Opinion
DOCKET NO. A-3638-12T1
10-14-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. F.D., Defendant-Appellant, and H.R., Defendant-Respondent. IN THE MATTER OF A.R., M.R., H.R. and S.D., Minors.
T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant F.D. (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, on the brief). Stephanie Anatale, Deputy Attorney General, argued the cause for respondent D.C.P.P. (John J. Hoffman, Acting Attorney General, attorney; Jessica Downey, Deputy Attorney General, on the brief). Durrell Wachtler Ciccia, Designated Counsel, argued the cause for respondent H.R. (Joseph E. Krakora, Public Defender, attorney; Mr. Ciccia, on the brief). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors A.R., M.R. and H.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Tassini. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-135-11. T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant F.D. (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, on the brief). Stephanie Anatale, Deputy Attorney General, argued the cause for respondent D.C.P.P. (John J. Hoffman, Acting Attorney General, attorney; Jessica Downey, Deputy Attorney General, on the brief). Durrell Wachtler Ciccia, Designated Counsel, argued the cause for respondent H.R. (Joseph E. Krakora, Public Defender, attorney; Mr. Ciccia, on the brief). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors A.R., M.R. and H.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief). The opinion of this court was delivered by MESSANO, P.J.A.D.
Following a fact-finding hearing, N.J.S.A. 9:6-8.44, the Family Part entered an order finding that defendant, F.D. (Fran), abused or neglected her medically-fragile newborn daughter, S.D. (Sandra). In subsequent proceedings under Title Thirty, the Family Part entered an order on April 1, 2013 that granted a motion made by plaintiff, the Division of Child Protection & Permanency (the Division), to reunify three of Fran's other children, A.R. (Alice), M.R. (Mary) and H.R. (Harold), with their father, H.R. (Henry), who resided in Mexico, and terminated the litigation as to those children.
We use pseudonyms to maintain confidentiality of the parties involved.
Fran appeals from both orders. Prior to argument before us, the Division moved to supplement the record. Fran and the other parties to this appeals did not object. We grant the Division's motion and supplement the record to include copies of an immigration detainer that was lodged against Fran by the Department of Homeland Security, Immigration and Customs Enforcement, on February 17, 2015, together with a warrant for her arrest for removal proceedings. As of February 18, 2015, Fran was in custody at the Hudson County Correctional Center in Kearny. We have no further information regarding her current status, although defense counsel indicated at oral argument before us that Fran was represented by an immigration attorney and intended to contest the removal proceedings.
On appeal, Fran argues that her conduct toward Sandra "caused no harm, would not be repeated and did not pose the extant imminent danger that Title [Nine] proscribes." Fran further argues that her due process rights were violated in subsequent proceedings because the custody determination was "made without testimony, cross-examination, and documents in evidence[,] and without referring to factors in N.J.S.A. 9:2-4."
The Division counters by arguing that Fran's conduct posed a substantial risk of harm to Sandra pursuant to N.J.S.A. 9:6-8.21. It further contends that any appeal from the Title Thirty order is moot, since Fran is incarcerated and could not be awarded custody of her three children. The Division alternatively argues that Fran's due process rights were not violated during the proceedings that resulted in the Title Thirty order.
Henry also urges us to affirm both orders, contending that the Division produced ample proof that Fran abused or neglected "all of the children in her care," and that any procedural errors during the Title Thirty proceedings were "harmless." He argues that the court properly awarded him physical custody of the three children.
On behalf of Sandra, the Law Guardian acknowledges "there was ample evidence on which to base a finding of abuse and neglect," however, she "takes no position" at this time regarding Fran's appeal from the fact-finding order. As to the other three children, the Law Guardian urges us to affirm. The Law Guardian asserts that, although defendant had the right to a "proper dispositional hearing" under Title Nine, see N.J.S.A. 9:6-8.50(d), and New Jersey Division of Youth and Family Services v. G.M., 198 N.J. 382 (2009), any procedural errors were harmless. Given Fran's inability to care for her children at the present time, the Title Thirty order should be affirmed.
We have considered these arguments in light of the voluminous record and applicable legal standards. We affirm.
I.
A.
Fran is the mother of eight children, three of whom were born in the Dominican Republic, Fran's native land. Fran attended school only to the third grade and is not proficient in English. When she came to the United States in 2002, two children remained behind with relatives and the third, a son, J.O. (Joey), came with her. Thereafter, Henry and Fran lived together for approximately six years, during which time Alice was born, in December 2003, Mary was born prematurely, in January 2005, and Harold was born prematurely, in December 2007. Henry continued to see the children on a regular basis after he and Fran separated.
Fran suffers from significant mental health issues, and during the fact-finding hearing, her treating psychiatrist, Dr. Humberto Marin testified. Dr. Marin first saw Fran in 2004 and diagnosed her with major depressive disorder, severe, without psychotic features, as well as anxiety disorder. Fran had a traumatic personal history that included sexual abuse as a child by a family member, and prior suicide attempts. Dr. Marin prescribed various medications and psychotherapy, which Fran periodically attended. Dr. Marin testified that although compliant with her medications and functioning in her daily life, it was unrealistic to expect Fran's mental health issues would fully resolve.
There were several referrals to the Division prior to this litigation, but most were unsubstantiated. In 2006, an allegation of neglect was substantiated when Fran failed to meet Joey at a bus stop and the Division was unable to locate her. Title Nine proceedings were initiated, resulting in the removal of Joey, Alice and Mary for several months. The children were eventually returned to Fran's custody and the proceedings were terminated.
Although another referral in September 2009 was unsubstantiated, the Division was providing services to Fran when she gave birth to Sandra in December 2009. Sandra's estimated gestational age was twenty-four weeks; she weighed one pound, sixteen ounces. Within weeks, it was discovered that Sandra suffered from necrotizing enterocolitis, a condition that required a bowel resection. Sandra also faced other significant medical hurdles, including the need for a small bowel transplant.
Sandra's father is D.B. (Dan) who has not participated in this appeal. Dan is also the father of defendant's eighth child born in June 2012.
Testimony at the fact-finding hearing from a number of witnesses responsible for, and familiar with, Sandra's care firmly established that Fran was initially unable to adequately attend to the child's significant medical needs. Fran accidently dislodged the child's ostomy bag and loosened her Broviac catheter, a device critical to Sandra's existence. A hospital in Washington, D.C. evaluated Sandra for bowel replacement surgery but declined to proceed, concluding that Fran's lack of suitable housing and the risk of infection posed by the number of people in the home would compromise Sandra's post-operation health.
In June 2010, Sandra was admitted to Children's Specialized Hospital (CSH), an acute pediatric rehabilitation facility, so she could gain the weight necessary for the transplant and her parents could obtain the training necessary to care for Sandra at home. Fran failed to participate in the training as required, attending for short periods of time instead of the eight hours per day required by the hospital.
Mount Sinai Hospital in New York agreed to evaluate Sandra for a transplant. However, because Fran was on probation from a 2008 criminal conviction, she could not leave New Jersey, and Dan could not take off time from work. Maryann Aiello, a patient care coordinator at CSH, testified that she frequently called both parents and had difficulty contacting them about half the time.
On September 10, 2010, staff at CSH called Victoria Torrado, the Division's caseworker, to advise that Fran had pierced Sandra's ears a second time, despite being told not to do so after the first piercing. This posed a serious risk of infection, as well as excessive bleeding because Sandra was prescribed blood thinners. At the fact-finding hearing, Vincent Yacano, a pediatric nurse practitioner at CHS, testified that Fran also gave Sandra honey on a swab, an action that was extremely hazardous given the child's compromised immune system. Torrado called in a referral as a result of the ear piercing and honey incidents.
Giselle Tejada, an investigator from the Division, spoke to Fran, who did not deny piercing Sandra's ears but claimed she was only told not to let the holes get infected. Fran denied giving Sandra honey. However, Tejada interviewed Dan, who told the investigator that hospital staff specifically told Fran not to pierce Sandra's ears again. Dan also witnessed Fran give Sandra honey, but he claimed to be unaware that it posed any medical problem.
The Division decided to seek custody of Sandra to facilitate the needed surgery. On September 13, 2010, Torrado went to Fran's residence to serve her with the complaint. We need not recount all the testimony regarding the incident; it suffices to say that Torrado was convinced that Fran had left the four other children home alone. The Division effectuated an emergency removal of all the children, leading Fran to threaten suicide in front of Tejada and the children.
On September 23, the judge entered an order placing the four children with Henry, and giving the Division custody, care, and supervision of all five children. At the time, Henry and the children were residing with his sister. The parties were back in court on November 3, after a new referral was made based upon Fran's report that Henry had raped her. The children were temporarily removed from his custody, until police investigation and Fran's recantation resulted in no criminal charges being filed. The four children were returned to Henry.
In its brief, the Division states that defendant was indicted in May 2011 for making this false report, pled guilty and was placed on probation for five years in July 2012. The Division cites no evidence in the record to support this claim.
The fact-finding hearing was conducted over ten days in February and March 2011. In addition to the evidence we referenced above, psychologist John LoConte, who evaluated Fran in July 2010, at the request of the Division, testified. LoConte determined that Fran suffered from clinical depression, general anxiety disorder, depressive personality disorder, and dependent personality disorder. Fran displayed narcissistic and self-defeating personality traits and borderline deficient intelligence. LoConte opined that with or without other children present in the household, it would be "extremely difficult if not impossible" for Fran to care for Sandra.
Yacano testified, however, that Fran eventually learned to successfully change Sandra's dressing and no further issues arose regarding the medical devices necessary for her care. He no longer had concerns about Fran's ability to follow directions, believed she was an "advocate" for her daughter and "a very loving mom." Although the fact-finding hearing primarily focused on Sandra, the Division produced testimony concerning the other children demonstrating that Fran had failed to attend or delayed attending to Joey's and Mary's on-going medical needs.
Although Fran testified at the fact-finding hearing, her attorney withdrew her as a witness before cross-examination.
At the conclusion of the fact-finding hearing, the judge found that Fran had a history of serious mental health issues. Citing the problems regarding Sandra's medical devices, the piercing of her ears and the attempt to feed her honey, the judge concluded that Fran's "poor judgment, impulsive behavior and mental health issues" made her unable to safely parent Sandra and "put [Sandra] at significant risk of harm according to Title [Nine]." The judge entered the March 3, 2011 order under review.
B.
Fran cites testimony demonstrating that by the time of the fact-finding hearing, she had learned how to conduct herself around Sandra and sensitized herself to the child's extraordinary medical needs. She contends that the judge misconstrued N.J.S.A. 9:6-8.21(c)(4)(b), because Sandra suffered no actual harm as a result of her conduct, and at the time of the fact-finding hearing, she posed no imminent risk of danger or harm to her daughter. We are unpersuaded.
It is well recognized that appellate courts "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). "[A]ppellate courts 'defer to the factual findings of the trial 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.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). "[T]he legislative history of Title [Nine], precedent and public policy support the conclusion that a Title [Nine] inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent." M.C. III, supra, 201 N.J. at 344 (second alteration in original) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)). "Title [Nine]'s primary concern is the protection of children, not the culpability of parental conduct." G.S., supra, 157 N.J. at 177.
N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected child as:
[A] child whose 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, as herein defined, to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly seriousThe Court has said that "[i]f there is no evidence of actual harm . . . the statute requires a showing of 'imminent danger' or a 'substantial risk' of harm" before a parent can be found to have abused or neglected a child. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 8 (2013).
nature requiring the aid of the court . . . .
Defendant largely relies upon our holding in New Jersey Division of Child Protection and Permanency v. M.C., 4 35 N.J. Super. 405 (App. Div.), certif. granted, 220 N.J. 41 (2014). In M.C., a father was found to have abused and neglected his children. Id. at 409-15. However, the children suffered no actual harm, and by the time of the fact-finding hearing, the family had received regular counseling, was successfully discharged from further therapy and the father was maintaining his sobriety. Id. at 413-14.
In reversing the trial judge's finding of abuse and neglect, the panel explained:
Where a finding of abuse or neglect rests only on imminent danger of impairment of the child's physical, mental or emotional condition, the question is whether the child "is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). (emphasis added). This statutory language plainly requires an evaluation of the present danger. Thus, prior parental conduct posing a risk of harm in the past that did not materialize is pertinent toThe statute permits a focus on past conduct alone only when the child's condition "has been impaired." Id. at 420.
imminent danger only to the extent that it is probative of current danger.
[Id. at 418.]
Although the Court has yet to decide M.C., we believe its fate is pre-ordained by the recent opinion of the Court in another case, Department of Children & Families v. E.D.-O., ___ N.J. ___ (Aug. 20, 2015). There, the Court considered an administrative finding of abuse and neglect against a parent who left her sleeping nineteen-month old child unattended in a running, locked car for approximately ten minutes. Id. slip op. at 10. The mother advanced the same argument that defendant has advanced before us, i.e., "that in a case in which no actual harm befell the child, the Division must evaluate whether her conduct caused an imminent risk of harm to her child at the time of fact-finding, rather than at the time of the event." Id. at 11. In E.D.-O., the Court said:
We reject the interpretation of the definition of abuse and neglect, N.J.S.A. 9:6-8.21(c)(4)(b), advanced by the mother that the statute requires a finding that the parent's conduct presents an imminent risk of harm to the child at the time of fact-finding rather than at the time of the event that triggered the Division's intervention. Such an interpretation is not supported by the text of the statute, the legislative history, the Court's long-standing
interpretation and application of the statute, or common sense.
[Id. at 12.]
In short, the only question is whether the evidence adduced at the fact-finding hearing supported the judge's conclusion that Fran's conduct and failure to appreciate the fragility of Sandra's medical condition posed an "imminent danger and a substantial risk of harm." A.L., supra, 213 N.J. at 23. We conclude there was sufficient, credible evidence to support the judge's conclusions, and therefore we affirm the fact-finding order under review.
II.
A.
Additionally, at the fact-finding hearing the judge found, "not under Title [Nine] but under Title [Thirty]," that the other four children "were subject to a risk of harm." She cited Fran's "mental health issues and stress as a result of [Sandra's] medical issues, financial issues, domestic violence, insurance coverage, immigration, jail, mental health and medication, sleep disorder, lack of family support, educational neglect, housing, [and] responsibility for [five] children in her care under the age of [ten that] impacted her ability to safely care for her children." However, the judge believed Fran was "capable of parenting if she complie[d] with services."
Events transpired quickly thereafter. Sandra was to be released from CSH on June 22, 2011. On June 21, the judge ordered that Sandra be released to Fran's care with 24-hour in-home nursing support, and with the caveat that the other children not be returned to Fran for eight to twelve months, the amount of time necessary for Sandra's recovery from transplant surgery. Meanwhile, the Division was made aware of Henry's arrest and deportation to Mexico.
On September 14, 2011, the Division filed an amended order to show cause and complaint for custody that resulted in an order maintaining the four children in Henry's sister's custody. Sandra was eventually returned to Fran's custody, but problems continued. Fran faced criminal charges for the false rape allegations she made against Henry, and her housing situation was critical. In January 2012, it was revealed that Fran was pregnant.
In April, Fran was arrested on an immigration detainer when she reported to her probation officer. Sandra, who was then in Fran's care, was removed to Mount Sinai hospital while the Division searched for a medically-safe placement. The judge also ordered an evaluation of Henry's home in Mexico as a possible permanent placement for the other children. In June, Fran gave birth to her eighth child.
At the permanency hearing held on October 1, 2012, the Division proposed that Alice, Mary and Harold be reunited with Henry in Mexico, if an interstate evaluation of his home were acceptable. The Law Guardian supported the plan, and the judge entered an order accepting the Division's permanency plan regarding those three children. For Joey, the Division proposed reunification with Fran, and if she were to be deported, joint legal custody would be shared by Fran and her sister. The judge accepted that plan and entered a conforming order.
A November 2012 psychological evaluation of Fran found her to be suffering from a major depressive disorder. Sandra underwent a small intestine transplant on December 6, 2012, at Mount Sinai Hospital in New York. By March 2013, the Division's interstate evaluation of Henry's home in Mexico had been completed, and the report concluded that Henry had a stable home and the financial ability to care for the children.
Dr. Melissa Rivera Marano, a psychologist, conducted a bonding evaluation with Fran and the four children. Dr. Marano found that although the children "knew" Fran to be their mother, the "quality of attachment [was] weak." Dr. Marano suggested a permanency plan that kept the four siblings together, and she opined that the children would not suffer "enduring harm" under a permanency arrangement without Fran as the primary caretaker.
With the children present, Dr. Marano conducted a video bonding evaluation with Henry in Mexico. In Dr. Marano's opinion, the children showed a positive and secure bond with their father and viewed him as their psychological parent. Dr. Marano recommended that the children be placed in Henry's custody in Mexico. If the children were not placed with their father, Dr. Marano expected they would "experience emotional distress and potential enduring harm."
At a hearing on April 1, 2013, the Division sought implementation of the permanency plan previously approved in October 2012 that would cause the three children to relocate to Mexico and live with Henry. The Law Guardian concurred. Fran, who was present in court and represented by counsel, opposed the motion, arguing that reunification with her was appropriate, and the children should be returned to her physical custody. She noted that the Division planned to reunify her with Joey and Sandra upon her release from the hospital.
No witnesses were produced, but the Division sought to introduce various documentary evidence, including the evaluation of Henry's home in Mexico, and the various psychological and bonding evaluations referenced above. Fran's counsel objected to the bonding reports.
After addressing the various procedural and evidentiary arguments raised, the judge concluded that it was in the "best interest of the children . . . to be . . . reunified with their biological father." The judge considered the home evaluation, the bonding evaluations and Fran's most recent psychological evaluation. The judge also noted the "still pending immigration issues" that Fran faced. The judge granted the Division's motion, terminated the litigation as to Alice, Mary and Harold, awarded physical custody to Henry and continued joint legal custody of the children with Henry and defendant.
On April 2, the judge entered a permanency order approving Joey's reunification with Fran. On May 31, the judge entered an order that granted Fran and Dan custody of Sandra upon her release from the hospital. Finally, on August 19, 2013, the judge entered an order that terminated the litigation.
B.
Fran claims that multiple procedural deficiencies in the April 1, 2013 hearing denied her due process and require reversal and remand for an appropriate hearing. Specifically, she claims that the judge took no testimony, failed to permit cross-examination of experts, relied on documents not admitted into evidence, and made no credibility findings.
Initially, we disagree with the Law Guardian's position that Fran was entitled to a dispositional hearing prior to entry of the April 1 order. Instead, we agree with the position expressed by Fran's counsel in the Family Part that a dispositional hearing — as contemplated by Title Nine, N.J.S.A. 9:6-8.50, and the Court's holding in G.M., supra, 198 N.J. at 387 — was inappropriate, since the proceedings as to Alice, Mary and Harold were proceeding under Title Thirty. As to those children, the Division was proceeding under N.J.S.A. 30:4C-12. That statute "provides the means for the Division to effectuate services to children in need when a parent does not consent to the Division's supervision, care, or custody." N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 33, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013).
At the time of the April 1, 2013 hearing, the judge had the benefit of our published decision in I.S., 422 N.J. Super. 52, clarified by 423 N.J. Super. 124 (App. Div. 2011), but the Supreme Court's decision had not yet issued.
There is no question that the Division followed the appropriate procedures to invoke the statute to address a particularly complex set of circumstances in this case. See id. at 36-37 ("The statute . . . intends to provide the Division with flexibility when investigating certain categories of referrals of suspected parental unfitness or other complex situations where the parents are unable to provide a safe and healthy environment for a child.").
Although the statute limits an order to six months, the Division may apply for an extension and, by way of summary hearing, seek extension of any order. Id. at 37. The judge may extend any order if satisfied that the best interests of the children require its continuation. Id. at 37-38.
As is the case in other non-termination of parental rights Title [Thirty] actions, the court must be satisfied when entering temporary relief under N.J.S.A. 30:4C-12 that the Division has proven by a preponderance of the evidence that it is in the best interests of the child to enter the relief requested. That same burden applies when the Division seeks to continue the provision of services after periodic review hearings conducted to ensure appropriate court oversight of the Division's plans for the child. We add only that the relief ordered under Section [Twelve] can, and will, vary in each unique familial circumstance because best-interests-of-a-child determinations are extremely fact-sensitive and require tailored relief based on those circumstances.
[Id. at 38.]
The facts presented in I.S. are instructive. There, the parents of twin girls were divorced, and the mother had physical custody. I.S., supra, 214 N.J. at 15-16. The Division effected an emergency removal and sought custody and supervision of the children under both Title Nine and Title Thirty. Id. at 17. The judge found insufficient evidence of abuse and neglect by the mother, but also found that she could not protect the girls, who had severe emotional problems, from injuring themselves or others. Id. at 18. Using its power under Title Thirty, the court ordered the girls to be placed in a residential facility. Ibid.
After extension of the placement, the court conducted a permanency hearing, and the Division presented a permanency plan based on the recommendations of professionals at the residential placement. Id. at 19. One child needed to remain in residential placement; the Division recommended that the other be placed with her father, who lived in Pennsylvania, and who was not the custodial parent prior to the proceedings. Id. at 19-20. The court conducted a "custody hearing" at which a psychologist testified that it was unsafe to return the girl to her mother. Id. at 21-22. The mother presented no expert testimony, despite the opportunity to do so. Id. at 22. After conducting a best interests analysis, the judge granted sole custody of the girl to her father, with no visitation to the mother unless the parties agreed between themselves. Ibid.
Since the child had not been in her father's custody when the proceedings began, the Court stated that it would have been preferable for the father to have initiated a request showing that his daughter's "placement with him was in her best interests . . . ." Id. at 40. Nevertheless, despite this lack of formal motion process, the Court affirmed the trial court's order:
In sum, [the father] was the only appropriate parent to award custody to at the dispositional conclusion of this fact-sensitive Title [Thirty] proceeding. The court applied a best-interests test, and we have no difficulty deferring to the factual findings and conclusions the court reached on this record. [The child's] best interests were served by the court's grant of custody . . . to [her father] when disposing of the Title [Thirty] proceedings. Moreover, we do not find that [the mother] was deprived of due process as a result of the proceedings that occurred.
Although it is preferable for the court to ensure that there occurs separate and distinct proceedings at which Title [Thirty] actions are adjudicated to disposition and FM custody matters are adjudicated, this case shows that procedure may not always prevail. In this matter, the consolidated procedure followed by the court did not result in any cognizable harm to [the mother]. The parties had been litigating the [children's] custody at the time the Division initiated the child-protection proceedings, and the custody matter remained open before the Family Part.
[Id. at 41-42.]
Here, Fran's counsel's argument at the April 1, 2013 hearing, and in a letter sent ten days earlier to the court, was primarily that the court lacked jurisdiction because orders continuing supervision under Title [Thirty] had not been timely entered upon the introduction of sufficient evidence. However, the jurisdictional argument has not been raised on appeal, and we deem it now to be waived. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div. 2015) ("An issue that is not briefed is deemed waived upon appeal.").
Before the Family Part, Fran objected to the bonding evaluations and requested the opportunity to cross-examine Dr. Marano. The record does not reveal an objection to the home evaluation report or Fran's latest psychological evaluation. Fran's counsel requested a "best-interest hearing," but at the same time she acknowledged that Fran had "devoted a lot of time to [Sandra] and unfortunately that has kept her from giving her full attention to the [other] children, but [Fran] has never stopped caring for her children." Counsel also acknowledged that Fran's housing situation remained problematic, and she did "not have a home big enough for all six children."
Before us, Fran's overarching claim is that the April 1, 2013 hearing was procedurally infirm to the point of violating her due process rights. We agree that the hearing should have been more formal, with the submission of evidence by the Division and admissibility determinations by the judge.
However, the judge's decision shows that she clearly relied upon the documents submitted, implicitly accepting them as competent evidence. Except for the bonding evaluations, to which there was an explicit objection, the judge was entitled to rely upon the home evaluation and psychological evaluation in trying to determine what was in Alice's, Mary's, and Harold's best interests. See M.C. III, supra, 201 N.J. at 340-41 (concluding that Division reports that were not objected to at trial provided no basis for reversal under "invited error" doctrine). Even if the judge should not have considered Dr. Marano's bonding reports, the decision that it was in the best interests of the children to live with their father was amply supported by the other evidence and appropriately relied upon by the judge.
Initially, we note that Henry had joint legal custody of the children when they were first removed from Fran's home. They were initially placed with Henry, who had maintained contact with them after his separation from Fran, and they lived with Henry for approximately one year before he was deported to Mexico. The interstate home study demonstrated that Henry was the part-owner in a family business in Mexico that gave him financial stability, and that his parents and siblings, who all lived close by, helped him with childcare. The children expressed a desire to remain with Henry.
Additionally, it is indisputable that two-and-one-half years after the children were removed, Fran was admittedly still unable to care for them. Her attention was focused on Sandra, who was still in the hospital. Fran visited her on a daily basis in New York while attempting to care for another newborn. The psychological evaluation discussed the stressful nature of the situation. The Division's court report provided to the judge before the April 1, 2013 hearing included the results of a family team meeting held on March 11. Fran told the Division workers that "although she would like to be reunified with all her children, she kn[ew] that it may not be possible and instead of the children being placed with strangers, she would prefer that they be placed with [Henry] in Mexico." Lastly, Fran was facing possible deportation at the time of the hearing, and, as noted, since then, has been arrested and detained in February 2015 by ICE.
Although the judge did not cite N.J.S.A. 9:2-4, or specifically address each of the statutory factors that guide the best interests analysis, we conclude she implicitly considered those factors and reached the only rational alternative in the complex situation confronting her at the time. I.S., supra, 214 N.J. at 41. In our view, any procedural errors were harmless and did not bring about an unjust result. R. 2:10-2.
Lastly, we reject the claim that Fran's due process rights were violated. We note that there was adequate notice of the Division's intention to permanently place the children with Henry in Mexico, and that Fran was accorded an opportunity to produce her own evidence supporting the children's return to her custody.
The record reflects that the Division arranged for Fran to have a bonding evaluation with "Dr. Burr." It is not clear what the result of that evaluation was. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION