May 5, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
O.G., DEFENDANT-APPELLANT, AND C.W., DEFENDANT-RESPONDENT.
IN THE MATTER OF K.G. MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FN-20-133-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 19, 2010
Before Judges Rodríguez, Reisner and Yannotti.
In this Title Nine abuse and neglect case, defendant O.G. appeals from Family Part orders dated May 28, 2008, July 31, 2009, and October 29, 2008. Defendant contends that he was the custodial parent at the time the Division of Youth and Family Services (DYFS) commenced the abuse and neglect proceedings. He argues that the court changed legal and physical custody of his fourteen-year old son, K.G., from O.G. to the boy's mother, C.W.; allowed her to move to Georgia with the son; and terminated the abuse and neglect litigation, all without conducting a dispositional hearing. He asserts that pursuant to the Supreme Court's recent decision in N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009), we must remand this matter to the trial court to hold the dispositional hearing required by N.J.S.A. 9:6-8.46c and N.J.S.A. 9:6-8.51.
DYFS, C.W., and the son K.G., represented by his Law Guardian, contend that the court held a series of dispositional hearings, even if they were mischaracterized as compliance hearings. They also contend that defendant, who was represented by counsel, never asked for a plenary hearing and instead consented to C.W. having physical custody of K.G. in Georgia, so long as defendant could have visitation during the entire summer. They argue that this arrangement is what K.G. wants; that K.G., now almost fifteen, is comfortably settled with his mother in Georgia and is entitled to certainty as to where and with whom he will live; and that pursuant to the Court's most recent decision in N.J. Div. of Youth & Family Servs. v. M.C. III, ___ N.J. ___ (2010), the doctrine of invited error precludes O.G. from now changing his position and demanding a further dispositional hearing.
Based on our review of the record, we affirm.
The child was born in October 1995. The parents, C.W. and O.G., are not married, and they have had a tempestuous relationship.*fn1 The Division has been involved with the parents and their child on and off since 1996. This appeal concerns an incident in which the child was removed from his parents on an emergency basis in 2007. See N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30. The following case history was presented through testimony at a March 27, 2007 hearing concerning that removal.
In early October 2006, the child, then age eleven, reported to school authorities that O.G. had physically abused him. At that time, K.G. was temporarily residing with his mother C.W. and his grandmother, although O.G. had legal custody of the child. DYFS investigated, and found the allegation of abuse was unsubstantiated. In mid-October 2006 C.W. contacted DYFS to complain that O.G. had unenrolled the son from school.
In November 2006, DYFS investigated and substantiated a complaint that C.W. had hit O.G. with her car while the son was a passenger.*fn2 At this point the agency had both parents sign a case plan requiring them both to submit to psychological evaluations and attend counseling. Defendant agreed to undergo a substance abuse evaluation; the evaluator recommended a further evaluation, which defendant declined to attend. C.W.'s psychological evaluation resulted in a recommendation for supervised visitation with K.G. There were also reports from the child's school that K.G. was having behavior problems and academic problems, and that O.G. refused to allow the child to take medication for his ADHD and refused to allow his placement in special education classes.
In March 2007, DYFS received a referral from the police that O.G. had beaten K.G. with a belt. The child told the investigating DYFS worker that O.G. had become angry with him, "chased him around the house, screamed at him, choked him, threw him against the wall, and beat him with a belt." The worker also observed photographs that C.W. had taken of the child showing red marks on his neck and buttocks. Nonetheless, the child was returned to his father. In late March 2007, school officials told the DYFS worker that the child continued to have problems in school and continued to allege that his father abused him, and the father refused to allow the child to be placed in appropriate classes. After re-interviewing the child, who at that point had missed twenty-three days of school and was failing all his classes, the DYFS worker conducted an emergency removal. The removal was based on the child's continuing allegations of abuse, the child's expressed fear of his father, his statements that his father was insisting that he lie to the DYFS workers, and the DYFS worker's concerns about educational neglect.
In his brief testimony, which was not subject to cross-examination at the time, O.G. testified that he and K.G. had undergone counseling, that the child did not need medication for his ADHD, that he diligently helped K.G. with homework but the child refused to turn in the homework at school, and that DYFS had told O.G. that he did not need to attend extended substance abuse counseling. In his testimony, he did not address the allegations that he hit the child.
In an oral opinion placed on the record on March 27, 2007, Judge Spatola found DYFS had presented sufficient evidence of physical, educational and medical abuse to justify placing the child in the agency's legal custody. Those findings were also included in a written order dated March 27, 2007. The judge ordered the child to continue in the physical custody of his maternal grandmother, with the parents to each have supervised visitation only if the child desired to see either of them. She set a return date for April 11, 2007.
The case was transferred to Judge Alcazar, who held a series of case management conferences and hearings between April 11, 2007 and December 12, 2007. Thereafter, Judges Hawkins, Chrystal and Grispin conducted additional proceedings. In all of the proceedings from April 11, 2007 on, defendant was represented by the same attorney, who zealously represented him.
On June 11, 2007, the court held an extensive pre-trial conference.
On June 25, 2007, and July 5, 2007, the court conducted a plenary trial on the abuse and neglect accusations. Again, O.G.'s counsel zealously defended him. During that hearing the court received testimony that K.G. had lived with his father since the child was about two years old. However, the child also spent time with his mother. The parents had a history of making complaints to DYFS about each other, including allegations of abuse that were unsubstantiated. There was testimony that on several occasions in the past few years, the child had run away from O.G.'s home because he wanted to live with his mother. According to DYFS records, during their investigation, O.G. denied hitting K.G. At the end of the hearing day on July 5, 2007, O.G. offered, through his counsel, to "waive proceeding with the rest of the trial" and to stipulate that he had committed "educational neglect."
After being questioned under oath to ensure that his agreement was knowing and voluntary, O.G. admitted that while K.G. was in his custody, the child missed twenty-three school days, was tardy numerous times, and was failing all but one of his school subjects. He also admitted that, despite the school's recommendation, and the child's diagnosis of ADHD, he refused to allow the child to be transferred into a special education program. The judge accepted the stipulation. O.G. also agreed to undergo a psychiatric evaluation to address the agency's concern about his psychological fitness, based on his 2006 psychiatric hospitalization.*fn3 It was clear from the judge's comments on the record that the goal at this point was reunification of the child with O.G. No party objected to that characterization. The child remained in his grandmother's physical custody.
At a compliance review hearing before Judge Alcazar on December 12, 2007, for the first time the court and DYFS raised the issue of K.G. being reunited with his mother instead of with his father. The child was still living with his grandmother at the time, but there were apparently three reasons for the change in the reunification goal: the mother, C.W., had made considerable progress with individual counseling and parenting skills classes and had complied with all other DYFS recommendations; there had been significant problems during the child's supervised visits with his father; and, according to the undisputed representation of the DYFS attorney, "[t]he child has indicated on numerous occasions that he is ready to go back home with his mother, and he wants to return to his mother."
According to another representation by the DYFS attorney, which O.G.'s attorney did not dispute, the agency was recommending therapeutic visits between O.G. and K.G. because there are many unresolved issues between [K.G.] and his father. There were also several visits at the Division office that were not positive visits. There were visits that had to be cut off because of . . . things that were being said during the visits that were inappropriate as well.
Although O.G. questioned why the agency was now seeking to place his son with C.W., his attorney did not object to this change in focus.
The next compliance review hearing took place before Judge Hawkins on January 22, 2008. At that hearing, DYFS recommended that the agency retain legal custody of the child, but that physical custody be transferred to C.W. According to DYFS, C.W. had "completed all the Division's services," and the child, then age twelve, "has indicated to the [DYFS] worker on several occasions that he does want to reside with his mother." The Law Guardian confirmed that her client wanted to live with his mother.
However, O.G.'s attorney objected to the transfer of custody to the mother, on the grounds that an uncle who was currently living with the grandmother had a record of drug convictions. The judge rejected that contention because the uncle was not going to be living with C.W. Additionally, O.G. made a statement objecting to the change in custody, contending that DYFS had not established that he was not a fit parent, and that C.W. was not "mentally stable enough" to care for the child. He also reminded the court that he had been the custodial parent up to "a year ago." The court rejected these arguments, noting, however, that the issue at that point was not a change in legal custody but a change in physical custody from the grandmother to the mother.
The judge continued supervised visitation with O.G., based on the Law Guardian's representation that the child did not feel comfortable with unsupervised visits. The Law Guardian also referred to "a psychiatric evaluation of [O.G.] from August of 2007" which opined that the child "would be at risk if he were to live with his father." In that report, which is in the record, the psychiatrist, Dr. Sostre, found that O.G. "has some difficulty with reality testing and has a thought disorder that may respond to a low dose of anti-psychotic medication. It is my opinion that [O.G.] is not currently fit to parent his son and that visitations at this point should be supervised." Dr. Sostre also reported that at that time, O.G. was refusing to take psychiatric medication for his condition. Later in the January 22 hearing, the court drew a negative inference against O.G. because he had refused to take a drug test that day. The court's decision was memorialized in an order dated January 22, 2008.
At the next compliance hearing on April 4, 2008, the DYFS attorney reported that C.W. had not yet taken physical custody of the child because she had not been able to enroll him in an appropriate school near her home. Therefore, she and the grandmother had agreed that the child would remain at the grandmother's house for the rest of the school year so that he could continue to attend a school near the grandmother's house that was appropriate to his special needs. No one at the hearing objected to this arrangement. DYFS also recommended unsupervised visitation with O.G., to which the Law Guardian and O.G.'s counsel agreed. At the end of the hearing, the DYFS attorney told the judge that they "just need a court date. Hopefully by then, everything will be settled, and we'd be looking to dismiss litigation at that point." O.G.'s attorney did not object.
Thereafter, the case was transferred to Judge Chrystal. On May 28, 2008, Judge Chrystal signed a "Consent Order" noting the agency's proposed change in reunification goal from reunification with the father to reunification with the mother. The order noted that the Division's plan was "appropriate and acceptable." However, page two of the order also indicated that the current plan was "unacceptable" and the agency was to present "a new permanent plan" by July 9, 2008. No party provided us with the transcript of any hearing from May 28, 2008, and there is no documentation explaining how the order came to be entered by "consent" when it was not signed by any of the parties or their counsel. At the oral argument of this appeal, the DYFS attorney, who was the only attorney involved in this case at both the trial and appellate levels, represented to us that the judge had arranged for court staff to contact all counsel and obtain their consent to the order before signing it.
At the next hearing, on July 9, 2008, the DYFS attorney advised Judge Chrystal that DYFS was "recommending today that legal custody be transferred over to [C.W.]", with unsupervised visitation for O.G. The Law Guardian objected that transferring legal custody was premature because at that point, C.W. had only had physical custody of her son for three weeks and it was not clear if she would be able to handle his "behavioral problems." The Law Guardian also noted that C.W. was planning to move to Georgia, and she expressed concern about O.G.'s visitation rights.
O.G.'s attorney also objected to the move to Georgia because it would "eviscerate" his client's visitation rights. The attorney stated: "At the very least, he would like to have joint legal custody and a provision in this order to provide for him to have summertime visitation and have his son come up from Georgia to spend some time with him." Notably, at this hearing O.G.'s counsel did not mention the May 28, 2008 order or state any objection to it. The judge declined to change legal custody at that time or to allow a relocation to Georgia without more information; she urged both parties to "work together" and the parties agreed to attend mediation on the issue of the child's possible relocation to Georgia and O.G.'s visitation rights if that occurred.
The parties returned to court on July 31, 2008. At that hearing, DYFS reported that C.W. had arranged for the child to attend an appropriate school in Georgia, and had set up counseling appointments for him. She cited a report from the child's therapist indicating that K.G. was "excited about going to Georgia and being on the football team there." C.W. and her son had attended counseling sessions together, which had gone well. On the other hand, O.G. had "missed three appointments for counseling" and had not responded to the counseling service's attempts to contact him. Both DYFS and the Law Guardian recommended that C.W. be permitted to move to Georgia with the child.
O.G.'s counsel denied that his client had missed counseling sessions, and he objected to the Division's plan to give sole legal and physical custody to C.W. and to allow her to move out of State. The judge did not consider whether O.G. had missed the counseling sessions, but she did consider the recommendations of the therapist indicating that C.W. was able to act effectively as the child's parent, that appropriate services were available for the child in Georgia, and that the child would be able to fly back to New Jersey to visit his father. She considered that
This is a child abuse and neglect litigation. This is not a custody or visitation hearing. Under these circumstances and with the support of the law guardian, I will grant physical and legal custody to [C.W.] at this time.
The judge also considered that under Baures v. Lewis, 167 N.J. 91 (2001), there were appropriate living arrangements for the child in Georgia and "O.G.'s visitation rights will be intact."
Addressing the possibility of resolving the custody issue, O.G. indicated to the judge that mediation failed because he had wanted joint legal custody, plus visitation with the child in New Jersey for the entire summer. He indicated that the parties were in agreement on the summer visitation, but not on the issue of joint legal custody. The judge declined to "address the custody at this point" but ordered the summer visitation. Significantly, based on his own statements to the judge, O.G. did not object to C.W. having primary physical custody of K.G. and moving with him to Georgia, as long as O.G. could have joint legal custody and physical custody in the summer.
At the next hearing, held before Judge Grispin on October 29, 2008, the DYFS attorney reported that C.W. and K.G. had moved to Georgia, and the child was "doing well behaviorally and academically." She also recommended that "the case be terminated from litigation and that legal and physical custody remain with [C.W.] in Georgia." On the record, all counsel, including O.G.'s counsel, indicated that they had "no objection" to that recommendation. O.G. did not request an evidentiary hearing or a separate dispositional hearing.
As the Supreme Court recently re-emphasized in N.J. Div. of Youth & Family Servs. v. G.M., supra, 198 N.J. at 401, there is a distinction between the initial fact-finding hearing at which the Family Part decides whether the child has been abused or neglected, and the later dispositional hearing at which the court determines "what order should be made." See N.J.S.A. 9:6-8.44 and N.J.S.A. 9:6-8.45. However, as soon as the fact- finding hearing is completed, the court may hold the dispositional hearing. N.J.S.A. 9:6-8.47.
On the other hand, after the fact-finding hearing, the court may adjourn the proceedings "to enable it to make inquiry into the surroundings, conditions and capacities of the persons involved in the proceedings." N.J.S.A. 9:6-8.48. That is what happened in this case. After transferring legal custody of K.G. to DYFS and physical custody to the grandmother, the court held a series of compliance hearings to determine first if the parents could, through therapy and other services, become fit to have unsupervised visitation with the child, and later to determine whether physical custody should be returned to O.G. See N.J.S.A. 9:6-8.50.
Following a dispositional hearing, the court "shall enter an order of disposition" which may include releasing the child to the parent who had custody at the time the action commenced, N.J.S.A. 9:6-8.53, or placing the child "in accord with [N.J.S.A. 9:6-8.54]." N.J.S.A. 9:6-8.51a(3). See G.M., supra, 198 N.J. at 399. In turn, subsection 8.54a provides that "the court may place the child in the custody of a relative or other suitable person." This section authorizes the court to fashion a disposition by placing the child in the custody of the parent who did not originally have custody at the time the Title Nine proceeding commenced:
A parent who did not have primary physical custody, i.e., a non-custodial parent, certainly may be a "suitable person" and is obviously a "relative" of the child. Consistent with the plain words of Title Nine, we find no reasonable basis to exclude a non-custodial parent from being considered as someone with whom the court may place the child. See N.J.S.A. 9:6-8.54. [G.M., supra, 198 N.J. at 404.]
In G.M., supra, the Court held that a dispositional hearing is a critically important stage of a Title Nine proceeding:
[U]pon 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. [Id. at 387-88.]
In G.M., the children were appropriately removed from their mother's custody in New Jersey and temporarily placed with their father in Florida, based on substantiated findings of her neglect. Id. at 400-01. However, the mother's Title Nine rights were violated when DYFS, having previously recommended that the children be reunited with their mother, unexpectedly announced at a later hearing that it believed the children should remain with the father, and the trial court adopted that recommendation without giving the mother an opportunity for a dispositional hearing. Id. at 393.*fn4
While the Court disapproved our determination that the trial court should have held a custody hearing of the type that would be held in a non-Title Nine matrimonial case, the Court affirmed the mother's right to a dispositional hearing:
[W]e disagree with the [appellate] 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.
At the dispositional hearing, both sides may present material and relevant evidence for the court to 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. [Id. at 402.]
Based on our review of this record, we conclude that O.G. received a dispositional hearing, which was resolved by consent. We further conclude that he is estopped by the doctrine of invited error from now claiming that he should have received a plenary hearing on the issue of K.G.'s placement.
Unlike G.M., in this case O.G. had ample notice that DYFS was proposing a disposition that involved placing the child with C.W. By the end of the case, it was abundantly clear that O.G. had no objection to the child living with C.W. in Georgia during the school year, as long as the child spent the summers with him in New Jersey. Moreover, at the last hearing on October 29, 2008, which we consider to have been the dispositional hearing, O.G.'s attorney stated "no objection" to the DYFS recommendation that the case be closed with a disposition of legal and physical custody remaining with C.W., with O.G. to have summer visitation rights.*fn5 There was, therefore, no need for the trial court to conduct a plenary hearing before entering a dispositional order.
In the very recent case of N.J. Div. of Youth & Family Servs. v. M.C. III, ___ N.J. ___ (2010) (slip op. at 3), a parent appealed from a finding of abuse and neglect, contending that certain documents should not have been admitted at the trial court hearing. The Court rejected that contention, holding that "consistent with the doctrine of invited error, on appeal, the father may not protest the admission of the documents after he agreed to their admission at trial." Ibid. The Court explained the doctrine as follows:
"The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." As we stated in State v. Jenkins, "a defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought . . . claiming it to be error and prejudicial." The doctrine of invited error "is based on considerations of fairness and preservation of the integrity of the litigation process." [Id. at 15-16 (citations omitted).]
The Court also noted the unfairness of withholding an objection at trial, thus "depriv[ing] the Division of the opportunity to overcome any objection and depriv[ing] the trial court of the necessity to make a ruling based on the arguments presented by both sides." Id. at 17. The Court further considered that the trial court's decision in the case "present[ed] no fundamental injustice that would warrant relaxing the invited error doctrine." Id. at 18.
We conclude that M.C. is pertinent here. In addition to the invited error doctrine, we also consider the well- established principle that a party may not appeal from an order to which he has consented in the trial court. See Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950). If O.G. wanted a plenary dispositional hearing, he should have asserted that position at the October 29, 2008 hearing instead of agreeing to the agency's proposed disposition.
Finally, we find no "fundamental injustice" in the trial court's final dispositional order in this case. M.C., supra. There was no dispute in the trial court that the teenage K.G., who was certainly old enough to express his preferences, wanted to live with his mother in Georgia. At the oral argument of this appeal, the Law Guardian advised us that she had recently spoken with her client and he had again expressed his desire to remain in Georgia with his mother. There is also no dispute that this special needs child has an appropriate school placement, is receiving appropriate medical and counseling services in Georgia, and is doing well living with his mother. Children have a strong need for stability in their lives, and in other contexts we have recognized the harm they can suffer from continuing custody litigation. See In re Guardianship of KHO, 161 N.J. 337, 357 (1999); Daniels v. Daniels, 381 N.J. Super. 286, 293-94 (App. Div. 2005). We find no basis to reopen this litigation now, almost two years after the trial court's final disposition.