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NOT FOR PUBLICATION WITHOUT THE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-1007-16T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
C.C.,
Defendant-Appellant,
and
S.J.,
Defendant-Respondent.
_______________________________________
IN THE MATTER OF G.M.C.-J.,
a Minor.
_______________________________________
Submitted September 25, 2017 – Decided June 11, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union
County, Docket No. FN-20-0027-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Joseph F. Kunicki, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Division of Child
Protection and Permanency (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Julie B. Colonna, Deputy Attorney
General, on the brief).
Williams Law Group, LLC, attorneys for
respondent S.J. (Allison Williams, of
counsel and on the brief; Elizabeth A.
Joyce, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Danielle Ruiz,
Designated Counsel, on the brief).
PER CURIAM
Defendant C.C. (the mother) appeals from an October 20,
2016 order dismissing the within child protective services
matter, filed and litigated pursuant to N.J.S.A. 30:4C-12. The
Family Part judge terminated the matter when the Division of
Child Protection and Permanency (the Division) ceased providing
services to the mother, and the judge determined defendant S.J.
(the father) was able to provide an adequate home for
defendants' daughter, G.M.C.-J. (Gwen).1 We reverse and vacate
the dismissal order, and remand for further proceedings.
1
We use initials and pseudonyms to protect the identity of
those involved.
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I
At the time of Gwen's birth in July 2015, the mother
advised the hospital staff she was addicted to and used heroin
during the pregnancy. There was no evidence the baby was harmed
as a result, but the hospital staff notified the Division of her
use of heroin during the pregnancy.
During its investigation that immediately followed, the
Division learned the mother lived with the baby's maternal
grandmother (the grandmother) and was prepared to care for Gwen
with the grandmother's assistance. The mother was also
interested in substance abuse treatment and, while still in the
hospital, successfully completed an inpatient detoxification
program and entered into a methadone treatment program.
The mother and the father signed a Division safety
protection plan, the terms of which included that the baby was
permitted to live with the mother in the grandmother's home, as
long as the mother's contact with the baby was supervised by the
grandmother or the father. The plan also provided the mother
was to engage in substance abuse treatment.
To ensure the mother received ongoing services, the
Division filed an order to show cause and a verified complaint
against both defendants seeking care and supervision of the baby
pursuant to N.J.S.A. 30:4C-11 and N.J.S.A. 30:4C-12. At the
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initial hearing on the order to show cause, the parties,
represented by counsel, appeared and consented to the Division
having care and supervision of their child.
At the conclusion of the hearing, defendants entered into a
consent order, dated July 31, 2015. The principal terms of the
consent order were that: (1) the parties share joint legal
custody, with physical custody placed with the mother; (2) the
mother have only supervised contact with Gwen; (3) the
grandmother and the father act as the designated supervisors;
(4) the father have liberal parenting time; and (5) the mother
engage in substance abuse treatment and individual therapy.
The return of the order to show cause was on September 24,
2015. It was undisputed the parties were abiding by the July
31, 2015 order, the terms of which were placed into an order
dated September 24, 2015. The new order included a provision
the father was to care for Gwen when the grandmother worked (she
worked five days a week), and the Division was to arrange for
the mother to have psychological and psychiatric evaluations.
On January 7, 2016, the parties appeared for a summary
hearing. The Division reported the mother was complying with
services and her drug screens had been negative since she
commenced treatment the previous July. The judge entered an
order continuing the terms of the previous order. In addition,
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because the psychological evaluation recommended such services,
the mother was ordered to attend parenting classes and a MICA2
program.
As a result of the father filing an application for an
emergent hearing, on April 4, 2016, counsel and all parties,
with the exception of the mother appeared in court. The
Division reported the father had learned the mother had relapsed
and entered into an inpatient facility, believed to be in
Pennsylvania. The father sought an emergent hearing for the
purpose of obtaining physical custody of the baby.
It was not known by those assembled in court where the
mother was located. The Division had endeavored to find her
before the hearing but were unsuccessful. The mother’s attorney
stated she had been out of the office the previous week (April
4, 2016 was a Monday) and had only learned of the emergent
hearing earlier that day. She informed the court the mother was
unaware of the hearing. Despite such fact, the court proceeded
with the hearing in her absence.
Because the mother had relapsed, was unavailable to care
for Gwen, and the father was a suitable caretaker of the baby,
the judge transferred physical custody of the child to the
2
MICA stands for "mentally ill chemically addicted."
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father; defendants continued to share joint legal custody of the
baby. The judge also ordered the mother's parenting time be
supervised by the Division at its offices and that she continue
with treatment previously ordered.
On July 7, 2016, all counsel and the parties, including the
mother, appeared for a compliance review hearing. The Division
reported the mother was doing well. She had been in the
inpatient facility from March 28, 2016 to April 10, 2016 and,
since leaving such facility, had been engaging in an intensive
outpatient (IOP) MICA treatment in Pennsylvania, a six-day per
week program she had discovered on her own. The mother
testified she had three more months of treatment in the IOP
program. In a "summary finding order" entered that day, the
judge found the Division's continued care and supervision of the
matter was warranted because of the mother’s progress and
participation in treatment.
At the conclusion of a summary hearing held on October 20,
2016, the judge terminated the litigation. At that time, it was
reported that the mother had been successfully discharged from
the IOP MICA treatment program in Pennsylvania, and was doing
well in a "step-down" IOP in New Jersey, which she had selected
without the Division's assistance. She anticipated completing
the step-down program in mid-November.
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The Division argued the litigation should be dismissed
because it was no longer providing any services for the mother,
who was successfully securing any necessary treatment on her
own. Further, defendants were privately arranging for the
mother's parenting time between themselves, removing the
mother’s need to have the Division supervise her visitation. In
addition, there was evidence the father was ably caring for the
child.
The mother wanted the matter to remain open so she could
make an application for the return of Gwen to her physical
custody when her treatment ceased. However, the judge found it
appropriate to terminate the litigation for the reasons
advocated by the Division, and noted the mother could file a
non-dissolution (FD) action in order to seek a change in the
custodial and parenting time arrangement when she was ready.
II
On appeal, the mother contends the judge erred when he
terminated the matter without ordering a hearing on custody and
parenting time, thus providing her "an opportunity . . . to be
returned to status quo ante[.]" The mother also contends the
judge failed to conduct a "proper evidentiary hearing" on
October 20, 2016 before terminating the litigation.
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We decline to address the latter contention because it was
not raised before the Family Part judge, a fact the mother
readily concedes. We do not consider issues that were not
properly presented to a trial judge, "unless the questions so
raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest." Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds
Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959)). As neither consideration is present, we do not address
this particular question.
N.J.S.A. 30:4C-12 authorizes the Division to provide
services to children in need. N.J. Div. of Youth & Family
Servs. v. I.S., 214 N.J. 8, 14 (2013). Here, the primary relief
the Division sought and initially provided was referring the
mother to services to help her overcome her substance abuse, so
that she would parent her child. The Division also effectuated
a custodial and parenting time arrangement to enable the mother
to parent Gwen, albeit supervised.
As stated, when the mother relapsed and entered into a
rehabilitation hospital, the court placed the baby in the
father’s physical custody at the conclusion of the emergent
hearing. In our view, it was error to have transferred physical
custody of the baby before the mother had notice of the hearing
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and, in particular, the father’s request for a transfer of
custody. The mother’s right to due process was not protected in
this case.
A parent has a constitutional right to due process when a
change in custody of his or her child has been requested,
including the right to adequate notice and a fair opportunity to
be heard with respect to such issue. See Div. of Youth & Fam.
Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2004)
(citing Matter of C.A., 146 N.J. 71, 93-94 (1996)). A
proceeding to terminate a parent's right to the physical custody
of a child is of sufficient importance such that it should not
proceed unless the parent has been noticed of the proceeding or
the parent has waived the right to be present. See Test v.
Test, 131 N.J. Eq. 197, 200-01 (E. & A. 1942) (requiring
adequate notice when custody of children is to be determined).
The mother’s attorney had been away the week preceding the
hearing and learned of it only hours before it commenced. She
advised the court the mother was not yet aware of the
proceeding, yet the judge did not take any steps to facilitate
the mother’s presence.
The hearing could have been delayed a few days or even
longer to provide the attorney an opportunity to locate and
communicate with the mother about the father’s request for a
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change in custody. In the interim, Gwen could have been
temporarily placed in the father’s physical custody. If the
mother was noticed of the hearing but unable to leave the
inpatient facility, she may have been able to appear at the
hearing by telephone. At the least, the mother could have
consulted with and enabled counsel to adequately represent her
interests at the hearing.
The mother is not seeking to vacate the order that
transferred physical custody or continued such custody of Gwen
in the father. She is merely seeking a hearing so she can show
why she is entitled to regain custody. In light of the fact
Gwen was removed from the mother’s physical custody without due
process, it is fitting she have that opportunity to correct the
wrong that occurred here. Therefore, the dismissal order is
reversed and matter remanded for an evidentiary hearing on the
issue whether the mother is entitled to physical custody of
Gwen.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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