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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...