On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-80-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012 -
Before Judges Yannotti and Kennedy.
Defendant M.L. appeals from a Family Part order dated June 1, 2010, finding that he abused and neglected his grandson, D.L. (Douglas), by acts that "alienated L.L. (Laura), the mother from [Douglas]."*fn1 The litigation was terminated by order of February 18, 2011, making this matter ripe for appeal. See N.J. Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 164-65 (App. Div. 2003). M.L. argues that the trial court erred during the factfinding hearing under N.J.S.A. 9:6-8.44 "when it permitted the attorneys to argue the merits without presenting witnesses to testify and without the admission of competent, material and relevant evidence[.]" For reasons expressed in this opinion, we find this contention to be without merit and we affirm the order of the trial judge.
On January 19, 2010, the Division of Youth and Family Services (the Division) filed a verified complaint and an order to show cause under Title Nine (N.J.S.A. 9:6-8.21 to -8.73) seeking care, custody and supervision of Douglas based upon allegations of abuse and neglect by defendant and Laura. The complaint asserted that the Division received an anonymous tip in August 2009 that M.L. had a "history" of "sexual abuse" charges before the Administration for Children's Services in New York. The anonymous caller stated that M.L. had been accused of sexually abusing his biological daughters, including Laura, and that M.L. thereafter improperly obtained custody of Laura's son, Douglas, born May 1, 2007.
Following a hearing on January 19, 2010, at which M.L. was present and represented by counsel, the court entered an order granting custody, care and supervision of Douglas to the Division and placing the child with M.L.'s sister. The order further provided that exhibits A through F, attached to the verified complaint, were "entered into evidence."
The court thereafter held conferences on the record on February 9, April 20 and May 11, 2010. During this time, M.L.'s counsel arranged for a psychological evaluation of M.L. and a bonding evaluation for M.L. and Douglas to be undertaken by Dr. Melissa Rivera Marano, Psy.D. The reports of Dr. Marano were provided to the court and all parties. The court's "multi-purpose order" of May 11, 2010, noted these reports were "in evidence."
On June 1, 2010, the parties and counsel appeared at a hearing before the trial judge, except for Laura who failed to appear. A default was entered against her.*fn2 At the commencement of the hearing, the Deputy Attorney General for the Division indicated that the date had been established to "see whether or not there were any stipulations or agreements that we can put on the record today. And if not, we were going to reschedule for a contested factfinding date." She then indicated, there is a consent to a disposition on the papers. My papers, Your Honor, for purposes of the factfinding would be the verified complaint and the attachments to that verified complaint which would be Exhibits A through F.
Your Honor, in addition, the Division would also be relying upon the psychological and bonding evaluation that were provided by defense counsel of Melissa Rivera [Marano].
She further represented that the reports of Dr. Marano and the Division's expert "seem to be in agreement."
Defense counsel replied that M.L. "has noted that he will not try the issue of abuse or neglect" and thereafter indicated "I would submit on the evidence submitted, specifically what was outlined by [the Deputy Attorney General], as well as my expert reports . . . ." He added that he had been prepared to cross-examine the Division's expert, but noted "obviously we are not going to go down that path." Following argument from counsel, the trial judge rendered his findings of fact and conclusions of law on abuse and neglect.
The items in evidence before the trial judge, as agreed by counsel, consisted of:
1) Verified Complaint dated January 19, 2010; and the following ...