July 11, 2007
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
T.Z., JR., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.Z. AND T.R., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-51-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2007
Before Judges Parker and Messano.
Defendant T.Z., Jr., appeals from an order entered on June 22, 2006 dismissing the complaint for abuse and neglect and allowing V.R., the mother of defendant's children, to move to Rhode Island with the children. Defendant contends that the trial court erred by placing the children, M.Z. born on November 19, 1990, and T.R. born on May 21, 1992, with V.R. because she abused and neglected them. We affirm.
Between April 2001 and March 2004, DYFS received eighteen referrals regarding defendant for lack of supervision, unclean and unsafe housing, alcohol abuse, medical neglect, physical abuse, domestic violence and abandonment of the children. Fourteen of the referrals were substantiated by DYFS. The last referral was made in September 2004 by a doctor at the Center for Children's Support, who reported that a twelve-year-old girl stated she had sexual relations with defendant. During an investigation by the Prosecutor's Office, defendant admitted sexual contact with the twelve-year-old girl. He was arrested and charged with aggravated sexual assault. Defendant signed a fifteen-day consent for placement of the children with their paternal grandfather. V.R.'s whereabouts were unknown at the time. She had left the family because of defendant's abuse and defendant refused to let her visit the children. He had advised the children's school that V.R. was prohibited from contacting the school or the children.
At a fact finding hearing on January 25, 2005, Stephanie Lex, a DYFS case manager testified with respect to the extensive history of "unsafe and unclean housing, alcohol abuse, medical neglect, physical abuse, domestic violence and abandonment" of the children by defendant. At the conclusion of the hearing, the court found that defendant had abused and neglected the children based upon his failure to provide adequate housing. Defendant remained incarcerated pending trial on the charges of sexually assaulting the twelve-year-old girl.*fn1 The court considered defendant's indefinite incarceration a substantial factor in his inability "to provide parental care or provide for the children's needs." The court ordered that the children remain under DYFS's supervision; that T.R. remain with his paternal grandfather and M.Z. with his foster family. Although the court made no findings with respect to V.R., it ordered that she not visit with the children until she completed the psychological evaluation and her contact with the children was deemed appropriate by the children's therapist. An interstate evaluation of V.R.'s home in Rhode Island was also ordered. On September 6, 2005, DYFS proposed a permanency plan, recommending that the children be returned to "their mother in her care and placement." By this time, both children had been removed from their prior placements to the Deveaurex Family Teaching Home Program because their behavioral problems were too intense for regular foster families. Rosemary Ortiz, a DYFS caseworker, testified that the children were willing to address family issues and reasons why their mother left home. The children expressed their desire to visit their mother in Rhode Island, and T.Z. specifically shared his hope to be reunited with V.R. there. While defendant was incarcerated, he had visitation with the children for a period of time. On August 3, 2006, however, DYFS requested that the visitation stop because defendant had conversations with the children regarding the case. Moreover, after visits with their father, the children exhibited behavior problems.
Ortiz further testified that termination of defendant's parental rights and reunification of the children with their mother was appropriate. At that time, DYFS was only awaiting completion of the evaluation of V.R.'s home to complete the reunification plan.
The dispositional hearing was conducted on September 6 and September 30, 2005. Defendant testified that V.R. left and returned to him several times until she left permanently in 1995. She usually took the children with her when she left, but in 1995 the children were in her mother's custody. While V.R. was gone, however, defendant's sister obtained custody of the boys and thereafter defendant resumed custody of them. Defendant acknowledged that if he was convicted of the sexual assault charges, he would not be an appropriate caregiver for the children, and that, if V.R. demonstrated a commitment to the children, the court should decide whether she was an appropriate custodian for them.
On October 26, 2005, a permanency order was entered allowing the children to return to their mother's custody once the interstate home evaluation was completed. The order further directed that the mother and children continue therapy "so that they may transition into [their] mother's home." The trial court stated that it overrule[d] the objections to the permanency plan by the defendant . . . . The mother's failure to live with the children in the past does not preclude the mother from placement, especially in light of professional opinion(s) that she is an appropriate caretaker and guardian. The father's argument that he does have a bond with the children does not in any way preclude the children from achieving permanency by way of placement with the biological mother. [The] children have been in placement for over 13 months and are deserving of permanency.
In December 2005, the children were reunited with V.R. in Rhode Island, although the children remained in DYFS's legal custody. On June 22, 2006, the trial court held a final dispositional hearing in which it summarized its findings of fact and conclusions:
The matter was scheduled to return to court today. I did receive a court report for purposes of today's hearing, indicating that the family -- the children, their mother and her husband had been offered family counseling.
Individual counseling has also been offered for [M.Z.] through NRI Community Services, Inc. in Rhode Island.
The family in Rhode Island does have a new address which is provided in the court report. The Department of Children Services in Rhode Island continues to follow the case. There is an ongoing caseworker in Rhode Island.
[T.R.] is doing very well. He's thriving in all areas. He's presenting no problems.
[M.Z.] has had some adjustment difficulties. He was missing and then he did return home. Both [M.Z.] and his mother did indicate that they would like to work things out. And additional services are going to be sought out to assist [M.Z.] with his behavioral issues.
And it was noted in the court report that [M.Z.] did have similar issues in prior placements. And it's believed that with more structured services, [M.Z.] can, indeed, do well.
The Division apparently has no concerns with the home or the mother or with [T.R.] At the present time, the only concerns revolve around [M.Z.] and his ability to adjust and the ability to provide him with the necessary support services so that he can adjust. And as indicated, it's believed that possibly a more structured environment will assist him in doing that.
The Division plans on continuing to monitor the case until such time as they're . . . able to close the case upon approval of the Rhode Island authorities for custody of the children to be transferred.
At the June 22, 2006 hearing, defendant's conviction on the charges associated with his sexual relations with the twelve- year-old were placed on the record. The judge granted DYFS's motion to dismiss the case and return custody to V.R., stating:
Based on what's . . . been presented to the Court, I have no reason not to dismiss the litigation, without prejudice, with legal and physical custody of the children to be with [V.R.], with . . . the conditions of dismissal, including that DYFS is to maintain its file until any approval for custody is received by the Rhode Island Child Protective Services.
I would require Dr. Lee to have one more evaluation session [with defendant] and to obligate him to forward any results to the Rhode Island Child Protective Services so that they may be involved in any decisions in the future, if they care to, with regard to visitation.
In the event that they choose not to be involved in any request for visitation by [T.Z.], then that's something that he would have to pursue by way of FD application, if not in this state, then in Rhode Island seeking . . . an order of the Court granting him some sort of visitation rights.
But there's no reason for this Court to keep this litigation open because of a personal desire on [defendant's] part to pursue that.
At this time, I am not going to order release of [M.Z.'s] counseling records to [defendant]. . . . because I'm not even sure what issue that goes to. It certainly doesn't go to the issue of custody. [Defendant's] not capable of assuming custody.
I don't even know that it goes to the issue of visitation because in the past . . . the issues surrounding his visitation have had to do with him, meaning [T.Z.], and not [M.Z.]
And third of all, no one's raised anything that gives me any indication to believe that [M.Z.] is not being appropriately treated by whatever counselor [he's] seen. And it doesn't seem that release of the records is necessary in order to identify what exactly [M.Z.'s] problems are because it has been detailed on the record.
Certainly, as a parent, [defendant] has the right to contact any treating professional directly, if he desires to do so, and it would be up to that professional if they want to share with the parent information that they believe is appropriate.
Defendant appeals from that decision and argues:
POINT ONE THE COURT ERRED IN THE PLACEMENT OF T.Z. AND M.R. IN V.R.'S CUSTODY BECAUSE SHE ABUSED AND NEGLECTED THEM WITHIN THE MEANING OF N.J.S.A. 30:4C-15 1(a)
DYFS and the Law Guardian contend that we lack subject- matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because the matter has been transferred to Rhode Island. N.J.S.A. 2A:34-53 to -95. The UCCJEA "limits child custody jurisdiction to one state, provides limits on modification jurisdiction, and provides enforcement provisions for child custody orders." N.J.S.A. 2A:34-53, Senate No. 150-L. 2004 c. 147.
Although there is no question that jurisdiction transferred to Rhode Island with respect to any future proceedings involving the children, we clearly have continuing and exclusive jurisdiction to hear the appeal of the New Jersey trial court's final order of dismissal entered on June 22, 2006. See N.J.S.A. 2A:34-65 to -66.
Nevertheless, we find no merit in defendant's contention that the trial court erred in placing the children with their mother. Nothing in the record indicates that V.R. abused or neglected the children. V.R. left New Jersey because of defendant's abuse at a time when the children were in V.R.'s mother's custody, indicating that V.R. thought the children were safe and properly cared for when she left. We are satisfied that V.R. did not abandon or neglect the children when she left New Jersey for her own survival. The evidence more than adequately supports the trial court's decision. R. 2:11-3(e)(1)(A); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).