RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1045-12T4
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. March 5, 2015
P.C., APPELLATE DIVISION
Defendant-Appellant.
___________________________________
IN THE MATTER OF O.B.,
B.C. AND N.C.,
Minors.
___________________________________
Telephonically argued April 10, 2014 –
Decided January 15, 2015
Before Judges Lihotz, Maven and Hoffman.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Bergen County, Docket No. FN-02-0315-11.
Amy M. Williams, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Ms. Williams, on
the brief).
Mary C. Zec, Deputy Attorney General, argued
the cause for respondent (John J. Hoffman,
Acting Attorney General, attorney; Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Ms. Zec, on the brief).
Noel C. Devlin, Assistant Deputy Public
Defender, argued the cause for respondent
O.B., a minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Mr.
Devlin, on the brief).
Suzanne M. Carter, Designated Counsel,
argued the cause for respondents B.C. and
N.C. (Joseph E. Krakora, Public Defender,
Law Guardian, attorney; Ms. Carter, on the
brief).
The opinion of the court was delivered by
MAVEN, J.A.D.
Defendant P.C. appeals from a Family Part order determining
she neglected the emotional needs of her teenaged daughter O.B.
(Olivia).1 At the commencement of a fact-finding hearing on the
complaint filed by plaintiff the Division of Youth and Family
Services2 (the Division) concerning conduct by B.C., defendant's
former husband, the trial judge suggested sua sponte the facts
"could rise" to support a finding of neglect against defendant,
even though the Division's complaint had not alleged substantive
1
We refer to the children by fictitious names to protect their
privacy and for ease of reference.
2
On June 29, 2012, the Governor signed into law A-3101, which
reorganizes the Department of Children and Families, including
the renaming of the Division as the Division of Child Protection
and Permanency (Division). L. 2012, c. 16, eff. June 29, 2012
(amending N.J.S.A. 9:3A-10(b)).
2 A-1045-12T4
allegations that she had abused or neglected Olivia. Following
an adjournment, although the Division's complaint was not
amended, the same judge presided over the reconstituted fact-
finding hearing reviewing the conduct of both defendant and B.C.
We conclude this was error and reverse.
I.
B.C., is Olivia's stepfather and the father of defendant's
other children, Brandon and Nicole. The three children spent
time with B.C. at his home on weekends.
On May 25, 2011, the Division received a referral from
Olivia's school guidance counselor stating Olivia disclosed that
B.C. had engaged in a sexual relationship with her at his home.
As a result of the referral, the Bergen County Prosecutor's
Office interviewed Olivia, who said the sexual assaults had been
occurring since 2009. Olivia had not disclosed the abuse to
defendant. A Division caseworker observed the interview.
Later that day, the caseworker interviewed defendant who
expressed shock and disbelief at Olivia's allegations.
Defendant mentioned she had trouble in the past with Olivia
making up stories.3 Defendant agreed to cooperate and signed a
3
In May 2010, the Division investigated allegations made by
Olivia that her stepfather had threatened to physically harm her
and her siblings. During the investigation Olivia recanted her
story and admitted that she lied. The Division determined the
(continued)
3 A-1045-12T4
safety plan permitting the Division to interview the children
and restraining B.C. from the children.
The next day, a Division caseworker investigated a claim
that Olivia was "upset about the way [defendant] ha[d] been
treating her" and that defendant "had cursed at her." Defendant
denied cursing at Olivia, stated she was "trying to be
supportive to all her children" and Olivia's statements were a
surprise. When confronted by the caseworker, Olivia denied that
defendant cursed at her, but then reported defendant told
Brandon that she was going to send her to boarding school. Her
brother and sister both reported to the caseworker similar
facts. When confronted by the caseworker, defendant stated the
children had misunderstood her.
On May 27, Olivia underwent a medical evaluation by Nina
Agrawal, M.D. The Division provided Dr. Agrawal its intake
information and the screening summary from the initial report of
sexual abuse. Dr. Agrawal reported: "The examination does not
confirm or deny the possibility of sexual abuse." The report
also stated that "the examination should not discount [Olivia's]
report of sexual abuse." Based upon "intake information
(continued)
allegations were unfounded and concluded that Olivia had "a long
history of making up stories about her parents when she is mad
at them."
4 A-1045-12T4
provided by [the Division]," Dr. Agrawal concluded that
defendant was not supportive of Olivia and believed that she was
lying. Dr. Agrawal further opined that Olivia was "at risk for
recantation due to the mother's failure to support her
disclosure. [Defendant's] outward support for B.C. by
financially supporting his discharge from jail [wa]s placing the
safety of [Olivia] and her siblings at risk for abuse."
Finally, Dr. Agrawal recommended a parenting evaluation for
defendant.
On June 6, the Division substantiated the sexual assault
allegations against B.C. and concluded that the case would be
litigated.4 That same day, the Division filed a verified
complaint for care and supervision of Olivia, Brandon, and
Nicole. The Division did not substantiate claims of abuse and
neglect against defendant, but named her for dispositional
purposes only. At the hearing on the return date of the order
to show cause, counsel for the Division reported that while
defendant continued to assert that she did not believe Olivia,
defendant would support her. Counsel further confirmed that the
4
B.C was subsequently indicted and charged with aggravated
sexual assault of a minor and endangering the welfare of a
child. At oral argument we were informed the trial was
scheduled for April 2014. We are unaware of the disposition of
the criminal proceedings.
5 A-1045-12T4
Division's complaint did not allege any claims against defendant
and that it was not proceeding against defendant. The court
ordered that defendant retain legal and physical custody of
Brandon and Nicole, but ordered physical custody of Olivia to
continue with her grandmother.5
The fact-finding trial against B.C. commenced as scheduled
before a different judge. After opening statements and twenty
to thirty minutes of testimony by the Division caseworker, the
court became concerned regarding defendant's expressed disbelief
of Olivia's allegation of sexual abuse. The judge halted the
proceedings and questioned "whether defendant's treatment of the
child rose to abuse or neglect." Because defendant was present
in court to observe the proceedings, the judge called counsel to
sidebar where the following colloquy ensued:
THE COURT: Counsel, would you approach for
a minute. Everyone. I don't know the case,
I don't read the case purposely. Would you
agree that I can find against [defendant]?
[DIVISION'S COUNSEL]: Yes, you could.
The judge summoned defendant's attorney to the courtroom.
When she appeared, the following colloquy occurred:
THE COURT: Okay. . . . We are back on the
record. . . . We broke a few minutes ago
and I asked to have [defendant's counsel]
5
Olivia began staying with her grandmother on May 25, with
defendant's consent.
6 A-1045-12T4
come over to the court. . . . Thank you
very much for responding so promptly.
[DEFENSE COUNSEL]: You're welcome, Judge.
THE COURT: It's my understanding that the
Division has substantiated [B.C.] for
sexually abusing his stepdaughter. But the
Division did not substantiate [defendant]
for abuse or neglect.
We heard about a half hour worth of
testimony and my question was to counsel
. . . if I hear any more testimony and we
stopped testimony, if I heard testimony that
was sufficient to find that [defendant] had
abused or neglected her children[] [w]hether
I had the authority to do that. I think I
do. I think it is this [c]ourt's duty and
mandate to protect children. So this is why
I've asked you to come over and participate
in this trial.
. . . .
THE COURT: Just so you know, and you'll
be able to listen to the transcript of the
trial, I asked [defendant] . . . [w]hy she
was here [and w]hether she was excused from
the trial, because I didn't read the case
prior to the trial so that I get a fresh
impression. And [defendant] indicated that
she was excused from the trial, you didn't
know that she was . . . here, you expected
that she wouldn't attend, is that correct?
[DEFENSE COUNSEL]: Correct.
. . . .
[DEFENSE COUNSEL]: . . . [t]he Division was
not seeking a stipulation or a fact-finding
against my client. However, your Honor,
. . . and now it is my understanding that
the [c]ourt has heard a little bit of
testimony and feels that perhaps sua sponte,
7 A-1045-12T4
there might be some sort of finding that the
[c]ourt would make in such a situation
despite the fact that the Division is not
proceeding against my client. However, I
would have to object to the [c]ourt, first
of all, considering a sua sponte finding of
abuse and neglect against my client at any
point if the Division is not seeking one.
And especially in this particular situation
because . . . certainly if my client was on
notice from the very beginning of the case,
the Division had substantiated her and/or
was seeking a finding or a stipulation
against her, I as her attorney, and she
even, would have proceeded in a totally
different way with the entire matter from
the very beginning.
. . . .
So on behalf of my client, and in light of
the fact that there's already been [twenty]
minutes of testimony, I must, on behalf of
my client, move for a mistrial at this time
because my client has not had any notice
[that the Division was seeking a finding of
abuse and neglect against her]. . . .
. . . .
Judge, [I'm] sort of in a vacuum because
I've just been called in only 10 minutes
ago, or 15 minutes ago, and been told that
the [c]ourt wants to proceed. So again I
move for a mistrial. I would also like all
of the documents and the facts upon which
the Division, or the [c]ourt, is seeking a
finding against my client.
. . . .
THE COURT: Let me explain what's
happening here.
. . . .
8 A-1045-12T4
THE COURT: I'm not proceeding against
your client. I'm not adversarial to your
client. This is the [c]ourt. I heard
testimony for about 20 minutes or half hour
at which point I was concerned that at least
that testimony may lead this [c]ourt to
decide, after I've heard all of the
competent testimony, that [defendant] abused
or neglected her children.
. . . .
THE COURT: At [this] point I [thought] due
process required you to be present and you
to be informed of what was happening and we
would determine how to proceed. Parents
certainly have a liberty interest, a
fundamental liberty interest, to their
children. Children also have a fundamental
interest in being safe and protected. This
[c]ourt is charged with protecting children.
And I think . . . I would abdicate my duties
if I were to proceed with a trial and hear
facts and find or determine or think that a
child has been abused or neglected and
ignore that and leave that child at risk.
So I have made no determination. I've heard
enough facts that I think you should be
involved in this case. Your application for
a mistrial is denied. I think this can be
corrected by due process.
I will give an adjournment today. You
can have all the time you need to prepare
your aspect of the trial. If you [would]
like you can listen to the transcript. I
think you have to. There's only about
[twenty] minutes of testimony from the
caseworker. You can hear that testimony.
Nobody has even started cross-examination
. . . . This is a highly unusual situation.
In January 2012, the same judge started the fact-finding
trial anew. The caseworker who testified in the earlier
9 A-1045-12T4
proceeding was unavailable as she left the Division's employ.
During the six-day trial that ended in June 2012, the Division
presented the testimony of Olivia, her school guidance
counselor, her therapist, and the Division's supervising family
services specialist. The Law Guardians did not present any
witnesses, and neither defendant nor B.C. testified.
At the close of trial, the Division and Law Guardians
argued for a finding of abuse against B.C. The judge issued a
written decision finding that both defendant and B.C. abused and
neglected Olivia. While acknowledging the Division had not
substantiated defendant for abuse or neglect, the judge rejected
the argument that defendant's due process rights were violated,
concluding her "due process rights were preserved by adjourning
the matter to provide [her counsel] with additional time to
prepare for trial."
After assessing the testimony of the witnesses and the
documentary evidence, the trial judge determined that
defendant's disbelief in Olivia's allegation "immediately placed
the child in the untenable position of feeling responsible for
B.C.'s arrest and turmoil that resulted from her disclosure."
The judge concluded that defendant neglected Olivia's "emotional
needs and exacerbated the abuse inflicted by [B.C.]." Finally,
the judge found there was "sufficient evidence for an
10 A-1045-12T4
independent finding, absent the Division's substantiation, to
support a finding by a preponderance of the evidence that
[defendant] emotionally abused and neglected [Olivia] as defined
in N.J.S.A. 9:6-8.21(c)(4)(b)." The trial court filed an order
that provided that B.C. sexually abused Olivia and defendant
"neglected the minor's emotional needs."
After dispositional hearings, the judge ordered Olivia
returned to defendant, and terminated the litigation. This
appeal followed.
II.
Defendant argues (1) the trial court exceeded its statutory
authority and failed to comport with defendant's due process
protections; (2) the finding of abuse or neglect was not
supported by the evidence presented at trial; and (3) the judge
demonstrated an improper lack of impartiality by presiding over
the trial.
The Division responds that defendant's contentions ignore
the State's parens patriae role and obligation to act in the
best interests of children. Further, the Division argues that
defendant had notice at the outset of the case when she was
named in the verified complaint. The Law Guardian for Olivia
agrees with the State and urges us to affirm, while the Law
Guardian for the younger children urges us to reverse.
11 A-1045-12T4
We first address defendant's due process claims. Defendant
contends the court erred by ordering sua sponte a Title Nine
fact-finding hearing when the complaint did not allege any
claims of abuse or neglect against her. According to defendant,
she had no notice that the trial court would consider making an
adverse finding against her. The State responds that neither
Title Nine nor any applicable case law prohibits a trial judge
from making a finding of abuse or neglect against a named
defendant even though none has been made by the Division.
Our analysis begins with a review of the applicable legal
principles. It is axiomatic, that parents have a fundamental
constitutional right to raise their children without undue
interference from the State. N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 102 (2008). But that right is tempered by
the State's parens patriae responsibility to protect children
from serious physical and psychological harm, even where the
child's parent is the source of the harm. N.J. Div. of Youth &
Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004); see In re
Guardianship of K.H.O., 161 N.J. 337, 347 (1999)). At a
minimum, "due process requires that a parent charged with abuse
or neglect have adequate notice and opportunity to prepare and
respond." N.J. Div. of Youth & Family Servs. v. T.S. 429 N.J.
Super. 202, 213 (App. Div. 2013) (citation and internal
12 A-1045-12T4
quotation marks omitted); see also N.J. Div. of Youth & Family
Servs. v. B.M., 413 N.J. Super. 118, 126-27 (App. Div. 2010)
(noting that a defendant must be apprised by such notice of the
matters at issue and be afforded an "adequate opportunity" to
respond and prepare for trial).
The child protection statute provides that "[a]ny person
having reasonable cause to believe that a child has been
subjected to child abuse or acts of child abuse shall report the
same immediately to the [Division] by telephone or otherwise."
N.J.S.A. 9:6-8.10. Further, N.J.S.A. 9:6-8.34(e), provides that
a Title Nine action may be originated by certain enumerated
persons, including "[a] person on the court's direction."
Following an investigation, the Division initiates the
civil action seeking an adjudication of abuse or neglect by
filing a complaint in the Family Part, pursuant to N.J.S.A. 9:6-
8.33. The complaint must adequately notify a defendant of all
charges. See N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 36-37 (2011).
The fact-finding hearing is a critical element of the abuse
and neglect process, as it is at that point the Division must
prove its allegations by a preponderance of the evidence. N.J.
Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 474-
75 (App. Div.), certif. denied, 203 N.J. 439 (2010).
13 A-1045-12T4
Accordingly, the fact-finding hearing must be conducted "'with
scrupulous adherence to procedural safeguards.'" N.J. Div. of
Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009) (quoting
A.R.G., supra, 179 N.J. at 286).
Following our review, we conclude the order as to defendant
must be vacated. First, we determine that the trial judge
failed to scrupulously safeguard defendant's due process
protections. Second and more important, the judge, after
directing the Division to focus on defendant's conduct as
violating the statute, was no longer an independent fact-finder;
she should have recused herself, and transferred the case to
another Family Part judge.
Here, the Division had determined after a full
investigation that it had insufficient evidence to support a
complaint of abuse or neglect against defendant. Nevertheless,
the court stated, without prior notice and after only several
minutes of testimony, that it had heard enough facts to order
defendant to be "involved" in the case and ordered the case to
be tried against defendant as well as B.C. In its sua sponte
ruling, the court explained it was exercising its parens patriae
responsibility to protect the child. Yet, in doing so, the
court disregarded long-standing due process principles that
require a party in a judicial hearing receive notice defining
14 A-1045-12T4
the issues and an adequate opportunity to prepare and respond.
B.M., supra, 413 N.J. Super. at 126. Here, the Division never
amended its complaint to inform defendant of the factual basis
supporting a claim that she caused Olivia to be an abused or
neglected child. Further, the judge's general comments that
"testimony may lead this [c]ourt to decide . . . that
[defendant] abused or neglected here children" is insufficient
to satisfy the due process notice requirement.
This is not to say that the due process errors could not
have been corrected. The law permits the judge to refer
concerns to the Division, pursuant to N.J.S.A. 9:6-8.34, or
any person to originate a proceeding under N.J.S.A. 9:6-8.10.
However, that did not occur in this case. As suggested by the
Deputy Attorney General's assent when the judge first presented
the issue, the Division could have reopened its investigation
and amended the complaint to include allegation of conduct
amounting to abuse or neglect against defendant. Despite the
judge's continuation of the proceeding, the Division did not do
so.
Importantly, following the Division's presentation of
evidence in a fact-finding hearing, if the judge determined
defendant's disbelief of the accuracy of Olivia's assertions
proved problematic to the child's emotional well-being,
15 A-1045-12T4
safeguards could have been put in place during dispositional
hearings, such as continuing therapeutic intervention between
parent and child or individual counseling directed to aid
defendant's understanding of the effect of her conduct on
Olivia.6 We note the record suggests defendant must have
resolved her initial rejection of Olivia's assertions because
the child was returned to her care.
We are convinced that the procedures employed at the trial
level were fundamentally unfair and significantly deprived
defendant of her due process rights. Hence, we conclude the
court's determination of abuse or neglect against defendant
cannot stand.
Next, defendant asserts the events and proceedings created
an appearance of judicial bias. We agree. The court's sua
sponte action coupled with its continued oversight of the fact-
finding trial gave the appearance a lack of impartiality in the
proceeding.
Rule 1:12-1 provides that a judge shall disqualify himself,
or herself, on his or her own motion and not sit in a matter for
the reasons contained in the rule, including "when there is any
6
We are not suggesting that the evidence in this case would
have been sufficient to warrant an amended complaint or a
finding of abuse or neglect. Indeed, because of our disposition
we need not reach that issue.
16 A-1045-12T4
other reason which might preclude a fair and unbiased hearing
and judgment, or which might reasonably lead counsel or the
parties to believe so." R. 1:12-1(g). In our view, the judge
formed an initial impression of defendant's conduct despite the
Division's decision not to pursue defendant in this matter and
the court's continued oversight over the ensuing trial, created
an appearance of bias. "[T]he mere appearance of bias may
require disqualification" upon a reasonably objective belief
that the proceeding was unfair. Panitch v. Panitch, 339 N.J.
Super. 63, 67 (App. Div. 2001) (quoting State v. Marshall, 148
N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L.
Ed. 2d 88, (1997)). In this matter, the court clearly did not
regard its actions as a disqualifying circumstance. However, we
conclude it should have. It was inappropriate for the judge to
preside over the fact-finding trial under these circumstances.
The trial should have been reassigned to another Family Part
judge.
We reverse the July 16, 2012 order as to defendant. Our
disposition makes it unnecessary for us to address any remaining
contentions.
Reversed.
17 A-1045-12T4