On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-55-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued July 17, 2008
Before Judges C.S. Fisher and Grall.
In this appeal, we consider the consolidated appeals of defendants J.Y. and A.J. in which they contest the legitimacy of a judgment terminating their parental rights. Because the trial judge's findings were inadequate, we remand for further proceedings.
Defendant J.Y. is the birth mother of B.Y. (born on June 17, 1995), E.K.M.*fn1 (born on February 10, 1997), and J.M. (born on March 31, 1998). Defendant A.J. is the father of B.Y.; E.M. is the father of E.K.M. and J.M. Because E.M. surrendered his parental rights prior to trial, the issues before us relate only to J.Y.'s relationship to her three children and A.J.'s relationship to B.Y.
This family has been the subject of numerous referrals to the Division of Youth and Family Services (the Division). In N.J. Div. of Youth & Fam. Servs. v. J.Y., 352 N.J. Super. 245 (App. Div. 2002), we reviewed the proceedings in an earlier Title 9 action commenced by the Division on June 1, 2001, under Docket No. FN-16-184-01, and found that the procedures adopted by the judge in granting relief to the Division were inadequate. In examining the factual record, we then observed that "only one out of the sixteen allegations listed in the complaint was actually substantiated" by the Division. Id. at 263. We also explained at length how the judge treated the fact-finding process in a "perfunctory manner," which "undermined its importance and relegated it to a mere technicality," ibid., and we remanded for further proceedings, including the articulation "with particularity" of "the facts upon which a determination of abuse or neglect is made," id. at 265 (citing N.J.S.A. 9:6-8.50).
Following our remand, the trial court ordered, on September 24, 2002, that B.Y. be placed in the legal and physical custody of his maternal uncle and aunt in Florida; legal and physical custody of E.K.M. and J.M. were returned to defendant J.Y. and E.M.
The Division received referrals regarding J.M. and E.K.M. on February 11, 2004, March 19, 2004, September 23, 2004, December 2, 2004, and March 5, 2005; two of these referrals were not substantiated. During its investigations of these referrals, the Division expressed concerns about the family's housing conditions. And, based upon what it allegedly learned in investigating the March 5, 2005 referral, which asserted E.M.'s alleged physical discipline of J.M. and E.K.M., the Division conducted an emergency removal of the children.
Based upon these circumstances, on March 11, 2005, the Division filed a complaint, under Docket No. FN-02-170-05, alleging that the children were abused or neglected and seeking an order placing them in the Division's care and custody. Soon thereafter, the Division deemed the maternal uncle and aunt, who had been caring for B.Y. in Florida, to be unsuitable and not a permanent resource for the children. The parties have not advised of the ultimate disposition of this second Title 9 action, but we assume it was somehow terminated and gave way to the legal proceedings that followed.
That is, on August 9, 2006, the Division filed this guardianship action. In the complaint, the Division expressly incorporated all the allegations set forth in the earlier Title 9 actions, including, we assume, those alleged events that were unsubstantiated. The complaint also expressed various specific allegations dating as far back as 1996.
A trial occurred on July 9 and 11, 2007. At that time, the judge heard the testimony of the Division's witnesses: Dr. Rachel Jewelewicz-Nelson; S.McC., with whom the children have lived since August 2005; and Tara Whalen, a Division representative. Defendant J.Y. testified on her own behalf.
The trial judge filed a written decision and entered judgment terminating the parental rights of both J.Y. and A.J. on August 6, 2007. Both defendants appealed. They both have argued that the Division failed to provide clear and convincing evidence of all four prongs of the test described in N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986) and later adopted by our Legislature in N.J.S.A. 30:4C-15.1(a). In addition, J.Y. argues that she was denied the effective assistance of counsel, citing the Supreme Court's recent landmark ruling in N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301 (2007), because her trial attorney allegedly failed to inform the trial judge of the prior appellate proceedings in the first Title 9 action. And A.J., who was convicted of the manslaughter of a two-year old child and subsequently incarcerated, has argued that he was not afforded procedural due process. After ...