On appeal from the Essex County Juvenile and Domestic Relations Court.
Milmed, Joelson and Gaulkin. The opinion of the court was delivered by Milmed, P.J.A.D.
Defendant L.P., the mother of T.L., an infant now nine years old, appeals from an order of the Essex County Juvenile and Domestic Relations Court awarding custody of the child to plaintiff E.T., the mother's aunt, "until further order of [the] Court," with overnight visitation to the mother, at her home, every other weekend. The order also provides for both parties to have "partial visitation on all major holidays . . . and such other visitation as agreed upon" by them.
Following the filing of a "Best Interest" report by the chief probation officer of the county, a plenary hearing was conducted on plaintiff's complaint seeking custody of the infant. After hearing testimony from the parties and the mother's brother and after interviewing the child in chambers, the trial judge, in a letter opinion, found that the child "has been exposed to excessive abuse of marijuana by adults while in the mother's home"; that "the child himself was caused to smoke marijuana by his mother"; that "this had an adverse [e]ffect" on the child; that "the home of [E.T.] is a better home for the child than that of [L.P.], his mother"; that the infant's mother "is absolutely without concern with respect to use and abuse of marijuana in the child's presence"; that the child is "obviously happy and well adjusted in the home of his aunt"; that it is "the child's wish that he should remain with the aunt," and that "the mother's home in which the child had resided was not a good environment for the child from a standpoint of the education, clothing or facilities provided." The trial judge concluded:
While the court does not determine that the home in which the child was residing was totally unfit or that the mother was unfit, it is clear that the best interest of this child requires that custody continue with the aunt, who is providing a far more suitable home for the child.
N.J.S.A. 9:2-9, the statute applicable to the action instituted by plaintiff, reads as follows:
When the parents of any minor child or the parent or other person having the actual care and custody of any minor child are grossly immoral or unfit to be intrusted with the care and education of such child, or shall neglect to provide the child with proper protection, maintenance and education, or are of such vicious, careless or dissolute habits as to endanger the welfare of the child or make the child a public charge, or likely to become a public charge; or when the parents of any minor child are dead or cannot be found, and there is no other person, legal guardian or agency exercising custody over such child; it shall be lawful for any person interested in the welfare of such child to institute an action in the Superior Court or the Juvenile and Domestic Relations Court in the county where such minor child is residing, for the purpose of having the child brought before the court, and for the further relief provided by this chapter. The court may proceed in the action in a summary manner or otherwise.
N.J.S.A. 9:2-10, the companion statute governing the dispositional order in the matter, provides:
In an action brought pursuant to section 9:2-9 of this Title, the Superior Court, or the Juvenile and Domestic Relations Court, as the case may be, after an investigation shall have been made by the chief probation officer of the county in which the child may reside, concerning the reputation, character and ability of the plaintiff, or such other person as the court may direct, to properly care for such child, shall make an order or judgment committing the child to the care and custody of such person, who will accept the same, as the court shall for that purpose designate and appoint, until such child shall attain the age of eighteen years, or the further direction of the court; provided, however, that in proper cases such care and custody may be exercised by supervision of the child in his own home, unless the court shall otherwise order. Such order or judgment may require the giving of a bond by the person to whose care or custody the said child may be committed, with such security and on such conditions as the court shall deem proper.
It is apparent from the record before us that plaintiff-aunt has failed to establish by competent proof any of the pertinent alternative jurisdictional grounds for institution of an action under N.J.S.A. 9:2-9. At least one of such grounds must be shown to exist before the trial judge, in light of the proofs and the report of the investigation of the chief probation officer of the county, can begin to consider what kind of dispositional
order under N.J.S.A. 9:2-10 would be in the best interests of the child. Thus, before an order such as the one under review could be made by the trial judge, it was incumbent on plaintiff to demonstrate, by clear and convincing competent evidence, that (1) defendant-mother (a) is "grossly immoral or unfit to be intrusted with the care and education of [the] child," or (b) "neglect[s] to provide the child with proper protection, maintenance and education," or (c) is "of such vicious, careless or dissolute habits as to endanger the welfare of the child or make the child a public charge, or likely to become a public charge. . ."; and (2) that the making of the order would be in the ...