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New Jersey Division of Youth and v. P.M.J


May 7, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-286-11.

Per curiam.



Submitted April 25, 2012 -

Before Judges J. N. Harris and Koblitz.

This is an appeal from the termination of a Title Nine*fn1 protective services proceeding. Defendant Pamela J.*fn2 appeals the April 29, 2011 order of the Family Part (1) ordering that her five-year-old son Stanley "shall remain in the legal and physical custody of [his father defendant Martin A.] under docket FD-04-2215-08-M" and (2) terminating the litigation.*fn3

Pamela's primary grievance is that the Family Part denied her due process by failing to conduct a proper dispositional hearing required by New Jersey Division of Youth & Family Servs. v. G.M., 198 N.J. 382, 398-400 (2009). We disagree and affirm.


Pamela and Martin are Stanley's parents.*fn4 On April 14, 2010, pursuant to a consent order entered in a separate custody action (FD-04-3315-08), a different judge of the Family Part declared that Pamela and Martin were vested with joint legal custody of Stanley, with Pamela designated as the parent of primary residence.*fn5 The order provided a detailed schedule for Martin's parenting time, including forty-eight hours each weekend.

Eight months later, on November 13, 2010, Pamela was hospitalized from the effects of ingesting illegal drugs. On that date, a Saturday, Stanley was with his father pursuant to the agreed-upon parenting time schedule. Because of Pamela's conduct and her subsequent hospitalization, the New Jersey Division of Youth and Family Services (the Division) received a referral regarding her circumstances. Further investigation revealed that Pamela's children would not be safe in her exclusive care unless supervised by another appropriate adult.

In subsequent conversations with Martin, a Division worker was advised that because of Pamela's "relapse of drug use," Martin would seek emergency relief from the Family Part for custody of Stanley. Stanley was not returned to Pamela's unsupervised physical custody.

On November 29, 2010, the Division filed this Title Nine action seeking custody of Pamela's other child, and care and supervision of Stanley. The first in-court proceeding occurred on December 1, 2010, after which the Family Part issued an order containing, in pertinent part, the following handwritten notation:

-- [Pamela] may only have supervised contact with the children. -- She must not be under the influence during her parenting time. -- [Martin] has custody of [Stanley].

The proceeding's transcript reveals the court's unrebutted statement, "[Pamela] was tested today and she was positive for cocaine and for PCP." Furthermore, Pamela answered "[y]es" when the court asked her, "[d]o you consent to giving the Division care and supervision . . . and for [Stanley] to remain with [Martin]?"

A discussion between the court and counsel followed regarding the effect of the separate custody action and Martin's motion for custody. Because the details of the consent order were not fully reviewed at that time, and no one could say with certainty what was the status of the separate custody action, the court granted care and supervision to the Division, with a promise to revisit the Division's involvement at a later date:

THE COURT: I don't have a complete file on this so, I'm willing to address this matter at our next hearing. [COUNSEL FOR THE DIVISION]: Okay.

THE COURT: It's not going to change anything practically in terms of his child, because [Stanley] will continue in his custody and the Division will have care and supervision until we come back.

On December 17, 2010, the court held its next hearing. The court noted, as it did during Pamela's first appearance, that "today she tested positive for cocaine, PCP, and marijuana." Additionally, the court and the parties' attorneys discussed the April 14, 2010 order in FD-04-3315-08 in detail. Ultimately, the court entered an order continuing the Division's care and supervision of Stanley and confirming that "[l]egal and physical custody of . . . [Stanley] shall continue with [Martin]."*fn6

On March 2, 2011, at what was a scheduled pre-trial conference, Pamela admitted*fn7 to recent substance abuse:

[PAMELA'S COUNSEL]: Judge, preliminarily, the Division wanted a urine screen and [Pamela], would you tell the Court what the urine screen would show if . . . [you] had one? [PAMELA]: PCP, marijuana, and crack cocaine. Same thing from last time. [PAMELA'S COUNSEL]: When was the last time you used? [PAMELA]: Like four days ago. [PAMELA'S COUNSEL]: Okay, so it would be in your system? [PAMELA]: It would be in my system but I'm not under the influence right now.

Thereafter, Pamela and her counsel placed a stipulation on the record admitting the neglect of her children on November 13, 2010, by failing to ensure their continued proper supervision. After carefully listening to Pamela's statement, the court stated,

I'm satisfied that the stipulation as set forth on the record has been given freely and voluntarily and that the admissions that have been set forth are sufficient for this Court to find the children to be abused or neglected with the meaning of [N.J.S.A.] 9:6-8.21.

As the hearing wound down, the Division's attorney noted the following: "I believe [Martin] had filed a private custody application under the FD docket, so I don't know if we're eventually going to have to have a G.M. hearing in this case." Pamela's attorney responded as follows:

As to custody, Judge, it's my understanding that when there is a private custody complaint filed when the child and the parents are already in an FN case, it's going to be dismissed. I'll meet you halfway and have it carried, but the child was in the custody, mom was -- for [Stanley] all right . . . .

As to [Stanley], pursuant to the court order that mom is the parent of primary residence. The day this happened no doubt as mom said, dad was effectuating his parenting time, but it's still the Elvis rule, return to sender. If when the Division -- if mom completes the program and the Division believes the child is . . . safe to return to mom, then dad can object and then I think it's appropriate for a G.M. hearing.

Finally, the court weighed in, noting,

[M]y reading of G.M. is that at the point that the Division is ready to step out, okay, the Court has to make a determination whether it's safe to return the child back to the parent that had the child originally.

We're not at that point today. We may be at that point three months from now, okay. I don't know. If your client does not successfully complete a program, or refuses to go into a program, then this -- the Division can say, look, we're done.

And . . . to the contrary if she does complete the program and she does do what she needs to do, then the Court has to make that decision whether it's safe to return that child home. And even if I return the child safely, certainly [Martin] has the right to pursue his application for custody.

The next scheduled court event was a compliance review proceeding conducted on March 28, 2011. Pamela was not present. The focus of discussion was the difficulty of obtaining treatment services for Pamela due to what the Division's attorney described as: "she has already been in three to six inpatient programs and about [twelve] to [thirteen] outpatient programs, and so it's been difficult fo[r] anyone to accept her." Notwithstanding this track record, the Division's caseworker indicated that Pamela had completed a substance abuse assessment but the Division was still unable to place her in a treatment program. A meeting between Pamela and a caseworker was previously scheduled for March 31, 2011, at which time the Division would "try to put her in an outpatient [program], if she'll accept that." The court concluded the proceeding by scheduling another compliance review hearing for April 29, 2011.

At that hearing, after being sworn, Pamela indicated to the court that she would test positive for marijuana and PCP if she were screened at that moment. However, according to her attorney, "[h]er bags are packed still and now we know there's a bed at Turning Point [in Paterson, New Jersey] and as soon as it opens up, she's gone. And that -- I understand that's a [twenty-eight]-day program." Moreover, the attorney argued that it was premature to conduct a G.M. hearing.

The court responded,

No, the G.M. hearing can occur at any [point] in [time]. The G.M. hearing can occur within three months of the filing if I have a parent that's not participating, that's not cooperating, there's no point to . . . continue any further and then the Court has to determine whether it's safe to return that child to the parent from which the child was taken from and . . . today, I can certainly say that in light of your client's admission . . . that she is going to test positive and that she has not completed her program, that it would not be safe to return the child home to her.

After hearing from Martin's and the Division's attorneys, as well as from the Law Guardian, all of whom endorsed a custodial determination in favor of Martin, the court stated,

I don't have to address the custody application. I just have to have a G.M. hearing to determine whether it's safe to return the child home to the mother.

And it appears that this case really commenced in April of 2010. So, it's been a year even though there were two separate cases that were filed.

After being reminded that the Title Nine action had been filed in late November 2010, not in April 2010, the court still miscalculated the duration of the Division's current involvement, stating, "here we are, from November to now, seven months later and it's still not safe to return the child home to her."

The Division's attorney suggested "perhaps we can set this down for a G.M. hearing at the next hearing" because "the [Division] worker said that Turning Point is only a [twenty-eight]-day detox program." The court brushed aside the suggestion, recognizing that Pamela's successful completion of a detoxification program would only be a first step towards sobriety, and a safety analysis under G.M. would still be months in the future.

Finally, after listening to Pamela's and Martin's attorneys spar over the chronology and import of the dueling custody dispute and Title Nine proceeding, the court stated, "this is not a case for a G.M. hearing." Its rationale for that conclusion was Martin's pending motion for a change in custody under FD-04-3315-08, which was filed one day before the care and supervision complaint was filed by the Division. The court also noted that the Division "never had custody of [Stanley]."

Notwithstanding eschewing G.M., the court found "it would not be safe . . . to have the child in the physical and legal custody of [Pamela] since she continues to abuse substances and has not completed a treatment program." Furthermore, "until such time as [Pamela] obtains . . . the treatment that she needs, she will not be fit to care for this child." Accordingly, the court granted Martin custody "under the FD matter." After being assured that the Division "will continue to work with [Pamela] as long as [Pamela] is willing to continue to participate[,]" the court then ruled that the "litigation in the FN matter is terminated." This appeal followed.


We start with familiar principles, recognizing the experience of family court judges in the disposition of family law jurisprudence. This appeal comes to us sheathed in a twofold layer of deference: first, it is draped in the ordinary deference to which any trial court's fact-finding is entitled, Rova Farms Resort, Inc. v. Investors Insurance Company of America, 65 N.J. 474, 484 (1974); and second, it is imbued by the special deference accorded by the Family Part's particularized jurisdiction over domestic relations. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

Thus, we will not undo that court's deliberative and comprehensive approach unless the court's findings were "so wide of the mark" that a mistake must have been made. See N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 118 (2011).

In contrast, the trial court's interpretation of the law and the legal consequences that flow from established facts "'are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

Pamela argues that the Family Part never conducted a proper dispositional hearing following the court's finding that she neglected Stanley. We note that at no time did the Division seek to dismiss the action. Cf. G.M., supra, 198 N.J. at 391-92 (indicating that the Division moved to dismiss the Title Nine proceeding at least three times). Moreover, during the proceeding that ultimately functioned as a dispositional hearing, the Division offered to wait ninety days to "see[] how [Pamela] is doing with [substance abuse treatment] service." Also, after discussing Pamela's potentially-imminent admission into the Turning Point program, the Division's counsel stated that "perhaps we can set this down for a G.M. hearing at the next hearing."

Instead, at the behest of Martin's counsel, the court observed that "this is not a case for a G.M. hearing," but then proceeded to find "I've heard no testimony from any party that would indicate that it would be safe for this child to reside with [Pamela]." Furthermore, "it would not be safe to . . . have the child in the physical and legal custody of [Pamela] since she continues to abuse substances and has not completed a treatment program." Accordingly, the court terminated the "litigation in the FN matter."

The Division recounts the proceedings differently. It contends that the Family Part held not one, but three dispositional hearings before terminating the litigation. The Division's position trumpets Pamela's admitted continued use of illicit drugs "despite assurances that she would continue attending outpatient substance abuse treatment." The Division claims that the first dispositional hearing occurred at the conclusion of the March 2, 2011, fact-finding hearing. The second was held during the compliance review hearing on March 28, 2011, and the final dispositional hearing was completed on April 29, 2011. The Division adds that because the Family Part held "a hearing to determine what order should be made" pursuant to N.J.S.A. 9:6-8.45(a), the court's actions were compliant with G.M. and Pamela did not suffer a deprivation of due process.

Martin argues that the Family Part's custody determination was correct because "the mandate of G.M. should not apply when custody was not part of [the Division's] case." The Law Guardian claims that because there were no disputed facts, there was no reason to hold an evidentiary dispositional hearing. The hearing appropriately consisted of the [Division's] court report and the admissions by [Pamela] about her continued drug usage, allowing the judge to reach the conclusion that "today, I can say in light of your client's admission about testing positive for THC and PCP and that she has not completed a program that it would not be safe to return custody to her.

We disagree with the Division's view that the Family Part engaged in three dispositional hearings. We further observe that the Family Part's manner of terminating the litigation did not meticulously adhere to the statutory procedures outlined in G.M. We do not condone the procedure in this case, but we conclude that Pamela suffered no prejudice.

In G.M., supra, 198 N.J. at 399, the Court stated: "A dispositional hearing must be held to determine the appropriate outcome of the case. N.J.S.A. 9:6-8.50. At the dispositional hearing the court may consider 'only material and relevant evidence.' N.J.S.A. 9:6-8.46(c)." The Court listed the options available for disposition in accordance with N.J.S.A. 9:6-8.51 to -8.56, and added that the Family Part "'shall state the grounds for any disposition made.' N.J.S.A. 9:6-8.51(b)." G.M., supra, 198 N.J. at 399-400.

In this case, the Family Part conducted a dispositional hearing two proceedings after it found Pamela had stipulated to child neglect and had taken little action to modify her behavior other than "[her] bags were packed; she's ready to go." The court was concerned that more than five months had elapsed since the child's placement with his father and further delay might extend to several more months. While a dispositional hearing in a Title Nine case "may commence immediately after the required findings are made[,]" N.J.S.A. 9:6-8.47, here the dispositional hearing gave Pamela almost two months to adjust her conduct and present herself as a safe custodian for Stanley. Instead, she showed up at the April 29 hearing in a condition that, if field tested, would have revealed her recent use of illicit substances.

We recognize that "[b]oth 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 . . . .'" G.M., supra, 198 N.J. at 401 (quoting N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004)). While the Family Part's deviation from the statutory requirements was procedural error, Pamela suffered no prejudice. R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result").

Here, unlike in G.M., supra, 198 N.J. at 391-92, the court was not required to resolve an immediate dispute concerning the child's placement. Pamela was in no condition to argue for instant reunification and the Division's report dated April 20, 2011 (admitted into evidence without objection) presented nothing to dissuade the court from continuing Stanley's physical custody with his father. Although there was no expert testimony provided, the court's conclusions were based on material and relevant evidence. N.J.S.A. 9:6-8.46(c).

We recognize that the Family Part was not required to terminate the litigation when it did. The court could have elected to further adjourn the proceedings "to make inquiry into the surroundings, conditions, and capacities of the persons involved in the proceedings." N.J.S.A. 9:6-8.48(b). Additionally, Title Nine permits the court to "suspend any dispositional hearing indefinitely" in the event of a referral to the Division for services to the family pursuant to N.J.S.A. 9:6-8.50(e). In light of the Family Part's knowledge of the case and the history of the family, we do not find its exercise of discretion to have been abusive or improper by paying no heed to these alternatives in favor of terminating the litigation. Clearly, the court concluded that "its assistance [was] not required on the record before it," and acted in accordance with law. See N.J.S.A. 9:6-8.50(c).


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