On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0137-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2011 -
Before Judges Waugh and St. John.
Defendant N.H. (Nora) appeals from the June 28, 2010 Family Part order terminating Title 9 litigation, N.J.S.A. 9:6-8.21 to -8.73, initiated by the Division of Youth and Family Services (DYFS) and granting Nora's husband, defendant B.H. (Bob), continued custody of the couple's two minor children, A.H. (Arnie), born October 31, 2005, and A.A.H. (Andy), born December 24, 2006.*fn1
This appeal requires us to consider whether Nora's stipulation entered at a fact-finding hearing, supported the trial court's finding of abuse and/or neglect and constituted a knowing and voluntary waiver of her right to trial. Additionally, we must consider whether the order granting Bob legal and physical custody of Arnie and Andy was supported by the credible evidence in the record. Following our review, we conclude that Nora was not provided with the necessary information to knowingly waive her rights. Moreover, the stipulated facts do not support a finding that she subjected Arnie and Andy to abuse or neglect. Consequently, the order finding abuse and neglect must be reversed. We do conclude, however, that the custody findings by the trial court are supported by the record and that order is affirmed.
We discern the procedural history and the following facts from the record on appeal.
In 1995, Nora, then age sixteen, met and married her first husband. Nora and her first husband divorced in 2001 after she converted from Catholicism to Islam. Nora has two daughters from that marriage who reside with their father in Mexico. In 2001, Nora consented to her first husband's sole custody and, as of October 2009, she had not seen either of her daughters since 2004. In 2002, Nora "married" her second husband in California; that relationship lasted six months.*fn2
In October 2004, Nora and Bob met on an Islamic marriage website. Bob is a native of Tunisia who has been living in the United States since 1999. The two were "religiously married" within days of meeting each other, then legally married in February 2005. On October 31, 2007, when the family was first referred to DYFS, Arnie and Andy were two-years and ten-months, respectively. At that time, Andy suffered a bloody nose and a hematoma as a result of a physical altercation between Nora and Bob. Nora told DYFS that Bob inadvertently kicked Andy while he was attempting to kick Nora. Bob was arrested and Nora entered into a plan for the children's safety with DYFS. Nora had obtained a domestic violence restraining order and, in accordance with the plan, agreed not to have further contact with Bob.
In November 2007, DYFS filed a verified complaint seeking custody of both children because Nora voluntarily dismissed the restraining order against Bob, and attended an immigration hearing with him and the children. Nora also permitted Bob to return home with her and the children. The Family Part judge denied the request for custody, but granted DYFS care and supervision of both children. Nora and Bob were ordered not to have contact with each other; Bob was ordered not to have contact with his children and not to live with Nora; and Nora was ordered not to allow Bob to have any contact with the children.
In November 2007, DYFS moved for reconsideration, claiming Nora did not obey the safety plan. The judge denied the motion on December 19, 2007.
In January 2008, Nora again sought a domestic violence restraining order, asserting Bob threatened her and followed her in violation of the November 2007 order incorporating the safety plan. In February 2008, Nora left New Jersey and took the children to Pakistan without court, DYFS, or Bob's knowledge or consent. Nora claimed she left this country in order to protect herself and the children from Bob, which assertion the judge subsequently found to not be credible.
On February 25, 2008, Bob filed an order to show cause for emergent relief including the return of the children under docket FD-09-814-08. The judge ordered DYFS to determine whether Nora was in Pakistan and scheduled a hearing for March 27, 2008. At the hearing, although DYFS had not confirmed Nora's location, Bob produced a letter from the Department of State stating the Department believed Nora was in Pakistan and "[i]t appear[ed] that she ha[d] married a man."*fn3 The judge entered an emergent order giving Bob legal and physical custody of the children under dockets FN-09-0175-08 and FD-09-0814-08 allowing him to retrieve and return them to the United States. On May 22, 2008, DYFS was advised that Nora and the children were residing in Tunisia. On May 28, 2008, docket FN-09-175-08 was dismissed because Nora fled the country with the children. Bob was advised by the judge of his right to appeal his substantiation administratively, in order to have his name removed from the central registry. Temporary legal and physical custody of the children was continued with Bob under the FD docket.
On June 7, 2008, Bob informed the court that the children were returned to him after Nora was arrested on June 5, 2008, upon arriving at John F. Kennedy Airport in New York, which was later confirmed by DYFS. Nora pled guilty to fourth-degree criminal contempt for removing the children from the jurisdiction of the court; Nora spent approximately one month in jail and was released on July 18, 2008. See N.J.S.A. 2C:29-9a.
On July 31, 2008, Nora reported to DYFS that Bob had committed acts of domestic violence, claiming he called her, used profanity, and told her to come and take care of her children. Nora explained she went to Bob's apartment to care for the children and Bob attacked her. Nora was injured and Andy was struck in the temple by an object thrown by Bob. That day, DYFS effectuated an emergency removal of the children pursuant to N.J.S.A. 9:6-8.29. Additionally, Bob was arrested and then detained by U.S. Immigration and Customs Enforcement (ICE) until July 2009.
Bob disputed Nora's account of the July 31 altercation. He claimed that after she was released from prison, Nora harassed him to see the children. He claims that on July 31, he allowed her to come to his apartment to see the children. He denied injuring Nora or Andy.
On August 4, 2008, DYFS filed a verified complaint for care, custody, and supervision of the children pursuant to N.J.S.A. 9:6-8.31. The judge found that removal was appropriate and issued an order to show cause granting DYFS temporary legal and physical custody of the children. The judge also found it would be inappropriate to return the children to either Nora or Bob because Nora had left the country with the children "while they were under the care, and supervision of [DYFS] and the Court, and . . . [Bob] [was] incarcerated" on the ICE detainer. On the return date, the court continued custody with DYFS, permitted visitation by both parents, and ordered fact-finding. That same day, at the order to show cause hearing, Bob informed the court that he was being held on an immigration detainer as a result of Nora having contacted ICE before she left for Pakistan. Bob believed Nora did this as a part of her plan to have him deported.
Bob was evaluated by Dr. Robert Kanen, who found Bob showed "no evidence of mental illness," and recommended that Bob "have visits with his children with a view toward reunification." Nora was evaluated by Dr. Antonio W. Burr, who recommended that Nora "engage in psychological treatment for at least [six] months," otherwise there might be "negative effects on her capacity to care for her children." However, Burr also noted that if she continued to improve through treatment, he had "no objection to her having increased contact with the children, and ultimately obtain their custody."
On December 11, 2008, at a scheduled fact-finding hearing, Nora sought to waive the fact-finding hearing and stipulate that she placed her children at risk of harm when she took them to Pakistan. The court rejected the stipulation because Nora stated that she did not agree that she "placed [her] children in conflict." The court rescheduled the fact-finding hearing and requested Bob's attendance.
On February 10, 2009, Dr. Alvaro M. Gutierrez evaluated Nora. He recommended psychotherapy, parenting skills classes, and continuation of support group for battered women. Aware of her trip to Pakistan, he stated, "[Nora] does not seem to pose a threat to the well being of her children. [DYFS] should consider returning the children to her care with continuing monitoring of the family."
On February 27, 2009, a fact-finding hearing was scheduled. In lieu of fact-finding, Nora purportedly waived her right to a hearing and stipulated to abuse/neglect. After being sworn, Nora was questioned by her attorney and answered as follows:
Q. [Nora], you know that the - - today - -today's hearing was scheduled as a fact-finding hearing?
Q. And you understand that that is the opportunity for [DYFS] to present its evidence in support of the - - any of ...