Opinion
DOCKET NO. A-0914-14T3
01-08-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.W., Defendant-Appellant, and M.W. and J.P, Defendants. IN THE MATTER OF I.P., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa D. Schaffer, Assistant Attorney General, of counsel; Hannah F. Edman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-193-13. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa D. Schaffer, Assistant Attorney General, of counsel; Hannah F. Edman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant, Rhonda, appeals from August 1, 2014 and October 1, 2014 Family Part orders terminating litigation under N.J.S.A. 9:6-8.21 without a G.M. dispositional hearing and allowing the filing of a guardianship complaint without including Rhonda as a party. We affirm in part, vacate in part, and remand.
We use pseudonyms to protect the identity of the parties.
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401-405 (2009).
I.
Ian was born on November 25, 2006. His biological parents are Mike and Jane. Rhonda is Ian's paternal aunt. In October 2011, Rhonda was granted joint legal custody of her brother Mike's then four-year-old son, Ian, during the pendency of a Title Nine abuse and neglect proceeding. Rhonda is the biological mother of seven other children. Her parental rights to two of those children were previously terminated.
The record indicates that an FD order of custody was entered on October 18, 2011, granting Rhonda joint legal custody as the parent of primary residence of Ian, with his biological father, Mike, as parent of alternate residence. On January 24, 2012, the Family Part judge entered an order indicating that Ian was under the care and supervision of the Division and legal and physical custody was continued with Rhonda and Mike. On February 14, 2012, the FN litigation was terminated with the consent of the Division and the parties agreed that Rhonda would retain custody.
On March 27, 2013, Ian, who is communication-impaired, made statements to a school nurse and Division of Child Protection and Permanency (the Division) caseworker implying that Rhonda had burned him with a lighter or cigarette. Division investigators conducted an emergency removal and initiated an abuse assessment. The examining physician stated that the burns were consistent with abuse. Ian told the doctor that he was burned with an object that Rhonda had taken out of her pocket.
When caseworkers arrived at Rhonda's home, she initially refused to allow them inside. Once investigators gained access, they observed dogs in the living room and dog feces on the floor. They also noted that the living room was filled with boxes and used furniture that took up significant space. The kitchen was filled with clutter and dirty dishes. One of the bedrooms had three mattresses and a chair and the other room also had three mattresses and piles of clothing on the floor.
The Division deemed the home unsafe during the assessment due to the dog feces, clutter, and missing bed for one of the children. Rhonda's other children were removed following the assessment and the Division filed a verified complaint for custody of Rhonda's five biological children, and an order to show cause and to appoint a law guardian with temporary custody. The case was dismissed to allow the Division to file an amended complaint to include allegations of Ian's abuse. A second amended verified complaint for custody was filed on April 17, 2013 which included additional allegations that Rhonda was misusing prescription drugs; that there were continuing cluttered conditions in the home; and that Rhonda refused to participate in family team meetings. Rhonda was also criminally charged with child endangerment of Ian, and, as a condition of bail, she was prohibited from having contact with him.
Throughout the proceedings, Rhonda expressed her continuing interest in caring for Ian, and her desire for reunification. On September 12, 2013, Rhonda entered into a voluntary stipulation that in March 2013, the home in which she was residing was in deplorable condition and was not appropriate for the children to live in, and that those conditions constituted neglect of the children. The disposition provided that all of the children would remain in Division custody, and it required Rhonda to undergo psychiatric, psychological, and substance abuse evaluations. Rhonda began to have unsupervised visits with all of the children except Ian. All visits with Ian remained suspended.
Although the plan was to return Rhonda's biological children, the Division indicated that it was not planning to reunite Ian with Rhonda. The Division was searching for other suitable family members for placement and was still considering reuniting Ian with one or both biological parents.
The trial court conducted a compliance review on October 23, 2013, at which time Rhonda appeared and the judge ordered the gradual return of the children to Rhonda, excluding Ian. As to Ian, his father, Mike, indicated that his plan was for his son to return to him. The trial court ordered the Division to provide services for Mike and Ian to facilitate their relationship.
At the March 13, 2014 compliance review, the parties awaited the completion of background checks that would allow for Ian's placement with a maternal aunt with whom he had previously lived. Rhonda's children had been returned to her, but she also wanted Ian to live with her. Because Rhonda had custody of Ian at the time of removal, Rhonda remained in the case, but all of her other children and their fathers were dismissed from the litigation. However, Rhonda's standing to argue against the permanency plan continued to be debated on April 10, 2013.
The Family Part judge began the permanency hearing on April 30, 2014, at which Rhonda and Ian's biological parents, Mike and Jane, appeared. The Division proffered a permanency plan of termination of parental rights followed by a relative adoption. Rhonda's attorney suggested that if the Division and the court consented to supervised visitation with Rhonda, that consent would weigh heavily on an application in the Criminal Part to eliminate the no-contact bail provision. The Division argued that Ian had expressed fear of Rhonda and the Family Part judge refused to allow visits because of the bail restriction. The permanency determination was continued until June 2, 2014 in order for Jane to hire counsel.
On June 2, 2014, the Division informed the court that neither of Ian's biological parents had completed services or made any contact with the Division, and that the Division was requesting a "change of plan to termination of parental rights followed by adoption and concurrent with reunification." The parties again discussed Rhonda's standing and the court indicated that as a non-natural and non-adoptive parent, Rhonda had no standing to challenge the permanency plan.
A permanency order was entered on June 12, 2014. The court approved the Division's plan of termination of parental rights followed by adoption concurrent with reunification with the biological parents. At the hearing, the Division reiterated that because of Rhonda's bail restriction, it was not working toward reunification between Ian and Rhonda. The court approved the permanency plan and found that it was not possible to reunite Ian and Rhonda and the biological parents had not made substantial steps to changing their conditions. The court also found that Rhonda did not have standing to object to the order and that Rhonda would not be named as a party in the guardianship matter.
On August 1, 2014, the Title Nine matter was dismissed. Rhonda's request for a bonding evaluation was denied because the criminal charges were still pending and the bail restriction remained. Rhonda objected to the dismissal of the Title Nine litigation because there had been no determination as to whether Ian could be safely returned to her. She also challenged the judge's decision not to name her as a party in the guardianship matter. Rhonda moved for reconsideration of the trial court's August 1, 2014 order, arguing that under N.J.S.A. 9:6-8.21 she met the definition of "parent" and she was the "psychological parent" of Ian and requested a bonding evaluation. The motion was denied without prejudice on October 1, 2014. This appeal followed.
On appeal, defendant argues that the trial court should have held a full dispositional hearing assessing her status as a psychological parent prior to dismissing the Title Nine litigation. The Law Guardian agrees with her position and urges us to remand for that purpose. We agree.
II.
In our review, we note our usual deference to the special expertise of the family court, N.J. Div. of Youth & Family Servs. v. E.P. 196 N.J. 88, 104 (2008), is inapplicable because the issues before us involve "[a] 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). We owe no deference to a trial court when it makes such determinations. Ibid.
Under Title Nine, an offending parent or guardian is entitled to a dispositional hearing to determine whether the child may be safely returned to the custody of the parent from whom he or she was removed. G.M., supra 198 N.J. at 401-405. Such a hearing should determine "what order should be made" in the litigation. N.J.S.A. 9:6-8.45. The purpose of a G.M. hearing is to determine whether the offending parent has "abated the harm previously posed." See N.J. Div of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 22 (App. Div. 2010). Such hearings are to be conducted "with scrupulous adherence to safeguards," and the trial court's conclusions must be based on material and relevant evidence. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004). The trial court must also state the grounds for its disposition. N.J.S.A. 9:6-9.51(b).
Because she had legal custody of Ian when the Division executed its emergency removal, Rhonda was clearly entitled to a dispositional hearing regarding the return of Ian to her care. Though the Division argues that a dispositional hearing was held on September 12, 2013, that hearing fell below the standards required for such a hearing. Rhonda stipulated to a finding of abuse and neglect as to all the children; however, there was never a finding that Rhonda abused or neglected Ian aside from the conditions in her home. The trial court nevertheless allowed Rhonda's biological children to return to their mother but made no such allowance for Ian.
Although the trial court presumably based its decision on Rhonda's pending criminal charges of abuse toward Ian, the record does not indicate any disposition or finding as to whether Ian could ever safely return to Rhonda. Because the court never resolved the issue, we remand this case to the trial court for a hearing as to Rhonda's custodial status.
III.
Rhonda also asserts that she should have been named as a party in the subsequent guardianship litigation because she qualified as a "psychological parent." In order to establish that a third party is a child's psychological parent, the third party must satisfy the following four-element test:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded dependent relationship parental in nature.
[V.C. v. M.J.B., 163 N.J. 200, 223 (2000) (alteration in original)(citation omitted).]
Here, the record establishes that Rhonda sufficiently met the first three elements, but was prevented from establishing the fourth prong because of a no-contact bail provision attendant to her pending criminal charges. In denying Rhonda's request for a bonding evaluation, the trial court and Division repeatedly invoked the bail restrictions preventing contact between Rhonda and Ian. However, Rule 3.26-1(b) provides that
[i]f the court imposes conditions of bail that include restrictions on contact between the defendant's minor child, (1) a copy of the order imposing the restrictions shall be transmitted to the Family Part, and (2) such restrictions shall not affect contact authorized by an order of the Family Part in a child abuse/neglect case entered after any restriction or contact was imposed as part of the bail order.
Although the court may have other valid reasons to deny Rhonda's request for a bonding evaluation, including the emotional stress it might cause Ian, or the status of Rhonda's criminal charges, the reasoning provided in the record focuses on Rhonda's bail restriction — a restriction that is easily circumvented by Family Part authorization. Because a bonding evaluation may have been critical to the determination of Rhonda's parental status, we remand for further findings as to why a bonding evaluation should or should not be granted.
The Division asserts that the trial court's decision was based on factors other than the bail conditions. However, the Division cites to the court's discussion of modification of the bail conditions for general visitation; not, as is relevant, the court's determination regarding a bonding evaluation. --------
Reversed and remanded for findings consistent with this opinion, to be returned within thirty days. We 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