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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5784-14T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
B.W.,
Defendant-Appellant,
and
A.A. and R.R.,
Defendants. ______________________________________
IN THE MATTER OF A.W., A.R., Ra.R., Re.R., and A.A., Minors. _______________________________________
Submitted May 2, 2017 – Decided May 18, 2017
Before Judges Leone and Vernoia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket Nos. FN-21-0101-13 and FN-21- 102-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Amy Vasquez, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).
PER CURIAM
Defendant B.W. (Mother),1 the mother of five children residing
in New Jersey, appeals an April 3, 2013 family court order finding
she abused or neglected her four older children and an April 26,
2013 dispositional order continuing the custody, care and
supervision of the four children with the New Jersey Division of
Child Protection and Permanency (DCPP). She also appeals the April
26, 2013 order to the extent it dismissed DCPP's Title Nine,
N.J.S.A. 9:6-8.21 to -8.73, complaint as to Mother's youngest
child A.A. (Ann) and Ann's father, A.A. (Arnold), and awarded
joint legal custody of Ann to Mother and Arnold, physical custody
of Ann to Arnold, and required that Mother's parenting time with
Ann be supervised. The court entered an order terminating the
litigation on July 8, 2015. We affirm the court's April 3, 2013
fact-finding order and vacate that part of the April 26, 2013
1 We employ initials and pseudonyms to protect the privacy of the parties and for ease of reference.
2 A-5784-14T2 dispositional order concerning physical and legal custody of Ann,
and requiring that Mother's parenting time with Ann be supervised.
I.
The five children involved in this matter are: A.W. (Alice),
born in 1995; A.R. (Anthony), born in 1997; Ra. R. (Ralph), born
in 1998; Re. R. (Rebecca), born in 2004; and A.A. (Ann), born in
2011. Arnold is Ann's father, R.C. is Alice's father, and R.R. is
the father of Anthony, Ralph and Rebecca. Neither R.C. nor R.R.
participated in this litigation.
Mother, Arnold and the five children lived together in
Kentucky and moved to New Jersey in June 2011, after Arnold's job
was relocated. On June 30, 2012, a neighbor reported to the police
that Alice had bruises and Alice said she was beaten by Mother.
The Division responded and interviewed the family members at the
police station.
On July 2, 2012, the Division under Title Nine filed a
verified complaint for care and supervision of Ann, and a separate
verified complaint for custody, care and supervision of Alice,
Anthony, Ralph and Rebecca. At a hearing on July 3, 2012, the
court awarded DCPP care and supervision of Ann with physical
custody to Arnold, and awarded DCPP care, custody, and supervision
of the other four children. The court also barred Mother from the
family home.
3 A-5784-14T2 On August 30, 2012, Arnold filed a non-dissolution complaint
against Mother seeking custody of Ann, child support, and other
relief (the "non-dissolution matter"). On October 19, 2012, the
court entered an order in the non-dissolution matter denying
Mother's request for custody and unsupervised parenting time,
directing that custody and parenting time of Ann would be in
accordance with the orders previously entered in the Title Nine
proceedings, and permitting Mother to refile for custody and
parenting time for Ann following the fact-finding proceeding in
the Title Nine matters. On October 19, 2012, the court also entered
a separate order consolidating the Title Nine matters.
On March 13, 2013, the Division filed an amended verified
complaint in the Title Nine proceeding. The court subsequently
conducted a fact-finding hearing. DCPP presented testimony from
Arnold and DCPP caseworkers Shawanda Henderson and Vendetta Hines-
Weekes. The law guardian for the four older children presented
testimony from New Jersey State Trooper Keith DeCarolis,
psychologist Dr. Anthony D'Urso, and school guidance counselor
Michelle Russack. The law guardian for Ann presented testimony
from Sachiko Brown, the law guardian's investigator. Mother did
not present any witnesses.
The evidence showed that on June 29, 2012, Arnold and Mother
picked up Alice after she spent the evening at a friend's house,
4 A-5784-14T2 and drove Alice home. Alice and Mother argued in the car. Upon
arriving home, Alice and Mother went into the house and began
fighting. Ralph went to the car, told Arnold about the fight, and
Arnold went into the home. Arnold saw Mother and Alice fighting
and pulling each other's hair. Ralph and Anthony were also present.
Arnold and Anthony physically separated Mother and Alice.
Arnold put his arms around Alice and started carrying her up
the stairs. He instructed Anthony and Ralph to restrain Mother.
However, Mother pursued Alice up the stairs and hit Alice. Arnold
put Alice in an upstairs bedroom, where she ran to a closet and
cowered in the corner. Mother entered the room and continued
striking Alice, with Ann and Rebecca nearby. Mother struck Alice
several times on the head, and Alice was unable to strike back or
defend herself because Arnold held her in an attempt to move her
away from Mother.
When Mother left the bedroom, Arnold observed that Alice had
scratches and blood trickling from her ear. Alice and Arnold left
the house and spoke in the car during a drive. When they returned
home less than an hour later, Mother and the other four children
were asleep.
When Arnold awoke the next morning, Alice was not home. Arnold
left the home, but was called by a neighbor who asked that he
return. When he arrived, the State Police and an ambulance were
5 A-5784-14T2 present, and he saw Alice, who he said "looked like she had just
finished a fight with . . . like, Mike Tyson . . . [with] bumps
and bruises and swelling," and "it was really, really bad."
The State Police reported that Alice suffered a contusion on
her head, bruising, an abrasion on her upper jaw and on her face,
swelling, a black eye, bruising on her knee, shin, and leg. The
DCPP intake worker observed Alice's injuries and said that her
face was "deformed," she had a large lump on her forehead the size
of a small grapefruit, four to five walnut sized lumps on her
face, several lumps on her head, a black eye, a welt on her neck,
rug burns around her knees, and welts on her back and torso. DCPP's
pre-placement medical assessment stated that Alice had seven
injuries to the head, one on her arm, and two on her leg.
Alice reported to the Division worker that she and Mother
argued in the car, and when they entered the house Mother grabbed
her hair and attacked her. According to Alice, Mother kicked and
choked her for about ten minutes until Arnold ended Mother's
initial assault.
Mother reported to the DCPP worker that she and Arnold
arranged to pick up Ann at a friend's home, but had difficulty
finding Alice because she provided them with false addresses.
Mother stated that when they returned home, Alice attacked her and
6 A-5784-14T2 she defended herself. Neither the State Police investigator nor
the DCPP worker observed any injuries on Mother.
The law guardian for Alice, Anthony, Ralph and Rebecca
presented expert testimony showing the children suffered emotional
and psychological harm resulting from exposure to physical
violence. D'Urso testified that Mother's acts of violence against
Alice constituted physical and emotional abuse, which caused
emotional and psychological harm to the child. He added that Alice
also suffered harm as a result of her exposure to acts of domestic
violence between Mother and a former paramour.
D'Urso explained that Anthony suffered from depression and
sadness resulting from his exposure to Mother's physical abuse of
Alice. D'Urso attributed Ralph's emotional disability to his
exposure to maternal violence, and opined that Rebecca suffered
emotional issues due to exposure to domestic violence and Mother's
physical abuse of Alice.
Testimony was also presented concerning the poor performance
of Alice and Anthony in school, with Anthony failing three of his
classes during the prior academic year and Alice failing almost
all of her classes during the previous school year. The evidence
showed that Alice and Anthony maintained regular attendance at
school, were respectful and courteous students, and that Mother
responded to communications from Russack, the school's guidance
7 A-5784-14T2 counselor, when Mother was contacted about the children's academic
issues.
Russack testified that she recommended that Anthony be
assessed to determine if he had a learning disability, but Mother
initially rejected the recommendation because she was concerned
Anthony would become a classified student. Russack explained that
other parents had refused recommendations for assessments for
similar reasons in the past. Mother later consented to the
assessment following DCPP's involvement in this matter.
Russack also provided information to Mother concerning an
online summer school program for Anthony because the school did
not have summer school. Russack explained that Mother sought
approval for an alternative and less costly online program, but
Mother's suggested program was not approved by the school district.
There were alternative summer programs at other schools but they
charged fees and their availability was limited. In any event, the
evidence showed Mother did not enroll Anthony in a summer school
program.
The court found the witnesses credible and rejected as not
credible Mother's contention that she acted in self-defense during
the physical altercation with Alice. The court determined DCPP
proved by a preponderance of the evidence that Alice was an abused
or neglected child under N.J.S.A. 9:6-8.21(c)(4) because Mother
8 A-5784-14T2 failed to exercise a minimum degree of care in providing
supervision, or by unreasonably inflicting or allowing to be
inflicted harm or substantial risk thereof, including the
infliction of excessive corporal punishment. In addition, the
court found DCPP proved Alice was an abused or neglected child
under N.J.S.A. 9:6-8.21(c)(1) because Mother inflicted injuries
upon Alice other than by accidental means that caused protracted
impairment of Alice's emotional health.
The court further determined Alice and Anthony were abused
or neglected children under N.J.S.A. 9:6-8.21(c)(4)(a) because
Mother failed to exercise a minimum degree of care in attending
to their educational needs.
The court also found Anthony, Ralph, and Rebecca were abused
or neglected children under N.J.S.A. 9:6-8.21(c)(4) because Mother
exposed them to "an environment with extensive violence, thereby
causing emotional harm." The court did not make any finding that
Ann was abused or neglected.
Following the court's entry of a fact-finding order, the
court conducted a dispositional hearing and entered an order
continuing DCPP's care, custody and supervision of Alice, Anthony,
Ralph and Rebecca, directing Mother to cooperate with DCPP
services, barring Mother from any contact with Alice, and
permitting Mother supervised visitation with Anthony, Ralph and
9 A-5784-14T2 Rebecca. The court order also dismissed the matter as to Ann and
Arnold, and directed that Mother and Arnold continue to share
legal custody of Ann, that physical custody of Ann remain with
Arnold, and that Mother's parenting time with Ann be supervised.
The court also ordered that any issues concerning any parenting
time and custody issues concerning Ann be addressed in the non-
dissolution proceeding.
The court subsequently entered an order terminating the
litigation. This appeal followed.
On appeal, Mother makes the following arguments:
POINT I
THE [TRIAL] COURT EXCEEDED ITS AUTHORITY BY RESTRICTING [MOTHER'S] CONTACT WITH HER ONE- YEAR-OLD CHILD [ANN] THROUGHOUT THE ENTIRE CASE AND UPON DISPOSITION.
POINT II
THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF ABUSE AND NEGLECT WITH REGARD TO THE MINORS [ALICE, ANTHONY, RALPH AND REBECCA].
POINT III
THE TRIAL COURT IMPROPERLY DISMISSED [ANN] FROM THE LITIGATION WITHOUT CONDUCTING A "G.M." HEARING TO WHICH [MOTHER] AND THE CHILD WERE [ENTITLED].
10 A-5784-14T2 II. We first consider Mother's argument that there was
insufficient evidence supporting the court's finding she abused
or neglected Alice, Anthony, Ralph and Rebecca. "We have a strictly
limited standard of review from the fact-findings of the Family
Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415
N.J. Super. 551, 577 (App. Div. 2010); N.J. Div. of Child Prot. &
Permanency v. N.T., 445 N.J. Super. 487, 505 (App. Div. 2016). A
reviewing court defers to the factual findings of a family court
"because it has the opportunity to make first-hand credibility
judgments about the witnesses who appear on the stand," "it has a
feel of the case that can never be realized by a review of the
cold record" and it has "special jurisdiction and expertise in
family court factfinding." New Jersey Div. of Youth & Family Servs.
v. M.C. III, 201 N.J. 324, 342-43 (2010).
Accordingly, we will "not disturb a family court's abuse or
neglect findings as long as they are 'supported by adequate,
substantial, and credible evidence in the record.'" N.T., supra,
445 N.J. Super. at 505 (quoting N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 605 (2007)). Family court decisions will
be upheld, "unless 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. M.M., 189 N.J. 261, 279 (2007) (quoting C.B.
11 A-5784-14T2 Snyder Realty Inc. v. BMW of N. Am., Inc., 223 N.J. Super. 65, 69
(App. Div.), certif. denied, 117 N.J. 165 (1989)). However, no
deference is owed to the trial court's "interpretation of the law
and the legal consequences that flow from established facts."
Manalapan Realty, L.P. v. Twp. Comm'n of Manalapan, 140 N.J. 366,
378 (1995).
We begin by noting that Mother does not challenge the court's
finding that she abused or neglected Alice under N.J.S.A. 9:6-
8.21(c)(4) by unreasonably inflicting harm by excessive corporal
punishment, and under N.J.S.A. 9:6-8.21(c)(1) by inflicting
physical injury by other than accidental means and causing
protracted impairment of Alice's emotional health. Although Mother
does not argue to the contrary, based on our review of the record
we are satisfied there was substantial credible evidence
supporting the court's determination.
The evidence showed that during the June 29, 2012 incident,
Mother aggressively struck and kicked Alice during their initial
altercation on the first floor of their home, pursued and struck
Alice after Arnold intervened and carried Alice up the stairs, and
continued to strike Alice in the bedroom where Alice had retreated.
The evidence further showed Alice suffered numerous physical
injuries and protracted damage to her emotional health as a result
of Mother's conduct. Mother's conduct constituted abuse or
12 A-5784-14T2 neglect, and excessive corporal punishment. See, e.g., M.C. III,
supra, 201 N.J. at 334, 345 (finding abuse or neglect where a
father grabbed, choked, and punched the children, disregarding the
substantial probability injury would result); N.J. Div. of Youth
& Family Servs. v. S.H., 439 N.J. Super. 137, 147-50 (App. Div.)
(finding that a mother's use of a golf club and her teeth, causing
a contusion and bite marks, was excessive corporal punishment),
certif. denied, 222 N.J. 16 (2015); N.J. Div. of Youth & Family
Servs. v. B.H., 391 N.J. Super. 322, 340 (App. Div.) (finding
mother's use of a belt to hit the child in the face, injuring his
eye, was excessive corporal punishment), certif. denied, 192 N.J.
296 (2007).
Mother challenges the court's finding she abused or neglected
Anthony, Ralph and Rebecca. Mother contends the court did nothing
more than make categorical conclusions the children were abused
and neglected, and there was no evidence showing they suffered any
emotional harm as a result of any of her alleged conduct.
The court found Anthony, Ralph and Rebecca were abused or
neglected by their exposure to Mother's June 29, 2012 physical
attack on Alice, and to the prior acts of maternal violence. The
court determined Mother "did nothing to protect her children from
that exposure," and she therefore neglected the children under
N.J.S.A. 9:6-8.21(c)(4). The court also found the children
13 A-5784-14T2 suffered emotional harm from the exposure to Mother's violence
toward Alice and to the prior acts of violence.
"Our Legislature has declared that 'children, even when they
are not themselves physically assaulted, suffer deep and lasting
emotional effects from exposure to domestic violence.'" N.T.,
supra, 445 N.J. Super. at 491 (quoting N.J.S.A. 2C:25-18). In
Division of Youth & Family Services v. Robert M., 347 N.J.
Super. 44, 67 (App. Div.), certif. denied, 174 N.J. 39 (2002), it
was alleged that one of the parents' adopted children "died as a
result of physical abuse tantamount to torture," and we found the
trial court should have considered whether there was abuse of the
other children. We explained that "[a]lthough the absence of past
physical abuse to the natural children may infer their future
safety, the alleged treatment of [the adopted child] could be a
dangerous harbinger to one or more of the others." Id. at 68. We
found that "[a] child's exposure to a parent's physical abuse of
a child may well be abusive to others by instilling either fear
or a tolerance to violence in intra-family relationships." Ibid.
However, permitting "a child to witness domestic violence
does not equate to abuse or neglect of the child in the absence
of additional proofs." I.H.C., supra, 415 N.J. Super. at 584.
Where a child witnesses domestic violence "abuse or neglect can
be shown where the Division presents 'credible evidence that
14 A-5784-14T2 professionals in the field accept the general proposition that
domestic violence in the home harms children and that harm had
occurred in this family.'" N.T., supra, 445 N.J. Super. at 491
(quoting I.H.C., supra, 415 N.J. Super. at 584-85).
In I.H.C., supra, we held that abuse or neglect may be shown
where a child witnesses domestic violence and there is evidence
the child suffers emotional harm. 415 N.J. Super. at 584-85. We
found sufficient evidence establishing abuse or neglect where DCPP
presented expert testimony showing that as a result of the
children's exposure to domestic violence, the children
"manifest[ed] the effects of the coercive and violent relationship
of their parents." Id. at 584. Cf. N.T., supra, 445 N.J. Super.
at 503-04 (reversing court's determination that children exposed
to domestic violence were abused or neglected because expert's
report showing children suffered emotional harm was inadmissible);
New Jersey Div. of Youth & Family Servs. v. S.S., 372 N.J. Super.
13, 22 (App. Div. 2004) (finding DCPP did not prove abuse or
neglect of children exposed to domestic violence because it failed
to present expert testimony establishing a causal relationship
between the domestic violence and the children's emotional
distress), certif. denied, 182 N.J. 426 (2005).
Here, the evidence showed Anthony, Ralph, and Rebecca were
exposed to acts of domestic violence and suffered emotional harm.
15 A-5784-14T2 Anthony and Ralph were present during Mother's violent attack
against Alice and attempted to intervene. Rebecca also witnessed
a portion of Mother's attack on Alice, and reported previously
seeing Mother punch Arnold. D'Urso's expert testimony established
that each of the children suffered ongoing emotional harm as a
result of their exposure to the Mother's violence.2 We are
therefore satisfied there was substantial credible evidence
supporting the court's finding that Mother abused or neglected
Anthony, Ralph and Rebecca by permitting their exposure to acts
of violence within their home. I.H.C., supra, 415 N.J. Super. at
584-85.
2 In finding Anthony, Ralph and Rebecca were abused or neglected, the court also referenced the children's exposure to acts of domestic violence committed against Mother in Kentucky and Mother's failure to protect the children from that exposure. Records from Kentucky's Child Protective Services showed that Mother had referrals dating back to 2005, during the time she resided there with Alice, Anthony, Ralph, and Rebecca. The records revealed that it was reported Mother was the victim of multiple incidents of domestic violence that the children witnessed. Although Mother does not challenge on appeal the court's findings as to the children's exposure to domestic violence in Kentucky or her responsibility for their exposure to it, we find it unnecessary to address the Kentucky reports or the court's reference to them because the psychosocial evaluations of Anthony, Ralph and Rebecca, and D'Urso's testimony, established the children suffered emotional harm based on their exposure to Mother's violent actions alone.
16 A-5784-14T2 III.
Mother next claims the evidence was insufficient to support
the court's finding she abused or neglected Alice and Anthony by
engaging in educational neglect. We agree.
We have recognized that a parent or guardian's failure to
provide an education is a form of abuse and neglect under Title
Nine. See, e.g., N.J. Div. of Youth & Family Servs. v. M.W., 398
N.J. Super. 266, 285-86 (App. Div.) (noting a parent harmed her
children through educational neglect, among other forms of abuse,
by leaving them with her cousin who locked them in a basement and
deprived them of beds, food, a toilet, and the physical ability
to attend school), certif. denied, 196 N.J. 347 (2008). N.J.S.A.
9:6-8.21(c)(4)(a) expressly provides that a child is abused or
neglected when their "physical, mental, or emotional condition has
been impaired or is in imminent danger of becoming impaired as the
result of the failure of his parent or guardian . . . to exercise
a minimum degree of care . . . in supplying the child with adequate
. . . education . . . though financially able to do so . . . ."
To establish a parent or guardian failed to exercise a minimum
degree of care, DCPP must prove more than mere negligence. The
minimum degree of care standard in N.J.S.A. 9:6-8.21(c)(4)
denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something
17 A-5784-14T2 more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
[G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999).]
Thus, there is a failure to exercise a minimum degree of care
where a parent or guardian "is aware of the dangers inherent in a
situation and fails adequately to supervise the child or recklessly
creates a risk of serious injury to that child." Id. at 181; N.J.
Div. of Prot. & Permanency v. E.D.-O., 223 N.J. 166, 179 (2015).
The determination of whether there was a failure to exercise a
minimum degree of care requires a fact-sensitive analysis that
accounts for the surrounding circumstances. E.D.-O., supra, 223
N.J. at 180. The inquiry
focus[es] on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger. When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law.
[G.S., supra, 157 N.J. at 182.]
18 A-5784-14T2 However, to be considered abuse or neglect under N.J.S.A. 9:6-
8.21(c)(4)(a), that failure must rise to the level of gross
negligence. Id. at 178.
To be sure, Alice and Anthony performed badly in school.
Although it might be argued that a child's poor school performance
is within the control of a parent, the record here is devoid of
evidence showing that the poor academic performances of Alice and
Anthony were the result of Mother's gross negligence. There was
no issue with the children's school attendance, and the record
shows Mother was responsive to Russack's communications about the
children. It was DCPP's burden to establish Mother's gross
negligence, but it simply failed to present sufficient evidence
showing any action Mother could have taken to prevent the
children's poor academic performance.
We are not satisfied Mother's initial decision to reject the
recommendation that Anthony be assessed constituted gross
negligence. Russack testified other parents had similarly rejected
such recommendations due to concerns over the classification of
their children, and Mother later agreed to permit the assessment.
We are also not satisfied Mother's failure to enroll Anthony in
summer school constituted gross negligence because she actively
sought out a less expensive alternative to the district's suggested
online program. The evidence showed Mother engaged in an earnest
19 A-5784-14T2 effort to find an affordable program summer school program to
support Anthony's academic performance. She found an online
program and sought district approval. Unfortunately, the district
found the program unacceptable. There was no evidence the other
summer school alternatives discussed during Russack's testimony
were either available following Mother's effort to enroll Anthony
in the less expensive online program, or that she was financially
able to afford them. N.J.S.A. 9:6-8.21(c)(4)(a).
In sum, although academic performances of Alice and Anthony
suggest parental inattention, the evidentiary record does not
support the court's determination that Mother was grossly
negligent in addressing their educational needs. We therefore
reverse that part of the court's fact-finding order declaring that
Alice and Anthony were abused or neglected based on Mother's
alleged failure to supply them with adequate education. N.J.S.A.
9:6-8.21(c)(4)(a).
IV.
We also consider Mother's argument that the court erred by
failing to conduct a dispositional hearing prior to its dismissal
of the Title Nine proceeding as to Ann, and its entry of an order
continuing Arnold's physical custody of Ann and permitting Mother
only supervised visitation with the child. Mother argues that
under N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382
20 A-5784-14T2 (2009), she was entitled to a dispositional hearing because Ann
had been removed from her custody and placed with Arnold at the
outset of the Title Nine matter, and the court continued the terms
of its initial removal order when the Title Nine complaint was
dismissed. DCPP and Ann's law guardian contend Mother was not
entitled to a dispositional hearing under G.M. because Ann had
always been in Arnold's custody, there was never a placement with
a non-custodial parent, and G.M. requires a dispositional hearing
only where there has been a placement with a non-custodial parent.
Although the parties' arguments concerning the requirements
of G.M. focus on whether Ann was placed with a non-custodial parent
at the outset of the Title Nine proceeding, it is unnecessary that
we address the issue. Once the court did not make a finding that
Ann was abused or neglected at the trial ending April 3, 2013, the
court was required to dismiss the Title Nine complaint as to Ann,
and the court lacked jurisdiction to enter any further orders
regarding Ann in the Title Nine proceeding. N.J.S.A. 9:6-8.50(c);
N.J. Div. of Child Prot. & Permanency v. I.S., 214 N.J. 8, 31-32
(2013), cert. denied, __ U.S. __, 134 S.Ct. 529, 187 L.Ed. 2d 380
(2013); N.J. Div. of Youth and Family Servs. v. T.S., 426 N.J.
Super. 54, 64 (App. Div. 2012). We are therefore satisfied the
court's April 26, 2013 order continuing the grant of physical
custody to Arnold and requiring that Mother's parenting time be
21 A-5784-14T2 supervised was entered when the court no longer had Title Nine
jurisdiction over Ann.3
Moreover, we reject Mother's reliance on G.M. because it does
not permit a court to "keep a Title [Nine] action open when the
court determines that it does not find abuse or neglect." I.S.,
supra, 214 N.J. at 30. The court in G.M. retained jurisdiction to
make a disposition in the Title Nine proceeding because it
"inferentially concluded that its assistance was required and also
made a finding of abuse or neglect." 198 N.J. at 401 (emphasis
added); I.S., supra, 214 N.J. at 29. "[T]he 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. N.D., 417 N.J.
Super. 96, 107 (App. Div. 2010). Here, by contrast, the court did
not find abuse or neglect of Ann, and thus had no authority to
issue a Title Nine dispositional order regarding Ann. Accordingly,
3 We recognize that following the dismissal of a Title Nine complaint, a court may continue to exercise jurisdiction where appropriate under Title Thirty, N.J.S.A. 30:4C-12. See, e.g., T.S., supra, 426 N.J. Super. at 64 ("A dismissal of a Title 9 action . . . does not foreclose further intervention by the Division pursuant to N.J.S.A. 30:4C-12 to protect a child who, although not abused or neglected, is in need of services to ensure [his or her] health and safety."); accord I.S., supra, 214 N.J. at 32-35; N.D., supra, 417 N.J. Super. at 109. The court's April 26, 2013 order was a Title Nine "Abuse or Neglect Multipurpose Order" and was not entered under Title Thirty.
22 A-5784-14T2 Mother was not entitled to a dispositional hearing under G.M.
because there was no finding of abuse and neglect of Ann.
Because we conclude the court lacked jurisdiction to enter a
dispositional order under Title Nine regarding Ann, we reverse the
court's April 26, 2013 order to the extent it continued physical
custody of Ann with Arnold and required that Mother's parenting
time be supervised. Our reversal, however, does not resolve the
parties' dispute over custody and parenting time of Ann or require
a change in custody or the conditions of parenting time. As
correctly determined by the court, those issues shall be resolved
in the pending non-dissolution matter.
The record includes an October 19, 2012 order in the non-
dissolution case denying Mother's request for physical custody and
unsupervised parenting time pending the outcome of the Title Nine
fact-finding hearing. Based on the record presented on appeal, and
because the Title Nine proceeding has been dismissed, the October
19, 2012 non-dissolution order, which is not before us, governs
the custody and parenting time of Ann. We offer no opinion
concerning any custody or parenting time issues between the parties
other to note that they must be resolved in the non-dissolution
proceeding and, until that happens, the October 19 2012, order
23 A-5784-14T2 governs the custody and parenting time issues.4 See, e.g., N.D.,
supra, 417 N.J. Super. at 114-15.
Mother's remaining arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We therefore affirm the court's April 3, 2013 order finding
Mother abused or neglected Alice by excessive corporal punishment
causing her injury and by non-accidental means, and abused or
neglected Alice, Anthony, Ralph and Rebecca by exposing them to
violence. We reverse the court's April 3, 2013 order to the extent
it found Mother abused or neglected Alice and Anthony by
educational neglect. We reverse the court's April 26, 2013 order
to the extent it granted Arnold physical custody of Ann and
required that Mother's parenting time of Ann be supervised.5
4 We are aware the court's April 26, 2013 order directed that parenting time and custody issues concerning Ann shall be addressed in the non-dissolution proceeding. The record on appeal does not include any orders entered by the court in the non-dissolution matter subsequent to the October 12, 2012 order and we are otherwise not aware of any orders that may have been entered in that matter. In the event the court entered any custody or parenting time orders in the non-dissolution case subsequent to the October 19, 2012 order, those orders govern the custody and parenting time issues addressed. 5 The portion of the court's April 26, 2013 order granting joint legal custody of Ann to Mother and Arnold was not appealed. Because we conclude the court lacked jurisdiction to enter that custody order, we also reverse the order's grant of legal custody as well.
24 A-5784-14T2 Affirmed in part. Reversed in part. We do not retain
jurisdiction.
As noted, however, the terms of the parties' physical and legal custody of Ann, and Mother's parenting time of the child, were addressed in the court's October 19, 2012 order in the non- dissolution matter which, if not already modified, remains in effect until modified by the court in that proceeding.
25 A-5784-14T2