November 6, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF S.M., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FN-04-325-07 and FD-04-3569-08-M.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on September 30, 2009
Before Judges Fuentes, Gilroy and Simonelli.
Defendant M.M. appeals from the December 12, 2007 Family Part order entered in the abuse and neglect action, Docket No. FN-04-325-07, finding that she abused and neglected her daughter, Sue,*fn1 born April 17, 1998. M.M. also appeals from two orders entered on July 31, 2008, one in the custody litigation, Docket No. FD-04-3569-08-M, granting custody of Sue to her ex-husband and Sue's biological father, defendant S.M., and the other terminating the abuse and neglect action. We affirm in part and reverse in part and remand for further proceedings.
The record does not disclose when the parties were married; however, they separated in September 2000, after which M.M. became Sue's primary caretaker, with S.M., a sergeant first-class in the United States Army stationed at Fort Bragg, North Carolina, exercising parenting time while on military leave and during holidays. The parties divorced in January 2007.
On a date not specified in the record, M.M. moved with Sue to New Jersey. In March 2005, Sue transferred into the Gloucester Township public school system. Shortly thereafter, she was referred to a Child Study Team due to behavioral concerns. Specifically, Sue showed unusual behavior and mannerisms; she had temper outbursts; she talked about bizarre things and imaginary friends; she had trouble interacting appropriately with others; she showed involuntary movements such as arm flapping; she grunted and made unusual sounds for no apparent reason; she was easily distracted and had trouble concentrating; and she required a one-to-one aid.
A June 9, 2005 psychological evaluation revealed that Sue has superior range of intellectual functioning; however, test results indicated that she has significant levels of hyperactivity, aggression, depression, attention problems, "atypicality," withdrawal, and a significant lack of adaptability and social and study skills. Testing also confirmed a high probability that she has Asperger's Syndrome. The psychologist recommended that Sue have a neurological evaluation to address this disorder or other possible neurological conditions, and, depending on the results, have another psychiatric evaluation to assess her mental state. The psychologist also recommended school-based counseling and private therapy. M.M. did not follow these recommendations.
A May 15, 2006 psychiatric evaluation confirmed that Sue has Asperger's Syndrome and behaviors associated with attention deficit disorder with hyperactivity (ADHD). The psychiatrist encouraged M.M. to explore the issue of medication, which she ignored.
Plaintiff New Jersey Division of Youth and Family Services (the Division) first became involved with M.M. on January 29, 2007, after receiving a referral that Sue, then eight years old, reported to a teacher that M.M. left her home alone, and that the child had a "suicide ideation[,]" which M.M. refused to acknowledge. At the time, M.M. was employed full-time and S.M. was deployed in Iraq.
The Division substantiated neglect based on inadequate supervision after M.M. admitted to a caseworker that she sometimes left Sue home alone when she went to the store. M.M. also admitted that she was aware of Sue's psychiatric problems.
M.M. signed a safety plan acknowledging that she would not leave Sue home alone until the child was psychologically and neurologically evaluated to determine whether she was mentally capable to be left home alone. M.M. thereafter failed to have Sue evaluated. As a result, on March 15, 2007, the Division instituted the abuse and neglect action and obtained care and supervision of Sue; however, M.M. maintained legal and physical custody of the child.
M.M.'s involvement with the Division thereafter was marked by her resistance to having Sue evaluated. After a fact-finding hearing, the trial judge found by a preponderance of the evidence that M.M. had abused and neglected Sue by failing to (1) properly supervise the child by leaving her home alone; (2) have the child evaluated; (3) timely enroll the child in school despite the child's obvious need for intensive special educational services; and (4) address the child's serious psychiatric disorder. The judge ordered M.M. to undergo a psychological evaluation and for Sue to undergo psychological, psychiatric, and neurological evaluations. Despite the judge's finding, Sue continued in M.M.'s legal and physical custody.
At a hearing on February 29, 2008, everyone, including S.M., agreed that Sue should remain with M.M. However, the judge noted that although M.M. was "cooperating and compliant[,]" the previously ordered evaluations had not yet occurred. The judge rejected M.M.'s request to schedule the evaluations after M.M.'s work hours and warned that removal would occur if she did not comply.
M.M. left the courthouse during a recess in the hearing. After the recess, S.M.'s attorney reported to the judge that M.M. had allegedly called S.M. and told him to immediately pick up Sue and take her to South Carolina. Counsel stated, "We weren't certain as to whether that was,... a true statement, something said out of frustration, but I believe at this point... it was her position." M.M.'s attorney reported that he had spoken to M.M., who although "clearly agitated,... clearly excited[,]" was adamant about Sue going with S.M. Based on this information, the judge transferred temporary custody of Sue to S.M. pending a custody hearing.
S.M. instituted the custody litigation on June 13, 2008. After a hearing in the abuse and neglect action that same day, the judge continued S.M.'s custody of Sue, and granted M.M. parenting time as agreed by the parties. The judge also scheduled a compliance review and custody hearing for July 3, 2008. Prior to that hearing, the Division learned that Sue was living with M.M. as per S.M.'s consent.
Sue was still living with M.M. at the time of the July 3, 2008 hearing. M.M. testified at the hearing that she never intended to relinquish custody of Sue and merely wanted S.M. to take her for a few days as he had done in the past. She explained that
I implicitly [sic] told him, I don't want anything to be signed, I don't want anything to be transferred. He told me he had to go back in the courtroom and he hung up the phone on me, and he turned his phone off, so when I tried to call him back, it went straight to voice mail.*fn2
On July 24, 2008, in the absence of M.M. and her attorney, the judge entered two documents into evidence without M.M.'s or her attorney's knowledge or consent, including M.M.'s psychological evaluation. Relying, in part, on that evaluation, on July 31, 2008, the judge entered an order in the custody litigation granting S.M. primary residential custody of Sue. The judge incorrectly based her decision on the best interest factors in N.J.S.A. 9:2-4(c). Also, because granting custody to S.M. involved moving Sue to South Carolina, the judge considered the relocation factors set forth in Baures v. Lewis, 167 N.J. 91 (2001). The judge also entered an order terminating the FN litigation. This appeal followed.
We afford great deference to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should [we] intervene and make [our] own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). With these standards in mind, we continue our analysis.
N.J.S.A. 9:6-8.21 to -8.73 governs abuse and neglect proceedings. The Division's burden of proof in such proceedings is a preponderance of the evidence. N.J. Div. of Youth and Family Servs. v. G.M. (In re K.M.), 198 N.J. 382, 398 (2009). N.J.S.A. 9:6-8.21(c)(4) defines an abused or neglected child, in relevant part, as: a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent... to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care... or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof...
The law does not impose an insurmountable standard of conduct as it defines abuse and neglect. A parent or "guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999) (citation omitted).
It is well established that "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005). Notably, it is not necessary that the parent intended to cause harm. G.S., supra, 157 N.J. at 183. "For example, if a parent left a two-year old child alone in a house and went shopping, the child would be considered a neglected child within the meaning of Title 9 regardless of whether the parent intended to impair the child's well being or harm the child." Id. at 181 (citation omitted). What the Division must prove by a preponderance of the evidence is "the probability of present or future harm." S.S., supra, 372 N.J. Super. at 24.
Based on our review of the record, we are satisfied that there is ample support for the judge's finding of abuse and neglect. We are also satisfied that the judge properly complied with the requirements of Rule 1:7-4(a). M.M. admitted that she left her young, special needs child home alone while she went shopping. Evidence of Sue's severe behavioral problems and her need for a one-to-one aid at all times in school confirms the child's lack of mental capacity to be left home alone. Further, M.M.'s continued non-compliance in having Sue evaluated reflects heavily on neglect. See, e.g., N.J. Div. of Youth & Family Servs. v. Huggins, 148 N.J. Super. 86, 93 (J & D.R.C. Ct. 1977) (parent's unlikeliness and unwillingness to change bears on neglect).
We do not reach the same conclusion about the transfer of custody. This matter began as an abuse and neglect action under Title 9. N.J.S.A. 9:6-8.8(b)(2) states that "[i]n any case in which the Division accepts a child in care or custody, the [D]ivision shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home." Even after placement, "the [D]ivision shall make reasonable efforts to make it possible for the child to safely return to his home." Ibid.
"[T]he statutory framework of Title  provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the child may safely return to his or her custody, and if not, what the proper disposition should be." G.M., supra, 198 N.J. at 399. This is true whether or not a separate custody action is pending. Id. at 402-03 n.3.
We acknowledge the Division's efforts to prevent Sue's removal from M.M., and we do not condone M.M.'s non-compliance. However, we are concerned that despite M.M.'s conduct, Sue was in her mother's care up to the time of trial, not exclusively, but certainly for major portions of time, and at times, the Division found M.M.'s home appropriate. More importantly, there was no finding that it was unsafe for Sue to remain with her mother.
Also, because the dispositional hearing is a critical stage in a Title 9 proceeding, there must be "'scrupulous adherence to procedural safeguards'... and the trial court's conclusions must be based on material and relevant evidence[.]" Id. at 401 (citing N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002)). Implicitly, therefore, the offending parent has the right to present material and relevant evidence, including expert evidence, for the court to determine whether the child may safely return to the custody of that parent. Id. at 402. M.M. received no such procedural safeguards.
Our inquiry does not end here. Had this been a traditional change of custody case, a change in custody could only occur upon a finding of changed circumstances that affect the child's welfare. Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div.), certif. denied, 192 N.J. 73 (2007); Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). The parent seeking such change must establish that a "substantial change" has occurred in circumstances from the factors which led to the current custodial agreement between the parties. Voit v. Voit, 317 N.J. Super. 103, 121 (Ch. Div. 1998); accord Finamore v. Aronson, 382 N.J. Super. 514, 522 (App. Div. 2006).
"A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand, supra, 391 N.J. Super. at 105. Absent exigent circumstances, changes in custody should not be made without a plenary hearing. Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005) (noting that this standard has been held "repeatedly"). Whether or not sufficient changed circumstances have occurred requires a fact-intensive inquiry. Ibid. Rule 5:8-6 requires the court to hold a plenary hearing where, such as here, "custody of children is a genuine and substantial issue[.]" At such a hearing, "the parties must have an appropriate opportunity for experts' assistance." Pressler, Current N.J. Court Rules, comment on R. 5:8-6 at 2094 (2010) (citing Fehnel v. Fehnel, 186 N.J. Super. 209 (App. Div. 1982)). The comments also refer to Rule 5:5-1, which permits discovery in family actions. Ibid.
We first note that no plenary hearing occurred when the court transferred custody to S.M. on February 29, 2008. We also reject S.M.'s contention that he demonstrated changed circumstances based on M.M.'s alleged voluntarily relinquishment of custody. Even assuming that M.M. did so, which she denies, a showing of changed circumstances requires much more. It requires a fact intensive inquiry, which did not occur here. To be sure, no one ever mentioned the term "changed circumstances" during any of the hearings, and the judge never referred to it in her oral decision.
We add one further comment. In rendering her decision, the judge relied on M.M.'s psychological evaluation, which S.M. submitted three weeks after the custody hearing without M.M.'s knowledge or consent, and which M.M. was not afforded an opportunity to address.*fn3 "Generally, it is improper for a court to decide a case in reliance on an expert opinion without allowing the parties to examine the expert." Luedtke v. Shobert, 342 N.J. Super. 202, 216 (App. Div. 2001). On remand, such error shall not be repeated.
Accordingly, we affirm the Family Part's finding of abuse and neglect. We remand for a dispositional hearing, to occur within sixty days, to determine if as of July 3, 2008, Sue could have been safely returned to M.M.'s custody. If answered affirmatively, a plenary hearing shall occur immediately thereafter to determine if, as of that same date, S.M. established changed circumstances that affect Sue's welfare. Prior to any hearing, the parties shall be afforded an opportunity to conduct discovery and exchange expert reports. We do not retain jurisdiction.