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

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NOT FOR PUBLICATION WITHOUT THE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.
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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
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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."
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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.
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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
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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.
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