On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-673-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Lisa and Baxter.
This is a Title 9 abuse and neglect case. The order terminating the litigation, from which the appeal is taken, was entered on August 19, 2008, prior to the Supreme Court's April 7, 2009 decision in New Jersey Division of Youth and Family Services v. G.M., 198 N.J. 382 (2009). The order transferred physical custody*fn1 of T.M. from her mother, A.C., who had committed an act of neglect, to her father, D.M. The order was entered after a best interests custody hearing, at which both parents were represented by counsel, testified, and presented expert witnesses. The judge conducted that hearing in compliance with this court's decision in G.M.,*fn2 Division of Youth and Family Services v. G.M., 398 N.J. Super. 21 (App. Div. 2008), aff'd in part, modified in part, and remanded, 198 N.J. 382 (2009).
However, in G.M. the Supreme Court modified this court's decision. The Court said: "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." G.M., supra, 198 N.J. at 402. The Court continued that at such a hearing the trial court must "determine whether the children may safely be released to the custody of their mother, who was responsible for their care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate." Ibid. (emphasis added).
A.C. argues that the trial court erred in not conducting a dispositional hearing, but that the evidence at the best interests hearing and the judge's findings supported the conclusion that both parents were fit and capable of parenting, as a result of which, had the Title 9 child welfare standard been applied, as would be the case at a dispositional hearing, T.M. would have been returned to her. She asks that we so order. Alternatively, she seeks a remand for a dispositional hearing.
D.M., the Division of Youth and Family Services (Division), and the Law Guardian oppose the appeal. They argue that the best interests hearing was comprehensive and fair and that the resulting decision was justified and should not be disturbed. Underlying this position is the argument that the best interests of the child are always the polestar of child welfare cases and there is no automatic right of return to the offending parent when it is in the child's best interests to remain with the non-offending parent. They argue that T.M., who has just turned nine years old,*fn3 has been in her father's physical custody for more than two years, since June 8, 2007, is doing very well, and is entitled to stability and permanency. They argue that it would be inappropriate and a waste of judicial resources to require further proceedings. They contend that the Supreme Court's decision in G.M. should not be given retroactive effect because of the long passage of time in this case and because it announced a new rule of law. They further contend that the result would be the same because the judge's well-supported findings after the best interests hearing implicitly concluded that T.M. could not be safely returned to the physical custody of her mother.
Our review of the record and our consideration of the Court's rationale and holding in G.M. persuades us that a remand for a dispositional hearing is required.
The Court did not announce in G.M. a new rule of law. It set forth the correct application of the interrelated provisions of Title 9, which require a dispositional hearing. Contrary to the Division's argument that the hearing already conducted in this case was sufficient even though it "was not characterized as a dispositional hearing pursuant to N.J.S.A. 9:6-8.50," more than labels are at stake. As the Court made clear in G.M., the standards for determination in the two kinds of hearings differ significantly. Id. at 399-402. Indeed, the Court remanded for a dispositional hearing notwithstanding the fact that a best interests custody hearing was in process in accordance with this court's decision. Id. at 402-03 n.3. That was required because, although a non-custodial parent always has the right to seek a change of custody, "the availability of a non-custodial parent to care for the children does not alter the responsibility of the Division to follow the statutory framework for litigating a Title Nine action." Ibid.
The Court's action in G.M. also sways us against the argument that because of the passage of time and the need for stability and permanency we should leave undisturbed the order under review. In G.M. the children had been removed from their mother and placed with their father on March 31, 2006. Id. at 389. After the passage of three years, the Court, in its April 7, 2009 decision, remanded for a dispositional hearing, notwithstanding that a best interests custodial hearing was in process. Id. at 405. Less time has passed here since the transfer of custody.
We are also not persuaded that a remand would cause a waste of resources and expenditure of unnecessary additional energy and effort. The judge who managed this case for an extended period of time and conducted the best interests hearing is assigned for the current court term to the Family Part. The judge is thoroughly familiar with the case and is available to conduct such further proceedings as are required to arrive at to a conclusion under the proper standard. All of the evidence already presented may be considered, and the hearing previously held may, in effect, be reopened, continued, and supplemented.
We reject the arguments of both sides that the evidence and findings at the best interests hearing render unnecessary a further hearing and findings. Each side argues that if the Title 9 child welfare standard were applied to the evidence and findings at that hearing each parent, ...