Opinion
DOCKET NO. A-2095-12T2
01-07-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.V., Defendant-Appellant. IN THE MATTER OF C.V., A MINOR.
Joseph E. Krakora, Public Defender, attorney for appellant (Mary Potter, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Karen Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-62-12. Joseph E. Krakora, Public Defender, attorney for appellant (Mary Potter, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Karen Lodeserto, Designated Counsel, on the brief). PER CURIAM
In this Title Nine case, defendant G.V. (Gary) appeals from the Family Part order finding that he sexually abused his son C.V. (Conner). He also contends that the Family Part judge should not have terminated the litigation without holding a dispositional hearing under N.J.S.A. 9:6-8.50 and a Baures hearing under N.J.S.A. 9:2-2. Having reviewed Gary's arguments in light of the record and applicable legal principles, we affirm.
N.J.S.A. 9:6-8.21 to -8.73.
We use pseudonyms to protect the family's privacy.
Baures v Lewis, 167 N.J. 91 (2001).
I.
The Division first became involved with the family in 2006 when Gary admitted to breaking ten-month-old Conner's femur bone. After Gary completed court-ordered services, the case was dismissed. In 2010, Gary filed a complaint to obtain custody of Conner from Conner's mother, R.D. (Rachel), who consented to the custody change due to her unstable housing.
On February 16, 2011, the Division received a referral from Gary's neighbor, alleging he heard Gary every day screaming and cursing at five-year-old Conner. The next day, Division caseworker Ilvia Ortiz spoke to Conner at his school. Conner disclosed that his father regularly yelled and cursed at him, and sometimes hit him, spanked him, and threw him on the floor. Conner denied being injured or being frightened of Gary. Conner also reported seeing his father intoxicated and witnessing domestic violence between his parents.
On that same day, Ortiz interviewed Gary and Rachel. Gary admitted that he sometimes yelled at his son, cursed out of frustration, and at times spanked him. Gary adamantly denied physical abuse, domestic violence, or drug or alcohol abuse. Nevertheless, Gary agreed to cooperate with the Emergency Child Aid Program (ECAP) and to accept Family Preservation Services. During this time, Rachel filed a custody complaint in the Family Part to regain custody of Conner.
Thereafter, the Division's and ECAP's attempts to contact Gary and provide services were unsuccessful. Due to concerns for Conner's safety, the Division filed a complaint in the Family Part to obtain an order to investigate on April 8, 2011. At the hearing on the Division's application, the Family Part judge decided to remove Conner from Gary's custody due to the history of severe physical abuse of the child, recent referrals and disclosures of physical abuse and substance abuse, and Gary's failure to comply with agreed-upon services. As such, the judge sua sponte gave the Division custody, care, and supervision of Conner. The judge also merged Rachel's pending complaint for custody with the Division matter and permitted the Division to place Conner in Rachel's temporary physical custody after her home was inspected.
In the Family Part, cases concerning child welfare issues under Title Nine are heard under the FN docket. Cases concerning custody, visitation and support, but not the dissolution of a marriage are heard under the FD docket. Cases involving the dissolution of a marriage are heard under the FM docket.
On July 25, 2011, the Division received a referral from Conner's therapist, Teran Chartier, stating that Conner reported sexual abuse by Gary. Two days later, the Passaic County Prosecutor's Office took a statement from Chartier. The therapist explained that she began treating Conner because he was having "nightmares of blood and people killing people" and was "terrified of the bathroom even with all the lights on." Chartier stated that Conner had made a sexual abuse disclosure after approximately five sessions. Chartier later reported to the Division that Conner had difficulty distinguishing reality from fantasy.
On July 28, 2011, Giselle Henriquez, a child interview specialist with the Prosecutor's Office, interviewed Conner regarding the sexual abuse allegations in the presence of Ortiz, the Division caseworker. Conner disclosed that his father touched his penis over his underwear as his father was getting him dressed for school. Conner also related that he slept in the same bed as his father and that his father lay on top of him sometimes while they slept. During the interview, Conner stated that his father touched his "peanuts" "inside his clothes," but "outside of his underwear" with his hand. He described a game he called "cave time," which consisted of Conner going under the blankets on Gary's bed and Gary lying on top of Conner. Even so, when questioned about whether his father touched him on his "peanuts" during "cave time," Conner responded that his father touched his "peanuts" while getting dressed and taking a bath.
Conner's word for penis.
The Prosecutor's office ultimately determined not to pursue criminal charges because information was inconclusive as to whether the touch was accidental or sexual.
On September 13 and 14, 2011, psychologist Jacquelyn Doran-Cunningham, Ph.D., of the Audrey Hepburn Children's House, affiliated with Hackensack University Medical Center, performed a psychosocial evaluation of Conner for the Division. Dr. Cunningham also spoke with Rachel, who related that, when Conner first moved back in with her, he had nightmares every night and was afraid of the dark. Rachel also told Dr. Cunningham that Conner "has some difficulty distinguishing real from pretend."
In her report, Dr. Cunningham stated that Conner "appeared hesitant when asked to provide information regarding sexual abuse." Dr. Cunningham noted that Conner "could not define the truth or a lie," and after she defined the terms and Conner identified a truth and lie, Conner stated it was better to lie "because if someone tells the truth, they'll go to jail."
According to Dr. Cunningham's report, Conner also described having nightmares and stomachaches, previously suffering from headaches, and fearing that his mother "might die with a knife in [her] throat." When asked about suicidal ideation, Conner said, "My mom yells at me when I tell her I want to die."
Dr. Cunningham reported that Conner spontaneously described
that his father "used to get on top of me at nighttime." When asked to describe the last time it occurred, [Conner] reported that he and his father were in his father's bed under the covers. [Conner] indicated that he was wearing a pajama shirt and shorts but no underpants. He reported that his father was wearing a pajama top but no pants. . . . [Conner] reported that he was "laying [sic] on the bed on his stomach" and his father was "sometimes on top of me and sometimes beside me." He stated that his father was "doing stuff" but would not elaborate on his response.
After identifying body parts using figures, Conner stated that his father "squeezes my peanuts really hard" with his hand and also stated that his father had touched his buttocks with his hands and described the incident as "it felt like hard peanuts outside of my butt" and his father's penis touched his buttocks. Conner also reported watching his father's penis "grow" while he squeezed it. He indicated that "pee" came out of his penis in the bed after his father was 'on top of me.'"
At the conclusion of the interview, Dr. Cunningham asked Conner if anyone had told him what to say. Conner stated "Yes, my mom. I get confused about what to talk to you about."
Dr. Cunningham found Conner's disclosures were consistent with his disclosures to Chartier and Henriquez and "provided additional multiple idiosyncratic details through piecemeal disclosure" about the alleged abuse. The doctor concluded, "[b]ased on [Conner's] accounts of inappropriate sexual contact provided during the interview and to his therapist, and [Conner's] reports of his symptoms, sexual abuse is clinically supported."
On October 4, 2011, the Division moved to terminate the April complaint for an order to investigate and to file a new verified complaint for custody, care, and supervision based on the new allegations. At the hearing on the motion, the Division sought to "correct the record procedurally" because in April 2011 it "should have dismissed the order to investigate and filed a new separate complaint for care and supervision." The Division's attorney explained that although the Division was not seeking custody, the new complaint as drafted included a request for custody, as well as care and supervision, in order not to violate Gary's right to a "full hearing" concerning custody pursuant to N.J Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009). The Division acknowledged that generally a hearing was required to "determine whether or not custody should be transferred to the non-custodial parent . . . at the termination of the litigation."
However, the Division's counsel represented that the parties and their respective attorneys had conferred about these issues before the hearing and agreed to the dismissal of the pending litigation without a fact-finding or a dispositional hearing. Both parties further agreed to joint custody of Conner with Rachel having residential custody under the FD docket case. The family judge granted the motion to dismiss the April complaint and granted the Division care and supervision of Conner under the new complaint. The order specified: "With consent of all parties who are represented by counsel, [Conner] shall remain in the joint legal custody of his parents (pursuant to FD-16-240-10), but will remain in the physical custody of [Rachel]."
At the March 6, 2012 fact-finding hearing, Ortiz was the sole witness for the Division. The judge admitted, without objection, the Division's screening summaries and investigation summaries from 2006 and 2011, Dr. Cunningham's report from Conner's September 2011 evaluation, and the DVD of the interview of Conner by the Prosecutor's Office. Gary's attorney specified that she had "no objection" to this evidence. The judge also admitted, over Gary's objection, Chartier's statement to the Prosecutor's Office regarding Conner's initial disclosure under the "fresh complaint" exception.
There were several fact finding hearings that occurred in this case, but only the March 6 hearing included witness testimony.
Defendant does not challenge this ruling on appeal.
On May 24, 2012, the trial judge issued an oral decision finding that Gary abused or neglected Conner pursuant to N.J.S.A. 9:6-8.21(c)(3) because he "committed an act of sexual abuse by touching [Conner] in his penis and other acts." The judge noted that he primarily relied on Ortiz's testimony and Dr. Cunningham's report. The judge reasoned that while the Prosecutor's Office did not charge Gary criminally, "the Audrey Hepburn evaluator indicated that the clinical findings supported the allegations made by [Conner]."
I am also finding that the allegations are supported by what [Conner] said and who he said it to. I watched the tape and I listened carefully to what he said. . . . He still indicated enough information to the interviewer that in my opinion was just a little too detailed for a child of that age.
The judge recognized that Conner had an active imagination but determined that the abuse claims, which were told to the Prosecutor's investigator and Dr. Cunningham, were credible. "[T]he child provided idiosyncratic details that normally a child will not provide to anyone when describing these kinds of acts." The judge also found that defendant's denial of what Conner said lacked credibility.
During the six months following the fact-finding hearing, the court held several compliance review hearings. A continuing problem addressed by the judge concerned Rachel's apparent move to Pennsylvania without the court's permission, which interfered with Conner's services and Gary's visitation. Rachel represented that she was pregnant, had no home in New Jersey, and was too ill to travel. Nevertheless, the judge ordered Rachel, among other things, to move back to New Jersey, to re-register Conner at his New Jersey school, and to arrange for her relatives to transport Conner to visits if she was unable. The judge forcefully informed Rachel that while she had an open FD matter, she was not permitted to leave the jurisdiction absent permission of the court and threatened to have her arrested. Rachel then filed a motion under the FD docket for permission to leave the State with Conner.
On November 29, 2012, the Division moved to dismiss the litigation as it had no further child welfare concerns about Conner. The law guardian concurred. Gary's counsel, who had not represented defendant at the initiation of the litigation, requested a G.M. hearing, stating that "a finding has to be made that it's not safe to return the [child] to [Gary.]" The Division and the Law Guardian reminded the court that the Division never had custody during this litigation because of the parties' custody agreement under the FD docket case. The Family judge ordered the litigation to be terminated since the conditions were remediated and custody was to remain as it was at the start of the litigation. This appeal followed.
Immediately after dismissing the Title Nine litigation, the judge held a hearing under the FD docket. No transcript of this hearing is in the record. According to the FD order, the judge continued Conner in the joint legal custody of both parents, and in the physical custody of Rachel. The judge also granted Rachel's application for relocation to Pennsylvania with Conner. Gary has not appealed this FD order.
Before us, Gary first argues that the trial judge improperly admitted and relied on Dr. Cunningham's report, because the doctor did not testify, the report contained embedded hearsay, constituted a net opinion, and was based on an unrecorded interview. Gary claims that, although he did not object to the report's admission at the fact-finding hearing, its admission constitutes plain error as it deprived him of his due process rights. Gary further contends the trial court's finding was not supported by substantial credible evidence in the record, and that Conner's out-of-court statements regarding abuse were not corroborated and were unreliable.
Our scope of review "is to decide whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference to the family court is accorded because of its "expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, when a trial court's determination results from a review of documentary evidence, such as the case here, our standard of review is broader than if the court made findings based upon testimonial evidence. See G.M., supra, 198 N.J. at 396; State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011). Further, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). Moreover, the trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).
Title Nine's guiding principle is the protection of children from circumstances and actions that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). "[A]ny determination that the child is an abused or neglected child must be based on a preponderance of the evidence and . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6- 8.46(b). Relevant to the allegations here, an abused and neglected child includes one whose parent or guardian "commits or allows to be committed an act of sexual abuse against the child[.]" N.J.S.A. 9:6-8.21(c)(3).
"[I]ssues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010). Additionally, "'[t]he doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" Id. at 340 (quoting Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996)). "'[A] defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought . . . claiming it to be error and prejudicial.'" Ibid. (alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 358 (2004)). To demonstrate reversible error when the error was invited, "the question is whether the 'particular error . . . cut mortally into the substantive rights of the defendant[.]'" State v. Corsaro, 107 N.J. 339, 345 (1987) (alteration in original) (internal quotation marks and citations omitted); see also State v. A.R., 213 N.J. 542, 561-62 (2013). If the doctrine of invited error "would 'cause a fundamental miscarriage of justice,' it will not be applied automatically." A.R., supra, 213 N.J. at 562 (quoting M.C. III, supra, 201 N.J. at 342).
Gary contends that "[g]iven the complexity of the analysis which is necessarily involved in reaching a conclusion that sexual abuse is clinically supported, cross examination of the expert is necessary in order to avoid a denial of basic due process." As Dr. Cunningham did not testify, Gary states that the court's consideration of the doctor's report "was a miscarriage of justice mandating reversal." We do not agree.
The Division "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants." R. 5:12-4(d). Generally, to be admissible, the Division reports must satisfy the prerequisites for admission as a business record under N.J.R.E. 803(c)(6). M.C. III, supra, 201 N.J. at 346-47. In M.C. III, however, the Court held that where the Division had not satisfied the N.J.R.E. 803(c)(6) prerequisites solely because the appellant had expressly consented to the admission of the report at trial, its admission was proper "without the necessity of the Division's compliance with the strictures of the Rules." Id. at 348. Thus, Dr. Cunningham's report was admissible with Gary's consent.
Gary argues that even if the report were admissible, the judge should not have relied on Dr. Cunningham's expert opinion. "An expert medical opinion contained in a report is generally inadmissible under this test because of the complexity of the analysis involved in arriving at the opinion and the consequent need for the other party to have an opportunity to cross-examine the expert." N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 130 (App. Div. 2010); see also N.J.R.E. 808. "[W]hen the expert is not produced as a witness, [N.J.R.E. 808] requires the exclusion of his or her expert opinion, even if contained in a business record, unless the trial judge makes specific findings regarding trustworthiness." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174 (App. Div. 2012) (holding that consultants hired by the Division to evaluate parental fitness were erroneously admitted over objection).
Gary's reliance on M.G. is misplaced as in M.G. the report was admitted over the objection of the defendant's counsel. Id. at 164-65. Rather, this case is squarely controlled by M.C. III. In M.C. III the defendant consented to the admission at trial of a doctor's report finding marks consistent with physical abuse but on appeal claimed it was plain error for the doctor not to have testified. M.C. III, supra, 201 N.J. at 335-36, 338-39. The Court held that the defendant could not agree to the document being entered without the doctor testifying, then on appeal, claim that the doctor should have testified. Id. at 341-42.
As in M.C. III, here Gary assented to the report's admission by allowing the report to be entered without objection and not demanding that the doctor testify. Thus, he invited the error by taking his chances with the report's admission. See id. at 342. Indeed, by not objecting, Gary prevented the Division from laying the requisite foundation for the business records exception, denied the trial court the opportunity to make any findings of trustworthiness and prevented the Division from having Dr. Cunningham appear to testify. See id. at 341. Moreover, no fundamental miscarriage of justice occurred, see A.R., supra, 213 N.J. at 562, because the trial judge relied principally on the statements attributed to Conner in the report, which were admissible under N.J.S.A. 9:6-8.46(a)(4).
Gary also contends that the opinion that sexual abuse was clinically supported was a net opinion as it was based solely on Conner's statements with "no analysis, evidential support, or clinical data to buttress her conclusion." We disagree.
An expert's opinion must be based upon "facts or data . . . perceived by or made known to the expert at or before the hearing." N.J.R.E. 703. "[A]n expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). "This prohibition against a 'net opinion' bars expert testimony based on unfounded speculation or mere possibilities." Costantino v. Ventriglia, 324 N.J. Super. 437, 451 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).
We are satisfied that Dr. Cunningham's report is not a net opinion. The doctor's facts and data were derived from numerous Division reports, court orders, the Prosecutor's close-out report, the psychological evaluations of Gary and Rachel, Gary's psychiatric evaluation, and interviews with Henriquez, the Division's caseworker, Rachel, and Conner. Moreover, in her comprehensive evaluation, the doctor fully explained her opinion in the summary and formulation. Consequently, Dr. Cunningham's conclusions were clearly not based on "unfounded speculation or mere possibilities." Ibid.
Gary next asserts that in State v. Michaels, 136 N.J. 299 (1994), the Supreme Court required that all interviews with children concerning sexual abuse, be recorded because of the ability of certain interview techniques to produce unreliable accusations and taint a child's memory. Since Dr. Cunningham's interviews were not recorded, Gary claims that reliance on it, "represents a miscarriage of justice." We cannot agree.
This claim miscomprehends Michaels, which simply states that "[a]s a matter of sound interviewing methodology, nearly all experts agree that initial interviews should be videotaped." Michaels, supra, 136 N.J. at 313 n.1. Gary has not established evidence of suggestive or coercive interview techniques which would require the court to hold a hearing on the reliability of Conner's statements. See id. at 321. Gary simply speculates that Conner "could have been asked leading questions, repeated questions in the face of negative responses, or any number of other prohibited suggestive interview methods could have been used." This speculation is woefully insufficient to demonstrate Gary's claim that a miscarriage of justice resulted from admitting the interviews into evidence.
In sum, as in M.C. III, Gary's counsel did not object to the admission of Dr. Cunningham's report thereby depriving the Division of the opportunity of laying any requisite foundation for its admission. Gary has not presented evidence that the admission of the challenged report constituted a fundamental miscarriage of justice and thus, under M.C. III, the invited error doctrine precludes defendant's objection to the admission of the report.
Gary also argues the trial court erred in relying on the "unrecorded embedded hearsay statements attributed to" Conner in Dr. Cunningham's report. We disagree.
"[P]revious statements made by [a] child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). Thus, Conner's statements to Dr. Cunningham and others related to his sexual abuse were undoubtedly admissible. The remaining issue is whether they were sufficiently corroborated so as to permit a finding of abuse and neglect.
"It would be a rare case where evidence could be produced that would directly corroborate the specific allegation of abuse between the child and the perpetrator[.]" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 435 (App. Div. 2002). Clearly, the most effective corroborative evidence would be "'eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse[;]'" however, "case law does not require that the evidence be that specific before it can be deemed corroborative of the child's out-of-court statements." Id. at 435-36 (citations omitted).
"[T]he corroboration requirement must reasonably be held to include indirect evidence of abuse. Such evidence has included a child victim's precocious knowledge of sexual activity, a semen stain on a child's blanket, a child's nightmares and psychological evidence.'" Id. at 436 (citation omitted). "The corroborative evidence need not relate directly to the alleged abuser[;] it need only provide support for the out-of-court statements." Ibid.
Here, Conner's statements related to his abuse were corroborated by his precocious knowledge of sexual activity, his nightmares, fear of getting out of bed, and fear of the bathroom. Conner's detailed knowledge of sexual activity was well beyond that of a six-year-old child. Based on this corroborating evidence, the judge's reliance on the statements attributed to Conner contained in Dr. Cunningham's report was certainly supported by substantial credible evidence, A.G., supra, 344 N.J. Super. at 442-43, and the statements were admissible to prove Conner's allegation of sexual abuse.
Finally, Gary claims that Conner's statements were inherently unreliable given his admission to being coached by Rachel, his lack of spontaneous recollection, and his lack of understanding of the difference between fantasy and reality as well as a truth and a lie. We are satisfied that the judge weighed the evidence including Conner's young age, his difficulty telling reality from fantasy, and his mother's possible "coaching," and found that Conner's statements were nevertheless reliable, which is entitled to our deference. See N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006). From our review of the record we are satisfied that there was sufficient credible evidence in the record to support the judge's finding that Gary sexually abused Conner.
III.
Next, Gary asserts that the trial judge committed reversible error by failing to conduct a dispositional hearing, as required by G.M., supra, 198 N.J. at 387-88, to determine whether it would be safe to return Conner to Gary, his former custodial parent before the Division became involved. Again, we disagree.
If abuse or neglect is established as a result of the fact-finding hearing, the second step is the "dispositional hearing." N.J.S.A. 9:6-8.45. A dispositional hearing must be held to determine "whether the children may safely return" to the custody of the parent from whom the children were removed. G.M., supra, 198 N.J. at 387-88. Notably, "transfer of physical custody during a Title Nine action to the non-custodial parent is a placement under Title Nine." Id. at 405. However, where a parent consents to a custody arrangement under an FD docket case and does not challenge that order embodying the FD case, he cannot expect a dispositional hearing to be held at the end of the FN litigation. N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 299 (App. Div.), cert. denied, 218 N.J. 275 (2014); see also N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 23 (App. Div. 2010) (holding that where parents in an FN action agree to a judicial custody determination under N.J.S.A. 9:2-4, they may not later protest the procedures followed).
On the other hand, "a parent . . . may always initiate a request for change in custody against the other parent[.]" Id. at 402 n.3. In N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013), the court transferred custody of a child under an FM docket and the child-protective litigation was dismissed at the same time. I.S., supra, 214 N.J. at 40-41. Although not strictly in compliance with G.M., the manner in which custody was transferred was upheld because "the consolidated procedure followed by the court did not result in any cognizable harm to" the parent. Id. at 41-42.
The record shows that when the Division sought to dismiss its April complaint, the Division acknowledged that before such a dismissal, a dispositional hearing under G.M. should ordinarily be held to determine if it was safe to return the child from the parent from whom he was removed. G.M., supra, 198 N.J. at 387-88. However, before the hearing on the dismissal motion, the parties and their attorneys conferred and all agreed to dismiss the April complaint without any hearings and with an agreement that both parents had joint custody and Rachel had residential custody. Thus, although Gary had a right at that point to have a dispositional hearing, he consented to forego a hearing and to give Rachel residential custody under the FD docket. The instant case then proceeded with the Division having care and supervision, but not custody. When the judge dismissed the instant case, he merely continued the custody arrangement consented to by the parents at the close of the previous case and addressed further issues under the FD docket. We find no error in the family judge deciding not to hold a dispositional hearing in this case as the Division did not remove the child from Gary's custody during this proceeding.
Finally, Gary contends a Baures hearing on Rachel's request to relocate to Pennsylvania should have been held in the FN case. We find this argument to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E).
Suffice it to say that the record is clear that, during the litigation, the judge did not give Rachel permission to permanently relocate to Pennsylvania. As the parties consented to joint custody of Conner under the FD docket, Rachel appropriately filed a motion under the FD docket for permission to relocate. Additionally, Gary does not point to any error in the judge's eventual Baures analysis and has not appealed the judge's decision under the FD docket.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION