On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FM-15-763-97W and FM-15-417-03W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and Grall.
In this appeal, we consider whether the trial judge erred in denying plaintiff Kelley Ames's motion for a return of physical custody of her two children.*fn1 Because we conclude that the issues should have been explored at an evidentiary hearing, we vacate the orders under review.
The record reveals that T.A. was born on July 9, 1992, and T.T. was born on October 7, 1997. Plaintiff is their mother. T.A.'s father is defendant William Ames; T.T.'s father is plaintiff Joseph Tammaro.*fn2 We have not been provided with any of the pleadings in these matrimonial actions other than those relating to the post-judgment proceedings in question. As a result, we have not been provided with the complaints filed in those actions, any property settlement agreements that may have been reached, the judgments of divorce that were entered, or any orders relating to custody that may have been entered in the matrimonial actions. However, it appears there was no dispute in the trial court that the children were in the physical custody of plaintiff until the changes brought about by the Title 9 proceeding commenced by the Division of Youth and Family Services (the Division) on August 11, 2005.
In the Title 9 action, the Division asserted that the children were abused or neglected in June and August 2005 while in plaintiff's custody and care. The Division's complaint alleged that substance abuse and domestic violence circumstances were at the root of the difficulties that prompted the action. On September 6, 2005, the judge transferred physical custody of the children to their fathers.
On November 28, 2005, plaintiff stipulated that she "abused or neglected the children in that she engaged in a domestic violence physical incident in the presence of [T.T.] placing him at risk of harm for abuse and/or neglect as defined by Title 9." At that time the judge ordered that plaintiff undergo a psychiatric evaluation, submit to random urine screens, attend counseling at the Preferred Behavioral Health IOP, and attend a course on anger management.
On April 26, 2006, the judge entered an order that dismissed the Title 9 action without prejudice. This order also required that plaintiff "attend counseling at 180° Turnaround and WARN and comply with recommendations."
On December 21, 2006, plaintiff moved in these matrimonial actions for the return to her of physical custody of the children. It appears that plaintiff's original intention was to file a motion in the Title 9 action for relief from the order of September 6, 2005, which mandated a transfer of physical custody of the children to their fathers. That would certainly have been the proper way to proceed in this situation. However, plaintiff was advised by the Family Part case manager to move in the matrimonial actions and, choosing the path of least resistance, she adhered to the case manager's direction. The motions were heard by the same judge who presided over the Title 9 action.
In seeking the return of physical custody, plaintiff submitted a certification in which she alleged she had completed the WARN program; a letter from WARN dated May 11, 2006 to that effect was appended. Plaintiff also asserted that she did not need to further participate in the 180° Turnaround program because, based on the representations of the WARN program coordinator, that would have been duplicative of the services provided by WARN. Defendants filed opposition.
The judge heard argument and denied plaintiff's request for a change of custody without prejudice for the reasons set forth in a written decision. In his decision, the judge outlined the parties' positions, held that plaintiff was required to meet "the burden of showing a substantial change in circumstances affecting the welfare of the children," and then drew the conclusion that plaintiff failed to sustain that burden "at this juncture." We conclude that the judge's determination that plaintiff had failed to provide sufficient evidence to warrant a plenary hearing was mistaken.
The record reveals, as we have briefly outlined, that the children were removed from plaintiff's physical custody as a result of her stipulation regarding the allegations of domestic violence. There were also allegations of substance abuse but there was neither a finding made nor a stipulation reached with regard to those assertions.
In dismissing the Title 9 action without prejudice, the judge directed plaintiff's participation in counseling.*fn3 As asserted in the moving certification, plaintiff completed the WARN program and, according to WARN's letter of May 11, 2006, plaintiff would "continue to attend one on one counseling on a monthly basis with urine screens." Since it appears that plaintiff has complied with the directions of the judge in the dispositional order that concluded the Title 9 action, we are satisfied that the judge should have found -- in considering plaintiff's request for a change in custody -- that plaintiff had presented sufficient proof to warrant an evidentiary hearing. In short, we agree with the upshot of plaintiff's argument: if the findings in the Title 9 action were sufficient to permit a transfer of custody from plaintiff to defendants, then the elimination or alleviation of those same concerns presented a legitimate reason to consider the return of custody to her. On the rather bare record before us, we cannot say whether there is good ...