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New Jersey Division of Child Protection and Permanency v. S.D.

Superior Court of New Jersey, Appellate Division

March 8, 2018

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
S.D., [1] Defendant-Appellant. IN THE MATTER OF A.D., W.D., K.D., Se.B., T.B., Sa.B. and M.B., Minors.

          Argued November 15, 2017

         On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0473-14.

          Meghan K. Gulczynski, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Meghan K. Gulczynski, on the briefs).

          Sara 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 brief).

          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).

          Before Judges Fuentes, Koblitz and Manahan.

          KOBLITZ, J.A.D.

         This 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.

         Defendant 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.

         In 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.

         Two 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 accepted.

         The children were later removed by the Division from the mother's custody on April 29, 2014, through an emergency Dodd removal.[2] 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.

         Two 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 child's father.

         In 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.

         The 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 SCHOOL.
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 ...

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