On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-172-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2010
Before Judges Lihotz and J. N. Harris.
This is a Title 9*fn1 action that was commenced by the New Jersey Division of Youth and Family Services (the Division) alleging neglect due to improper supervision. Appellant Carla*fn2 appeals from the Family Part's determinations that (1) she abused or neglected her three children Xenon, Zeena, and Sonja and (2) awarded physical custody of son Xenon to his father Zeshawn, notwithstanding returning physical custody of daughters Zeena and Sonja to appellant. We affirm.
The Division became involved in the lives of Carla and her children when she left them for several weeks with a childcare provider without making arrangements for their ongoing care. Carla left for a vacation and because of the lack of a mobile phone, rendered herself unavailable for days on end. When the childcare provider could no longer supply assistance to the missing Carla, the children were dropped off with a putative relative, who in turn left the children in the care of an unqualified neighbor. The Division intervened to protect the lives, safety, and health of the children and effected an emergency removal without a court order on October 29, 2007.
As part of the ensuing Title 9 proceeding that the Division commenced the next day, the Family Part eventually conducted a fact-finding hearing on March 31, 2008, in which the court concluded that "[Carla] left these children... without adequately supervising them and really exposed them to a substantial risk of harm, making these children abused and neglected children within the meaning of [N.J.S.A. 9:6-8.21(c)(4)]." The court wrestled with the sharply conflicting testimony of Carla, who denied leaving the children unsupervised, and the caregiver, who recited that Carla had habitually left the children without making arrangements for their food and supplies and without making contact with the caregiver for days or weeks at a time.
Concluding that the caregiver was a more credible witness than Carla, and taking into account the vast amount of other evidence presented during the fact-finding hearing, the Family Part determined that Carla "leaves her children in the care of others -- strangers -- [and] she left these children there without adequately supervising them." The court continued its oversight of the family, pending the Division's efforts to assist Carla, and plan for the children's future. Custody was continued in the Division and the children were placed in foster care.
Throughout the next several months, each family member was evaluated, and Carla was provided with extensive parenting education and other services by the Division. In June 2008, after the receipt of a favorable home study report, Xenon was transferred from his foster home and placed in the physical custody of his father in Pennsylvania. Custody of Carla's daughters remained unchanged, but it was contemplated that they would return to Carla's physical custody as soon as practicable. That did not occur for another eight months, in February 2009.
The Family Part conducted a two-day dispositional hearing*fn3 regarding Xenon, pursuant to the newly-minted principles of N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382 (2009). The complement of witnesses included Xenon's parents: Carla and Zeshawn; Division caseworker Tyronnette Nimmons; psychologist Dr. Eric Kirschner, Ph.D.; and psychologist Dr. Gerard Figurelli, Ph.D.*fn4 After reserving decision, Judge Margaret M. Hayden rendered an oral determination on January 6, 2010, awarding physical custody to Zeshawn.
From the outset of her opinion, Judge Hayden recognized that the mode of analysis for the dispositional hearing was not the best interests of the child paradigm. Rather, under G.M., the court was obliged to determine "was it safe to return the child ...