On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FN-11-124-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges R. B. Coleman and J. N. Harris.
J.B. appeals from two orders of the Chancery Division, Family Part, entered on February 1, 2010: (1) an order permanently placing her minor child, F.M., Jr., in the physical custody of his biological father, F.M., Sr., and awarding joint legal custody to F.M., Sr., and J.B.; and (2) an order entered on that same date terminating the abuse and neglect proceedings. We reverse and remand for further proceedings.
Appellant J.B. and defendant, F.M., Sr., are the parents of F.M., Jr., a minor born in June 2002. F.M., Sr., and J.B. were never married, but shared joint legal custody of the child, with J.B. having physical custody. On April 23, 2009, the New Jersey Division of Youth and Family Services (Division) received a referral from the Hamilton Township Police Department (the police) stating that after responding to an anonymous call, the police found J.B. smoking marijuana, with F.M., Jr., and several teenagers present in the home at the time. Four bags of marijuana were found in the home. The police arrested J.B. and charged her with possession of a controlled dangerous substance and endangerment of the welfare of a child. As a result, the Division effectuated a Dodd emergency removal of F.M., Jr., pursuant to N.J.S.A. 9:6-8.29(a), and temporarily placed him with his maternal grandmother.
On April 27, 2009, the Division filed an Order to Show Cause and Verified Complaint against J.B. seeking an order to place F.M., Jr., in the custody, care, and supervision of the Division. The father, F.M., Sr., was named in the complaint solely as a dispositional defendant. At the April 28, 2009 hearing on the Order to Show Cause, the trial court granted the Division's request for care, custody and supervision of the child F.M., Jr., and granted temporary physical and sole legal custody to F.M., Sr., allowing J.B. weekly supervised visitations.*fn1 Before entering the order, the trial judge explained his ruling:
Under the circumstances and based upon the 9-7 from the police department and the Division's investigation, the execution of the Dodd was appropriate to grant the Division temporary custody on the 24th based upon the 9-7. There were no reasonable efforts that could have prevented removal of the child under the circumstances of the referral.
[W]ith regard to continued custody, care and supervision today, that's not necessary. [F.M., Sr.] who is the father of the child, is present in court. The Division is willing to grant him temporary legal and physical custody until at some point down the road there can be a dispositional hearing which would ultimately decide whether or not the child should be returned to [J.B.].
And so I am going to grant that application today with the consent of the Division and the law guardian. The Division will have care and supervision. But it's clear this case was initiated as a Title Nine. It resulted in a removal. It resulted in a placement with the biological father and ultimate disposition will be a dispositional hearing with regard to why or why not the child should not be returned to the mother.
On May 7, 2009, the matter returned to court for a hearing on the return of the Order to Show Cause. An order was entered requiring F.M., Jr., to remain under the care and supervision of F.M., Sr., with J.B. entitled to supervised visits.
J.B.'s supervised visits started on June 27, 2009, and all reports documenting the visitations indicated they went well. J.B. also volunteered for a fifteen-week parenting program which started on July 29, 2009, and was successfully completed with perfect attendance. As of July 31, 2009, J.B. attended weekly or bi-weekly therapy sessions for her drug use and monthly meetings with a psychiatrist for her emotional issues. In the therapy sessions, she "work[ed] on maintaining abstinence from substance abuse, anger management, parenting issues and improving her decision making skills." In addition, J.B. was admitted into pre-trial intervention on the charges from the April 23, 2009 arrest and was attending an outpatient drug treatment program with New Horizon Treatment Services, which started on September 10, 2009. She was required to submit to weekly urine drug screening managed by Substance Abuse Initiative (SAI) and attend two hours a week of counseling in the program. She also joined Alcoholics Anonymous on her own initiative.
In the interim, on August 13, 2009, the matter returned to court for a fact-finding hearing. See N.J.S.A. 9:6-8.21 to -8.73 (Title Nine). J.B. entered into a stipulation of abuse or neglect where she admitted that on April 23, 2009, she exhibited improper supervision for her son due to drug use in his presence, which caused a risk of harm. That same date, the Division requested dismissal of the entire litigation on the ground that F.M., Jr.'s living arrangement with his father is in his best interest. J.B.'s attorney objected to the dismissal and requested a dispositional hearing. The trial court denied the Division's request to dismiss the ...