise a minimum degree of care.
II.
We consider next defendant's challenge to the January 27, 2014 order transferring custody to the maternal grandparents. Some background is necessary.
A.
The record reflects repeated removals of the children from Amanda's and Brad's home. In June 2008, under an FD case, the Family Part in Cumberland County granted custody of Annie to Judy, the maternal grandmother. Five months later, the Gloucester County Family Part, under another FD case, returned custody of Annie to Amanda.
The second removal occurred in June 2009. Following an abuse or neglect complaint, the Gloucester County Family Part awarded the Division care and supervision of Annie and Junior, with physical custody of Annie and Junior to Judy and legal custody to Amanda. Brad was required to submit to substance abuse evaluations and Amanda was required to complete substance abuse treatment. In May 2010, the court returned custody of Annie and Junior to Amanda and Brad, with the Division retaining care and supervision.
However, just two months later, the Division filed an amended complaint, and custody of Annie and Junior was awarded back to the Division. This third removal was based in part on the finding that Amanda was actively using cocaine and heroin. In February 2011, the judge returned custody of Annie and Junior to Amanda, with care and supervision retained by the Division. The court continued to monitor the family and issue orders regarding Amanda's compliance with required treatment and her obligation to maintain stable housing.
Another amended complaint was filed after a Dodd removal on January 27, 2012 — the fourth removal. The court found that Amanda and Brad both had substance abuse issues and awarded custody of Annie, Junior and Alicia to the Division. The court conducted a fact-finding hearing in June 2012, at which neither parent appeared, and found that Brad and Amanda were "unfit to be entrusted with the care of the children due to substance abuse relapses and not in treatment when children removed . . . ." The following month, the court awarded custody of Norris to the Division.
In February 2013, the children were reunified with Amanda and Brad; the Gloucester County FN case was subsequently dismissed. Four months later, the children were removed again and the Division filed the abuse or neglect complaint in Camden County that is the subject of this appeal. In all, Annie was removed from her home five times; Junior four times; Alicia twice; and Norris once.
The Division apparently filed a motion, after the June 2013 removal, seeking to be relieved of making further reasonable efforts to reunify the children with their parents. The deputy attorney general stated to the court on July 22, 2013 that the Division would be asking the court to "fast track" the case to adoption after the fact-finding.
The motion is not in the record before us. We assume it was based on N.J.S.A. 30:4C-11.3.
Meanwhile, Judy and Gregory, the maternal grandparents, filed multiple FD complaints in Gloucester County seeking custody of the children. Both Amanda and Brad consented on the record at the July 2013 hearing to granting temporary physical and legal custody of the children to Judy and Gregory, with care and supervision retained by the Division. Both parents were incarcerated when the court awarded custody to Judy and Gregory. Brad was in custody on charges that he assaulted Amanda on July 8th. Amanda was in custody after violating conditions of her probation through Drug Court.
The FD complaints are not included in the record. It is unclear whether they were properly served or if answers were filed.
The court awarded custody to the grandparents in the FN case, after making it clear to Judy and Gregory that the award of custody was not a licensed placement through the Division. Near the conclusion of the July 2013 hearing, the Division withdrew its motion to be relieved of further reasonable efforts. Thus, the Division was never relieved of its obligation to make reasonable efforts to make it possible for the children to return home. See N.J.S.A. 9:6-8.8(b)(2).
In the months that followed, Judy and Gregory retained custody of the children. At a case-management conference in September, the court addressed disagreements over visitation between the grandparents and Brad, who had been released from jail in August 2013.
At the October 11, 2013 fact-finding hearing, after issuing the finding of abuse or neglect, the court turned to dispositional issues. The court heard factual representations from counsel for Amanda and Brad. Amanda was reportedly still incarcerated. Brad was serving probation conditioned on SLAP. The court swore in the grandparents and inquired about issues of visitation raised by Brad's counsel. The court then stated,
Sheriff's Labor Assistance Program.
For today's disposition order the Division continues to have care and supervision. The children continue under this docket in the legal and physical custody of [Judy and Gregory]. Services are psychological and substance abuse evaluations for [Brad], psychological evaluation for [Amanda] once she's no longer incarcerated. The Division
is to provide[] beds for the children to [Judy and Gregory].The court entered a conforming order.
Brad and Amanda appeared for a compliance review in January 2014. The court admitted into evidence, without objection from the parties' attorneys, a court report from the Division, which stated, "The Division is requesting that litigation is closed as [the grandparents] has [sic] voiced that they want their case closed with the Division." The deputy attorney general proposed that the court grant custody to Judy and Gregory under the FD cases pending in Gloucester County, and terminate the litigation. The Law Guardian joined the Division's request. Through her counsel, Amanda concurred. J.I.'s attorney stated that as he had not conferred with his client, he left it "to the court's discretion."
J.I. was in Guatemala, because of a death in his family.
Brad's counsel stated that his client contested the grandparents' application for custody. However, counsel agreed that the FD matters should be heard by the court in Camden County, which had jurisdiction of the FN matter. Brad's counsel also addressed issues regarding visitation.
The court called Judy and Gregory into the courtroom, swore them in, and confirmed that they sought custody of the four children. Asked why she sought custody, Judy stated, "Because they're my grandchildren." She also explained that she did not want to see her grandchildren adopted by strangers. She said the children had been doing well since they were placed in her home in July, had received proper medical care, and that the oldest was attending pre-school. The court confirmed the grandparents' understanding that they would receive no financial assistance from the Division. The court inquired of counsel if any had questions for Judy or Gregory. Brad's attorney did not respond. No other witnesses were called and no other evidence was offered.
The court then issued the following decision:
I'm going to grant the applications for custody by [Judy] and [Gregory] [D.] under the various docket numbers in Gloucester County, FD-08-227-14, FD-08-228-14, FD-08-325-13. The only person who objects is [Brad]. I am not persuaded by his objections. It seems as though, to me, that his objections really have to do with the Division, and the Division's, in his opinion, is inadequate follow up with potential supervisors for his parenting time.
I will order that the Division investigate the potential supervisors of [Brad's] parenting time, and make sure that you get the names from [Brad] today to look into. But I don't find that that is any impediment to granting the custody applications to the grandparents who have been taking care of the children since July, 2013. They had taken care of the children
prior to that, there had been a prior removal.
And I don't find that there is any reason not to grant their application. The children are being well cared for by them. They are healthy. The children are being taken to the pediatrician. The -- the grandparents want the children. They understand they're not getting any funding from the Division and they won't in the future. And I find good cause to grant their application.
I do find granting the custody application under the FD dockets in Gloucester County are in the best interests of the children. They will remain together. They are with the maternal grandparents.
Brad's counsel renewed his objection, stating,
We're opposing termination of the FN litigation in light of the fact that this case has not been open for at least a year and a permanency plan has never been set forth by the Division. The fact that there was a custody application made, I understand that, but my client still has his rights, and we have not reached that one year point, Your Honor.The Division's counsel responded that the Division "does not . . . propose permanency plans when the Division does not have custody," noting that the grandparents were granted custody under the FN docket, presumably referring to the July 2013 order.
The court entered a conforming "Civil Action Order Terminating Litigation" stating, "This litigation is terminated because . . . children are in the legal and physical custody of maternal grandparents . . . under FD-08-228-14, FD-08-325-13 and FD-08-227-14."
B.
On appeal, Brad argues that the January 2014 hearing did not meet any of the procedural requirements set forth in G.M., supra, 198 N.J. at 398-400. Brad argues the court was obliged to hold a dispositional hearing, pursuant to N.J.S.A. 9:6-8.50. He also noted that no permanency hearing was held.
The Division responds that there was a sufficient basis for the court to determine it was not safe to return the children to Brad. The Division relies on hearsay reports of Brad's alleged non-compliance with Division services. Brad's counsel disputed this at the hearing, noting that Brad was complying with programs required by his probation and that the Division had failed to obtain copies of probation records as required.
The Law Guardian argues that a dispositional hearing was not required, given the court's best interest of the child determination. The Law Guardian contends that the court found it was not safe to return the children to Brad's care.
C.
We agree that Brad was denied his procedural rights before the court terminated the Title Nine case and summarily granted relief under the FD cases.
Reviewing the Title Nine procedures governing an abuse or neglect case, the Court in G.M., supra, noted that following a fact-finding hearing, "[a] dispositional hearing must be held to determine the appropriate outcome of the case." 198 N.J. at 399 (citing N.J.S.A. 9:6-8.50). At the dispositional hearing, the court must consider "'only material and relevant evidence.'" Ibid. (quoting N.J.S.A. 9:6-8.46(c)). Among its various options, a court "can enter a dispositional order that places the child in the custody of a relative or another suitable person for a substantial period of time." A.L., supra, 213 N.J. at 25-26 (citing N.J.S.A. 9:6-8.50(d), -8.51(a), -8.54(a)).
Section 8.54(a) authorizes placement with a relative:
For the purpose of [N. J.S.A. 9:6-8.51 (pertaining to orders at the conclusion of a dispositional hearing)], the court may place the child in the custody of a relative or other suitable person . . . after a finding that the division has made reasonable efforts to prevent placement or that reasonable efforts to prevent placement were not required in accordance with [N. J.S.A. 30:4C-11.2].Such placement may be for an initial period of twelve months, but may be extended for subsequent one-year periods. N.J.S.A. 9:6-8.54(b)(1).
If a placement is made, the court shall conduct a permanency hearing:
The court shall conduct a permanency hearing for the child no later than 30 days after placement in cases in which the court has determined that reasonable efforts to reunify the child with the parent or guardian are not required pursuant to [N. J.S.A. 30:4C-11.3], or no later than 12 months after placement in cases in which the court has determined that efforts to reunify the child with the parent or guardian are required. The hearing shall include, but not necessarily be limited to, consideration and evaluation of information provided by the division and other interested parties regarding such matters as those listed in [N. J.S.A. 30:4C-61.2(c)].See also G.M., supra, 198 N.J. at 400 ("If the child remains outside the home and either the Division has provided the services ordered or twelve months have passed since the child was removed, the court shall hold a permanency hearing, in which the goal is to provide for the child's long term living arrangement.") (citing N.J.S.A. 30:4C-61.2).
[N. J.S.A. 9:6-8.54(b)(2).]
At that point, the court will determine whether the appropriate goal is reunification or an alternative arrangement. Ibid. Alternative plans may include a petition to terminate parental rights, or a kinship legal guardianship action. Ibid.; see also N.J.S.A. 39:4C-15(a) (allowing a petition to terminate parental rights based on an adjudication of abuse or neglect). Permanency hearings must be conducted "'with scrupulous adherence to procedural safeguards.'" G.M., supra, 198 N.J. at 401 (quoting Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004)).
The legal standard governing a third-party's request for custody, such as that of a grandparent, involves a two-step analysis. Watkins v. Nelson, 163 N.J. 235, 253 (2000). First, to overcome a parent's constitutional right to custody, a third-party who seeks custody must show, by clear and convincing evidence, a parent's "gross misconduct, unfitness, neglect, or 'exceptional circumstances' affecting the welfare of the child." Id. at 245-246; see also N.J.S.A. 9:2-9 (allowing any person interested in the child's welfare to institute an action if a parent is "grossly immoral or unfit"); N.J.S.A. 9:2-10 (authorizing award of custody).
The Court equated this to "the standard required for termination of the rights of a non-consenting parent." Watkins, supra, 163 N.J. at 244-45. "Although an award of custody to a third party does not involve a termination of all parental rights, such an award destroys any pretense of a normal parent-child relationship and eliminates nearly all of the natural incidents of parenthood including everyday care and nurturing which are part and parcel of the bond between a parent and child." Id. at 253-54 (internal quotation marks and citation omitted).
Second, once that presumption in favor of the parent is rebutted, the third-party must show that "awarding custody to the third party would promote the best interests of the child." Id. at 254. The Court emphasized that the best interests "become a factor only after the parental termination standard has been met, rather than the determinative standard itself." Id. at 253.
Applying these standards, we are persuaded that Brad's statutory and constitutional rights were violated. We recognize the record reflects that on multiple occasions, Amanda and Brad were found incapable of parenting their children, requiring removals. However, we do not address whether, upon an appropriate showing, sufficient and credible evidence would support the award of custody to the grandparents. Indeed, the record is insufficient to make such a determination.
There was no competent evidence, one way or the other, regarding Brad's performance on probation; whether he was abstaining from drug use; whether he had a stable home and employment; or whether he was otherwise capable of parenting responsibly. There also was no evidence regarding the children's relative bonds to their parents and grandparents. --------
The court first granted temporary custody of the children to the grandparents in its July 2013 order. This constituted a placement under Title Nine. See G.M., supra, 198 N.J. at 403-04. Then, after the fact-finding hearing, the court continued that placement in its dispositional order. Although separate FD actions were pending, the court expressly stated the placement was made in the Title Nine case.
Consequently, the court was required to conduct a permanency hearing if it determined that no reasonable efforts to reunify the children with Brad were appropriate. Given the court's January 2014 award of custody to the grandparents, its rejection of reunification was implicit. However, no permanency hearing was held to determine "whether the family will continue towards reunification or whether an alternative plan must be adopted," G.M., supra, 198 N.J. at 400. The court was obliged to provide sufficient notice to Brad that a permanency hearing would be held, and to give him a full and fair opportunity to be heard.
Instead, the court dismissed the Title Nine case and turned to the FD complaints for custody. At that point, the Watkins standard was implicated. However, the court failed to apply that stringent standard. Contrary to the Court's command in Watkins, the court relied solely on the best interests standard without addressing the threshold parental termination standard. Furthermore, the court did so after the most informal of proceedings, relying on the barest of proofs that consisted largely of the grandparents' brief testimony.
We therefore reverse the dismissal of the Title Nine action and the award of custody under the FD dockets, and remand for a permanency hearing and such further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION