On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-42-09K.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Roe.
Defendant, R.R., appeals from a denial by the Family Part of a motion for reconsideration of an order denying a motion to vacate a permanency order and to commence fact-finding after a second emergency removal of R.R.'s minor child, S.R., by the Division of Youth and Family Services (DYFS). We reverse the permanency order for a best interests determination and we remand for a fact-finding hearing regarding the second removal of the children in March 2010.
R.R. is the biological mother of three children, S.R., age eight; B.G., age three, and A.G., age two. W.G. is the biological father of B.G. and A.G. N.E. is the biological father of S.R., residing in an unknown location in Guatemala. N.E. is not part of this appeal.
DYFS filed for an emergency removal (DODD) pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30, and obtained custody, care and supervision of S.R. and B.G. on September 30, 2008. On January 26, 2009, R.R. admitted to abuse and neglect by inflicting corporal punishment on S.R. On February 11, 2009, DYFS obtained legal custody and supervision of A.G. when he was born. A.G. remained in his mother's physical custody after he was born. B.G. was reunited with R.R. in February 2009. S.R. was reunited with R.R. in June 2009. By September 2009, R.R. had regained legal and physical custody of all three children, though the Title 9 litigation remained open with DYFS supervising the family.
A second DODD hearing occurred when S.R. reported an injury and alleged abuse by her mother to a school nurse. S.R. was removed from R.R.'s custody on March 4, 2010. B.G. and A.G. were removed on March 8, 2010, when DYFS sought custody, care and supervision of all three children. The two younger children were removed on allegations of abuse and neglect based on reports that the home was infested with bedbugs and roaches. DYFS sought and received temporary legal custody of all three children on March 8, 2010. At that hearing, the court took testimony from various witnesses and defendant testified on her own behalf. Two orders resulted from the second hearing. One was a supplemental order sanctioning the emergency removal of S.R. by DYFS. The other was an order to show cause permitting the DYFS removal of B.G. and A.G. At the end of the hearing, the trial judge stated, "[t]he mother is still entitled to a fact-finding hearing if she demands it on this court's order today." Fact-finding never occurred.
On June 16, 2010, the matter was transferred to a different trial judge, who approved the permanency plan from DYFS for the termination of parental rights regarding S.R. The biological father, W.G. was granted legal and residential custody of B.G. and A.G. On June 25, 2010, the court denied R.R.'s motion for reconsideration of the order of permanency regarding S.R. and denied R.R.'s request for a fact-finding hearing. On August 11, 2010, the Title 9 complaint was dismissed as to S.R., over the objections of R.R. The court concluded the dismissal was justified based on the filing of a Title 30 guardianship proceeding.
On appeal, R.R. contends she was denied due process when DYFS failed to establish that the second, temporary removal of her children from her custody was necessary to avoid imminent risk to life, safety or health of the children pursuant to N.J.S.A. 9:6-8.31(b); and, the trial court abused its discretion by not conducting fact-finding after the second, temporary removal of S.R. and her siblings in March 2010. We reject the appellant's argument that she was denied due process because DYFS failed to establish that the removal of the children was necessary to avoid imminent risk of harm but conclude that the court erred by failing to conduct a fact-finding after the second removal of S.R. and her siblings.
A trial court's findings of fact "are binding on appeal when supported by adequate, substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This is especially true in family courts, which have "special jurisdiction and expertise in family matters . . . ." Id. at 413. "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless it is 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.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
N.J.S.A. 9:6-8.28(a) provides that the family court: may enter an order, whereby the safety of the child shall be of paramount concern, directing the temporary removal of a child from the place where [the child] is residing before the preliminary hearing under this act, if (1) the parent or other person legally responsible for the child's care informed of an intent to apply for any order under this section; and (2) the child appears so to suffer from abuse or neglect of [the child's] parent[s] or guardian that [the child's] immediate removal ...