NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant,
K.N. and K.E., Defendants-Respondents. IN THE MATTER OF T.E., A minor
Submitted: February 4, 2014.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-230-13.
John J. Hoffman, Acting Attorney General, attorney for appellant ( Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.E. ( Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Respondents K.N. and K.E. have not filed briefs.
Before Judges MESSANO, HAYDEN and ROTHSTADT. The opinion of the court was delivered by MESSANO, P.J.A.D.
[435 N.J.Super. 19] MESSANO, P.J.A.D.
By our leave granted, the Division of Child Protection and Permanency (the Division) appeals from those provisions of the June 10, 2013 order of the Family Part that, over the Division's objections, awarded physical custody of six-year-old T.E. (Tommy) to his " maternal grandmother as a paid resource placement," and denied the Division's request for psychological evaluations of Tommy's maternal grandparents, Charlotte and Carl H. The litigation commenced on May 9, 2013, when the Division filed a verified complaint and order to show cause seeking care and supervision of Tommy pursuant to N.J.S.A. 30:4C-12. At the time, Tommy was in the " physical legal custody" of his mother K.N. (Kara), and both had resided in Carl and Charlotte's home for several months.
We need not set forth the contents of the Division's complaint at length, because they are largely irrelevant to the issues presented on appeal. However, to place the controversy in some context, we reference the more pertinent allegations.
[435 N.J.Super. 20] Tommy was born in March 2007 to Kara and K.E. (Kevin). That year, upon receiving referrals of domestic violence between Kara and Kevin, and after Kara tested positive for marijuana and opiates, the Division filed an order to show cause and verified complaint in the Family Part. In November 2007, the court granted the Division custody of Tommy, who was placed " in a relative care home."  In November 2008, after Kara and Kevin actively participated in services, the litigation was terminated and the family reunited.
The Division continued to provide services, since Kara was participating in substance abuse counseling, and additional referrals were made in December 2009 and September 2011. In April and May 2012, the Division investigated allegations of domestic
violence between Kara and Kevin, and that Kara had stolen prescription painkillers from her sister. Kara denied the allegations and agreed to visit the Division's office for urine screening. She failed to appear. During the balance of 2012 and into 2013, Kara and Kevin participated in separate drug and alcohol counseling programs, and the Division continued to monitor their progress.
During a February 2013 visit, the Division's caseworker was advised that Kara was sixteen weeks pregnant. After Kara failed to attend a substance abuse evaluation, the caseworker visited Carl and Charlotte's home on March 27, 2013. Carl reported that Kara, Kevin and Tommy had moved into their home, but after Kevin's continued verbal abuse of Kara, Carl told Kevin to leave. The entire family left for a few days but were evicted from a motel in Belmar for failing to pay their rent. Only Kara and Tommy returned to the H.'s home. Carl told the caseworker he had discovered that eighteen of his pain pills were missing and was concerned Kara had taken them.
During an April 1, 2013 visit, Tommy told the caseworker that Kara takes a pill " sometimes in the morning and at night." [435 N.J.Super. 21] Tommy showed the caseworker where he kept his toys and said that Kara would sometime keep her pills there. Kara denied using any drugs and claimed Tommy was speaking of the pre-natal vitamins she was taking. However, on April 3, Kara tested positive for opiates. The Division's caseworker met with Carl and Charlotte and advised that Kara would need to be supervised whenever she was with Tommy. On April 9, Kara submitted another urine sample that was positive for opiates.
On May 10, 2013, the judge granted the Division's request and entered an order to show cause against Kara and Kevin, returnable June 6. Although the Division sought an order placing Tommy in its " care and supervision," the Law Guardian apparently urged the judge to grant the Division custody. The order provided that
[Tommy] be immediately made a ward of the court and placed in the immediate custody, care and supervision of the Division with authorization for the Division to consent to routine and emergency surgical or medical treatment to safeguard the life or health of the child.
The order did not explicitly provide for Tommy's placement with Carl and Charlotte; however, later proceedings revealed that the Division agreed to this as an initial placement. At the time, Kara's sister and her four children were also living with Carl and Charlotte. The order further provided:
[Kara] shall be permitted to reside with the maternal grandmother for [five] days (while DCPP has custody) so she can try to obtain in-patient treatment. If [Kara] needs more time[,] then counsel shall conference.
[Kara] shall be supervised by the maternal grandmother on a [twenty-four] hour/[seven] day per week basis and the birth mother is not permitted to drive the child in a car.
On the return date of June 6, the Law Guardian immediately brought to the Court's attention that Tommy had been removed from Carl and Charlotte's home by the Division and placed with his maternal great aunt, C.S. (Celeste). The Law Guardian reported that Tommy believed the removal was " his fault," and his behavior had changed as a result of leaving his mother, aunt, cousins and grandparents.
[435 N.J.Super. 22] When the judge asked why the Division had removed Tommy, the Deputy Attorney General (DAG) directed the judge's attention to a " court report" dated May 29 that indicated Tommy " had to be moved due to [Carl] being on the perpetrator list" as the result of a " [domestic violence] incident where [Carl] held a gun to [Charlotte's] head." The judge, however, indicated that pursuant to N.J.S.A. 30:4C-26.8, licensure of a placement home could be withheld as the result of a criminal conviction, but " no one is convicted of domestic violence. . . . It's a civil proceeding . . . ." The judge directed court staff to ascertain the results of the prior domestic violence complaint against Carl and obtained a report that it had been dismissed.
The Law Guardian urged the judge to return Tommy to Carl and Charlotte, but the Division objected, noting that Kara had not entered an in-patient substance abuse counseling program and was still in the home. Kara indicated she would immediately vacate the home to facilitate Tommy's return. The judge entered an order that provided in part that Tommy would be returned to Charlotte the following day, and that Kara would " vacate the . . . residence immediately[.]"
The next day, June 7, the judge held a hearing apparently in response to the Division's emergent request for reconsideration. The judge stated that the Division " removed a child from where the [c]ourt had placed [him] . . . without notice to the [c]ourt, Law Guardian or any defense counsel . . . . There was absolutely no due process . . . whatsoever." The judge further explained:
[A] request was made today for the Court to revisit this. The Court denied that request. It made its decision regarding the placement of this child. It issued an order to that effect but, once again, we run into a situation where the Division does not agree with the Court's decision and has engaged, again, in a constant attacking of the Court's decision. The Court made its decision.
All right. The Court denied a request for a rehearing today. Period.
The judge did, however, grant the Division's request for a hearing to stay the June 6 order. Noting that he wanted the parties to brief the issue, the judge asked rhetorically:
[435 N.J.Super. 23] And why does the Court want that? Because it just went through this with the Division in which many things were misrepresented to the Appellate Division in the context of the request for the stay.
Also, because of the lack of due process that the Court is very concerned with in this case, it will give the parties an opportunity to respond to the Division's submission on a request for a stay so that we can have an accurate [a]ppellate record in this case.
The judge also referenced an " amended court report" dated June 7. That report revealed that the Division substantiated a finding of neglect against Carl in 2004 stemming from a referral by the Family Part domestic violence judge. One of the victims of the neglect finding was Kara, who was present in the home when Carl displayed a gun and threatened Charlotte. The amended court report also indicated that Kara's sister, now living in the home with her children, had " current child endangerment charges" filed against her. Additionally, the report stated that Carl was " verbally hostile" towards the Division's caseworkers when Tommy was placed on May 10, initially refused to sign any of the documents in the " resource packet," had " swastika flags hanging in his office" and made racially derogatory remarks. However, the judge concluded:
[T]here's nothing in this [amended] report that the [c]ourt feels is an imminent risk of harm to this child's health, safety or welfare such that the child should not be placed there as ordered by the [c]ourt since the child shouldn't have been removed in the first instance, particularly without a hearing or any due process being afforded any of the parties in this case, as well as the child who has rights.
The Division filed its formal motion for a stay, supported by a certification and attachments, including copies of the police report from the 2004 incident involving Carl. The report revealed that during a family argument, Carl retrieved a gun from his home office and threatened to kill Charlotte and other family members. Charlotte said that he had made similar threats in the past, but she never reported them to police.
The certification also included the Division's contact sheets detailing the May 10 placement. It suffices to say that the caseworkers claimed Carl was " verbally abusive" toward them in front of the children in the home and made racially derogatory remarks. When asked to review the resource placement materials [435 N.J.Super. 24] and sign the case plan, Carl initially refused. The Division placed Tommy with Celeste on May 13. There is no indication in the record that the Division provided notice to anyone about Tommy's removal and placement with Celeste.
At the start of the hearing on the Division's request for a stay, the judge expressed his " hope that this would be taken up to a higher court for two legal issues to be resolved." He described those as: (1) " the treatment of domestic violence findings and how that pertains to the Division's ability to license a home" ; and (2) " whether a substantiation, in and of itself, would require the removal of a child because the Division could not license a home."
The court heard from Carl, who explained that his frustrations with the Division were directed solely at the process. He stated that he and Charlotte were currently raising four other grandchildren, who were loved and well-cared for. He wanted Tommy to be part of the family. Carl also explained that the swastika was a " souvenir" his father brought back from fighting " under General Patton in World War II." He admitted using a racially derogatory term in front of the workers, but stated that he did so only in the ...