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New Jersey Division of Youth and Family Services v. R.E.D.

Superior Court of New Jersey, Appellate Division

June 17, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
v.
R.E.D., Defendant-Appellant IN THE MATTER OF THE GUARDIANSHIP OF A.F.D., a minor. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
v.
R.E.D., Defendant-Appellant. IN THE MATTER OF A.F.D., a minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FG-04-173-11 and FN-04-435-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.F.D. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

Before Judges Parrillo, Sabatino and Fasciale.

PER CURIAM

In these consolidated matters arising out of litigation brought against a mother by the Division of Youth and Family Services ("the Division"), [1] defendant R.E.D. ("the mother") appeals respective orders entered by the Family Part on January 13, 2012 and February 2, 2012. The January 13, 2012 order, which followed several testimonial hearings, granted physical custody of the mother's minor son, A.F.D., to the son's father, J.F. The subsequent February 2, 2012 order terminated the present litigation, which the Division had brought under "FN" (abuse-and-neglect) and "FG" (guardianship) dockets, and granted J.F. legal custody of A.F.D. That order was expressly made subject to the mother's right to litigate custody and parenting time issues against the father, without the Division's involvement, in future proceedings under a separate and preexisting non-dissolution ("FD") docket in the Family Part.

On appeal, the mother now presents several arguments, including her central theme that the trial court's orders, in effect, have essentially and unfairly "terminated" her parental rights. We reject the mother's contentions and affirm.

I.

We derive the following pertinent facts and procedural history from the extensive record. In large measure, the record depicts the mother's long history of drug abuse and her sustained failures to carry out her parental responsibilities to A.F.D., who was born on February 4, 2000, and to his younger sibling, D.D., who was born on June 15, 2005. The record also reflects the positive relationship that A.F.D. rapidly developed with his father, J.F., once J.F. had been located, and J.F.'s credible efforts to become a fit and stable parent after he was released from incarceration.

Background

The present litigation first arose from an incident at a motel in Maple Shade on March 21, 2009, where A.F.D., who was then nine years old, and D.D. were discovered by police alone in a rented room.[2] A.F.D.'s school had reported to police that he was not attending class. The mother returned to the motel within an hour and forty minutes, after being informed by police that the children were in the motel room alone. She had apparently been out grocery shopping. She was nine months pregnant at the time with the child of another man, M.B., and had not sought prenatal care. M.B. returned to the motel after the mother did, but he was then arrested on an outstanding warrant for shoplifting in Deptford. A.F.D. had, at that time, been out of school for two weeks because the family was homeless. Neither the mother nor M.B. was employed at the time.

The mother gave birth on April 9, 2009 to another child, M.D., at a hospital in Voorhees. She tested positive for opiates at the time of the birth. The mother stated that she was taking Percocet for chronic pain from a fractured pelvis in 2007. She gave the name and number of the doctor that allegedly had prescribed the Percocet, but ensuing investigation revealed that the doctor had not seen the mother since 2006 and had never prescribed the mother Percocet. In fact, it turned out that the mother had been secretly taking the Percocet tablets from M.B.'s father. M.D. tested positive for Oxycodone at birth and remained in the hospital until June 2, 2009.

The Division's Initial 2009 Order to Show Cause and Placement of A.F.D. With S.B. and L.B.

On April 30, 2009, the mother appeared before the Family Part in response to an order to show cause filed by the Division under both Title 9 and Title 30.[3] The judge hearing that initial application found that the Division had met its prima facie burden of showing abuse and neglect of the children. The judge ordered that the children be placed temporarily in the care, custody, and supervision of the Division. The judge also ordered the mother and M.B. to attend and complete a substance abuse evaluation and any recommended treatment. Around this same time, A.F.D. and D.D. began staying with M.B.'s parents, S.B. (the paternal grandfather of M.D.) and L.B. (the paternal grandmother of M.D.), who were acting as kinship providers.

On May 8, 2009, the Division filed an amended verified complaint under Title 9 and Title 30, requesting an order granting the Division custody of the children. Thereafter, the parties appeared before the Hon. Octavia Melendez, J.S.C., on May 13, 2009. The mother tested positive for morphine that day. Neither she nor M.B. had attended their court-ordered substance evaluations. The young son, A.F.D., wrote a letter, which was read aloud in court that day, expressing his happiness about living with S.B. and L.B. Given these circumstances, Judge Melendez ordered that the children remain in the custody, care, and supervision of the Division, but did grant the mother and M.B. visitation rights. M.D. began staying with S.B. and L.B., along with A.F.D., after his release from the hospital on June 2, 2009.

On July 9, 2009, the parties again appeared before Judge Melendez. By that point, M.H., the children's maternal grandmother, had filed an application for custody, as had M.B.[4]That day, the judge granted M.H. the right to visit the children and ordered the Division to arrange a study of M.H.'s home. The judge continued the children in the care, custody, and supervision of the Division. The mother did not attend the hearing.

On July 27, 2009, the parties appeared before a different Family Part judge, Hon. Lee B. Laskin, J.S.C.[5] Instead of demanding a trial on the abuse and neglect allegations, the mother stipulated that she took drugs while pregnant with M.D., and that her drug use had put all of her children, including A.F.D., at a risk of harm. M.B., meanwhile, stipulated that he failed to maintain appropriate housing for the children and specifically had failed to send A.F.D. to school, placing the children at risk of harm.

Judge Laskin issued an order that day reflecting these stipulations. He also issued a separate order, continuing the children's custody, care, and supervision with the Division, and allowing the children to remain at the home of S.B. and L.B. Judge Laskin further ordered the mother and M.B. to undergo psychological and substance abuse evaluations, to attend counseling recommended by the Division, and to attend parenting skills training. The parents were allowed weekly supervised visitation, as was M.H.

The Compliance Review and Permanency Hearings in 2009 and 2010.

On November 12, 2009, a compliance review was held by the court, at which time the court did not make any changes to the children's living arrangements. The mother tested positive for morphine that day.

About three months later, another compliance review was held before Judge Melendez on February 2, 2010. The attorney representing the Division informed the court that the mother had been attending a detoxification program. Also at that hearing, S.B. and L.B. withdrew their applications for custody, although their attorney made it clear that they may seek to adopt the children if the situation so warranted. Judge Melendez also dismissed M.H.'s complaint for custody. The judge continued the children's living arrangements and the related visitation rights. In addition, Judge Melendez made a negative inference against the mother, determining that, because the mother had failed to provide a sufficient urine sample for screening, she would have tested positive for drugs if a proper sample had been given.

A permanency hearing was subsequently held before Judge Melendez on April 27, 2010. On that occasion, the Division presented a plan to terminate the parents' parental rights and have M.H. ultimately adopt the children by April 2011. The Division caseworker represented that the interstate assessment of M.H.'s home had been completed and that she had been approved. The Law Guardian representing the children argued, in opposition, that it made little sense then to move the children to M.H.'s home, because the children were happy with their current situation with S.B. and L.B.

Upon considering these competing positions, Judge Melendez issued an order rejecting the plan by the Division to terminate parental rights and allow M.H. to adopt the children. The judge specifically noted at the hearing that she found that plan to be "inappropriate and unacceptable." In a separate order that day, Judge Melendez instead continued the children's living arrangements with S.B. and L.B.

The parties returned on May 26, 2010 for another permanency hearing before Judge Melendez. At that time, the Division presented a new plan, whereby defendants' parental rights would be terminated and S.B. and L.B. would adopt the children. Neither the mother nor M.B. at that point had completed their required substance abuse programs, due to nonpayment. They also had not completed their parenting skills classes. The hearing was stayed by the judge for undisclosed reasons, and no accompanying order was issued at that time.

The parties next appeared before Judge Melendez on June 16, 2010. The parents had still not completed all of their required classes and evaluations. The judge reaffirmed her approval of the plan ultimately to have S.B. and L.B. adopt the children. The judge specifically found that it would not be safe to return the children to the mother and M.B. On the same day, Judge Melendez issued an order approving the Division's plan to terminate parental rights and allow S.B. and L.B. to adopt the children by June 2011. The judge included a notation in her order that the children had been with S.B. and L.B., by that point, for twelve months, and the parents had not completed their programs.

The parties appeared again before Judge Melendez on August 12, 2010. It was revealed at this hearing that S.B. had tested positive for marijuana use approximately three weeks earlier. S.B. acknowledged to the court that using marijuana was a "stupid" thing to have done, and he agreed to cooperate with whatever remediation the court ordered. The judge consequently declined to move the children as a result of S.B.'s marijuana use. C.M. appeared for the first time that day and asked to be allowed to visit his own child, D.D. The judge's order granted C.M. weekly supervised visitation rights.

On that same day, Judge Melendez also closed the case brought by the Division under the FN docket, because a separate complaint for termination of parental rights had been filed by the Division. The judge ordered that the mother and M.B. attend psychological and bonding evaluations, substance abuse treatment, parenting skills classes, and counseling, and that they each submit to random urine screens. Finally, the judge ordered that S.B. undergo a substance abuse program, and that his visitation with the children should be supervised at all times until that program was completed.

On December 14, 2010, the court issued another order, again continuing the children's living arrangements. The court denied the Division's request to remove the children from S.B.'s home due to another positive THC screen that day indicative of marijuana use. The court did, however, reaffirm its previous order that S.B. would not be allowed to have any unsupervised contact with the children, and again ordered him to undergo a substance abuse evaluation.[6]

The Parents' Identified Surrenders As To D.D. and M.D. In March 2011.

On March 21, 2011, Judge Melendez accepted C.M.'s identified surrender to S.B. and L.B. of his parental rights to D.D. On March 24, 2011, the judge also accepted M.B.'s identified surrender of his own parental rights, likewise granting them to S.B. and L.B. The mother was not in attendance that day.

On the following day, March 25, 2011, Judge Melendez accepted the mother's identified surrender to S.B. and L.B. of her parental rights to D.D. and M.D. The judge therefore terminated the respective parental rights of the mother, M.B., and C.M., respectively, to M.D. and D.D. In addition, the judge directed the Division to search for J.F., whom the mother had recently identified as A.F.D.'s father. Meanwhile, the mother signed an identified surrender of her parental rights to S.B. and L.B. with regard to A.F.D., but that surrender is not referenced in the judge's order.

On March 31, 2011, the parties once again appeared before Judge Melendez. By that point, as a result of the court's previous orders with respect to D.D. and M.D., only the guardianship of A.F.D. remained a subject of litigation. Judge Melendez accepted mutual representations from the mother and C.M. that C.M. was not the biological father of A.F.D. The judge also dismissed the open case dockets in the Family Part concerning D.D. and M.B. Finally, the judge again directed the Division to search for J.F.

J.F. Is Located and Begins Participating in the Case and His Visitations with A.F.D.

Two months later, on May 31, 2011, another hearing was held before Judge Melendez. J.F., who by this point had been found, attended that hearing. The results of a paternity test to determine if J.F. was A.F.D.'s father were not yet available. If J.F. were shown by the test not to be the biological father, the Division's plan was for S.B. and L.B. to adopt A.F.D. If, on the other hand, J.F. proved to be A.F.D.'s father, the Division's plan would be changed. The caseworker indicated that A.F.D., who was then eleven years old, wished to remain with S.B. and L.B. Judge Melendez accepted the Division's plan to terminate the mother's parental rights to A.F.D., followed by his anticipated adoption by his then-current caretakers, S.B. and L.B.

Thereafter, on June 28, 2011, Judge Melendez ruled that all previous orders would remain in effect, but directed the Division to file a permanency plan by the next hearing. Meanwhile, based upon paternity test results, J.F. was confirmed as the father of A.F.D. The mother was not in attendance that day, but J.F. was present.

On August 22, 2011, the attorney representing the Division informed Judge Melendez that more time was needed to formulate a plan for A.F.D. in light of the paternity test results. In the meantime, Judge Melendez granted J.F. weekly supervised visitation rights with A.F.D.

The parties next appeared before Judge Melendez on November 15, 2011. The judge issued an order that day arranging for visitation during the winter holiday season. The judge also directed the Division to file an amended complaint naming the biological mother and father of A.F.D., which the Division subsequently filed in December 2011.[7]

On or about November 26, 2011, M.B. passed away. A.F.D.'s attorney stated to Judge Melendez at a subsequent hearing that M.B. had died of a drug overdose while living with the mother.

The Division Recommends that A.F.D. Be Placed With J.F.

The parties next appeared before Judge Melendez on January 12, 2012 to determine A.F.D.'s permanent living arrangement. The Division recommended at the start of the proceedings that day that, in light of the updated circumstances, A.F.D. be placed with J.F. The Law Guardian for A.F.D. likewise agreed that placement with J.F. was, by that point, in the child's best interest.

The Division also requested, without objection, that the mother's March 25, 2011 identified surrender of A.F.D. be set aside, a request which Judge Melendez granted. A G.M.[8] hearing then commenced, and took place over a series of hearing sessions, to determine whether A.F.D. should be returned to the mother.

The Testimony at the G.M. Proceedings

Arlene Jacoby, a caseworker supervisor with the Division who was assigned to A.F.D.'s case, testified at the G.M. hearings. Jacoby recounted that the Division had made "several referrals for substance abuse evaluations" of the mother, two of which were completed. The evaluators recommended that the mother complete intensive outpatient services. According to Jacoby, the mother failed, however, to complete those recommended services. In total, Jacoby reported that the mother had missed five substance abuse evaluations. Jacoby indicated that the mother's drugs of choice were opiates and benzodiazepines, and that she had tested positive for such drug use at multiple screenings. The mother's drug screen on the day of Jacoby's G.M. testimony, however, happened to be clean.

Jacoby recounted that the mother either had failed to complete, or had only partially completed, parenting classes. Jacoby added that the mother did not demonstrate "a true understanding of the skills" taught in those classes. The mother had completed one psychological evaluation, according to Jacoby, although more evaluations had been recommended. Jacoby added that the mother had been transient for the entire "life of this case, " making it difficult at times to contact her. Jacoby was unsure if the mother was employed at the time of the G.M. hearings.

In addition, Jacoby testified that J.F. had been located immediately after the Division learned his name. As Jacoby explained, a representative of the Division went to J.F.'s home to make an assessment, and made an interstate referral to do the same. Both the Division and the interstate agency agreed that there were "no issues" with respect to the suitability of J.F.'s home.

Jacoby further testified that A.F.D. had previously believed that his father was not alive, because his mother had told him so. In fact, Jacoby advised that the mother did not identify A.F.D.'s father until on or about March 25, 2011, when she executed the identified surrender of the child, whereas the mother previously had refused to identify the child's father. According to Jacoby, once J.F. was located, he became a "willing participant . . . and that he wanted to be a part of his son's life."

According to Jacoby, after A.F.D. and J.F. were introduced to one another, visitations began and had progressed to A.F.D. having overnight stays at J.F.'s home. Jacoby presented that those visits "went well." As time progressed, A.F.D. eventually decided that he wished to live with J.F. because he had developed a strong bond with his father.

Jacoby informed the court that the Division's plan was to have A.F.D. move in with J.F. immediately. She reported that J.F. had "done every service asked for" by the Division, every home inspection had been satisfactory, and there were no concerns about J.F.'s parenting abilities. Moreover, J.F. was willing to assume custody of A.F.D.[9]

By contrast, Jacoby testified that concerns remained with respect to the mother's housing situation, her parenting abilities, and her drug use. The Division therefore did not actively pursue a reunification plan between A.F.D. and the mother.

Lois Isis, a senior investigator for the Law Guardian's Office, testified at the G.M. proceeding on January 12, 2012. Isis stated that A.F.D. "loved visiting with his father, " and that the child's visits with him had been "very positive." Isis indicated that A.F.D. had told her that his visit with J.F. on Christmas at the end of 2011 was "absolutely wonderful, " and that he was happy to wake up at his father's home that Christmas Day. Isis also testified that A.F.D. had told her that he would like to live with his father, but he wanted to leave the decision to the judge. According to Isis, A.F.D. "lit up" when discussing his time with his father. Isis acknowledged that during the earlier stages of the litigation, A.F.D. had previously stated that he wanted to live with his mother, but A.F.D. had not said that to her recently.

The proceedings on January 12, 2012 were adjourned without completion, because the mother left the courthouse, claiming that she had to leave to pick up her niece and nephew from school. Judge Melendez accordingly postponed further testimony until the next day, January 13.

The mother did not attend the continued hearing on January 13. Her attorney represented to the court that she was absent because she had to pick up her niece and nephew again. J.F.'s attorney, meanwhile, argued that the mother's absence from court was "indicative of her position in this case and [spoke] volumes."

According to J.F., when the mother was pregnant with A.F.D., she told him approximately seven months into the pregnancy that the fetus had died. He added that the mother's claim of miscarriage was corroborated by her sister and a friend of hers. He said that he subsequently heard that the mother, in fact, gave birth to a son, but he could not locate her. J.F. testified that he first had "concrete knowledge" that he had a son when the Division contacted him in relation to this matter.

J.F. agreed with the Division's plan to place A.F.D. with him. He testified that he would allow A.F.D. to continue to see his siblings and friends. He added that he "never abandoned his son" and that he was "very thankful" that the Division had contacted him. J.F. did acknowledge that when A.F.D was born, he was incarcerated in Pennsylvania for robbery and drug-related convictions. He indicated that he had been released in August 2004, having been incarcerated for the first four years of A.F.D.'s life.

If he were awarded custody of A.F.D., J.F. maintained that he would not prevent his son from having visits with the mother. J.F. did not think that he should supervise those visits, however, because he did not get along with the mother. J.F. also did not think that M.H., as an alternative, should supervise the visits, due to his belief that it was M.H.'s idea to tell him falsely that the mother had lost A.F.D. in pregnancy, and due to his perception that M.H. was not a trustworthy supervisor.

J.F. recounted that A.F.D. gets along well with J.F.'s other children. He indicated that A.F.D. had visited "a few schools" that he might attend after moving in with J.F., and that A.F.D. seemed to be "comfortable with everything." J.F. further testified that he did not have any concerns about his ability to care for A.F.D.

On the same day of J.F.'s testimony, Judge Melendez issued an order directing that A.F.D. remain in the legal custody of the Division. The judge further issued a separate order transferring physical custody of A.F.D. to J.F.

The completion of the G.M. proceedings took place on February 2, 2012. This time, the mother finally testified. She stated that she was then living in Philadelphia with M.H. According to the mother, she had been living there since November 2011, when M.B. died of a drug overdose. The mother stated that there was no limitation on how long she could stay at M.H.'s home. She indicated that there was another bedroom at the home that A.F.D. could use. The mother noted that the home had previously been approved by the Division and through an interstate referral service as an appropriate place where A.F.D. could stay.

According to the mother's testimony, she was currently employed as of February 2012, and was making enough money to support A.F.D. In particular, she stated that she was working at a diner approximately twenty-eight to thirty-two hours each week.

The mother also claimed that she had completed Narcotics Anonymous and Alcoholics Anonymous programs while serving time in prison, and that she was still attending meetings for both groups. She stated that those meetings were working "very well" for her, and that she was "comfortable in that setting." Additionally, the mother stated that she was attending meetings with NorthEast Treatment, a program that offers substance abuse treatment and parenting classes. She added that she was maintaining sobriety at the time of her testimony, asserting that she had been sober since her release from jail in November 2011.

The mother also asserted that she would be starting classes through the University of Phoenix in two weeks. As for A.F.D.'s own education, the mother stated that if he went to live with her, he would return to a school where he had done well academically while living with her previously.

The mother contended that if A.F.D. were returned to her, she would be able to keep him safe. She stated that her own mother could help her with A.F.D., and that she had her family's support.

On cross-examination, the mother admitted that she had gone to prison in July 2011 for presenting a false identification to a police officer. She also admitted that there was a pending charge against her for shoplifting, as to which there was a hearing in criminal court the next day. She further indicated that her intent on that latter charge was to plead guilty. She represented that the prosecutor had offered her a one-year term of probation in exchange for the guilty plea, which would run concurrently with the probationary terms she was serving for her false identification offense.

The mother claimed in her testimony that when she was pregnant with A.F.D., J.F. "beat the crap out of [her] like [she] was a man because he was on Xanax." She alleged that J.F. was also selling drugs at the time, and had gun charges against him. She accused J.F. of being "a violent person, " and therefore she did not want her child around him. She testified that she had said these same things to A.F.D. regarding his own father, and that she asked A.F.D. if he wanted to meet his father. She flatly denied telling A.F.D. that his father was dead. She also insisted that she had never lied during the course of the Family Court litigation as to the identity of A.F.D.'s father.

The Court's Ruling Following the G.M. Proceedings

Without making an immediate final ruling after the proofs in the G.M. proceeding closed, Judge Melendez did remark from the bench that the mother's credibility had been "in question throughout these proceedings in light of the information that she has provided to this [c]ourt in the past." The judge found it significant that the mother had previously represented to the court that C.M. was A.F.D.'s father, and that it was not until the mother signed the identified surrender of A.F.D. "and was forced under oath to present who the father of this child was" that she had identified J.F. as A.F.D's father. The judge further observed that the mother had presented the court with no proof of her attendance at the substance abuse programs. The judge similarly noted the lack of proof of the mother's enrollment with the University of Phoenix, her alleged employment, or her supposed residence at her own mother's home.

Judge Melendez subsequently issued an order on February 2, 2012 terminating the Division's litigation, and granting both legal and physical custody of A.F.D. to J.F. under the FD docket. The judge allowed the mother to continue visiting A.F.D. every other week with supervision for two hours.

Judge Melendez issued a companion written statement of reasons further explaining her February 2 order. In that detailed order, the judge summarized the testimony at length. Among other things, the judge found Jacoby, Isis, and J.F. to be credible witnesses.

Judge Melendez specifically recognized that the mother had not tested positive for drug use in court for "quite some time." The judge questioned, however, whether these in-court drug screens demonstrated continual abstinence from drug use, because the screens were not random. Additionally, the judge noted that the mother had not presented proof of enrollment in, nor completion of, a drug treatment program.

Judge Melendez observed that although the mother claimed to be living with her own mother, the court had no corroborating evidence of that assertion. The judge also noted that concerns over the mother's parenting skills had not been adequately addressed. The judge questioned the mother's credibility, citing as an example her changing assertions about the identity of A.F.D.'s father. As another negative credibility factor, the judge cited the mother's absence from the proceedings on January 13, 2012, despite the fact that proceedings on the previous day had been adjourned specifically to accommodate her. The judge perceived that the mother's actions indicated that A.F.D. was not her "main priority."

In sum, Judge Melendez concluded that it would be unsafe to return A.F.D. to the mother's custody, due particularly to her substance abuse, lack of stable housing, and lack of parenting ability. By contrast, the judge found that J.F. had demonstrated that his home was an appropriate placement for A.F.D., and that it would therefore be in A.F.D.'s best interest to grant J.F. custody. In this regard, the judge noted that J.F.'s contact with A.F.D. had favorably progressed ever since J.F. was named as the father. The judge also cited A.F.D.'s stated desire to live permanently with J.F.

For these various reasons, the judge awarded J.F. legal and physical custody of A.F.D. and terminated the abuse and neglect proceedings under the FN docket. The judge did allow the mother to continue her visits of A.F.D., on a supervised basis for two hours every other week.

This appeal by the mother followed. Fundamentally, she contends that the trial court erred in terminating the Division's litigation and awarding custody of A.F.D. to J.F. The mother further argues that she was denied equal protection of the law because the court treated J.F., the child's father, more favorably than her. Lastly, the mother claims the trial court denied her right to fundamental fairness in the proceedings.

II.

This case is primarily an abuse and neglect case, brought under Title 9, N.J.S.A. 9:6-8.21 to -8.73. Where the Division seeks temporary custody of a child based on a belief that a child has been neglected or abused, the trial judge presiding over the matter has a duty to conduct an evidentiary hearing, in which the judge must make specific factual findings to determine "'whether the child is an abused or neglected child.'" N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 261-62 (App. Div. 2002) (quoting N.J.S.A. 9:6-8.44). At the fact-finding hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). The Division bears the burden of proving abuse and neglect by a preponderance of such competent evidence. Ibid. If the court is satisfied that this burden has been established, it "shall state the grounds for [such] findings." N.J.S.A. 9:6-8.50(a).

The trial court's factual findings are entitled to deference on appeal "because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). That entitlement to deference is further buttressed by the recognition that family courts have a "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). Appellate courts are not to disturb a trial court's findings if they are premised on "sufficient, credible evidence." Ibid.; see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (comparably describing the standard of review, stating that "we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice") (internal quotation and citation omitted).

We also are cognizant that the United States and New Jersey Constitutions protect a parent's right to maintain a relationship with his or her child. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551, 558-59 (1972); M.M., supra, 189 N.J. at 279. Nevertheless, that right is not absolute, and "'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" G.M., supra, 198 N.J. at 397 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Substantively, an "abused or neglected child" is defined in Title 9 to include:

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.
[N.J.S.A. 9:6-8.21(c)(4).]

See also N.J.S.A. 9:6-8.9 (similarly defining an "abused child" in provisions addressing the reporting of alleged child abuse).

Here, the mother stipulated that she abused and neglected A.F.D., so the matter appropriately proceeded to the next stage, which is a dispositional hearing to determine the ultimate outcome of the case. N.J.S.A. 9:6-8.50(d) and (e). As the Supreme Court observed in G.M.:

the [trial] court has multiple alternatives in determining the appropriate disposition. The court may enter a suspended judgment, N.J.S.A. 9:6-8.52; release the child to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint, N.J.S.A. 9:6-8.53; place the child with "a relative or other suitable person, " N.J.S.A. 9:6-8.54(a); make an order of protection, N.J.S.A. 9:6-8.55; place the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or require the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a). In all cases the court "shall state the grounds for any disposition made." N.J.S.A. 9:6-8.51(b).
[G.M., supra, 198 N.J. at 399-400.]

Pursuant to the statute and G.M., Judge Melendez held several days of dispositional hearings to determine whether A.F.D. should be returned to the mother. As we have already described above, much of the testimony was to the effect that placement with J.F. was in A.F.D.'s best interest. Only the mother disputed that proposition, though many of her claims at the hearing were uncorroborated, and she was found not credible.

The trial judge properly addressed the required inquiry under New Jersey Division of Youth & Family Services v. J.D., 417 N.J.Super. 1, 22 (App. Div. 2010), namely whether A.F.D. could be returned to his mother or if some other arrangement was in A.F.D.'s best interest. In particular, the judge reasonably found that the mother's lack of participation in services offered through the Division and her absence from important proceedings were evidence that the mother did not believe that returning A.F.D. to her custody was an important priority. For these and other enumerated reasons, the judge soundly concluded that it would be unsafe to allow the mother to take custody of A.F.D. Similarly, the court reasonably found that it would be in A.F.D.'s best interest to grant J.F. custody. Although we recognize that no bonding evaluations with A.F.D. were completed, they were not vital in light of the nature of the strong proofs presented by the Division and the Law Guardian. Moreover, there was a home study indicating J.F.'s fitness as a parent. The evidence presented by the Division and the Law Guardian at the dispositional hearings supported these conclusions.

We reject the mother's characterization in her brief that the trial court, in effect, "terminated" her parental rights. To the contrary, although the judge granted custody to J.F., that custody ruling was specifically qualified by the court's decision to terminate only the Division's litigation under Title 9 and to transfer custody to J.F. in the pending FD non-dissolution matter. There is nothing in the court's order that precludes custody from being re-examined in the FD docket matter if there is a sufficient change in circumstances. See, e.g., G.M., supra, 198 N.J, at 402 n.3; Lepis v. Lepis, 83 N.J. 139 (1980). Indeed, the trial judge preserved the mother's involvement in A.F.D.'s life by granting her biweekly supervised visitation. Moreover, J.F., who the trial court found to be a credible witness, testified that he would not prevent A.F.D. from having visits with his mother. There simply has been no conclusive or effective termination of the mother's parental rights.

We reject the mother's claims that the trial court treated her unfairly or deprived her of fundamental fairness. The male gender of J.F. was not the basis for the judge's decision. Instead, it was soundly based upon the credible evidence. The parents were not "similarly situated." Cf. State v. Fernandez 209 N.J.Super. 37, 47 (App. Div. 1986), certif. denied, 109 N.J. 481 (1987). The mother was provided with sufficient notice of the proceedings, the representation of counsel, and a fair opportunity to present her side of the case, including adjournment of the continued G.M. proceedings to accommodate her testimony — even after she left court early one day and failed to appear the following day. In sum, the mother's contentions for reversal lack merit and do not warrant any further comment. R. 2:ll-3(e)(1)(E).

Affirmed.


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