DCPP VS. M.B., K.W. AND R.B.IN THE MATTER OF A.W. AND F.B.(FN-06-23-15, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-0158-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.B.,
Defendant-Appellant,
and
K.W. and R.B.,
Defendants.
__________________________________
IN THE MATTER OF A.W. and
F.B., Minors.
Submitted June 1, 2017 – Decided August 8, 2017
Before Judges Alvarez and Lisa.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Cumberland County, Docket No. FN-06-23-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Anthony Van Zwaren, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Jennifer Krabill, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Noel C. Devlin,
Assistant Deputy Public Defender, of counsel
and on the brief).
PER CURIAM
Defendant M.B. appeals from certain Family Part orders in
abuse and neglect litigation that culminated in the placement of
her now thirteen-year-old son, A.W., in the physical and legal
custody of his father, and prohibit her from phone contact or
visitation with the child. We affirm.
The matter began in August 2014, by way of a Title 9 complaint
for care, custody, and supervision of A.W. and his two sisters,
one of whom is now an adult. See N.J.S.A. 9:6-8.21 to -8.73.
Shortly after the proceedings began, the oldest sister was placed
with her father. A.W.'s other sister, now a toddler, was
ultimately returned to M.B. and her husband, R.B. The issue that
brought the family to plaintiff New Jersey Division of Child
Protection and Permanency's (Division) attention was recurring
domestic violence witnessed by the children, including A.W.
K.W., named a defendant on the complaint, is A.W.'s father
and resides in New York. He regularly appeared in court, by phone
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and in person. Over the course of fifteen court hearings,
beginning on August 11, 2014, and ending on June 30, 2015, no
expert testimony was presented, a Division caseworker testified
only once, and K.W. testified briefly only once. At each court
hearing, counsel reported to the judge developments since the last
appearance, and the judge made adjustments to the children's status
and the parents' obligations accordingly.
On February 23, 2015, M.B., along with her husband, stipulated
that they were a family in need of services under Title 30. See
N.J.S.A. 30:4C-12. By doing so, although Division records would
reflect administrative substantiation of abuse and neglect related
to the domestic violence, no adjudication would be made in the
Title 9 proceeding; it was terminated.1 The parents at that
juncture were compliant with services.
Months prior to the termination of the abuse and neglect
case, on November 14, 2014, A.W.'s father, K.W., filed for custody
of his son under the abuse and neglect FN docket number. By
1
A court order contemporaneously issued mistakenly stated that a
finding of abuse and neglect was entered in the Title 9 litigation.
Once this was discovered, the parties should have immediately
brought the error to the attention of the court. In its brief,
the Division has agreed to request the correction. Accordingly,
we will not address M.B.'s fourth or fifth points in this appeal
related to the error. It should not have required an appeal to
correct the mistake, however.
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December 3, 2014, even though no testimonial hearing was ever
conducted related to his application, or formal consent placed on
the record by M.B., K.W.'s home was investigated by the Division
as a possible placement. A.W. and his younger sister were living
in a resource home.
On April 10, 2015, the Law Guardian reported to the judge
that A.W. was steadfast in his desire to live with his father, and
that K.W. had also attempted to file for custody under the parties'
old FM, or matrimonial, docket number. In any event, M.B. through
counsel agreed to allow the child's custody to be transferred.
Her attorney said:
[S]he's not the happiest if Your Honor sends
[A.W.] to live with his father. She indicates
that she does want to work on her relationship
with [A.W.] She actually was calling very
consistently since the last court date to see
when the therapy was going to start and was
wondering why it took so long [] the therapy
to start. She was hoping to have at least
[] a couple of more sessions with [A.W.] prior
to him leaving so I'm glad that the therapy
is set to start.
. . . .
I'm asking that we have a set [visitation]
schedule so that both parties understand how
it's going to occur and where do we go from
there, and if at all [] possible that he still
be allowed to participate in some therapy with
his mother that would be great. . . . [M.B.]
was not actually wanting [A.W.] to go but I
understand the position the [c]ourt is in at
this point.
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The court granted custody of A.W. to K.W. effective April 16.
The judge noted that a therapist was "about to begin family
counseling sessions between [A.W.] and [M.B.] and that sounds like
something that will be very helpful. . . . So the order will
provide that [K.W.] is to cooperate in getting [A.W.] to the
sessions that [the therapist] wants to have between [A.W.] and his
mother."
At the next hearing on May 19, 2015, the Division's attorney
said that K.W. had obtained a restraining order in New York
prohibiting contact between A.W. and his mother. Although
inconsistent with that statement, the attorney also said the
restraining order indicated it was subject to current orders issued
in New Jersey regarding custody and visitation. M.B.'s attorney
responded that K.W.'s conduct had reinforced M.B.'s fears that he
was going "to cut off her contact with" the child.
The judge said she would order K.W. to appear at the next
court date, and requested a copy of the restraining order so that
she could reach out to the New York family court judge. She wanted
to ensure that some effort to reinstate contact between mother and
child would take place.
The following month, on June 3, 2015, the court reiterated:
[T]he [c]ourt w[i]ll not dismiss [A.W.] and
[K.W.] from the litigation at this point in
time. I have some serious concerns about how
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we got to where we are today, specifically
that [K.W.] was able to make it to just about
every other court date until he got custody
and then suddenly cannot be here and suddenly
the visits aren't working and so on and so
forth and to the point that a restraining
order was obtained. So I need to have a better
understanding of what's happening here before
we can allow this case to proceed under an FD
docket number.
I will state for the record that New
Jersey still has jurisdiction in this case and
New Jersey is retaining jurisdiction with
respect to this child. And, [K.W.], you need
to understand that, that any issues of custody
and visitation are going to be addressed here
in New Jersey, not in New York, and that is
under a judge in this state determines that
New York can hear the case, if that ever
occurs.
. . . .
[B]ut with respect to the child those issues
will be heard here in New Jersey.
The court went on to discuss the need to obtain guidance from an
expert as to whether it was appropriate for M.B. to have contact
with A.W., and the manner in which communication should occur.
Although the impetus is unclear from the record we have,
approximately three weeks later, on June 30, 2015, A.W. met with
the judge in chambers in the presence of his Law Guardian. The
interview was recorded. Before beginning, the judge said: "I was
hoping to put on the record the reason for this interview, but
since all counsel are not here I'll conduct the interview as
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requested and then perhaps somebody can enlighten me at some
point." The reason for the interview was never placed on the
record.
After the interview, by which time M.B.'s attorney had arrived
in court, the judge rendered her decision. She ruled that because
the child did not want to speak to his mother, no further contact
would take place between M.B. and A.W. The judge summarized her
reason for the order in a few words —— that M.B.'s conduct towards
A.W. "was making him feel terrible about himself." The judge
added that the child needed a break.
The judge continued: "I think that [M.B.] can make an
application under the FD number to have [the contacts and
visitation] reviewed. This county will retain venue so the case
would be heard here rather than [M.B.] having to go to North
Jersey2 to make her application, but that's what she's going to
have to do." She later reiterated:
And any application to reinstitute contact
between her and [A.W.] will be under the FD
docket number, which if I can find we'll put
in the order. And, [M.B.'s counsel], I did
indicate that venue would stay in Cumberland
County at this point for that application to
be made to make it easier for her to have it
addressed. What happens thereafter is up to
whatever judge hears that application.
2
This was likely a slip of the tongue, as M.B. and her children
lived in Cumberland County and K.W. lived in New York. From what
we discern from the record, no one involved lived in North Jersey.
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Despite the judge's expressed intent to revisit contact
between mother and son at a later time, that never occurred. The
judge did not contact the family court that issued the restraining
order in New York, nor was K.W. asked to explain the reason he
obtained the restraining order. After the April 10 hearing, the
record is silent on the subject of counseling for mother and son.
Included without objection in M.B.'s appendix is an "order
of disposition" entered after the notice of appeal was filed. We
discuss the order because of the sensitive nature of the issues
here, despite the absence of a motion to supplement the record as
required by the rules. See R. 2:5-4.
That January 8, 2016 FM "order of disposition" denied M.B.
visitation or any modification of parenting time arrangements. It
recited that "the parties were last in court on October 23, 2015
where the court denied [M.B.'s] request for custody modification
of the minor child. [M.B.] asks that the court modify the current
parenting time arrangement so as to allow her to visit her son."
The order continues:
1. P[laintiff] [M.B.'S] request that the
court enter an Order modifying the current
parenting time arrangements is DISMISSED
WITHOUT PREJUDICE. The court notes that the
minor child has been residing in the state of
New York as of June 2015 and thus ha[s] been
residing outside the state of New Jersey for
a period of six (6) months. Thus, [u]nder the
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Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) because the minor
child has lived in the state of New York for
six (6) months the court finds that it does
not have jurisdiction in regard to the case.
Further, the court does not have jurisdiction
in this case pending a resolution of this case
to the appellate division. Thus this
application is dismissed without prejudice.
2. No further relief is granted.
On appeal, M.B. raises the following points:
POINT I--THE TRANSFER OF CUSTODY TO A NON-
CUSTODIAL PARENT COMBINED WITH THE TERMINATION
OF LITIGATION WITHOUT A DISPOSITIONAL HEARING
WAS DEFECTIVE.
POINT II--IT WAS IMPROPER FOR THE TRIAL JUDGE
TO INTERVIEW THE CHILD WITHOUT NOTIFYING ALL
COUNSEL; FAILING TO PERMIT COUNSEL FOR THE
MOTHER OPPORTUNITY TO PRESENT QUESTIONS THE
JUDGE; FAILING TO QUESTION THE CHILD AS TO HIS
ABILITY TO DISTINGUISH TELLING THE TRUTH FROM
TELLING A LIE; AND FAILING TO SWEAR HIM IN AS
A WITNESS PURSUANT TO COURT RULE 5:8-6.
POINT III--M.B. WAS DENIED DUE PROCESS WHEN
HER TWO CHILDREN WERE REMOVED FROM HER HOME
WITHOUT AN EVIDENTIARY HEARING.
POINT IV--THE TRIAL COURT IMPROPERLY MADE
FINDINGS OF ABUSE AND NEGLECT WHEN THE
PARENT'S STIPULATION WAS ONLY FOR TITLE 30
SERVICES AND THERE WAS NO EVIDENCE OR
TESTIMONY TO SUSTAIN EVEN AN ESTABLISHED
FINDING OF ABUSE OR NEGLECT.
POINT V--IF THE MATTER WAS BEING CONVERTED TO
A TITLE 30 ACTION THEN THE TITLE 9 ACTION
SHOULD HAVE BEEN DISMISSED.
POINT VI--M.B. WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL, HER ATTORNEY FAILED TO ENSURE
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PROPER PROCEDURAL SAFEGUARDS AT THE INITIAL
DODD HEARING, FAILED TO OBJECT TO CONVERTING
THE MATTER TO TITLE 30 SERVICES WHILE NOT
DISMISSING THE TITLE 9, AND FAILED TO OBJECT
TO THE FN COMPLAINT BEING DISMISSED WHERE NO
G.M. HEARING HAD BEEN HELD.
We consider Points I, II, III, and VI so lacking in merit as
to not warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). This includes, obviously, the claim of ineffective
assistance of counsel. Ultimately, M.B. regained custody of her
youngest child without the entry of a finding of abuse and neglect
against her, and the litigation was dismissed, a favorable outcome.
It is quite clear, however, that the loss of contact been
M.B. and A.W. was the unanticipated and regrettable outcome of
procedural quirks in this case that we cannot remedy in this appeal
from the FN orders. We begin by reiterating that the child's
transfer to his father's custody was made with M.B.'s consent, and
is therefore not subject now to review. Brett v. Great Am. Rec.,
144 N.J. 479, 503 (1996) ("The doctrine of invited error operates
to bar a disappointed litigant from arguing on appeal that an
adverse decision below was the product of error, when that party
urged the lower court to adopt the proposition now alleged to be
error.").
Moreover, M.B.'s attorney as a matter of strategy could not
have requested an evidentiary hearing because the child wanted to
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live with his father, had suffered emotional harm from the domestic
violence he witnessed in his mother's home, and did not want to
talk to his mother. The attorney, acknowledging the judge's
decision and her client's agreement, did raise the need for
continued therapeutic intervention to assist in reinstating
visitation between mother and son. The judge agreed. But the
process which followed was not intended by any of the participants,
the court, M.B., or A.W.'s Law Guardian.
No services were provided by the Division to advance the
relationship between M.B. and A.W after April 2015. No one pursued
the unanswered question as to the father's reasons for obtaining
a restraining order barring contact between mother and child.
The judge who heard M.B.'s application under the FM docket
might well have been unaware of the FN judge's expressed intent
to allow M.B. to litigate the issue of visitation in her home
county. We assume from the order that M.B. was unrepresented in
that proceeding, and may not have made clear to the judge in the
FM proceeding the assurances given to her and her attorney by the
FN judge. The FM judge was correct on the law that the Uniform
Child Custody and Jurisdiction Act, N.J.S.A. 2A:34-53 to -95,
deprived New Jersey of jurisdiction because the child had lived
in New York for more than six months. N.J.S.A. 2A:34-65.
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As we noted in a different context, "[w]hen custody issues
become intertwined with child protection actions then
dispositional questions that lie at the intersection of the two
matters become complicated . . . ." N.J. Div. of Youth & Family
Servs. v. I.S., 214 N.J. 8, 41 (2013). In this case, that
intersection resulted in M.B. consenting to the piecemeal
disposition of the case, and the placement of a child who did not
want to live with her with his father in exchange for the return
of her youngest child and dismissal of the abuse and neglect case.
Since no appeal was filed from the FM order, it cannot be
addressed in this decision. Thus, we are left with no alternative
but to affirm the orders being appealed for the reasons we have
stated. The termination of the FN litigation was a favorable
outcome for M.B., and was one to which she consented.
Affirmed.
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