DCPP VS. B.W., A.A. AND R.R.IN THE MATTER OF A.W., A.R., RA.R., RE.R. AND A.A.(FN-21-0101-13 AND FN-21-102-13, WARREN 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NOT FOR PUBLICATION WITHOUT THE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-5784-14T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

B.W.,

Defendant-Appellant,

and

A.A. and R.R.,

Defendants.
______________________________________

IN THE MATTER OF A.W., A.R., Ra.R.,
Re.R., and A.A., Minors.
_______________________________________

Submitted May 2, 2017 – Decided May 18, 2017

Before Judges Leone and Vernoia.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Warren
County, Docket Nos. FN-21-0101-13 and FN-21-
102-13.

Joseph E. Krakora, Public Defender, attorney
for appellant (Amy Vasquez, Designated
Counsel, on the brief).
 Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Julie
B. Colonna, Deputy Attorney General, on the
brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Todd Wilson,
Designated Counsel, on the brief).

PER CURIAM

Defendant B.W. (Mother),1 the mother of five children residing

in New Jersey, appeals an April 3, 2013 family court order finding

she abused or neglected her four older children and an April 26,

2013 dispositional order continuing the custody, care and

supervision of the four children with the New Jersey Division of

Child Protection and Permanency (DCPP). She also appeals the April

26, 2013 order to the extent it dismissed DCPP's Title Nine,

N.J.S.A. 9:6-8.21 to -8.73, complaint as to Mother's youngest

child A.A. (Ann) and Ann's father, A.A. (Arnold), and awarded

joint legal custody of Ann to Mother and Arnold, physical custody

of Ann to Arnold, and required that Mother's parenting time with

Ann be supervised. The court entered an order terminating the

litigation on July 8, 2015. We affirm the court's April 3, 2013

fact-finding order and vacate that part of the April 26, 2013

1
We employ initials and pseudonyms to protect the privacy of the
parties and for ease of reference.

2 A-5784-14T2
dispositional order concerning physical and legal custody of Ann,

and requiring that Mother's parenting time with Ann be supervised.

I.

The five children involved in this matter are: A.W. (Alice),

born in 1995; A.R. (Anthony), born in 1997; Ra. R. (Ralph), born

in 1998; Re. R. (Rebecca), born in 2004; and A.A. (Ann), born in

2011. Arnold is Ann's father, R.C. is Alice's father, and R.R. is

the father of Anthony, Ralph and Rebecca. Neither R.C. nor R.R.

participated in this litigation.

Mother, Arnold and the five children lived together in

Kentucky and moved to New Jersey in June 2011, after Arnold's job

was relocated. On June 30, 2012, a neighbor reported to the police

that Alice had bruises and Alice said she was beaten by Mother.

The Division responded and interviewed the family members at the

police station.

On July 2, 2012, the Division under Title Nine filed a

verified complaint for care and supervision of Ann, and a separate

verified complaint for custody, care and supervision of Alice,

Anthony, Ralph and Rebecca. At a hearing on July 3, 2012, the

court awarded DCPP care and supervision of Ann with physical

custody to Arnold, and awarded DCPP care, custody, and supervision

of the other four children. The court also barred Mother from the

family home.

3 A-5784-14T2
 On August 30, 2012, Arnold filed a non-dissolution complaint

against Mother seeking custody of Ann, child support, and other

relief (the "non-dissolution matter"). On October 19, 2012, the

court entered an order in the non-dissolution matter denying

Mother's request for custody and unsupervised parenting time,

directing that custody and parenting time of Ann would be in

accordance with the orders previously entered in the Title Nine

proceedings, and permitting Mother to refile for custody and

parenting time for Ann following the fact-finding proceeding in

the Title Nine matters. On October 19, 2012, the court also entered

a separate order consolidating the Title Nine matters.

On March 13, 2013, the Division filed an amended verified

complaint in the Title Nine proceeding. The court subsequently

conducted a fact-finding hearing. DCPP presented testimony from

Arnold and DCPP caseworkers Shawanda Henderson and Vendetta Hines-

Weekes. The law guardian for the four older children presented

testimony from New Jersey State Trooper Keith DeCarolis,

psychologist Dr. Anthony D'Urso, and school guidance counselor

Michelle Russack. The law guardian for Ann presented testimony

from Sachiko Brown, the law guardian's investigator. Mother did

not present any witnesses.

The evidence showed that on June 29, 2012, Arnold and Mother

picked up Alice after she spent the evening at a friend's house,

4 A-5784-14T2
and drove Alice home. Alice and Mother argued in the car. Upon

arriving home, Alice and Mother went into the house and began

fighting. Ralph went to the car, told Arnold about the fight, and

Arnold went into the home. Arnold saw Mother and Alice fighting

and pulling each other's hair. Ralph and Anthony were also present.

Arnold and Anthony physically separated Mother and Alice.

Arnold put his arms around Alice and started carrying her up

the stairs. He instructed Anthony and Ralph to restrain Mother.

However, Mother pursued Alice up the stairs and hit Alice. Arnold

put Alice in an upstairs bedroom, where she ran to a closet and

cowered in the corner. Mother entered the room and continued

striking Alice, with Ann and Rebecca nearby. Mother struck Alice

several times on the head, and Alice was unable to strike back or

defend herself because Arnold held her in an attempt to move her

away from Mother.

When Mother left the bedroom, Arnold observed that Alice had

scratches and blood trickling from her ear. Alice and Arnold left

the house and spoke in the car during a drive. When they returned

home less than an hour later, Mother and the other four children

were asleep.

When Arnold awoke the next morning, Alice was not home. Arnold

left the home, but was called by a neighbor who asked that he

return. When he arrived, the State Police and an ambulance were

5 A-5784-14T2
present, and he saw Alice, who he said "looked like she had just

finished a fight with . . . like, Mike Tyson . . . [with] bumps

and bruises and swelling," and "it was really, really bad."

The State Police reported that Alice suffered a contusion on

her head, bruising, an abrasion on her upper jaw and on her face,

swelling, a black eye, bruising on her knee, shin, and leg. The

DCPP intake worker observed Alice's injuries and said that her

face was "deformed," she had a large lump on her forehead the size

of a small grapefruit, four to five walnut sized lumps on her

face, several lumps on her head, a black eye, a welt on her neck,

rug burns around her knees, and welts on her back and torso. DCPP's

pre-placement medical assessment stated that Alice had seven

injuries to the head, one on her arm, and two on her leg.

Alice reported to the Division worker that she and Mother

argued in the car, and when they entered the house Mother grabbed

her hair and attacked her. According to Alice, Mother kicked and

choked her for about ten minutes until Arnold ended Mother's

initial assault.

Mother reported to the DCPP worker that she and Arnold

arranged to pick up Ann at a friend's home, but had difficulty

finding Alice because she provided them with false addresses.

Mother stated that when they returned home, Alice attacked her and

6 A-5784-14T2
she defended herself. Neither the State Police investigator nor

the DCPP worker observed any injuries on Mother.

The law guardian for Alice, Anthony, Ralph and Rebecca

presented expert testimony showing the children suffered emotional

and psychological harm resulting from exposure to physical

violence. D'Urso testified that Mother's acts of violence against

Alice constituted physical and emotional abuse, which caused

emotional and psychological harm to the child. He added that Alice

also suffered harm as a result of her exposure to acts of domestic

violence between Mother and a former paramour.

D'Urso explained that Anthony suffered from depression and

sadness resulting from his exposure to Mother's physical abuse of

Alice. D'Urso attributed Ralph's emotional disability to his

exposure to maternal violence, and opined that Rebecca suffered

emotional issues due to exposure to domestic violence and Mother's

physical abuse of Alice.

Testimony was also presented concerning the poor performance

of Alice and Anthony in school, with Anthony failing three of his

classes during the prior academic year and Alice failing almost

all of her classes during the previous school year. The evidence

showed that Alice and Anthony maintained regular attendance at

school, were respectful and courteous students, and that Mother

responded to communications from Russack, the school's guidance

7 A-5784-14T2
counselor, when Mother was contacted about the children's academic

issues.

Russack testified that she recommended that Anthony be

assessed to determine if he had a learning disability, but Mother

initially rejected the recommendation because she was concerned

Anthony would become a classified student. Russack explained that

other parents had refused recommendations for assessments for

similar reasons in the past. Mother later consented to the

assessment following DCPP's involvement in this matter.

Russack also provided information to Mother concerning an

online summer school program for Anthony because the school did

not have summer school. Russack explained that Mother sought

approval for an alternative and less costly online program, but

Mother's suggested program was not approved by the school district.

There were alternative summer programs at other schools but they

charged fees and their availability was limited. In any event, the

evidence showed Mother did not enroll Anthony in a summer school

program.

The court found the witnesses credible and rejected as not

credible Mother's contention that she acted in self-defense during

the physical altercation with Alice. The court determined DCPP

proved by a preponderance of the evidence that Alice was an abused

or neglected child under N.J.S.A. 9:6-8.21(c)(4) because Mother

8 A-5784-14T2
failed to exercise a minimum degree of care in providing

supervision, or by unreasonably inflicting or allowing to be

inflicted harm or substantial risk thereof, including the

infliction of excessive corporal punishment. In addition, the

court found DCPP proved Alice was an abused or neglected child

under N.J.S.A. 9:6-8.21(c)(1) because Mother inflicted injuries

upon Alice other than by accidental means that caused protracted

impairment of Alice's emotional health.

The court further determined Alice and Anthony were abused

or neglected children under N.J.S.A. 9:6-8.21(c)(4)(a) because

Mother failed to exercise a minimum degree of care in attending

to their educational needs.

The court also found Anthony, Ralph, and Rebecca were abused

or neglected children under N.J.S.A. 9:6-8.21(c)(4) because Mother

exposed them to "an environment with extensive violence, thereby

causing emotional harm." The court did not make any finding that

Ann was abused or neglected.

Following the court's entry of a fact-finding order, the

court conducted a dispositional hearing and entered an order

continuing DCPP's care, custody and supervision of Alice, Anthony,

Ralph and Rebecca, directing Mother to cooperate with DCPP

services, barring Mother from any contact with Alice, and

permitting Mother supervised visitation with Anthony, Ralph and

9 A-5784-14T2
Rebecca. The court order also dismissed the matter as to Ann and

Arnold, and directed that Mother and Arnold continue to share

legal custody of Ann, that physical custody of Ann remain with

Arnold, and that Mother's parenting time with Ann be supervised.

The court also ordered that any issues concerning any parenting

time and custody issues concerning Ann be addressed in the non-

dissolution proceeding.

The court subsequently entered an order terminating the

litigation. This appeal followed.

On appeal, Mother makes the following arguments:

POINT I

THE [TRIAL] COURT EXCEEDED ITS AUTHORITY BY
RESTRICTING [MOTHER'S] CONTACT WITH HER ONE-
YEAR-OLD CHILD [ANN] THROUGHOUT THE ENTIRE
CASE AND UPON DISPOSITION.

POINT II

THE TRIAL COURT'S DECISION MUST BE REVERSED
BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT A FINDING OF ABUSE AND NEGLECT WITH
REGARD TO THE MINORS [ALICE, ANTHONY, RALPH
AND REBECCA].

POINT III

THE TRIAL COURT IMPROPERLY DISMISSED [ANN]
FROM THE LITIGATION WITHOUT CONDUCTING A
"G.M." HEARING TO WHICH [MOTHER] AND THE CHILD
WERE [ENTITLED].

10 A-5784-14T2
 II.
We first consider Mother's argument that there was

insufficient evidence supporting the court's finding she abused

or neglected Alice, Anthony, Ralph and Rebecca. "We have a strictly

limited standard of review from the fact-findings of the Family

Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415

N.J. Super. 551, 577 (App. Div. 2010); N.J. Div. of Child Prot. &

Permanency v. N.T., 445 N.J. Super. 487, 505 (App. Div. 2016). A

reviewing court defers to the factual findings of a family court

"because it has the opportunity to make first-hand credibility

judgments about the witnesses who appear on the stand," "it has a

feel of the case that can never be realized by a review of the

cold record" and it has "special jurisdiction and expertise in

family court factfinding." New Jersey Div. of Youth & Family Servs.

v. M.C. III, 201 N.J. 324, 342-43 (2010).

Accordingly, we will "not disturb a family court's abuse or

neglect findings as long as they are 'supported by adequate,

substantial, and credible evidence in the record.'" N.T., supra,

445 N.J. Super. at 505 (quoting N.J. Div. of Youth & Family Servs.

v. G.L., 191 N.J. 596, 605 (2007)). Family court decisions will

be upheld, "unless the trial court's findings 'went so wide of the

mark that a mistake must have been made.'" N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B.

11 A-5784-14T2
Snyder Realty Inc. v. BMW of N. Am., Inc., 223 N.J. Super. 65, 69

(App. Div.), certif. denied, 117 N.J. 165 (1989)). However, no

deference is owed to the trial court's "interpretation of the law

and the legal consequences that flow from established facts."

Manalapan Realty, L.P. v. Twp. Comm'n of Manalapan, 140 N.J. 366,

378 (1995).

We begin by noting that Mother does not challenge the court's

finding that she abused or neglected Alice under N.J.S.A. 9:6-

8.21(c)(4) by unreasonably inflicting harm by excessive corporal

punishment, and under N.J.S.A. 9:6-8.21(c)(1) by inflicting

physical injury by other than accidental means and causing

protracted impairment of Alice's emotional health. Although Mother

does not argue to the contrary, based on our review of the record

we are satisfied there was substantial credible evidence

supporting the court's determination.

The evidence showed that during the June 29, 2012 incident,

Mother aggressively struck and kicked Alice during their initial

altercation on the first floor of their home, pursued and struck

Alice after Arnold intervened and carried Alice up the stairs, and

continued to strike Alice in the bedroom where Alice had retreated.

The evidence further showed Alice suffered numerous physical

injuries and protracted damage to her emotional health as a result

of Mother's conduct. Mother's conduct constituted abuse or

12 A-5784-14T2
neglect, and excessive corporal punishment. See, e.g., M.C. III,

supra, 201 N.J. at 334, 345 (finding abuse or neglect where a

father grabbed, choked, and punched the children, disregarding the

substantial probability injury would result); N.J. Div. of Youth

& Family Servs. v. S.H., 439 N.J. Super. 137, 147-50 (App. Div.)

(finding that a mother's use of a golf club and her teeth, causing

a contusion and bite marks, was excessive corporal punishment),

certif. denied, 222 N.J. 16 (2015); N.J. Div. of Youth & Family

Servs. v. B.H., 391 N.J. Super. 322, 340 (App. Div.) (finding

mother's use of a belt to hit the child in the face, injuring his

eye, was excessive corporal punishment), certif. denied, 192 N.J.

296 (2007).

Mother challenges the court's finding she abused or neglected

Anthony, Ralph and Rebecca. Mother contends the court did nothing

more than make categorical conclusions the children were abused

and neglected, and there was no evidence showing they suffered any

emotional harm as a result of any of her alleged conduct.

The court found Anthony, Ralph and Rebecca were abused or

neglected by their exposure to Mother's June 29, 2012 physical

attack on Alice, and to the prior acts of maternal violence. The

court determined Mother "did nothing to protect her children from

that exposure," and she therefore neglected the children under

N.J.S.A. 9:6-8.21(c)(4). The court also found the children

13 A-5784-14T2
suffered emotional harm from the exposure to Mother's violence

toward Alice and to the prior acts of violence.

"Our Legislature has declared that 'children, even when they

are not themselves physically assaulted, suffer deep and lasting

emotional effects from exposure to domestic violence.'" N.T.,

supra, 445 N.J. Super. at 491 (quoting N.J.S.A. 2C:25-18). In

Division of Youth & Family Services v. Robert M., 347 N.J.

Super. 44, 67 (App. Div.), certif. denied, 174 N.J. 39 (2002), it

was alleged that one of the parents' adopted children "died as a

result of physical abuse tantamount to torture," and we found the

trial court should have considered whether there was abuse of the

other children. We explained that "[a]lthough the absence of past

physical abuse to the natural children may infer their future

safety, the alleged treatment of [the adopted child] could be a

dangerous harbinger to one or more of the others." Id. at 68. We

found that "[a] child's exposure to a parent's physical abuse of

a child may well be abusive to others by instilling either fear

or a tolerance to violence in intra-family relationships." Ibid.

However, permitting "a child to witness domestic violence

does not equate to abuse or neglect of the child in the absence

of additional proofs." I.H.C., supra, 415 N.J. Super. at 584.

Where a child witnesses domestic violence "abuse or neglect can

be shown where the Division presents 'credible evidence that

14 A-5784-14T2
professionals in the field accept the general proposition that

domestic violence in the home harms children and that harm had

occurred in this family.'" N.T., supra, 445 N.J. Super. at 491

(quoting I.H.C., supra, 415 N.J. Super. at 584-85).

In I.H.C., supra, we held that abuse or neglect may be shown

where a child witnesses domestic violence and there is evidence

the child suffers emotional harm. 415 N.J. Super. at 584-85. We

found sufficient evidence establishing abuse or neglect where DCPP

presented expert testimony showing that as a result of the

children's exposure to domestic violence, the children

"manifest[ed] the effects of the coercive and violent relationship

of their parents." Id. at 584. Cf. N.T., supra, 445 N.J. Super.

at 503-04 (reversing court's determination that children exposed

to domestic violence were abused or neglected because expert's

report showing children suffered emotional harm was inadmissible);

New Jersey Div. of Youth & Family Servs. v. S.S., 372 N.J. Super.

13, 22 (App. Div. 2004) (finding DCPP did not prove abuse or

neglect of children exposed to domestic violence because it failed

to present expert testimony establishing a causal relationship

between the domestic violence and the children's emotional

distress), certif. denied, 182 N.J. 426 (2005).

Here, the evidence showed Anthony, Ralph, and Rebecca were

exposed to acts of domestic violence and suffered emotional harm.

15 A-5784-14T2
Anthony and Ralph were present during Mother's violent attack

against Alice and attempted to intervene. Rebecca also witnessed

a portion of Mother's attack on Alice, and reported previously

seeing Mother punch Arnold. D'Urso's expert testimony established

that each of the children suffered ongoing emotional harm as a

result of their exposure to the Mother's violence.2 We are

therefore satisfied there was substantial credible evidence

supporting the court's finding that Mother abused or neglected

Anthony, Ralph and Rebecca by permitting their exposure to acts

of violence within their home. I.H.C., supra, 415 N.J. Super. at

584-85.

2
In finding Anthony, Ralph and Rebecca were abused or neglected,
the court also referenced the children's exposure to acts of
domestic violence committed against Mother in Kentucky and
Mother's failure to protect the children from that exposure.
Records from Kentucky's Child Protective Services showed that
Mother had referrals dating back to 2005, during the time she
resided there with Alice, Anthony, Ralph, and Rebecca. The records
revealed that it was reported Mother was the victim of multiple
incidents of domestic violence that the children witnessed.
Although Mother does not challenge on appeal the court's findings
as to the children's exposure to domestic violence in Kentucky or
her responsibility for their exposure to it, we find it unnecessary
to address the Kentucky reports or the court's reference to them
because the psychosocial evaluations of Anthony, Ralph and
Rebecca, and D'Urso's testimony, established the children suffered
emotional harm based on their exposure to Mother's violent actions
alone.

16 A-5784-14T2
 III.

Mother next claims the evidence was insufficient to support

the court's finding she abused or neglected Alice and Anthony by

engaging in educational neglect. We agree.

We have recognized that a parent or guardian's failure to

provide an education is a form of abuse and neglect under Title

Nine. See, e.g., N.J. Div. of Youth & Family Servs. v. M.W., 398

N.J. Super. 266, 285-86 (App. Div.) (noting a parent harmed her

children through educational neglect, among other forms of abuse,

by leaving them with her cousin who locked them in a basement and

deprived them of beds, food, a toilet, and the physical ability

to attend school), certif. denied, 196 N.J. 347 (2008). N.J.S.A.

9:6-8.21(c)(4)(a) expressly provides that a child is abused or

neglected when their "physical, mental, or emotional condition has

been impaired or is in imminent danger of becoming impaired as the

result of the failure of his parent or guardian . . . to exercise

a minimum degree of care . . . in supplying the child with adequate

. . . education . . . though financially able to do so . . . ."

To establish a parent or guardian failed to exercise a minimum

degree of care, DCPP must prove more than mere negligence. The

minimum degree of care standard in N.J.S.A. 9:6-8.21(c)(4)

denotes a lesser burden on the actor than a
duty of ordinary care. If a lesser measure of
care is required of an actor, then something

17 A-5784-14T2
 more than ordinary negligence is required to
hold the actor liable. The most logical higher
measure of neglect is found in conduct that
is grossly negligent because it is willful or
wanton. Therefore, we believe the phrase
"minimum degree of care" refers to conduct
that is grossly or wantonly negligent, but not
necessarily intentional.

[G.S. v. Dep't of Human Servs., 157 N.J. 161,
178 (1999).]

Thus, there is a failure to exercise a minimum degree of care

where a parent or guardian "is aware of the dangers inherent in a

situation and fails adequately to supervise the child or recklessly

creates a risk of serious injury to that child." Id. at 181; N.J.

Div. of Prot. & Permanency v. E.D.-O., 223 N.J. 166, 179 (2015).

The determination of whether there was a failure to exercise a

minimum degree of care requires a fact-sensitive analysis that

accounts for the surrounding circumstances. E.D.-O., supra, 223

N.J. at 180. The inquiry

focus[es] on the harm to the child and whether
that harm could have been prevented had the
guardian performed some act to remedy the
situation or remove the danger. When a
cautionary act by the guardian would prevent
a child from having his or her physical,
mental or emotional condition impaired, that
guardian has failed to exercise a minimum
degree of care as a matter of law.

[G.S., supra, 157 N.J. at 182.]

18 A-5784-14T2
However, to be considered abuse or neglect under N.J.S.A. 9:6-

8.21(c)(4)(a), that failure must rise to the level of gross

negligence. Id. at 178.

To be sure, Alice and Anthony performed badly in school.

Although it might be argued that a child's poor school performance

is within the control of a parent, the record here is devoid of

evidence showing that the poor academic performances of Alice and

Anthony were the result of Mother's gross negligence. There was

no issue with the children's school attendance, and the record

shows Mother was responsive to Russack's communications about the

children. It was DCPP's burden to establish Mother's gross

negligence, but it simply failed to present sufficient evidence

showing any action Mother could have taken to prevent the

children's poor academic performance.

We are not satisfied Mother's initial decision to reject the

recommendation that Anthony be assessed constituted gross

negligence. Russack testified other parents had similarly rejected

such recommendations due to concerns over the classification of

their children, and Mother later agreed to permit the assessment.

We are also not satisfied Mother's failure to enroll Anthony in

summer school constituted gross negligence because she actively

sought out a less expensive alternative to the district's suggested

online program. The evidence showed Mother engaged in an earnest

19 A-5784-14T2
effort to find an affordable program summer school program to

support Anthony's academic performance. She found an online

program and sought district approval. Unfortunately, the district

found the program unacceptable. There was no evidence the other

summer school alternatives discussed during Russack's testimony

were either available following Mother's effort to enroll Anthony

in the less expensive online program, or that she was financially

able to afford them. N.J.S.A. 9:6-8.21(c)(4)(a).

In sum, although academic performances of Alice and Anthony

suggest parental inattention, the evidentiary record does not

support the court's determination that Mother was grossly

negligent in addressing their educational needs. We therefore

reverse that part of the court's fact-finding order declaring that

Alice and Anthony were abused or neglected based on Mother's

alleged failure to supply them with adequate education. N.J.S.A.

9:6-8.21(c)(4)(a).

IV.

We also consider Mother's argument that the court erred by

failing to conduct a dispositional hearing prior to its dismissal

of the Title Nine proceeding as to Ann, and its entry of an order

continuing Arnold's physical custody of Ann and permitting Mother

only supervised visitation with the child. Mother argues that

under N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382

20 A-5784-14T2
(2009), she was entitled to a dispositional hearing because Ann

had been removed from her custody and placed with Arnold at the

outset of the Title Nine matter, and the court continued the terms

of its initial removal order when the Title Nine complaint was

dismissed. DCPP and Ann's law guardian contend Mother was not

entitled to a dispositional hearing under G.M. because Ann had

always been in Arnold's custody, there was never a placement with

a non-custodial parent, and G.M. requires a dispositional hearing

only where there has been a placement with a non-custodial parent.

Although the parties' arguments concerning the requirements

of G.M. focus on whether Ann was placed with a non-custodial parent

at the outset of the Title Nine proceeding, it is unnecessary that

we address the issue. Once the court did not make a finding that

Ann was abused or neglected at the trial ending April 3, 2013, the

court was required to dismiss the Title Nine complaint as to Ann,

and the court lacked jurisdiction to enter any further orders

regarding Ann in the Title Nine proceeding. N.J.S.A. 9:6-8.50(c);

N.J. Div. of Child Prot. & Permanency v. I.S., 214 N.J. 8, 31-32

(2013), cert. denied, __ U.S. __, 134 S.Ct. 529, 187 L.Ed. 2d 380

(2013); N.J. Div. of Youth and Family Servs. v. T.S., 426 N.J.

Super. 54, 64 (App. Div. 2012). We are therefore satisfied the

court's April 26, 2013 order continuing the grant of physical

custody to Arnold and requiring that Mother's parenting time be

21 A-5784-14T2
supervised was entered when the court no longer had Title Nine

jurisdiction over Ann.3

Moreover, we reject Mother's reliance on G.M. because it does

not permit a court to "keep a Title [Nine] action open when the

court determines that it does not find abuse or neglect." I.S.,

supra, 214 N.J. at 30. The court in G.M. retained jurisdiction to

make a disposition in the Title Nine proceeding because it

"inferentially concluded that its assistance was required and also

made a finding of abuse or neglect." 198 N.J. at 401 (emphasis

added); I.S., supra, 214 N.J. at 29. "[T]he central question in a

Title [Nine] dispositional hearing is whether the child may be

safely returned to the custody of the parent from whom the child

was removed." N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J.

Super. 96, 107 (App. Div. 2010). Here, by contrast, the court did

not find abuse or neglect of Ann, and thus had no authority to

issue a Title Nine dispositional order regarding Ann. Accordingly,

3
We recognize that following the dismissal of a Title Nine
complaint, a court may continue to exercise jurisdiction where
appropriate under Title Thirty, N.J.S.A. 30:4C-12. See, e.g.,
T.S., supra, 426 N.J. Super. at 64 ("A dismissal of a Title 9
action . . . does not foreclose further intervention by the
Division pursuant to N.J.S.A. 30:4C-12 to protect a child who,
although not abused or neglected, is in need of services to ensure
[his or her] health and safety."); accord I.S., supra, 214 N.J.
at 32-35; N.D., supra, 417 N.J. Super. at 109. The court's April
26, 2013 order was a Title Nine "Abuse or Neglect Multipurpose
Order" and was not entered under Title Thirty.

22 A-5784-14T2
Mother was not entitled to a dispositional hearing under G.M.

because there was no finding of abuse and neglect of Ann.

Because we conclude the court lacked jurisdiction to enter a

dispositional order under Title Nine regarding Ann, we reverse the

court's April 26, 2013 order to the extent it continued physical

custody of Ann with Arnold and required that Mother's parenting

time be supervised. Our reversal, however, does not resolve the

parties' dispute over custody and parenting time of Ann or require

a change in custody or the conditions of parenting time. As

correctly determined by the court, those issues shall be resolved

in the pending non-dissolution matter.

The record includes an October 19, 2012 order in the non-

dissolution case denying Mother's request for physical custody and

unsupervised parenting time pending the outcome of the Title Nine

fact-finding hearing. Based on the record presented on appeal, and

because the Title Nine proceeding has been dismissed, the October

19, 2012 non-dissolution order, which is not before us, governs

the custody and parenting time of Ann. We offer no opinion

concerning any custody or parenting time issues between the parties

other to note that they must be resolved in the non-dissolution

proceeding and, until that happens, the October 19 2012, order

23 A-5784-14T2
governs the custody and parenting time issues.4 See, e.g., N.D.,

supra, 417 N.J. Super. at 114-15.

V.

Mother's remaining arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We therefore affirm the court's April 3, 2013 order finding

Mother abused or neglected Alice by excessive corporal punishment

causing her injury and by non-accidental means, and abused or

neglected Alice, Anthony, Ralph and Rebecca by exposing them to

violence. We reverse the court's April 3, 2013 order to the extent

it found Mother abused or neglected Alice and Anthony by

educational neglect. We reverse the court's April 26, 2013 order

to the extent it granted Arnold physical custody of Ann and

required that Mother's parenting time of Ann be supervised.5

4
We are aware the court's April 26, 2013 order directed that
parenting time and custody issues concerning Ann shall be addressed
in the non-dissolution proceeding. The record on appeal does not
include any orders entered by the court in the non-dissolution
matter subsequent to the October 12, 2012 order and we are
otherwise not aware of any orders that may have been entered in
that matter. In the event the court entered any custody or
parenting time orders in the non-dissolution case subsequent to
the October 19, 2012 order, those orders govern the custody and
parenting time issues addressed.
5
The portion of the court's April 26, 2013 order granting joint
legal custody of Ann to Mother and Arnold was not appealed. Because
we conclude the court lacked jurisdiction to enter that custody
order, we also reverse the order's grant of legal custody as well.

24 A-5784-14T2
 Affirmed in part. Reversed in part. We do not retain

jurisdiction.

As noted, however, the terms of the parties' physical and legal
custody of Ann, and Mother's parenting time of the child, were
addressed in the court's October 19, 2012 order in the non-
dissolution matter which, if not already modified, remains in
effect until modified by the court in that proceeding.

25 A-5784-14T2