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New Jersey Division of Youth and Family Services v. G.M.

April 7, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
v.
G.M., DEFENDANT-RESPONDENT, AND M.M., DEFENDANT,
IN THE MATTER OF THE GUARDIANSHIP OF K.M. AND C.M., MINORS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 398 N.J. Super. 21 (2008).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the trial court properly dismissed this Title Nine abuse and neglect case without first holding a dispositional hearing to determine whether the children may safely return to their parent or guardian.

Gloria and Malcolm Moore were divorced in March 2000. They shared custody of their two children, Kadina and Curtis Moore. (The family’s names have been changed to protect their privacy.) The children resided with Gloria in New Jersey. During the summer and at other designated times, Malcolm had extended periods of parenting time with the children at his home in Florida.

On the night of March 28, 2006, Kadina had a fight with her mother. Upon investigating the matter, State Police Trooper Kelly Bene learned that Gloria had been drinking alcohol and that she and Kadina had been involved in a physical altercation of sorts. The trooper contacted the Division of Youth and Family Services (Division). The Division determined that emergent measures were required, removed the children from the house, and placed them with a neighbor. The children were given medical examinations. Kadina had a slight bruise on her upper arm, but Curtis showed no signs of injury. No criminal charges were filed against Gloria.

On March 31, 2006, the Division filed a complaint against Gloria and Malcolm alleging abuse and neglect and seeking care, custody and supervision of the children. After an emergency hearing, the trial court found "an act of child abuse and/or possibly neglect by virtue of [Gloria's] alcoholic condition and what occurred." The court awarded legal custody of the children to the Division, with temporary, physical custody in favor of Malcolm, on the condition that he not remove them from New Jersey. The court also ordered the Division to arrange for Gloria to undergo a substance abuse evaluation and to have reasonable visitation with the children.

Hearings held in April 2006 resulted in custody/visitation orders as well as orders requiring that Gloria submit to substance abuse testing, evaluation and treatment. On May 23, 2006, the trial court engaged in a fact-finding hearing and found that Gloria had abused and/or neglected her children. The Division subsequently sought to dismiss the litigation on the grounds that the children were safe with their father in Florida and that Gloria was enrolled in a substance abuse program. The law guardian opposed termination of the litigation on grounds that the Division should seek reunification upon Gloria's rehabilitation. Gloria's attorney agreed. Malcolm's attorney did not object to the law guardian's proposal.

The trial court denied the Division's motion to dismiss the litigation and ordered Gloria to undergo a psychological evaluation and to continue her substance abuse treatment. The court also ordered that the children remain with their father in Florida, with Gloria receiving supervised visitation. On July 20, 2006, the Division again sought to dismiss the litigation. The law guardian objected, again seeking reunification and continuing supervision of Gloria to ensure her sobriety and fitness as a parent. Malcolm's counsel agreed with the Division. Gloria's counsel disagreed and presented a report showing that Gloria was making progress in her treatment. The trial court declined to terminate the litigation because Gloria was still in active treatment.

On October 20, 2006, the Division sent an updated report to the new trial court assigned to the case reporting that the children wished to return to their mother, that Gloria should continue treatment, and that the litigation should be dismissed if the children are returned. A week later the parties met with the court. No testimony was taken and no documents were admitted into evidence at that time. However, despite the recommendations set forth in the October 20th report, the Division asked to allow the children to remain with their father because they now wanted to stay in Florida and to terminate litigation. Gloria's attorney objected. Without a final dispositional hearing, the trial court rejected Gloria's position and granted the Division's request to terminate the litigation. The court also ordered that any change in the current custody arrangement be addressed through a matrimonial action.

Gloria appealed. In a published opinion, the Appellate Division, reasoning that Gloria was denied due process, reversed and remanded for a full evidentiary custody hearing, applying the best interests of the children standard.

The Supreme Court granted the Division's petition for certification and granted amicus curiae status to Legal Services of New Jersey.

HELD: The statutory framework of Title Nine provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be. The case is remanded for a hearing to determine the appropriate disposition pursuant to N.J.S.A. 9:6-8.51.

1. This case does not present the Court with conflicting testimony for which the trial court must make findings of fact, warranting deference to the trial court. On those rare occasions when no hearing takes place, no evidence is admitted, and no findings of fact are made, appellate courts need not afford deference to the conclusions of the trial court. In addition, a parents "constitutionally protected right to maintain a relationship with their children" is not absolute and must be balanced against the State's parens patriae responsibility to protect the welfare of the children. In balancing those competing concerns, a court must ensure that the statutory and constitutional rights of the parent or guardian are scrupulously protected. (Pp. 16-17)

2. The Legislature charged the Division of Youth and Family Services with the responsibility of protecting the health and welfare of the children of this state. The procedures for accomplishing those obligations are set forth in Title Nine, the paramount concern being the safety of our children. If a child's life or health is in imminent danger, the authorities may temporarily remove the child from the offending parent or guardian. At any time during the proceedings, the alleged offending parent may make an application for the return of the child, which should be granted unless there is "an imminent risk to the child's life, safety or health." N.J.S.A. 9:6-8.32. A fact-finding hearing shall be held to determine whether the Division has shown by a preponderance of the evidence that the child was abused or neglected. Upon conclusion of that hearing, the trial court has several options, including a dispositional hearing, which may commence immediately. If the child remains outside the home and either the Division has provided the services ordered or twelve months have passed since the child was removed, the trial court shall hold a permanency hearing to provide for the child's long term living arrangement. (Pp. 17-22)

3. The trial court had sufficient testimony to conclude that the mother abused or neglected her daughter. Dismissal, as sought by the Division, was not appropriate. The clear implication of the Division's October 20th report was that the children could be safely returned to their mother. Without prior notice, both the law guardian and the Division orally changed their position. Rather than relying on the wishes of the children, the Division should have focused on whether the children could be safely returned to the custody of their mother. The Court disagrees with the panel's judgment to remand for a custody determination based on the best interests of the child standard. The key deficiency of the proceeding below was not in the failure to hold a custody hearing, but in the failure to hold a dispositional hearing. Consequently, the Court remands the case for a dispositional hearing. In addition, contrary to the Appellate Division's position, and consistent with the plain words of Title Nine, there is no reasonable basis to exclude a non-custodial parent from being considered as someone with whom the court may place the child. (Pp. 22-29)

The judgment of the Appellate Division is AFFIRMED in part and MODIFIED in part. The case is REMANDED for a hearing to determine the appropriate disposition pursuant to N.J.S.A. 9:6-8.51.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued January 6, 2009

This is a Title Nine abuse and neglect proceeding. The mother and father were divorced and shared joint legal custody of their two children, but the mother had primary physical custody. As a result of an altercation between the mother and the thirteen-year-old daughter, the Division of Youth and Family Services (Division) filed an abuse and neglect complaint. The trial court awarded the Division custody and control of the children, and the children subsequently were placed with their father in Florida. Following a finding of abuse and neglect at the fact-finding hearing, the trial court continued the temporary placement with the father and ordered the Division to provide services to the mother. After multiple case management conferences, but without a final dispositional hearing, the trial court granted the Division's motion to dismiss the proceeding. The court advised the mother that she could seek any custody or parenting time modification through a matrimonial action.

On appeal, the Appellate Division reversed and remanded for a full evidentiary custody hearing, applying the best interests of the children standard. The panel reasoned that the mother was denied due process when the court ordered a change in custody without an evidentiary hearing.

We granted the Division's petition for certification. We now affirm the judgment, but for different reasons. We hold that the statutory framework of Title Nine provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be. Consequently, we remand for a dispositional hearing.

I.

Gloria and Malcolm Moore*fn1 were divorced in March 2000. They shared joint custody of their two children, Kadina Moore, born November 2, 1992, and Curtis Moore, born April 25, 1994. The children resided with Gloria in New Jersey. During the summer and at other designated times, Malcolm had extended periods of parenting time with the children at his home in Florida.

On the night of March 28, 2006, Kadina text-messaged her father in Florida that she had had an altercation with her mother. Her father telephoned the police. New Jersey State Police Trooper Kelly Bene responded to Gloria's home around 10:15 p.m. The trooper entered the home and found Gloria and the two children visibly upset. The trooper observed an empty alcohol container on the counter, an empty box of wine on the floor, and an empty bottle of vodka in the garbage. When Trooper Bene asked Gloria if she had been drinking, Gloria indicated that she had consumed three or four drinks that evening. Kadina told the trooper that she and her mother had been arguing when her mother threatened to jump into a nearby river. Kadina said she stepped in front of the door to prevent her mother from leaving. At that point her mother grabbed Kadina's arm and the back of her shirt, causing a choking reaction that resulted in Kadina vomiting. The trooper saw no noticeable marks on Kadina's neck, but she did observe vomit on the floor and nail marks on Kadina's arm.

Gloria told the trooper that Kadina had hit and bitten her. In answer to the trooper's question, both children replied that they did not feel in any danger from their mother. After completing her investigation, the trooper left the house, contacted the Division, and waited outside in her car. A Division worker arrived at the house at around 1:30 a.m. The trooper returned inside the home with the Division worker to find Gloria sleeping, at which time the children had difficulty waking her.

The Division determined that emergent measures were required and removed the children from the house and placed them with a neighbor. Later that day, the children were given medical examinations. Kadina had a slight bruise on her upper arm, but Curtis showed no signs of injury. No criminal charges were filed against Gloria.

On March 31, 2006, the Division filed a complaint against Gloria and Malcolm alleging abuse and neglect and seeking care, custody and supervision of the children. An emergency hearing was held on the same day. Trooper Bene and Nancy Dougherty, the Division intake supervisor, testified about the incident between Gloria and her daughter. Gloria's attorney emphasized that the children were not in any fear of their mother, that they were in school in New Jersey, and that the evidence did not rise to the level of an imminent risk of harm to justify removal. Counsel also indicated that Gloria would not object to the father, Malcolm, taking physical custody of Kadina, but urged the court to return Curtis to Gloria immediately. Malcolm requested that the children be transferred to his care. He noted that they regularly visited him in Florida and had friends there.

At the conclusion of the emergency hearing, the trial court found "an act of child abuse and/or possibly neglect by virtue of [Gloria's] alcoholic condition and what occurred." The court awarded legal custody of the children to the Division, with temporary physical custody in favor of Malcolm, on the condition that he not remove them from New Jersey. The court also ordered the Division to arrange for Gloria to undergo a substance abuse evaluation and to have reasonable visitation with the children.

The next hearing occurred on April 6, 2006. The Division recommended that the children continue in the physical custody of their father and that they be allowed to spend their previously scheduled spring break with him in Florida. The law guardian for the children agreed and also recommended that Kadina stay in Florida for the remainder of the school year, but that Curtis return to New Jersey after spring break and stay with friends so he could be closer to his mother. Gloria's lawyer argued that any transfer of custody was inappropriate in the current forum. The trial court replied that the issue was temporary physical custody and not the transfer of custody. The court concluded that the children should spend spring break with their father in Florida, and that Kadina should remain there for the remainder of the school year. The court also scheduled an in camera interview with Curtis for later that day to determine whether it would be appropriate for him ...


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