January 17, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF T.S., M.D. AND K.D., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FN-10-26-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges Sabatino and Alvarez.
This child abuse and neglect case brought by the Division of Youth and Family Services ("the Division") against D.D. ("the father") and R.D. ("the mother") returns to this court on issues concerning the clarification and implementation of our opinion in July 2006. See N.J. Div. of Youth and Family Servs. v. D.D., No. A-1165-05T4 (App. Div. July 14, 2006) (slip op. at 1). In that opinion, we held that the Family Part had lacked subject matter jurisdiction over this matter under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), see N.J.S.A. 2A:34-53 to -95, when it issued an order on September 23, 2005 imposing certain restrictions on the father's contact with his two daughters, M.D. and K.D. D.D., supra, slip op. at 9-10. We did so because the courts of Minnesota at that time were already exercising and had not relinquished jurisdiction over the children in the parties' divorce action there, the children had not been living in New Jersey for six months, and our state's "emergency jurisdiction" under the UCCJEA had not been triggered. See N.J.S.A. 2A:34-54, -65, and -68. Consequently, we reversed the Family Part's order.
Following our opinion, the courts of Minnesota issued an order on September 7, 2006, relinquishing jurisdiction to New Jersey as to all issues relating to custody and parenting time, while retaining jurisdiction over the remaining issues in the divorce action. That order specified:
Minnesota is an improper and inconvenient forum for all child custody and parenting time matters between the parties under the UCCJEA, this Court specifically declines jurisdiction over the child custody and parenting time matters, and jurisdiction of all child custody and parenting time matters shall be transferred to the State of New Jersey as the more appropriate forum to hear all child custody and parenting time matters. The remaining portions of this case shall continue to be heard in the State of Minnesota until further Order of the Court.
Thereafter, the Division returned to the Family Part seeking to reaffirm and enforce its September 23, 2005 dispositional order. The order was predicated upon proofs, as adduced in the Family Part's 2005 proceedings, that D.D. had committed inappropriate sexual contact with his stepdaughter, T.S., in August 2001 when she was the age of ten. Among other things, the September 2005 order restricted D.D. from having contact with his daughters, M.D. and K.D., except under the supervision of a person approved by the Division.*fn1
When the case returned to the Family Part in the fall of 2006, however, the parties could not agree on the effect of our opinion, and the Minnesota courts' ensuing relinquishment of jurisdiction, on the order previously issued by the Family Part in September 2005. D.D. contends that the September 2005 order, and the proceedings in the Family Part that led to its issuance, are a legal nullity. Accordingly, D.D. argues that the previously-issued restraints are vacated, and the Division must start anew in the Family Part with a fresh application for relief and supporting proofs, to be considered de novo at a plenary fact-finding hearing. On the other hand, the Division and the Law Guardian appointed for the children contend that no such de novo hearing is required, and that the factual findings made by the Family Part in 2005 continue to have legal force. In particular, the Division opposes having T.S. appear in court and reiterate her accusations about the 2001 improper sexual contact, arguing that such a renewed appearance would be unnecessarily traumatic. The Division thus argues that only a limited evidentiary hearing, amplifying and updating the facts and circumstances, is now necessary.
Faced with these competing interpretations of our prior ruling and Minnesota's reaction to our ruling, the Family Part judge convened a compliance review in this case on January 18, 2007. As the result of that review, the judge issued an order on that date that, among other things, continued the supervised restraints on D.D.'s visitation rights.*fn2 The judge also continued M.D. and K.D. in the care and supervision of the Division, with physical custody maintained by R.D. However, the judge also encouraged counsel to file a motion with this court for clarification of our opinion or other appropriate interlocutory relief. Accordingly, D.D. moved for leave to appeal, and we granted his motion.
D.D. presents to us the following two points:
THIS COURT'S OPINION REVERSED THE ABUSE AND NEGLECT ORDER AND DISPOSITIONAL ORDER WITHOUT QUALIFICATION, REQUIRING A NEW FACT-FINDING HEARING ON THE ALLEGED SEXUAL ABUSE OF T.S. AND THE ALLEGED CONSEQUENT ABUSE OR NEGLECT OF T.S., M.D. AND K.D.
THE MINNESOTA COURT COULD NOT RETROACTIVELY CONFER SUBJECT MATTER JURISDICTION OVER M.D. AND K.D[.], AND THE FILING OF THE AMENDED COMPLAINT AFTER MINNESOTA TRANSFERRED JURISDICTION DID NOT PROVIDE THE TRIAL COURT WITH SUBJECT MATTER JURISDICTION; ACCORDINGLY, THE TRIAL COURT'S INTERLOCUTORY ORDERS PERTAINING TO M.D. AND K.D. MUST BE VACATED, AND THIS COURT SHOULD INSTRUCT THE TRIAL COURT THAT SUBJECT MATTER JURISDICTION WAS NOT RETROACTIVELY CONFERRED.
Having considered those points, and the competing arguments of the Division and the Law Guardian, we generally agree with D.D.'s contentions, with some caveats that we explain hereafter.
At the outset, we incorporate by reference the factual and procedural history embodied in our July 2006 opinion. That opinion unambiguously held that the Family Part lacked subject matter jurisdiction when it issued its orders in 2005.*fn3 D.D., supra, slip op. at 10-11. As stated in the body of our opinion and repeated at its end, our express disposition to "reverse" those orders is plain and unconditional. Id. at 2, 16. See R. 2:11-3(b) (opinions of an appellate court are to state "whether the judgment, order or determination below is affirmed, reversed or modified"). We meant just what we said. We did not mean to imply that we were leaving intact some vestige of those orders concerning M.D. and K.D., in the hypothetical event that the courts of Minnesota thereafter yielded jurisdiction to our state. Nor is there any authority under the UCCJEA that would have allowed the courts of Minnesota, as the original host state of M.D. and K.D., to confer in September 2006 retroactive jurisdiction to New Jersey as of 2005.
Although we appreciate the adversarial instincts of counsel to not yield a legal point unnecessarily, and also the desire to protect T.S. from undue emotional upset, the unavoidable consequence of our prior, unappealed finding that the Family Part lacked jurisdiction in 2005 to hear this matter as to M.D. and K.D. is that the case requires a de novo fact-finding hearing. Subject matter jurisdiction cannot be manufactured retroactively. See Bengali v. Haveliwala, 197 N.J. Super. 55, 59 (Ch. Div. 1984) ("[I]f it is determined that subject matter jurisdiction does not exist, nothing is before [the] [c]court").
We also clarify that when the de novo fact-finding hearing is conducted, any proofs adduced from T.S., who is now the age of sixteen, shall be either taken in open court or, if the judge elects in his discretion to have her re-interviewed in chambers, see R. 5:12-4(b), all counsel shall have the right to either be present or to observe the child's responses contemporaneously through closed circuit television or a comparable video link, in accordance with N.J.S.A. 2A:84A-32.4. Consistent with our prior opinion, all counsel also shall be afforded the opportunity to submit to the court additional questions to pose to T.S. after the initial portion of such an interview.
Additionally, consistent with our prior opinion, the trial judge shall permit counsel to examine R.D. to determine whether she has ever discussed T.S.'s testimony or her interview responses with her, in violation of the court's sequestration order. A renewed inquiry of T.S. on such potential improper communications shall also be permitted. If such a violation is found by the court, it may fashion an appropriate remedy, which may include an evidential discounting of T.S.'s credibility.
These determinations do not render worthless the testimony and other evidence previously presented to the Family Part. For example, the sworn statements of R.D., T.S.'s interview responses, and other witness accounts in the prior record may function at the de novo hearing as the equivalent of depositions or former testimony. See N.J.R.E. 803(a) (allowing certain prior statements of witnesses) and N.J.R.E. 804(b)(1) (allowing certain former testimony in prior proceedings, where the proponent shows the present unavailability of the witness). The statements may be used for their truth or for impeachment, to the extent consistent with codified hearsay exceptions and with the other rules of evidence.
The Family Part shall conduct a case management conference within fourteen days of this opinion, at which time counsel and the court shall arrange for the expeditious scheduling of a de novo fact-finding hearing. Pending that conference, the father shall not have visitation with M.D. and K.D. except on a supervised basis. Additionally, the Division provisionally shall continue to have care and supervision of the children, with residential custody with the mother and legal custody continued with both biological parents.*fn4 We impose these interim restraints only as a short-term precautionary measure, recognizing that the factual circumstances, and any ongoing risks to the children, may have changed for the better or the worse in the months that this matter has been pending on appeal.*fn5
At the case management conference, the judge shall address the need for any ongoing interim restraints, and shall also consider whether such restraints should be maintained or modified pending the final hearing. The judge may also wish to order in his or her discretion updated psychological evaluations, or other expert assessments.
The January 18, 2007 order of the Family Part is hereby modified, consistent with this opinion.