On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-0082-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
Defendant L.O. appeals from an April 28, 2011 Family Part order terminating this Title Nine proceeding, awarding her and her husband, W.L., Sr., joint legal custody of their two minor children, B.L. and W.L., Jr., and granting W.L., Sr. interim physical custody of the children. Because the New Jersey Division of Youth and Family Services (the Division) failed to establish abuse or neglect and the Title Nine action was dismissed, we conclude that the children must be returned to L.O., the parent from whose custody they were removed. Accordingly, we vacate the trial court's order and remand for further proceedings.
The record discloses the following facts and procedural history on appeal.
On August 14 2009, W.L., Sr. drove L.O. and their two children to their maternal grandmother's house for an extended visit while W.L., Sr. remodeled their marital home. Within days after their arrival at the maternal grandmother's, W.L., Sr. called L.O. and expressed his desire for a divorce. Ensuing telephone conversations between W.L., Sr. and L.O. prompted L.O. to obtain a domestic violence temporary restraining order against W.L., Sr., which was grounded in his alleged threats to hurt someone with a knife.
Following entry of the restraining order, the Division received a referral, reporting that L.O. had alleged W.L., Sr. sexually abused their young daughter, B.L. Following her report to the authorities, L.O. voluntarily committed herself for psychological evaluation as a result of stress and risk of suicide.
The Division subsequently filed a complaint pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 against both L.O. and W.L., Sr., alleging abuse and neglect of their children.
During the course of the ensuing investigation of the sexual abuse allegation against W.L., Sr., Division caseworker Albert Weedon determined that L.O.'s claim was unfounded. Nevertheless, the domestic violence temporary restraining order prevented the children's placement with their father and with L.O. as she was undergoing evaluation. Weedon further determined that future placement at the maternal grandmother's home was unsafe due to ongoing construction work, exposed wiring, pipes, outlets, and the lack of walls and ceilings.
The Division removed the children from their maternal grandmother's house and temporarily placed them with a maternal cousin. Thereafter, the children's paternal grandmother offered to stay with the children at the marital home, as W.L., Sr. had agreed to move out. However, safety issues regarding exposed wires and ongoing construction to the marital home made placement there unsafe. The children were then temporarily placed at their paternal grandparents' house while repairs to the marital home were being completed.
L.O. was released from the hospital on August 30, 2009. In September, she withdrew the domestic violence temporary restraining order and complaint against W.L., Sr. On October 16, the judge ordered "interim residential custody" of the children to be relocated with W.L., Sr. at the marital home. The paternal grandparents were ordered to serve as supervisors. Two months later, the Family Part dismissed the obligation of supervision imposed on each parent. At that time, W.L., Sr. continued physical custody of the children, while L.O. had biweekly overnight visitation privileges. On January 12, 2010, W.L., Sr. filed a complaint for divorce against L.O.
Several case management conferences ensued with regard to the Division's abuse and neglect complaint and, on January 13, 2011, the Family Part held a trial. Weedon testified that there were no longer any safety concerns or outstanding service requirements for either parent. On January 20, ...