Division of Youth & Family Services v. G.M.

968 A.2d 698, 198 N.J. 382, 2009 N.J. LEXIS 151
CourtSupreme Court of New Jersey
DecidedApril 7, 2009
StatusPublished
Cited by166 cases

This text of 968 A.2d 698 (Division of Youth & Family Services v. G.M.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Division of Youth & Family Services v. G.M., 968 A.2d 698, 198 N.J. 382, 2009 N.J. LEXIS 151 (N.J. 2009).

Opinion

Justice WALLACE, JR.,

delivered the opinion of the Court.

This is a Title Nine abuse and neglect proceeding. The mother and father were divorced and shared joint legal custody of their two children, but the mother had primary physical custody. As a result of an altercation between the mother and the thirteen-year-old daughter, the Division of Youth and Family Services (Division) filed an abuse and neglect complaint. The trial court awarded the Division custody and control of the children, and the children subsequently were placed with their father in Florida. Following a finding of abuse and neglect at the fact-finding hearing, the trial court continued the temporary placement with the father and ordered the Division to provide services to the mother. After multiple case management conferences, but without a final disposi-tional hearing, the trial court granted the Division’s motion to dismiss the proceeding. The court advised the mother that she could seek any custody or parenting time modification through a matrimonial action.

On appeal, the Appellate Division reversed and remanded for a full evidentiary custody hearing, applying the best interests of the children standard. The panel reasoned that the mother was denied due process when the court ordered a change in custody without an evidentiary hearing.

We granted the Division’s petition for certification. We now affirm the judgment, but for different reasons. We hold that the statutory framework of Title Nine provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safe[388]*388ly return to his or her custody, and if not, what the proper disposition should be. Consequently, we remand for a dispositional hearing.

I.

Gloria and Malcolm Moore1 were divorced in March 2000. They shared joint custody of their two children, Kadina Moore, born November 2, 1992, and Curtis Moore, bom April 25, 1994. The children resided with Gloria in New Jersey. During the summer and at other designated times, Malcolm had extended periods of parenting time with the children at his home in Florida.

On .the night of March 28, 2006, Kadina text-messaged her father in Florida that she had had an altercation with her mother. Her father telephoned the police. New Jersey State Police Trooper Kelly Bene responded to Gloria’s home around 10:15 p.m. The trooper entered the home and found Gloria and the two children visibly upse't. The trooper observed an empty alcohol container on the counter, an empty box of wine on the floor, and an empty bottle of vodka in the garbage. When Trooper Bene asked Gloria if she had been drinking, Gloria indicated that she had consumed three or four drinks that evening. Kadina told the trooper that she and her mother had been arguing when her mother threatened to jump into a nearby river. Kadina said she stepped in front of the door to prevent her mother from leaving. At that point her mother grabbed Kadina’s arm and the back of her shirt, causing a choking reaction that resulted in Kadina vomiting. The trooper saw no noticeable marks on Kadina’s neck, but she did observe vomit on the floor and nail marks on Kadina’s arm.

Gloria told the trooper that Kadina had hit and bitten her. In answer to the trooper’s question, both children replied that they did not feel in any danger from their mother. After completing her investigation, the trooper left the house, contacted the Divi[389]*389sion, and waited outside in her car. A Division worker arrived at the house at around 1:30 a.m. The trooper returned inside the home with the Division worker to find Gloria sleeping, at which time the children had difficulty waking her.

The Division determined that emergent measures were required and removed the children from the house and placed them with a neighbor. Later that day, the children were given medical examinations. Kadina had a slight bruise on her upper arm, but Curtis showed no signs of injury. No criminal charges were filed against Gloria.

On March 31, 2006, the Division filed a complaint against Gloria and Malcolm alleging abuse and neglect and seeking care, custody and supervision of the children. An emergency hearing was held on the same day. Trooper Bene and Nancy Dougherty, the Division intake supervisor, testified about the incident between Gloria and her daughter. Gloria’s attorney emphasized that the children were not in any fear of their mother, that they were in school in New Jersey, and that the evidence did not rise to the level of an imminent risk of harm to justify removal. Counsel also indicated that Gloria would not object to the father, Malcolm, taking physical custody of Kadina, but urged the court to return Curtis to Gloria immediately. Malcolm requested that the children be transferred to his care. He noted that they regularly visited him in Florida and had friends there.

At the conclusion of the emergency hearing, the trial court found “an act of child abuse and/or possibly neglect by virtue of [Gloria’s] alcoholic condition and what occurred.” The court awarded legal custody of the children to the Division, with temporary physical custody in favor of Malcolm, on the condition that he not remove them from New Jersey. The court also ordered the Division to arrange for Gloria to undergo a substance abuse evaluation and to have reasonable visitation with the children.

The next hearing occurred on April 6, 2006. The Division recommended that the children continue in the physical custody of their father and that they be allowed to spend their previously [390]*390scheduled spring break with him in Florida. The law guardian for the children agreed and also recommended that Kadina stay in Florida for the remainder of the school year, but that Curtis return to New Jersey after spring break and stay with friends so he could be closer to his mother. Gloria’s lawyer argued that any transfer of custody was inappropriate in the current forum. The trial court replied that the issue was temporary physical custody and not the transfer of custody. The court concluded that the children should spend spring break with their father in Florida, and that Kadina should remain there for the remainder of the school year. The court also scheduled an in camera interview with Curtis for later that day to determine whether it would be appropriate for him to return to New Jersey after spring break or to remain in Florida. Further, the court ordered Gloria to submit to random urine testing, attend substance abuse evaluations and treatment, and provide information about her paramour to the Division.

Later that day, in the presence of the law guardian, the court interviewed Curtis concerning his view on finishing the school year in Florida. Curtis said he had no objection. Following that interview, the court advised the parties that Curtis should finish the school year in Florida.

At the next hearing on April 18, 2006, in which Malcolm participated by telephone from Florida, no testimony was taken or documentary evidence introduced. The Division recommended that legal custody be returned to Gloria and Malcolm, with Malcolm receiving physical custody. The Division also informed the court that Gloria failed to submit to a required urine screen and had not obeyed the prior order to provide information on her paramour. The law guardian reported that the children were doing well in Florida, but that there were some problems with telephone communications between Gloria and the children.

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Bluebook (online)
968 A.2d 698, 198 N.J. 382, 2009 N.J. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/division-of-youth-family-services-v-gm-nj-2009.