                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4832-15T1

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

        Plaintiff-Respondent,

v.

D.C.,

        Defendant-Appellant,

and

R.S.,

     Defendant-Respondent.
____________________________________

IN THE MATTER OF
B.S. and S.L.,

     Minors.
____________________________________

              Argued April 23, 2018 – Decided August 22, 2018

              Before Judges Fasciale, Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Passaic
              County, Docket No. FN-16-0072-12.

              David A. Gies, Designated Counsel, argued the
              cause for appellant (Joseph E. Krakora, Public
            Defender, attorney; David A. Gies, on the
            briefs).

            Mark E. Kleiman, Designated Counsel, argued
            the cause for respondent R.S. (Joseph E.
            Krakora, Public Defender, attorney; Mark E.
            Kleiman, on the brief).

            Yudelka R. Felipe, Deputy Attorney General,
            argued the cause for respondent New Jersey
            Division of Child Protection and Permanency
            (Gurbir S. Grewal, Attorney General, attorney;
            Andrea M. Silkowitz, Assistant Attorney
            General, of counsel; Yudelka R. Felipe, on the
            brief).

            Caitlin   McLaughlin,   Designated   Counsel,
            argued the cause for minors (Joseph E.
            Krakora, Public Defender, Law Guardian,
            attorney; Caitlin McLaughlin, on the brief).

PER CURIAM

      Defendant D.C. (Deborah)1 appeals from the Family Part order

granting custody of her ten-year-old daughter B.S. (Brooke) to

Brooke's father R.S. (Richard).        Deborah contends the trial judge

did   not   protect   her   parental       rights   in   applying   the     "best

interests" analysis under N.J.S.A. 9:2-4 to make his custody

decision.    We disagree and affirm.

      This matter returns to us following our decision on a motion

for reconsideration, reversing the finding that Deborah abused and

neglected Brooke and her other daughter, S.L. (Sara), due to her

use of marijuana and failure to complete substance abuse treatment.


1
    We employ fictitious names for the parties.

                                       2                                  A-4832-15T1
N.J. Div. of Child Prot. & Permanency v. D.C., No. A-3477-12,

(App. Div. Dec. 19, 2014) (slip op. at 22-23).                         Because we

concluded there was no abuse and neglect, we remanded the matter

for a hearing to adjudicate the children's custody as Deborah was

not given "an opportunity to put forth a case on [her] behalf

[regarding] the transfer of custody and the placement of the

children    with      their   fathers,"2      and   "the   [Division     of     Child

Protection      and    Permanency       (Division)]    did    not     present      any

witnesses or expert testimony at the permanency hearing."                      Id. at

23.   At that time, legal and physical custody of Brooke and Sara

was with their respective fathers.

      Before the remanded proceedings commenced, the newly-assigned

Judge Daniel J. Yablonsky, stated the purpose of the hearing was

to determine the best interests of the children given this court's

conclusion that there was no abuse and neglect.                 Over the course

of three non-consecutive trial days, the Division presented the

testimony of its caseworker and an expert, Dr. Robert Miller, who

had   conducted       psychological     and   parenting     assessments       of   all

parties    as   well    as    bonding    evaluations.        Miller    recommended

services for all three parents, but opined that Brooke and Sara

should remain in the care of their fathers.                Deborah presented the



2
    The children have different fathers.

                                          3                                   A-4832-15T1
expert testimony of Dr. James R. Reynolds, who opined that the

children had a safe and secure attachment to Deborah and they

should maintain regular contact with her, but did not recommend

reunification with her at the time.             The judge granted the parties

joint legal and physical custody of the children, with their

primary residence remaining with the fathers.

       In his twenty-eight page written decision, Judge Yablonsky

stated that since there was no finding of abuse or neglect against

Deborah under Title 9,3 "this matter is and has been a Title 30

case."      Citing our remand decision, the judge found that "the

reversal of a finding of abuse or neglect divests any trial court

in   an    abuse    or   neglect    proceeding      of    authority    to   conduct

dispositional hearings or enter dispositional orders" under Title

9.     Hence, he based his custody decision on the best interests

test      under    N.J.S.A.   9:2-4.       In     his    assessment,     the     judge

acknowledged that Deborah had made progress towards achieving her

goal of sole legal and physical custody of her daughters and that

both fathers had "significant parenting deficits.                 However, given

the fact that neither Dr. Miller, nor [Deborah]'s own expert, Dr.

Reynolds,     recommend[ed]        that   [she]    be    the   primary   custodial



3
  In a Title 9 action, the Division must prove by a preponderance
of "competent, material and relevant evidence" that a child is
abused or neglected. N.J.S.A. 9:6-8.46(b).

                                          4                                    A-4832-15T1
parent, the court [found] that the best interests of the children

are served by retaining the current status quo."

     In this appeal, we address only Brooke's custody because a

consent   order   was   entered      wherein   Deborah       assumed    primary

residential   custody   of   Sara.        Deborah   argues    that     while    we

concluded the Division did not establish she abused or neglected

her daughters, we did not direct the trial court to make a custody

determination.    Moreover, she argues that by applying the best

interests analysis under N.J.S.A. 9:2-4, the court did not protect

her statutory and constitutional rights as a parent.              She asserts

the court did not conduct a summary hearing under Title 30 with

an eye towards the need to ensure Brooke's health and safety.

Therefore, the court did not consider whether the Division's

involvement was necessary to protect or otherwise ensure her health

and safety, and the Division neither sought an order to protect

her nor recommended any services to ensure her health and safety.

Deborah further argues that we did not direct the court to make a

custody determination, but to simply determine "the placement of

the children under applicable child welfare laws" because she was

not afforded a dispositional hearing under G.M.4




4
   N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399-
401 (2009).

                                      5                                  A-4832-15T1
     Deborah is mistaken in asserting that our remand did not

authorize the court to make a custody determination. Our reference

to G.M. was to make clear that Deborah should have been afforded

a dispositional hearing when the initial trial court made its

finding of abuse and neglect.    D.C., slip op. at 23-26.    Since we

concluded there was insufficient proof of Deborah's abuse and

neglect under Title 9, and therefore no need for a dispositional

hearing, the judge still needed to resolve the custody issue

because the Division also pled a Title 30 claim in its complaint

for custody of Brooke and Sara – which was unaffected by our

decision.

     To determine custody of the children, Judge Yablonsky applied

the best interests test under N.J.S.A. 9:2-4(c), which provides:

            Any other custody arrangement as the court may
            determine to be in the best interests of the
            child.

            In making an award of custody, the court shall
            consider but not be limited to the following
            factors: the parents’ ability to agree,
            communicate and cooperate in matters relating
            to the child; the parents’ willingness to
            accept    custody    and   any   history    of
            unwillingness to allow parenting time not
            based on substantiated abuse; the interaction
            and relationship of the child with its parents
            and   siblings;   the   history  of   domestic
            violence, if any; the safety of the child and
            the safety of either parent from physical
            abuse by the other parent; the preference of
            the child when of sufficient age and capacity
            to reason so as to form an intelligent

                                  6                           A-4832-15T1
           decision; the needs of the child; the
           stability of the home environment offered; the
           quality   and   continuity  of   the   child’s
           education; the fitness of the parents; the
           geographical proximity of the parents’ homes;
           the extent and quality of the time spent with
           the child prior to or subsequent to the
           separation;     the    parents’     employment
           responsibilities; and the age and number of
           the children. A parent shall not be deemed
           unfit unless the parents’ conduct has a
           substantial adverse effect on the child.

     In applying the best interests test, Deborah asserts the

judge improperly placed the burden of proof associated with a

private custody dispute on her, instead of the Division.                     She

further contends the record does not support his findings; citing

her unsupervised visitation of both children in the five months

prior to the remand hearing and her residential custody of Sara

through the father's consent as evidence of the Division's lack

of concern that she poses a danger to her children.

     We discern no error in the judge's application of this test.

In our previous      decision, we did not specifically state the

standard   to   be   used   on   remand   to   decide   the   custody    issue.

Clearly, a dispositional hearing was not appropriate absent the

finding of abuse or neglect.          See N.J. Div. of Youth & Family

Servs. v. N.D. (In re T.W.), 417 N.J. Super. 96, 109 (App. Div.

2010) (explaining that without the court's finding of abuse and

neglect, there is no authority allowing the court to enter an


                                      7                                 A-4832-15T1
order     of   disposition     under   Title    9).        Nevertheless,    "[t]he

touchstone for all custody determinations has always been 'the

best interest[s] of the child.'"               Faucett v. Vasquez, 411 N.J.

Super. 108, 118 (App. Div. 2009) (second alteration in original)

(quoting       Kinsella   v.   Kinsella,      150   N.J.    276,   317    (1997)).

Accordingly, "[c]ustody issues are resolved using a best interests

analysis that gives weight to the factors set forth in N.J.S.A.

9:2-4(c)."      Ibid. (quoting Hand v. Hand, 391 N.J. Super. 102, 105

(App. Div. 2007)).         In fact, Deborah's trial counsel argued that

there should be a "best interest[s] hearing," because the issue

in this matter was not a "pure G.M. issue," and that a plenary

hearing was necessary "just to see where the children are at right

now."     Deciding custody in accordance with the best interests test

under N.J.S.A. 9:2-4 was therefore fitting.

      Importantly,        Deborah    fails     to   establish      how   she    was

prejudiced or harmed by the standard that was applied in the remand

hearing.       Our Court held in New Jersey Department of Children &

Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 39-

42 (2013), that in a Title 30 litigation, it may be appropriate

to adjudicate the disposition of child welfare matters with custody

issues at the same time, as long as the parents are not prejudiced.

As   in    I.S.,   the    Division     here    argues   the    judge     correctly

consolidated the Title 30 action and custody hearing with no

                                         8                                 A-4832-15T1
recognizable harm to Deborah's parental rights.               We agree with the

Division that Deborah benefited from the consolidation in that she

was appointed counsel and an expert was provided to her at no

expense, neither of which she would have been entitled to in a

regular    custody     case.      She   and   the    Division   both    presented

testimony       from   expert   witnesses     to    support   their    respective

positions concerning her parental fitness.              We also do not see any

violation of Title 30's statutory scheme given that a prior judge

issued     an    intervening     custody      determination,     which     denied

Deborah's application of transfer of custody.

     In analyzing Judge Yablonsky's custody ruling, we understand

that his findings are "entitled to great weight and will not be

lightly disturbed on appeal."           Sheehan v. Sheehan, 51 N.J. Super.

276, 295 (App. Div. 1958) (citations omitted).                We must therefore

defer to his findings of fact if supported by sufficient credible

evidence in the record, Cesare v. Cesare, 154 N.J. 394, 411-12

(1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974)), because the Family Part judge has

"special jurisdiction and expertise in family matters," id. at

413, and we will "not second-guess [his] findings and the exercise

of [his] sound discretion,"             Hand, 391 N.J. Super. at 111.            An

abuse of discretion occurs when a decision is "made without a

rational    explanation,        inexplicably       departed   from    established

                                         9                                A-4832-15T1
policies, or rested on an impermissible basis."   Flagg v. Essex

Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted).

    With these principles in mind, we conclude Judge Yablonsky

correctly applied the best interests standard of N.J.S.A. 9:2-4.

He evaluated the fourteen factors under that standard and awarded

primary residence to Richard as "the scales tip[ped] only ever so

slightly" towards him.   Thus, we affirm substantially for the

reasons stated by the judge in his cogent written decision.

    Affirmed.




                               10                         A-4832-15T1
