On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-05- 0899.
Before Judges Wallace, Jr., Ciancia and Axelrad.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2002
Amended Opinion -- Decided January 16, 2003
The primary issue addressed in this appeal is whether a civil notice from a state agency advising that a child has been removed from his or her home without a court order constitutes"process" within the meaning of a criminal statute that prohibits interference with custody"after being served with process." We hold that it does not.
Defendant Mindy Anastasia, also known as Mindy Durando, was found guilty after a jury trial of violating that portion of N.J.S.A. 2C:13-4 which provides: a. Custody of children. A person, including a parent, guardian or other lawful custodian, is guilty of interference with custody if he:... (3) After being served with process or having actual knowledge of an action affecting the protective services needs of a child pursuant to Title 9 of the Revised Statutes in an action affecting custody, but prior to the issuance of a temporary or final order determining custody rights of a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of evading the jurisdiction of the courts of this State.... The facts were disputed at trial, but for present purposes we need only summarize the State's proofs. The Division of Youth and Family Services (DYFS) had become aware that defendant had recently given birth to a boy on January 6 or 7, 2000. Defendant had given birth out-of-state and then returned to New Jersey. Based upon the agency's prior dealings with defendant, some information that the infant had experienced a small weight loss, and the agency's belief that defendant was a flight risk, DYFS decided it would exercise its authority under N.J.S.A. 9:6-8.29 and take the infant from defendant without a court order.*fn1
The problem from the agency's point of view was that DYFS did not know where to find the infant. DYFS, therefore, devised a plan to confront defendant and obtain information about the infant, who was then approximately six weeks old. At least a week in advance, DYFS knew that defendant planned a birthday lunch at a local restaurant on Friday, February 25, 2000, for one of her other children, a daughter. That child was already in DYFS custody and was accompanied to the lunch by a DYFS employee assigned to the Adoption Resource Clinic. During the course of this birthday lunch, two DYFS employees and several local police officers confronted defendant and sought the whereabouts of the infant boy. Defendant denied having a newborn child. At some point defendant was handed a two-page form entitled"NOTICE OF EMERGENCY REMOVAL PURSUANT TO N.J.S.A. 9:6-8.29 and 9:6-8.30 WITHOUT COURT ORDER." This notice set forth defendant's name and address and went on to state that"official notice" was being given that DYFS"has removed A D [the name of the child was spelled out] from your home and placed him in protective custody in foster care." The notice went on to state that defendant should appear at the"Juvenile and Domestic Relations Court of Monmouth County" at 2:30 p.m. on February 28, 2000,"at which time a hearing will take place." The second page of the notice told defendant she had a right to legal representation. The final paragraph read:
The Division of Youth and Family Services is required by law to conduct an investigation of the circumstances leading to and resulting in the child's injury or condition and on the basis of that investigation will determine whether further action is warranted to ensure the child's safety. We would greatly appreciate your cooperation with this agency during the course of the investigation and assure you that we will take every measure possible to protect you and the child in this matter.
The notice closed"Very truly yours" and was signed by a DYFS caseworker. Throughout the trial this notice was referred to as a"DOD letter."*fn2
After receiving this notice in the restaurant, defendant continued to deny the existence of her infant son. In addition to the notice, defendant was told verbally by the police and DYFS workers that she was obligated to reveal the whereabouts of the child. Defendant refused to provide the requested information, was arrested and taken to police headquarters.
In fact, the infant was being cared for at the time by defendant's neighbor, Sharon Chisolm, a certified"Family Child Care Provider." Chisolm testified that the infant was a"beautiful little boy that was well, very well cared for." When, however, defendant did not return to pick up her son, because defendant was in police custody, Chisolm could find no other person to retrieve the child and eventually called the police. The police, in turn, notified DYFS which then took custody of the child.
Defendant raises several issues on appeal. We find three of them meritorious. Throughout the litigation there was a running dialogue about whether the DOD letter handed to defendant constituted"process" within the meaning of N.J.S.A. 2C:13-4a(3). The trial judge ultimately concluded as a matter of law that the letter was process within the meaning of the statute. We agree that the ...