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New Jersey Division of Youth and Family Services,*Fn1 v. S.M

November 5, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0350-10.

Per curiam.



Argued Telephonically on October 24, 2012

Before Judges Reisner, Harris and Hoffman.

In this Title Nine case, N.J.S.A. 9:6-8.21 to -8.73, the Division of Child Protection and Permanency (Division) appeals from a September 22, 2011 order permitting the children's guardian ad litem (the GAL) to intervene in the case, and a December 2, 2011 order dismissing the Division's complaint. For the reasons that follow, we affirm the order permitting intervention. We reverse the order of dismissal, and remand this case to the Family Part for further proceedings.

I This case has a long history, but we include here only details relevant to this appeal. Briefly, S.M. sought to adopt two children who were in S.M.'s custody. The adoption matter is still pending, and the GAL was appointed for the children in that proceeding. Meanwhile, the Division filed a Title Nine action against S.M., based on an allegation made by J.A., a woman who claimed that S.M. engaged in inappropriate sexual conduct decades ago when J.A. was a child. The assigned Family Part judge (the first judge) decided to hold a bifurcated hearing, in which he would first hear the testimony of J.A. and other witnesses on the issue of whether the incident actually occurred. If he found it occurred, the first judge planned next to hear testimony from expert psychologists on whether S.M. was nonetheless currently fit to safely parent the children.

The first phase of the hearing took much longer than the first judge anticipated, but after it was completed, he found J.A. a credible witness and concluded that the incident occurred. The parties obtained expert reports and were prepared to go forward with the second phase of the hearing. The case was then transferred to a second Family Part judge (the judge), who granted a motion by the GAL to intervene in the case. The intervenor, joined by S.M. and the Law Guardian, filed a motion for reconsideration of the first judge's determination that the incident occurred. The moving parties all contended that the first judge had unfairly precluded S.M. from presenting evidence at the hearing, and that the judge should either hold a new hearing or at least consider additional defense evidence. However, instead of ruling on the merits of that motion, the judge sua sponte dismissed the case.


The Division appeals, contending that the judge erred in permitting the GAL to intervene and violated the Division's due process rights by sua sponte dismissing the action. First, we find no abuse of discretion in the judge's decision to permit the GAL to intervene, pursuant to Rule 4:33-2 (permissive intervention). As the judge correctly observed in her oral opinion of September 22, 2011, the GAL has an ongoing interest in the resolution of the Title Nine action. We adopt the judge's analysis on the issue. The Division's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Next we address the judge's decision on the reconsideration motion. It is well-established that a judge has inherent authority to reconsider prior interlocutory orders while a case is pending. R. 4:42-2; Lombardi v. Masso, 207 N.J. 517, 534-36 (2011). Accordingly, the judge had discretion to entertain the intervenor's motion, in which S.M. and the Law Guardian joined, to reconsider the first judge's finding that S.M. committed sexual abuse of a child, and to conduct a new hearing on the issue if she concluded that S.M. was unfairly precluded from presenting evidence. Id. at 536 ("Interlocutory orders are always subject to revision in the interests of justice."). Unfortunately, instead of addressing the reconsideration motion on its merits, the judge sua sponte dismissed the case, apparently due to her concerns that the case had been pending too long and the process was unfair to S.M.

We agree with the Division and the Law Guardian that the judge's decision to sua sponte dismiss the Title Nine action was a violation of due process. N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 59-61 (App. Div. 2012). We have read the transcript of the oral argument of the reconsideration motion, and find that no party asked that the case be dismissed. Dismissing the case in that summary fashion was unfair to the Division and unfair to the children, whose interests are at stake here. Further, it served no purpose beyond engendering even more delay in the final resolution of the fundamental questions the court needs to address in this case: whether S.M. in fact committed sexual abuse against J.A., some thirty-eight years ago, and if so, whether that should result in a finding that the children in S.M.'s custody are now at risk.

We appreciate the Division's argument that, if judges in Title Nine cases make a regular practice of reconsidering the decisions of judges previously assigned to those matters, it will become impossible to dispose of the cases in a timely manner. However, if a case is reassigned to a judge who finds that a prior ruling in the case was clearly incorrect and worked a substantial injustice, that judge has discretion to reconsider and address the error. See Lombardi, supra, 207 N.J. at 536; Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263-64 (App. Div. 1987).

Unfortunately, in addition to denying the Division notice and an opportunity to be heard on the dismissal issue, the judge provided no meaningful analysis as to why the prior hearing was unfair. The first judge made rulings on S.M.'s application to call two witnesses, the GAL and the accuser's former boyfriend, explaining that the testimony of the GAL would be irrelevant and the boyfriend's testimony would be immaterial. The first judge also declined to permit the parties to introduce in evidence the depositions of witnesses, in lieu of live testimony, because he ruled that those depositions were hearsay.*fn2 The first judge did not deny S.M. the opportunity to impeach any testifying witness with that witness's earlier deposition testimony. In her motion ...

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