01-23-08 A-2173-06T4
In this opinion we review what considerations should inform
the trial court's decision whether to permit the Division of
Youth and Family Services (D.Y.F.S.) to terminate Title Nine
proceedings after the filing of an abuse and neglect complaint
has resulted in the modification of the residential custody of
the children at issue.
We hold that modification of the residential custody of a
child, from one natural parent to the other, is not a placement
under N.J.S.A. 9:6-8.54. However, notions of fundamental
fairness and the best interests of the child require that the
judge conduct a full custody hearing prior to the termination of
the Title Nine litigation to determine whether custody should
remain as modified, or whether custody should be returned to the
initial custodial parent, subject to conditions and D.Y.F.S.'s
continued supervision.
Although such a hearing is not required by the specific
language of Title Nine, it is implicit in the provision
governing termination of the proceedings, N.J.S.A. 9:6-8.50(e),
and it is required by the overarching statutory concern for the
child's best interests.
Absent such a hearing prior to terminating the Title Nine
litigation, custody could be effectively modified contrary to
the parties' initial expressed intent and without due process.
The original custodial parent would then unfairly bear the
burden of demonstrating that the new custodial arrangement was
not in the child's best interests, yet at the same time be
deprived of the representation available to her in the Title
Nine litigation and the D.Y.F.S. services available to her if
custody was restored with conditions.
Since such a hearing was not held in this case prior to the
termination of the litigation, we reversed and remanded.
