Opinion
DOCKET NO. A-1559-14T1
05-27-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.W., Defendant-Appellant, and C.V., Defendant. IN THE MATTER OF N.V. and J.V., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors N.V. and J.V. (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-197-13. Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors N.V. and J.V. (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
S.W. appeals from a February 28, 2013 stipulation order and an October 9, 2014 order that terminated her Title Nine litigation. We affirm.
We derive the following from the record. On October 7, 2012, the Division of Child Protection and Permanency (Division) received a referral from the Palisades Police Department that S.W. was "walking on the street with her children looking disheveled." When S.W.'s neighbor approached her and her children, J.V. and N.V., S.W. informed the neighbor that she needed to "contact the fire prevention people to prevent the fire." S.W. also advised her neighbor that the "germs coming through her walls [were] going to set the house on fire." The neighbor then contacted the police, who in turn referred the matter to the Division.
The police found S.W.'s residence in disarray when they arrived. When questioned, S.W. informed the police that germs were coming through her walls, and that she had placed a bottle of Lysol in her oven before going outside with her children to "look for a fire prevention specialist to ask if it were safe to do so." S.W. was voluntarily transported to a nearby hospital that same day.
Upon further investigation by the Division, it was discovered that S.W. had been hospitalized three different times in 2012 for mental instability. She was involuntarily hospitalized for two weeks in February 2012, and was also hospitalized in May 2012 for paranoid schizophrenia. She was involuntarily hospitalized again on September 24, 2012, through October 2, 2012, for mental health issues. As a result of the September 2012 hospitalization, C.V., the father of J.V. and N.V., cared for both children. Following her October 1, 2012 discharge, the children were returned to S.W.'s primary physical care four days later.
S.W. was scheduled to attend a psychological consultation when she was hospitalized on October 7, 2012. A Division caseworker met with her prior to the consultation to discuss the October 7 incident. S.W. informed the caseworker that she was depressed the prior night and decided to clean the apartment, and that she removed all the pots and pans from the cabinet and clothes from the closets in an attempt to "rid her apartment of the germs that were behind the walls." She then stated that she was unclear whether she placed a bottle of Lysol in the oven or if she had sprayed Lysol into the oven. S.W. also stated that she left the home with her two children to find "the fire inspector" because she was afraid the house was going to "go boom." She reported that she was on numerous medications and did not think she was taking them properly.
The caseworker informed S.W. that the Division would be implementing a safety protection plan. The plan allowed the two children to remain in the custody of C.V. until it was determined that S.W. was mentally stable. Her future contact with the children would also be supervised.
S.W. met with the Division caseworker on October 26, 2012, and informed the caseworker that she wanted to participate in the Mentally Impaired Chemically Addicted (MICA) program at the hospital. She also advised the caseworker that she had consumed alcohol while taking her medications. The caseworker repeated the Division's safety plan to S.W., which she acknowledged and signed. S.W. was discharged on October 28, 2012, and admitted into the MICA program the following week.
On November 16, 2012, the Division filed a verified complaint under an FN docket number (the FN matter) against S.W. and C.V. pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, seeking care and supervision of J.V. and N.V. An order to show cause hearing was held the same day. S.W. was represented by the Bergen County Mental Health Law Project, while C.V. appeared pro se via telephone. The judge granted the Division care and supervision of the children, and ordered that the two children be placed in C.V.'s primary physical custody with S.W. and C.V. retaining joint legal custody. S.W. was also ordered to submit to random urine screenings.
At the November 29, 2012 return date on the order to show cause, the judge continued the parents' joint legal custody of the children, with C.V. retaining primary physical custody. S.W. was ordered to attend psychological, psychiatric and substance abuse evaluations, and to submit to random drug and alcohol screenings. S.W. was granted unlimited phone contact with the children and visitation on a "liberal basis[.]"
Child support litigation under an FD docket number (the FD matter) was pending between S.W. and C.V. at the same time as the FN matter. In the FD matter, C.V. sought to suspend his support obligations. With the assistance of counsel, S.W. and C.V. entered into a consent order dated January 8, 2013. The order stated that both parents would continue to exercise joint legal custody of the children, with C.V. maintaining primary physical custody. The order further stated, "[w]hen [S.W.] feels that she is able and [willing] to regain custody of the children, [C.V.] will comport with her wishes and transfer custody to her. [S.W.] must be mentally and physically apt to take care of the children for said transfer to occur."
The judge on the FN matter first became aware of the consent order in the FD matter at a January 24, 2013 case management conference. S.W.'s counsel moved to dismiss the FN matter, arguing that there was no longer a custodial dispute between S.W. and C.V. due to the execution of the consent order. The judge denied the motion, reasoning that S.W. did not fully comprehend the ramifications of the consent order. The judge appointed a guardian ad litem to S.W., and ordered S.W. to seek further psychiatric and psychological evaluations to ascertain whether she had the capacity to understand the nature of the FN proceedings. In addition, S.W. was ordered to comply with the MICA program as well as the recommendations of her psychological and psychiatric evaluations.
A fact-finding hearing in the FN matter was scheduled for February 28, 2013. With the assistance of counsel, S.W. informed the judge that she desired to enter a stipulation in lieu of the fact-finding hearing. After an extensive colloquy with S.W. to ensure that she understood the nature and import of her decision, the judge determined that S.W. was competent to enter into the stipulation and that she did so knowingly, willingly, and voluntarily. S.W. then testified that she failed to take her medications as prescribed when acting as the primary caretaker of J.V. and N.V. Following the testimony, the judge held that S.W.'s behavior was sufficient to sustain a finding of neglect under N.J.S.A. 9:6-8.21(c)(4). A stipulation order consistent with the judge's findings was entered that day.
Prior to the hearing, S.W. was evaluated by a psychiatrist and found competent in terms of her ability to understand the nature of the proceedings.
Several compliance review hearings were held following the hearing. During an October 10, 2013 hearing, S.W. stated that she lied when stipulating to the facts, and claimed that she only entered into the stipulation because her previous counsel informed her that she would likely lose at trial. S.W.'s new counsel requested that the judge disregard her statement, as she was currently "impaired." The judge questioned S.W. about her statement, but took no formal action.
On October 9, 2014, the judge entered an order terminating the FN litigation, maintaining the children's primary physical custody with C.V. The judge reasoned that no safety or risk issues were posed to the children while in C.V's physical custody. S.W. retained joint legal custody of the children, and was permitted to file an application to modify the custody and visitation arrangement upon a showing of mental stabilization. S.W. appealed the October 9, 2014 order on November 20, 2014. An amended notice of appeal, which included the February 28, 2013 stipulation order, was filed on March 4, 2015.
On appeal, S.W. argues:
[POINT I]
THE TRIAL COURT ERRED BY ACCEPTING A STIPULATION FROM S.W., IN THE FORM PROVIDED, AS REQUIRED BY [N.J. DIV. OF YOUTH & FAMILY SERVS. v. M.D., 417 N.J. SUPER. 583 (APP. DIV. 2011)].
A. The facts S.W. purportedly stipulated to do not constitute abuse or neglect pursuant to [N. J.S.A.] 9:6-8.[21](c)(4).
B. S.W.'s trial attorneys advised her to stipulate to abuse or neglect, without explaining the ramifications of the stipulation, even after the judge suggested she would not accept a stipulation based on mental health alone.
C. S.W.'s trial attorneys failed to allow her to withdraw the stipulation.
[POINT II]
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A DISPOSITIONAL HEARING PURSUANT TO N.J.S.A. 9:6-8.50 AND [N.J. DIV. OF YOUTH & FAMILY SERVS. v. G.M., 198 N.J. 382 (2009)] ("[G.M.] HEARING").
We first address S.W.'s argument that the judge erred by accepting S.W.'s stipulation and making a finding of neglect under N.J.S.A. 9:6-8.21(c)(4) in the February 28, 2013 order. S.W. argues that the judge made a finding of neglect based upon proof of past harm to the children, rather than upon proof that the children's physical, mental or emotional conditions were in imminent danger of becoming impaired at the time of the Division's intervention, as required by N.J.S.A. 9:6-8.21(c)(4). In addition, S.W. alleges that she became confused by the judge's questioning during the February 28, 2013 proceeding, and that she did not fully understand the ramifications of the stipulation when she entered it. S.W. also argues that the judge failed to consider her statement at the closing of the stipulation proceeding where she advised she was taking her medications at the time of the Division's filing.
In considering S.W.'s arguments, we begin with a review of the process by which S.W.'s stipulation was obtained. At the onset of the February 28, 2013 proceeding, S.W. advised the judge that she wished to enter a stipulation in lieu of a fact-finding hearing. When prompted by the judge, S.W.'s then-counsel informed him that S.W. had changed her mind "at least three times" prior to the start of the proceeding that morning and, as such, was unsure whether S.W. was prepared to stipulate that day. The judge responded by asking S.W. and her counsel to have a discussion off the record as to whether a stipulation would be entered. Following the discussion, S.W.'s counsel reiterated on the record that S.W. had changed her mind "a few times" that morning, and expressed some trepidation as to whether S.W. was prepared to stipulate. Nevertheless, counsel informed the judge that S.W. had advised that she was "ready to stipulate" and did not need additional time. The judge proceeded with the stipulation.
Prior to accepting S.W.'s stipulation, both the judge and S.W.'s counsel engaged in extensive questioning and explanatory discussions with S.W. to determine whether she truly understood the nature of her decision to stipulate. During the discussion, S.W. noted that she was aware of the Division's complaint alleging abuse or neglect, and that she understood the allegations. S.W. further acknowledged she had the right to a trial where the Division would have to prove that she abused or neglected her children by a preponderance of the evidence. Moreover, she stated that she understood her right to appeal the fact-finding decision in the event the judge found she abused or neglected her children. The judge explained to S.W. the alternative option of stipulating to the Division's allegations of abuse or neglect in lieu of a fact-finding hearing. S.W. acknowledged that she understood.
The judge explained the consequences of a finding of abuse or neglect, and advised S.W. that her name would be placed on the Central Registry. S.W. asked the judge if her children were going to be subject to adoption. The judge responded in the negative, and informed S.W. that only a limited number of agencies, such as those dealing with adoption or daycare, would have access to the Central Registry information. S.W. stated that she had hoped to obtain a daycare position one day, to which the judge responded that it was not possible to do so after being placed on the Central Registry. S.W. reiterated that she still desired to continue with the stipulation. The judge informed S.W. that her placement on the Registry would also likely interfere with her ability to adopt, foster or work in a group home in the future. S.W. acknowledged that she understood and reaffirmed her desire to stipulate.
S.W. denied that she had been forced into, or was promised anything, in exchange for her stipulation, and informed the judge that she was on medications but the medications did not interfere with her ability to understand the nature of the proceeding. S.W. acknowledged that she had sufficient time to meet and speak with her attorney, and that she was satisfied with the advice she had received.
S.W.'s counsel questioned S.W. as to whether she understood the nature of the current and future proceedings. S.W. acknowledged that she did. She also acknowledged signing the voluntary stipulation form submitted to the court.
S.W. acknowledged that she was the "primary caretaker of the children" when the Division intervened. When asked whether she agreed that her mental health placed her children at substantial risk of harm, S.W. advised her counsel that she did not understand the term "substantial," at which point, the judge informed her it meant in this context, "[r]eally, really bad. Really high risk." The judge explained that the phrase "substantial risk of harm" did not mean that she physically harmed her children, but that her mental health created such a risk of harm for her children. S.W. inquired whether her "mental illness" would make her incapable of being reunified with her children. The judge informed S.W. her mental illness would not bar reunification. S.W. acknowledged the judge's explanations and noted her agreement.
The judge next asked S.W. whether, at the time of the filing, she was drinking alcohol and taking her medication. S.W.'s attorney objected to the judge's question. The judge responded that she would not accept a stipulation based only on mental illness, as some sort of behavior on the part of S.W. was required. The judge then paused the proceeding to speak with S.W.'s counsel briefly off the record. When the matter resumed, S.W.'s counsel asked S.W. whether she had failed to take her psychiatric medications on one or more occasions, to which S.W. responded, "[p]ossibly." The judge intervened and asked, "[p]ossibly, or yes?" S.W. responded, "[w]ell, sometimes I forget to take my medications." The judge followed up by asking, "[s]o you didn't take your medications as they were prescribed?" S.W. replied, "[y]eah."
In reaching her decision, the judge held:
I find that [S.W.] has been evaluated by Dr. Federbush . . . a psychiatrist who has found her competent to participate and understand the nature of these proceedings. [S.W.] has testified under oath to facts that would constitute an act of neglect, specifically having a history of mental illness and not being compliant with her medications at times.
She has made a knowing, voluntary waiver of her rights. She is not under the influence of anything that would impair her judgment. In fact, she takes medications now since the filing that she says do not interfere with her understanding or make her confused or disoriented, and I do not find that the medications would interfere in any way with her ability to understand this proceeding. She made a knowing, voluntary waiver of her rights. She . . . has been advised by counsel, and she is satisfied with counsel, so I will enter a finding of neglect pursuant to N.J.S.A. 9:6-8.21(c)(4).
At this point in the judge's oral decision, S.W. stated, "Well, I was taking my medications[.]" The statement was not acknowledged by the judge or counsel. --------
The judge ruled in the stipulation order that S.W. knowingly, willingly and voluntarily admitted that "at the time the Division became involved she was the primary caretaker for the minors and was not fully compliant with her prescribed medication for her mental health condition which imposed a substantial risk of harm to the minors." As such, the judge held that S.W.'s behavior constituted neglect under N.J.S.A. 9:6-8.21(c)(4).
Our standard of review is well-settled. We are bound by the family court's factual findings if supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). We accord particular deference to the family court's fact-finding because of the court's "special expertise" in family matters, its "feel of the case," and its opportunity to assess credibility based on witnesses' demeanor. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
Under N.J.S.A. 9:6-8.21(c)(4), an abused or neglected child 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 . . . 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[.]
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.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). The statute requires a court to consider harm or risk of harm to the child, as opposed to the intent of the abuser, because "[t]he main goal of Title [Nine] is to protect children 'from acts or conditions which threaten their welfare.'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999) (quoting Stave v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991)). Further, the phrase "minimum degree of care," as used in N.J.S.A. 9:6-8.21(c)(4)(b), means conduct that is not "grossly or wantonly negligent." G.S., supra, 157 N.J. Super. at 178. Therefore, to show a failure to exercise a minimum degree of care, negligence is not sufficient, but intentional behavior is not essential. Id. at 178-79.
A court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." Id. at 21 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
In New Jersey Division of Youth & Family Services v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002), we held that a
stipulation must be definite and certain in its terms and the consent of the parties to be bound by it must be clearly established. A factual stipulation in an abuse or neglect case must conform to these same standards. That is, the judge must be satisfied that there is a factual basis from which to conclude that defendants have committed some specific act or acts which constitute abuse or neglect as defined in N.J.S.A. 9:6-8.21(c) and that the parents willingly, knowingly and voluntarily agree that they have committed these acts.
Since the judge in these cases is also the fact finder, the need to preserve judicial neutrality and objectivity is paramount. Clearly then the judge in an abuse or neglect proceeding must play no role in advising or otherwise suggesting to a defendant to waive any of his or her legal rights. This is a matter that must be left entirely up to defendant to decide in consultation with competent counsel.
[(internal citations omitted).]
Moreover, before accepting a defendant's stipulation in lieu of a fact-finding hearing in an abuse or neglect case, the judge "must first determine that the waiver involved 'the intentional relinquishment of a known right . . . evidence[d] by a clear, unequivocal and decisive act from which an intention to relinquish the right can be based.'" Id. at 266 (quoting Country Chevrolet v. N. Brunswick Planning Bd., 190 N.J. Super. 376, 380 (App. Div. 1983)); Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 291 (1988). "This determination must be made by the judge on the record before a party can be deemed bound by the stipulation." J.Y., supra, 352 N.J. Super. at 266; accord Schere v. Twp. of Freehold, 150 N.J. Super. 404, 407-08 (App. Div. 1977). Further, the judge must also directly apprise a defendant of "their rights under [Title Nine] to a fact-finding hearing where the burden of proof will be on [the Division] to establish the elements of abuse and neglect by a preponderance of the evidence." Ibid.; N.J.S.A. 9:6-8.46(b).
Here, following S.W.'s stipulation, the judge determined that S.W.'s failure to take her prescribed medication while acting as the primary caretaker of J.V. and N.V. placed the children at a substantial risk of harm. As such, the judge concluded that S.W.'s behavior constituted neglect under N.J.S.A. 9:6-8.21(c)(4). S.W. argues that the facts she stipulated to do not constitute abuse or neglect under the applicable statute. We disagree.
As our Supreme Court held in A.L., supra, 213 N.J. at 23 (internal citations omitted), we "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Further, in the "absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." Id. at 21. S.W. correctly notes there was no stipulation to facts constituting actual harm here. Nevertheless, we conclude the judge's decision was based on substantial credible evidence in the record, specifically the most recent October 7, 2012 incident, as well as S.W.'s repeated hospitalizations (both voluntary and involuntary) for her mental illness, and her noncompliance with her mental health care services. Accordingly, the judge's conclusion that S.W.'s behavior placed her children's physical, mental, or emotional condition in imminent danger of becoming impaired was well supported. We see no reason to disturb the judge's finding of neglect under N.J.S.A. 9:6-8.21(c)(4)(b).
We are not persuaded by S.W.'s contentions that she did not understand the ramifications of her decision to stipulate. A psychiatrist found S.W. competent to testify prior to the proceeding. The judge engaged in a detailed colloquy with S.W. to ensure that she understood every aspect of the stipulation. In addition, S.W. signed and submitted a voluntary stipulation form on that same date acknowledging that she understood the nature and consequences of her decision.
We conclude the judge complied with the controlling decisional law that addresses stipulations in Title Nine abuse or neglect proceedings. From our review of the record, there were sufficient factual bases for the judge to conclude that S.W. committed acts which constituted neglect, that the judge "preserve[d] judicial neutrality and objectivity" throughout the stipulation hearing, and that the ultimate decision to stipulate rested entirely with S.W. J.Y., supra, 352 N.J. Super. at 265-66. Prior to accepting the stipulation, the judge fully apprised S.W. of her right to a fact-finding hearing where the Division would be required to establish the elements of abuse or neglect by a preponderance of the evidence. Id. at 266.
Predicated upon the totality of the record, the judge concluded, and we agree, that S.W. made a "knowing, voluntary waiver of her rights." S.W.'s remaining arguments as to her February 28, 2013 stipulation lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
We next address whether the judge erred by not holding a dispositional hearing prior to terminating the FN matter on October 9, 2014. S.W. argues she was entitled to a hearing prior to dismissal of the FN litigation, and that the increased restrictions placed on her parental rights in the order were akin to a "quasi-termination of her rights" and a violation of due process. We disagree.
In New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382, 387-88 (2009), 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." Thus, a dispositional hearing "must be held to determine the appropriate outcome of the case." Id. at 399. A court has several options in determining the appropriate disposition when a child has been removed from the parent who had residential custody:
The court may enter a suspended judgment, N.J.S.A. 9:6-8.52; release the child to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint, N.J.S.A. 9:6-8.53; place the child with "a relative or other suitable person," N.J.S.A. 9:6-8.54(a); make an order of protection, N.J.S.A. 9:6-8.55; place the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or require the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a).
[Id. at 399-400.]
Here, a G.M. hearing was not held by the judge prior to termination of the Title Nine action. Prior to the fact-finding hearing on February 28, 2013, S.W. and C.V. signed a voluntary consent order in the FD matter regarding the children's care. We conclude the parents' entry of the consent order in the FD matter — which the judge was apprised of at the February 28, 2013 hearing — was an appropriate substitute for a G.M. hearing and obviated the need for such a hearing prior to the termination of the FN matter.
We are not persuaded by defendant's argument that the October 9, 2014 order constituted a quasi-termination of parental rights. The order maintained the legal and physical custody arrangement agreed upon by the parties two years prior. While there were restraints placed on S.W.'s contact with the children, such restraints did not terminate, without recourse, her ability to seek their removal. The order permits S.W. to seek modification of the contact and visitation arrangement ordered by the judge, requiring only that she submit a written application demonstrating stabilization of her mental health and compliance with her mental health services.
S.W. lastly argues that she was provided ineffective assistance of counsel during the February 28, 2013 stipulation proceeding and the October 10, 2013 compliance review hearing. In light of our applicable standard of review and controlling decisions of law, we find S.W.'s arguments as to ineffective assistance lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION