RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1484-19

NEW JERSEY DIVISION

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

D.L.,

Defendant,

and

M.D.,

Defendant-Appellant,

________________________

IN THE MATTER OF J.L., 

a minor.

________________________

Submitted March 10, 2021 – Decided April 13, 2021

Before Judges Sumners and Geiger.

NOT FOR PUBLICATION WITHOUT THE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.
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A-1484-19

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Warren County, 

Docket No. FN-21-0188-19.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robyn A. Veasey, Deputy Public Defender, 

of counsel; Christine Olexa Saignor, Designated 

Counsel, on the briefs.)

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jane C. Schuster, Assistant Attorney 

General, of counsel; Lea C. Deguilo, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor (Meredith Alexis Pollock, Deputy 

Public Defender, of counsel; Rachel E. Seidman, 

Assistant Deputy Public Defender, of counsel and on 

the brief).

PER CURIAM

Defendant M.D.1appeals from a July 10, 2019 Family Part child 

protection multipurpose order that: (1) awarded joint legal custody of J.L. to 

M.D. and defendant D.L.; (2) awarded physical custody of J.L. to D.L. during 

the pendency of the action; (3) awarded supervised visitation to M.D.; and (4) 

imposed certain requirements on M.D. He also appeals from an October 25, 

2019 order that: (1) terminated the Title 30 litigation; (2) continued physical 

1 We refer to the parties and minor child by initials to preserve their 

confidentiality. R. 1:38-3(d)(12).
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custody of J.L. with D.L., with oversight by Maryland Child Welfare Services; 

(3) continued supervised parenting time by M.D.; and (4) awarded M.D. liberal 

and unsupervised telephonic contact with J.L. For the following reasons, we 

affirm. 

I.

We derive the following facts from the record. This family became known 

to the New Jersey Division of Child Protection and Permanency (the Division)

in 2009. Since then, the Division has received eleven Child Protective Service 

referrals, which "involved allegations of substance abuse, alcohol abuse, sexual 

abuse, inadequate supervision, domestic violence, mental health concerns, and 

neglect." After investigation, the Division determined that seven of the eleven 

referrals were unfounded, two were not established, and one was established. 

The latest referral is the subject of this appeal. 

J.L., who was born on October 6, 2012, is the son of M.D. and D.L. In 

October 2013, as part of a non-divorce application for custody, genetic testing 

revealed that M.D. was J.L.'s father. In November 2013, following mediation, 

M.D. and D.L. reached a custody and parenting time agreement under which 

D.L. would have physical custody of J.L. and M.D. would have alternate 

weekend parenting time. 
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A September 16, 2014 consent order awarded joint legal custody of J.L.

to M.D., D.L., and E.L., J.L.'s maternal grandmother. Thereafter, J.L. was 

placed in the sole physical custody of E.L. because both M.D. and D.L. were 

unable to care for J.L. at the time. Although J.L. resided with his grandmother, 

M.D. continued to have alternate week parenting time, and J.L. exercised liberal 

parenting time. 

In January 2015, M.D. sought physical custody of J.L. The court denied 

his application, determining it was non-emergent. On April 7, 2015, with D.L.'s 

consent, the court entered an order awarding M.D. physical custody of J.L. and 

joint legal custody of J.L. to both parents. 

On May 27, 2016, M.D. was arrested for making terroristic threats to shoot 

store employees after attempting to cash a money order. On June 7, 2016, a 

neighbor reported that J.L., then three-years of age, was outside of the house 

alone. When the police responded, they found J.L. standing in the road wearing 

a soiled diaper and M.D. highly intoxicated inside his home. Upon entering 

M.D.'s home, a police officer observed dirty diapers in the living room and live 

maggots on a bottle of baby lotion and inside a jar of peanuts in the kitchen. 

After instructing M.D. to find a relative to care for J.L., police located M.D.'s 

mother to care for J.L. for the night. M.D. was arrested for child endangerment. 
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The following day, the Division received a referral regarding the incident 

and opened a case. M.D. attended a substance-abuse evaluation and agreed to 

attend outpatient treatment to address his mental health disorders and substance 

abuse. On June 30, 2017, the Division closed the case after determining J.L.

was no longer at risk. 

On February 19, 2019, police responded to M.D.'s home for a welfare 

check after M.D. posted violent and suicidal statements on Facebook. When the 

officer approached M.D., he started crying and police detected a strong odor of 

alcohol. M.D. informed the police that he had taken three pills of Depakote, 

which M.D. had been prescribed. M.D. was transported to the hospital for a 

mental health evaluation. M.D. tested positive for marijuana and alcohol. 

On February 25, 2019, the Division received a referral concerning M.D.'s 

statements about committing suicide with a knife while J.L. was in the home 

under M.D.'s care. The Division initiated an investigation the same day, and 

M.D. acknowledged that he made suicidal statements on social media. M.D.

was unaware J.L. saw him hold a knife to his own throat. 

During the Division's assessment, M.D. revealed that he was diagnosed 

with bipolar disorder, depression, and attention deficit hyperactivity disorder. 

He further informed the Division caseworker that he recently began individual 
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therapy at Kwenyan and Associates and was registered at Easter Seals. In 

response, the Division developed a plan for M.D. to continue addressing his 

mental-health needs through individual counseling and Easter Seals. 

Ultimately, the Division determined J.L. was safe at the time of the assessment 

but expressed concerns that needed to be addressed to keep J.L. safe while under 

M.D.'s care. 

On March 19, 2019, the Division initiated an action under Title 302for 

care and supervision of J.L. (the Title 30 case or litigation) after receiving a 

referral that J.L. saw M.D. attempt suicide. The Division's investigation 

revealed that M.D had been struggling with untreated mental health disorders 

and substance abuse and that M.D. had prior incidents of consuming alcohol 

while taking his psychotropic medications. Although the Division attempted to 

assist M.D. after its February visit, he refused to cooperate or accept services. 

On March 27, 2019, the court granted the Division care and supervision 

of J.L. because it was necessary to "stabilize the father and son so they [could] 

continue to live together." However, J.L. remained in M.D.'s physical custody. 

2

 Although the Division sought care and supervision of J.L. under Title 30, the 

case was assigned an FN docket number. References in the record and this 

opinion to the FN case refer to the Title 30 action. 
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During the hearing, the court found that M.D., who was struggling with 

substance abuse and mental health issues, was the sole caretaker for J.L., a 

special-needs child diagnosed with autism. M.D. had failed to take his 

prescribed psychotropic medications, and J.L.'s school expressed concerns about 

J.L.'s behavior. The court ordered M.D. to attend individual therapy and 

psychiatric care, submit to urine screenings, and comply with the Easter Seals

program. The court further ordered that J.L. attend a special-needs assessment, 

psychiatric evaluation, and play therapy. The Division provided no notice to 

D.L. because it was unable to locate her. 

On April 10, 2019, the court held a hearing on the return date of an order 

to show cause. M.D. was represented by counsel and appeared for the hearing 

via telephone, but D.L. did not appear because she still had not been located by 

the Division. The court continued physical custody of J.L. with M.D. and 

granted the Division continued care and supervision of J.L. It ordered M.D. to 

undergo psychiatric and substance-abuse evaluations, submit to at least two drug 

screens per month, comply with the Easter Seals program, ensure J.L.'s 

attendance at school, and to advise the Division of D.L.'s whereabouts or her 

contact information. The court also ordered J.L. to undergo a psychiatric 
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evaluation and participate in individual and play therapy through Kwenyan and 

Associates. 

On June 27, 2019, the Division reported that M.D. failed to maintain 

consistent contact with mental health service providers and continued to test 

positive for marijuana but negative for his prescribed medications. As a result 

of his claimed inability to attend his scheduled appointments, M.D. had received

inconsistent mental health treatment. The report further revealed that on June 

18, 2019, M.D. was arrested because he ran after a vehicle with a machete and 

threw a bottle at the vehicle. M.D. was charged with aggravated assault with a 

deadly weapon, bias crime with purpose to intimidate, disorderly conduct, and 

threatening violence. While M.D. remained in custody, M.D.'s mother and a 

family friend took care of J.L. 

The Division further reported that M.D. knew of D.L.'s whereabouts and 

her contact information but had failed to inform the Division. On June 24, 2019, 

D.L. unexpectedly arrived at the Division's office after learning of M.D.'s recent 

arrest for aggravated assault. She informed the Division that she spoke to M.D.

frequently and that he was "aware of her telephone number and whereabouts all 

along." D.L. showed evidence of their communications to a Division worker. 

She had been unaware of the Division's involvement with J.L. and traveled to 
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New Jersey to take him back to Maryland where she lived with her two other 

children and her mother. On the same day, the Division served D.L. with a 

verified complaint for care and supervision. 

On June 25, 2019, D.L. filed an emergent application for physical custody 

of J.L. The court denied DL.'s application for lack of emergency but directed 

her to file a proper application under the Non-Dissolution (FD) docket. That 

same day, M.D. was released from jail. The Division instituted a safety 

protection plan whereby M.D.'s parenting time would be supervised. 

On July 10, 2019, the court held a Title 30 summary hearing and also 

heard D.L.'s FD application for physical custody of J.L. Both M.D. and D.L.

appeared and were represented by counsel. During the hearing, the court 

admitted the June 27, 2019 Division report into evidence but excluded police 

reports with embedded hearsay. 

First, the court addressed the issue of physical custody. M.D. objected to 

transferring custody of J.L. to D.L. and argued that he was back on his 

psychotropic medications and attending counseling. D.L. represented that she 

was prepared to take custody of J.L., that she was ready to put services in place 

for her son, and that she had contacted social services in Maryland. D.L.

informed the court that she would permit M.D. to communicate with J.L. and 
10 A-1484-19

that her mother and M.D.'s mother could supervise his contact with J.L. The 

Division supported D.L.'s custody application and reported that Maryland Social 

Services checked D.L.'s home and found no concerns. 

The court awarded physical custody of J.L. to D.L. and continued the Title 

30 case because M.D. still needed services to address his mental health and 

substance abuse issues. The court explained that M.D.'s mental health issues

were "of paramount concern" as he had "expressed suicidal ideations and made 

posts on . . . social media" depicting himself with a knife on his throat and saying 

"he was going to kill himself." In addition, the court described M.D.'s lack of 

candor with the court, noting he had failed to disclose D.L.'s whereabouts, 

falsely reported that he did not know where she was, and said she had basically 

abandoned J.L. The court found M.D.'s actions revealed he was "only looking 

out for himself, his own interests, not the interests of his six-year-old autistic 

son." The court expressed concern about M.D.'s "mental stability, lack of candor 

to the [c]ourt," and "his ability to take care of [J.L.] on his own." 

The court made the following additional findings: 

[M.D.] made suicidal posts on social media. He was 

also found to be in possession of marijuana and his 

blood alcohol content was .253 at one point, and [M.D.] 

was not taking his psychotropic medications as 

prescribed. I'm not quite sure what he was doing with 

his psychotropic medications because he kept telling 
11 A-1484-19

. . . the doctor, "I need more medication, I need more 

medication," but he didn't test positive for any of his 

medication and he clearly wasn't taking his 

psychotropic medications. So that is a concern to this 

[c]ourt. 

[J.L.] is a child who has autism and ADHD. He is only 

six years old. 

[M.D.], again, has been inconsistent with his . . . mental 

health regimen and therapy, not taking his psychotropic 

medications, and, most recently, on June 18th, 2019, he 

was arrested and charged with aggravated assault with 

a deadly weapon, bias crime[] with purpose to 

intimidate, and disorderly conduct.

. . . .

Apparently, he was in the middle of the street. He was 

wearing all black. Somebody honked at him because 

he was in the middle of the street. He turned around. 

They exchanged words between [M.D.] and the driver. 

Perhaps there were some threats made. [M.D.] then 

escalated . . . the conflict by going into his house, 

grabbing . . . a machete, and wielding it at the driver. 

The police were called and rather than de-escalating, he 

took a glass bottle and threw it at the vehicle. 

. . . .

This pattern, however, of criminal conduct, lack of 

control and his mental health is of grave concern to me 

as he is unable to take care of himself and his 

impulsivity indicates that he is clearly not in a stable 

mental state. 
12 A-1484-19

The court explained that the Division investigated D.L.'s ability to care 

for J.L. through social services in Maryland and determined that she was 

prepared to take care of J.L. The court noted that D.L. had an ongoing 

relationship with J.L. despite M.D.'s misrepresentations to the court that she

abandoned her son. D.L. drove from Maryland to New Jersey and filed an 

emergency application for custody as soon as she found out about the open Title 

30 case. The court explained that it initially denied her application because there 

was no emergency but indicated that she could file a proper application for 

custody, which she ultimately did under an FD docket. 

After considering the facts, including the April 2015 joint custody order, 

the fact that D.L. lived in Maryland with her two other children, and that she 

was willing and able to take care of J.L., the court granted D.L. temporary 

physical custody because it was in J.L.'s "best interest." The court found that 

M.D. was "unable to take care of himself, let alone a six-year-old autistic child." 

Under the FN docket, the court entered a July 10, 2019 order detailing that J.L.

would "continue under the care and supervision of the Division" but D.L. would 

retain physical custody of J.L. 

The court then addressed the services portion of the Title 30 matter, 

explaining that M.D.'s drug screenings revealed the use of marijuana and that he 
13 A-1484-19

had not been taking his prescribed medications. The court found that 

particularly concerning since M.D. had been prescribed various medications. 

The court further noted that M.D. was inconsistent with counseling and declined 

services through Easter Seals. The court found that he refused to comply with 

court orders and failed to take care of himself. The court ordered M.D. to 

maintain stable housing and submit to random drugs screens, as well as 

psychological, substance abuse, and psychiatric evaluations. The order awarded 

supervised parenting time because of M.D.'s untreated mental-health and 

substance-abuse issues. 

In response to objections raised by M.D.'s counsel, the court explained 

that it relied upon N.J. Div. of Child Prot. & Permanency v. S.D., 453 N.J. Super. 

511, 514 (App. Div. 2018), which held that an FD application and FN case may 

be heard together because of their intertwined nature. The court stated it had 

"considered all the evidence under both cases to make its determination." 

The court concluded the hearing by continuing the Title 30 litigation 

because it was clear that M.D. still needed services to address his mental health 

and substance abuse issues. Accordingly, the court entered an order stating that 

it determined, by a preponderance of evidence, that J.L. required care and 

supervision by the Division and that M.D. and D.L. were unable to adequately 
14 A-1484-19

care for the child. The court determined that continued services under Title 30 

were needed to address M.D.'s mental health and substance abuse to ensure J.L.'s 

health and safety. 

On September 25, 2019, the Title 30 case returned to court for compliance 

review. M.D. failed to appear even though he was represented by counsel. D.L.

appeared telephonically and was represented by counsel. A September 12, 2019 

Division report was admitted into evidence. 

The Division requested dismissal of the Title 30 litigation because J.L.

relocated to Maryland to live with his mother at his grandmother's house and 

had been receiving assistance from Maryland Child Protective Services. The 

Division noted that D.L.'s mother had been very attentive to J.L.'s needs. D.L. 

supported the Division's request to terminate the Title 30 litigation, arguing that 

M.D.'s failure to appear indicated that he was not interested in regaining custody 

of J.L. M.D.'s attorney asked the court to keep the Title 30 case open to afford

M.D. additional time for rehabilitation and to preserve his right to a best-interest 

hearing. 

The court denied the Division's application to terminate the Title 30

litigation and explained that the case would remain open for a short period to 

provide M.D. with the opportunity to re-engage in services and to request the 
15 A-1484-19

transfer of custody. Consistent with its rulings, the court entered a September 

25, 2019 order allowing J.L. to "continue under the care and supervision of the 

Division" and remain in D.L.'s physical custody. 

On October 15, 2019, the court held a plenary best-interests hearing and 

case management conference. Only M.D. testified at the hearing. The Division 

again sought dismissal of the Title 30 litigation. The court admitted the 

Division's October 11, 2019 report into evidence after excluding certain 

imbedded hearsay statements. 

The Division explained that J.L. continued living with his maternal 

grandmother in Maryland and Maryland Child Protective Services continued 

assisting him. J.L. was enrolled in school and was covered by medical 

insurance. The Division asserted that M.D. failed to maintain consistent contact 

with the Division and failed to attend his first appointment at Freedom House. 

Although he attempted to re-engage with Easter Seals, his caseworker informed 

the Division that his participation and communication were minimal. 

M.D. did not request that custody be immediately returned to him. His 

counsel explained that M.D. "had been engaged in therapeutic services" but

"obviously" could not yet make that request. 
16 A-1484-19

The court noted the Title 30 case "had been open for 210 days" and that 

M.D. had "not engaged in the services recommended." The court explained that 

M.D. completed psychological, psychiatric, and substance abuse evaluations but 

had failed to follow through with subsequent treatment. 

The court issued an October 28, 2019 written decision denying M.D.

physical custody of the of J.L. and terminating the Title 30 litigation. It

determined that despite D.L.'s unstable housing, it was in J.L.'s best interests to 

remain in his mother's physical custody where he received assistance from both 

his maternal grandmother and Maryland Child Welfare Services. M.D. and D.L. 

continued to share joint legal custody of J.L. in the companion FD action. 

The judge found M.D.'s testimony not credible. She observed that M.D.

"made poor eye contact throughout his testimony, especially when asked about 

compliance with medical appointments and administration of psychotropic 

medications for himself and [J.L.] He looked down at his hands and let his voice 

trail off, giving the impression that not even [he] believed his own words." The 

judge noted that M.D. "skated around critical questions regarding compliance 

with court orders." For example, when questioned "about his attendance at 

counseling appointments between March 2019 and July 2019, [M.D.] testified 

he and [J.L.] attended 'as often as allowed.' [M.D.] blamed transportation as a 
17 A-1484-19

barrier to attendance, even though he acknowledged Kwenyan and Associates 

provided free transportation." 

The judge also found M.D.'s negative remarks about Easter Seals 

untrustworthy since his testimony was directly contradicted by a report from 

Easter Seals, which revealed that M.D.'s participation and communication were

minimal. Similarly, the judge found M.D.'s description of D.L. as a drug addict 

with a poor work history, to be highly suspect. The judge also concluded that 

M.D.'s claim that D.L. abandoned J.L. when he was nine months old was belied 

by previous custody orders. 

Lastly, the court noted that M.D.'s "memory was faulty and he was not 

able to remember accurately important dates," including events that occurred 

just a few days before the hearing. The court concluded that M.D.'s "lack of eye 

contact, evasion of straightforward questions, and inaccurate recollection of 

recent events" revealed that he "was not a reliable historian." 

"Based on the evidence adduced at the plenary hearing," the judge

concluded it was in J.L.'s best interests to remain in D.L.'s physical custody, 

"with oversight by Maryland Child Welfare Services." The judge reasoned: 

The court considered the credible testimony adduced at 

trial and finds that [M.D.] has not demonstrated 

changed circumstances to warrant a return of physical 

custody. A few days before the best interests hearing 
18 A-1484-19

[M.D.] re-engaged in substance abuse treatment at 

Freedom House. He has yet to show consistent 

attendance and commitment to sobriety. [M.D.] has not 

re-engaged with Kwenyan and Associates for 

individual therapy. And regarding medication 

monitoring, he attended a psychiatric appointment the 

day before the best interests hearing and received 

prescriptions for psychotropic medications, which 

prescriptions he has yet to fill. . . . [M.D.] has not 

scratched the surface to address and ameliorate the 

concerns that led to the commencement of the [Title 30]

litigation. By his own admission, [M.D.] remains 

addicted to illicit substances, and he has not engaged in 

individual counseling or psychotropic medication 

management to address his mental health disorder.

Because of [M.D's] failure to prove changed 

circumstances, his application to return [J.L.] to his 

physical custody is denied. It is not necessary to engage 

in a best interests analysis under N.J.S.A 9:2-4; 

however, [D.L.] wishes to remain in Maryland with 

[J.L.] and the Division seeks to terminate the [Title 30]

litigation in New Jersey. Because the court transferred 

custody of [J.L.] to [D.L.] in Maryland, the court is 

constrained to engage in a best interests analysis under 

Bisbing v. Bisbing, 230 N.J. 309 (2017) before closing 

this case.

The judge then considered the factors enumerated in N.J.S.A. 9:2-4.3 The court 

found that only factor eight favored custody with M.D., whereas factors three, 

3

 N.J.S.A. 9:2-4 enumerates the following factors to be consider by 

the trial court in making an award of custody:
19 A-1484-19

seven, and ten favored D.L. The judge found that factors one, two, and twelve 

were in equipoise, and factors four, five, six, nine, eleven, thirteen, and fourteen 

were inapplicable. 

The court found factor three weighed in favor of D.L. because granting 

her custody would reunite J.L. with his half-siblings. The court noted, however, 

that J.L. has a strong relationship with both parents. 

the parents' ability to agree, communicate and 

cooperate in matters relating to the child [(factor one)]; 

the parents' willingness to accept custody and any 

history of unwillingness to allow parenting time not 

based on substantiated abuse [(factor two)]; the 

interaction and relationship of the child with its parents 

and siblings [(factor three)]; the history of domestic 

violence, if any [(factor four)]; the safety of the child 

and the safety of either parent from physical abuse by 

the other parent [(factor five)]; the preference of the 

child when of sufficient age and capacity to reason so 

as to form an intelligent decision [(factor six)]; the 

needs of the child [(factor seven)]; the stability of the 

home environment offered [(factor eight)]; the quality 

and continuity of the child's education [(factor nine)]; 

the fitness of the parents [(factor ten)]; the geographical 

proximity of the parents' homes [(factor eleven)]; the 

extent and quality of the time spent with the child prior 

to or subsequent to the separation [(factor twelve)]; the 

parents' employment responsibilities [(factor thirteen)]; 

and the age and number of the children [(factor 

fourteen)]. A parent shall not be deemed unfit unless 

the parents' conduct has a substantial adverse effect on 

the child.
20 A-1484-19

The court found factor seven weighed in favor of D.L. because there were 

no concerns with medical care for J.L. in Maryland. Given J.L.'s autism and 

behavioral needs, the Division became concerned about M.D.'s ability to care 

for him and to regularly attend his medical appointments. In contrast, after J.L. 

relocated to Maryland, he was enrolled in school, obtained medical insurance 

coverage, and began receiving services through Maryland Child Welfare 

Services. 

The judge found that factor ten weighed heavily in D.L.'s favor because 

M.D. "has demonstrated that he is unable to care for himself." She court found 

M.D. "ha[d] not been attending mental health appointments with regularity" and 

that "he ha[d] not filled the prescriptions necessary to stabilize his mental 

health." The judge noted that M.D. had only obtained prescribed medications 

the day before the best interests hearing. She explained that there was "no 

evidence that" M.D. had been "taking his medications as directed" and

emphasized the problematic nature of M.D.'s insistence on continued marijuana 

use. Moreover, even though M.D. had completed an intake appointment at 

Freedom House and was recommended for intensive outpatient treatment, he 

never engaged in that treatment. 
21 A-1484-19

The judge factor eight weighed in favor of M.D. Although M.D.

represented that he was current with his rent payments, he told the Division that 

his house was under construction and messy when a caseworker attempted to 

conduct a home inspection. The judge did not give significant weight to this 

factor because it was unable to confirm the condition of M.D.'s home. She noted 

that a recent incident between D.L. and her mother caused D.L. to move out of 

her mother's house where D.L. had resided with her two other children. Because 

of D.L.'s housing instability at the time, the judge found factor eight weighed 

slightly in M.D.'s favor. 

The judge found factor one in equipoise because "the parties have been 

unable to communicate and cooperate about matters relating to [J.L.]." She

found M.D.'s representations about D.L. to be false. While M.D. testified that 

his communications with D.L. were strained, he spoke with J.L. weekly. The 

judge found that M.D. had failed to inform D.L. about J.L. since he received 

physical custody in April 2015. It was "only when [M.D.] was incarcerated that 

[D.L.] was informed about [J.L.'s] status." 

As to factor two, the judge found "[b]oth parties appear[ed] equally 

willing to accept custody of [J.L.]." She explained that D.L. had sole legal 

custody of J.L. for the first two years of his life and that M.D. had physical 
22 A-1484-19

custody of J.L. from April 7, 2015 until July 10, 2019. As soon as D.L. learned 

of M.D.'s incarceration, she drove to New Jersey and sought physical custody. 

The judge found factor twelve in equipoise because both parents spent 

time with J.L., with D.L. raising him in his early years and M.D. raising him in 

his later years. 

The judge found factor four inapplicable because there was no evidence 

of any history of domestic violence between the parents. Similarly, she found 

factor five inapplicable because there was no evidence of physical abuse. The 

judge found factor six inapplicable because J.L. was "not capable of expressing 

his preferences." She gave little weight to M.D.'s hearsay testimony that J.L.

wished to reside with him. 

The judge found factor nine inapplicable because it was unable to properly 

assess this factor given the lack of credible testimony concerning the quality of 

the schools attended in New Jersey or Maryland. She also found factor eleven 

inapplicable despite the distance the parents lived apart because the biological 

grandmothers were able to arrange visitations and M.D. spoke to J.L. every 

week. The judge found factor thirteen inapplicable because of the lack of 

evidence concerning the employment of either parent. She factor fourteen 

inapplicable because the parties had no other children together. 
23 A-1484-19

The judge noted that D.L.'s unstable housing remained a concern but 

explained that she arranged for J.L. to reside with her mother, who has been a 

stable support system throughout his life. While D.L. had not shown she was 

able to independently care for J.L., the judge concluded that it was in J.L.'s best 

interests for physical custody to remain with D.L. in Maryland so long as she 

received assistance from her mother. She advised that the custody factors may 

need to be reassessed if D.L. removes J.L. from his grandmother's house. 

In addition, the judge explained that M.D.'s parenting time would remain 

supervised by either grandmother because of his untreated mental health 

disorders and substance abuse. She noted that the parties would arrange 

parenting time and that telephone communications between M.D. and J.L. would 

remain liberal and unsupervised. 

Lastly, the judge dismissed the Title 30 litigation, determining there were 

no grounds to keep the case open since J.L. was no longer receiving services 

through the Division in New Jersey, and M.D. had not availed himself of the 

services offered by the Division. Consistent with her decision, the judge entered 

an October 29, 2018 order terminating the Title 30 litigation. This appeal 

followed. 

M.D. raises the following points for our consideration:
24 A-1484-19

I. THE TRIAL COURT’S JULY 10, 2019 DECISION 

TO TRANSFER CUSTODY TO THE MOTHER, D.L., 

WAS ERRONEOUS BECAUSE THE FATHER, M.D., 

WAS ONLY BRIEFLY UNAVAILABLE TO CARE 

FOR HIS CHILD, THERE IS NO EVIDENCE IN THE 

RECORD THAT THE CAREGIVER WITH WHOM 

THE CHILD WAS LEFT DURING M.D.’S 

UNAVAILABILITY WAS NOT COMPETENT TO 

PERFORM THAT TASK, AND BECAUSE M.D. HAS 

NEVER HAD A FINDING OF ABUSE OR NEGLECT 

ENTERED AGAINST HIM. 

II. THE TRIAL COURT’S JULY 10, 2019 DECISION 

TO TRANSFER CUSTODY TO THE MOTHER, D.L., 

WAS ERRONEOUS BECAUSE THE TRIAL COURT 

FAILED TO APPLY THE PROPER LEGAL 

STANDARD TO ITS DETERMINATION OF D.L.’S 

APPLICATION FOR TRANSFER OF CUSTODY. 

III. THE OCTOBER 15, 2019 BEST INTERESTS 

HEARING WAS IMPROPERLY PREMATURE AND 

INCOMPLETE AND THUS DENIED THE FATHER, 

M.D., HIS DUE PROCESS RIGHTS AS RELATED 

TO HIS CONSTITUTIONAL RIGHT TO THE CARE 

AND CUSTODY OF HIS CHILD. 

IV. THE TRIAL COURT’S OCTOBER 29, 2019 

DECISION TO DENY M.D.’S APPLICATION FOR 

THE RETURN OF HIS CHILD TO HIS CARE WAS 

NOT SUPPORTED BY THE EVIDENCE 

CONTAINED IN THE RECORD BELOW. 

V. THE TRIAL COURT’S OCTOBER 29, 2019 

DECISION TO PREMATURELY DISMISS THE FN 

LITIGATION AMOUNTS TO A DENIAL OF DUE 

PROCESS BECAUSE M.D. WAS NOT AFFORDED 

A REASONABLE OPPORTUNITY TO ENGAGE IN 

SERVICES TO WHICH HE IS LEGALLY ENTITLED 
25 A-1484-19

AND WAS LEFT WITH NO PRACTICABLE LEGAL 

RECOURSE TO EXERCISE AND ENFORCE HIS 

LEGAL CUSTODY AND VISITATION RIGHTS. 

II.

We are guided by well-established principles of review. "[W]e accord 

great deference to discretionary decisions of Family Part judges[,]" Milne v. 

Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Donnelly v. 

Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)), in recognition of the 

"family courts' special jurisdiction and expertise in family matters," N.J. Div. of 

Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. 

Cesare, 154 N.J. 394, 413 (1998)). An abuse of discretion occurs "when a 

decision is 'made without a rational explanation, inexplicably departed from 

established policies, or rested on an impermissible basis.'" Milne, 428 N.J. 

Super. at 197 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561. 571 

(2002)). 

A reviewing court will defer to a judge's factual findings determinations 

when "they are supported by 'adequate, substantial and credible evidence' on the 

record." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007) 

(quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). 

Additionally, we generally "grant deference to the trial court's credibility 
26 A-1484-19

determinations." Ibid. However, "[a] trial court's interpretation of the law and 

the legal consequences that flow from established facts are not entitled to any 

special deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (citing 

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 

(1995)). 

"[T]he opinion of the trial judge in child custody matters is given great 

weight on appeal." Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994)

(citations omitted). However, the trial judge must consider the statutory criteria 

enumerated in N.J.S.A. 9:2-4. Id. at 107. In turn, we "must evaluate that opinion 

by considering the statutory declared public policy and criteria which a [judge] 

must consider." Id. at 118. 

The judge must "reference the pertinent statutory criteria with some 

specificity and should reference the remaining statutory scheme at least 

generally, to warrant affirmance." Id. at 119. The judge must also "consider 

and articulate why its custody decision is deemed to be in the child's best 

interest." Ibid. "[T]he paramount consideration is the safety, happiness, 

physical, mental and moral welfare of the child." Ibid. (quoting Fantony v. 

Fantony, 21 N.J. 525, 536 (1956)). "[T]hat analysis requires the court to 

consider any and all material evidence." Kinsella v. Kinsella, 150 N.J. 276, 317 
27 A-1484-19

(1997) (citing In re Baby M., 109 N.J. 396, 456 (1988)). "The 'best-interest-ofthe-child' standard . . . is an expression of the court's special responsibility to 

safeguard the interests of the child at the center of a custody dispute because the 

child cannot be presumed to be protected by the adversarial process." Id. at 317-

18. 

III.

We affirm substantially for the reasons set forth by Judge Haekyoung Suh 

in her July 10, 2019 oral decision and comprehensive October 29, 2019 written 

decision. We add the following comments. 

In her decision, the judge made comprehensive findings of fact and 

specific credibility findings. Those findings were amply supported by the

record. She also expressed her reasons for finding that keeping the Title 30 case 

open in order to provide M.D. with additional opportunities to engage in services 

was not required. 

M.D. argues that the judge prematurely terminated the Title 30 case and 

thereby denied his right to due process because he was not afforded a reasonable 

opportunity to engage in services. We disagree. The judge scrupulously 

attended to the parties' rights throughout the entire proceedings and M.D. had 

the benefit of counsel at all stages of the litigation. Although the judge could 
28 A-1484-19

have conducted another dispositional hearing before dismissing the Title 30

case, the Division had repeatedly requested dismissal, the Title 30 case was then 

nine months old, and M.D. had still not complied with services aimed at 

addressing his mental health and substance abuse issues. 

"Where an order of care and supervision has been entered pursuant to 

N.J.S.A. 30:4C-12, it is only effective for six months." N.J. Div. of Youth and 

Fam. Servs. v. T.S., 426 N.J. Super. 54, 66 (App. Div. 2012). "Absent a showing 

that services or supervision or both appear to be in the best interests of the child 

because the services are needed to ensure the child's health and safety, a case 

should be dismissed." Ibid. "[T]he Division and the court must not lose sight 

. . . that the order expires after six months unless grounds for an extension of the 

Division's authority to intervene are established as required by N.J.S.A. 30:4C12." Ibid. 

The court has discretion in determining whether to extend the Title 30 

litigation if the court is satisfied, by a preponderance of the evidence, that the 

best interests of the child require extension. N.J. Div. of Youth and Fam. Servs. 

v. I.S., 214 N.J. 8, 37-38 (2013). "Parents do not have the right to extend 

litigation indefinitely until they are able to safely care for their children." S.D., 

453 N.J. Super. at 524. M.D. completed psychological, psychiatric, and 
29 A-1484-19

substance abuse evaluations but had failed to follow through with subsequent 

treatment. J.L. was no longer receiving services through the Division. Given 

the extended timeline of this case, J.L.'s residence in Maryland, and M.D.'s 

proven lack of compliance and progress, the judge did not abuse her 

considerable discretion in dismissing the Title 30 case. As we explained in T.S., 

the purpose of further hearing in a care and supervision case "is not to check-up 

on and review a parent's compliance." 426 N.J. Super. at 66. Here, "continued 

care and supervision" by the Division was no longer "need[e]d to ensure the 

child's health and safety." Id. at 66-67. 

M.D. further argues that the decision to award J.L. physical custody was 

not supported by the evidence and that the judge did not apply the correct legal 

standard when it transferred custody of J.L. to D.L. He contends that he was 

able to care for J.L. despite struggling with his mental-health and substanceabuse issues, and he characterized his criminal conduct as minor offenses. He 

notes that there was no finding of abuse and neglect or any evidence presented 

that indicated J.L. was harmed. We are unpersuaded. 

The judge found that three statutory custody factors (factors three, seven, 

and ten) favored D.L. Only factor eight favored M.D. The other factors were 

found to be in equipoise or inapplicable. Implicit in the judge's decision is that 
30 A-1484-19

the statutory factors in favor of J.L. outweighed the single factor in favor of 

M.D. The record fully supports these findings. 

In a Title 30 action for care and supervision, the Division may intervene 

when "a child who, although not abused or neglected, [may be] in need of 

services to ensure [his or her] health and safety." T.S., 426 N.J. Super. at 64. 

Under N.J.S.A. 30:4C-12, the Division is authorized to investigate complaints 

that a person responsible for a child is unable "to ensure the health and safety of 

the child[] or is endangering the welfare of such child." Ibid. (quoting N.J.S.A. 

30:4C-12). "[S]ection 12 . . . is triggered by the appearance that a child's welfare 

is endangered." N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 33 (2013). 

"N.J.S.A. 30:4C-12 provides the means for the Division to effectuate 

services to children in need when a parent does not consent to the Division's 

supervision, care, or custody." I.S., 214 N.J. at 33. Its "purpose is to protect 

children." Ibid. (citing M.M., 189 N.J. at 293). Therefore, "the Division can

seek a court order to intervene and require a [parent or guardian] to undergo 

treatment, or seek other relief, if the best interests of the child so require." A.L., 

213 N.J. at 9 (citing N.J.S.A. 30:4C-12). The Division may obtain custody, care, 

or supervision of a child under N.J.S.A. 30:4C-12 regardless of whether abuse 
31 A-1484-19

or neglect is established under Title 9. I.S., 214 N.J. at 33 (citing M.M., 189 

N.J. at 292). 

"When custody issues become intertwined with child-protection actions, 

then dispositional questions that lie at the intersection of the two matters become 

complicated by a parent's delay in achieving circumstances that make it safe for 

the child to return to the former custodial parent." Id. at 41. However, "a 

noncustodial parent who obtains full-time care of a child after the initiation of 

child-protection proceedings 'may always initiate a request for a change in 

custody,' which involves a changed-circumstances inquiry and, ultimately, 

becomes a best-interests analysis." Id. at 40 (quoting N.J. Div. of Youth & Fam.

Servs. v. G.M., 198 N.J. 382, 402 n.3 (2009)). The parent to whom custody was 

temporarily transferred during the child-protection litigation has the burden of 

proving placement with them under the best-interests standard. Id. at 40–41. 

Even if this process is not followed "precisely," placement with the parent to 

whom custody was temporarily assigned is suitable if returning the child to the 

parent from whom she was removed "would not have been consistent with the 

court's continued responsibility to act in the best interests of [J.L.]." Id. at 41. 

In addition, "[j]udges who handle FN and FD dockets may choose to 

handle the matters separately or at the same time." B.C. v. N.J. Div. of Child 
32 A-1484-19

Prot. & Permanency, 450 N.J. Super. 197, 206 (App. Div. 2017). "Although it

is preferable for the court to ensure that there [are] separate and distinct 

proceedings at which Title 30 actions are adjudicated to disposition and [FD] 

custody matters are adjudicated," the "procedure may not always prevail" and a 

"consolidated procedure" may not necessarily result in any cognizable harm to 

the child. I.S., 214 N.J. at 41-42. Notably, "[a] court's technical designation of 

a hearing as FD or FN should not hamper the court's mission to safeguard the 

welfare of children." S.D., 453 N.J. Super. at 525. "When unusual procedures 

are undertaken, however, it is crucial to ensure that the parents are represented 

by counsel." Ibid. 

Here, the Division filed the Title 30 complaint after attempting to address 

concerns that had been raised by the February 25, 2019 referral, which alleged 

that J.L. witnessed M.D. attempting to commit suicide with a knife. The 

Division had the authority and duty to intervene to ensure J.L.'s health and safety 

because Section 12 "is triggered by the appearance that a child's welfare is 

endangered." A.L., 213 N.J. at 33; T.S., 426 N.J. Super. at 64. 

During the pendency of the Title 30 litigation, D.L. applied for physical 

custody under the FD docket after learning of M.D.'s arrest and the Division's 

open Title 30 case. During the July 10, 2019 combined hearing, the judge
33 A-1484-19

admitted the June 27, 2019 Division report into evidence, which revealed that 

M.D. had failed to participate in court ordered services. 

The judge expressed great concern regarding M.D.'s "mental stability, 

lack of candor to the [c]ourt," and "his ability to take care of [J.L.] on his own." 

M.D. advised Easter Seals that he was no longer interested in receiving services, 

and Kwenyan and Associates closed M.D.'s case due to his lack of compliance 

with the program. M.D.'s drug screenings revealed the use of marijuana and that 

he had not been taking his prescribed medications. She found that M.D. was 

inconsistent with his mental-health regimen and therapy and failed to take his 

psychotropic medications. In addition, on June 18, 2019, M.D. was arrested and 

charged with aggravated assault with a deadly weapon, bias crime, with purpose 

to intimidate, and disorderly conduct. 

The judge stated that M.D.'s pattern "of criminal conduct, lack of control 

and his mental health is of grave concern to [the court] as he is unable to take 

care of himself and his impulsivity indicates that he is clearly not in a stable 

mental state." These findings of fact were fully supported by substantial 

credible evidence. 

We reject M.D.'s contention that the judge applied the wrong legal 

standard in awarding physical custody to D.L. The judge granted D.L. physical 
34 A-1484-19

custody because it was in J.L.'s best interests given M.D.'s unresolved mentalhealth and substance-abuse issues. See I.S., 214 N.J. at 40. Even though the 

FD and the Title 30 matters were intertwined in one hearing, transferring 

physical custody to D.L. was suitable considering M.D.'s instability. Id. at 41. 

See also S.D., 453 N.J. Super. at 525 (stating that "a court's technical designation 

of a hearing as FD or FN should not hamper the court's mission to safeguard the 

welfare of children"). 

Moreover, M.D. received adequate notice and a fair opportunity to be 

heard regarding the best interests hearing. Designating the hearing as a 

combined FD/Title 30 hearing "ensure[d] the participation of defense counsel 

and the Law Guardian[.]" S.D., 453 N.J. Super. at 525. The consolidation of 

the cases did not deprive M.D. of due process or result in any cognizable harm 

to J.L. I.S., 214 N.J. at 41. 

M.D.'s remaining arguments are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.