DCPP VS. B.B. AND C.S., IN THE MATTER OF L.B. AND E.S. (FN-02-0158-16, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2104-16T3
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
B.B.,
Defendant-Appellant,
C.S.,
Defendant.
IN THE MATTER OF L.B. and E.S.,
Minors.
Argued September 20, 2018 – Decided October 10, 2018
Before Judges Nugent and Reisner.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0158-16.
Deric D. Wu, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Deric D. Wu, of counsel and
on the briefs).
Victoria Kryzsiak, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Victoria Kryzsiak, on the
brief).
Melissa R. Vance, Assistant Deputy Public Defender,
argued the cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Melissa R. Vance,
on the brief).
PER CURIAM
Defendant B.B. appeals from a May 19, 2016 order, which denied her
request for a fact finding hearing under Title 9, dismissed the Title 9 complaint
filed by the Division of Child Protection and Permanency (Division), over
defendant's objection, and permitted the Division to proceed under Title 30 in
order to provide defendant's family with services. The May 19 order became
ripe for review on December 13, 2016, when the trial court dismissed the Title
30 action because the family was no longer in need of services.
We review the trial court's May 19, 2016 decision for abuse of discretion.
N.J. Div. of Child Prot. & Perm. v. V.E., 448 N.J. Super. 374, 403 (App. Div.
2017); see R. 4:37-1(b). Mindful that appeals are taken from orders, not
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opinions, and finding no abuse of discretion in the entry of the May 19, 2016
order, we affirm the order on appeal.
However, we recognize that the trial court rendered its decision before
this court decided, in V.E., that a parent is entitled to an administrative hearing
to contest the Division's finding that allegations of child abuse or neglect against
the parent are "established," albeit not "substantiated." Id. at 380; see N.J.A.C.
3A:10-7.3(c).1 Pursuant to V.E., there is no dispute that defendant is entitled to
an administrative hearing to contest the established finding in this case. At oral
argument of this appeal, the Division consented to our remanding the case to the
agency with direction to promptly transmit the matter to the Office of
Administrative Law (OAL) for an administrative hearing. Accordingly, we
deem the notice of appeal amended to include the Division's established finding,
which was issued without giving defendant the right to a hearing, and we remand
the matter to the Division for a hearing. See V.E., 448 N.J. Super. at 404. We
1
As V.E. explains in detail, the substantiated and established findings rest on
different levels of evidence, and only a substantiated finding requires that a
parent's name be included on the Central Registry of child abusers. 448 N.J.
Super. at. 391-93. Nonetheless, an established finding may result in adverse
consequences for a parent, including preventing him or her from adopting
children or obtaining certain types of employment. Id. at 387-88, 400.
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direct that the Division transmit the case to the OAL within two weeks of the
date of this opinion.
I
A short discussion of the procedural history is needed to illustrate why no
further relief is warranted on this appeal. In brief, in late December 2015, the
Division filed a complaint under Title 9, N.J.S.A. 9:6-8.21(c), and Title 30,
N.J.S.A. 30:4C-12, alleging, in pertinent part, that defendant abused or
neglected her child due to defendant's substance abuse issues, or in the
alternative, the family was in need of services for the same reasons .2 The trial
court entered an order leaving the children in defendant's custody but requiring
that defendant's mother supervise her care of the children. The Division did not
request, and the court did not order, that the children be removed from
defendant's custody.
The record reflects that by February 2016, defendant was faithfully
attending an outpatient drug treatment program, and the Division was ready to
dismiss the Title 9 complaint. At a case management conference on February
18, 2016, the Division's attorney told the trial judge that the Division had
2
The complaint also alleged that the children's father committed domestic
violence. At all relevant times, the father was in jail. He is not participating in
this appeal.
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conducted an investigation of the abuse or neglect charges against defendant and
had administratively determined that the charges were "established." However,
the Division also sought to dismiss the Title 9 complaint and proceed exclusively
under Title 30. The Division's attorney offered to present testimony that day to
support the Division's claim that continued supervision was needed under Title
30.
Defendant's counsel vigorously objected to the Division dropping the Title
9 case, because, at the time, the Division would not provide a parent with an
administrative hearing to contest an established finding. Hence, defendant
sought a fact finding hearing before the court, as a mechanism to challenge the
established finding. The trial court gave counsel an opportunity to brief the
issue. At oral argument on May 19, 2016, all counsel agreed that a parent had
the right to an administrative hearing to contest the Division's finding that abuse
or neglect was substantiated. Defendant contended that a parent should also
have the right, in some trial-type forum, to contest a finding that abuse and
neglect was established. Defendant did not raise the issue of her right to counsel
in an administrative hearing.
In an oral opinion, the trial court concluded, based on the case law as it
existed at the time, that a defendant had no right to an administrative hearing to
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contest an established finding. The court reasoned that a parent, instead, had a
right to appeal the Division's administrative decision directly to the Appella te
Division. The court therefore rejected defendant's argument that she should
have the alternate right to a fact finding hearing in court to contest the
established finding. However, the court reasoned that in fairness to the parent,
if the Division chose to dismiss the Title 9 complaint, the dismissal must be with
prejudice. The court also reasoned that, even in a Title 30 supervision case, a
parent might be entitled to an evidentiary hearing before the court, if the parent
contested the factual basis for the Division's Title 30-based allegations.
By December 13, 2016, defendant had successfully completed her drug
treatment program, and the court dismissed the Title 30 complaint against
defendant with consent of all counsel.
II
V.E. makes clear that defendant is entitled to an administrative hearing
to contest the established finding, and the trial court need not keep the Title 9
case open solely to permit defendant to contest an established finding. 448 N.J.
Super. at 403-04. However, defendant now argues that an administrative
hearing is an inadequate remedy, because, as she concedes, a defendant is not
entitled to court-appointed counsel at the OAL hearing. She argues that the
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Division should not be permitted to dismiss a Title 9 complaint once it is filed,
because doing so will deprive the parent of her right to contest the abuse or
neglect charges with the assistance of court-appointed counsel. Defendant did
not raise those issues in the trial court. We decline to further address defendant's
issues for the first time on this appeal. See N.J. Div. of Youth & Family Servs.
v. M.C. III, 201 N.J. 328, 339 (2010). Likewise, defendant's argument that,
post-V.E., the Division will "forum shop" by filing and then withdrawing Title
9 complaints, so as to limit a defendant to an OAL hearing instead of a court
trial, is not ripe for consideration. Absent a factual record, which is absent here,
that contention is speculative.
Affirmed as to the trial court. Remanded as to the Division of Child
Protection and Permanency. We do not retain jurisdiction.
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