NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
S.D.,  Defendant-Appellant. IN THE MATTER OF A.D., W.D., K.D., Se.B., T.B., Sa.B. and M.B., Minors.
November 15, 2017
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Hudson County, Docket No. FN-09-0473-14.
K. Gulczynski, Designated Counsel, argued the cause for
appellant (Joseph E. Krakora, Public Defender, attorney;
Meghan K. Gulczynski, on the briefs).
M. Gregory, Deputy Attorney General, argued the cause for
respondent (Christopher S. Porrino, Attorney General,
attorney; Andrea M. Silkowitz, Assistant Attorney General, of
counsel; Jonathan M. Villa, Deputy Attorney General, on the
Melissa R. Vance, Assistant Deputy Public Defender, argued
the cause for minors (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Melissa R. Vance, on the brief).
Judges Fuentes, Koblitz and Manahan.
appeal requires us to address certain legal questions that
arise when a case that involves the custody of a child under
a Title 9 abuse or neglect FN complaint filed by the Division
of Child Protection and Permanency (Division) is interrupted
by a private custody case initiated by a member of the
child's family. To ensure legal protection for the
parents, we suggest a method of handling FD non-dissolution
complaints when they are heard in the midst of FN litigation.
S.D., the mother of seven children, appeals from both a
February 24, 2015 finding that she educationally neglected
her six-year-old daughter and a November 19, 2015 order
dismissing the FN litigation, leaving the children in the
custody of two grandmothers under FD orders. The Division
held legal custody of the children after they were removed
from their mother in a still-open FN matter before the FD
hearing was held. The Deputy Attorney General representing
the Division participated in the FD hearing, although the
Division was not named as a defendant. The mother's
counsel did not participate in the hearing, although the
mother was named as the defendant in the FD complaints. We
disapprove of this procedure, although we find no harm to the
mother under these particular circumstances, and affirm. We
also affirm the finding of educational neglect and the
dismissal of the litigation over the objection of defendant.
March 2012, the Division began its involvement with this
family when it received a referral regarding substance abuse
by the parents. The Division provided services and monitoring
without filing a complaint in court.
years later, on March 18, 2014, the Division sought custody
of defendant's seven children pursuant to N.J.S.A.
9:6-8.21 and N.J.S.A. 30:4C-12. At the hearing,
defendant's mother, Sh.D., testified that defendant and
the children could live in her apartment until defendant
could find a more stable living arrangement, a plan the court
children were later removed by the Division from the
mother's custody on April 29, 2014, through an emergency
Dodd removal. The Division conducted the removal because
six-year-old K.D. was not attending kindergarten. The
children were returned to defendant's care three days
later. The judge ordered defendant to engage in services
including psychological evaluations, drug and alcohol
screenings, substance abuse treatment meetings, and anger
management counseling. The judge also ordered defendant to
enroll K.D. in school by May 5, 2014, four days from the date
of the hearing.
months later, the Division filed an amended complaint for
custody, care and supervision of the children. The trial
court held a case management conference on July 14, 2014. At
this conference, the Division explained that there had been
an altercation between defendant and her oldest daughter,
A.D., who left defendant's home to live with the
August 2014, the trial court held a review hearing. At this
hearing, defendant was arrested and taken into custody
because of her failure to appear at a truancy hearing
regarding K.D. The court granted the Division custody of the
remaining six children including K.D., and the children were
placed with their maternal grandmother, Sh.D.
trial court held a fact-finding hearing in February 2015,
followed immediately by a custody hearing under FD docket
numbers, and placed the seven children in the legal custody
of their grandmothers. A.D. was placed in the legal custody
of her paternal grandmother and the other children in the
legal custody of Sh.D. Defendant presents the following
arguments on appeal:
POINT I: THE COURT ERRED IN FINDING THE DEFENDANT
WILLFULLY AND WANTONLY FAILED TO ENROLL HER DAUGHTER IN
POINT II: THE COURT FAILED TO CONDUCT AN EVIDENTIARY
HEARING AND APPLIED THE INCORRECT STANDARD WHEN IT DENIED THE
DEFENDANT REUNIFICATION IN VIOLATION OF THE DEFENDANT'S
RIGHT TO DUE PROCESS.
POINT III: THE COURT ERRED IN TERMINATING THE
LITIGATION IN VIOLATION OF THE DEFENDANT'S DUE ...