November 26, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
J.H., Defendant-Appellant, and R.R., Defendant-Respondent, and T.H., Defendant. IN THE MATTER OF S.R. and G.R., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2013 
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-39-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Amy M. Williams, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lisa A. Puglisi, Assistant Attorney General, of counsel; Hannah F. Edman, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent R.R. (Dana Citron, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Katherine J. Bierwas, Designated Counsel, on the brief).
Before Judges Harris and Guadagno.
Defendant J.H. (Joan),  the biological mother of the minor children S.R. (Sam) and G.R. (Gina), appeals from the June 5, 2012 order of the Family Part finding that she abused or neglected Gina. Joan also appeals from that part of the order terminating litigation and continuing the children in the custody of their father, R.R. (Robert). We affirm.
Sam was born to Joan and Robert on August 11, 2007, and Gina was born to them on May 10, 2009. Joan and Robert separated and Joan obtained a final restraining order against Robert. In 2010, both children were residing with Joan and her boyfriend, T.H. (Thomas). Between April 14, 2010, and June 14, 2011, the Division received six referrals concerning the children, all of which were determined to be unfounded after investigation.
On August 5, 2011, Joan took Gina to the emergency room at Virtua Memorial Hospital with what was diagnosed as a "minor head contusion." Joan told doctors that Gina fell when getting off the toilet and struck her head. Gina was treated and released.
Five days later, Joan returned to Virtua with Gina who presented with a swollen right eye. A CT scan showed skeletal "frontal soft tissue swelling." Ultimately, Gina was diagnosed with conjunctivitis, prescribed Ocuflox, and discharged from Virtua.
On August 19, 2011, Joan brought Gina to her pediatrician, Dr. Bryan H. Levey,  and told him Gina had fallen down stairs. Dr. Levey noticed bruising "all over [Gina's] body, " and when he questioned Joan as to how the child was injured, Joan's explanation changed. Dr. Levey determined that "while it is possible that the injuries sustained by [Gina] could have possibly resulted from a fall, the likelihood of such [is] minimal." Dr. Levey referred Joan to Virtua for additional testing and an assessment of Gina's injuries, but when Joan returned home and called for medical transportation, she was taken to Cooper Hospital.
The Division was notified and a caseworker responded to Cooper Hospital. There, the caseworker spoke first with attending nurse, Rachel McClintock, who reported that Gina displayed bruises "from head to toe . . . in varying stages of healing, " and hemorrhaging in both eyes. The caseworker also spoke with Dr. Kathryn McCans who examined Gina and found that the child's liver enzyme levels were very high. Dr. McCans explained that was an indicator that the child may have suffered blunt force trauma.
When the Division learned that Sam was staying with a relative while Joan was at the hospital with Gina, the Division effected an emergency removal of Sam and placed him in foster care. Sam was questioned by a caseworker and stated he did not like his mother's boyfriend, Thomas, because Thomas punched Sam in the back and had punched Gina in her face and stomach. When Gina was interviewed, she told a caseworker that Joan and Thomas had hurt her.
On August 22, 2011, Gina was cleared for release from Cooper Hospital, and the Division took custody of her and placed her in foster care. On August 24, the Family Part granted custody of both children to the Division with the consent of Joan.
On September 13, 2011, all parties, including Robert, appeared. The deputy attorney general indicated that psychological evaluations had been scheduled for Joan, Thomas, and Robert, however, counsel for Joan indicated that she was objecting to participating in the psychological evaluation until the conclusion of the fact-finding hearing. Thomas joined in that application and the court agreed to delay the evaluations.
Robert, who was not represented, requested that he be granted custody of both children. The court entered an order that continued custody, care, and supervision of the children with the Division and directed that Robert be investigated as a possible placement for both children.
On November 7, 2011, after receiving a report from Robert's therapist, Dr. Michael Palmer, that Robert would be an appropriate caregiver, the court granted the Division's request to transfer custody of both children to Robert with the Division maintaining care and supervision. The Division informed the court that Robert had completed an extensive rehabilitative program, which included anger management and parenting skills. After completing twenty-six weeks of the thirty-week program, Dr. Palmer opined that Robert presented no risk if the children were placed in his custody.
On November 8, 2011, Dr. McCans prepared a written report based on two examinations of Gina: the first was conducted as an in-hospital consultation while Gina was admitted to the Children's Regional Hospital at Cooper on August 19, 2011; the second was a follow-up examination conducted on August 22, 2011.
In her assessment of Gina's physical examination, Dr. McCans noted the "extent and location of [Gina's] bruises is not typical of bruises that result from accidental injuries" and Gina's elevated liver enzymes, which were not radiographically evident, "raises the concern for blunt abdominal trauma to the liver." Ultimately, Dr. McCans concluded:
Taken in total, the history, physical examination, and laboratory results are highly concerning for non-accidental trauma. Due the extent, location, and multiplicity of injuries, it is diagnostic of non-accidental trauma to a medical degree of certainty.
. . . .
At minimum, a safety plan must be in place. I recommend that the caretakers receive parenting education that addresses child development, appropriate discipline, and appropriate supervision.
On December 19, 2011, Joan and Thomas were arrested and charged with second-degree endangering the welfare of a child. Bail for each was set at $75, 000, with no ten-percent cash bail option, and a special condition of release of no contact with the children. Bail for Joan was later reduced to $60, 000.
On February 14, 2012, the parties were produced before the trial court for a fact-finding hearing. Neither had posted bail. The Division informed the court that it was seeking a finding of abuse and neglect against Joan and Thomas and suggested proceeding with the fact-finding through submission. The Division produced eight exhibits it would rely on, and all parties agreed to proceed in this fashion.
The Division reported to the court that Robert successfully completed his anger management and parenting skills program with Dr. Palmer, and Joan's contact with the children had been suspended because of the restrictions imposed in the criminal case. The Law Guardian informed the court that Gina and Sam were doing "very well" with Robert and there were no concerns.
On April 23, 2012, the parties appeared for closing arguments. The court admitted into evidence, without objection, the Division's eight exhibits. After hearing arguments from counsel, the court determined that the Division had met its burden of establishing a prima facie case of abuse or neglect, by presenting proof that Gina had sustained injuries of such a nature as would ordinarily not be sustained except by reason of the acts or omissions of the parent or guardian. The court held that the burden of production shifted to defendants to come forward with evidence to rebut the presumption of abuse or neglect. Joan was permitted to submit written arguments by May 4, 2012.
On June 5, 2012, the court determined the Division established a prima facie case of abuse and Joan and Thomas had failed to rebut the presumption:
defendants have not satisfied their burden of establishing nonculpability by a preponderance of the evidence and [the court] finds that they have abused . . . or neglected [Gina] by failing to exercise a minimum degree of care and allowed harm to be inflicted upon her.
The court then turned to the dispositional issue. The Division moved to dismiss the litigation, explaining both children have resided with Robert since November 7, 2012, and were doing well. Joan remained incarcerated and was unable to care for the children. Joan initially objected to the dismissal, claiming it would deny her services she needed "to eventually fight for her children." When the deputy attorney general explained that any need for services could be addressed in the criminal proceeding and, upon her release, Joan could move for a modification of custody under an FD docket, Joan withdrew her objection to the Division's motion to dismiss.
On appeal, Joan presents the following arguments:
THE TRIAL COURT'S ORDER GRANTING LEGAL AND PHYSICAL CUSTODY OF THE CHILDREN TO THE FATHER ON NOVEMBER 7, 2011, ENTERED ONLY MONTHS AFTER DCPP HAD BEEN GRANTED TEMPORARY LEGAL AND PHYSICAL CUSTODY OF THOSE CHILDREN ON AN EMERGENT BASIS, WAS IMPROPERLY PREMATURE AND DENIED THE MOTHER THE DUE PROCESS RIGHTS ATTENDANT TO HER CONSTITUTIONAL RIGHT TO THE CARE AND CUSTODY OF HER CHILDREN.
THE PURPORTED COMBINED ABUSE AND NEGLECT FACT FINDING AND DISPOSITIONAL HEARING ON JUNE 5, 2012 WAS FOCUSED ENTIRELY AND EXCLUSIVELY ON THE FACT FINDING, LACKED ANY EVIDENCE OR TESTIMONY WHATSOEVER CONCERNING CUSTODY OR SAFETY, AND WAS OTHERWISE PROCEDURALLY AND SUBSTANTIVELY INSUFFICIENT FOR DISPOSITIONAL PURPOSES UNDER G.M.
IT WAS IMPROPER FOR THE TRIAL COURT TO DISMISS THE LITIGATION AND THEREBY RELIEVE DCPP OF THE OBLIGATION TO PROVIDE SERVICES TO THE MOTHER UNDER CIRCUMSTANCES WHERE DCPP HAD INITIATED CUSTODIAL INTERFERENCE, BUT HAD THEREAFTER FAILED TO PROVIDE ANY SERVICES TO THE MOTHER TO AID HER IN REGAINING CUSTODY OF HER CHILDREN.
Appellate review of family court decisions is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). "[F]indings by [a] trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413; see also F.M., supra, 211 N.J. at 448 (noting the cold record can never adequately convey the actual happenings and feel witnessed by the family court). Such deference is especially warranted when custody issues are present. See Abouzahr v. Matera-Abouzahr, 361 N.J.Super. 135, 157 (App. Div.) (citing DeVita v. DeVita, 145 N.J.Super. 120, 123 (App. Div. 1976)), certif. denied, 178 N.J. 34 (2003).
The custody conclusions of trial judges "are entitled to great weight and will not be lightly disturbed on appeal." DeVita, supra, 145 N.J.Super. at 123; see also Sheehan v. Sheehan, 51 N.J.Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). Deference is not appropriate, however, if the trial court's findings "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
Joan challenges the court's transfer of custody from the Division to Robert as "improperly premature" and a violation of her due process rights. We disagree.
After the children were removed from Joan in August 2011, the Division placed them temporarily in foster care. Shortly after their removal, Robert requested that both children be placed with him. The court ordered the Division to evaluate Robert.
Robert submitted to a psychological evaluation in September 2011, and engaged in counseling and parenting skills training. A Division caseworker spoke with Dr. Palmer who was providing these services to Robert. Dr. Palmer told the caseworker that Robert had almost completed both programs. The caseworker inquired whether Robert might pose a risk to the children because of the outstanding restraining order, and Dr. Palmer indicated he was not a risk and was doing well in his program.
On November 7, 2011, the court made the following findings:
Dr. Palmer has treated [Robert] 26 of 30 weeks in a thorough domestic violence program and that further the [c]ourt finds as a fact that [Robert] has complied with psychological evaluations which confirm the services that he is engaged in at this time.
The court granted the Division's motion to transfer custody of both children to Robert. The court gave "considerable weight" to the recommendations of Dr. Palmer, as related by the caseworker. The court also noted that Robert was living with his mother and sister who would provide additional support in caring for the children.
Joan now objects to the court's reliance on the "hearsay oral reports" of Dr. Palmer and the lack of "contemporaneous business records memorializing those conversations [between Dr. Palmer and the caseworker.]" Although Joan objected to the transfer of custody during the November 7, 2011 hearing, there was no objection to the procedures employed by the court; she made no request to have either Dr. Palmer or the caseworker testify, and made no demand that Dr. Palmer's recommendation be reduced to a written report.
Our jurisdiction is "bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Had Joan interposed a timely objection to the procedure employed by the court, a hearing could have been scheduled or Dr. Palmer could have been asked to provide a written report of Robert's progress. Challenging the procedure for the first time on appeal denies the court and the Division the opportunity to "defend, explain, or rebut [the] challenged ruling and the trial judge should have a clear first chance to address the issue." Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging 84-85 (W.W. Norton & Co. 1994), quoted in Robinson, supra, 200 N.J. at 19.
There is nothing in the record to indicate that the representations made to the court by the caseworker regarding Dr. Palmer's recommendations were inaccurate, incomplete, or unreliable. We also note that Joan had no objection to placing the children with Robert's mother, with whom he resided. We find no error in the court's decision to take the children out of the foster home where they had resided since the removal and place them with their father.
In Points II and III, which we address together, Joan challenges the procedure employed by the court in conducting the June 5, 2012 dispositional hearing, as well as the decision to dismiss the litigation without providing additional services to her.
When the parties appeared on June 5, 2012, the court announced that it would be providing the decision on the fact-finding and then conducting a dispositional review hearing. After rendering its decision at the conclusion of the fact-finding, the court moved to the dispositional phase. The Division moved for a dismissal of the litigation, noting that the children, who had been in Robert's custody since November 7, 2011, were doing well. Joan was still incarcerated and the deputy attorney general indicated that her visitation with the children would depend on the bail restrictions in the criminal case if she was released. The Law Guardian supported dismissal as did Robert's counsel.
Joan initially objected to the dismissal and requested an opportunity to address the court. She was sworn and attempted to provide "a time line of exactly what happened[.]" The court informed Joan that she was given an opportunity to testify at the fact-finding hearing but she had declined. Since Joan was facing criminal charges relating to her actions in this matter, the court suggested that she consult her counsel before saying anything. After a brief recess to speak with her attorney, Joan withdrew her objection to the dismissal of the litigation.
The court then determined there were "no safety concerns with the children[, ]" and dismissed the litigation. The court ordered Joan's contact with the children to be supervised, subject to any bail restrictions once she was released in her criminal case. Any modifications to custody were to be made under an FD docket. Joan now claims that the hearing was "woefully deficient for dispositional purposes."
"Upon completion of the fact-finding hearing, the dispositional hearing may commence immediately after the required findings are made." N.J.S.A. 9:6-8.47(a). The central question in a Title Nine dispositional hearing is whether the child may be safely returned to the custody of the parent from whom the child was removed. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 402 (2009). G.M. instructs that
[a]t the dispositional hearing, both sides may present material and relevant evidence for the court to determine whether the children may safely be released to the custody of [the parent] who was responsible for their care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate.
Here, the Division presented substantial evidence to support the judge's conclusion that Joan had abused or neglected Gina. The court found
[Joan] and [Thomas] have not offered satisfactory explanations concerning [Gina's] injuries, let alone carried the burden, their burden by a preponderance. They assert that [Gina] sustained these injuries by falling downstairs. The [c]ourt finds that this account is not credible [be]cause the New Jersey Cares Institute states that due to the extent, location, and multiplicity of injuries [Gina's] injuries were as a result of nonaccidental trauma, to a medical degree of certainty. And Dr. Levi also stated the likelihood that the injuries were a result of a fall were minimal.
On appeal, Joan does not challenge the sufficiency of the evidence or the court's finding that she abused or neglected Gina. Rather, she claims the dismissal improperly relieved the Division of its obligation to provide services to her to enable her to reunify with her children. She argues the record is devoid of any evidence that the Division "made any efforts to provide [her] with any assistance or service that might further the goal of rehabilitating the circumstances that led to the removal of [Sam and Gina]." We disagree.
On August 24, 2011, Joan's first appearance in court on this matter, the deputy attorney general indicated that the Division would be providing psychological services and "parenting services as requested" to Joan, Thomas, and Robert. The court "strongly recommended that [defendants] cooperate with the Division so that . . . the children can eventually be returned[.]"
On the next court date, September 13, 2011, the deputy attorney general advised that the Division had scheduled psychological evaluations for all three defendants; Joan's was set for the following day, September 14, 2011. Joan's counsel informed the court that she objected to participating in a psychological evaluation until the completion of the fact-finding hearing and asked that it be delayed until after she "has been through her trial and found to have abused if that's the case, we don't want a psychological so we're objecting to that until after the [c]ourt can order it." Thomas made the same request, and the court granted both applications to delay their psychological evaluations.
The psychological evaluation is among the most commonly offered services provided by the Division when children have been removed from their parents. Often, these evaluations provide insight as to a parent's needs and include recommendations for additional services to address the issues that caused the removal. Although Joan was free to reject the Division's offer to provide psychological services, having made that decision, she cannot now complain that the Division failed in its obligation to provide assistance to enable her to reunify with her children. Although her reasons for eschewing this service were never made clear on the record, Joan must have understood that her refusal would delay any reunification.
Moreover, Joan was still incarcerated at the time the Division moved to dismiss the litigation and understandably was unable to provide any reasonable estimate for how long it would take to resolve her criminal case. It would not be reasonable to continue the Title Nine litigation for an indeterminate period. N.J.S.A. 9:6-8.50(c) requires dismissal of a Title Nine action where "facts sufficient to sustain the complaint under [Title Nine] are not established, or the court concludes that its assistance is not required on the record before it[.]" As the Court held in N.J. Dep't of Children & Families v. I.S., 214 N.J. 8, 30 (2013), cert. denied, 82 U.S.L.W. 3257 (U.S. Nov. 4, 2013):
N.J.S.A. 9:6-8.50(c) is directory in nature. It provides that the court 'shall' dismiss the complaint and state the reasons for doing so. The statute reflects a legislative disinclination to keep an open-ended abuse and neglect action hanging over a parent's head. Subsection (c) allows the court two bases for dismissing an action; it does not provide two bases for continuing an action.
Finally, Joan's consent to the dismissal of litigation precludes her argument that the dismissal was improper. By her consent, Joan "deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 341 (2010).
Although the procedure outlined in G.M. was not followed precisely, we find the process was adequate and Joan was accorded due process. At the dispositional phase of the proceeding, the court failed to make a specific finding that it was not safe to return the children to Joan but that was evident from Joan's continued incarceration, the "no contact" order in the criminal case, her failure to participate in services, and the findings of the court, unchallenged by her on appeal, that she abused or neglected Gina.
Joan was given an opportunity to challenge the initial award of custody to Robert on November 7, 2011; she was offered a psychological evaluation and presumably would have been offered any services recommended thereafter by the evaluating professional; she was offered the opportunity to testify and provide evidence at the fact-finding hearing; and finally she was offered the opportunity to challenge the Division's motion to dismiss the litigation, but withdrew her initial objection. Throughout the proceedings, Joan was represented by counsel who advised her, argued on her behalf, and challenged court rulings, including the transfer of custody to Robert.