December 16, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
N.H., DEFENDANT-APPELLANT, AND B.H., DEFENDANT-RESPONDENT. IN THE MATTER OF A.H. AND A.A.H., MINORS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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?
A. Yes, sir.
Q. And you understand that that is the opportunity for [DYFS] to present its evidence in support of the - - any of the allegations in the complaint?
A. Yes, sir.
Q. And that you also have the right to stipulate, or agree that [DYFS] is appropriately involved in this case?
A. Yes, sir.
Q. Do you understand that?
A. Yes, sir.
Q. And you understand that if we were to go to [a] fact-finding hearing that [DYFS] would have an obligation to present witnesses to support the allegations in its complaint?
A. Yes, sir.
Q. And that I, as your attorney, would have the opportunity to cross-examine or question those witnesses, and also present witnesses on your behalf, do you understand that?
A. Yes, sir.
Q. And you understand that if you are prepared to stipulate that you are giving up the right to a full fact-finding hearing?
A. Yes, sir.
Q. And are you indicating to the Court today that you are prepared to stipulate to this matter?
A. Yes, sir.
Q. Now, one of the allegations in the complaint is that you fail - - or sorry - -that you allowed contact between yourself, and [Bob], and the children in violation of a previous court order?
A. Yes, sir.
Q. Do you have any questions of myself, or the Court at this point?
A. After - - after we can - - Q. But you don't have any questions with regard to the - - A. No.
Q. - - stipulation?
A. No for the stipulation. I'm fine. . . .
Q. And you are prepared to stipulate that, in fact, that contact allowed for the children to be placed at risk of harm?
A. Yes, sir.
In the written stipulation order, which she and her attorney signed, Nora agreed that "these acts . . . constitute abuse or neglect pursuant to law." Neither the questions posed by Nora's attorney nor the judge with regard to her verbal stipulation contained the words "abuse" or "neglect." Additionally, there was no mention during the hearing, or in the stipulation order, of the Central Registry of Child Abusers.
The initial question asked of Nora, namely that she "had the right to stipulate, or agree that [DYFS] is appropriately involved in the case," demonstrates the confused nature of the colloquy between Nora and her attorney. At no time did Nora's attorney explain the purpose of the stipulation, an admission of abuse/neglect by her, its collateral consequences to her, or the potential legal consequences with regard to custody of her children. She was not even told that she would have the right to testify to refute the allegations.
DYFS subsequently provided Nora with services, including mental health evaluation and therapy, parenting skills instruction, and domestic violence counseling. Bob was provided with parenting and domestic violence classes after he was released from ICE detention.
On September 24, 2009, a permanency hearing was held. DYFS caseworker, Grace Amaechi, testified that Nora completed all of the services DYFS recommended and attended the visits with her children supervised by DYFS. However, DYFS's position was that, as long as there were no concerns for the children's safety when in Bob's custody, the children should be reunited with Bob. Believing the issue was one of custody, DYFS based its decision on the fact that Bob had custody of the children when they were removed on July 31, 2008. However, the judge stated DYFS should make its decision on what was in the best interest of the children.
The judge then discussed the reports of Drs. Kanen and Burr. Kanen had evaluated Bob and found that Bob "show[ed] no evidence of significant parenting deficits[,] . . . [and] appear[ed] to be dedicated to caring for his children." After reading Burr's report, the judge stated she was concerned that, without intervention, Nora might "regard it as her duty to reunite with her husband[, not Bob] in Tunisia." It should be noted that at the time of the hearing, Bob was employed and living in an apartment deemed "appropriate for the children." The same was true of Nora's apartment.
The court then entered an order preliminarily approving the permanency plan, but stated that the hearing would continue to allow additional evidence regarding the children's best interest.
Prior to the dispositional hearing, Bob and Nora were evaluated separately by psychiatrist Dr. Larry Dumont, who also conducted bonding evaluations between each parent and the children. Dumont stated that based on her past relationships and marriages, Nora displayed "impulsivity and poor judgment" which could affect her ability to parent. Dumont did note, however, that the children were bonded with Nora. After evaluating Bob, Dumont found a strong bond between Bob and the children, he recommended Bob be given full custody, and that Bob also continue counseling and parenting skills classes.
Dr. Burr reevaluated Nora and Bob and concluded that Bob was able to provide "a safe and appropriate home" for the children and should be given custody. He also concluded that Nora was not "sufficiently psychologically stable to provide the children with a safe and dependable home." He also believed she might interfere with the children's relationship with Bob in the event she was given custody, but that she should be granted "therapeutically supervised" visits.
At the January 28, 2010 dispositional hearing, Dr. Dumont testified that, based on the individual and bonding evaluations conducted with Bob, he held a "strong opinion" that the children should be returned to Bob. Regarding his evaluation of Nora, Dumont testified that he had "strong reservations" about Nora's ability to care for the children. He felt Nora had difficulty controlling the children during the bonding evaluation. Dumont also found Nora to be impulsive, based on her religious conversion as a young adult, and the fact that she married Bob only days after meeting him in person.
Dumont did not describe Bob's decision to marry Nora shortly after meeting her as impulsive, instead he believed Bob's explanation that "for a man his age and from his country and of his faith it was just time. . . . [According to Bob,] he [had] sewn [his] wild oats and it was time to settle down and have a family."
On January 28, 2010, Nora told the court she wished to testify, a request she withdrew on January 29, the second day of the hearing. Nora asked for unsupervised visitation in the event Bob was awarded full custody.
At the hearing, the judge entered an order approving a permanency plan in which the children were to be reunited with Bob. The judge determined that the plan was in the best interest of the children. The judge provided that the final restraining order, entered by another judge in February 2009, would remain in effect. The court also entered a no contact order between Nora and Bob, consistent with the February 2009 order, to remain in effect until further order of the court. DYFS arranged therapeutic visits between Nora and the children until further order of the court. Any issue of legal status, custody, or parenting time, was ordered to be addressed under docket FM-09-2422-09, and it was ordered that Nora and the children's passports were to be turned over to the court. In accordance with the plan, the children were reunited with Bob on February 17, 2010.
On May 11, 2010, a compliance review was held. There was discussion regarding the conduct of Nora's visits with the children, and the court ordered DYFS to recommend an appropriate visitation plan going forward.
On June 28, 2010, a DYFS caseworker testified that Dumont had reviewed recent records and observations of the visitations between Nora and her children, and that Dumont recommended continued supervised visits, but that they did not have to be therapeutic visits. Nora welcomed the new visitation plan, even though she previously requested unsupervised visitation. The court then ordered the litigation to be terminated, the children to remain in the legal and physical custody of Bob, and granted Nora weekly supervised visitation. The court also ordered that any issue of legal status, custody, or parenting time, was ordered to be addressed under docket FM-09-2422-09.
On July 27, 2010, Nora filed a notice of appeal. Nora subsequently filed an amended notice of appeal on August 5, 2010, and an amended second notice of appeal on August 6, 2010.
Nora's central argument on appeal is that the February 27, 2009 stipulation she entered into with DYFS did not conform to the requirements of a Title 9 stipulation and that she was unaware that she was stipulating to abuse/neglect.
Abuse or neglect proceedings are brought under Title 9, N.J.S.A. 9:6-8.21 to -8.73. The definition of an abused or neglected child is provided in N.J.S.A. 9:6-8.21:
c. "Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .
Stipulations of fact may substitute for the introduction of reliable evidence on a point, if the knowing and voluntary nature of the stipulation is established. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002); see also N.J.S.A. 9:6-8.46(b). Nora emphasizes that she "was unaware that she was stipulating to abuse/neglect." She submits that by acknowledging in her testimony she allowed contact between herself, Bob, and the children in violation of a previous court order, and that contact allowed for the children to be placed at risk of harm, she did not stipulate to abuse and neglect. Nora contends her stipulation relating to placing the children at risk of harm was wrongly construed by the court as an admission of abuse and neglect. See Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 589 (App. Div. 2011).
DYFS argues that at the time of the stipulation, the judge followed the procedures as set forth in J.Y. We disagree. As we stated:
The court's role in the fact-finding process has been carefully prescribed by the Legislature in a series of specific statutory provisions. The consistent legislative concern running through the entire statutory scheme is "the safety of children" as a "paramount concern."
N.J.S.A. 9:6-8.49 mandates scheduling priority in cases "involving imminent or actual physical harm, or in which a child has been removed from home before a final order of disposition. Any adjournment granted in the course of such a proceeding should be for as short a time as possible."
The judge's determination that a child has been abused or neglected must be based on a preponderance of the evidence standard and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). [J.Y., supra, 325 N.J. Super. at 262.]
The factual context in this matter called for a more expansive colloquy among the parties before Nora's abuse/neglect stipulation was offered by her or accepted by the court.
Although Nora has the right to offer a stipulation, certain procedural and substantive safeguards must be followed.
Furthermore, like waivers in other legal settings, the judge hearing an abuse and neglect case, before accepting a defendant's stipulation in lieu of a fact-finding hearing, must first determine that the waiver involved "the intentional relinquishment of a known right . . . evidence[d] by a clear, unequivocal and decisive act from which an intention to relinquish the right can be based." Country Chevrolet v. N. Brunswick Planning Bd., 190 N.J. Super. 376, 380 (App. Div. 1983)); see also Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 291 (1988); Playmates Toys, Inc., v. Dir. of the Div. of Taxation, 316 N.J. Super. 509, 512 (App. Div. 1998), aff'd, 162 N.J. 186 (1999). This determination must be made by the judge on the record before a party can be deemed bound by the stipulation. Schere v. Twp. of Freehold, 150 N.J. Super. 404, 407-408 (App. Div. 1977). The judge must also directly apprise defendants of their rights under Title 9 to a fact-finding hearing where the burden of proof will be on DYFS to establish the elements of abuse and neglect by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b). [J.Y., supra, 352 N.J. Super. at 266.]
Nora was never advised by her attorney or the judge that the burden of proof was on DYFS to prove the elements of her abuse/neglect of her children by a preponderance of the evidence. Additionally, the allegations were that Bob, not Nora, had physically injured Andy. Nora's purported abuse/neglect of the children was putting herself and the children, in physical proximity with Bob, in violation of a court order. Historically such contact had resulted in physical altercations between the parents and injury to Andy. It was incumbent upon the court to explain to Nora that the stipulated abuse/neglect was not Bob's alleged injury to Andy, but her coming to the house in the presence of Bob and the children.
There are "'numerous collateral consequences [that] flow from such a finding [of abuse or neglect].'" M.D., supra, 417 N.J. Super. at 618 (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 619 (App. Div. 2010)). As noted, a finding of abuse and neglect is forwarded by DYFS to a Central Registry maintained by the Department of Children and Families (DCF). Hence, the trial judge should advise the defendant that due to "a finding of abuse and/or neglect, the defendant's name shall remain on the Central Registry of confirmed perpetrators, and that defendant is waiving any ability, either through the administrative process or through the proceedings in court, to challenge the inclusion of her name on the Central Registry." Ibid.
Our review of the record convinces us that the knowing and voluntary nature of Nora's stipulation was not established and therefore we vacate the finding of abuse/neglect. We remand the issue of whether there was abuse or neglect to the Family Part for further proceedings consistent with this opinion in the event DYFS wishes to pursue a finding of abuse or neglect.
Nora also asserts that the judge improperly granted Bob sole physical custody of the children based on gender-biased reports, lack of analysis of Bob's employment, his domestic violence history, and an incorrect application of the holding in N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009).
The scope of our review is limited. The factual findings, which underpin a trial court's judgment, "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the  court's credibility determination[s] and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about witnesses" who testify). The trial court's "feel of the case  can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (internal quotation marks omitted). We also recognize the special expertise of those judges assigned to the Family Part. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made. [N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).]
Nora argues the trial judge did not afford her a dispositional hearing that comports with the requirements of G.M., supra, which stated:
Both the fact-finding hearing and the dispositional hearing are critical stages in Title Nine proceedings. Those hearings must be conducted with scrupulous adherence to procedural safeguards and the trial court's conclusions must be based on material and relevant evidence. The witnesses should be under oath and subject to cross-examination. . . . [T]his critically important part of the business of the Family Part demands meticulous adherence to the rule of law.
Just as important, the trial court must state the grounds for its disposition. [198 N.J. at 401 (internal quotations and citations omitted).]
The facts in G.M. are distinguishable from this matter. In G.M., the children were removed from the custodial mother, with custody being awarded to the father, without a final dispositional hearing, at which time the trial court granted DYFS's request to terminate the litigation.
Unlike G.M., Nora was afforded a dispositional hearing. Our review of the record and the relevant law leads us to conclude that the process complied with applicable law, and the judge provided Nora the procedural and due process requirements set forth above. The trial judge insisted on sworn witnesses, the introduction of documentary evidence, and the testimony of expert witnesses, and her conclusions were based on material and relevant evidence.*fn4
We conclude that the judge's arrangements as to custody and parenting time were appropriate. Although we have vacated the finding of abuse or neglect and remanded it to the Family Part, we see no need to remand the issue of custody or parenting time along with it. The order terminating the FN litigation provided that any further issues with respect to custody or parenting time are to be addressed in the pending divorce case (docket FM-09-2422-09). Either party may make application under that docket for modifications of the existing arrangements. There is nothing in the record to suggest that DYFS needs to be involved in those issues on a continuing basis.
Affirmed in part, reversed and remanded in part.