On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-322-05.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2008
Before Judges Winkelstein, Fuentes and Gilroy.
On leave granted, K.S.H., born June 22, 1998, through his Law Guardian, appeals from the May 29, 2008, order of the Family Part that, among other matters, directed that he be returned to the custody of his natural mother, S.S. The New Jersey Division of Youth and Family Services (DYFS) appeals from the same order. The two appeals were consolidated by order of July 3, 2008.*fn2 The primary issue presented on appeal concerns the propriety of the trial court's order directing a change of custody of K.S.H. back to his mother, without first conducting a plenary hearing on the issue, when no exigent circumstances exist. Because we determine that there is a genuine dispute as to the child's custody requiring the court to afford the parties' prior notice of the court's intended action to change custody and to conduct an evidentiary hearing on the issue, we reverse the order appealed from and remand to the trial court for further proceedings consistent with this opinion.
On May 19, 2005, DYFS filed a complaint against S.S. and her mother, Sh.S., for custody, care and supervision of K.S.H., contending that they had neglected K.S.H. as defined in N.J.S.A. 9:6-8.21c(4), that is, by not providing him with a school education as required by law. N.J.S.A. 9:6-1. On February 23, 2006, following a four-day fact-finding hearing on diverse dates in July and December 2005, and January 2006, the trial court entered an order determining that S.S. and Sh.S. had neglected K.S.H.'s educational needs by failing to provide him with a school education. By a second order of the same day, the court directed that K.S.H. continue under the care and supervision of DYFS, with S.S. retaining physical custody of K.S.H. S.S. appealed, but Sh.S. did not. We affirmed. N.J. Youth & Fam. Servs. v. S.S., A-3963-05 (App. Div. Dec. 28, 2006).
Following our decision, the trial court entered several compliance review orders directing not only that K.S.H. continue under the care and supervision of DYFS, but also that K.S.H.'s custody continue with S.S. Because the Law Guardian perceived that S.S. continued to interfere with K.S.H.'s education, the Law Guardian filed an application for an order to show cause (OTSC) seeking to remove K.S.H. from the physical custody of S.S., and the Lawnside Borough Board of Education (Lawnside) moved to intervene in the action. On May 16, 2007, the court entered an order transferring K.S.H.'s legal custody to DYFS, but denying the Law Guardian's request for a transfer of the child's physical custody. The same order granted Lawnside's application to intervene.
In June 2007, contending that S.S. "engaged in an on-going pattern of behavior since the last hearing to abrogate her responsibilities as the caretaker of [K.S.H.] and to violate the
[c]court's orders and directives," DYFS filed an application for an OTSC seeking to remove the child from S.S.'s physical custody. On June 12, 2007, the court entered an order directing that K.S.H. be removed from his mother and that DYFS be granted physical custody of the child. Following his removal, K.S.H. was placed with a resource family. On August 17, 2007, the court denied S.S.'s motion for reconsideration.
On October 5, 2007, another trial judge entered an order that denied the Law Guardian's application for the appointment of an educational surrogate to act on K.S.H.'s behalf; vacated that part of the October 27, 2005 order that continued the rights of S.S. and Sh.S. to advocate for K.S.H.'s needs within the educational system; and precluded S.S. from making educational decisions on the child's behalf. On January 28, 2008, the court denied S.S.'s motion for reconsideration of the October 5, 2007 order. On May 29, 2008, the second trial judge rejected DYFS's permanency plan to terminate parental rights followed by adoption, granted visitation to Sh.S., and ordered that physical custody of K.S.H. be returned to S.S.*fn3 We granted DYFS's and K.S.H.'s motions for leave to appeal.
On appeal, the Law Guardian argues on ...