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C.D., A.P., and D.D v. N.D.M. and A.L

January 8, 2013

C.D., A.P., AND D.D., PLAINTIFFS-APPELLANTS,
v.
N.D.M. AND A.L., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-157-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2012

Before Judges Simonelli, Koblitz, and Accurso.

This matter involves a child custody dispute between the biological mother, defendant N.D.M. (Mother), and her family members, plaintiffs C.D. (Aunt), A.P. (Grandmother) and D.D. (Grandfather). Plaintiffs appeal from May 25, August 1 and November 29, 2011 orders. The August order, which was issued without a testimonial hearing, returned the child, Alice,*fn1 to Mother, from whom she had been "temporarily" removed almost two years before. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Mother and defendant A.L. (Father) were married in 2003, the same year Alice was born. They divorced three years later. Mother and Alice moved in with Grandmother from September 2004 until January 2007. They then lived with Aunt and Grandfather for about two-and-one-half years until they began living with E.M. (Stepfather). In 2009, the Division of Youth and Family Services*fn2 investigated Mother three times and did not substantiate any allegations of abuse or neglect.

In February 2010, Mother married Stepfather and they now have a child together. Mother also has a stepson, Gary, who is Stepfather's child from a previous relationship. Father has also remarried. He visited Alice regularly while she was in her relatives' custody, but did not seek primary physical custody of her.

On September 1, 2009, one month after Mother moved in with Stepfather, plaintiffs filed a verified complaint seeking an order to show cause with temporary restraints seeking the immediate return of Alice and providing plaintiffs with temporary residential custody pendente lite. In their complaint, plaintiffs also sought: Kinship Legal Guardianship*fn3

(KLG) and child support from the Mother, but not the Father. Plaintiffs filed certifications alleging that Mother physically and verbally abused Alice and did not protect Alice from Gary's assaults. Plaintiffs also alleged that Alice engaged in self-destructive behavior and threatened suicide if she was required to live with Mother and Stepfather full-time. The same day the complaint was filed, based on Father's consent and plaintiffs' certifications, the judge returned Alice to the legal and residential custody of plaintiffs and awarded temporary custody to plaintiffs pending a KLG application. No proceedings were held on the record, contrary to the requirements of Rule 4:52-1(a) ("The proceedings shall be recorded verbatim provided that the application is made at a time and place where a reporter or sound recording device is available.").

On the return date of the order to show cause, Mother appeared without counsel.*fn4 Based on written certifications, oral argument and direct examination by the court of Mother, the judge extended plaintiffs' temporary custody and directed that a best interest evaluation be completed within ninety days.*fn5 The order also called for supervised visitation and telephone contact with Mother. Additionally, "[Mother] agree[d] to attend a parenting class, anger management class and obtain a psychiatric evaluation." Child support from Father to Mother was suspended by separate order the same day. No support from either parent to plaintiffs was ordered.

Upon plaintiffs' suggestion, Dr. Mathias R. Hagovsky, Ph.D., a private custody expert, was jointly retained by plaintiffs and defendant to prepare a best interest evaluation. However, he did not complete this report until July 24, 2010, almost a year after the order directing that the report be completed within ninety days. The record does not reveal the cause of the delay. Dr. Hagovsky opined that Mother was a fit parent and recommended a reunification plan for Alice and her mother. Pursuant to Dr. Hagovsky's report, on January 3, 2011, the judge ordered that Mother obtain residential custody of her child by April 30, 2011. The judge wrote, "[t]he Court finds there has been delay in implementing the spirit of Dr. Hagovsky's recommendations. The parties should proceed with all deliberate speed to achieve the reunification . . . ."

In the month following the order, Mother filed a motion seeking the immediate physical custody of her daughter as well as other relief. On April 7, 2011, plaintiffs filed a cross-motion seeking to: change the reunification therapist, compel Mother to follow Dr. Hagovsky's recommendations, require the parents*fn6 to pay child support, prohibit Mother from disparaging Aunt in front of Alice, and require Mother to pay plaintiffs' legal fees.

On April 21, 2011, the return date on the motion and cross-motion, the discussion in court centered on the approaching April 30 reunification date, the reunification therapist, and plaintiffs' desire for the judge to communicate with Dr. Hagovsky regarding Mother's progress. The judge highlighted his frustration with the delay in the proceedings, stating, "sometimes you have to take a big picture approach and this is taking too long." He also commented on the constitutional issues, and stated that "when one party has custody of the child, delay works in their favor." Reunification did not occur by April 30, 2011.

On May 25, 2011, an order was entered to reunite Mother with her daughter "as soon as possible consistent with Dr. Hagovsky's letter dated May 4, 2011." Dr. Hagovsky's letter indicated that following additional visitations and overnight stays with Mother, Alice should be returned to her mother's custody by early August. On June 13, 2011, Dr. Hagovsky sent another ...


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