August 16, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF R.M., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-62-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012
Before Judges Graves and Yannotti.
This is an appeal from the termination of a child protection services proceeding in which the Division of Youth and Family Services (Division or DYFS) alleged that defendant J.M. abused or neglected his son R.M. (fictitiously Richard). During the course of the proceeding, the court approved the Division's decision to place Richard with his mother, C.H. In addition, J.M. stipulated that he used excessive corporal punishment to discipline Richard. J.M. argues on appeal that the court erred in terminating the litigation and continuing legal and physical custody with C.H. "in the absence of a dispositional hearing." For the reasons that follow, we affirm.
On November 12, 2009, when Richard was seven years old, the Division received a referral indicating that Richard had been beaten by his father. The caller reported that Richard was forced to kneel on uncooked rice for an hour and that J.M. hit him on his buttocks with an open hand. Due to his injuries, Richard had trouble sitting in school, and the school nurse observed bruising on his buttocks and redness on both knees.
Richard was interviewed at the Cape May Prosecutor's Office that same day. During the interview, Richard was asked what would happen when he got in trouble, and Richard stated "you don't want to know." Richard said that he was hit "a lot," and that his father would take him to the basement so no one would hear him cry. While Richard was at the prosecutor's office, his bruises were photographed. His father was also interviewed at that time. J.M. admitted spanking Richard and said he "did not mean to hit him that hard."
After the interviews were completed, the Division initiated an emergency removal under the Dodd Act.*fn1 Richard was then taken to the Cape Regional Medical Center for a medical examination. Following the examination, the caseworker transported Richard to his mother's home.
The Division filed a verified complaint and order to show cause for the care and supervision of Richard on November 16, 2009. The first in-court proceeding took place the same day. J.M. and his attorney were both present at the hearing. J.M.'s attorney advised the court that R.M. would "comply with any and all recommendations," including the psychological evaluation requested by the Division. The trial court noted that the photographs of Richard's injuries were "quite disturbing," and Richard was placed in the care and custody of the Division. The court also approved the Division's decision to place Richard with his mother. Accordingly, the court transferred legal and physical custody of Richard to C.H.
On December 9, 2009, the return date of the order to show cause, J.M.'s attorney informed the court that J.M. "misses [Richard] very much. He loves him with all his heart and soul, [and] will do anything it takes to get back with his son." In addition, the Law Guardian advised the court as follows:
I had the opportunity to go out and see [Richard] yesterday in his mother's home. He's a delightful little boy, seven years old. He's in second grade. He's doing fine living with his mother. He says he's okay living with his mom. He's got a little three-year-old sister [who] also lives in the home, and his mom's, I guess, boyfriend or husband is also in the home.
He did confirm the allegations in the complaint. His father did spank him, he said quite hard on the buttocks, then slammed him onto a very hard chair. He said it hurt the back of his legs and it hurt his butt really bad when he was slammed down onto the chair. And then he was also made to kneel on a board that was covered in rice for . . . a very long time.
The Law Guardian also stated that Richard enjoyed "visiting with his father [and] he's only afraid of him some of the time. He's not afraid of his mother." The Law Guardian reported that Richard would "like to eventually go back and live with his father and . . . visit his mother on weekends."
Following the hearing on December 9, 2009, the court denied J.M.'s request for unsupervised visitation. The court also scheduled a fact-finding hearing and confirmed that legal and physical custody would remain with C.H.
The parties appeared in court for the fact-finding hearing on May 12, 2010. At that time, J.M.'s attorney informed the court that J.M. would stipulate to an act of child abuse.*fn2 J.M. was then placed under oath, and he admitted he placed Richard "at a substantial risk of harm" by using "inappropriate disciplinary measures which resulted in injury."
At the same hearing, the Law Guardian advised the court that Richard "likes visiting with his dad," but he also wanted his mother to supervise the visits. In addition, J.M.'s attorney reported that J.M. was "compliant with services. He is attending . . . individual counseling and anger management together. They have been combined. He's also going to parenting classes on a regular basis. Apparently he has seven more to go."
The matter returned to court for compliance review hearings on August 18, 2010, December 15, 2010, March 9, 2011, June 15, 2011, and September 21, 2011. At the final hearing on September 21, 2011, the Division advised the court that J.M. had "complied with the services the Division requested"; the Division had "no objection" to any visitation schedule that J.M. and C.H. agreed upon; and the Division requested that the litigation be terminated. The Law Guardian argued that the case should "stay open [for] at least one more cycle" to facilitate visitation. The Law Guardian also advised the court that Richard "would like to live with his father," but he understood that "it can't happen right now" because "his dad doesn't have stable employment or stable housing."
Although J.M.'s attorney argued that the litigation should "remain open," she acknowledged that reunification was not feasible at that time:
[J.M.] has been a hundred percent compliant. He has done all of his services. He is still in counseling with Shannah Learn. Unfortunately though he lost his job at Wal-Mart. He's applied at the Halloween store and everywhere else. Now that the summer is over it is likely that he will get a job. He does have transportation, he has a vehicle, but he doesn't have the $80 a month to afford the insurance.
He's frustrated. He's desperate. He really needs financial assistance. He would like to have [Richard] back with him, but because he doesn't have stable housing, because he can't financially support him it's just not a feasible option at this point in time. But, again, now that the summer is over it's very likely that he will get employment and he is desperate to get the assistance from DYFS he so desperately needs. He applied for general assistance.
He's still waiting to hear back for that.
He's hoping to get a job soon, and I believe that he can work out a visitation schedule with [C.H.]. However, he really does need DYFS to help him financially with particularly housing and secondarily transportation, and if he gets a job that will be one step in the right direction, but he does still need the services. So I'd ask that Your Honor consider keeping it open one more go around.
The trial court considered but rejected the request to continue the matter. The court found that the "circumstances that brought the matter before the Court, child protection services, had been remedied successfully," and the "child [was] safe because of those services and the efforts of [Richard's] parents." Thus, the court terminated the litigation with Richard remaining in the legal and physical custody of his mother. In addition, the court asked the Division to help J.M. access any community programs or services that might provide him with financial assistance, job training, or employment.
On appeal, J.M. argues the September 21, 2011 order, which terminated the litigation, should be vacated and the matter remanded to the trial court for "such proceedings as are required to protect the Father's due process rights attendant to his fundamental liberty interest in the care and custody of his child." In response, the Law Guardian and the Division argue the order terminating litigation should be affirmed because the actions that gave rise to the litigation were remedied, there was no further need for Division services, and J.M. acknowledged he was not able to provide a safe and stable home for his son.
Parents have a constitutional right to a relationship with their children. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). That right must be balanced, however, against the State's parens patriae responsibility to protect children. Ibid. "Of course, the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997).
In this case, J.M. does not challenge the finding of abuse or the initial transfer of custody to C.H. on November 16, 2009. Instead, he argues the court erred when it terminated the litigation on September 21, 2011, almost two years later, without a dispositional hearing.*fn3 We do not agree.
In most cases, when there is a finding of abuse or neglect, a dispositional hearing "must be held to determine the appropriate outcome of the case." G.M., supra, 198 N.J. at 399. In the present matter, however, J.M. did not request a dispositional hearing, and the court's failure to conduct the hearing was harmless error because J.M. was not in a position to adequately care for Richard when the litigation was terminated. If J.M.'s circumstances change, he may file for custody under the non-dissolution docket in the Family Part.