October 25, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
R.P., DEFENDANT-APPELLANT, AND A.B., DEFENDANT-RESPONDENT.
IN THE MATTER OF I.B., J.B., E.B. & J.B., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-18-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2010
Before Judges Grall and C.L. Miniman.
R.P. appeals from an order granting the Division of Youth and Family Services' (Division) application to dismiss litigation it commenced. The Division filed the complaint to compel R.P.'s former husband, A.B., to cooperate with the Division's investigation of the welfare of their children. At the conclusion of the investigation, the judge dismissed the case on the condition that A.B. comply with services. The order of dismissal provides for the children to remain in the custody of their father.
On appeal, R.P. argues that the Division failed to conduct an adequate investigation and should have removed her children from A.B.'s custody. She also contends that this court erred in denying her motion to provide her with appellate counsel at no cost to her. Finding no error in the judge's determination of the facts pertinent to R.P.'s claims, we affirm. We decline to reconsider this court's order denying her request for an attorney, because R.P.'s right to custody is not in issue.
R.P. and A.B. were divorced in 2006. They have three sons and one daughter, who are now respectively eighteen, sixteen, fifteen and eleven years old. Prior to their divorce R.P. obtained a restraining order, which was modified to facilitate A.B.'s access to the children. The judgment of divorce provides for R.P. and A.B. to have joint legal and physical custody.
After the divorce, R.P. and the children moved to New York. In June 2007, the New York Administration for Children's Services (ACS) removed the children from her care, and on October 23, 2007, ACS withdrew its complaint alleging neglect by R.P., and a judge of the Family Court in New York dismissed the case. The New York order specifies that the children are residing with their father in New Jersey "pursuant to a final order" awarding custody to the father "issued in NJ."*fn1
Since 2007, R.P. has contacted the Division on several occasions. She reported her concerns about A.B.'s substance abuse and neglect of the children on September 5, September 11 and September 16, 2008. On October 14, 2008, the Division invoked N.J.S.A. 30:4C-12 to apply for an order compelling A.B. to cooperate with its investigation. The judge denied that application.
R.P. filed additional complaints on March 9, April 11, May 17 and June 7, 2009. On July 10, 2009, again invoking N.J.S.A. 30:4C-12, the Division sought an order compelling A.B. to cooperate with its investigation. The judge entered an order directing A.B. to cooperate and provide a urine sample and imposing conditions on R.P.'s filing of additional complaints with the Division.*fn2 A.B. complied with the order, and he tested positive for cocaine. Consequently, he participated in a substance abuse program and testing. In August 2009, he tested positive for alcohol but not cocaine. Subsequent tests were negative for cocaine.
A.B. reported having two jobs, and the Division confirmed that representation with both of his employers. In addition, the Division visited his home and the children's school, and the Division interviewed the children. Thereafter, the Division concluded that the children were neither abused nor neglected within the meaning of N.J.S.A. 9:6-8(c). For that reason, the Division sought dismissal of its complaint on the ground that it was in a position to provide all services needed without litigation.
R.P. opposed the dismissal because the Division had yet to investigate allegations of abuse of the youngest child made by R.P. in 2008. Those allegations, however, were referenced by the Division in its 2008 application for an order compelling A.B.'s cooperation. The Division had arranged for a medical examination of the child at that time, and the report obtained from the hospital was negative for sexual abuse.*fn3 When R.P. was offered an opportunity to present a letter purportedly reflecting the child's complaints, R.P. refused on the ground that she did not want to jeopardize the child while she was in her father's custody.
The judge credited R.P. for bringing A.B.'s cocaine use to the attention of the Division, and he questioned whether the programs provided to A.B. were adequate. Nonetheless, the judge concluded that the Division had investigated and secured A.B.'s cooperation with testing, which made further judicial proceedings unnecessary. With respect to abuse of the youngest child, the judge noted that there was no evidence to support R.P.'s allegation. Accordingly, the judge dismissed the action and indicated that the Division could return to court if necessary.
The judge's factual findings are supported by adequate and substantial evidence in the record, and there is no basis for this court to disturb his determination. To the extent that R.P. argues error in the judge's order because custody was not assigned to her, modification of the custodial arrangement between the parents was not an issue that was before the judge in this proceeding initiated by the Division pursuant to N.J.S.A. 30:4C-12. See N.J. Div. of Youth & Family Servs. v G.M., 198 N.J. 382 (2009).
R.P. also objects to an order of this court granting her the right to proceed as an indigent but denying her request for assignment of counsel. Setting aside the fact that the Supreme Court reviews orders entered by this court, the argument lacks merit. The right to "counsel without cost to indigent parents" applies in "proceedings which may result in either temporary loss of custody or permanent termination of their parental rights." Crist v. N.J. Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1975). There is no indication that any right to custody enjoyed by R.P. was implicated at any point in this proceeding.
R.P. objects to a provision of the order to investigate, which conditions her filing of a complaint with the Division on submission of a notarized statement from a person with personal knowledge. Without expressing any opinion as to the validity of such a restriction, we note that this condition is not included in the final order dismissing the Division's complaint and the interlocutory order has no continuing effect.