                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1045-12T4

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,

     Plaintiff-Respondent,               APPROVED FOR PUBLICATION

v.                                             March 5, 2015

P.C.,                                      APPELLATE DIVISION


     Defendant-Appellant.

___________________________________

IN THE MATTER OF O.B.,
B.C. AND N.C.,

     Minors.

___________________________________


         Telephonically argued April     10,    2014   –
         Decided January 15, 2015

         Before Judges Lihotz, Maven and Hoffman.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Bergen County, Docket No. FN-02-0315-11.

         Amy M. Williams, Designated Counsel, argued
         the cause for appellant (Joseph E. Krakora,
         Public Defender, attorney; Ms. Williams, on
         the brief).

         Mary C. Zec, Deputy Attorney General, argued
         the cause for respondent (John J. Hoffman,
         Acting Attorney General, attorney; Andrea M.
             Silkowitz, Assistant Attorney General,      of
             counsel; Ms. Zec, on the brief).

             Noel C. Devlin, Assistant Deputy Public
             Defender, argued the cause for respondent
             O.B., a minor (Joseph E. Krakora, Public
             Defender,   Law   Guardian, attorney; Mr.
             Devlin, on the brief).

             Suzanne  M.   Carter,  Designated  Counsel,
             argued the cause for respondents B.C. and
             N.C. (Joseph E. Krakora, Public Defender,
             Law Guardian, attorney; Ms. Carter, on the
             brief).

             The opinion of the court was delivered by

MAVEN, J.A.D.

     Defendant P.C. appeals from a Family Part order determining

she neglected the emotional needs of her teenaged daughter O.B.

(Olivia).1    At the commencement of a fact-finding hearing on the

complaint filed by plaintiff the Division of Youth and Family

Services2 (the Division) concerning conduct by B.C., defendant's

former husband, the trial judge suggested sua sponte the facts

"could rise" to support a finding of neglect against defendant,

even though the Division's complaint had not alleged substantive

1
  We refer to the children by fictitious names to protect their
privacy and for ease of reference.
2
  On June 29, 2012, the Governor signed into law A-3101, which
reorganizes the Department of Children and Families, including
the renaming of the Division as the Division of Child Protection
and Permanency (Division).   L. 2012, c. 16, eff. June 29, 2012
(amending N.J.S.A. 9:3A-10(b)).




                                  2                           A-1045-12T4
allegations that she had abused or neglected Olivia.                Following

an   adjournment,    although   the        Division's   complaint   was    not

amended, the same judge presided over the reconstituted fact-

finding hearing reviewing the conduct of both defendant and B.C.

We conclude this was error and reverse.

                                      I.

     B.C., is Olivia's stepfather and the father of defendant's

other children, Brandon and Nicole.                The three children spent

time with B.C. at his home on weekends.

     On May 25, 2011, the Division              received a referral from

Olivia's school guidance counselor stating Olivia disclosed that

B.C. had engaged in a sexual relationship with her at his home.

As a result of the referral,           the Bergen County Prosecutor's

Office interviewed Olivia, who said the sexual assaults had been

occurring since 2009.       Olivia had not disclosed the abuse to

defendant.   A Division caseworker observed the interview.

     Later that day, the caseworker interviewed defendant who

expressed    shock    and   disbelief         at     Olivia's   allegations.

Defendant mentioned she had trouble in the past with Olivia

making up stories.3     Defendant agreed to cooperate and signed a


3
  In May 2010, the Division investigated allegations made by
Olivia that her stepfather had threatened to physically harm her
and her siblings. During the investigation Olivia recanted her
story and admitted that she lied. The Division determined the
                                                     (continued)


                                      3                              A-1045-12T4
safety plan permitting the Division to interview the children

and restraining B.C. from the children.

    The next day, a Division caseworker investigated a claim

that Olivia was "upset about the way [defendant] ha[d] been

treating her" and that defendant "had cursed at her."                        Defendant

denied    cursing       at    Olivia,     stated         she     was   "trying    to    be

supportive to all her children" and Olivia's statements were a

surprise.      When confronted by the caseworker, Olivia denied that

defendant      cursed    at    her,     but       then    reported     defendant       told

Brandon that she was going to send her to boarding school.                             Her

brother   and    sister       both     reported      to    the    caseworker     similar

facts.    When confronted by the caseworker, defendant stated the

children had misunderstood her.

    On May 27, Olivia underwent a medical evaluation by Nina

Agrawal, M.D.        The Division provided Dr. Agrawal its intake

information and the screening summary from the initial report of

sexual abuse.       Dr. Agrawal reported:                 "The examination does not

confirm or deny the possibility of sexual abuse."                           The report

also stated that "the examination should not discount [Olivia's]

report    of    sexual       abuse."       Based         upon    "intake   information



(continued)
allegations were unfounded and concluded that Olivia had "a long
history of making up stories about her parents when she is mad
at them."



                                              4                                  A-1045-12T4
provided        by    [the        Division],"        Dr.     Agrawal    concluded             that

defendant was not supportive of Olivia and believed that she was

lying.     Dr. Agrawal further opined that Olivia was "at risk for

recantation          due     to    the     mother's        failure     to     support         her

disclosure.            [Defendant's]             outward      support        for       B.C.     by

financially supporting his discharge from jail [wa]s placing the

safety     of    [Olivia]          and    her    siblings       at    risk     for      abuse."

Finally,    Dr.       Agrawal       recommended        a   parenting        evaluation        for

defendant.

     On June 6, the Division substantiated the sexual assault

allegations against B.C. and concluded that the case would be

litigated.4           That    same       day,    the   Division       filed        a   verified

complaint       for    care       and    supervision       of    Olivia,      Brandon,        and

Nicole.     The Division did not substantiate claims of abuse and

neglect    against          defendant,      but      named      her   for     dispositional

purposes only.             At the hearing on the return date of the order

to show cause, counsel for the                       Division reported that while

defendant continued to assert that she did not believe Olivia,

defendant would support her.                    Counsel further confirmed that the


4
  B.C was subsequently indicted and charged with aggravated
sexual assault of a minor and endangering the welfare of a
child.    At oral argument we were informed the trial was
scheduled for April 2014. We are unaware of the disposition of
the criminal proceedings.




                                                 5                                      A-1045-12T4
Division's complaint did not allege any claims against defendant

and that it was not proceeding against defendant.                 The court

ordered   that   defendant   retain   legal     and   physical   custody   of

Brandon and Nicole, but ordered physical custody of Olivia to

continue with her grandmother.5

     The fact-finding trial against B.C. commenced as scheduled

before a different judge.       After opening statements and twenty

to thirty minutes of testimony by the Division caseworker, the

court became concerned regarding defendant's expressed disbelief

of Olivia's allegation of sexual abuse.               The judge halted the

proceedings and questioned "whether defendant's treatment of the

child rose to abuse or neglect."            Because defendant was present

in court to observe the proceedings, the judge called counsel to

sidebar where the following colloquy ensued:

           THE COURT:   Counsel, would you approach for
           a minute. Everyone. I don't know the case,
           I don't read the case purposely. Would you
           agree that I can find against [defendant]?

           [DIVISION'S COUNSEL]:          Yes, you could.

     The judge summoned defendant's attorney to the courtroom.

When she appeared, the following colloquy occurred:

           THE COURT: Okay. . . . We are back on the
           record. . . .  We broke a few minutes ago
           and I asked to have [defendant's counsel]

5
  Olivia began staying with her grandmother on May 25, with
defendant's consent.



                                      6                             A-1045-12T4
come over to the court. . . .      Thank you
very much for responding so promptly.

[DEFENSE COUNSEL]:   You're welcome, Judge.

THE COURT:   It's my understanding that the
Division   has   substantiated  [B.C.]  for
sexually abusing his stepdaughter. But the
Division did not substantiate [defendant]
for abuse or neglect.

We heard about a half hour worth of
testimony and my question was to counsel
. . . if I hear any more testimony and we
stopped testimony, if I heard testimony that
was sufficient to find that [defendant] had
abused or neglected her children[] [w]hether
I had the authority to do that.    I think I
do.   I think it is this [c]ourt's duty and
mandate to protect children. So this is why
I've asked you to come over and participate
in this trial.

    . . . .

THE COURT:     Just so you know, and you'll
be able to listen to the transcript of the
trial, I asked [defendant] . . . [w]hy she
was here [and w]hether she was excused from
the trial, because I didn't read the case
prior to the trial so that I get a fresh
impression.   And [defendant] indicated that
she was excused from the trial, you didn't
know that she was . . . here, you expected
that she wouldn't attend, is that correct?

[DEFENSE COUNSEL]:   Correct.

    . . . .

[DEFENSE COUNSEL]: . . . [t]he Division was
not seeking a stipulation or a fact-finding
against my client. However, your Honor,
. . . and now it is my understanding that
the [c]ourt has heard a little bit of
testimony and feels that perhaps sua sponte,



                      7                        A-1045-12T4
there might be some sort of finding that the
[c]ourt would make in such a situation
despite the fact that the Division is not
proceeding against my client.     However, I
would have to object to the [c]ourt, first
of all, considering a sua sponte finding of
abuse and neglect against my client at any
point if the Division is not seeking one.
And especially in this particular situation
because . . . certainly if my client was on
notice from the very beginning of the case,
the Division had substantiated her and/or
was seeking a finding or a stipulation
against her, I as her attorney, and she
even, would have proceeded in a totally
different way with the entire matter from
the very beginning.

    . . . .

So on behalf of my client, and in light of
the fact that there's already been [twenty]
minutes of testimony, I must, on behalf of
my client, move for a mistrial at this time
because my client has not had any notice
[that the Division was seeking a finding of
abuse and neglect against her]. . . .

    . . . .

Judge, [I'm] sort of in a vacuum because
I've just been called in only 10 minutes
ago, or 15 minutes ago, and been told that
the [c]ourt wants to proceed.   So again I
move for a mistrial. I would also like all
of the documents and the facts upon which
the Division, or the [c]ourt, is seeking a
finding against my client.

    . . . .

THE COURT:     Let   me    explain    what's
happening here.

     . . . .




                     8                         A-1045-12T4
           THE COURT:      I'm not proceeding against
           your client.     I'm not adversarial to your
           client. This is the [c]ourt.         I heard
           testimony for about 20 minutes or half hour
           at which point I was concerned that at least
           that testimony may lead this [c]ourt to
           decide,   after    I've heard   all  of  the
           competent testimony, that [defendant] abused
           or neglected her children.

                . . . .

           THE COURT: At [this] point I [thought] due
           process required you to be present and you
           to be informed of what was happening and we
           would determine how to proceed.       Parents
           certainly   have   a  liberty   interest,   a
           fundamental   liberty  interest,   to   their
           children.   Children also have a fundamental
           interest in being safe and protected.    This
           [c]ourt is charged with protecting children.
           And I think . . . I would abdicate my duties
           if I were to proceed with a trial and hear
           facts and find or determine or think that a
           child has been abused or neglected and
           ignore that and leave that child at risk.
           So I have made no determination. I've heard
           enough facts that I think you should be
           involved in this case. Your application for
           a mistrial is denied. I think this can be
           corrected by due process.

                I will give an adjournment today.   You
           can have all the time you need to prepare
           your aspect of the trial.    If you [would]
           like you can listen to the transcript.     I
           think you have to. There's only about
           [twenty] minutes of testimony from the
           caseworker.   You can hear that testimony.
           Nobody has even started cross-examination
           . . . . This is a highly unusual situation.

    In January 2012, the same judge started the fact-finding

trial   anew.   The   caseworker   who   testified   in   the   earlier




                                   9                            A-1045-12T4
proceeding was unavailable as she left the Division's employ.

During the six-day trial that ended in June 2012, the Division

presented     the    testimony        of    Olivia,      her     school    guidance

counselor, her therapist, and the Division's supervising family

services specialist.           The Law Guardians did not present any

witnesses, and neither defendant nor B.C. testified.

      At   the   close   of    trial,      the   Division      and   Law   Guardians

argued for a finding of abuse against B.C.                     The judge issued a

written decision finding that both defendant and B.C. abused and

neglected     Olivia.     While      acknowledging      the     Division    had    not

substantiated defendant for abuse or neglect, the judge rejected

the argument that defendant's due process rights were violated,

concluding her "due process rights were preserved by adjourning

the matter to provide [her counsel] with additional time to

prepare for trial."

      After   assessing       the    testimony     of   the    witnesses    and    the

documentary       evidence,         the    trial    judge       determined        that

defendant's disbelief in Olivia's allegation "immediately placed

the child in the untenable position of feeling responsible for

B.C.'s arrest and turmoil that resulted from her disclosure."

The judge concluded that defendant neglected Olivia's "emotional

needs and exacerbated the abuse inflicted by [B.C.]."                      Finally,

the   judge      found   there       was    "sufficient        evidence     for    an




                                           10                               A-1045-12T4
independent finding, absent the Division's substantiation, to

support    a   finding    by   a   preponderance        of    the    evidence     that

[defendant] emotionally abused and neglected [Olivia] as defined

in N.J.S.A. 9:6-8.21(c)(4)(b)."               The trial court filed an order

that provided that B.C. sexually abused Olivia and defendant

"neglected the minor's emotional needs."

    After       dispositional      hearings,     the    judge       ordered    Olivia

returned   to    defendant,     and   terminated       the    litigation.          This

appeal followed.

                                      II.

    Defendant argues (1) the trial court exceeded its statutory

authority and failed to comport with defendant's due process

protections;      (2)    the   finding    of    abuse    or    neglect    was       not

supported by the evidence presented at trial; and (3) the judge

demonstrated an improper lack of impartiality by presiding over

the trial.

    The Division responds that defendant's contentions ignore

the State's parens patriae role and obligation to act in the

best interests of children.           Further, the Division argues that

defendant had notice at the outset of the case when she was

named in the verified complaint.                The Law Guardian for Olivia

agrees with the State and urges us to affirm, while the Law

Guardian for the younger children urges us to reverse.




                                         11                                   A-1045-12T4
       We first address defendant's due process claims.                      Defendant

contends the court erred by ordering sua sponte a Title Nine

fact-finding     hearing      when      the    complaint     did     not   allege    any

claims of abuse or neglect against her.                    According to defendant,

she had no notice that the trial court would consider making an

adverse finding against her.                  The State responds that neither

Title Nine nor any applicable case law prohibits a trial judge

from   making    a    finding      of   abuse      or    neglect   against    a   named

defendant even though none has been made by the Division.

       Our analysis begins with a review of the applicable legal

principles.      It is axiomatic, that parents have a fundamental

constitutional        right   to     raise       their    children    without     undue

interference from the State.              N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 102 (2008).                 But that right is tempered by

the State's parens patriae responsibility to protect children

from serious physical and psychological harm, even where the

child's parent is the source of the harm.                    N.J. Div. of Youth &

Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004); see In re

Guardianship     of    K.H.O.,      161     N.J.    337,    347    (1999)).         At   a

minimum, "due process requires that a parent charged with abuse

or neglect have adequate notice and opportunity to prepare and

respond."     N.J. Div. of Youth & Family Servs. v. T.S. 429 N.J.

Super.    202,   213     (App.       Div.     2013)      (citation     and    internal




                                            12                                A-1045-12T4
quotation marks omitted); see also N.J. Div. of Youth & Family

Servs. v. B.M., 413 N.J. Super. 118, 126-27 (App. Div. 2010)

(noting that a defendant must be apprised by such notice of the

matters at issue and be afforded an "adequate opportunity" to

respond and prepare for trial).

     The child protection statute provides that "[a]ny person

having   reasonable    cause   to   believe     that   a   child     has   been

subjected to child abuse or acts of child abuse shall report the

same immediately to the [Division] by telephone or otherwise."

N.J.S.A. 9:6-8.10.     Further, N.J.S.A. 9:6-8.34(e), provides that

a Title Nine action may be originated by certain enumerated

persons, including "[a] person on the court's direction."

     Following    an   investigation,     the   Division      initiates     the

civil action seeking an adjudication of abuse or neglect by

filing a complaint in the Family Part, pursuant to N.J.S.A. 9:6-

8.33.    The complaint must adequately notify a defendant of all

charges.     See N.J. Div. of Youth & Family Servs. v. P.W.R., 205

N.J. 17, 36-37 (2011).

     The fact-finding hearing is a critical element of the abuse

and neglect process, as it is at that point the Division must

prove its allegations by a preponderance of the evidence.                  N.J.

Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 474-

75   (App.    Div.),   certif.      denied,     203    N.J.    439     (2010).




                                     13                               A-1045-12T4
Accordingly, the fact-finding hearing must be conducted "'with

scrupulous adherence to procedural safeguards.'"                          N.J. Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009) (quoting

A.R.G., supra, 179 N.J. at 286).

       Following our review, we conclude the order as to defendant

must    be   vacated.       First,      we   determine     that     the    trial    judge

failed       to    scrupulously        safeguard        defendant's       due   process

protections.            Second   and    more      important,       the    judge,    after

directing         the   Division   to    focus     on    defendant's       conduct     as

violating the statute, was no longer an independent fact-finder;

she should have recused herself, and transferred the case to

another Family Part judge.

       Here,       the    Division       had       determined        after      a    full

investigation that it had insufficient evidence to support a

complaint of abuse or neglect against defendant.                          Nevertheless,

the court stated, without prior notice and after only several

minutes of testimony, that it had heard enough facts to order

defendant to be "involved" in the case and ordered the case to

be tried against defendant as well as B.C.                         In its sua sponte

ruling, the court explained it was exercising its parens patriae

responsibility to protect the child.                      Yet, in doing so, the

court    disregarded       long-standing          due    process    principles       that

require a party in a judicial hearing receive notice defining




                                             14                                 A-1045-12T4
the issues and an adequate opportunity to prepare and respond.

B.M., supra, 413 N.J. Super. at 126.                       Here, the Division never

amended its complaint to inform defendant of the factual basis

supporting a claim that she caused Olivia to be an abused or

neglected child.          Further, the judge's general comments that

"testimony       may    lead    this       [c]ourt      to      decide      .   .    .    that

[defendant] abused or neglected her children" is insufficient to

satisfy the due process notice requirement.

       This is not to say that the due process errors could not

have    been     corrected.          The    law      permits      the   judge       to   refer

concerns    to    the    Division,         pursuant     to      N.J.S.A.    9:6-8.34,        or

any person to originate a proceeding under N.J.S.A. 9:6-8.10.

However, that did not occur in this case.                         As suggested by the

Deputy Attorney General's assent when the judge first presented

the issue, the Division could have reopened its investigation

and    amended    the    complaint         to    include        allegation      of   conduct

amounting to abuse or neglect against defendant. Despite the

judge's continuation of the proceeding, the Division did not do

so.

       Importantly,       following         the      Division's         presentation         of

evidence    in    a    fact-finding         hearing,       if    the    judge    determined

defendant's      disbelief      of    the       accuracy     of   Olivia's      assertions

proved     problematic         to     the        child's        emotional       well-being,




                                                15                                   A-1045-12T4
safeguards could have been put in place during dispositional

hearings, such as continuing therapeutic intervention between

parent     and    child      or   individual       counseling        directed    to    aid

defendant's       understanding         of   the       effect   of    her   conduct     on

Olivia.6         We   note    the      record     suggests      defendant      must   have

resolved her initial rejection of Olivia's assertions because

the child was returned to her care.

     We are convinced that the procedures employed at the trial

level     were    fundamentally          unfair        and   significantly      deprived

defendant of her due process rights.                         Hence, we conclude the

court's    determination          of    abuse     or    neglect      against   defendant

cannot stand.

     Next, defendant asserts the events and proceedings created

an appearance of judicial bias.                     We agree.         The court's sua

sponte action coupled with its continued oversight of the fact-

finding trial gave the appearance a lack of impartiality in the

proceeding.

     Rule 1:12-1 provides that a judge shall disqualify himself,

or herself, on his or her own motion and not sit in a matter for

the reasons contained in the rule, including "when there is any

6
   We are not suggesting that the evidence in this case would
have been sufficient to warrant an amended complaint or a
finding of abuse or neglect. Indeed, because of our disposition
we need not reach that issue.




                                             16                                  A-1045-12T4
other reason which might preclude a fair and unbiased hearing

and judgment, or which might reasonably lead counsel or the

parties to believe so." R. 1:12-1(g).            In our view, the judge

formed an initial impression of defendant's conduct despite the

Division's decision not to pursue defendant in this matter and

the court's continued oversight over the ensuing trial, created

an   appearance   of   bias.   "[T]he     mere   appearance   of   bias   may

require   disqualification"    upon   a    reasonably   objective    belief

that the proceeding was unfair.           Panitch v. Panitch, 339 N.J.

Super. 63, 67 (App. Div. 2001) (quoting State v. Marshall, 148

N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L.

Ed. 2d 88, (1997)).       In this matter, the court clearly did not

regard its actions as a disqualifying circumstance.            However, we

conclude it should have.       It was inappropriate for the judge to

preside over the fact-finding trial under these circumstances.

The trial should have been reassigned to another Family Part

judge.

      We reverse the July 16, 2012 order as to defendant.                 Our

disposition makes it unnecessary for us to address any remaining

contentions.

      Reversed.




                                   17                               A-1045-12T4
