On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FN-02-319-06.
The opinion of the court was delivered by: Simonelli, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Lisa, Lihotz and Simonelli.
Defendant is the biological father of R.X. Defendant appeals from the order of September 18, 2006, transferring legal and physical custody of R.X. to his biological mother, S.G., granting him liberal visitation and terminating the litigation. On this appeal, defendant raises the following arguments:
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN THE FACT-FINDING HEARING AND MOTION FOR SUMMARY JUDGMENT WERE CONDUCTED BEFORE THE DEFENDANT WAS REPRESENTED BY COUNSEL AND WITHOUT THE OPPORTUNITY TO PRESENT EVIDENCE.
THE TRIAL COURT ERRED IN AWARDING CUSTODY OF [R.X.] TO THE OUT-OF-STATE NON-CUSTODIAL PARENT AND TERMINATING LITIGATION WITHOUT CONDUCTING A PERMANENCY HEARING.
We do not agree with Point II, and hold that a permanency hearing is not required prior to placing a child in the physical custody of the non-abusive parent and dismissing the litigation. However, we agree with Point II that defendant's procedural due process rights were violated by the failure to appoint counsel to represent him. Because of this defect, we reverse and remand for a new hearing.
R.X. was born on July 12, 2002. Defendant and S.G. were married shortly before R.X. was born and separated within a year. After the parties separated, defendant lived in New Jersey and S.G. lived in New York. S.G. brought a custody action in New York. An order was entered awarding joint legal custody to defendant and S.G., with primary physical custody awarded to defendant, and liberal visitation awarded to S.G. Defendant suffers from serious health problems for which he was hospitalized numerous times. S.G. suffers from a mental illness for which she was hospitalized numerous times.
On January 31, 2005, the New Jersey Division of Youth and Family Services (DYFS) received an anonymous referral that defendant slept all day, had numerous people going in and out of his house, and used crack cocaine. During an investigation, defendant explained to a DYFS worker that he slept often because he had a serious heart condition, and his mother or sister cared for R.X. when he was sleeping or at medical appointments. Defendant also denied using crack cocaine. However, on February 22, 2005, defendant submitted to a urine screen, which tested positive for cocaine. Defendant was referred to outpatient substance abuse treatment, but did not attend due to his continuing medical treatment and hospitalizations. Defendant's treating physician advised DYFS that defendant's toxicology reports during four or five hospitalizations between June 2005 and October 2005 tested negative for all substances.
After concluding its investigation, DYFS determined that R.X. was well cared for and was not being abused or neglected; there was support from relatives; defendant was not found to be using drugs; and defendant was unable to submit to another substance abuse evaluation and attend treatment due to his illness. As a result, DYFS closed the case on December 20, 2005.
On April 4, 2006, DYFS received another referral alleging that defendant used crack cocaine; was "high" all the time; R.X.'s paternal aunt was caring for the child; R.X. was absent from school for four days because defendant did not wake up to put her on the school bus; defendant was being investigated by the police for having sexual relations with minors; and defendant slept in the same bed as R.X. DYFS contacted defendant's mother, who advised that she was caring for R.X. because defendant was ill. Defendant's ...