RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5668-17T1
C.T.,
Plaintiff-Appellant,
v.
N.C.P.,
Defendant-Respondent. ______________________________
Submitted October 2, 2019 – Decided December 30, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-1010-14.
Mark J. Molz, attorney for appellant.
Respondent N.C.P. has not filed a brief.
PER CURIAM
This appeal presents a custody dispute between a paternal grandmother,
plaintiff C.T. (Catherine), and her grandchild's mother, defendant N.C.P. (Nora).1 Plaintiff appeals from a June 26, 2018 Family Part order granting
custody of her then six-year-old granddaughter, R.P. (Rose) to defendant. The
Family Part judge entered the order after finding plaintiff failed to present
evidence sufficient to prove defendant was unfit to care for Rose under Watkins
v. Nelson, 163 N.J. 235 (2000).
On appeal, plaintiff argues the judge erred in awarding custody of Rose to
defendant because the evidence demonstrated that defendant used drugs and
provided Rose with inadequate housing. We disagree and affirm.
According to plaintiff, Rose had been in her care since the child's birth.
Plaintiff lives with at least one other individual, but as of 2018, the Division of
Child Protection and Permanency (the Division) maintained there were no
concerns with the condition of plaintiff's home.
Defendant lives in a studio apartment with her fiancé. Rose's bed
allegedly has a tent over the top of it. According to Division caseworkers, the
utilities work, the premises are clean, and there is food available. Further, the
Division has stated defendant's home is safe, appropriate, and has passed all
Division requirements.
1 To protect privacy interests, we use initials and pseudonyms for the parties. R. 1:38-3(d)(12).
A-5668-17T1 2 In February 2014, plaintiff was awarded custody of Rose after she and the
Division filed custody actions.2 Rose remained in plaintiff's custody until 2018,
at which point the Division received referrals about Rose not being properly
cared for by plaintiff. Specifically, the Division received a child protective
services referral on December 9, 2017, about someone bringing drugs into
plaintiff's home and a second referral about a possible overdose. Division
caseworkers arrived at plaintiff's home and found Rose was being cared for by
plaintiff's roommate, rather than plaintiff. The caseworkers then learned
plaintiff had left her sister-in-law and roommate in charge of Rose's care after
she was hospitalized for a broken leg.
On April 17, 2018, the Division received another referral about an adult
who was yelling at a child on the street. Although the reporter stated plaintiff's
roommate was yelling at Rose because of her absences from school, plaintiff
maintained her sister-in-law was the one yelling at Rose. That same day,
Division caseworkers spoke with Rose, who stated both plaintiff's roommate and
sister-in-law were yelling at her because she did not want to go to school.
Although Rose was crying while she was being yelled at, she told the
2 According to plaintiff, defendant lost custody of Rose in 2014 after she failed to attend a drug test and a psychological evaluation. A-5668-17T1 3 caseworkers she was not scared because plaintiff's roommate "yells at her all the
time." After Division caseworkers spoke with plaintiff's sister-in-law, they told
her Rose was going to be removed from plaintiff's home. Plaintiff's sister -in-
law responded by stating she thought that "was best for [Rose]." Later that day,
Division caseworkers contacted defendant, who agreed to take Rose into her
home. Upon arrival, Rose "ran to give [defendant] a hug" and stated she felt
"safe and happy to be with [defendant]."
The next day, the Division filed a verified complaint against the parties to
this action and Rose's father, alleging abuse and neglect under Title 9, N.J.S.A.
9:6-8.21, based on plaintiff's inability to care for Rose. The following day, a
judge entered an order granting defendant "emergency custody" of Rose.
Defendant filed a motion for custody that the Family Part judge
considered on June 26, 2018. The judge entered the order granting custody to
defendant and granting plaintiff "liberal visitation" at defendant's residence and
placed his reasons on the record that same day.
Before granting custody to defendant, the judge found plaintiff would be
a "good caretaker" for Rose, but that the parent's right to custody was
"paramount" under Watkins. Although he found defendant's current living
situation was not ideal, he ultimately awarded her custody stating, "[defendant]
A-5668-17T1 4 has demonstrated that she is capable" of raising Rose at this point and that he
would support both the Division's and the Law Guardian's custody
recommendations. This appeal followed.
In an amplification filed under Rule 2:5-1(b), the judge summarized his
decision and stated the only evidence plaintiff presented to show defendant's
unfitness was that (1) Rose slept in a room together with defendant and her
fiancé; (2) Rose slept with a tent over her head; and (3) defendant had recently
smoked marijuana. According to the judge, this evidence was insufficient to
overcome the presumption of fitness in favor of the parent under Watkins. We
agree.
We review a custody award under an abuse of discretion standard, giving
deference to the court's decision provided that it is supported by "adequate,
substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394,
411-12 (1998). "[T]he decision concerning the type of custody arrangement [is
left] to the sound discretion of the trial court[.]" Nufrio v. Nufrio, 341 N.J.
Super. 548, 555 (App. Div. 2001) (second and third alteration in original)
(quoting Pascale v. Pascale, 140 N.J. 583, 611 (1995)). Therefore, "the opinion
of the trial judge in child custody matters is given great weight on appeal." Terry
v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994). Nevertheless, "we must
A-5668-17T1 5 evaluate that opinion by considering the statutory declared public policy and
criteria which a trial court must consider." Ibid. In doing so, we owe no
deference to "the trial judge's legal conclusions, and the application of those
conclusions to the facts." Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div.
2013).
We begin by noting that a third party may file an action for custody of any
child under N.J.S.A. 9:2-9, which provides in pertinent part:
When the parents of any minor child . . . are grossly immoral or unfit . . .
Free access — add to your briefcase to read the full text and ask questions with AI
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5668-17T1
C.T.,
Plaintiff-Appellant,
v.
N.C.P.,
Defendant-Respondent. ______________________________
Submitted October 2, 2019 – Decided December 30, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-1010-14.
Mark J. Molz, attorney for appellant.
Respondent N.C.P. has not filed a brief.
PER CURIAM
This appeal presents a custody dispute between a paternal grandmother,
plaintiff C.T. (Catherine), and her grandchild's mother, defendant N.C.P. (Nora).1 Plaintiff appeals from a June 26, 2018 Family Part order granting
custody of her then six-year-old granddaughter, R.P. (Rose) to defendant. The
Family Part judge entered the order after finding plaintiff failed to present
evidence sufficient to prove defendant was unfit to care for Rose under Watkins
v. Nelson, 163 N.J. 235 (2000).
On appeal, plaintiff argues the judge erred in awarding custody of Rose to
defendant because the evidence demonstrated that defendant used drugs and
provided Rose with inadequate housing. We disagree and affirm.
According to plaintiff, Rose had been in her care since the child's birth.
Plaintiff lives with at least one other individual, but as of 2018, the Division of
Child Protection and Permanency (the Division) maintained there were no
concerns with the condition of plaintiff's home.
Defendant lives in a studio apartment with her fiancé. Rose's bed
allegedly has a tent over the top of it. According to Division caseworkers, the
utilities work, the premises are clean, and there is food available. Further, the
Division has stated defendant's home is safe, appropriate, and has passed all
Division requirements.
1 To protect privacy interests, we use initials and pseudonyms for the parties. R. 1:38-3(d)(12).
A-5668-17T1 2 In February 2014, plaintiff was awarded custody of Rose after she and the
Division filed custody actions.2 Rose remained in plaintiff's custody until 2018,
at which point the Division received referrals about Rose not being properly
cared for by plaintiff. Specifically, the Division received a child protective
services referral on December 9, 2017, about someone bringing drugs into
plaintiff's home and a second referral about a possible overdose. Division
caseworkers arrived at plaintiff's home and found Rose was being cared for by
plaintiff's roommate, rather than plaintiff. The caseworkers then learned
plaintiff had left her sister-in-law and roommate in charge of Rose's care after
she was hospitalized for a broken leg.
On April 17, 2018, the Division received another referral about an adult
who was yelling at a child on the street. Although the reporter stated plaintiff's
roommate was yelling at Rose because of her absences from school, plaintiff
maintained her sister-in-law was the one yelling at Rose. That same day,
Division caseworkers spoke with Rose, who stated both plaintiff's roommate and
sister-in-law were yelling at her because she did not want to go to school.
Although Rose was crying while she was being yelled at, she told the
2 According to plaintiff, defendant lost custody of Rose in 2014 after she failed to attend a drug test and a psychological evaluation. A-5668-17T1 3 caseworkers she was not scared because plaintiff's roommate "yells at her all the
time." After Division caseworkers spoke with plaintiff's sister-in-law, they told
her Rose was going to be removed from plaintiff's home. Plaintiff's sister -in-
law responded by stating she thought that "was best for [Rose]." Later that day,
Division caseworkers contacted defendant, who agreed to take Rose into her
home. Upon arrival, Rose "ran to give [defendant] a hug" and stated she felt
"safe and happy to be with [defendant]."
The next day, the Division filed a verified complaint against the parties to
this action and Rose's father, alleging abuse and neglect under Title 9, N.J.S.A.
9:6-8.21, based on plaintiff's inability to care for Rose. The following day, a
judge entered an order granting defendant "emergency custody" of Rose.
Defendant filed a motion for custody that the Family Part judge
considered on June 26, 2018. The judge entered the order granting custody to
defendant and granting plaintiff "liberal visitation" at defendant's residence and
placed his reasons on the record that same day.
Before granting custody to defendant, the judge found plaintiff would be
a "good caretaker" for Rose, but that the parent's right to custody was
"paramount" under Watkins. Although he found defendant's current living
situation was not ideal, he ultimately awarded her custody stating, "[defendant]
A-5668-17T1 4 has demonstrated that she is capable" of raising Rose at this point and that he
would support both the Division's and the Law Guardian's custody
recommendations. This appeal followed.
In an amplification filed under Rule 2:5-1(b), the judge summarized his
decision and stated the only evidence plaintiff presented to show defendant's
unfitness was that (1) Rose slept in a room together with defendant and her
fiancé; (2) Rose slept with a tent over her head; and (3) defendant had recently
smoked marijuana. According to the judge, this evidence was insufficient to
overcome the presumption of fitness in favor of the parent under Watkins. We
agree.
We review a custody award under an abuse of discretion standard, giving
deference to the court's decision provided that it is supported by "adequate,
substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394,
411-12 (1998). "[T]he decision concerning the type of custody arrangement [is
left] to the sound discretion of the trial court[.]" Nufrio v. Nufrio, 341 N.J.
Super. 548, 555 (App. Div. 2001) (second and third alteration in original)
(quoting Pascale v. Pascale, 140 N.J. 583, 611 (1995)). Therefore, "the opinion
of the trial judge in child custody matters is given great weight on appeal." Terry
v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994). Nevertheless, "we must
A-5668-17T1 5 evaluate that opinion by considering the statutory declared public policy and
criteria which a trial court must consider." Ibid. In doing so, we owe no
deference to "the trial judge's legal conclusions, and the application of those
conclusions to the facts." Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div.
2013).
We begin by noting that a third party may file an action for custody of any
child under N.J.S.A. 9:2-9, which provides in pertinent part:
When the parents of any minor child . . . are grossly immoral or unfit . . . it shall be lawful for any person interested in the welfare of such child to institute an action in the Superior Court, Chancery Division, Family Part, in the county where such minor child is residing, for the purpose of having the child brought before the court, and for the further relief provided by this chapter. The court may proceed in the action in a summary manner or otherwise.
N.J.S.A. 9:2-10 permits a court to award custody of a child to the party bringing
the action under N.J.S.A. 9:2-9. N.J.S.A. 9:2-10. However, the public policy
of this State is that a presumption exists in favor of a parent. Watkins, 163 N.J.
at 244.
In a custody dispute between a third party and a parent under Watkins, a
court must engage in a two-step analysis. First, it must determine whether the
third party overcame the presumption in the parent's favor by presenting clear
A-5668-17T1 6 and convincing evidence of parental unfitness, abandonment, gross misconduct,
or the existence of exceptional circumstances affecting the welfare of the child.
Id. at 253-55.
The exceptional circumstances element is grounded in the court's power
of parens patriae to protect minor children from serious physical or
psychological harm. Id. at 246-47. This test "always requires proof of serious
physical or psychological harm or a substantial likelihood of such harm" and is
considered on a case-by-case basis. Id. at 248. Proof that a third party has
become a child's psychological parent by assuming the role of his or her legal
parent who has been unable or unwilling to undertake the obligations of
parenthood will suffice to establish exceptional circumstances. Id. at 254.3
Second, if the first prong is met, the court then considers the best interests
of the child test articulated in N.J.S.A. 9:2-4(c). Id. at 254. "[T]he best
interest[s] of the child cannot validly ground an award of custody to a third party
over the objection of a fit parent without an initial court finding that the standard
3 Although "the scope of 'exceptional circumstances' must await case-by-case development," no other sets of facts, other than those involving psychological parentage, have been provided thus far. Id. at 248; see also Fall & Romanowski, Child Custody, Protection & Support § 21:3-3(b) (2019). A-5668-17T1 7 for termination of the rights of a non-consenting parent or the 'exceptional
circumstances' prong has been satisfied." Id. at 255.
Although there are no reported cases providing a standard for parental
fitness as it relates to N.J.S.A. 9:2-9, "[t]o a large extent, the grounds for a total
denial of custody mirror those for the termination of parental rights" under Title
30, N.J.S.A. 30:4C-15.1(a). Fall & Romanowski, Child Custody, Protection &
Support § 21:3-3(a) (2019); see also § 22:3-1(a).
Under Title 30's parental termination standard, parental unfitness first
requires harm that "threatens the child's health and will likely have continuing
deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337,
352 (1999); see also N.J.S.A. 30:4C-15.1(a)(1). Recognizing that the second
prong of Title 30's parental termination standard "relates to parental unfitness,"
K.H.O., 161 N.J. at 352, that unfitness may be established by showing the parent
is "'unwilling or unable to eliminate the harm'" endangering the child's health
and development. Ibid. (quoting N.J.S.A. 30:4C-15.1(a)(2)). Moreover, a
parent who has failed to supply a "'safe and stable home for the child'" may be
unfit. Ibid.
A parent's irresponsibility, "such as the parent's continued or recurrent
drug abuse, the inability to provide a . . . protective home, the withholding of
A-5668-17T1 8 parental attention and care, and the diversion of family resources in order to
support a drug habit, with the resultant neglect and lack of nurture for the
child[]" may also serve to establish unfitness. Id. at 353. However, use of drugs,
alone, is insufficient to prove parental unfitness. See N.J. Dep't of Children &
Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013). Proof
that a parent has committed to maintaining a stable lifestyle and drug
rehabilitation will suffice to meet the standard for parental fitness. See K.H.O.,
161 N.J. at 352-53.
Applying these guiding principles, we conclude the trial judge correctly
determined plaintiff failed to offer sufficient evidence to overcome defendant's
presumed fitness, and therefore cannot meet the first prong of the Watkins test.
Plaintiff's proposed evidence of defendant's unfitness—that defendant smokes
marijuana, that defendant has Rose sleep with a tent over her bed, and that
defendant has Rose sleep in the same room as her and her fiancé, does not
warrant a finding of unfitness. Cf. id. at 353 (addressing a mother's recurrent,
chronic heroin use and holding her parentally unfit since she was "consistently
unable to take any responsibility for [the child's] parental care").
As the Family Part judge noted, that although defendant's living situation
is not ideal, the Division has stressed that the home is safe and meets all Division
A-5668-17T1 9 requirements. Under these circumstances, we fail to see how defendant's
smoking marijuana, coupled with her less-than-ideal living situation, suffices as
clear and convincing evidence that defendant is unfit to care for Rose.
Defendant has maintained that she is in the process of trying to find another
place to live, with more room for everyone. We will not condemn defendant's
conduct when, by all accounts, although defendant is struggling financially, she
is in the midst of trying to improve her situation and provide for her daughter.
The Family Part judge correctly determined that plaintiff failed to meet
the first prong of the Watkins test. Therefore, there was no reason for the trial
judge to consider whether defendant's custody of Rose was in Rose's best
interest based upon the limited evidence that plaintiff produced in support of her
complaint.
Affirmed.
A-5668-17T1 10