Opinion
DOCKET NO. A-3899-14T3
01-13-2017
XIAOBING WANG, Plaintiff-Respondent, v. JIAN ZHANG and TIANLE LI, Defendants-Appellants.
Ferro and Ferro, attorneys for appellants (Nancy C. Ferro, on the briefs). Afonso, Baker, Archie, Foley & Lodge, P.C., attorneys for respondent (Eric R. Foley and Theodore J. Baker, on the briefs). Kemeny, LLC, attorneys for guardian ad litem Ann L. Renaud (Alexander J. Kemeny and Geoffrey T. Blackwell, on the brief). Appellants Jian Zhang and Tianle Li filed pro se supplemental briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Alvarez and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-1852-11. Ferro and Ferro, attorneys for appellants (Nancy C. Ferro, on the briefs). Afonso, Baker, Archie, Foley & Lodge, P.C., attorneys for respondent (Eric R. Foley and Theodore J. Baker, on the briefs). Kemeny, LLC, attorneys for guardian ad litem Ann L. Renaud (Alexander J. Kemeny and Geoffrey T. Blackwell, on the brief). Appellants Jian Zhang and Tianle Li filed pro se supplemental briefs. PER CURIAM
We review the placement of an eight-year-old boy whose mother is serving a life sentence for the murder of his father. Because the procedural history is entwined with related cases, the details of which we are not privy to but which obviously have some significance for what occurred here, we relate the facts and procedure we have drawn from the record broadly, starting some years before the institution of this matter.
The boy's name is Jeremy. His parents, the late Xiaoye Wang and defendant Tianle Li, both from China, met while obtaining advanced degrees at the University of Pennsylvania. They married and settled in New Jersey, where they had good jobs and a comfortable home in Monroe Township. Jeremy was born in January 2009. Two years later, in January 2011, the couple was about to finalize their divorce when Xiaoye died suddenly as a result of thallium poisoning. Li was arrested in connection with his death, and the Division of Child Protection and Permanency placed Jeremy in a resource home.
This is not the boy's real name. We use a pseudonym to protect his privacy to the extent we can.
Because of the several parties who share last names, we refer to them, respectfully, either by their first names or their family relation to Jeremy.
Xiaoye's brother, plaintiff Xiaobing Wang, who lives in China, contacted the Division shortly after Li's arrest expressing concern for Jeremy's welfare and a willingness to assume his care and custody. Acting on the Division's advice, the uncle cooperated in an investigation by International Social Services of his home and family in Wuxi, Jiangsu Province, the People's Republic of China. International Social Services interviewed the uncle and his family and conducted a home study over two days in May 2011.
Several weeks after Li's arrest and Jeremy's placement, Li's mother, defendant Jian Zhang, moved from China to the family's home in Monroe to care for her grandson. In May 2011, the same month of the uncle's home study, the Division terminated its Title Nine proceeding against Li after she voluntarily transferred legal and physical custody of Jeremy to his grandmother in a non-Title Nine proceeding.
In August 2011, Judge Ciuffani, sitting in the Probate Part, appointed the uncle a co-administrator of Xiaoye's estate. Judge Ciuffani also appointed a lawyer, Ann Renaud, to serve as Jeremy's guardian ad litem. Working with Renaud, the uncle began the process of marshalling the estate's assets, including placing the family's Monroe home for sale. Shortly thereafter, the uncle filed this action in the Family Part against Jeremy's mother and grandmother seeking custody of Jeremy.
The uncle subsequently transferred to Renaud, in trust for Jeremy, the proceeds of Xiaoye's estate, consisting of a life insurance policy of $300,000 and half of the net proceeds from the sale of the family home. Renaud, acting on Jeremy's parents' plan for his education, invested some of the money in an annuity sufficient to fund a quality college education and graduate school for Jeremy. She also rented an apartment for Jeremy and his grandmother following the sale of the house.
Jeremy's grandmother, who was in her late sixties when she assumed his care, speaks only Mandarin Chinese and does not drive. Accordingly, Renaud arranged for an apartment in Plainsboro, home to a large Asian community. In addition to rent and utilities, Renaud paid for Jeremy's tuition at a Montessori preschool with a strong bi-lingual program across the street from their new apartment. Jeremy learned to speak English there and remained through kindergarten. Jeremy's other living expenses and healthcare were paid from Social Security and Medicaid benefits received by his grandmother on his behalf.
Although the uncle filed this action in August 2011 and the grandmother and Li apparently answered within sixty days, a plenary hearing was not conducted until February 2015 for reasons that are not clear on this record. In the interim, Li was convicted by a jury of Xiaoye's murder. She was sentenced in September 2013 to life in prison with a sixty-two-year parole ineligibility term, which she is serving at Edna Mahan Correctional Center in Clinton. Her appeal of that conviction is pending in this court.
Renaud, as well as Jeremy's uncle and grandmother, all testified over the course of the two-day February 2015 hearing. Renaud testified to her relationship with Jeremy beginning with her appointment and her interactions with Jeremy's grandmother and uncle, as well as with his mother.
Renaud described Jeremy, who had then just turned six, as a very bright child, but "a bit hyperactive" and "headstrong," who "appears to be sort of in control in the home." She claimed the grandmother, although "extremely well meaning," had "limited disciplinary skills" and was not a "warm" person. Renaud explained Jeremy's asthma and "rather significant" food allergies and the difficulty the grandmother had with communicating with Jeremy's allergist, who did not speak Chinese. She noted that Jeremy spoke English at school and Mandarin at home and served as a general interpreter for his grandmother, who had not acquired any English language skills since coming to this country.
Renaud explained her own difficulties in communicating with the grandmother and the dramatic improvement that followed upon the grandmother's involvement in a Princeton church that conducts services in both English and Chinese. Two parishioners, women who spoke both languages fluently, had befriended the grandmother and Jeremy and regularly assisted them in a myriad of ways. When, for example, the grandmother, who was seventy-one at the time of the hearing, was hospitalized for several days, the women helped care for Jeremy, enlisting several other church members in the effort. When Renaud needed to communicate with the grandmother, she would call one of the women, who would call the grandmother. Renaud testified that the women "facilitate" the grandmother and Jeremy "being in the community in a positive way."
Although being generally supportive of Jeremy's placement with his grandmother, Renaud expressed some reservations about the relationship. She testified that Jeremy was "hard to manage," and predicted that problem "is probably going to get worse." She noted seeing where Jeremy had written on the walls of the apartment and described an incident in which she had watched him bound up onto a table and hurl everything on it, while the grandmother "very ineffectively" tried to get him to stop. The Division of Child Protection and Permanency had twice responded to calls about the child, once from a police officer who found Jeremy riding a tricycle along a busy road when he left the apartment without his grandmother's knowledge.
Renaud also expressed concern about the grandmother's unwillingness to tell the child the truth about his parents. She claimed Jeremy was not told "for the longest time" that his father was dead. Instead, the boy's mother and grandmother maintained the fiction his father was at work. Although Renaud testified they had since told Jeremy "that his father went to heaven," the child was not made aware of the circumstances of his father's death or that his mother was in prison for the murder. They told Jeremy his mother, whom he visited regularly, worked at Edna Mahan, which he described to Renaud as a place where "all men are policemen."
Renaud testified that professionals she had consulted, including a psychiatrist who had evaluated Jeremy, all advised that the boy should be told about his parents in a therapeutic setting in which his grandmother participated. Although agreeing Jeremy should be told, Renaud had not acted on the advice because his mother and grandmother opposed the plan, and she had been unable to secure the services of a Chinese speaking psychologist after the grandmother sent away the one Renaud had retained. The psychiatrist Renaud consulted recommended against using a non-Chinese speaking therapist because of the difficulties in using an interpreter to discuss such a difficult and emotionally laden topic. Renaud believed the subterfuge was harmful to Jeremy because "even a six year old must wonder why his mother is too busy at work to be with him," and that it would not "be long before he starts to recognize that his mother does not appear to work" at the prison.
Renaud also expressed concern about the grandmother's inability to stand up to Jeremy's mother, whom Renaud described as a "very controlling lady," who "call[ed] the shots from jail." Renaud claimed that Li, Jeremy's mother, wrote to her "constantly," and that some weeks she would receive "a letter a day" from her. Renaud expressed frustration that Li had alienated staff at Jeremy's school and would go "behind [Renaud's] back" and undo things she had put in place. Renaud testified she understood that Li was Jeremy's mother but expressed the view that Li had "given up her ability to take care of him" and "to tell her mother what to do." Renaud also stated her view that both Li and the grandmother needed to accept that the grandmother was "in charge now" and that the grandmother "needs to step up and be the guardian, and make the choices" and that Li "needs to take a step back."
Regarding Jeremy's uncle, Renaud testified that although not having "anywhere near as much time with him" as with the grandmother, she was "very favorably . . . impressed with him." She described him as "a very pleasant man," who was "well educated [and] very well spoken" with "a wonderful sense of humor." She stated "he clearly cares very much about Jeremy" and had been "helpful, cooperative, [and] generous with his time" throughout the long course of the litigation.
Renaud testified the uncle readily agreed with her that if Jeremy went to live in China with the uncle's family, he should return to the United States to attend college. When Renaud thus expressed the hope that Jeremy "would be educated in an English speaking school," the uncle researched and found an appropriate school near his home for Jeremy to attend.
Renaud was also able to talk with the uncle about her concerns about Jeremy, an American citizen, living in China, "where it's not as free." The uncle responded by telling her that when he determined to come to New Jersey following his brother's death, "he was kind of concerned because what he knows about the United States is that everybody is divorced and that people shoot each other on the streets." Renaud testified the response stayed with her "as an interesting observation that [we] perhaps don't understand each other's cultures as well as we should."
The uncle, although not an English speaker, is able to read and write English. Renaud testified that when she realized she did not have a sense about the uncle's life in Wuxi, he sent her photographs of himself and his family, his wife and son, and of their home. Renaud reported her impression that they look "like a lovely family." She also recounted the afternoon Jeremy and the uncle spent together in her office becoming acquainted and the uncle's warm interactions with the boy.
Given that Jeremy had not been told of his father's death, Jeremy was not told that plaintiff Xiaobing Wang was his paternal uncle.
Renaud testified she was conflicted over her recommendation to the court regarding who should assume care and custody of Jeremy. She explained her belief "that Jeremy would be best served by having a stable loving family," and that having a mother, a father and a brother "would be the best thing for him." Accordingly, she explained that if the uncle
were here in the United States[,] he would be my recommendation. I am concerned that he's not here. I am concerned about Jeremy being uprooted from his grandmother, [when] he's known no other parent than his grandmother. I have concerns about him being uprooted from his culture, and taken to a place that he's never been before; I think that might be hard on him.Concluding there were drawbacks to placing Jeremy with either his grandmother or his uncle, and that both would be "appropriate placements," Renaud ultimately declined to recommend one over the other, saying she could give the court no "definitive answer."
The grandmother, Jian Zhang, testified that Jeremy's allergies and asthma were very serious problems, and she worried such problems would only be exacerbated in China given its pollution problems. She downplayed Jeremy's disciplinary issues, saying repeatedly, "he's just a boy." She explained that she "tell[s] him to behave, and at the moment I tell him he remembers. But he's just a boy, and after a while he forgets." She testified that
sometimes I tell him if you are naughty again then I'm going to leave you. And then he gets scared and doesn't want to go to sleep. And ask me Nana, Lala, are you going to leave me? I said no, I'm not going to leave you but you have to listen to me.
She also explained that she was willing to tell Jeremy about his father, "just little by little. Right now I'm just telling him father is not here, but not telling him the reason. Later on just telling him maybe his parents couldn't get along, and then until he grows up, just little by little tell him." She also added that she did not "have the right" to tell Jeremy about his mother's conviction while her case remained on appeal. She professed not to know whether her daughter was "innocent of the crime of which she was convicted," because she had been in Beijing "when that incident happened."
The grandmother also denied any concern about her age or health in caring for Jeremy for the next ten or twelve years. While acknowledging that her daughter called nearly every day about Jeremy and sometimes twice a day, with advice and instruction on his health, his studies and his activities, she denied that Li controlled Jeremy's upbringing from jail.
Returning to the issue of Jeremy's father on re-direct, the grandmother testified she would accept the help and instruction of a psychologist to "reach that decision as to how to communicate the events involving the death of his father to Jeremy," but did not want to tell him "at this age." She expressed the view that Jeremy was "still too young to be told the truth. We could tell him his father is deceased, but even that I think better not to tell him, just wait."
Jeremy's uncle, Xiaobing Wang, testified that he was forty-one years old, that he and his wife had been married for fifteen years, and they had a twelve-year-old son who played piano and participated in the sports of swimming and ping pong. He testified his wife was an accountant, and that he worked for the national government in the tax office, running one of the departments in the Citizen District in Wuxi. He explained he had worked in the tax office for eighteen years, since he had graduated from college, and that he and his family enjoyed a comfortable lifestyle.
The uncle testified about the home study conducted by International Social Services in May 2011. He explained that when he approached the Division of Child Protection and Permanency about custody of Jeremy shortly after his mother's arrest, the Division told him it would require a home study, which the Division would arrange. In the uncle's verified complaint, included in the appendix, the uncle averred that International Social Services advised him that it completed its report and transmitted it to the Division in July 2011. The uncle was not advised of its conclusions, and the Division would not release a copy of the report to him in the absence of a court order.
The uncle claimed his wife and son were both committed to having Jeremy become a part of their family and that his sister and their parents, all of whom lived nearby, were likewise supportive of the idea. He testified his wife did not speak English but that their son was learning English at school. The uncle explained that when he initially sought custody of Jeremy when the boy was two, he had intended to enroll him in the same public school as his son. Given that Jeremy was then six, however, the uncle agreed with Renaud that an American school in Wuxi would be less disruptive to Jeremy's education, albeit more expensive. He endorsed Renaud's idea that Jeremy should return to the United States for college, explaining that he and his wife intended to send their own son to the United States to secure a college education.
The uncle also explained that were Jeremy to come to live with his family in China, that Jeremy would remain a United States citizen, because immigrants to China cannot become Chinese citizens. Jeremy's non-citizenship status in China would require that private health insurance be purchased for him. Jeremy's uncle testified that Jeremy's asthma could be managed by a good hospital within fifteen minutes of his home, and that their family could accommodate Jeremy's food allergies. He denied Li's claims that his marriage was unhappy and the streets of Wuxi were dusty and would aggravate Jeremy's asthma.
Although acknowledging that Jeremy was "certainly a very active child," the uncle did not believe he was "very hyperactive." Instead, he expressed the "possibility . . . that in his current family nobody is telling him what he should do, what he should not do, or what he can do, what he cannot do. So he just does whatever he wants." If it turned out that Jeremy was hyperactive, the uncle said he and his wife would seek medical help for him, as they would for any other medical condition.
The uncle also expressed his understanding that Jeremy would need to return to the United States every five years to renew his visa. He thought such trips could be planned for school holidays and that Jeremy could visit his relatives in the United States on those visits.
Like Jeremy's grandmother, Jeremy's uncle expressed concern about the proper time and manner of telling the child about his father's death. Although he likewise expressed a preference for waiting until Jeremy was an adult, when "his ability to accept the truth is probably better," he acknowledged the need for professional help and expressed concern that Jeremy could learn on his own "because the internet is so well developed today."
As to Jeremy communicating with his mother, the uncle stated: "This question goes back to what I said earlier. We have to at first let Jeremy know what happened, and I'm not sure when's the best time to tell him. If Jeremy has already been [made] aware of what happened, . . . and Jeremy is willing to keep in touch with his relatives[,] then I am willing to do things" in accordance with the prison's regulations.
After hearing the testimony, Judge Jorgensen issued a lengthy written opinion in which he reviewed the testimony, made credibility findings, identified the applicable law and explained his reasons for determining that Jeremy should go to China to live with his uncle. In assessing the credibility of Jeremy's uncle and grandmother, the judge wrote he found the uncle
to be a very credible witness. He was forthright in his answers. When [Li's] cross-examination questions were filled with inappropriate, unfounded accusations, he remained calm and polite in his answers. In fact, he never took the low road of answering her harshly for killing his brother. Rather, he only referred to the murder as a tragic event.As for the grandmother, the judge found her "well-meaning, but a less credible witness than [the uncle] due to the influence exerted upon her by [Li]."
After canvassing the law, the judge acknowledged that "[n]o authority contemplates a situation in which neither parent can take custody of a child because one is incarcerated for murdering the other." In determining the law to apply to this unusual custody dispute, Judge Jorgensen made three fundamental findings that: 1) although Li "has a right to a relationship with her son, the quality and quantity of that relationship is curtailed by the extraordinary circumstances of this case for which she is solely responsible"; 2) the grandmother, "despite commendably taking temporary custody of her grandson, does not stand in the shoes of a natural parent such that the [c]ourt should presume continuing custody with her is in Jeremy's best interests"; and 3) neither party "wishes to completely terminate" Li's parental rights.
Acknowledging the uncle had filed his complaint under the authority of N.J.S.A. 9:2-9, although not seeking the termination of Li's rights, the judge nevertheless found "the obvious facts of this case warrant the recognition that [Li] is not capable of raising Jeremy." The judge thus turned to the best interests standard of N.J.S.A. 9:2-4c, modified to address the situation before him, to determine which of the parties should be awarded custody of Jeremy.
Applying the statute, the judge found as follows:
In weighing all of the above factors, and in analyzing what is in the best interests of Jeremy, the Court finds that Xiaobing Wang should be Jeremy's custodial adult. The factors warranting this difficult decision change are as follows. (1) Grandmother is 71 years old, and would be in her eighties before Jeremy graduated high school. Her ability to provide adequate care and supervision at that time would come into question. (2) Grandmother does not drive. In the event of an emergency she would have a problem in properly addressing Jeremy's transportation needs. Her reliance on public transportation and the kindness of
the church volunteers is nice, but not a solution to an emergent situation. (3) Grandmother does not speak, read, or write English. This precludes her from being able to assist Jeremy in any way, shape, or form with his school work. Some of the personnel at the Montessori school where Jeremy is enrolled speak Chinese. That helps Grandmother. However, if Jeremy were to be enrolled in public school here in New Jersey that luxury (Chinese speaking personnel) will not necessarily be available to her. Therefore, her inability to understand English will hinder her in the future if Jeremy were to attend public school in New Jersey. (4) Grandmother has some problems in disciplining Jeremy. That can only cause further problems as Jeremy gets older. (5) Grandmother's reliance upon the Chinese Christian Church members is not a viable long-term solution for caring for Jeremy. Ms. Renaud identified Allison and Esther as two ladies from the church who were extremely helpful. Indeed, both ladies attended both days of the Plenary Hearing. That they are willing to assist Grandmother is a wonderful thing. However, it appears that they both are retired, so that their age and health may very well lead to similar difficulties that Grandmother may experience as Jeremy gets older. (6) Grandmother alluded to a friend from China who is 40 years old who may come over to help her with Jeremy. The court has no idea who that person is, or what his/her relationship is to Jeremy. Grandmother seemed to imply that if something happened to her that person could take over Jeremy's child rearing. Generally, blood relatives should be the preferred custodial adult over family friends. Again, Grandmother has not demonstrated that she has developed a feasible back-up plan should she be unable to care for Jeremy. (7) Grandmother is adversely influenced by Mother. Mother's
premeditated murder of Jeremy's father resulted in the child being foisted upon the judicial system to look out for his best interests. Clearly Mother did not have his best interests in mind when she did what she did. In essence her actions have forfeited her ability to have a major influence in her son's life. Her attempts to do so through Grandmother are not to be rewarded. (8) Uncle has a warm, loving, stable family that Jeremy will be welcomed into. (9) Uncle and his wife place a premium on education, and will insure that Jeremy receives a top notch education all the way through post-college. (10) Jeremy will learn about his father's heritage by living with Uncle. (11) Uncle is better able to discipline Jeremy. (12) Uncle is better qualified to allow Jeremy to find out the true facts surrounding his parents when the time is right. Until that time Jeremy is less likely to "stumble" upon the fact of his father's murder in China than he would be here in New Jersey. In fact the likelihood of a classmate blurting it out to Jeremy is probably much greater here in New Jersey than in China.
Judge Jorgensen thus entered the order of March 6, 2015, awarding physical and legal custody of Jeremy to the uncle, with transfer of custody to take place prior to July 10, 2015. The order also requires the uncle to "promote frequent communication" between Jeremy and his mother and grandmother and to arrange for him to visit his mother "every 30 months," as well as his grandmother should she remain in the United States, or to arrange for him to visit her in China should she return there and to provide Renaud, the mother and grandmother "with regular updates of the child's educational and medical progress." The order also provides that Renaud shall remain as guardian ad litem.
Jeremy's mother and grandmother moved for reconsideration and a stay of the order in the trial court. Following the denial of those motions, they appealed and sought leave to file an emergent application for stay in this court, which we denied. Defendants were granted emergent relief in the Supreme Court, obtaining a single-justice temporary stay pending our disposition of the emergent motion defendants were permitted to file in this court. We subsequently issued a stay pending appeal on May 22, 2015, and directed that the matter be scheduled on an expedited basis.
That following September, however, Renaud wrote to the trial court in her continuing capacity as the guardian ad litem, to advise of certain alarming developments with regard to Jeremy. She advised the court that those developments caused her to "now wholeheartedly support the transfer of custody to Xiaobing Wang in China." They also convinced her that "Tianle Li is a malevolent individual who will control this situation no matter the cost to her son." Renaud further expressed the view "that whether [grandmother] realizes it or not[,] she is Tianle Li's accomplice in this." In the letter, Renaud also expressed her frustration with her inability to consistently receive information about Jeremy from the Division of Child Protection and Permanency, which, she reported, had become increasingly concerned and involved with his care.
Following receipt of Renaud's letter, Judge Jorgensen issued an "amplification" pursuant to Rule 2:5-1(b), supplementing his March 6, 2015 order and decision. The judge recounted the changing circumstances, including that the Division had opened a case regarding Jeremy, that defendants had resisted the recommendations of the Division and the psychologist Renaud retained to evaluate the child, that Jeremy's school reported him to be disruptive and "out of control" and expressed concern that he faced "imminent and perhaps irreversible" harm should he continue on his current course of conduct.
The uncle moved to supplement the record on appeal with Renaud's letter in October 2015. We denied the motion without prejudice to either party's right to file a motion for "temporary remand for the completion of additional hearings, psychiatric or psychological evaluations, or the like." We granted the uncle's subsequent motion for such a remand, and the trial court conducted another hearing on February 3, 2016, at which Renaud and the grandmother testified.
Renaud began her testimony by recounting the events set out in her September 22, 2015 letter to the court. She testified that after the hearing in February 2015, Jeremy's school reported to Renaud that Jeremy "had been told by his mother that somebody [from] China was taking him away from her. And he was terrified."
The urgency of the situation caused Renaud to abandon her plan for a Chinese speaking therapist for Jeremy and his grandmother. Instead, she promptly engaged a well-regarded English speaking psychologist for Jeremy as well as an interpreter for his grandmother to allow her to participate in the sessions. Renaud also arranged for their transportation to the appointments. She testified the therapy was not successful, however, as the grandmother interfered "with the therapeutic process" and could not understand "how critical it was that it be regular, routine, [and] steady." The therapy sessions, which were to be weekly, occurred only irregularly and Jeremy did not make progress.
Jeremy started first grade at the local public school in September 2015. Shortly thereafter, Renaud met with the Child Study Team, two of whose members had evaluated Jeremy the previous year and determined he needed no services. Those members expressed shock at the change in the child. Renaud testified she also saw a change in Jeremy and that "it was becoming increasingly apparent that the child was in distress."
Renaud also testified that Jeremy had by then begun to regularly run away from his grandmother. She described one occasion when she attended a meeting at the home Jeremy shared with his grandmother in September 2015. Representatives of the Division of Child Protection and Permanency were also present. The meeting was to discuss the decision of the in-home Mandarin-speaking therapist, provided by the Division, to discontinue services because the grandmother was preventing her from talking to Jeremy about "why his mom and dad weren't there and why he was with Grandma." Renaud reported the therapist said she could not "do anything for this child or for this family because at this point, Jeremy is starting to act like a feral animal."
The grandmother left the meeting to meet Jeremy at the bus stop. While she was gone, Jeremy came in through a window. After greeting Renaud and the others warmly and telling them a little of his day, he "went back out the window and took off." His grandmother returned distressed, having not seen him get off the bus and having no idea of where he was. Renaud, the grandmother and the case workers all went out to look for him. Neighborhood children reported they had seen Jeremy riding his bike around the complex. A neighbor approached Renaud, telling her "that this happened every single, solitary day. That . . . Jeremy would take off on his bike and the grandmother would be calling for him."
Renaud relayed in her letter to the court that the bus driver reported to the school that neighbors had advised him Jeremy got off the bus before his stop on the first day of school. The neighbors explained that Jeremy and his grandmother were well known in the neighborhood because Jeremy was often out alone in the complex, and they regularly returned him to his grandmother. The neighbors assured the driver they had done so on the first day of school and informed him of Jeremy's correct stop. When asked about the bus driver at the hearing, Renaud testified "there's something about Jeremy that's really quite special. And he has excited the loving care of probably every human being that's come into contact with him. So the school bus driver watches out for him."
The Division recommended to Renaud that Jeremy be removed from the local elementary school and placed in a program at St. Peters for emotionally disturbed children. Renaud testified she was shocked by the recommendation and wanted instead to have Jeremy again evaluated by a psychiatrist and to enlist the in-home therapist to begin to talk to Jeremy about his parents and help him deal with his emotional problems before concluding that an out-of-home placement was necessary. The grandmother, who Renaud reported was crying and distressed to the point of saying that Jeremy might be better off with his uncle, finally agreed to participate in therapy and to allow the in-home therapist to begin to talk to Jeremy about his parents.
Minutes later, however, the grandmother took a telephone call and proceeded to have a long, loud conversation in Chinese with a woman Renaud presumed, from the length and tenor of the conversation, was Jeremy's mother. When the grandmother returned to the meeting, she denied expressing any doubt about her ability to care for Jeremy and was unwilling to have anyone speak to him about his parents.
Renaud had Jeremy re-evaluated by the psychiatrist, Charles Martinson, who had examined him in 2014. Martinson's 2015 report to her was admitted into evidence with the stipulation that he "has not had the opportunity to interview the uncle or to review a home study made on him and his family."
Dr. Martinson noted that Jeremy's grandmother reported "that Jeremy knows nothing about his father's death, his mother's responsibility for that tragic event or his mother's present incarceration serving a life sentence." Jeremy's school psychologist, however, related "that although Jeremy's grandmother has the impression that Jeremy does not know the circumstances behind his father's and his mother's absence from his home," the school bus driver had reported to the teacher that "other children talk on the bus, which Jeremy rides to and from school, among themselves about Jeremy's father's death and his mother's incarceration" as the events were well publicized at the time and much discussed in the community.
Jeremy's teacher reported that he
is generally interested in his peers but lacks appropriate social skills and his play tends to be parallel rather than cooperative. Jeremy's behavior can be impulsive at times. For example, yesterday he threw a juice box at another student's face. When questioned he said that the student had been unkind to him in the neighborhood. He also impulsively calls out in class and at times seems unaware of how his actions affect others. Other behaviors include running around the room and making unkind remarks to peers. He has been responsive to behavioral intervention since he started school in September, but behavioral issues persist.Martinson met with the school counselor who advised him that Jeremy "often doesn't want to go home at the end of the day" and had recently returned to school after a scheduled early dismissal.
When Martinson met with Jeremy, his grandmother and an interpreter for the evaluation, Jeremy refused to participate, although the child had greeted him cordially. As Jeremy circled the room and hid under a desk, Martinson noticed Jeremy had developed a tic. Noting that when he met with Jeremy the previous year the boy had not been apprehensive about meeting alone with him and had talked freely. Martinson concluded his "presentation on this occasion appeared to represent a form of regression." Although acknowledging that Jeremy satisfied some clinical criteria for Attention Deficit Hyperactivity Disorder, Martinson thought "Jeremy's motor restlessness, impulsivity and task impersistence in the classroom may also be a function of underlying anxiety given the fact" he was no longer living with either of his parents and "the confusion and apprehension that must create" for him.
Martinson recommended that Jeremy's psychotherapist begin the process of informing him of the fate of his parents "in a measured fashion and clinically appropriate way" so he might "understand why they are not present in his life." He believed it "essential . . . that Jeremy begin the process of mourning" the loss of his parents, "especially . . . since there is indication that Jeremy may already be aware of the situation . . . although his grandmother has not permitted Jeremy's therapist to access this awareness, which only further contributes to Jeremy's sense of anxiety and confusion." Believing that "further emotional and behavioral deterioration during the balance of Jeremy's first-grade school year is almost inevitable" in light of the regression the doctor observed in his behavior, Martinson recommended the school district classify Jeremy as emotionally disturbed in order to provide him the necessary school-based services he required.
Acknowledging that a placement outside the grandmother's care could be necessary to insure Jeremy's safety, Martinson nevertheless opined that such a placement "only recapitulates for Jeremy feelings of abandonment and dislocation which he has already experienced in his life." He concluded:
Martinson met with Jeremy and his grandmother three days after the Division of Child Protection and Permanency had temporarily removed him from her care.
I am not confident that Jeremy's grandmother can develop parenting skills sufficient to manage Jeremy in her household, even with [Division] supports. . . . [T]here are many merits to Jeremy's placement in the home of his paternal uncle in China. Sparing Jeremy an extended placement with a foster family of strangers is yet another factor supporting transfer of custody over Jeremy to his uncle, and I recommend this course as serving Jeremy's best interests. Perhaps this placement could be accomplished even pending the present appeal on the issue of custody over Jeremy.
The Division removed Jeremy from his grandmother in mid-October 2015 and placed him with a resource family after an incident in which he slipped away from his grandmother at a supermarket. Renaud reported very favorably regarding her interactions with Jeremy's resource family, noting they were taking him to counseling sessions twice a week and were actively engaged in his therapy.
The Division subsequently determined the allegation that Jeremy was neglected was "not established" pursuant to N.J.A.C. 10:129-7.3(c)3, meaning that although the Division found evidence indicating the child was harmed or placed at some risk of harm, there was not a preponderance of evidence that he had been abused or neglected within the meaning of N.J.S.A. 9:6-8.21c. The Division deemed another report of abuse and neglect made on May 23, 2015, unfounded. The letters advising of those findings, addressed to the grandmother and introduced into evidence by defendants, note that the Division "will be providing further services to Jeremy Wang" and his family.
Renaud reported that following his placement, Jeremy's situation had stabilized, and his behavior had greatly improved. She described the change as "miraculous," saying "this child is not emotionally disturbed. . . . [H]e's been abandoned." Renaud also reported that Jeremy's psychotherapist had begun talking to him about his parents after hearing the talk on the school bus. Renaud related that Jeremy had asked his therapist only that week "for confirmation that his father was absolutely dead." She told the court that when the therapist confirmed his father was dead and expressed her sympathy for his loss, "he then put his head down and said to her, I need you to tell me the whole story. I need you to tell me the whole thing. So she did."
Renaud testified the foster family had not had any problems with Jeremy attempting to run away. She described a day trip to the beach with her family, Jeremy and his foster family. Jeremy rode with her family in their car so he could sit with their dog, but kept asking Renaud's husband to check the rearview mirror to make sure his foster family was still behind them. Renaud observed Jeremy was "a little bit worried about people disappearing." Renaud reported that Jeremy got quite agitated before his visits with his grandmother and that the school had "trouble . . . getting him on the bus to go visit with her." She testified that Jeremy's therapist was helping him work through his feelings for his grandmother, "the lady that he loves and . . . who he lived with and [with whom] he's very, very angry."
Renaud also testified about Jeremy's "fairly regular[]" talk about suicide, explaining the worry in a child that young "is they've been told that . . . their loved one is somewhere else, like in heaven. . . . And so they don't understand that they can't just go visit and then come back." Jeremy's therapist provided his foster mother a technique to use when Jeremy "says he can't get [the thought of suicide] out of his head." She pretends that thought is a "ball of yarn and she's taking the ball of yarn and she's pulling . . . the thought out of his ear and wrapping it up." Jeremy's therapist "will then have a conversation with him about how he feels when . . . he's having these thoughts" and what he could "do to get his mind onto a different topic."
Renaud testified the difficulties Jeremy had encountered since the first hearing had led her to conclude "this child would be far better served to be in the custody of his uncle in China." She offered "that the grandmother, as well-meaning as she is, does not have the temperament, the education, the willingness to make herself understand Jeremy's situation." She explained that the grandmother's unwillingness to tell Jeremy the truth about his parents, against the advice of the professionals, "left this child to grow to an age where it was absolutely apparent to him that something was terribly amiss but he couldn't get any information" as to what it was. He was thus left to learn about his parents "in the worst possible way" through kids on his bus.
When asked on cross-examination whether she had seen the home study report on the uncle, Renaud testified that she was present at a hearing in the Division of Child Protection and Permanency case at which a deputy attorney general represented that the Division had the report and would produce it, but that she had not seen it. When pressed by defendants' counsel as to whether she thought it was "important to see before [making] your final recommendation" as to Jeremy's custody, Renaud responded, "I would love to see it." She also noted that every other party was interested in seeing it but no one had been able to compel the Division to produce it.
The grandmother testified about the incident where Jeremy slipped away from her at the supermarket. She claimed he was not out of her sight for more than a minute or so, but that she could not make the store clerk, who called the police, who then called the Division, understand that as she could not communicate with him. She also claimed that she was cooperative in Jeremy's therapy but that it was harming him by making him sick, resulting in the visible tic and causing her to take him to the doctor. The grandmother claimed that Jeremy was fine until the Division removed him from her care. She explained she felt "heart aching about the situation. So many aspects. His health, his mentality, his school. Everything went downwards. I feel very, very sad. But I have no place or nobody to tell about the situation."
After the grandmother was excused and the testimony concluded, defendants' counsel advised the court that Li had passed her a note "that she would like to represent herself at this time." Judge Jorgensen declined the request, stating he would not allow Li "to pick and choose during the course of a proceeding" whether she wants to be represented or not.
Li had been self-represented at the February 2015 hearing, and had participated in cross-examining witnesses. Subsequent to that hearing, she and her mother appear to have jointly retained new counsel. At the start of the 2016 hearing, that lawyer advised the court in chambers that his representation was being terminated. New counsel immediately stepped in on their behalf. The same counsel is representing both defendants on appeal.
Judge Jorgensen subsequently issued a supplemental decision on February 19, 2016, in which he summarized the testimony adduced at the remand hearing and his findings. He concluded:
The purpose of the February 3, 2016 hearing was to expand the record in this unfortunate case. The Court's prior decision was that it was in Jeremy's best interests that his paternal uncle be granted physical custody of Jeremy, and that the child go to live with that uncle in China. There was nothing presented in the February 3, 2016 proceeding that detracts from that earlier conclusion. In fact, the February 3, 2016 hearing positively reinforced the court's opinion that Jeremy's best interests require him to live with his uncle in China. He was removed from the physical custody of Grandmother on October 15, 2015 and placed with a resource family in Dunellen. He still remains with that family. It appears very unlikely that Jeremy would be returned to the care of his Grandmother. There are several reasons for that conclusion. Grandmother does not have suitable living accommodations for herself, let alone
Jeremy. She has demonstrated an inability to properly supervise Jeremy. Dr. Martinson's report indicates that "[the Division of Child Protection and Permanency] has informed [the school counselor] that it supports the plan to place Jeremy with his paternal uncle in China."
For the reasons initially expounded upon in the March 6, 2015 decision, plus the additional information supplied in the February 3, 2016 hearing, the court concludes that Xiaobing Wang should become the custodian of Jeremy immediately. To refrain from doing so will only serve to negatively impact Jeremy's development.
Renaud testified that she stopped paying the rent on the Plainsboro apartment after Jeremy went to live with a resource family and that the landlord was in the process of evicting the grandmother. Renaud also testified that the government benefits the grandmother received on Jeremy's behalf were now being paid to the resource parents and that the grandmother had few other assets.
Judge Jorgensen issued an order the same date directing that physical custody of Jeremy be transferred to the uncle immediately and otherwise restating the provisions of the March 6, 2015 order. That order has not been implemented on account of our pending stay.
Mother and grandmother appeal, contending the trial court erred in transferring custody of Jeremy to the uncle. In support of that contention, they argue the court erred in ruling that the grandmother does not stand in the mother's shoes, in not requiring the uncle to bear the burden of proof, in being "unduly influenced" by the circumstances of Jeremy's father's death, in failing to "fully explore the emotional trauma and risks of physical trauma of uprooting a six year old child from his grandmother's care and regular contact with his mother to the custody of his uncle in China," in relying on Martinson's report as a basis to transfer custody, by permitting the guardian ad litem's hearsay testimony, by permitting the guardian ad litem to testify as an expert, by failing to properly evaluate the factors of N.J.S.A. 9:2-4c, by failing to consider the lack of supervision and authority of the New Jersey courts, the Division of Child Protection and Permanency and the guardian ad litem over the child if he is removed to China, and in denying defendants' motion for reconsideration. In supplemental pro se briefs, defendants also contend the trial court erred in admitting Renaud's September 22, 2015 letter and Martinson's report, in ignoring the mother's appeal of her conviction, and by ignoring their motion to replace Renaud with a Chinese-speaking attorney as guardian ad litem.
We reject all of these arguments and affirm substantially for the reasons expressed in Judge Jorgensen's thorough and thoughtful written opinions of March 6, 2015 and February 19, 2016. We add only the following.
We agree with the trial court that this case obviously does not fit neatly within the confines of the usual custody case. We are less certain that N.J.S.A. 9:2-5, is applicable here. Jeremy's parents were about to finalize their divorce when his father was killed. There is nothing in the record to indicate whether they were living separate and apart, or what arrangements they had made for Jeremy's care and custody. Nevertheless, no one questions the uncle's standing to seek custody of Jeremy or the court's jurisdiction to decide the issue under N.J.S.A. 9:2-9, which allows "any person interested in the welfare" of the child to institute an action if a parent is "grossly immoral or unfit." N.J.S.A. 9:2-9; see Watkins v. Nelson, 163 N.J. 235, 244 (2000).
That statute provides:
In case of the death of the parent to whom the care and custody of the minor children shall have been awarded by the Superior Court, or in the case of the death of the parent in whose custody the children actually are, when the parents have been living separate and no award as to the custody of such children has been made, the care and custody of such minor children shall not revert to the surviving parent without an order or judgment of the Superior Court to that effect. The Superior Court shall have the right, in an action brought by a guardian ad litem on behalf of the children, to appoint such friend or other suitable person, guardian of such minor children, and shall have the right to remove such guardian, and to appoint a new guardian or guardians, and to make such judgments and orders, from time to time, as the circumstances of the case and the benefit of the children shall require.
[N.J.S.A. 9:2-5.]
We further agree with the trial court that the grandmother does not stand in the shoes of a natural parent in her custody dispute with the uncle. Even if defendants could prove the grandmother had become Jeremy's psychological parent under the test established in V.C. v. M.J.B., 163 N.J. 200, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000), which they made no attempt to do in the trial court, such a finding would not entitle the grandmother to a presumption of custody in her dispute with the uncle. See Tortorice v. Vanartsdalen, 422 N.J. Super. 242, 251 (App. Div. 2011) (holding that a psychological parent in a dispute with another third party does not gain the presumption of parental autonomy ceded by the natural parent), certif. denied, 209 N.J. 233 (2012).
We further see no reason to presume custody in the grandmother by virtue of Jeremy's mother having transferred custody of Jeremy to her, apparently without notice to the uncle. At the time of that transfer, Li was in jail on a charge of having murdered the child's father and defending against a Title Nine action. Standing in Li's shoes in those circumstances should not accord the grandmother any superior rights in this action.
Nor do we agree with defendants that the uncle, because he sought "to change the status quo" had the burden of proving that Jeremy would not suffer serious psychological harm from such a move. As with defendants' argument that the grandmother should enjoy a presumption of custody, which we reject, this argument likewise necessarily rests on the assumption that the grandmother had become Jeremy's psychological parent. See Sorentino v. Family & Children's Soc'y, 72 N.J. 127, 133 (1976). Defendants made no attempt to prove that was the case, which likely would have required expert testimony in any event. See V.C., supra, 163 N.J. at 226-27 (noting proof of the "actuality and strength of the parent-child bond" will generally require expert testimony). The argument also overlooks that at the time of the remand hearing, the "status quo" had already been altered some months before by the Division of Child Protection and Permanency having removed Jeremy from his grandmother and placed him in a resource home.
In our view, because the grandmother and the uncle were both third parties seeking custody of Jeremy, neither enjoyed any presumption of custody, and the trial court was correct that its polestar was the best interests of this unfortunate child. See Watkins, supra, 163 N.J. at 253 (noting "it is the relationship of the child to the person seeking custody that determines the standard to be used in deciding the custody dispute"); N.J.S.A. 9:2-4a (providing that "[n]otwithstanding any other provisions of law to the contrary, in any action concerning children undertaken by . . . a . . . court of law, . . . the best interests of the child shall be a primary consideration").
Our review of the record makes us confident the trial judge conscientiously kept that guiding principle of Jeremy's best interests firmly in mind in applying the governing law to the facts of this difficult case. "Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
Defendants have certainly given us no reason to do so here. To say that this was a difficult case is an understatement. As the guardian ad litem testified at the first hearing, and as the court's careful findings obviously reflect, there were drawbacks to placing Jeremy with either his grandmother or his uncle. The obvious drawback to placing Jeremy with his uncle was moving the boy to China. Doing so would uproot him severely, thrusting him into a very different culture where he might always be an outsider owing to his United States citizenship and removing him from the protection and auspices of American courts. But the uncle also offered Jeremy opportunity his grandmother could not provide him here. Placing Jeremy with his uncle would allow the boy to become part of a loving family, with parents already raising a boy just a few years older than he, whom they were preparing for college in this country.
Jeremy's grandmother, on the other hand, offered the boy the stability of continued life in the culture to which he was born. But the drawbacks to placing Jeremy with his grandmother were also obvious at the time of the first hearing. There was clearly no question in the judge's mind the grandmother loved Jeremy, but he was already becoming difficult for her to manage, with signs the problem might worsen. Further, Jeremy's grandmother was as much a stranger to this culture as Jeremy would be in China, without the benefit of his age and fluency in the language. Her inability to speak or learn English, her advanced age for taking on the responsibility of a young child and her inability to drive severely hampered her in assisting Jeremy to take advantage of many of the benefits to be gained by remaining in New Jersey.
But even more to the point, the long delay occasioned by our stay of the March 6, 2015 judgment proved the trial judge prescient in his concerns regarding the harm that could befall Jeremy if he continued in his grandmother's care. The judge's concern about the effect of the grandmother's inability to discipline Jeremy, to stand up to his mother and to protect him from the harm of inadvertently learning the truth about his parents from schoolmates, were all realized before the remand hearing, to Jeremy's great detriment.
We reject defendants' claims that the court was "unduly influenced" by the circumstances of Jeremy's father's death, failed to "fully explore the emotional trauma and risks of physical trauma of uprooting a six-year-old child from his grandmother's care and regular contact with his mother to the custody of his uncle in China," or to consider the State's lack of supervision and authority over the child should he go to live with his uncle. Our review of the record and the court's thorough and thoughtful opinions convinces us otherwise. Particularly as it relates to Jeremy's mother, the record reveals the judge was far more influenced by the testimony regarding her interactions with Jeremy and the effect of her interactions with his grandmother than that she had been convicted by a jury of killing his father.
Defendants' arguments as to the court's reliance on Dr. Martinson's report as a basis to transfer custody, and error in permitting hearsay and opinion testimony by Renaud require no extended discussion. The trial judge had already made his determination to transfer custody to the uncle before seeing Martinson's recommendation made many months later. And while the judge obviously took note that Martinson had endorsed the court's decision as to custody, it was clearly the alarming events subsequent to the initial hearing and the grandmother's obvious inability to supervise Jeremy and make independent decisions in his best interests, more than Martinson's report, that "reinforced" the judge's belief in the soundness of that initial decision.
As to Renaud, like the trial court, we are thoroughly convinced that the guardian ad litem conscientiously undertook her court-appointed duties as an "independent fact finder, investigator and evaluator as to what furthers the best interests of the child," In re M.R., 135 N.J. 155, 173 (1994) (citation omitted), and performed them competently and compassionately in her view of Jeremy's best interests. She was subject to cross-examination and defendants were provided the opportunity to clarify, refute or supplement her testimony. See R. 5:8B(a); Fawzy v. Fawzy, 199 N.J. 456, 484 (2009); Milne v. Goldenberg, 428 N.J. Super. 184, 200-01 (App. Div. 2012). That they did not do so reflects no error on the judge's part.
Defendants' remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm the orders of March 6, 2015 and February 19, 2016 vesting custody of Jeremy in his uncle.
We cannot help, however, but be mindful of the long delay in the resolution of this dispute and its obvious untoward consequences to this eight-year-old boy. While we understand that the Division of Child Protection and Permanency was never made a party to this litigation, and may have been understandably reluctant to become involved after entry of the final judgment in March 2015, its absence now causes some difficulties.
First is the failure of the parties to obtain an order compelling the Division to produce the report of the home study of the uncle. That report was obviously relevant to this action and should have been made available to the parties and reviewed by the court prior to the entry of any final decision. Second, it is presumably the Division which now has legal and physical custody of Jeremy, following its removal of him from his grandmother in October 2015 and his placement in an approved resource home. Jeremy has now been in the care of his resource parents for over fourteen months. The Division accordingly must participate in the process of effecting the transfer of custody we affirm in this opinion.
We appreciate that removing Jeremy from his resource parents at this point could cause him additional trauma if not done with care and sensitivity to his needs. The guardian ad litem testified at the remand hearing that she had considered providing funds from Jeremy's assets to allow the resource parents to travel with Jeremy to China as he makes the journey to become part of his uncle's family. Such may well be appropriate, and the guardian ad litem's concern for Jeremy's continued well-being appears emblematic of her efforts on his behalf, but it is not for us to manage Jeremy's transition to his new family.
Instead, we remand this matter to the trial court to oversee that transition as it deems fit, taking into account Jeremy's needs and school schedule and the needs and desires of the uncle's family as well. The court is to require the Division's participation in the process and to secure a copy of the home study the Division conducted of the uncle and his family, with distribution limited to the parties or their counsel as the court deems appropriate. Although we understand the report is now over five years old, should anything in it cause the court to reconsider its earlier decision to vest custody of Jeremy in his uncle, it is free to reconsider the decision on the basis of such new information.
Affirmed and remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION