April 8, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
E.R.C., DEFENDANT-RESPONDENT, AND J.S., DEFENDANT-APPELLANT, AND V.V., R.A.R.L.,
DEFENDANTS. IN THE MATTER OF N.S. AND G.S., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FN-11-100-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2011
Before Judges R. B. Coleman and J. N. Harris.
J.S., the biological grandmother and adoptive mother of G.S., appeals from an order of the Chancery Division, Family Part, entered on July 8, 2010, that placed G.S. in the joint legal custody of J.S. and E.R.C. and in the physical custody of E.R.C.*fn1 This appeal solely concerns the award of physical and legal custody of G.S., which was predicated primarily upon a finding by the Family Part judge that there was an agreement between J.S. and E.R.C. for transfer of custody.*fn2 Because the record does not support an agreement between J.S. and E.R.C. for more than a temporary transfer of custody and because the judge failed to conduct a proper analysis to warrant the transfer of custody, we reverse and remand for further proceedings.
E.R.C., the biological daughter of J.S. and the biological mother of G.S., had previously given a knowing and voluntary identified surrender of her parental rights to two of her children, G.S. and N.S., in favor of J.S., who had adopted them.
On December 7, 2007, a Judgment of Guardianship and Default was filed in the Family Part of Mercer County to memorialize the knowing and voluntary identified surrender by E.R.C. of her children, N.S. and G.S., to the children's biological maternal grandmother, J.S. That judgment also memorialized the knowing and voluntary surrender by R.A.R.L., the biological father of N.S., and the default by V.V., the biological father of G.S. and the termination of his parental rights to G.S. Thereafter, on August 15, 2008, Final Judgment of Adoption was entered completing the adoption of G.S. and N.S. by J.S. As a result of these judgments, the parental and legal rights between E.R.C. and both children were terminated and the relationship between the children and J.S. was established to be as if the children were born to J.S.
In mid-January 2010, however, the Division received a referral from E.R.C.'s psychologist informing the Division that E.R.C. had stated that J.S. had dropped off G.S. and N.S. to E.R.C.'s home and said "[h]ere, you take them. I don't want them," and left the children there. Subsequently, the Division filed a Verified Complaint against E.R.C., J.S., V.V. and R.A.R.L. for the protection and best interests of N.S. and G.S. pursuant to N.J.S.A. 9:6-8.21 to -8.73, N.J.S.A. 30:4C-12 to -22 and Rule 5.12-1. The Division requested "an Order granting Judgment and/or continued custody of the above referenced child[ren] in the Division, finding that the child[ren] w[ere] abused and/or neglected and/or such other relief as is provided by law, specifically N.J.S.A. 9:6-8.21."
On March 31, 2010, the parties appeared before the court, and an order was entered granting physical custody of G.S. to E.R.C. and joint legal custody to E.R.C. and J.S. Joint legal custody of N.S. was granted to E.R.C. and R.A.R.L. with physical custody to E.R.C. E.R.C. also moved orally to vacate the judgment of adoption by J.S. as to both N.S. and G.S., but the court denied the oral motion without prejudice. The trial court ordered the parties to go to mediation for the custody issue, and directed E.R.C. to file private custody actions under the FD dockets. When mediation of the custody disagreement was unsuccessful, the court heard the FN matter after which the two ensuing FD custody matters*fn3 were considered.
The matter proceeded to fact-finding hearings on June 28 and 30, 2010 and July 8, 2010. On July 8, 2010, the trial court placed its decision regarding the FN and FD matters on the record. First, the court determined that the Division did not prove its case of abuse or neglect by a preponderance of evidence. Thus, the trial court entered an Order Terminating Litigation, placing N.S. in the legal and physical custody of J.S. and ordering G.S. to remain in the physical custody of E.R.C. and the joint legal custody of J.S. and E.R.C. In granting physical custody of G.S. to E.R.C., the trial court reasoned that there was an agreement between E.R.C. and J.S. to change custody pursuant to N.J.S.A. 9:2-4(d).
J.S. filed a timely notice of appeal in this matter, challenging that portion of the Order Terminating Litigation which provided that G.S. was to remain in the joint legal custody of E.R.C. and J.S. and the physical custody with E.R.C.*fn4
J.S.'s primary argument on appeal is that the trial court's reasoning that J.S. and E.R.C. had an agreement in January 2010, to transfer custody, pursuant to N.J.S.A. 9:2-4(d), lacks a factual basis and is in error. The Law Guardian for G.S. joins in that argument asserting that the trial judge did not conduct a proper analysis of the issues in the determination of custody.
We acknowledge that family courts have special expertise in family matters and "appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). In particular, we give regard to the family judge's "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and his or her "'feel of the case.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We should not disturb a Family Part judge's findings of fact and conclusions of law premised on those factual findings unless convinced that they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412. By the same token, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
Here, the trial judge granted joint legal custody of G.S. to E.R.C. and J.S. with primary physical custody to E.R.C. concluding that there was a "meeting of the minds" to change custody pursuant to N.J.S.A. 9:2-4(d). N.J.S.A. 9:2-4(d) states that "[t]he court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child." With respect to the award of primary residential custody to E.R.C., the judge reasoned as follows:
So going back to January. The kids were left with -- not just left or abandoned, [J.S. and E.R.C.] had arranged that [J.S.] would drop the kids off and [E.R.C.] would take care of them for a week which by way of the adoption is something [J.S.] is perfectly within her rights to do.
She can hire a babysitter, she could get a nanny, she could drop the kids off at another family member's house. There was no problem with that.
And I'm not sure why that happened. There was testimony about she had an illness, she needed to take care of it, she would have needed help, the nanny was out but then just had to do only with the size of the lump.
Because of [J.S.'s] aggressive and emotional position in this case I don't know that I've gotten a clear answer about that, about why that happened, but it did happen and apparently the agreement was for a week. [J.S.] had testified for a week or two.
But when the Division was called and they got information that the children were delivered to [E.R.C.] and they got information that there was something wrong, they had an obligation to go find out what's going on, make sure everything is okay.
But when they called [J.S.] got scared. And what was a transfer of custody be it loosely defined, not well discussed, something they were feeling out as they were going along, and all of a sudden at that point [J.S.] is concerned that the children are going to wind up in foster care and she changed her position.
She thought if the children stay with [E.R.C.] that she would -- that the Division wouldn't take them. That at least if she could ride it out until the Division was out and then she could try to get the children back at that point.
But there was always that intent to transfer custody. There was at least that discussion. And that [J.S.] decided at that point when the Division called and she realized the dynamics of the whole thing had changed, she changed her position, left the children there, and manifested the intent to transfer custody on a longer basis.
[E.R.C.] having had custody of [G.S.] also manifested the intent to make those long term custody arrangements. And just as [E.R.C.'s attorney] said that was the meeting of the minds, that's when this case changed.
When that meeting of the minds happened and there was a change of custody, that's an agreement by a custodial parent as to custody or visitation, and the statute 9:2-4 says, whenever there's an agreement by parents as to custody or visitation, the Court must uphold that unless its against the child's best interest.
Having carefully reviewed the record as a whole, we find that the trial court's determinations are unsupported by substantial credible evidence and wrong as a matter of law. We therefore reverse and remand the order with respect to FD docket 11-1295-10, for a full custody hearing to comport with applicable law.
In particular, we find that the record does not reflect an agreement to transfer custody in January 2010 on anything more than a temporary basis. The transcripts from the hearings present conflicting testimony regarding whether there was a "meeting of the minds" to transfer physical custody of G.S. to E.R.C.
E.R.C. testified that on January 4, 2010, J.S. dropped off the children, N.S. and G.S., at E.R.C.'s home pursuant to a text message sent by J.S. to E.R.C., asking if she could take the "kids for a week or two" because J.S. was not feeling well due to an illness. J.S. brought the children to E.R.C.'s house with a bag of clothes for each of them, a week's worth of food and some diapers. She did not provide financial assistance and failed to provide the Medicaid cards necessary for the children's healthcare. E.R.C., who had recently regained custody of her two younger children, testified that she was overwhelmed by the addition of G.S. and N.S. under her care and contacted her psychologist for advice.*fn5 The psychologist, pursuant to law, contacted the Division to report the events.
E.R.C. testified that a week after J.S. dropped off the children, she contacted J.S. to find out when she would be picking up the children. She stated that J.S. responded she was no longer going to care for the children because she was sick and that the children are now E.R.C.'s responsibility. E.R.C. claimed she responded to her mother that she was unwilling to accept an immediate transfer of custody. Within two weeks of January 4, E.R.C. sent N.S. to the physical custody of the biological father, R.A.R.L., and G.S. remained in the physical custody of E.R.C.
J.S.'s recollection of the events differed slightly from E.R.C.'s recollection.*fn6 She testified that she developed a growth in her lymph node and that on January 2, she sent a text message to E.R.C. about her need of assistance with the children for a week or two. J.S. specifically testified that the January 4 drop off was not part of a transition plan but, instead, was a matter of "can you watch the kids for a week or two." J.S. further testified that she no longer believed it was in the best interests of the children to be placed with E.R.C., even on a temporary basis.
E.R.C. and J.S. both testified that when G.S. was placed with E.R.C. in January 2010, it was understood that the placement was for an estimated duration of no more than two weeks, even though both parties admitted there had been prior discussion of a possible "transition plan" to return G.S. to E.R.C.
The Division's Family Service Specialist Caseworker, Alexandria Richards, testified that J.S.'s plan always was to transfer custody back to E.R.C. and that J.S. told her she had been in contact with her lawyer to begin transferring custody.
Richards acknowledged, however, that J.S.'s transfer of the children on January 4 was not intended to be a transfer of custody. Richards further stated that J.S. told her that, if E.R.C. could not handle the children, J.S. would take the children back; absent such an inability, Richards understood J.S. did not want the children back.
The trial judge conceded that "I don't see that that transfer was doing anything wrong. I don't know that it was well thought out, and that all the details had been flushed out, but it was still that meeting of the minds." At another point, the court surmised "I think this transfer was more a test of the waters and feeling out a transfer of custody and getting it started to see if it would work." The trial judge further noted that:
[J.S. and E.R.C.] have an agreement that they were going to be working out some form of custody. I think it was a loose agreement and it certainly could have been better detailed, it could have been better clarified about who had what responsibilities and when and for what.
Plainly, the record lacks substantial credible evidence that the January 4 drop off was a part of a transitional plan or that there was in fact a meeting of the minds that there be a permanent vacation of the adoption and reinstatement of E.R.C.'s parental rights. Indeed, the court noted that, because of child support issues, it was not in the best interest of G.S. to vacate the adoption and reinstate parental rights.
It is well-recognized that "a legal parent has a fundamental right to the care, custody and nurturance of his or her child." V.C. v. M.J.B., 163 N.J. 200, 218 (citing Watkins v. Nelson, 163 N.J. 235, 245 (2000)), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); In re D.T., 200 N.J. Super. 171, 176 (App. Div. 1985). In a custody dispute between a legal parent*fn7 and a third party, a presumption exists in favor of the legal parent. Watkins, supra, 163 N.J. at 237. "That presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of 'exceptional circumstances,' but never by a simple application of the best interests test." Ibid. Only after that presumption has been rebutted, should the court decide whether awarding custody to the third party would promote the best interest of the child. Id. at 254.
As the Court observed in Watkins, "the best interest of the child cannot validly ground an award of custody to a third party over the objection of a fit parent without an initial court finding that the standard for termination of the rights of a non-consenting parent or the 'exceptional circumstances' prong has been satisfied." Id. at 255.
In Watkins, the Court was confronted with a custody dispute between the biological father of the child and the maternal grandparents after the biological mother was killed in an automobile accident when the child was only twelve days old. Id. at 238. Although the Court's opinion arose in the context of the death of one of the biological parents, and involved an interpretation of N.J.S.A. 9:2-5, which deals with that subject, we do not construe Watkins as applying only in circumstances where one parent has died. Instead, we view Watkins as controlling authority in any circumstance where a legal parent and a third party are engaged in a contest for custody of a child.
E.R.C.'s parental rights were terminated when she made an identified surrender of two of her children, who were thereafter adopted by the biological grandmother, J.S. E.R.C. forfeited her parental rights and her legal status to G.S. became that of a third party in a custody matter. See N.J.S.A. 9:2-13(f). The so-called agreement between the parties was limited, at best, and the trial judge did not rely on an "exceptional circumstances" analysis for the G.S. custody order as required by Watkins. The trial judge even applied the Watkins standard as it related to N.S.'s father, R.A.R.L., yet dismissed it as not controlling for E.R.C. and J.S. Instead, he relied on a misapplication of the facts to N.J.S.A. 9:2-4(d) in transferring the physical custody of G.S. This was an error that cannot stand, especially because E.R.C. is no longer a parent for purposes of N.J.S.A. 9:2-4(d).
Thus, we reverse and remand for a full custody hearing consistent with the controlling legal standards under Watkins, in the FD docket. We note that at oral argument on this appeal the Law Guardian requested that a guardian ad litem be appointed to G.S. to represent the child's best interest due to the animosity between G.S.'s legal mother and biological mother. We leave that decision to the sound discretion of the judge of the Family Part.
Reversed and remanded.