DCPP VS. D.C. AND R.S., IN THE MATTER OF B.S. AND S.L. (FN-16-0072-12, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-4832-15T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
D.C.,
Defendant-Appellant,
and
R.S.,
Defendant-Respondent.
____________________________________
IN THE MATTER OF
B.S. and S.L.,
Minors.
____________________________________
Argued April 23, 2018 – Decided August 22, 2018
Before Judges Fasciale, Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FN-16-0072-12.
David A. Gies, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; David A. Gies, on the
briefs).
Mark E. Kleiman, Designated Counsel, argued
the cause for respondent R.S. (Joseph E.
Krakora, Public Defender, attorney; Mark E.
Kleiman, on the brief).
Yudelka R. Felipe, Deputy Attorney General,
argued the cause for respondent New Jersey
Division of Child Protection and Permanency
(Gurbir S. Grewal, Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Yudelka R. Felipe, on the
brief).
Caitlin McLaughlin, Designated Counsel,
argued the cause for minors (Joseph E.
Krakora, Public Defender, Law Guardian,
attorney; Caitlin McLaughlin, on the brief).
PER CURIAM
Defendant D.C. (Deborah)1 appeals from the Family Part order
granting custody of her ten-year-old daughter B.S. (Brooke) to
Brooke's father R.S. (Richard). Deborah contends the trial judge
did not protect her parental rights in applying the "best
interests" analysis under N.J.S.A. 9:2-4 to make his custody
decision. We disagree and affirm.
This matter returns to us following our decision on a motion
for reconsideration, reversing the finding that Deborah abused and
neglected Brooke and her other daughter, S.L. (Sara), due to her
use of marijuana and failure to complete substance abuse treatment.
1
We employ fictitious names for the parties.
2 A-4832-15T1
N.J. Div. of Child Prot. & Permanency v. D.C., No. A-3477-12,
(App. Div. Dec. 19, 2014) (slip op. at 22-23). Because we
concluded there was no abuse and neglect, we remanded the matter
for a hearing to adjudicate the children's custody as Deborah was
not given "an opportunity to put forth a case on [her] behalf
[regarding] the transfer of custody and the placement of the
children with their fathers,"2 and "the [Division of Child
Protection and Permanency (Division)] did not present any
witnesses or expert testimony at the permanency hearing." Id. at
23. At that time, legal and physical custody of Brooke and Sara
was with their respective fathers.
Before the remanded proceedings commenced, the newly-assigned
Judge Daniel J. Yablonsky, stated the purpose of the hearing was
to determine the best interests of the children given this court's
conclusion that there was no abuse and neglect. Over the course
of three non-consecutive trial days, the Division presented the
testimony of its caseworker and an expert, Dr. Robert Miller, who
had conducted psychological and parenting assessments of all
parties as well as bonding evaluations. Miller recommended
services for all three parents, but opined that Brooke and Sara
should remain in the care of their fathers. Deborah presented the
2
The children have different fathers.
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expert testimony of Dr. James R. Reynolds, who opined that the
children had a safe and secure attachment to Deborah and they
should maintain regular contact with her, but did not recommend
reunification with her at the time. The judge granted the parties
joint legal and physical custody of the children, with their
primary residence remaining with the fathers.
In his twenty-eight page written decision, Judge Yablonsky
stated that since there was no finding of abuse or neglect against
Deborah under Title 9,3 "this matter is and has been a Title 30
case." Citing our remand decision, the judge found that "the
reversal of a finding of abuse or neglect divests any trial court
in an abuse or neglect proceeding of authority to conduct
dispositional hearings or enter dispositional orders" under Title
9. Hence, he based his custody decision on the best interests
test under N.J.S.A. 9:2-4. In his assessment, the judge
acknowledged that Deborah had made progress towards achieving her
goal of sole legal and physical custody of her daughters and that
both fathers had "significant parenting deficits. However, given
the fact that neither Dr. Miller, nor [Deborah]'s own expert, Dr.
Reynolds, recommend[ed] that [she] be the primary custodial
3
In a Title 9 action, the Division must prove by a preponderance
of "competent, material and relevant evidence" that a child is
abused or neglected. N.J.S.A. 9:6-8.46(b).
4 A-4832-15T1
parent, the court [found] that the best interests of the children
are served by retaining the current status quo."
In this appeal, we address only Brooke's custody because a
consent order was entered wherein Deborah assumed primary
residential custody of Sara. Deborah argues that while we
concluded the Division did not establish she abused or neglected
her daughters, we did not direct the trial court to make a custody
determination. Moreover, she argues that by applying the best
interests analysis under N.J.S.A. 9:2-4, the court did not protect
her statutory and constitutional rights as a parent. She asserts
the court did not conduct a summary hearing under Title 30 with
an eye towards the need to ensure Brooke's health and safety.
Therefore, the court did not consider whether the Division's
involvement was necessary to protect or otherwise ensure her health
and safety, and the Division neither sought an order to protect
her nor recommended any services to ensure her health and safety.
Deborah further argues that we did not direct the court to make a
custody determination, but to simply determine "the placement of
the children under applicable child welfare laws" because she was
not afforded a dispositional hearing under G.M.4
4
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399-
401 (2009).
5 A-4832-15T1
Deborah is mistaken in asserting that our remand did not
authorize the court to make a custody determination. Our reference
to G.M. was to make clear that Deborah should have been afforded
a dispositional hearing when the initial trial court made its
finding of abuse and neglect. D.C., slip op. at 23-26. Since we
concluded there was insufficient proof of Deborah's abuse and
neglect under Title 9, and therefore no need for a dispositional
hearing, the judge still needed to resolve the custody issue
because the Division also pled a Title 30 claim in its complaint
for custody of Brooke and Sara – which was unaffected by our
decision.
To determine custody of the children, Judge Yablonsky applied
the best interests test under N.J.S.A. 9:2-4(c), which provides:
Any other custody arrangement as the court may
determine to be in the best interests of the
child.
In making an award of custody, the court shall
consider but not be limited to the following
factors: the parents’ ability to agree,
communicate and cooperate in matters relating
to the child; the parents’ willingness to
accept custody and any history of
unwillingness to allow parenting time not
based on substantiated abuse; the interaction
and relationship of the child with its parents
and siblings; the history of domestic
violence, if any; the safety of the child and
the safety of either parent from physical
abuse by the other parent; the preference of
the child when of sufficient age and capacity
to reason so as to form an intelligent
6 A-4832-15T1
decision; the needs of the child; the
stability of the home environment offered; the
quality and continuity of the child’s
education; the fitness of the parents; the
geographical proximity of the parents’ homes;
the extent and quality of the time spent with
the child prior to or subsequent to the
separation; the parents’ employment
responsibilities; and the age and number of
the children. A parent shall not be deemed
unfit unless the parents’ conduct has a
substantial adverse effect on the child.
In applying the best interests test, Deborah asserts the
judge improperly placed the burden of proof associated with a
private custody dispute on her, instead of the Division. She
further contends the record does not support his findings; citing
her unsupervised visitation of both children in the five months
prior to the remand hearing and her residential custody of Sara
through the father's consent as evidence of the Division's lack
of concern that she poses a danger to her children.
We discern no error in the judge's application of this test.
In our previous decision, we did not specifically state the
standard to be used on remand to decide the custody issue.
Clearly, a dispositional hearing was not appropriate absent the
finding of abuse or neglect. See N.J. Div. of Youth & Family
Servs. v. N.D. (In re T.W.), 417 N.J. Super. 96, 109 (App. Div.
2010) (explaining that without the court's finding of abuse and
neglect, there is no authority allowing the court to enter an
7 A-4832-15T1
order of disposition under Title 9). Nevertheless, "[t]he
touchstone for all custody determinations has always been 'the
best interest[s] of the child.'" Faucett v. Vasquez, 411 N.J.
Super. 108, 118 (App. Div. 2009) (second alteration in original)
(quoting Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)).
Accordingly, "[c]ustody issues are resolved using a best interests
analysis that gives weight to the factors set forth in N.J.S.A.
9:2-4(c)." Ibid. (quoting Hand v. Hand, 391 N.J. Super. 102, 105
(App. Div. 2007)). In fact, Deborah's trial counsel argued that
there should be a "best interest[s] hearing," because the issue
in this matter was not a "pure G.M. issue," and that a plenary
hearing was necessary "just to see where the children are at right
now." Deciding custody in accordance with the best interests test
under N.J.S.A. 9:2-4 was therefore fitting.
Importantly, Deborah fails to establish how she was
prejudiced or harmed by the standard that was applied in the remand
hearing. Our Court held in New Jersey Department of Children &
Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 39-
42 (2013), that in a Title 30 litigation, it may be appropriate
to adjudicate the disposition of child welfare matters with custody
issues at the same time, as long as the parents are not prejudiced.
As in I.S., the Division here argues the judge correctly
consolidated the Title 30 action and custody hearing with no
8 A-4832-15T1
recognizable harm to Deborah's parental rights. We agree with the
Division that Deborah benefited from the consolidation in that she
was appointed counsel and an expert was provided to her at no
expense, neither of which she would have been entitled to in a
regular custody case. She and the Division both presented
testimony from expert witnesses to support their respective
positions concerning her parental fitness. We also do not see any
violation of Title 30's statutory scheme given that a prior judge
issued an intervening custody determination, which denied
Deborah's application of transfer of custody.
In analyzing Judge Yablonsky's custody ruling, we understand
that his findings are "entitled to great weight and will not be
lightly disturbed on appeal." Sheehan v. Sheehan, 51 N.J. Super.
276, 295 (App. Div. 1958) (citations omitted). We must therefore
defer to his findings of fact if supported by sufficient credible
evidence in the record, Cesare v. Cesare, 154 N.J. 394, 411-12
(1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,
65 N.J. 474, 484 (1974)), because the Family Part judge has
"special jurisdiction and expertise in family matters," id. at
413, and we will "not second-guess [his] findings and the exercise
of [his] sound discretion," Hand, 391 N.J. Super. at 111. An
abuse of discretion occurs when a decision is "made without a
rational explanation, inexplicably departed from established
9 A-4832-15T1
policies, or rested on an impermissible basis." Flagg v. Essex
Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted).
With these principles in mind, we conclude Judge Yablonsky
correctly applied the best interests standard of N.J.S.A. 9:2-4.
He evaluated the fourteen factors under that standard and awarded
primary residence to Richard as "the scales tip[ped] only ever so
slightly" towards him. Thus, we affirm substantially for the
reasons stated by the judge in his cogent written decision.
Affirmed.
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