DCPP VS. M.C. AND J.C. AND J.R. IN THE MATTER OF THE GUARDIANSHIP OF C.C., M.R., AND J.R.(FG-01-21-15, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-2541-15T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
M.C.,
Defendant-Appellant,
and
J.C. and J.R.,
Defendants.
__________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF C.C., M.R. and J.R.,
Minors.
__________________________________
Argued March 2, 2017 – Decided April 5, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket No. FG-01-21-15.
Catherine Reid, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Ms. Reid, on the briefs).
Leah A. Schmidt, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Ms. Schmidt, on the brief).
Caitlin McLaughlin, Designated Counsel,
argued the cause for minors (Joseph E.
Krakora, Public Defender, Law Guardian,
attorney; Ms. McLaughlin, on the brief).
PER CURIAM
Defendant, M.C., is appealing from an order terminating her
parental rights over her three children.1 Because the court re-
opened the guardianship proceeding sua sponte and terminated
defendant's parental rights, we vacate and remand.
Defendant is the mother of Caleb, Maddie, and Jack.2 This
case commenced on October 26, 2012, when defendant, pregnant with
Maddie, went to the hospital following a seizure and tested
positive for opiates. The Division of Child Protection and
1
To protect the identity of the children and for ease of
reference, we use pseudonyms. Defendant has a fourth child who
is not part of this litigation and who was born sometime after the
hearings in this case.
2
J.C. is the father of Caleb, and J.R. is the father of Maddie
and Jack. In February 2015, default was entered against J.C. J.R.
executed a voluntary surrender of his parental rights. Neither
father has appealed the decision in this matter.
2 A-2541-15T4
Permanency (Division) received a referral regarding the incident.
The referral was unfounded, but a protection plan was put in place
requiring defendant's care of Caleb be supervised by an approved
relative. The Division received another referral on December 2,
2012, following the birth of Maddie. Maddie tested positive for
illegal substances, but defendant had been given morphine during
the birth; therefore, it was unclear what substance caused the
positive result.
The Division filed a complaint for care and supervision of
Caleb and Maddie in December 2012, which the court granted.
Custody remained with defendant while she continued attending
substance abuse treatment. On April 10, 2013, the court granted
the Division care, custody, and supervision of Caleb and Maddie,
after the Division received another drug-related referral and
determined the approved supervisors could no longer properly
supervise defendant and the children. The children were
subsequently removed from defendant's care. Defendant was then
incarcerated at some point after the children's removal.
In May 2014, the Division received another referral following
Jack's birth, because Jack suffered from withdrawal symptoms and
was diagnosed with neonatal abstinence syndrome (NAS). Defendant
tested positive for opiates and admitted she relapsed and was
using cocaine. Jack remained in the NICU in the hospital for one
3 A-2541-15T4
month, then was placed in a relative resource home, separate from
Maddie and Caleb. Caleb and Maddie were initially placed with a
maternal great aunt following removal. In June 2013, the great
aunt requested the children be removed, and since then Maddie and
Caleb have lived with foster parents in a resource home. All of
the children's resource parents are willing to adopt them. Bonding
evaluations were conducted between the children and their resource
parents. Jo Anne Gonzalez, Ph.D. noted,
If returned to either one of their parents,
[Caleb] and [Maddie] will be living with
parents with whom they have not maintained any
kind of consistent relationship. Neither
parent has been able to reach a consistent
level of stability . . . that will allow them
to reduce the possible harm [they] would face
if they are not successful in maintaining
themselves free of drug use.
Dr. Gonzalez recommended Caleb and Maddie be adopted by their
resource parents. Dr. Gonzalez made the same recommendations for
Jack and his resource parents.
Throughout the litigation, the Division attempted to help
defendant get substance abuse treatment. Our review of the record
demonstrates these efforts had very limited success. However,
defendant did successfully complete parenting classes through the
Family Life Center during her involvement with the Division, and
she graduated from the program on June 26, 2015.
4 A-2541-15T4
Defendant underwent a psychological evaluation and bonding
evaluations with her children, performed by Dr. Gonzalez on April
21, 2015. Dr. Gonzalez diagnosed defendant with bipolar disorder,
opioid dependence (in early remission), cocaine abuse, and
unspecified personality disorder (with borderline and antisocial
traits). Dr. Gonzalez recommended defendant's rights be
terminated because she was "not in a position . . . to provide a
safe and stable environment for her children."
Dr. Gonzalez opined the children loved their mother, and she
loved them but described their bond as "insecure." She recommended
contact between defendant and the children be supervised and the
children remain with their foster families. She recommended a
goal of adoption for the children following termination of parental
rights.
Defendant also underwent a psychiatric evaluation by
Alexander Iofin, M.D., on April 28, 2015. Dr. Iofin diagnosed
defendant with substance abuse, as well as various personality
disorders. Dr. Iofin opined "[I]t will be unreasonable to
anticipate that she will be able to function psychiatrically in a
way that will allow her to be considered for changing the goal of
termination of parental rights to reunification with her children
in the foreseeable future."
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The guardianship trial occurred on December 7, 2015, December
9, 2015, and January 6, 2016. The Division presented the testimony
of the Division caseworker and Dr. Gonzalez. Dr. Gonzalez
testified as to her evaluations with defendant and the children.
The caseworker summarized defendant's involvement with the
Division and the services the Division offered. Defendant also
testified. She stated she had been working full-time for Bayview
Cottage, a nursing home owned by J.J.,3 J.R.'s grandmother, for
about four years. She worked there, "so that [her] house is taken
care of and my utilities are taken care of." Defendant did not
recall the caseworker ever asking for a pay stub, and stated she
did not provide the Division with J.J.'s contact information
because J.J. is in and out so much that she would not answer if
they called. She testified she helped with cooking, cleaning,
serving meals, and paperwork.
Defendant also testified she had not let the Division
investigate her home because she "didn't see it as a problem" and
"felt that it might be a little invasive" to her roommates at the
time. She informed the court J.J. owned the house she lived in,
and the house had running water, heat, and electricity.
3
We use initials to protect the identity of a non-party witness.
6 A-2541-15T4
On January 26, 2016, the trial judge issued a decision finding
the Division had satisfied prongs one, three, and four of the
four-prong "best interests of the child" test, N.J.S.A. 30:4C-
15.1(a), but had not met the requirements to satisfy prong two by
clear and convincing evidence. The judge stated the matter was
dismissed without prejudice but would be subject to reinstatement,
conditioned upon M.C. allowing the Division access to her home for
inspection within ten days, as well as providing proof of
employment within ten days. Failure to comply would result in "FG
litigation being reopened by the court," and the matter was to
"return . . . under the FN docket for review of the above mandates."
The court reconvened on February 9, 2016.4 The Division then
presented testimony from J.J., who informed the court defendant
has not worked for her in more than three years but did
occasionally run errands for her. J.J. also testified she owns
the house where defendant resides, but was not paying the mortgage
on the house and did not pay for the utilities.
The Division also presented testimony from the caseworker who
investigated defendant's home. The caseworker testified there was
no heat in the home, but defendant was using multiple space heaters
to heat the living room and kitchen areas. Defendant informed her
4
The trial judge confirmed the FG was dismissed at that time.
7 A-2541-15T4
the gas was not turned on at the house. There were additional
safety hazards, including a broken step on the basement stairs and
no covering on an entrance to the basement from the backyard. The
caseworker observed what she thought was mold in a corner of the
basement. There was a crib for Jack, but no beds for Caleb or
Maddie. A boarded up window was located at the front of the house.
The next day, the court opened the record stating "we're here
in the associated matters of DCP&P v. [M.C.] and [J.C.], docket
number FN-[01][]-[165][]-[13][], and in the matter of the
guardianship of [C.C.], [M.R.] and [J.R.], docket number FG-[01]-
21-15." Defendant's counsel stated she was representing defendant
in both docket types.
Defendant testified in response to the prior testimony,
explaining she began making payments on the electric bill, and she
had the gas turned on recently. Additionally, she testified she
was waiting to have the furnace fixed and had recently ordered a
part for it. She stated once the furnace was fixed, she would no
longer use the space heaters. In response to J.J.'s testimony,
defendant testified she worked for J.J. three to five times a week
and was paid under the table. She stated she did not need public
assistance at that time, so she did not see the point in applying.
She stated if her children were coming home, she would apply. She
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was unaware no one was making payments on the house, but did not
plan to stay there long-term anyway.
At the close of the evidence, the judge heard the arguments
of defendant's attorney who expressed concern regarding the
ambiguity of the procedural posture of the case, and argued for
continuation of the matter under the FN docket. The Deputy
Attorney General asked the judge to reopen the guardianship because
the Division had presented new evidence to establish prong two.
The judge agreed with the Division and issued an order
terminating defendant's parental rights on February 10, 2016. The
order stated, "The guardianship docket FG-01-21-15 was reopened
sua sponte by the court as contemplated by its 1/26/16 order, and
after a full plenary hearing on the issues of [defendant's] housing
and employment, the court granted the Division guardianship." The
order further indicated the court "reverse[d] its findings with
regard to Prong 2."
The judge supplemented the record with the testimony from
J.J. and the Division caseworker, both of whom the court found to
be reliable and credible. The judge found defendant "ha[d]
perpetrated a fraud upon the court and was dishonest in her
testimony on 1/6/16, and was dishonest in her testimony [on
2/10/16]." Further, defendant "is not willing or able to provide
a safe and stable home for the children, lacks employment or any
9 A-2541-15T4
means to provide for the children's safety, health or development."
This appeal followed.
On appeal, defendant argues the evidence regarding her
housing and employment was insufficient to establish the second
prong, and the conduct of the proceedings deprived her of due
process. Because we agree with defendant's second premise, we are
constrained to vacate the judgment of guardianship, and remand the
matter for further proceedings for the reasons that follow.
Parents have a constitutionally protected right to raise
their biological children, even if the children are placed in
foster care. In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992)
(citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982)). Although a parent's "rights are fundamentally
important, they are not absolute, and 'must be balanced against
the State's parens patriae responsibility to protect the welfare
of children.'" N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 397 (2009), (quoting N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 605 (2007)). "In balancing those competing
concerns, a court must ensure that the statutory and constitutional
rights of the parent or guardian are scrupulously protected."
Ibid. (citing J.C., supra, 129 N.J. at 10). Among these rights
is "[d]ue process [which] requires adequate notice and a fair
opportunity to be heard." Div. of Youth & Family Servs. v.
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M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2003). Additionally,
"due process is flexible and calls for such procedural protections
as the particular situation demands." N.J. Div. of Youth & Family
Servs. v. R.D., 207 N.J. 88, 119 (2011).
In R.D., supra, 207 N.J. at 108-09, our Supreme Court
addressed the differences between a Title Nine abuse and neglect
proceeding and a Title Thirty guardianship proceeding. Under a
Title Nine proceeding, "any determination that the child is an
abused or neglected child must be based on a preponderance of the
evidence." N.J.S.A. 9:6-8.46(b). By contrast, in a Title Thirty
termination of parental rights proceedings, courts must apply the
more rigorous clear and convincing evidentiary standard to the
Division's evidence proving each of the statutory prongs of the
best interest test set forth in N.J.S.A. 30:4C-15.1(a). R.D.,
supra, 207 N.J. at 113. However, "a Title Nine court that
reasonably foresees its proceedings ripening into a subsequent
Title Thirty proceeding may seek to short-circuit the duplication
of presenting proofs in a later Title Thirty proceeding" by
applying the clear and convincing standard in the Title Nine
proceeding. Id. at 120.
To do so, the Title Nine court must provide "clear and
unequivocal" advance notice to the parties that it will make
findings under the Title Thirty "clear and convincing evidence"
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standard. Ibid. The court must also "make clear to the parties
that . . . the determinations made in [the Title Nine proceeding]
may have preclusive effect on the final, permanent relief arising
out of a Title Thirty proceeding." Id. at 121. Lastly, the "Title
Nine court must relax the time deadlines and, to the extent
necessary, use in the Title Nine proceeding the admissibility of
evidence standards applicable to Title Thirty proceedings." Ibid.Here, the trial court dismissed the Title Thirty complaint
because the Division had not met the clear and convincing standard
of proof under prong two and warned the Title Thirty complaint was
subject to renewal, but proceeded under Title Nine. The judge
ultimately applied the clear and convincing standard at the end
of the Title Nine proceeding and sua sponte entered an order of
guardianship. However, R.D. makes clear the transition between a
Title Nine proceeding and a Title Thirty proceeding is not so
fluid.
Here, the trial court did not provide the necessary notice
to defendant that it would apply the clear and convincing standard
of a Title Thirty proceeding when he resumed the litigation under
the Title Nine matter. "[U]nless the parties are on notice that
the Title Nine proceedings are to be conducted under the higher,
clear and convincing evidence standard constitutionally required
for Title Thirty proceedings and appropriate accommodations are
12 A-2541-15T4
made for the fundamentally different natures of these disparate
proceedings," no "collateral or preclusive effect" may be given
to the Title Nine proceeding "in any subsequent and related Title
Thirty proceedings." Id. at 93.
We reject the idea the error here was harmless because
defendant was on notice the guardianship proceeding might be re-
opened and she did not suffer prejudice as a result of the hearing.
The Division had not re-filed a Title Thirty proceeding seeking
termination of defendant's parental rights and did not request
such relief until the close of the hearing. The record
demonstrates the nature of the proceeding was, at best, ambiguous.
The trial judge could have signaled to the Division his conclusion
the evidence supported the re-opening of the guardianship
proceeding rather than omit the constitutionally required
protection of having the Division re-file the Title Thirty
guardianship complaint to re-litigate prong two. We understand
the court's decision, however, the rules provided a remedy if the
judge determined he needed additional evidence. Rather than
dismiss the original guardianship proceeding the judge could have
continued the guardianship proceeding pursuant to Rule 5:9-3,
which permits the court at any time during or after the hearing
to require the production of additional evidence and continue the
hearing as the situation requires. Because the judge here failed
13 A-2541-15T4
to comply with the requisite procedural safeguards, we vacate the
judgment of guardianship and remand for additional proceedings
after proper notice and sufficient time to allow defendant to be
heard on the issues.
Vacated and remanded for additional proceedings consistent
with this opinion within twenty-one days. Within twenty-one days,
the court shall continue the trial and allow the parties to present
additional testimony and evidence regarding prong two of the best
interests of the child test. Within seven days of the completion
of the trial, the court shall issue its final decision and opinion.
We retain jurisdiction.
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