On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-186-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 17, 2012
Before Judges Parrillo and Grall.
A.M. appeals from an order of the Family Part finding that she abused and neglected her three-year-old son, D.M., and from a later order of March 29, 2011, dismissing the Title 9 litigation, awarding custody to the child's maternal relatives, and limiting A.M.'s visitation with D.M. We affirm the abuse and neglect adjudication and remand for a dispositional hearing.
By way of background, A.M. is the biological mother of D.M., born February 25, 2005.*fn1 Three years later, on February 28, 2008, the Division of Youth and Family Services (Division) effected an emergency removal of D.M., N.J.S.A. 9:6-8.29 to -8.30, and placed him in the care of his maternal great-aunt and uncle. This action followed the Division's investigation of a referral that same day from Jackson Township Police, who initially reported that A.M. and her father - D.M.'s maternal grandfather - had been in a domestic dispute, and under the influence of narcotics and alcohol; that A.M. was then arrested for possession of drug paraphernalia; and that a "no contact" order was made a condition of her bail. The Division's subsequent investigation substantiated neglect based in part on drugs and drug paraphernalia found in the home within reach of the child and on the overall unsanitary condition of the residence. Specifically, when the Division caseworker arrived, he found a clearly ill maternal grandmother living in a very cold home. The boiler was broken and the home was being heated with the stove and several small, inadequate space heaters. The residence was in deplorable condition with cigarette butts strewn about, old food and dirty dishes in the child's room and the kitchen, and clean and dirty laundry tossed throughout. When the caseworker later observed A.M. in her cell at the police station, she appeared to be under the influence, with bloodshot eyes and smelling of alcohol, slurring her words and frothing at the mouth. The maternal grandfather also appeared to be under the influence because he too had bloodshot eyes and reeked of a strong odor of alcohol.
When the matter returned to court on April 8, 2008, the Division reported that A.M. was not complying with random urine screens. Later, when the matter was again heard on May 19, 2008, the Division reported that D.M. had "bottle-rot," a condition affecting the teeth and gums requiring at least five dental appointments to remedy. D.M. was not potty-trained and was in need of a Child Study Team evaluation to determine whether there were any developmental delays.
A fact-finding hearing into the Division's allegations of abuse and neglect was held on June 20, 2008. At the close of evidence, the Family Part judge found by a "preponderance of the credible evidence" that A.M. neglected and abused D.M. as a result of the events that occurred on February 28, 2008. Subsequent court orders detailed the services A.M. was required to avail herself of. On February 10, 2009, an order was entered providing for a permanency plan of reunification, wherein D.M. was returned to the shared legal and physical custody of A.M. and the maternal grandfather, who was to supervise A.M.'s contact with her son. A.M. was ordered to continue to engage in substance abuse treatment and counseling. All parties consented to the terms of this order.
Subsequent case management orders through March 19, 2010, allowed for physical custody of D.M. to remain with A.M. and with legal custody shared between A.M. and H.E. In fact, the orders dated February 18, 2010, March 12, 2010 and March 19, 2010 indicated physical custody was with A.M. alone, and consequently A.M. no longer needed to have her contact with D.M. supervised.
Thereafter, however, the matter returned to the court on April 23, 2010 on the Division's emergent application, occasioned by an incident wherein A.M. had stabbed herself in the leg and attempted to obtain multiple prescriptions for pain killers. Although A.M. was not present because she was hospitalized, her counsel did not offer any proof contrary to the Division's representations. In fact, counsel advised that if the court were not to return the child to A.M., "we should be amenable to the child being placed with [the] maternal great aunt." Accordingly, at the suggestion of the Law Guardian, the court placed D.M. in the legal and physical custody of his prior caregiver, his maternal great aunt. A subsequent order of June 10, 2010, consented to by all the parties, provided for visitation for both A.M. and H.E. and added the maternal great uncle and paternal grandfather as D.M.'s legal custodians. Consent orders of September 16, 2010 and February 4, 2011, provided continued services for A.M., directed A.M. to confirm her visitation in advance and be on time, addressed supervised visitation for H.E., and continued legal custody of D.M. with the paternal grandfather and legal and physical custody with the maternal great aunt and uncle.
On March 29, 2011, the court heard an application by the Division to dismiss the case providing that D.M. would remain in the sole legal and residential custody of his maternal great aunt and uncle with whom he had been residing, and, on the other hand, a motion by counsel for A.M., requesting D.M. be placed in the joint custody of A.M. and the maternal great aunt and uncle, and for a hearing regarding same. The Law Guardian also requested that the court conduct a hearing but did not support a shared custodial arrangement involving either A.M. or the paternal grandfather.
After hearing argument from counsel, including the Division's update regarding A.M.'s non-compliance with court-ordered services, continued drug use, and lack of consistent visitation, the court held that A.M. did not establish the threshold showing of prima facie evidence of changed circumstances entitling her to a hearing. The court advised that no testimony would be taken, that A.M.'s motion would be denied without prejudice, and that she could apply for custody based on changed circumstances under a separate docket number. The court ordered that legal and physical custody of D.M. remain with the maternal relatives and then dismissed the litigation without a hearing, concluding:
The defendant [A.M.] has . . . brought a motion essentially to shift, not residential custody, but legal custody so that it would be a joint status between the [maternal relatives] and his client, [A.M.]. Under the Court Rule and case law, I think the first thing before we get into a plenary hearing on that is that there has to be a prima facie case shown by the petitioner for a change in that and it ...