March 23, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF J.C., JR., M.C. AND C.C., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-290-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2010
Before Judges Fisher, Sapp-Peterson and Espinosa.
During the evening of January 26, 2008, defendant H.C. and her three children were involved in a physical altercation with other residents of the Newark YMCA. Police took defendant and her three children into custody. The two younger children --fourteen-year old J.C., Jr., and thirteen-year old M.C. -- were charged but not detained; the oldest child, seventeen-year old C.C., was remanded to the juvenile detention center. Defendant was taken to the county jail and charged with aggravated assault for having allegedly stabbed one of the combatants in the face and torso with a corkscrew.
Unable to locate friends or relatives to care for the children while defendant remained in jail, the Division of Youth and Family Services (the Division) effected a Dodd removal, pursuant to N.J.S.A. 9:6-8.29. On January 29, 2008, the Division commenced this action and, following a hearing, was granted the care, custody and supervision of the children.
Defendant remained incarcerated until February 6, 2008. Upon her release, defendant went to the juvenile detention center to sign out C.C.; due to the hour, she was required to return the next day. Defendant also contacted the Division's caseworker to regain custody of her younger children. She was told the children could not be released to her without court approval.
At a hearing on February 14, 2008, defendant was given an application for the assignment of counsel and the trial judge directed, among other things, that she participate in psychological, psychiatric and substance abuse evaluations. Biweekly visitation was also ordered.
On March 6, 2008, the judge conducted a hearing at which a Division caseworker and defendant testified. The judge weighed the evidence and made a finding that the children had been neglected. At the dispositional phase of the hearing that immediately followed, the judge directed that defendant and the children participate in psychological evaluations and anger management counseling.
At a compliance review hearing on June 19, 2008, it was reported that C.C. was found to have engaged in a simple assault, J.C., Jr. was found to have engaged in an aggravated assault, and M.C. was exonerated. It was also reported that the ordered evaluations had not been completed and other services not fully rendered. The judge refused defendant's request for the return of her children.
At a hearing on July 17, 2008, C.C. was terminated from the action because she had turned eighteen. By that time, all the children had submitted to their psychological evaluations and were receiving weekly therapy. Defendant had not appeared for her psychological evaluation.
At a compliance review hearing on October 2, 2008, the children were returned to defendant's care and custody. The Division continued to provide services and the court conducted additional compliance review hearings. At the conclusion of a hearing on March 18, 2009, the parties consented to a dismissal of the litigation.
With the dismissal of the action, defendant appealed, presenting the following arguments for our consideration:
I. THE EMERGENCY REMOVAL (DODD) HEARING VIOLATED THE MOTHER'S CONSTITUTIONALLY PROTECTED RIGHTS, DID NOT COMPORT WITH STATUTORY REQUIREMENTS, AND DID NOT RELY UPON COMPET[E]NT, CREDIBLE, AND ADMISSIBLE EVIDENCE.
II. THE ABUSE AND NEGLECT FINDING MADE BY THE COURT BELOW MUST BE REVERSED AS THE DIVISION DID NOT MEET ITS BURDEN TO SHOW PROBABILITY OF PRESENT OR FUTURE HARM, AND BECAUSE THE JUDGE INCORRECTLY STATED AND APPLIED THE LAW.
III. THE DIVISION FAILED TO PROVIDE REASONABLE SERVICES AND VISITATION, AND THE COURT TERMINATED LITIGATION ONLY AFTER THE CHILDREN ENDURED NINE MONTHS OF UNNECESSARY FOSTER HOME PLACEMENT.
We reject these arguments.
Both Points I and III have been rendered moot by the dismissal of the litigation and the return of the children to defendant. That is, even if we were to agree with defendant's arguments regarding the sufficiency of the Dodd hearing, there would be no remedy available to defendant other than that which has already been provided. In addition, we refuse to consider defendant's constitutional arguments regarding the hearing that followed the removal, asserted in Point I, not only because a resolution of those issues is not necessary to a disposition of this appeal, see Burnett v. County of Bergen, 198 N.J. 408, 420 (2009); Bell v. Twp. of Stafford, 110 N.J. 384, 389 (1988), but also because those arguments were not raised in the trial court, see State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
We have, however, considered the merits of Point II.*fn1 In Point II, defendant argues that the trial judge erred in finding neglect by precluding her from testifying that she acted in self-defense during the altercation in the Newark YMCA on January 26, 2008. The record, however, does not reveal that defendant sought to explain the events leading up to her arrest at that time. Instead, the record demonstrates that defendant did not attempt to explain her conduct until the dispositional hearing that immediately followed the judge's finding of neglect.
Moreover, the claim of self-defense had no bearing on the neglect finding, as the judge correctly held when the subject was raised during the dispositional phase. As the record abundantly demonstrates, the Division did not seek to prove the children were neglected because of the melee itself but, as the judge observed, because the children were "confronted with the reality that they were subject to being without appropriate adult supervision for [an] unknown period of time." That is, the judge found that as a result of her arrest and incarceration, and throughout her incarceration, defendant failed to make adequate provision for the children and, thus, was not "performing the expected functions of a parent." Contrary to defendant's forceful argument, the circumstances fully support the judge's finding that the children fell within N.J.S.A. 9:6-8.21(c)(4), which defines an "[a]bused or neglected child" 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 or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care . . . ."
With her arrest and detention for an extended period of time, and the removal of her family from the YMCA due to the altercation, defendant only provided names and addresses, but no telephone numbers, of individuals who she thought would provide for the children during her absence. The record demonstrates the Division's difficulties in finding someone willing to care for the children, which caused the oldest child to remain in the juvenile detention center for nearly two weeks and the two younger children to be placed in the custody of strangers. Therefore, defendant's argument that the Division could have done a better job of locating relatives or friends to care for the children is without merit. As the trial judge correctly observed, the duty to obtain a relative or friend to care for the children rested with defendant in the first instance. The record fully supports the judge's finding that defendant acted inadequately in that regard and that the children fell within the parameters of N.J.S.A. 9:6-8.21(c)(4).