On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-197-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C.S. Fisher and C.L. Miniman.
On July 12, 2007, following an evidentiary hearing, the trial judge found that T.H., then a thirteen-year old girl, had been sexually molested by her stepfather, defendant K.H., in September and October 2006. The judge concluded that K.H.'s acts rendered T.H. an abused or neglected child as defined by N.J.S.A. 9:6-8.21; the judge, however, declined to hold that the acts or omissions of defendant J.H., the child's mother, in failing to cooperate or comply with the case plans, constituted abuse or neglect. Orders memorializing those determinations were entered on July 12, and August 15, 2007.
Plaintiff Division of Youth and Family Services (the Division) filed a motion for leave to appeal the order of August 15, 2007 insofar as the judge had refused to find that J.H. engaged in any conduct that amounted to abuse or neglect. That motion was still pending when the Division sought emergent relief as a result, among other things, of J.H.'s unilateral removal of T.H., and her two step-siblings, to the State of Georgia.
In the proceedings that followed, the trial judge denied the Division's request for a transfer of physical custody of T.H. from her mother to the Division. This determination prompted the Division to file, on October 22, 2007, a second motion for leave to appeal and for emergent relief. We decided to hear all these motions on an expedited basis. J.H. and the Law Guardian provided written submissions, and we heard oral argument on October 29, 2007.
By orders entered on October 30, 2007, we granted both motions for leave to appeal; we also indicated in those orders our decision to consolidate the matters and accelerate them for disposition. We now reverse that part of the August 15, 2007 order that concluded J.H. had not engaged in conduct constituting abuse or neglect of T.H., and we reverse that part of the trial judge's October 19, 2007 order that did not compel a change in physical custody of T.H. from her mother to the Division.*fn1
This action was commenced on November 15, 2006 when the Division -- having effected the day before an emergency removal of T.H. from the home of her mother and stepfather -- filed a complaint alleging that T.H. was an "abused or neglected child" within the meaning of N.J.S.A. 9:6-8.21. At that time, the trial judge entered an order requiring defendants to show cause at a later date why an order should not be entered continuing the Division's legal and physical custody of T.H. This status continued through subsequent reviews of the matter and during the fact finding hearing.
The trial judge heard testimony on March 14, April 18, June 13, and July 12, 2007. On July 12, 2007, the judge also heard the summations of counsel and thereafter delivered his oral decision. Although acknowledging it was a close case, the judge found that K.H. had sexually molested T.H. and concluded that this constituted abuse or neglect.*fn2 As noted earlier in a footnote, K.H. did not seek leave to appeal this interlocutory order.
As for the allegations against T.H.'s mother, the trial judge found that J.H. "has been . . . somewhat uncooperative and combative versus the Division and I'm not positive the mother has always acted as I would have or as wisely as she should have." The judge compared J.H.'s failures in this matter with the circumstances in N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596 (2007), which had been decided a few days before the trial judge's oral decision in this matter. The trial judge viewed the allegations against J.H. and her failure to comply with the multiple case plans in this matter -- and, in particular, her failure to insulate T.H., as she had promised in the case plans, from her stepfather -- as similar to the defendant's refusal to condemn her husband for the death of a child in G.L. The Supreme Court in that case described the wife's persistence in that view as being "unrealistic and a tactical error," but that it "did not justify the loss of her parental rights." Id. at 608. As a result, the judge similarly viewed J.H.'s conduct here as "a tactical error," and that he did not think it was "quite enough to constitute abuse and neglect," amplifying those conclusions with his finding that she had not been "as cooperative as [she] should [have] be[en]," and that had "bothered" him, but "there doesn't seem to be proof that [J.H.] allowed [the stepfather] to be in a position to harm [T.H.] again."
We discern from the judge's later comments during the colloquy that followed, that his finding that J.H. did not again allow the stepfather to be "in a position to harm" T.H. was limited to his belief that she did not permit an opportunity for K.H. to physically harm T.H. again. The Division argued that the claim of abuse or neglect regarding the acts or omissions of the mother also included its assertion that, by failing to conform to the case plans, the mother had created an opportunity for emotional or psychological harm to T.H. by allowing K.H., her molester, to be in T.H.'s presence after T.H. had made her allegation of sexual abuse. In response, the judge again emphasized that he viewed J.H.'s failure to cooperate with the case plans as a "tactical error" such as described by the Court in G.L., stating that he "continue[d] to believe that the recent Supreme Court decision does provide -- does state that a parent can make an error, as I said, . . . conduct can [constitute an] unrealistic and tactical error and, nonetheless, not [be] subject to judicial sanctions." The order memorializing the judge's findings regarding J.H. was entered on August 15, 2007.
On August 27, 2007, the Division submitted to this court a motion, which sought both leave to appeal and an extension of time to file a supporting brief. That motion was apparently misplaced en route, and not filed until September 21, 2007. The Division's brief and appendix were not submitted until October 1, 2007.
While those papers were being gathered for our disposition, other troubling events arose in the trial court. T.H. had been placed in Tilmes House, a temporary shelter for girls. She had gone missing from the shelter several times between August 28 and September 5, 2007, but had always returned. However, according to a report from the Tilmes House, T.H. returned to the shelter on September 5, 2007 at approximately 5:45 a.m., appearing to be in pain and wearing dirty clothes. The shelter called local police, but T.H. left before she could be interviewed by police.
At the Division's request, an emergent hearing was conducted in the trial court. Over the Division's objection, however, the trial judge ruled, on September 12, 2007, that when T.H. was ultimately found she should be "temporarily returned to the custody of [J.H.], provided that [K.H.] is not in [the] home and has no contact [with T.H.] whatsoever."
Another emergent hearing took place on September 20, 2007. At that time, the judge heard testimony from Q.J., a teenager who had run away from Tilmes House with T.H. on September 3, 2007. Q.J. testified that she observed T.H. and another girl walk into a store in Paterson. This other girl later told Q.J. that "a light-skinned, fat, bald man," fitting the description of K.H., hit T.H. over the head, forced her into a white truck, which fit the description of K.H.'s vehicle, and drove off. During this hearing, the judge heard from T.H. by telephone; she stated that she had not been sexually assaulted, that she had twisted her ankle and that she was then in Trenton. Her specific location was revealed only to the judge and J.H.
The judge permitted J.H. to pick up T.H. at this undisclosed location, and ordered J.H. to contact Nevada Patterson, a Division caseworker, by 9:30 a.m. the next morning to make an appointment for physical evaluations of T.H. by a pediatrician and a gynecologist. He again ordered that "[J.H.] shall not allow, nor shall [K.H.] have any ...