NOT FOR PUBLICATION WITHOUT THE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-2552-15T2
C.R.,
Plaintiff-Respondent,
v.
D.A.,
Defendant-Appellant,
and
R.C.,
Defendant.
____________________________
Submitted March 28, 2017 – Decided May 4, 2017
Before Judges Gilson and Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FD-21-0242-16.
Scholl, Whittlesey & Gruenberg, L.L.C.,
attorneys for appellant (Franklin G.
Whittlesey, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant, who is the mother, appeals from a January 15, 2016
order that provided she was to share joint legal custody of her
teenage daughter with the father and defendant's adult daughter.
The order also restricted the mother's parenting time and stated
that the court would review the mother's parenting time in three
months. Because the order is interlocutory and defendant failed
to seek leave to appeal as required by Rule 2:2-4, we dismiss this
appeal without prejudice to defendant's right to file a motion to
modify the January 15, 2016 order.
I.
This appeal involves a dispute over the custody of a
seventeen-year-old young woman, E.C. (Ellen)1, who was born in
December 1999. Ellen is the biological daughter of defendant D.A.
(Debbie) and defendant R.C. (Ralph). Plaintiff C.R. (Cathy) is
an adult daughter of Debbie and Ellen's half-sister.
Debbie and Ralph are separated and before August 2015, Ellen
lived with Debbie. While not established by expert testimony,
Ellen apparently has emotional and mental health issues. She has
been diagnosed as bipolar and suffers from depression. She also
1 To protect privacy interests, the parties will be identified by
their initials and for ease of reading, we will use fictitious
names.
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has experienced suicidal ideology and she has been under a
psychiatrist's care since 2012.
The relationship between Ellen and Debbie has been
contentious. Ellen has informed her mother that she is bisexual.
Debbie, however, has not accepted Ellen's sexual orientation and
Debbie and Ellen have argued over that issue.
In August 2015, Ellen, with the apparent consent of Debbie,
went to live with her half-sister Cathy. Cathy lives with her
husband and their daughter.2 Approximately one month later, on
September 22, 2015, Cathy filed a complaint in the Family Part
seeking custody of Ellen and child support from Debbie and Ralph.
The Family Part conducted a one-day evidentiary hearing on
January 5, 2016. At that hearing, an attorney represented Cathy,
while Debbie and Ralph represented themselves. All parties
testified. As part of the proceedings, the Family Part judge also
interviewed Ellen.
Ralph agreed to share legal custody of Ellen with Debbie and
Cathy. Ralph also agreed that Cathy could have physical custody
of Ellen. Debbie, however, contested the change of custody.
Based on the testimony and evidence presented at the hearing,
the Family Part judge made findings of fact and conclusions of
2 Cathy's husband was initially a plaintiff in this matter, but he
withdrew as a party.
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law, which were set forth on the record on January 12, 2016.
Thereafter, on January 15, 2016, the Family Part issued two orders,
one addressing Debbie and the other addressing Ralph.
In terms of fact-findings, the judge found that Ellen had
been in therapy since 2012 and she had been diagnosed with bipolar
disorder and depression. The judge also found that Ellen and
Debbie had a contentious relationship, which upset Ellen and
sometimes caused Ellen to have suicidal ideology. In that regard,
the court found that Debbie had not accepted Ellen's sexual
orientation, was not supportive of Ellen, and often engaged in
communications that upset Ellen. In contrast, the judge found
that Ellen had a good relationship with Cathy and that Cathy
provided constructive support and discipline for Ellen.
In addressing the custody dispute, the court looked to the
standard established by our Supreme Court in Watkins v. Nelson,
163 N.J. 235 (2000). In Watkins, the Supreme Court established a
two-step analysis to address a custody dispute involving a third
party. Id. at 253-54. The Family Part judge here, however,
reasoned that there was a need to modify the Watkins standard
because Cathy was a family member, but not a psychological parent.
Accordingly, the judge used a standard that she described as the
"best interest of the child by clear and convincing evidence."
Applying that standard, the court then found that Cathy had shown
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by clear and convincing evidence that it was in Ellen's best
interest for her to live with Cathy.
Significantly, however, the orders entered by the court did
not directly address the physical custody of Ellen. Instead, the
orders directed that: (1) Debbie, Ralph, and Cathy are to share
joint legal custody of Ellen; (2) Cathy will have superior "say"
concerning Ellen's healthcare, including Ellen's mental health;
(3) if Debbie wants parenting time with Ellen, she had to attend
individual counseling followed by joint counseling with Ellen; and
(4) Debbie and Ralph were to pay Cathy child support for Ellen.
The orders also stated that the court would hold a further
hearing on April 12, 2016, to establish a "reunification parenting
plan" for Debbie. Before that further hearing took place, on
February 26, 2016, Debbie filed a notice of appeal from the January
15, 2016 order that addressed her.
On this appeal, Debbie argues that the Family Part infringed
her constitutionally protected parental rights by not properly
evaluating whether Cathy had the right to custody of the minor
child. Cathy did not file a brief on this appeal.
II.
Only final orders or judgments can be appealed as of right.
R. 2:2-3(a). In general, to be a final judgment, an order must
dispose of all claims against all parties. "To have the finality
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required to create appellate jurisdiction, an order must not only
completely dispose of all pleaded claims as to all parties, but
all its dispositions must also be final." Grow Co. v. Chokshi,
403 N.J. Super. 443, 460 (App. Div. 2008) (citing Lawler v. Isaac,
249 N.J. Super. 11, 17 (App. Div. 1991)). If the order is not
final, it is interlocutory and appellate review is available only
by leave granted under Rule 2:4-4 and Rule 2:5-6.
Furthermore, interlocutory review is "limited to those
exceptional cases warranting appellate intervention [and] the sole
discretion to permit an interlocutory appeal has been lodged with
the appellate courts." Id. at 458. "Interlocutory review is
'highly discretionary' and is to be 'exercised only sparingly,'
because of the strong policy 'that favors an uninterrupted
proceeding at the trial level with a single and complete
review[.]'" Id. at 461 (citations omitted).
Here, the order defendant seeks to appeal is interlocutory.
The order expressly contemplates additional proceedings before the
Family Part. Critically, the January 15, 2016 order does not
expressly address the physical custody of Ellen. Appeals are
taken from orders, not the reasons given for the order. Do-Wop
Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).
Moreover, Debbie seeks to contend that the Family Part
terminated her parental rights. She also argues that Cathy, as
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the half-sister, did not have standing to seek custody of Ellen.
The January 15, 2016 order, however, did not state that Debbie's
parental rights were terminated. Indeed, when the court set forth
its reasons on the record, the court never stated that Debbie's
parental rights were terminated. Instead, the court found that
it was in Ellen's best interest to live with Cathy. The court
then entered an order that gave Cathy joint legal custody of Ellen
with Debbie and Ralph.
We note that the question of the interlocutory nature of the
order was raised with the parties by the Appellate Division Clerk's
Office after this appeal was filed. Counsel for Debbie responded
with a letter contending that the order was a final decision
subject to appeal. At that time, Cathy was represented by an
attorney, and that attorney responded by contending that the order
was interlocutory. We entered no order in response to those
letters. Instead, a briefing schedule was issued and Debbie filed
a brief and Cathy did not.
Because the January 15, 2016 order did not resolve all issues
as to all parties, the order is interlocutory. Debbie did not
seek or obtain leave to appeal and, thus, this appeal is dismissed
as interlocutory. The issue Debbie seeks to address - - the
alleged termination of her parental rights - - was not expressly
addressed in the January 15, 2016 order. Thus, this dismissal is
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without prejudice to Debbie's right to file a motion in the Family
Part to address custody.
Appeal dismissed.
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