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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...