SQUIRETOWN PROPERTIES, LLC VS. TOWNSHIP OF LIVINGSTON(L-9785-07 AND L-326-15, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 16, 2017
• Docket: A-0528-15T3
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0582-15T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

R.D.,

Defendant-Appellant,

and

H.R.,

Defendant-Respondent. _______________________________

IN THE MATTER OF A.R.,

Minor. ________________________________

Submitted March 27, 2017 – Decided March 31, 2017

Before Judges Haas and Currier.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-75-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent H.R. (Cary L. Winslow, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant R.D.1 appeals from the Family Part's August 21, 2015

order, following a dispositional hearing, terminating litigation

initiated by the Division of Child Protection and Permanency

("Division") pursuant to N.J.S.A. 30:4C-12 against defendant and

H.R., who are the parents of Alice, born in 2007. The order also

granted custody of Alice to H.R.

Defendant challenges the trial judge's determination,

asserting that "the proceedings herein did not comply with the

procedural requirements of N.J.S.A. 30:4C-12." The Division, the

Law Guardian on behalf of Alice, and H.R. support the judge's

1 We refer to the parties by initials and to their child by a fictitious name in order to preserve their privacy.

2 A-0582-15T3 determination on appeal. Based on our review of the record and

applicable law, we affirm.

We derive the following procedural history and facts from the

record developed before the Family Part. When the Division first

became involved with defendant and H.R. in July 2008, they were

living together, but later separated due to domestic violence

issues between them. The Division removed Alice from the home in

December 2008 and thereafter provided services to the family,

including parenting skills training, psychological evaluations for

both parents, individual counseling, and domestic violence

counseling for defendant.

The child returned to defendant's care in June 2009. Less

than a month later, however, the Division removed the child again

after defendant was arrested for shoplifting while Alice was with

her. Alice resumed living with defendant in December 2010, and

the Division closed the case in June 2011.

In September 2014, a hospital staff person called the Division

to report that defendant had appeared at the hospital on a bicycle

with Alice and a dog, and that defendant was experiencing

hallucinations and presented with anxiety and paranoia. Defendant

was running through the emergency room with Alice and the dog, and

she told the hospital staff that "God spoke to her through movies."

Because defendant needed to be hospitalized, the Division

3 A-0582-15T3 conducted "a Dodd removal"2 of Alice and placed her in a resource

home. On September 4, 2014, the trial court granted the Division

custody, care, and supervision of Alice.

After the hospital released defendant, she appeared in court

on September 29, 2014. Defendant stated that H.R. had moved to

Puerto Rico, but she was not able to provide the Division with

H.R.'s contact information. The trial judge granted defendant

weekly supervised visitation with Alice. Over the next three

months, however, defendant's visits with the child were sporadic

at best and, when she did appear, she would sometimes leave the

visits early.

The judge also ordered defendant to undergo a psychiatric

evaluation. Following this evaluation, the psychiatrist opined

that defendant suffered from bi-polar disorder and required

ongoing mental health treatment, including mood-stabilizing

medication, under the direction of a psychiatrist. Although the

court ordered defendant to comply with these recommendations, she

never did so.

On December 17, 2014, the Division advised the trial court

that it would forego seeking a finding that defendant had abused

2 A "Dodd removal" is an emergent removal of a minor without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

4 A-0582-15T3 or neglected Alice pursuant to N.J.S.A. 9:6-8.21(c)(4), but wished

to continue the matter under N.J.S.A. 30:4C-12 so that it could

continue to provide services to defendant and Alice. Defendant

did not object to the dismissal of the Title 9 portion of the

case, or the continuance of the litigation under Title 30.

The Division was finally able to locate H.R., who stated that

he was interested in caring for Alice. The Division arranged with

its counterpart agency in Puerto Rico to conduct a home study of

H.R.'s residence. The results of the home study were positive.

In addition, H.R. arranged to come to New Jersey so he could engage

in visits with Alice. These visits were not supervised.

Based upon these developments, and defendant's continued

refusal to obtain needed psychiatric care,3 the Division advised

the trial court at a March 16, 2015 compliance review hearing that

its plan was to reunite Alice with H.R. at the end of the school

year in June. The Division also proposed that the trial court

3 At the March 16, 2015 hearing, defendant asserted that she worked as a bartender, for an energy company, and at her parents' real estate and mortgage company in Miami, Florida. Defendant stated that she also had a career as a dental assistant. In addition, defendant alleged that she had attended three different colleges, had a $35,000 scholarship "waiting for" her, and was "supposed to be in school."

5 A-0582-15T3 conduct a dispositional hearing4 in August to determine whether it

would be safe to return Alice to defendant or whether the child's

best interests would be served by placing the child in H.R.'s

care. Through counsel, defendant did not object to the case

progressing down this procedural path.

On April 29, 2015, the Division filed an emergent application

to suspend defendant's visits with Alice after defendant called

the police to falsely report that the child had been abducted. In

addition, at her most recent visit with Alice two weeks earlier,

defendant attempted to walk the child out of the building, and

then kept the child in a bathroom with her for twenty minutes.

Although defendant's counsel was present, the Division was unable

to find defendant to apprise her of this motion and it appeared

that defendant did not live at the address she had provided to the

4 Thereafter, the parties and the trial judge sometimes mistakenly referred to the upcoming hearing as a "G.M. hearing" as a shorthand term. However, a "G.M. hearing" is held near the conclusion of Title 9 proceedings where the trial court needs to determine whether the child "may be safely released to the custody of [the offending parent], who was responsible for [his or her] care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88 (2009). However, in a Title 30 case, like the present one, where there is no finding of abuse or neglect on the part of a parent, the trial court conducts a summary hearing at the end of the litigation to determine what placement would be in the child's best interests. N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 36-37, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013).

6 A-0582-15T3 Division. Pending the May 6, 2015 return date, the trial judge

cancelled defendant's next scheduled visit with Alice.

On May 6, 2015, defendant was not present in court at the

start of the proceedings. After oral argument, however, defendant

entered the courtroom. The trial judge advised defendant that he

was suspending her visitation with Alice until she began attending

psychiatric treatment sessions. Defendant replied by informing

the judge that: her father had left her a $20 million inheritance;

she was applying for an "anti-terrorism" job with the FBI; was

about to receive a monetary award for identifying a suspect in the

1995 Oklahoma City bombing; and planned to become "a

congresswoman."

Defendant never appeared in court again. Although defendant

provided the trial judge on May 6, 2015 with a new address where

she said she could be reached, defendant did not reside at that

location.

On June 15, 2015, the trial judge held a compliance hearing

and transferred custody of Alice to H.R. Thus, the child was

finally able to leave her resource home to live with a parent.

The judge scheduled a dispositional hearing for August 21, 2015.

Prior to that hearing, the Division made numerous attempts

to locate defendant and filed an "Affidavit of Diligent Inquiry"

pursuant to Rule 5:12-2(b) detailing these efforts. Defendant did

7 A-0582-15T3 not appear at the hearing. Her attorney advised the trial judge

that he was "not at liberty" to say whether he was aware of

defendant's whereabouts.

At the hearing, the Division presented the testimony of a

caseworker, who summarized the procedural history and facts set

forth above. The caseworker reiterated that the Division's

counterpart-agency in Puerto Rico had "no concerns" about H.R.'s

ability to parent Alice and that the child "wishes to be with her

father." Defendant's attorney did not call any witnesses or

present any evidence on her behalf.

At the conclusion of the hearing, the trial judge rendered

an oral decision, terminating the litigation and placing Alice in

H.R.'s legal and physical custody. In explaining his ruling, the

judge stated:

I've listened to the caseworker testify and I do find her testimony to be credible and uncontradicted, and I have to choose today between the father or the mother . . . as to where this child is going to be placed or who is going to get the legal and physical custody [and] clearly it's with [H.R.] And I'm . . . not only to consider what I heard today and what I see today, what I saw in the past. . . . I need to place on the record that my observations of [defendant's] demeanor were that she was incoherent at times when she addressed the [c]ourt, she rambled, she was delusional, and that was the last time that she was here and nobody has seen her since and she's not here today.

8 A-0582-15T3 On the other hand, [H.R.], aside from . . . one incident with marijuana, appears to have done everything he's supposed to do for his child with respect to healthcare, education, clothing, shelter, et cetera. I find that it would be a risk, a safety risk, to place this child or to maintain custody with [defendant] because of what I just said. She's delusional, she's incoherent, she rambles, and she is in clear need, in this [c]ourt's opinion, based on my observations, of psychiatric assistance or therapy . . . [and] she is not capable, in my opinion, of being an appropriate parent to this child when juxtaposed against the ability of [H.R.] at this time.

The judge continued:

So based upon [defendant's] noncompliance with services, which she clearly needed, based upon my personal observations of her the last time she was here, based upon the fact that I know that -- or I find that she knew about today and is not here, and that [H.R.] has acted in the appropriate fashion with respect to his daughter since she's been in his custody, I find it would be in the best interest of the child to . . . be with [H.R.] and he is now granted physical and legal custody and the case will be dismissed.

This appeal followed.

On appeal, defendant challenges the trial judge's

determination and asserts that the judge followed an incorrect

procedural course in deciding to place Alice with H.R. at the

conclusion of the Title 30 proceedings. We disagree.

Our review of a trial court's fact-finding in a non-jury case

is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150,

9 A-0582-15T3 169 (2011). "The general rule is that findings by the trial court

are binding on appeal when supported by adequate, substantial,

credible evidence. Deference is especially appropriate when the

evidence is largely testimonial and involves questions of

credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-

12 (1998)). We "should not disturb the factual findings and legal

conclusions of the trial judge unless [we are] convinced that they

are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend

the interests of justice." Ibid. (internal quotation marks

omitted). However, we owe no deference to a trial court's

interpretation of the law, and review issues of law de novo.

Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super.

146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009).

We also extend special deference to the Family Part's

expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201

N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless

the trial judge's factual findings are "so wide of the mark that

a mistake must have been made" they should not be disturbed. N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)

(quoting C.B. Snyder Realty, Inc. v. BMW of North America Inc.,

233 N.J. Super. 65, 69 (App. Div. 1989)). "It is not our place

to second-guess or substitute our judgment for that of the family

10 A-0582-15T3 court, provided that the record contains substantial and credible

evidence to support" the judge's decision. N.J. Div. of Youth &

Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

Applying these standards, we discern no basis for disturbing

the trial judge's reasoned determination that Alice should be

removed from her resource home and placed in H.R.'s custody. H.R.

"was the only appropriate parent to award custody to at the

dispositional conclusion of this fact-sensitive Title 30

proceeding." I.S., supra, 214 N.J. at 41. H.R. had a stable home

and was willing and able to care for Alice, who wished to live

with him.

On the other hand, defendant suffered from a psychiatric

condition for which she refused to seek treatment. Between

September 2014 and April 2015, defendant's supervised visits with

Alice were sporadic at best. In early April 2015, defendant

attempted to leave the Division office with the child and, two

weeks later, she called the police to falsely report that the

child had been abducted. After May 6, 2015, defendant never

appeared in court again, never provided her address to the

Division, and never complied with the trial judge's order that she

participate in treatment for her psychiatric condition. Thus, we

are satisfied that there was competent, credible evidence in the

record to support the trial judge's finding that it was not safe

11 A-0582-15T3 to return Alice to defendant's care and that placing the child

with H.R. served the child's best interests.

We also discern no merit in defendant's contention that she

was deprived of due process as a result of the proceedings that

occurred. The record demonstrates that defendant's rights were

scrupulously protected. Defendant was represented by an attorney

at all critical stages of the litigation, including the August 21,

2015 dispositional hearing. Thus, she had the opportunity to

present witnesses and evidence, cross-examine the Division's

witness and question its proofs, and engage in oral argument.

As defendant points out, the trial judge and the parties'

attorneys often incorrectly referred to the August 21, 2015

dispositional hearing as a "G.M. hearing," rather than as a Title

30 summary hearing where the child's best interests govern the

placement decision. However, this mistake in nomenclature had no

impact upon defendant's due process rights. Contrary to

defendant's contention that the trial judge did not consider

Alice's best interests, the judge made a specific finding that "it

would be in the best interest of the child to . . . be with" H.R.

and fully explained the basis for this decision as required by

N.J.S.A. 30:4C-12. N.J. Div. of Youth & Family Servs. v. T.S.,

426 N.J. Super. 54, 65 (App. Div. 2012) (noting that under the

statute, a trial court "must conduct a summary hearing" and

12 A-0582-15T3 determine whether the "best interests of the child" require the

placement sought by the Division).

Finally, defendant's assertion that the trial judge

"permanently separated" her from Alice by granting custody of the

child to H.R. also lacks merit. Like any other parent, defendant

may file a motion to address custody or visitation under a non-

dissolution (FD) docket if she can demonstrate a sufficient change

of circumstances. N.J. Div. of Youth & Family Servs. v. W.F., 434

N.J. Super. 288, 300 (App. Div.) (citing I.S., supra, 214 N.J. at

40; G.M., supra, 198 N.J. at 402, n.3; and Hand v. Hand, 391 N.J.

Super. 102, 105 (App. Div. 2007)), certif. denied, 218 N.J. 275

(2014).

In sum, the trial judge's decision to grant custody of Alice

to H.R. was an appropriate disposition to end the Title 30

proceedings. This result was fully supported by the record and

we perceive no basis for disturbing it.

Affirmed.

13 A-0582-15T3