On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FN-10-50-06.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Payne, Sapp-Peterson and Messano.
In this opinion we address an issue that occurs with apparent frequency at the trial level but has yet to be the subject of a reported opinion. Specifically, what considerations should inform the trial court's decision whether to permit the Division of Youth and Family Services (D.Y.F.S.) to terminate Title Nine proceedings after the filing of an abuse and neglect complaint resulting in the modification of the residential custody of the children at issue? The procedures employed in this case cause us grave concern because the power of the State was utilized, albeit with good intentions, to significantly alter the dynamics of this family, modify the residential setting of two children, and impose a significantly more difficult burden upon the original custodial parent in her attempt to regain the status quo ante. As a result, we reverse the order under review and remand the matter to the trial judge for additional proceedings consistent with this opinion.
Defendant G.M. appeals from the October 26, 2006, Family Part order that
1) awarded her ex-husband M.M., who resides in Florida, physical custody of their two children, K.M. and C.M.;
2) awarded joint legal custody of the children to both parents;
3) awarded G.M. supervised parenting time with the children; and
4) terminated the pending abuse and neglect litigation and provided that G.M. shall seek "any further relief . . . in the existing FM docket."
The record reveals that G.M. and M.M. were divorced in New York on March 10, 2000. Pursuant to the consent judgment of divorce (JOD), they agreed to share joint legal custody of their children--a daughter, K.M., born November 2, 1992, and a son, C.M., born April 25, 1994. The JOD further provided that the children would reside with G.M. and that M.M. would have visitation with them on certain weekends, evenings, and holidays.
G.M. and M.M. modified the custody and visitation provisions of the JOD by stipulation entered on September 26, 2001, in which they agreed to allow the children to relocate to New Jersey with G.M. and to adjust M.M.'s visitation rights depending upon any future relocation required by his employment.*fn1
M.M. eventually moved to Florida, and pursuant to the stipulation, enjoyed visitation with the children during extended school breaks and during their entire summer recess when they would travel to their father's home.
On the night of March 28, 2006, K.M. contacted her father via text message and told him she was having an argument with her mother. From Florida, M.M. contacted the New Jersey State Police, and Trooper Kelly Bene responded to G.M.'s home at about 10:15 p.m. Upon arrival, Bene heard the children "crying hysterically" and observed they were very upset. The trooper saw that G.M. was intoxicated and observed numerous empty alcohol containers in the house, including a wine box on the floor and a vodka bottle recently placed on top of the garbage can.
K.M. told Bene that during the altercation her mother had grabbed her and pulled her shirt causing her to choke and vomit. Bene observed scratches on K.M.'s arm and vomit on the rug and noticed that K.M. was rubbing her arm during the interview, apparently attempting to ease some pain. However, both children stated that they did not believe they were in danger.
The State Police contacted D.Y.F.S., and a special response unit worker arrived at the home at approximately 1:30 a.m. to investigate the situation and interview G.M. and the children. As she re-entered the house with the D.Y.F.S. worker, Bene observed K.M. trying to wake G.M. by loudly screaming at her mother. G.M. claimed that she had consumed three to four beers, but was otherwise incoherent and non-responsive. K.M. and C.M. told the worker that G.M. consumed alcohol on a daily basis. The D.Y.F.S. worker determined that a physical altercation had indeed taken place, that G.M. was intoxicated, and that the house was in disarray. She authorized the removal of the two children from the home on an emergent basis, and K.M. and C.M. were temporarily relocated to a neighbor's home, but no criminal charges were filed against G.M.
On the following day, the children were medically examined. K.M. had a slight bruise on her upper arm; C.M. had a case of poison ivy, but showed no signs of physical abuse. D.Y.F.S. also secured a urine sample from G.M. and scheduled her for a substance abuse evaluation at its office the following week.
On March 31, 2006, D.Y.F.S. filed its verified complaint against G.M. and M.M. alleging abuse and neglect and seeking the care, custody, and supervision of the children. G.M. was represented by counsel at the hearing who emphasized that neither of the children had expressed a fear of their mother, that there was not sufficient evidence of imminent risk of harm that would justify removal, and that the children were currently enrolled in school and doing well. While he indicated that G.M. would not object to M.M. having physical custody of K.M. in Florida, he urged the court to immediately return C.M. to his mother.
M.M., who appeared pro se, did not testify, but he did request that the children be permitted to stay with him. He noted that they had regularly visited him in Florida and that they had friends there.
Relying upon the testimony of Trooper Bene and the verified complaint filed by D.Y.F.S.'s intake supervisor, the judge found, [G.M.] has failed to exercise a minimum degree of care and/or supervision and, in fact, placed the children at risk of harm by virtue of the incident that was reported. This . . . too would constitute an act of child abuse and/or possibly neglect by virtue of her alcoholic condition and what occurred.
He entered an order transferring legal custody of the two children to D.Y.F.S. and awarding temporary physical custody to M.M., with the condition that he not remove K.M. and C.M. from New Jersey. The parties were also ordered to arrange for G.M. to have interim supervised visitation with the children.
On the next hearing date, April 6, 2006, no further testimony was taken nor was any documentary evidence introduced. Through counsel, D.Y.F.S. urged the judge to allow the children to return to Florida with M.M. "until [G.M.] can rehabilitate herself." The children's law guardian agreed that they should go to Florida with M.M., particularly since spring school break was imminent and the scheduled visitation would commence soon anyway. However, she noted that C.M. was quite upset at being separated from his mother, and she urged D.Y.F.S. to seek alternative placement with family friends when the boy returned from Florida after spring break.
G.M.'s counsel, however, objected to any transfer of custody. He noted, "[T]his is a child abuse and neglect hearing and while where the child resides is important, I don't believe that this is the right forum to actually transfer . . . legal custody of the children." The judge acknowledged counsel's concern, but clearly stated that he was not transferring "legal custody," and he was not "dismissing th[e] matter."
Consistent with the law guardian's recommendation, the judge ruled that the children would go to Florida with M.M. for the upcoming spring break as provided by the existing visitation agreement. He also ordered, however, that K.M. would remain in Florida for the balance of the school year, and that the court would later conduct an in camera interview with C.M. before determining whether he should remain in Florida or return to New Jersey after spring break. Later that day, the judge conducted an in camera interview with C.M., on the record, and with a member of the Family Part staff and the child's law guardian present.
Also that same day, the judge entered an order that 1) continued physical custody of the children with M.M.; 2) continued legal custody with D.Y.F.S.; and 3) ordered G.M. to submit to random urine testing, provide information on her paramour to D.Y.F.S., and attend substance abuse evaluation and treatment. A case management conference was scheduled for April 18, 2006. By letter dated the following day, the judge indicated that after interviewing C.M., "and for reasons placed upon the record," both children could be "enrolled in the Florida School System to complete the spring semester."*fn2
At the following hearing on April 18, 2006, once again no testimony was taken and no documentary evidence was introduced.
G.M. was present with counsel; M.M., who had now retained counsel who was present at the hearing, participated via telephone conference from Florida. Though neither G.M. nor M.M. was ever placed under oath, the judge questioned both of them about the developments since the last hearing.
Through counsel, D.Y.F.S. informed the judge that G.M. had refused to submit to random urine testing on one occasion the previous week and that D.Y.F.S. wished to continue its care and supervision of the children, but that "legal and physical custody [should] be transferred to [M.M.] with legal custody to also remain with [G.M.]."
G.M. contended that she already had given a number of urine samples and did not submit to testing on the one occasion because she was distraught after a confrontation with M.M. on that particular day. The law guardian expressed concern that during her daily phone calls to the children in Florida, G.M. only spoke to her son and not her daughter. The law guardian also advised the judge that the voicemail message on G.M.'s home phone announced to anyone who called, including the children, that M.M. was not allowing her to contact her own children.
Additionally, M.M. contended that G.M. had called his home early on a Saturday morning, and, when told that the children were asleep and would return their mother's call at another time, G.M. threatened his life and that of his new wife. Consequently, the court ordered that telephone contact between G.M. and the children would be permitted, but only if the children initiated the call and only if G.M. changed or removed the offending voicemail message.
On May 23, 2006, the judge held a fact-finding hearing. He again heard the testimony of Trooper Bene and found, by a preponderance of the evidence, that "there was  abuse and/or neglect." Once again, without the introduction of any other evidence, D.Y.F.S., through counsel, stated its position regarding disposition. Counsel noted that G.M. had been referred to Hunterdon Behavioral Health and had entered its substance abuse program. Though no report was apparently produced, counsel asserted that it was the program's recommendation that G.M.'s treatment be "increased to intensive outpatient treatment." Counsel then moved to dismiss the litigation, arguing that the children were currently in a safe environment with M.M., that visitation could be arranged, and that "this case  is going to be opened as . . . a matrimonial so that the issue of custody and increased visitation can be addressed through that docket number."
The law guardian opposed D.Y.F.S.'s motion to dismiss the litigation, and, instead, requested the case be left open for a review later in the year so that G.M.'s progress in treatment could be monitored. She recommended that the children remain with M.M. during the summer, with monthly visitation with G.M. either in Florida or New Jersey; thereafter, she urged the court to consider the children's return to the physical custody of G.M. in New Jersey before the new school year. She noted that the children desired to return to New Jersey, and that D.Y.F.S. needed to "at least make an attempt to reunify this family."
G.M.'s counsel joined in the law guardian's objection. He argued that D.Y.F.S. was "absolutely responsible under the law to seek reunification and return the parties to the status quo." He further noted that G.M. "wants her children back" and that D.Y.F.S. had "an obligation to get [the] information" regarding G.M.'s compliance with her substance abuse counseling, and to continue its monitoring of her efforts. He argued that terminating the proceedings now would present a scenario capable of repetition whenever one parent sought a change in custody. He contended that by lodging a complaint with D.Y.F.S. resulting in the commencement of Title Nine proceedings, the "non-offending parent" would have "a back door way" to gain custody. The judge ordered that G.M. be ...