On appeal from the Superior Court, Chancery Division, Family Part, Union County, FN-20-125-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
This is an appeal by defendant B.R.W. from an "order terminating litigation," entered on October 10, 2006, because the children of B.K., the mother of defendant's son T.W., have been returned to her "legal and physical custody." They had been placed "under the care and supervision of the Division" of Youth and Family Services (DYFS) following the filing of a complaint for protective services. The order provides that appellant "shall have no contact with the minor children," but permits him to "file an application before the family court" if he "seeks a change in custody or visitation" in the future. In such case, the reviewing judge was to "review [a] psychological evaluation" of defendant prepared by Dr. Gerard Figurelli at the request of defendant's attorney.*fn1
B.R.W. claims that DYFS "failed to make 'reasonable efforts' as required under N.J.S.A. 30:4C-11.1 to make it possible for T.W. to return home" and that the trial court failed to hold a hearing on the issue before dismissing the complaint. He also asserts that his parental rights were improperly "constructively terminated," and that the court improperly denied him "supervised visitation." B.R.W. seeks a remand for "reasonable efforts" at reunification and supervised visitation with his son or at least a hearing on these issues.
This was a Title 9 protective services case, and N.J.S.A. 9:2-4.1 applies. That statute provides:
b. Notwithstanding any provision of law to the contrary, a person convicted of sexual contact under N.J.S. 2C:14-3 or endangering the welfare of a child under N.J.S. 2C:24-4 shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for such custody or visitation rights to be awarded. However, a court that awards such custody or visitation rights to a person convicted of sexual contact under N.J.S. 2C:14-3 or endangering the welfare of a child under N.J.S. 2C:24-4 shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of Court.
Significantly for present purposes, N.J.S.A. 9:2-4.1(c) expressly provides:
A denial of custody or visitation under this section shall not by itself terminate the parental rights of the person denied visitation or custody, nor shall it affect the obligation of the person to support the minor child.
We conclude that the abuse of B.K.'s daughter by B.R.W. is related to the issue of entitlement to the custody and care of B.R.W.'s son. B.R.W.'s guilty plea is dispositive and cannot be challenged by collateral attack in these proceedings. The fact the victim was another child of the household does not affect the defendant's burden under N.J.S.A. 9:2-4.1. Moreover, the court expressly stated that defendant may make an application for visitation and/or custody as circumstances develop. Dr. Figurelli recommended that a "sex offender specific evaluation" be conducted after defendant's "intensive" and "after care" treatment.
Significantly, the order under review requires DYFS to keep the matter open for three to six months and calls for the completion of "family counseling." If appellant is successful in substance treatment and the sex offender evaluation as recommended by Dr. Figurelli, he will be able to apply for supervised visitation and for greater parental responsibility with respect to his son. We do not now decide whether his present counsel, the Office of Parental Representation, need represent him at the time by virtue of the order of dismissal of the instant complaint. We can review that question if counsel declines such representation once he endeavors to make the necessary showing under N.J.S.A. 9:2-4.1(b) to obtain visitation and/or custody.
With the return of the children to their mother for all purposes, including their care, custody and supervision, we affirm dismissal ...