Opinion
DOCKET NO. A-3477-12T3
12-19-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,1 Plaintiff-Respondent, v. D.C., Defendant-Appellant, and R.S. and O.L., Defendants-Respondents. IN THE MATTER OF B.S. and S.L., Minors.
T. Gary Mitchell, Assistant Deputy Public Defender, argued the cause for appellant D.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, on the brief). Robyn A. Veasey, Deputy Public Defender, argued the cause for respondent R.S. (Joseph E. Krakora, Public Defender, attorney; Ms. Veasey, on the brief). Robert H. McGuigan, Designated Counsel, argued the cause for respondent O.L. (Joseph E. Krakora, Public Defender, attorney; Mr. McGuigan, on the brief). Yudelka R. Felipe, Deputy Attorney General, argued the cause for respondent Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Ms. Felipe, on the brief). Caitlin A. McLaughlin, Designated Counsel, argued the cause for minors B.S. and S.L. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Submitted May 27, 2014 — Decided September 4, 2014
Motion for Reconsideration granted.
Argued December 11, 2014 — Decided December 19, 2014
Before Judges Kennedy and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-72-12. T. Gary Mitchell, Assistant Deputy Public Defender, argued the cause for appellant D.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, on the brief). Robyn A. Veasey, Deputy Public Defender, argued the cause for respondent R.S. (Joseph E. Krakora, Public Defender, attorney; Ms. Veasey, on the brief). Robert H. McGuigan, Designated Counsel, argued the cause for respondent O.L. (Joseph E. Krakora, Public Defender, attorney; Mr. McGuigan, on the brief). Yudelka R. Felipe, Deputy Attorney General, argued the cause for respondent Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Ms. Felipe, on the brief). Caitlin A. McLaughlin, Designated Counsel, argued the cause for minors B.S. and S.L. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief). PER CURIAM
Defendant, D.C. (Deborah), appealed a March 30, 2012 order of the Family Part, entered after a Title Nine fact-finding hearing, determining she had abused and neglected her daughters B.S. (Brooke), then age six, and S.L. (Sara), then age ten months, and a subsequent permanency order of November 27, 2012, granting custody of the children to their biological fathers, R.S. (Richard) and O.L. (Oliver). The Family Part entered an order on January 29, 2013 terminating the litigation and confirming that custody of the children "has been transferred to the biological fathers." On appeal defendant raised the following arguments:
We employ fictitious names for the parties.
I. THE PROCEDURAL ERRORS BELOW DEPRIVED DEFENDANT OF HER CONSTITUTIONAL RIGHTS, INCLUDING BUT NOT LIMITED TO, DUE PROCESS AND A FAIR TRIAL.We affirmed. N.J. Div. of Child Prot. & Permanency v. D.C., No. A-3477-12T3 (App. Div. September 4, 2014) (slip op. at 2).
A. A Parent's Right To Raise Her Children Is A Fundamental Constitutional Right That Cannot Be Interfered With Without Strict Adherence To Due Process.
B. Failure To Hold A [N. J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009)] Hearing Was A Violation Of D.C.'s Constitutional Right To Due Process.
II. THE TRIAL COURT'S FINDING OF ABUSE AND NEGLECT WAS INCORRECT AND MUST BE REVERSED.
A. Title Nine Does Not Apply To A Fetus and Therefore Intrusion Into The Family Was Improper.
B. DCPP Failed To Prove Educational Neglect By A Preponderance Of The Evidence.
Thereafter, defendant moved for reconsideration of our decision. We granted reconsideration and invited the parties to submit supplemental briefs, which we thereafter received. We heard oral argument on December 11, 2014, and upon reconsidering the issues presented, we conclude the record does not sustain a finding of abuse and neglect and accordingly we reverse the order of March 30, 2012, and we remand this matter to the Family Part for further proceedings in accordance with this opinion.
Further, given our determination above, and for reasons expressed hereinafter, we vacate the custody order of November 27, 2012 and the termination order of January 29, 2013, and we remand the matter to the Family Part for further proceedings in accordance with this opinion.
However, out of concern that we are not needlessly disrupting the lives of the children pending further action by the Family Part, and because our decision is based in part upon developing case law not available to the Family Part at the time of its decisions, we direct that the children shall remain in the custody of those to whom custody has been entrusted in accordance with the most recent Family Part orders, until such time as the Family Part enters further orders in accordance with this opinion. Cf. N.J. Div. of Youth and Family Servs. v. N.D., 435 N.J. Super. 488 (App. Div. 2014).
On June 11, 2014, while Richard was in the hospital suffering from cancer, an Amended Final Restraining Order was issued against him, granting defendant temporary custody of Brooke. On November 21, 2014, defendant petitioned the Family Part for residential custody of both children. The Family Part denied this request, finding that the children were stable in their respective father's homes.
I.
We derive the following facts from the record. Deborah is the biological mother of two daughters, Brooke born in 2006 and Sara born in 2011. Richard is the biological father of Brooke, and Oliver is the biological father of Sara.
In 2006, when Deborah gave birth to Brooke, a hospital employee called the Division of Youth and Family Services (the Division) because defendant tested positive for marijuana, while her newborn tested negative. Allegations of neglect were not substantiated, and the Division closed the case in early 2007.
Between 2009 and 2010, while Deborah lived in Connecticut, Child Protective Services of that state intervened when she called the police about a domestic violence matter. This call prompted drug testing of the parties involved, and Deborah tested positive for marijuana. Connecticut's Child Protective Services substantiated a physical neglect claim, but after several negative drug tests and a completed drug treatment program, the case was closed.
When defendant gave birth to Sara in May 2011, again a hospital worker called the Division to report that Deborah refused a toxicology screen for Sara and herself. The hospital employee reported lack of knowledge of any positive drug tests during Deborah's prenatal care and conceded that Sara appeared healthy with no withdrawal symptoms. Ultimately, defendant agreed to report to the Division for a drug test several days later, but when she arrived at the Division to submit to a urine screen, she refused the test when told that someone would accompany her to the bathroom.
By July 2011, Deborah had taken Sara to pediatric wellness visits, and the child was current on her vaccinations. Nevertheless, in August 2011, the Division filed a complaint for investigation of defendant because of her refusal to submit to drug testing. Further, the Division filed an order to show cause seeking drug screens for Deborah and both fathers. During the September 2011 hearing on the order to show cause, at which defendant was not present, the Division reported that Deborah had failed to appear for her scheduled drug screens but conceded that defendant claimed she never received the appointment notification letters.
On October 14, 2011, Oliver, Sara's father, reported to the Division that defendant's home smelled of marijuana. Initially, when the Division arrived at Deborah's residence, no one answered the door. However, one hour later, the Division found Deborah at home, and she allowed an inspection. The Division's employees found no evidence of marijuana use. They noted also that Sara was healthy, clean, and alert.
Because Brooke was away with relatives during the inspection, the Division returned to the home two days later to interview her. She said that no one smoked cigarettes in the house; however, sometimes her mother would sit outside with a friend when he smoked cigarettes. The Division worker asked Brooke if her mom acted differently when she came back from sitting outside with her friend, and the child answered, no. Overall, the Division had no concerns about Brooke; they described her as healthy, clean, and friendly.
Nevertheless, the Family Part concluded that the Division made a prima facie showing of abuse or neglect and entered an order on October 18, 2011 granting the Division Care and Supervision of Sara and Brooke. Two days later, a court-ordered drug screen showed Deborah tested positive for marijuana.
One month later, on November 30, 2011, the Family Part granted custody of the children to the Division because Deborah had earlier refused to "cooperat[e]" with the Division or to submit to substance abuse tests and treatment. By December 12, 2011, Brooke and Sara were placed with their maternal grandparents.
Around this time, Deborah enrolled in an out-patient drug treatment program, but in early 2012 she again tested positive for marijuana. In January 2012, treatment program staff reported to the Division that Deborah continued to miss appointments and arrived late to program meetings. Also in January and February 2012, Dr. Ernesto L. Perdomo performed psychological evaluations on Deborah. He reported:
[Deborah] is a very immature and impulsive individual who may lose control under emotional stimulation and she appears to have a history of cannabis dependency that may be in remission since November 2011. She is now following all the Division's recommendations but she has very little insight into her own behavior. She will need housing and [to] complete all programs. She would also benefit from long-term individual psychotherapy to address her poor insights into her behavior . . . . The main problem is [Deborah's] lack of insight into her own behavior and history of cannabis dependency.Dr. Perdomo made no finding as to defendant's parenting abilities or lack thereof or whether her psychological state or drug use posed any risk of harm to her children.
This report was presented to the Family Part by correspondence of April 25, 2012, and was not part of the record at the abuse and neglect hearing in March 2012.
On March 30, 2012, based on the record of the fact finding hearing on March 12, 2012, the Family Part found that the Division met its burden to show abuse or neglect based on Deborah's "drug use," her failure to submit to drug tests and drug abuse assessments, and her failure to bring Brooke to preschool nine times during the Fall of 2011.
After testing positive for PCP several times between July and August 2012, Deborah began an inpatient drug treatment program. While there, she made rapid progress, and the Division began to discuss reunifying Brooke and Sara with their mother. However, on November 8, 2012, Deborah was arrested for DUI, and a few days later, when she reported to the drug treatment program, she tested positive for PCP. By letter to the Division dated November 20, 2012, the program reported that Deborah had not returned to treatment since November 15 and that attempts to engage defendant in treatment had failed.
At the Permanency Hearing on November 27, 2012, the Division recommended that physical and legal custody of the children be placed with the girls' respective fathers. The Family Part Judge agreed and stated:
[This] is not a punishment but more of a protection for your child, [ ]. I believe that the two fathers are able to take care of their children on a full-time basis. They've been willing to do so. I believe that the Division has made all reasonable efforts in this matter at reunification. As a matter of fact, the original plan was for reunification. However, I'm mostly impressed by the letter from [the drug treatment program] dated November 20, that causes me great concern. And until [Deborah] does something about this problem that she has I cannot feel comfortable having the child in her care.
[Deborah], you can't look me straight in the eye and tell me that you can be on PCP and take care of children. I just cannot accept that, okay? It's just not safe.
. . . .
I approve the plan.
On January 29, 2013, the Division requested and the court entered an order terminating litigation because custody of the children had been transferred to the fathers and the Division had no concerns with their parenting abilities. Deborah was ordered supervised visitation and to complete an inpatient drug treatment program. The Family Part further ordered that if Deborah wanted unsupervised visitation she must submit proof of completion of a drug treatment program and notify the Division of such application.
At present, Brooke is in Deborah's custody temporarily, pursuant to an Amended Final Restraining Order entered against Richard.
II.
A.
Scope of Review.
Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Normally, we must determine "whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is afforded to fact-finding because of the family court's "expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998) (internal quotation marks omitted)).
However, "[w]here the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks and citation omitted). Finally, 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).
B.
Abuse and Neglect.
The Division filed this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A. 9:6-8.21 to 8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). Given the nature of the Division's complaint in this matter and the limited nature of the proofs before the Family Part at the Title Nine fact-finding hearing, we begin our analysis with a broad review of the law that governs our consideration of the issues raised on appeal.
The purpose of Title Nine is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999). A child less than eighteen years of age is abused or neglected when 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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . or by any other acts of similarly serious nature requiring the aid of the court[.]
[N. J.S.A. 9:6-8.21(c)(4)(b)].
The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 299-300 (internal quotation marks and citation omitted). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Gross negligence requires "an indifference to the consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (internal quotation marks and citation omitted), but a parent's actual intent to cause harm is not necessary. G.S., supra, 157 N.J. at 179.
Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309. While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
We note that if the Division can prove abuse or neglect, that finding has "significant consequences." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 619 (App. Div. 2010). The 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. See N.J.S.A. 9:6-8.50(d), -8.51(a), -8.54(a). The Division can also bring an action to terminate parental rights, which may rely on a Title Nine judgment. See N.J.S.A. 30:4C-15(a); N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 111-12 (2011).
In addition, when an allegation is substantiated, the Division enters "the name of the person found to have committed child abuse and any identifying information" into a Central Registry. N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998); see also N.J.S.A. 9:6-8.11. Although those records are kept confidential, see N.J.S.A. 9:6-8.10a(a), they may be disclosed, on written request, to doctors, courts, child welfare agencies, employers who are required by law "to consider child abuse or neglect information when conducting a background check or employment-related screening," and others, see N.J.S.A. 9:6-8.10a(b)(1)-(23).
Where the evidence is inadequate to "satisfy the standard articulated in N.J.S.A. 9:6-8.21(c)(4)," reversal is required. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 21, 39-40 (2011); see also A.L., supra, 213 N.J. at 29-30.
The Division argues that it advanced sufficient evidence to support the Family Part determination that the children were "at imminent risk of harm due to [defendant's] failure to be able to provide her children with adequate supervision and guardianship due to her active substance abuse while refusing offered services of substance abuse assessments and treatment while the children were in her sole care." Defendant argues that the trial record shows "no conduct by [defendant] that adversely affected the care or welfare" of the children or supported a finding that they were at imminent risk of harm as a consequence of her conduct.
As we have noted earlier, evidence adduced at the fact-finding hearing showed that in 2006 defendant tested positive for marijuana at the time of Brooke's birth. Brooke, however, did not test positive for any unlawful substances and there was no evidence that she suffered in any way as a consequence of defendant's marijuana use. The Division closed its file in early 2007.
Next, while defendant and Brooke were living in Connecticut in 2009, defendant contacted the police about a domestic violence matter, with the result that defendant herself underwent a drug test which was positive for marijuana. Defendant completed a drug program and after several negative drug tests, Connecticut's child protective services closed the case.
Then, in 2011, hospital personnel contacted the Division after defendant refused a urine screen at the time of Sara's birth. The request for the screen was not premised upon any conduct of defendant or any abnormality in her medical history, but was tendered simply because of her positive test for marijuana at the time of Brooke's birth in 2006. Hospital personnel conceded there was no evidence that defendant was under the influence of any unlawful substance or that Sara was suffering as a consequence of any alleged maternal substance abuse.
While defendant thereafter refused to cooperate with Division efforts to obtain her consent to drug testing, the record shows that Sara was regularly seen by a pediatrician, and was current on her vaccinations. Visits to defendant's home by Division caseworkers and representatives revealed no evidence of marijuana use. Defendant herself did not appear to be under the influence of drugs; the home itself was well-kept and the children appeared healthy, safe and well-cared for.
Further, as we noted earlier, on October 20, 2011, defendant tested positive for marijuana and thereafter missed three subsequent drug abuse assessments. Moreover, it was shown that Brooke had missed nine days of attendance at her Early Learning Center between September 15 and October 25, 2011.
This record, developed at the fact finding hearing, can be read to support the conclusion that defendant routinely smoked marijuana and resisted Division efforts to obtain drug screens and to provide her with treatment opportunities. The record, however, cannot be read to support the conclusion that defendant's conduct placed the children in imminent danger of impairment or at substantial risk of harm.
It is clear that "a failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). "The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone." A.L., supra, 213 N.J. at 23. However, "a parent should not exercise visitation, even supervised visitation, while impaired." V.T., supra, 423 N.J. Super. at 331. Moreover, use of drugs while caring for an infant puts the child at greater risk of harm "to the slightest parental misstep." Ibid.
The question before us is whether defendant's marijuana use put the children in imminent danger or at substantial risk of harm. See N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 418-20 (App. Div. 2014). Although the Division need not wait for harm to occur, A.L., supra, 213 N.J. at 23, the record does not contain competent evidence that defendant's actions either harmed the children or subjected them to a substantial risk of harm. See G.S., supra, 157 N.J. at 178.
There was no evidence that defendant was impaired while caring for Brooke or Sara or that the children suffered any actual harm as a result of defendant's use of marijuana.
In A.L., the Court stated:
Proof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant to that issue. But not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect in light of the specific language of the statute.Instead, the Court required evidence of "the severity or extent of the mother's substance abuse or, most important in light of the statute, the degree of future harm posed to the child." Id. at 27.
[A.L., supra, 213 N.J. at 23.]
In V.T., a father was substantiated for abuse or neglect of his nine-year-old child based on his refusal to attend substance abuse treatment and two positive drug tests for cocaine and marijuana during supervised parenting time. Supra, 423 N.J. Super. at 325-27. During trial, the Division presented no evidence of actual harm, and no expert evidence that the father posed a risk of harm during the parenting time. Id. at 331. Furthermore, the Division acknowledged that the child behaved appropriately during the visits and demonstrated no indicia of impairment. Ibid. We reversed, recognizing "Title [Nine] is not intended to extend to all parents who imbibe illegal substances at any time." Ibid. We further emphasized "that not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect." Id. at 332.
Defendant argues "the evidence was insufficient to support the court's finding of abuse and neglect," emphasizing there was "no evidence in the record that the child was actually harmed or faced a substantial risk of harm." We agree.
The Division argues that a risk of harm may be inferred from Brooke's unexplained absences at the Early Learning Center in the Fall of 2011. We disagree on the basis of this record. First, Brooke's attendance at kindergarten was not required by law. Second, there was nothing presented at the fact-finding hearing to suggest that Brooke was in "imminent danger of falling behind in school." Third, the Division does not even venture a theory as to how this fact shows a risk to Sara. See N.J.S.A. 9:6-8.46(a)(1).
As in V.T., the issue is whether there is sufficient evidence of abuse or neglect where a parent has been shown to routinely smoke marijuana. In V.T., the father admitted using cocaine and marijuana two days prior to both visits and "acknowledged that cocaine stays in one's system for three days and marijuana for thirty days, [but] he denied being impaired, as he indicated he 'had a high tolerance level' for drugs and the 'high' had passed when he went to the supervised visits." Id. at 326. We determined:
Absent expert evidence, the State is unable to demonstrate whether or not [the father] was impaired to the point of posing a risk to [the child] in a supervised setting. The level of drugs in his system is not explained and, as the trial judge acknowledged, absent expert testimony the meaning of the reported levels is unclear.
[The father] testified he ingested the drugs two days prior to each visit. There is no evidence to contradict this testimony. Contrary to the trial judge's conclusion, use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect.
[Id. at 331].
Similarly, here, the Family Part's abuse and neglect finding was based on screening tests that were positive for marijuana, and noncompliance with the Division's recommended drug treatment services. No testimony was offered explaining the significance of the levels of marijuana in Deborah's system at the time of the tests. The Division did not present expert evidence demonstrating whether, if at all, Deborah's marijuana use posed a risk of harm to Brooke or Sara.
We do not condone the use of illegal substances. Here, however, the court found defendant created an unsafe environment for the children without the necessary evidential links. It is necessary to causally connect the parent's actions to show that the child was harmed or at risk of being harmed. While expert testimony is not required in abuse and neglect actions, judges at the trial and appellate level may not fill in missing information on their own or take judicial notice of harm. A.L., supra, 213 N.J. at 43, 46.
None of the entries in the Division's reports indicate defendant appeared under the influence of drugs at any time, or that the children were in anyway aware of or affected by defendant's usage of marijuana. The Division argues that because defendant was the "primary" caretaker of the children, it is fair to infer that she regularly smoked marijuana while caring for them. On the basis of this record, we disagree. On those occasions when Division representatives were at defendant's home, they saw no evidence that she was using marijuana or was under the influence of any drugs.
Consequently, we reverse the Family Part's finding of abuse and neglect, and we remand the matter to the Family Part for further proceedings in accordance with this opinion.
C.
Transfer of Custody.
While our reversal of the abuse and neglect order of the Family Part might otherwise obviate our need to consider any claim of error in the disposition order, see N.J. Div. of Youth & Family Servs. v. N.D. & E.W., 417 N.J. Super. 96, 109 (App. Div. 2010) (explaining that without the court's finding of abuse and neglect, there is no authority allowing the court to enter an order of disposition under Title Nine), we briefly address the issue, given that we are remanding the matter to the Family Part.
The purpose of a dispositional hearing is to determine the placement of a child after the court determines that the child was abused and neglected by his or her primary caretaker. N.J.S.A. 9:6-8.45; N.J.S.A. 9:6-8.47(a). Specifically, the hearing is used to determine proper placement when the child is being placed with someone other than the original custodial parent and the original custodial parent objects, as was the case here. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399-401 (2009).
The Court has explained that the fact-finding and dispositional hearings are critical proceedings, and must be "conducted 'with scrupulous adherence to procedural safeguards.'" G.M., supra, 198 N.J. at 401 (quoting N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004 ), certif. denied, 186 N.J. 603 (2006)).
In G.M., the lower court did not take testimony or accept any documents into evidence prior to terminating the litigation. Supra, 198 N.J. at 393. Furthermore, on the day of the hearing, the Division had changed its position on the children's placement from reunification with the defendant to continued placement out of state, resulting in surprise to the defendant and preventing her lawyer from properly preparing her case. Ibid.
As a result, the Court reversed and remanded, and held that the defendant was denied due process because she was entitled to a dispositional hearing when the court made a finding of abuse and neglect. Id. at 399. Factors that indicated that the defendant was denied due process were the insufficiency of the proceedings due to the court's failure to take testimony, failure to admit evidence, failure to hear from expert witnesses, and decision to terminate litigation despite defendant's claim of surprise. Id. at 402.
Similarly, here, the Family Part held a fact-finding hearing in March 2012, and then subsequently held a dispositional hearing in November 2012. Deborah's counsel did not have an opportunity to put forth a case on Deborah's behalf in regard to the transfer of custody and the placement of the children with their fathers. Also, the Division did not present any witnesses or expert testimony at the permanency hearing, and, likewise, Deborah had no opportunity to cross-examine or question the Division's prior witnesses on matters pertaining to custody. The Family Part accepted into evidence Perdomo's psychological evaluations but Deborah was not given the opportunity to cross-examine Perdomo, and Perdomo did not even testify at any point. This was a violation of the statutorily enumerated two-step hearing process in N.J.S.A. 9:6-8.47, and the requirements set forth in G.M.
The Family Part rested its finding on the Division's comment that the G.M. hearing was not "necessary because [it] made a finding that this mother is not fit to parent." If the Division's position were to be accepted, then any parent who is found to have abused and neglected his or her children during the fact-finding hearing would no longer be entitled to a dispositional hearing. The procedure employed by the Family Part contravened the clear mandate of G.M., requiring a two-step hearing process. Supra, 198 N.J. at 399-400. The Court intended "offending" parents to receive dispositional hearings, ibid., and the failure to afford defendant such a hearing violated that principle.
We reverse and remand. 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