On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-145-08.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Sapp-Peterson and Fasciale.
The opinion of the court was delivered by SAPP-PETERSON, J.A.D.
Defendant, I.S., appeals from two orders issued by the Family Part judge. The first order, issued January 18, 2008, found that neither I.S. nor E.S., the formerly-married biological parents of twin girls, N.S. and S.S. born in 1997, had the ability at that time to care for or meet the needs of their daughters. The order provided further that the "best interests" of the children necessitated their continued placement in the custody, care, and supervision of the Division of Youth and Family Services (Division). The order also included a provision directing the girls' continued placement in a residential facility. The second order, issued June 24, 2010, awarded custody of S.S. to E.S. as a result of the Family Part judge's conclusion that it would not be safe to return S.S. to I.S. and that it was in S.S.'s best interest to remain in the custody of E.S.
We affirm both orders. We hold that a Family Part judge, conducting an abuse or neglect fact-finding hearing, may, without a finding of abuse or neglect, enter an order continuing the Division's care, supervision, and custody of a child, based upon its determination that the court's continued assistance is required pursuant to Tile 9, N.J.S.A. 9:6-8.21 to -8.73, or based upon a "best interests" analysis under Tile 30, N.J.S.A. 30:4C-11 to -14. We additionally hold that as long as appropriate procedural due process is satisfied and the requisite evidentiary standards and burdens of proof attendant to each statutory scheme are satisfied, hybrid proceedings, such as occurred here, will not be set aside.
Following their divorce, which was contentious, I.S. and E.S. continued to appear before the Family Part to resolve disputes primarily related to custody and parenting. The Division was familiar with the family through numerous referrals concerning the welfare of the twins. Upon investigation, the allegations were found to be unsubstantiated. Both girls were diagnosed with Pervasive Developmental Disorder (PDD), Obsessive Compulsive Disorder (OCD), Anxiety and possibly Bipolar Disorder. They were being treated with a number of medications, which led defendant to suspect that the girls had become over-medicated. Additionally, both girls were placed, albeit separately, in special education classes, and individualized education plans were developed for them. School officials frequently contacted defendant regarding the twins' behavioral problems. Defendant, on her own initiative, attempted to secure assistance to address their behavioral issues, primarily working with the Division of Developmental Disabilities (DDD). She was not, however, successful in admitting the girls to any program.
On September 7, 2007, the in-home therapist reported to the Division that I.S. told her that N.S. had pulled out a knife and was walking around the house wielding it. I.S. also told the therapist that she had become overwhelmed by the girls' destructive behavior toward each other and toward their grandparents.
Several days later, the Division received another referral that the girls were wandering about the neighborhood unsupervised. On September 16, the Division received a referral from staff at Virtua Hospital that I.S. was there with the girls seeking their placement. A Division worker responded to the hospital and interviewed defendant, who indicated that DDD advised her to take the girls to the emergency room if she could not manage them and the girls would then be placed.
As a result of the Division's investigation, it filed a complaint alleging abuse and neglect and seeking custody, care, and supervision of the children under Title 9 and Title 30. An Order to Show Cause (OTSC) hearing was conducted by the court on September 24. During the hearing, I.S., through her attorney, informed the court of her desire to have her daughters placed in a residential facility that could help them. She did not want them in a regular foster home, nor did she want the children separated. When the court advised that it could not make a finding of abuse or neglect because there had been no such allegations, the court inquired whether defendant was consenting to the Division's care, custody, and supervision of the children. The Division's attorney interjected that the complaint had also been brought under Title 30:
And part of Title 30[,] one of the things is where a parent is either unwilling and also unable to provide the necessary care, maintenance, health and education, supervision of a minor child. And, I think, that's what the allegation, essentially --as I understand the caseworker's testimony, that due to the children's extensive destructive behavior and the fact that mom might be overwhelmed with their care that, at least, at some point at this time, she's unable to provide for their proper protection and maintenance. That's not Title 9, that's not neglect and abuse. But it does allow and give the [c]court the authority and jurisdiction to be able to place the children in the custody of the Division.
In response to the court's inquiry, defendant's attorney represented:
My client, simply, wants help for her children. To the extent that the State would come in and expedite those things that are necessary, she would have the [c]court order Title 30 in on her behalf. But, to the extent that they will continue even past or should it develop that [DDD] actually goes ahead and does what's necessary, we would ask that DYFS, by order, step away and allow her -- because she has all this time done everything, you know, in the way of petitioning and applying, and what have you, to have her children placed. She wishes to continue on her own, except that it's moving so slowly. And, in fact, there is an appeal because . . . [the] A[ppellate] D[ivision] has actually declined.
So, hopefully, DYFS can step in; do what's necessary; and step away.
Later, defendant was given an opportunity to address the court and she explained in detail her frustration with the delay on the part of DDD in providing the needed services for her daughters. She told the court that she did not want her children taken away from her but instead wanted services for her children, the same kinds of services she, as a nurse, had observed other children receiving:
The thing is I asked for the services and the deal is you don't take kids away -- the families who have sick children, they're getting services. They're getting a house, they're getting nurses coming into the house, they're getting therapy, multiple therapy -- it didn't happen to me. My kids were taken away.
I used to work with the kids, parents working, they have a nurse 24 hours a day in their house provided by DYFS. Okay. Bayada nurses, they have therapy, they have respite care. They have all kinds of services. They just don't go -- they are autistic kids to explain why my kids -- they don't just take kids away. They place the help. They help them, so they place the person. And this is what I was asking about.
Defendant's attorney requested a short return date, with the Division being directed to explore residential placement "with an agreement in place that would allow [defendant] to be helped through some facility" and also with the understanding that there would be "a limited period in which [the Division] remained in her life."
The court entered its findings, under Title 30, that defendant was unable to keep the twins safe from each other and others safe from them, and ordered that the custody, care, and supervision of the twins be placed with the Division. The court instructed the Division to seek a residential treatment program as quickly as possible, and because defendant consented to a psychological evaluation, the order included a provision for defendant's psychological evaluation.
When the matter was before the court the following month on October 29, the Division reported to the court that the twins had been accepted to the Holley House Center (Holley House), an eighteen to twenty-four-month residential treatment center. Defendant's attorney confirmed her client's approval of the placement. E.S. appeared at this hearing and, through counsel, requested that he be awarded custody of the children upon their discharge from the residential facility. The court indicated that it was not making any custody determination until the children completed their treatment in the residential facility. The court also learned that I.S. had undergone a psychological evaluation. Although the results were not available for the hearing, a report issued thereafter was essentially unremarkable except for test results of I.S's stress level, which reportedly was "off the charts." The twins were placed in Holley House on November 1, 2007. S.S. remained at the facility until early 2009 and N.S. remained until later that year.
The court conducted a fact-finding hearing on January 11, 2008, and rendered an oral decision on January 17, finding that "under Title 30 neither parent has the ability at this time to care for or meet the needs of both [of] these twins." The court expressly found that the evidence was insufficient to establish that either parent had abused or neglected the girls. The court continued the custody, care, and supervision of the children with the Division.
In September 2008, the Division presented its first Title 30 permanency plan to the court. The plan recommended that S.S. be placed with E.S. and individual stabilization of N.S. upon completion of a residential program. The court accepted the permanency plan finding:
[O]n the basis of the information that I have today[,] I am satisfied that the permanent plan for both girls, that being with [N.S.,] which is individual stabilization upon completion of a residential program[,] is appropriate and acceptable[,] and with [S.S.,] the reunification with [E.S.], again upon ...