On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-78-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and J. N. Harris.
Plaintiff New Jersey Division of Youth and Family Services (the Division) appeals the July 6, 2010 final order of the Family Part dismissing its Title Thirty*fn1 complaint for guardianship, terminating the litigation, reopening the matter as a Title Nine*fn2 proceeding, and ordering the Division "to pursue a permanency plan of Kinship Legal Guardianship." This disposition resulted from the grant of the Law Guardian's motion to dismiss when the Division announced it had completed the presentation of evidence and rested its case. See R. 4:37-2(b). We conclude that the Division's proofs were sufficient to withstand a motion to dismiss. We reverse and remand for an entirely new trial, which shall be managed, tried, and resolved with all deliberate speed, but in no event later than November 30, 2011. This matter must receive a maximum priority on remand.
Because this matter was determined in the context of a motion to dismiss at the conclusion of the Division's case, we conduct a more searching review than if done at the close of the entire case, and accept the truth of the Division's evidence together with the legitimate inferences that can be drawn therefrom. Cameco, Inc. v. Gedicke, 157 N.J. 504, 509 (1999). Accordingly, our recitation of the facts is most favorable to the Division.
Floyd and Olivia are the biological father and mother of Evan,*fn3 who was born in 2004 in Maryland. The parents immigrated to the United States from Nigeria in 1997. Neither are citizens of the United States. Olivia voluntarily remains at a mental health facility in Maryland, where she has resided since May 2005. In addition to Evan, now six years of age, Floyd and Olivia have a nine-year-old daughter who resides with relatives in Nigeria. Evan is the only child involved in this appeal.
The family first came to the attention of the Division in October 2006, after New Jersey Transit Police reported observing Floyd and Evan (then two years of age) sleeping at Newark's Penn Station. Discovering that Floyd had very little money or food, and was unable to provide suitable housing for himself or his son at that time, the Division effected an emergency removal and filed a Title Nine complaint and order to show cause seeking custody of the infant.
On November 27, 2006, a Family Part judge (not the trial judge) conducted a fact-finding hearing at which he determined that Floyd had not abused or neglected Evan, but was unable to care for the child due to lack of housing and employment, and that Olivia was similarly incapable because she had previously been committed to a psychiatric hospital, in Maryland, following an assault on Floyd. Initially, she was deemed not competent to stand trial, but when competency was restored, she entered a plea of not criminally responsible by reason of insanity. Md. Code Ann., Pleas § 4-242(a) (2011).
The Family Part further ordered that the matter would proceed under a Title Thirty proceeding but that Evan could be returned to Floyd "upon determination by the Division that [Floyd] has suitable housing and employment." Because no relative resources had been identified at that time, Evan was placed in foster care.
At a compliance review proceeding in March 2007, the court ordered that Floyd's then two male roommates be contacted to ascertain whether they were willing to have the child placed in their home. When it was determined that neither roommate was prepared to comply with the assessment process, the Division referred Floyd to Tri-Cities Peoples Corporation (Tri-Cities) for assistance in locating suitable housing. Meanwhile, the Division began an assessment of Olivia's maternal aunt and her husband as possible relative resources. However, both were ruled out in July 2007 due to the uncle's prior criminal history.
Another compliance review proceeding was conducted on July 19, 2007, at which the court ordered the Division to assist Floyd "with securing information regarding obtaining a green card." Two months later, a different Family Part judge more emphatically ordered the Division "to assist [Floyd] in obtaining his green card." On September 10, 2007, a permanency order was entered, which indicated that the Division's permanency plan to return Evan to Floyd was "appropriate and acceptable." The order contemplated implementation of the permanency plan by March 5, 2008.
In March 6, June 12, and July 23, 2008 orders, the court continued all previous orders, but did not implement the permanency plan. On September 10, 2008, a third Family Part judge (the eventual trial judge) entered a permanency order that provided:
It is not and will not be safe to return the child[ren] home in the foreseeable future because mother is currently in a psychiatric institution. Father has not addressed the situation that led to the removal, including stable housing, stable employment, correct his immigration status, and comply with Division services.
After finding the Division's new permanency plan -- termination of Floyd's and Olivia's parental rights -- was "appropriate and acceptable," the judge ordered the Division to "file to terminate parental rights . . . no later than October 23, 2008."
While these court events were occurring, neither defendant's situation had changed. Although Floyd had relocated to a different apartment unit, it was determined to be ill-suited for Evan because it lacked a kitchen.*fn4 Olivia remained in Maryland, in part because she was "not clinically ready" to be discharged, and in part due to difficulty in finding alternative housing.
Meanwhile, Evan was placed in his current foster home in January 2008.*fn5 In a letter dated July 17, 2008, the foster mother, Ms. Thomas (a pseudonym), expressed a desire to permanently care for Evan, a willingness to provide him with continuing cultural support services, including sending him to a school with many Nigerian teachers, and taking him to a Nigerian doctor. She was also open to facilitating visits with Floyd, and, in fact, saw the son's relationship with his father as important to his development. During a visit on December 12, 2008, a ...