MAY WE PLEASE HAVE APPEARANCES OF COUNSEL. (APPEARANCES TENDERED.)
THE COURT: WELLCOMEC COUNSEL, MR. MITCHELL.
T. GARY MITCHELL: THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT I
WOULD LIKE TO RESERVE THREE MINUTES FOR REBUTTAL, PLEASE. THE
COURT: THANK YOU. US JUST KEEP YOUR VOICE UP. T. GARY MITCHELL:
UNDER A 6 # 0 YEAR OLD STATUTE DATING FROM 1962. A DECKADEA OR SO AGO THIS COURT
LARGELY FOR THE FIRST TIME ADDRESSED THAT STATUTE WHICH I WILL REFER TO
AS SEXCTIONC 12 IN MY ARGUEMENTM. IN THAT MACHINE,KEY CHECKS ON THAT POUWWWER.
THE CHECKS,S A SIX-MONTH TIME LIMBITITI ON ORDERS NTERED UNDER
SECTION 12 AND THE NEED FOR PERIODIC JUDICIAL REVIEW A RELIEF GRAND UNDER THAT
STATUTE THIS COURT POINTED OUT THE STAT T TUT EASES'S'S'
CONSTITUTIONAL UNDERPINK WAS CONSTITUTED IN HIS, ITS FLEXIBILITY AN PERIODIC JUDICIL
REVIEW WHEN THE STATE WOULD ALWAYS HAVE A CONTINUEINGI BURDEN OF PROOF.
INDEED, THIS COURT MADE CLEAR DRAWING ON THE STATUTES LANGUAGE AN STRUCTURE
THAT THERE WAS TO BE NO EXCEPTION EVEN FOR AN EXCEPTION OF AN AN ORDER, PERIODIC
REVIEW WOULD PROPERLY CABIN STATE POUWERW. BUT IN THIS CASE
AT THE ADDITION'S BEHEST A JUDGE CUT CORNERS MPOSEINGI AN ORDER WITH NO TIME
LIMBITITI AND NO PERIODIC REVIEW TO RENEW RELIEF. THAT SHOULD NOT STAND
MENT. THE NEED FOR PERIODIC REVIEW IS CLEAR HE, ORDERLY MINIMIZE.
I SAY ODDLY BECAUSE ON ITS FACE THE ORDER PROVIDES FAR MORE THAN
AS RESPONDENTS CONTEND SUPERVISION BY FAMILY MEMBERS. IT DEMANDS COMPLIANCE
WITH COMPLIKCCATED AN INTENSE DESCRIBING PSYCHIATRIC REGIMENS AN VARIOUS
THERAPEUTIC REJGIMENSGIMENSG. BY ITS'S'S' TERM SUCH AN ORDER SCREAMS
FOR A NEED FOR ONGOING JUDICIAL SUPERVISION, TIME LITS IT IS, AND
AKCCCESS TO COUNSEL AND EXPERTS TO ASSESS AN EVALUATE THE DEMANDED INTERVENTIONS.
OERPD, IF WHAT IS NANDED OF MY CLIENT IS THE MINIMAL OF THE
FAMILY SUPERVISION RESPONDENT'S CLAIM THEN THE NEED TO EMPLOY THE COERCEIVEI P
JUDICIAL ORDER SEEMS OVER KILL VIOLATION OF SUCH AN ORDER WOULD
PERMIT CITING MY CLIENT FOR CONTEMPT AN EVEN RIVENG PUTTING FAMILY MEMBERS
IN PERIL OF VIOLATE A COURT ORDER IF SUPERVISION WENT AWRY.
BEFORE AN AFTER, MY CLIENT RETAINED JOINT LEGAL AN PHYSICAL CUSTODY OF HER CHERN
AND THE FAMIY CONTINUES TO RESIDE TOGETHER. MY CLIENTS.
IF FAMILY MEMBERS ARE TRUSTED TO SUPERVISE MY CLIENT THERE IS NO REASON FOR A JUDICIAL
HAMMER IN THE FORM FOOF AN IDEFINITE SECTION 12 ORDER TO HANG OVER THEIR
HEAD AS WELL AS THAT OF MY CLIENT. DOING SO CONNOTES SIMPLY THAT THE
DIVISION WANTS TO BE DONE WITH THIS FAMILY NOT THAT THE ORDER HELPS THE
FAMILI MANAGE THEIR AFFAIRS. PUSH BACK SUGGESTS THAT ALL CONCERNED MUST HAVE THE
PRTECTION OF PERIODIC REVIEW AND TIME LITS THAT SECTION 12 CONTEMPLATES,
CHECKS THE LEGISLATURE SET NOT. AT BOTTOM THE ORDER WITH ITS'S'S'
EAVY AND INTRUSIVE NANDZ IS A GRAT TUITOUS MISSUUSE OF STATE POUWWER, SECTION
12 CONTEMPLATES THAT SUCH POUWWWER WHEN EXERCISED MUST BE SUBJECT TO PERIODIC REVIEW
AN TIME LIMBIITS. THERE IS NO CHALLENGE TO WHETHER THE RESTRAINTS
AND OTHER RELIEF WERE WARRANTED AT THE TIME OF THE LAST FARMLY PART HEARING.
FINALLY WHAT IS AT ISSUE NOW IS WHETHER THOSE RESTRAINTS CAN REMAIN AUTHORIZED
UNDEFINITELY UNDERSTAND SECTION 12 THE STATUTE ON WHICH THE LOWER COURTS
RELY, WE THINK THE STATUTE MAKES CLEAR. THE RESPONDENTS, EFFECTIVELY
LEAVES BOTH THE TIME LIMBIIT AND PERIODIC REVIEW OUT OF THE LAW, THEY ARGUE
GU THAT IT PERTAINS ONLY TO AN INITIAL ORDER, PERHAPS ON THIS DAY I AM NO.
JUSTICE PATTERSON: MR. MITCHELL, SLOW DOWN A LITTLE BIT AN RAISE YOUR VOICE
IF YOU DON'T MIND. T. GARY MITCHELL: OKAY. I'M
SORRY, USHS. EVEN MORE TROUBLING THEY ASK THE COURT TO READ
INTO THE LAW AN EXCEPTION FOR ORDERS ENTERED WHEN TERMINATING SECTION 12 LITIGATION.
THEY ARGUE THAT AT SUCH TIME A COURT'S POUWWER IS UN CONSTRAINED. THE
ARGUMENT IN ALL DUE RESPECT IS ABSURD. TO DO SO IS CONTRARY TO THE PLAIN LANGUAGE
OF THE LAW WITH ITS''S INTENTIONALLY FLEXIBLE BUT CABINED AUTHORITY.
UNDER RESPONDENT'S THEORY A SECTION 12 CASE COULD BE TERMINATED UPON ENTRY
OF AN INITIAL ORDER WITH THAT ORDER TO LAST FOR ALL TIME, NOT LIMBIITED TO THE
SIX MONTHS AN REQUIRING PERIODIC REVIEW. THE LEGISLATURE PROVIDED OTHERWISE,
IN CONSTRUEIING SECTION 12, THIS COURT SHOULD ACKNOWLEDGE THAT AN ORDER ENTERED
UNDER THAT STATUTE WHENEVER ENTERED IS LIMB I HAD BY THE TWO CRUCIAL CHECKS
THAT THE LEGISLATURE PUT IN PLACE ORDERS CABINED BY TIME AND PERIODIC REVIEW.
RESPONDENTS ARGUE TO THE CONTRARY SAYING A PARENT MAY STILL
CHALLENGE A SECTION 12 ORDER; THAT FRANKLY IS I WILL LUS SORERRY. IT IGNORES THE
STATE'S BURDEN OF PROOF, SECTION 12 CASE, ALSO REQUIRES A RIGHT TO I POINTED
COUNSEL. THE NEED FOR COUNSEL IS EVEN GREATER AFTER THE STATE
GRANTS RELIEF OR GAINS RELIEF. THE ORDER HERE PULLS THE RUG OUT FROM UNDER THAT
RIGHT. TERMINATING A SECTION 12 CASE ENDS THE RIGHT TO APOIBTD
COUNSEL MEANS APPARENT WILL NOT HAVE COUNSEL TO PREPARE A CHALLENGE TO RESTRAINTS
OR AN ORDER'S NANDZ. IF A SECTION 12 ORDER ISONGOING OUR
POSITION WOULD BE THE RIGHT TO COUNSEL ALSO MUST BE. YOUR HONORS, IF YOU
FURTHER QUESTIONS OR SOME QUESTIONS FOR ME I WOULD BE FLAD TO DISCUSS THEM WITH
YOU,.. THE COURT: SINCE THE TERMINATION OF TITLE 30 PROCEEDING
HAS YOUR CLIENT REFERRED ANY SERVEIICES FROM THE DIVISION, MYTH MT I DON'T BELIEVE
SO YOUR HONOR. I AM NOT CERTAIN OF THAT. IT HAS BEEN SINCE AUGUST OF 2021.
WE HAVE HAD A LONG PERIOD OF TIME DURING THAT PERIOD. BOOEF HAD A LONG PERIOD OF TIME
EELLAPSE AND I CAN'T SAY FOR SURE, BUT I DON'T BELIEVE SO. THE
COURT: I WANT TO JUST PICK UP ON SOMETHING YOU ENDED YOUR ARGUEMMENT, APPOINTMENT
OF COUNSEL, THE ARGUEMMENT THAT THAT WOULD BE REQUIRED FOR THIS SORT OF
ACTION IF IT WERE TO BE PERMITTED. CAN A PUBLIC DEFENDER PROVIDE
REPRESENTATION, DOES IT HAVE THE AUTHORITY TO DO SO AT THIS POINT?
T. GARY MITCHELL: IF THE CASE IS CLOSED IN THE COURT, THE AUTHORIZATION
FOR PUBLIC DEFENDER REPRESENTATION, WHICH OH KUS UNDERSTAND CHRIS RATHER THAN
UNDER A STATUTE, BECAUSE 34 C COLON STILL DOES NOT PROVIDE ANY RIGHT TO COUNSEL
THAT IS STATUTORY. THE RIGHT TO COUNSEL ARISES IN A 34 C 12 CASE AS A RESULT OF
THE APPELLATE DIVISION'S DECISION HALF A CENTURY AGO IN GRIT, WHICH WAS A
34 C 12 CASE. THE COURT: IS THAT A YES OR NO. T.
GARY MITCHELL: IF THE CASE IS CLOSED, IT WOULD BE NO. TO PROVIDE REPRESENTATION,
IT WOULD REQUIRE IT, IF I READ CHRIS AN OPEN AN ONGOING CASE UNDERSTAND
34 C 12. JUSTICE FASCIALE: SO YOU WANT US TO REMAND AND REINSTATE
WITH THE RESTRAINTS. T. GARY MITCHELL: I THINK THAT'S WHAT WOULD
BE PRUDENT, JUSTICE. I THINK THE FAMILY PART CAN THEN ASSESS GETTING FRESH
PROOFSTO WHAT MIGHT BE REQUIRED, BUT YES, I THINK THAT WOULD BE, JUSTICE, THE
APPROPRIATE ACTION FOR THIS COURT TO TAKE. JUSTICE PIERRE-LOUIS:
WITH REGARDS TO ADDRESSING THE MENTAL HEALTH CONCERNS THAT YOU MENTION IN
THE ORDER, EXACTLY WHAT ARE THE REQUIREMENTS? THE ORDER INDICATES
THAT YOUR CLIENT COULD RETURN TO THE COURT SHOWING THAT SHE HAS COMPLIED WITH
ALL THE TREATMENT. WHAT ARE THE REQUIREMENTS THAT SHE HAS TO
COMPLY WITH? IS THAT CLEAR? T. GARY
MITCHELL: YOUR HONOR, RESPECTFULLY, I DON'T THINK THA'S CLEAR. I THINK THE FAMILY
PART ORDER KIND OF WAS A GRAB BAG OF SORTS. PSYCHIATRIC REGIMENS,
PSYCHOLOGICAL REJGIMENSG, BEHAVEIIORAL, COGNITIVE, MEDICATION. THE COURT'S ORDER
LEFT A LOT UNDER APPRECIATED. AND WITHOUT THE DIVISION'S CONTINUED GUIDANCE
AND WITHOUT COUNSEL'S ASSISTANCE AN FRANKLY THE EXPERTS THAT COME ALONG WITH THE
RIGHT TO APPOINTED COUNSEL, I THINK A PARENT, SUCH AS MY CLIENT WOULD BE
LEFT GUESSING ABOUT WHAT WOULD BE NEEDED AND CERTAINLY WITHOUT THE TOOLS TO GET
BACK TO COURT. YOU KNOW, IT IS ESAASY TO SAY, JUST FILE A MOTION.
AND THAT, I DARE SAY, WHEN I SUGGESTED IT TO SOME OF MY LAW STUDENTS THE OTHER
NIGHT, I WAS MET WITH, WELL, WHAT DO YOU DO? AND THESE ARE
SECOND AND THIRD YEAR LAW STUDENTS. SOMEBODY WHO IS FORCED TO PROCEED PRO SE
BECAUSE COUNSEL HAS BEEN REMOVED AT THE CONCLUSION, AT THE TERMINATION MUCH
A SECTION 12 CASE ECCASE. I THINK THEY FRANKLY WOULD BE LEFT TO GUESS AN I DON'T
THINK THAT'S FAIR TO ANYBODY INVOLVED SFWLFRMENTS IF THE RELIEF YOU'RE
SEEKING WOULD BE GRANTED, WOULD THE CHILDREN NEED TO BE INVOLVED AT PERIODIC
REVIEWS? T. GARY MITCHELL: YOUR HONOR, IF THE -- FRANKLY,
I DON'T THINK THERE WOULD BE A NEED. IT WOULD DEPEND UPON THE PROOFS. CERTAINLY
IF THE ORDER IS, AS MINIMAL A REQUIREMENT AS THE RESPONDENT'S MAKE OUT, THERE
WOULDN'T BE MUCH TO ADDRESS AND IT WOULD BE A MINIMAL BURDEN ON THE STATE ET AL.
IT WOULD BE A MINIMAL BURDEN ON EVERYONE. IT IS ONLY MY CLIENT, FRANKLY,
THAT NEEDS TO BE ABLE TO ESTABLISH THROUGH COUNSEL, THROUGH THE EXPERTISE THAT
MIGHT COME ALONG WITH THE EXPERTS THAT COUNSEL COULD OBTAIN TO SHOW
COMPLIANCE AND TO SHOW THAT KIND OF COMPLIANCE WITH THE -- OR TO SHOW FRANKLY, THAT
THE REJGGIMEN AND PSYCHIATRIC TREATMENT AN PSYCHOLOGICAL TREATMENT IS NO LONGER
NECESSARY; THAT, TOO, IS A POSSIBILITY. I THINK THE ROLE OF
ALL PARTIES WOULD BE SUBJECT TO THE FAMILY PART JUDGMENT. ITHETHET THIRN I THE
CHILDREN, I THINK WOULD HAVE MINIMAL NEED TO BE A PART OF THAT PRCESS.
JUSTICE WAINER APTER: CAN YOU CLARIFY SOMETHING THAT I THOUGHT
YOU SAID EARLIER. DID YOU SAY THAT THE CLIENT STILL LIVES WITH HER
CHILDREN AND HER HUSBAND. T. GARY MITCHELL: THEY ALL LIVE TOGETHER
AS AN INTACT FAMILY. JUSTICE PATTERSON: BUT YOU'RE NOT
CONTESTING THE NEED, AS ON THE RECORD THAT CURRENTLY STANDS FOR CONTINUED
RESTRAINTS ON HER CONTACT, UNSUPERVISED CONTACT OF THE CHILDREN.
T. GARY MITCHELL: EXACTLY. WE TOOK THE POSITION IN OUR PETITION AND I THINK AS
THE COURT QUESTIONED OR THE COURT'S ORDER GRANTING CERTIFICATION STAID,
THOSE ISSUES ARE OFF THE TABLE. WHILE THEY WERE CONTESTED IN THE APPELLATE DIVISION,
WE THINK THE MORE IMPORTANT ISSUE IS, FRANKLY, AND AT THIS STAGE SINCE WE'RE
A FEW YEARS OUT FROM THE LAST FAMILY PART PROCEEDING, I WOULD BE REMISS IF I WOULD
SUGGEST THAT WE KNOW IN ANY SENSE WHAT MAY BE NECESSARY AND WHICH IS ALL WE'RE
SEEKING IS THE OPPORTUNITY TO BE ABLE TO HAVE THE FAMILY PART AND COUNSEL TRAES
THOSE WITH THE JUDGE THAT I THINK SECTION 12 CONTEMPLATES HAVING A CONTINUEINGI
ROLE IF THE RESTRAINTS CONTINUE UNDER THE THAT STATUTE. JUSTICE
FASCIALE: WOULD IT BE A COMPLIANCE HEARING OR A DISPOSITIONAL HEARING ON THE PERIODIC
REVIEW? T. GARY MITCHELL: I THINK SECTION 12
CONTEMPLATES A SUMMARY HEARING. AS THE FAMIY PART HEALTH IN 18 MONTHS OR SO.
JUSTICE FASCIALE: RIGHT I THINK AT THE DISPOSITIONAL HEARING
THAT THE JUDGE HELD HERE, THE JUDGE TOOK TESTIMONY FROM THE TREATING PSYCHOLOGIST
AN THE CASEWORKE. T. GARY MITCHELL: YES.
JUSTICE FASCIALE: THAT WOULD BE WHAT YOU WOULD EXPECT IF WE REMANDED FOR PERIODIC
REVIEWS? T. GARY MITCHELL: YES; THAT WOULD BE WHAT I WOULD
EXPECT AND I THINK THE BURDEN ON THE DIVISION WOULD BE MINIMAL AND, ITS''S, FRANKLY,
SOMETHING THAT THAT SECTION 12 CONTEMPLATES, THAT KINDS OF-- I HATE TO USE
THE PHRASE, BUT NOT A QUICK AND DIRTY KIND OF APPROACH TO A HEARING UNDER SECTION
12, BUT CERTAINLY AN EXPEDITIOUS ONE. JUSTICE FASCIALE: LIKE
A PERMANENTCCEYY ONE, RIGHT? T. GARY MITCHELL: YES.
JUSTICE FASCIALE: JUSTICE PIERRE-LOUIS LOU ASKED ABOUT THE CONDITIONS.
IF WE DID NOT REVERSE, THAT WOULD BE IMPOSED IN LIFTING THE RESTRAINTS.
AS I UNDERSTAND IT, THERE WERE THREE. YOUR CLIENT MUST ADDRESS
HER MENTAL HEALTH ISSUES; SHE MUST COMPLY WITH ANY REPRESENTATIONS; AND, SHE
NEEDS TO ACHIEVE A LEVEL OF SUSTAINED STABILITY. THOSE THINGS CAN BE
ADDRESSED AT THE DISPOSITIONAL HEARING IF WE REVERSED AND REMANDED ANYWAY,
RIGHT? T. GARY MITCHELL: YES. THAT WOULD BE A CONTINUEIING
ROLE FOR THE FAMILY PART JUDGE AND FOR THE NEED WHETHER THOSE RESTRAINTS WOULD
CONTINUE AND FOR HOW LONG, WITHIN THAT SIX-MONTH PERIOD AND, YOU KNOW, IT
STRIKES ME THAT TO HOLD A HEARING OF THAT, FRANKLY, BREVITY FOR, AT MOST, TWICE
A YEAR IS A MINIMAL LIST BURDEN AND CERTAINLY IS WHAT THE LEGISLATURE
CONTEMPLATED I WOULD SAY UNDERSTAND SECTION 12. JUSTICE WAINER APTER:
YOUR DVERSARY SAYS THAT HAD THE LEGISLATURE INDEED CONTEMPLATED THAT ANY
SUCCESSIVE EXTENSION OF A SECTION 12 ORDER BE LIMBIITED TO SIX MONTHS IT WOULD HAVE
SAID SO EXPRESS LY LIK IT DID FOR THE TITLE 9 OTDZ WHICH SAY THE COURT SHALL DEFINE
PEMISSIBLE TERMS AN CONDITIONS UNDERSTAND, SHALL NOT EXCEED A PERIOD OF
ONE YEAR UNLESS THE COURT FINDS AT THE CONCLUSION OF THAT PERIOD OF ONE YEAR UPON
A HEARING THAT EXCEPTIONAL CIRCUMSTANCES REQUIRE AN EXTENSION THEREOF FOR
ANY ADDITIONAL YEAR. THE LANGUAGE IN SECTION 12 IS NOT NEARLY AS
CLEAR, CORRECT? T. GARY MITCHELL: WELL, YOUR HONOR,I CAN'T
SAY CORRECT NTIRELY BECAUSE I THINK THE COURT'S POSITION IN I S SAID ANY
EXTENSION WOULD BE INFORMED BY THE REFERENCE TO THE TIME LIMBIIT THE SIX-MONTH
ORDER, THAT ANY ORDER ENTERED UNDER THAT SECTION, EVEN IF IT IS EXTENDED
WOULD ONLY BE EXTENDED FOR THE PERIOD CONTEMPLATED IN THE STATUTE.
JUSTICE WAINER APTER: THE STATUTE IS NOT EXPLICIT ABOUT THAT IN THE SAME WAY
IT IS FOR TIGHT 89, CORRECT? I UNDERSTAND THE COURT SAID
THAT, BUT I AM SAYING YUS READING TITLE 30 AND TITLE 9, SECTION 12 OF TITLE
30, TITLE 9 SEEMS TO BE VERY EXPLICIT IT CAN ONLY BE FOR ONE YEAR AND THERE CAN BE
A HEARING AT THE ENDS OF ONE YEAR AND YOU CAN EXTEND IT FOR ANOTHER YEAR.
HERE THE STATUTE SAYS, CLOP READ FAST CLOP. EXTEND THE TIME OF THAT ORDER.
IT DOES PT SAY HOW LONG THE TIME THE COURT CAN EXTEND IT FOR, IT IN THEORY LEAVES
OPEN THAT THE COURT EXTEND AT THE ENDS OF SIX MONTHS THE ORDER TO BE INDEFINITE
WHEREAS TITLE 9 IS VERY EXPLICIT ITS''S ONE YEAR AN THEN POSSIBLEYY AN
ADDITIONAL ONE YEAR AND THEN YO'RE DONE. IF THE LEGISLATURE WAS AWARE
OF TITLE 9, HOW DO WE INTERPRET TITLE 30 TO. A. T. GARY
MITCHELL: TITLE 9 # 0WWAS EVEN ABTDZ IN THE 1970S, THIS STATUTE THAT WE'RE DEALING
WITH DATES IN ITS CURRENT FORM TO 197662. THAT'S FRANKLY WHY I THINK THE
COURT AN WHY US SAID THAT THE EXTENSIONS THAT WERE CONTEMPLATED MUST ABIDE THE
INITIAL LANGUAGE OF THE STATUTE, SIX MONTHS IN DURATION.
FRANKLY, IT MADE SENSE GIVEN WHAT THIS COURT ALSO RULED IN I.S., THAT THIS WAS ESSENTIAL
LY A NO FAULT, NO PARENTAL FAULT WAS REQUIRED FOR ENTRY OF AN ORDER UNDER
SECTION 12 UNLIKE TITLE 9, WHICH FRANKLY I LOST THAT ARGUEMMENT BEFORE THIS COURT
IN I.S. WHEN I SOUGHT TO SUGGEST THAT THERE WAS A FAULT REQUIREMENT TO BE
INCLUDED IN 34 C 12 AND THIS COURT CONCLUDED IT WAS OTHERWISE, BUT SAID, YOU DON'T
NEED THAT ADDITIONAL REQUIREMENT OF FAULT TO PROVIDE RELIEF IN THE BEST INTEREST
OF CHILDREN UNDER 30444 C 12 BECAUSE THE RELIEF IS TIME LIMBIITED AND REQUIRES
PERIODIC REVIEW. I DON'T THINK IT CAN BE GUIDED NECESSARYIILY BY WHAT HAPPENED
ABOUT 15 YEARS LATER WHEN THE LEGISLATURE ENACTED TITLE 9.
JUSTICE MICHAEL NORIEGA: YOU SPEAK TO THE ISSUE OF THE BURDENS THAT YOUR YOUR CLIENT
WOULD FACE IF ASKED TO FILE FOR THE RELIEF TO REMOVE THE RESTRAINTS ON HER
OWN GOING FORWARD. CLOP CAN YOU SPEAK CLOP. T. GARY MITCHELL:
YE, I THINK IT WOULD BE A SUBSTANTIAL BURDEN EVEN WITH COUNSEL, BUT CERTAINLY
COUNSEL CAN DRAW ON EXPERTS THROUGH THE PUBLIC DEFENDER, THROUGH THE OFFICE
FOOF PARENTAL REPRESENTATIONS IF THERE WAS CONTINUEIING COUNSEL. THE
PAPERS WOULD HAVE TO BE GATHERED, THE DOCUMENTATION REQUIRED -- THE REJGGIMEN THAT
IS SPECIFIED IN THE ORDER IS, FRANKLY, IN MY MIND, AS A RAUR, IF I WERE
APPROACHING IT IN TIM DATING. IN DIM DATING. IT INVOLVES, HAVE I COVERED THE COG
NITIVE, THE MEDICATION ISSUES, WHAT IS, YOU KNOW, SUSTAINED STABILITY MEAN. I
NEED AN EXPERT TO DO THAT. BUT . JUSTICE MICHAEL NORIEGA:
BUT THAT HAPPENS REGARDLESS EVEN IF THE TITLE 30 MATTER IS REINSTITUTED.
T. GARY MITCHELL: YES, BUT COUNSEL AND COUNSEL'S EXPERTS WOULD BE ALONGSIDE
THE CLIENT, GUIDEIING HER, DIRECTING HER, PREPARING THE DOCUMENTATION FOR THAT,
WHICH WOULD BE, I WOULD EXPECT EXPERT REPORTS OF VARIOUS TYPES, AFFIDAVITS TO PRESENT
TO THE COURT PERHAPS IN LOU LIEU OF TESTIMONY OR TESTIMONY OF A WITNESS
TO THAT EFFECT. GATHERING ALL THAT INFORMATION IS A SUBSTANTIAL UNDERTAKING.
JUSTICE SOLOMON: AND AS WE STAND NOW, SHE DOES NOT HAVE THE
ASSISTANCE OF COUNSEL TO TRY TO REOPEN THIS. SHE IS STARTING ON HER OWN.
T. GARY MITCHELL: THAT'S CORRECT, YOUR HONOR. I AM HER LAST EFFORT
IN THAT REGARD BECAUSE OF THE NATURE OF THE APPEAL. AT TRIAL WITH A CLOSE,
PERMANENTLY CLOSED TITLE 30 CASE, SHE IS ON HER OWN. JUSTICE MICHAEL
NORIEGA: JUST TO BE CLEAR, SHECOULD GET PRIVATE COUNSEL IF SHE WAS ABLE TO OR
CHOSE TO. YOU'RE TALKING ABOUT APPOINTED COUNSEL ONLY. T. GARY
MITCHELL: I AM TALKING ABOUT AS SHE HAD IN THIS CASE A DETERMINATION OF IN DIJ
GENERAL'S SEE AND A RECEIPT OF APPOINTED COUNSEL. JUSTICE
SOLOMON: IN ANY EVENT, WHETHER SHE HAS PRIVATE COUNSEL OR APPOINTED COUNSEL, IN
THIS SITUATION THAT WE HAVE HERE, BY INFERENCE, THE BURDEN IS NOW ON THE
PARENT, NOT ON THE DIVISION. T. GARY MITCHELL: YES.
JUSTICE SOLOMON: AND YOU ARGUE THAT IS NOT ACCEPTABLE OEITHE? T.
GARY MITCHELL: THAT INVERTS THE CONTEMPLATED BURDEN THAT THE STATUTE
SPECIFIED THAT EACH EFFORT TO EK EXTEND A TITLE 30 SECTION 12 ORDER THE STATE
WOULD HAVE THE SAME BURDEN. IT IS REVERSED HERE. IT REQUIRES THE INDIGENT PARENT
TO COME FORWARD WITH SHOWING SOME KIND OF -- AS IT MIGHT OHCCCUR IN A FAMILY
COURT CUSTODY HEARING, SHOWING CHANGED CIRCUMSTANCES. MANY THIS IS NOT A
CUSTODY ORDER. THIS IS AN ORDER THAT HAS SPECIFIC REJGGGIMENS, REQUIREMENTS, NOT
JUST THE SUPERVISION REQUIREMENT. THE FAMILY HAS MANAGED THAT WELL ON THEIR
OWN. IT IS THEER OTHER ONEROUS REQUIREMENTS OF THE ORDER THAT ARE AT BEST,
THEY RAARE BUT STILL ONEROUS AND TO BEAT THAT ON HER OWN WITH A BURDEN AS
YOUR HONOR SUGGESTS INVERTS WHAT THE STATUTE CONTEMPLATES. THE
COURT: FURTHER QUESTIONS ANYONE? ANYTHING YOU WOULD LIKE TO ADD.
T. GARY MITCHELL: NO, YOUR HONOR, I WILL WAIT UNTIL MY THREE
MINUTES OF REBUTTAL LATER. CHIEF JUSTICE RABNER: THANK YOU, MR.
MITCHELL. MS. LINHORST. MOLLY K.C. LINHORST:
MAY IT PLEASE THE COURT. THE A.C. WILL YOU OF NEW JERSEY IS HERE FOR ONE VERY
SPECIFIC REASON ENSURE THAT JAN HAS AKCCCESS TO COUNSEL TO ASSIST HER IN MODIFYING
OR REMOVING ANY RESTRAINTS ON HER PARENTING AND TO BE CLEAR, NONE OF THE
PARTIES HERE TODAY QUESTION J.C.'S RIGHT TO LEGAL REPRESENTATION TO REMOVE HER MODIFIED
RESTRAINTS AS YOU HEARD FROM MR. MITCHELL, THIS IS A SIGNIFICANT
CONCERN FOR THE OFFICE FOOOF PARENTAL REPRESENTATION AN THE STATE AGENTCCIES
LIKEWISE ACKNOWLEDGE AND EMPHASIZE THE IMPORTANCE OF COUNSEL FOR O A G ON
PAGES 15 TO 16 OF THEIR BRIEF THEY EMPHASIZE THE IMPORTANCE OF COUNSEL FOR BOTH
PARENTS AN MINEOORS IN THE EE VENT OF REOPENING TO MODIFY OR LIMBIITING
RESTRAINTS AND ON THE DCPP&&&P BRIEF, FOOTNOTE 7 IT INDICATES THEY WOULD NOT TAKE
ISSUE WITH THE APPOINTMENT OF COUNSEL CITEIING TO THE STATEMENT DCPP&&&P V
SOUTHEAST, IT IS CRUCIAL TO ENSURE THAT THE PARENTS ARE REPRESENTED BY COUNSEL.
THIS COURT OF COURSE HAS LISTED A LONG LINE OF OPINIONS AND
TO PROTECT AN ADVANCE OF PARNLT'S RIGHT TO COUNSEL IN CASES THAT INVOLVE THEIR
PARENTAL LIBERTY LIMBIITS. IT IS THE PROCEDUREAAAL POSTURE
AND MURKINESS OF PROCESS IN CASES LIKE J.C.'S THAT COULD LEAVE HER WITHOUT
THE SUPPORT THAT SHE NEEDS TO ADDRESS THE RESTRAINTS WHEN SHE IS READY. WE ARE
NOT HERE TO SUGGEST THAT DCPP&&P'S OVERSIGHT, SURVEILLANCE OF THE FAMILY
SHOULD GO ON IN DEFLIINITELY, NOR ARE WE HERE TO SUGGEST THAT THE COURT HAS NO
AUTHORITY WHATSOEVER TO ISSUE CONTINUEIING RESTRAINTS, BUT IN CASES LIKE J.C.'S
IF THERE IS NO MECHANICSSM TO ENSURE REPRESENTATION AFTER TERMINATEIING
THE CASE AS MR. MITCHELL LAID OUT, THIS EFFECTIVELY CLOSES THE COURTHOUSE DOORS
TO PEOPLE LIKE J.C. ONCE J.C.'S TITLE 30 CASE IS CLOSED SHE
NO LONGER HAS A CLEAR STATUTORY RIGHT TO APPOINTED COUNSEL ANDZ O P R DOES
NOT INTERPRET THAT SHE WOULD HAVE WOULD CONTINUE TO HAVE THAT STATUTORY RIGHT TO
APPOINTED COUNSEL. NOW, DCPP K.C. P AN O L QGC SUGGEST THAT
SHE WOULD THEN BE ELIGIBLE TO APPOINTED COUNSEL ONCE SHE PETITIONS OR APPLIES
TO MODIFY OR REMOVE THE RESTRANS ON HER BUT THE TIMING OF THAT IS WHAT CREATES
A SIGNIFICANT HURDLE. THAT WOO TRIGGER REPRESENTATION ONLY AFTER FILING
SOMETHING. AFTER SHE WOULD HAVE TO TAKE MANY AFFIRMATIVE STEPS, MANY OF WHICH
MRT.. MITCHELL DISCUSSED INCLUDING GETTING SIGNIFICANT MNTAL HEALTH STREEMENT
THAT THE COURT ORDERED, SECURING PROFESSIONALS CAN PROVIDE TO THAT
TREATMENT AN SPEAK TO EXPERTS, AND FILE THE NECESSARY LEGAL DOCUMENTS AN UNDER THE
RIGHT DOCKET DESIGNATION TO ENSURE SHE GETS THE RELIEF SHE WANTS AND THAT
SHE GETS O P R REPRESENTATION. ALL OF THESE STEPS THAT ARE ON J.C.
REQUEST NECESSITATE THAT SHE BE ABLE TO AKCCCESS APPOINTED COUNSEL EARLIER.
ADD TO THAT FACT THE FACT THAT J.C. HAS BEEN DIAGNOSED WITH SERIOUS MENTAL ILNESSES
WHICH CAN SERVE AS A MAJOR HURDLE TO GETTING THE TREATMENT SHE NEEDS,
GETTING INTO THE COURTS AN THEN SUCCEEDING SO WE, THEREFORE, ASK THIS COURT TO FIND
AWAY TO ENSURE THAT LEGAL SUPPORT AN LEGAL REPRESENTATION, APPOINTED
REPRESENTATION FOR J.C. AND OTHERS IN HER POSITION CONTINUES FOR PARENTS WHO ARE
SUBJECT TO CONTINUING RESTRAINTS AFTER TERMINATION OF THEIR CASES.
THE COURT: QUESTIONS ANYONE? ANYTHING YOU WOULD LIKE TO ADD,
COUNSEL? MOLLY K.C. LINHORST: CHIEF JUSTICE
RABNER: THANK YOU. MS. WALLACE. ELIZABETH H.
WALLACE: MAY IT PLEASE THE COURT. N.J.S.A. 30:4 C-12 IS A TOOL
THAT ALLOWS THE DIVISION TO SEEK THE COURT'S ASSISTANCE IN THOSE LIMBIITED
INSTANCES WHERE THERE IS NO ABUSE AN NEGLECT IN AFAMILY BUT SERVES ARE WARRANTED
TO ENSURE THE SAFETY OF THE CHILDREN. BECAUSE TITLE 30 IS ABOUT
PROTECTING CHILDREN FROM HARM THE RELIEF ORDERED UNDER TITLE 30 CAN AND
WILL VARI IN EACH UNIQUE FAMILIARLL CIRCUMSTANCE. EVERY KAM FEE THAT
COMES BEFORE THE COURT IS UNIQUE. THIS CASE INVOLVES A TWO-PAFRNT HOUSEHOLD, BUT
OTHER CASES MAY INVOLVE A ONE-PARENT HOUSEHOLD OR TWO OFFENDING PARENTS
RESIDEIING SEPARATELY OR TOGETHER. ALL OF THESE VARIATIONS IMPACT HOW EACH CASE
PROSE AN HOW EACH CASE IS RESOLVED. UNDER THE STATUTE THE FAMILY
COURT MAY FIND THAT THE BEST INTEREST OF THE CHILD REQUIRES THE COURT'S
OVERSIGHT OVER THE FAMILY FOR SIX MONTHS. THE COURT MAY THEREAFTER, UPON NOTICE
AN OPPORTUNITY TO BE HEARD TO ALL RELEVANT PARTIES, EXTEND THE TIME OF THE ORDER.
AFTER THE INITIAL SIX-MONTH ORDER, NO FURTHER TIME LIMBIITS
ARE PRESCRIBED. NOTHING THE STATUTE PROHIBITS THE COURT FROM TERMINATING THE
LITIGATION WITH RESTRAINTS AND THAT SILENCE IS A FEATURE OF THE STATUTE RATHER
THAN A DEEFFECT. BECAUSE NO TWO FAMILIAESE ARE ALIKE THIS
FLEXIBILITY ALLOWS THE DIVISION AN THE FAMILY COURT, THOSE WITH SPECIAL EXPERTISE
IN THE FIELD AND A TRUE, TO CATER TO FAMILIES TO THEIR OWN UNIQUE CIRCUMSTANCES.
APPELLANT'S READING OF THE STATUTE WOULD TIE THE HANDS OF THE
COURT, AND THE DIVISION. CLEARLY INSTRUCT THAT NEITHER THE DIVISION NOR PARENTS
HAVE THE RIGHT TO EXTEND LITIGATION INDEFINITELY UNTIL THE PARENTS ARE
ABLE TO SAFELY CARE FOR THEIR CHILDREN. IF A PARENT IS UNWILLING OR
UNABLE TO CORRECT THE CIRCUMSTANCES THAT LED TO THE RESTRICTION ON CONTACT
WITH THE CHILD, TERMINATION OF THE LITIGATION MAY BE APPROPRIATE.
APPELLATE ANTS NARROW READING OF THE STATUTE ALSO IGNORES THE IMPACT OF PRTRACTED
LITIGATION ON THE OTHER PARENT AND THE CHILDREN. THE APPELLANTS INTERPRETING
OF THE STATUTE WOULD RESULT IN UNREASONABLE OUTCOMES. CASES CANNOT REMAIN IN LITIGATION
IN PERPETUITY AND CHILDREN CANNOT REMAIN WARDZ OF THE COURT INDEFINITELY.
HERE, AFTER 19 MONTHS IN LITIGATION, THE COURT AFFORDED J.C.
A PLENARY HEARING WITH COUNSEL TO ASSIST HER, THEN CRAFTED A CAREFULLY TAILORED
RMEDY ENSURING THE SAFETY OF THE CHILDREN, WHILE ALSO BALANCING THEIR BEST
INTERESTS AN PROTECT TEKTING AGAINST THE IMPACT OF PROCEED TRABLTD LITIGATION.
CONTINUEIING LITIGATION MEANS CONTINUED INTERRUPTIONS IN A FAMILY'S DAILY
LIFE IN THE FORM FOOF VISITS BY DIVISION CASEWORKERS, LAW GUARDIAN'S AND THEIR
INVESTIGATEOORS AN CONTINUED COURT APPEARANCES ALL OF WHICH ARE MANDATED BY
STATUTE OR REGULATION. THE TRIAL COURT EVALUATED THE FAMIY'S
UNIQUE CIRCUMSTANCES AN RESOLVED THE CASE IN THE BEST INTEREST OF THE CHILDREN.
THE RESTRAINTS IMPOSED BY THE TRIAL COURT COULD BE REVISITED.
J.C. CAN RETURN TO COURT WITH COUNSEL TO REQUEST TO LIFT THE RESTRAINTS IN THE
FUTURE IF SHE WISHES. THE DIVISION RESPECTFULLY ASKS THIS COURT
TO AFFIRM THE APPELLATE DIVISION'S BALANCED DECISION. NONE IN TITLE 30
EXPRESSLY CONCLUDESONGOING DISCUSSIONS WHEN THE KISS IS CLOSED. TTLE
30 AS ITHS WRITTEN CONTAINS THE FLEXIBILITY NEEDED TO CONSIDER EACH FAMILY'S
UNIQUE CIRCUMSTANCES. AFTER 19 MONTHS THE TRIAL COURT'S RMEDY
IMPOSED THE LEAST RESTRICTIVE RESTRAINTS POSSIBLE ON J.C.'S PARENTSING RIGHTS
WHILE STILL NSURING THE PARENT CHILDREN'S SAFETY. I AM HAPY
TO ANSWER ANY QUESTIONS THE COURT MAY HAVE. THE COURT: IN
THEORY, HOW LONG CAN RESTRAINTS REMAIN IN PLACE AFTER THE TITLE 30 ACTION HAS
BEEN TERMINATED? ELIZABETH H. WALLACE: IT IS THE DIVISION'S VIEW
THAT THE RESTRAINTS CAN REMAIN IN PLACE UNTIL SUCH TIME AS THEY RAAARE MODIFIED
OR LISED UPON A RETURN TO THE COURT. THE COURT: SO IN THE
CASE OF A YOUNG CHILD, FOR EXAMPLE, THE RESTRAINTS COULD REMAIN IN PLACE FOR
MORE THAN A DECKAADE? HAD. ELIZABETH H. WALLACE: YES.
CHIEF JUSTICE RABNER: DURING THAT TIME. IS THERE ANY COURTED OVERSIGHT UNDER
THE CONSTRUCT THAT YOU'VE DESCRIBED? ELIZABETH H. WALLACE:
ONCE THE LITIGATION IS TERMINATED, THE COURT'S OVERSIGHT WOULD ALSO
NECESSARYILYI CONCLUDE. THE COURT: DOES ANYONE REPRESENT THE PARENT
DURING THAT PERIOD THAT CAN EXTEND FOR SOMETIME? ELIZABETH H.
WALLACE: ALLTHOUGHT THERE WOULD NOT NECESSARYIILY BE REPRESENTATION TO THE PARENT
AT THAT POINT IN TIME, WHAT IS IMPORTANT TO LOOK AT HERE IS WHAT OCCURRED
PRIOR TO THE TERMINATION OF THE LITIGATION. THE COURT: ARE THERE
ANY SERVEIICES THAT ARE PROVIDED DURING THAT TIME? ELIZABETH H.
WALLACE: ONCE THE LITIGATION IS CONCLUDED? THE COURT: YES.
ELIZABETH H. WALLACE: WHILE THE DIVISION WOULD NOT BE PROVIDING
SERVEICEIS, THE PARENT, IN THIS CASE, J.C. CERTAINLY COULD BE AT LIBERTY TO SECURE
SERVICES FOR HERSELF. THE COURT: ON HER OWN?
ELIZABETH H. WALLACE: ON HER OWN. SOMETIMES PARENTS PREFER THAT.
THE COURT: HOW DOES AN INDIGENT PARENT SECURE SERVEIICES?
ELIZABETH H. WALLACE: WELL, THERE IS A COUPLE OF AVENUES THAT A PAENT COULD TAKE
ADVANTAGE OF, EITHER LOCATEIIING THEIR OWN PRIVATE SERVEICEIS OR COMMUNITY BASED
SERVEIICES OR THE PARENT CAN CONTACT THE DIVISION, THE DIVISION HAS A VARIETY
OF HOT LINES AND EVEN HELP LINES THAT IT HAS ON ITS WEBSITE THAT IT COULD OFFER
RECOMMENDATIONS OR DIRECTION IN TERMS OF COMMUNITY-BASED SERVEIICES THAT
WOULD BE AVAILABLE SFLFRMENTS SO IN THIS CASE, THE ORDER TERMINATING LITIGATION
SAID THAT J.C. HAD TO COMPLY WITH TREATMENT RECOMMENDATIONS INCLUDING C
B T THERAPY, PSYCHIATRIC TREATMENT WITH A BOARD CERTIFIED ADULT PSYCHIATRIST AND
TO DEMONSTRATE A LEVEL OF SUSTAINED STABILITY. HAS THE
DIVISION PROVIDED ANY SERVEIICES SINCE THE TERMINATION TO THIS INDIVIDUAL?
ELIZABETH H. WALLACE: MY UNDERSTANDING IS THAT AFTER THE LITIGATION CONCLUDED
THE DIVISION ALSO ALSO CLOSED ITS CASE. THE COURT: SO WHAT
LANGUAGE IN THE STATUTE SUPPORTS THE SCHEME THAT YOU'VE JUST OUTLINED FOR US.
ELIZABETH H. WALLACE: YES. SO, IN LOOKING AT THE
STATUTE, IT IS THAT FINAL CLAUSE OF THE THIRD PARAGRAPH CHER RWWHERE IT
DIRECTS THAT THE COURT MAY EXTEND THE TIME OF THE ORDER. AGAIN, AS
POINTED OUT EARLIER, THERE IS NO SPECIFIC DESIGNATION AS TO HOW LONG THAT EXTENSION
MIGHT LAST. SFLFRNLTS YOUR ARGUEMMENT SOUNDS AS THOUGH YOU'RE STAYING THERE
IS NO PROHIBITION IN THE STAT ACTUALITY STATUTE. WHERE IS THE
AUTHORITY, THOUGH? ELIZABETH H. WALLACE: THE COURT ALSO HAS A
GREAT AMOUNT OF AUTHORITY AS HAS BEEN SET FORTH IN A VARIETY OF CASES SFLFRMENTS
WHERE IS THE AUTHORITY IN THE STATUTE. ELIZABETH H. WALLACE:
IN THE STATUTE. IN THE STATUTE, THE COURT IS AUTHORIZED TO
MAKE DETERMINATIONS IN THE BEST INTERESTS OF THE CHILDREN BASED ON THE RECORD THAT
HAS BEEN PRESENTED AND THE COURT MAY ISSUE ORDERS AS APPROPRIATE AND, THEREFORE,
EXTEND THE TIME OF THE ORDER. JUSTICE SOLOMON: LET'S ASSUME EVERYTHING
YOU SAY IS TRUE AND CORRECT. WHAT IS THE MECHANICSSM AND I THINK THIS IS
REALLY WHAT YOUR ADVERSARY HAS A PROBLEM WITH. WHAT IS THE
ACTUAL MECHANICSSM TO ENABLE IN THIS CASE AN INDIGENT PARNLT WHO IS REPRESENTED
BY THE PUBLIC DEFENDER'S OFFICE WHO SAID ONCE THE CASE IS TERMINATED WE'RE
NOT REPRESENTING HER, WE DON'T REPRESENT HER UNDER THE CASE LAW, WHAT IS THE
MECHANICSSM BY WHICH SHE GETS BACK INTO COURT PRESUME PLEA ON HER OWN WITHOUT
ADVICE OF COUNSEL ANDZ WITHOUT ANY STRUCTURE IN PLACE TO TELL HER HOW TO DO IT?
ELIZABETH H. WALLACE: TO ANSWER THAT QUESTION, I WANT TO
FIRST LOOK AT THE SPECIFICS OF THIS CASE AN THEN SPEAK A BIT MORE BROADLY TO THAT
ANSWER. SPECIFICALLY, HERE, J.C. DID HAVE COUNSEL THROUGHOUT
THE LITIGATION. JUSTICE SOLOMON: BUT SHE DOESN'T NOW.
ELIZABETH H. WALLACE: I UNDERSTAND. SHE DID HAVE -- HER COUNSEL WAS ACTUALLY
CRUCIAL IN THE DAFT DRAFTING OF THE LANGUAGE IN THAT FINAL TERMINATION
ORDER. ELIZABETH H. WALLACE: THEREOF, WE CAN LOOK TO WHAT HAPPENED
IN K L G CASES WHERE THE FINAL KL G ORDER CONCLUDES THAT LITIGATION. THEREAFTER,
IF A PARENT OR A GUARDIAN WISHES TO RETURN TO COURT, THEY CAN RETURN TO
COURT. THEY COMPLETE AN APPLICATION. UPON THAT APPLICATION BEING SUBMITTED TO
THE COURT NECESSARILY THE DEPUTY ATTORNEY GENERAL RETURNS TO THE CASE, THE
LAW GUARDIAN RETURNS TO THE CASE AND THE OFFICE FOOF PARENTAL REPRESENTATION RETURNS
TO THE CASE. JUSTICE SOLOMON: ISN'T THERE AUTHORITY FOR
THAT PROCESS AN PROCEDURE BY RULE AND STATUTE? KL G IS A LOT DIFFERENT
THAN THIS. ELIZABETH H. WALLACE: IT IS, BUT WE CAN LOOK TO
THAT PRCESS AS INSTRUCTIVE IN TERMS OF WHAT COULD OHCCCUR HERE.
JUSTICE SOLOMON: OKAY. BUT WILL YOU AT LEAST ACKNOWLEDGE THAT THAT
DOESN'T EXIST HERE AND THIS COURT WOULD HAVE TO CRAFT THAT FOR THESE KINDS
OF CASESES IS PREMISED ON THE THEORY THAT AN ORDER CAN BE TERMINATING THE CASE
LASTINGS FOR EVER UNLESS THE PARENT STARTS THE PROCEEDING IN THIS WAY THAT
KL G WORKS WITH -- PRESUMABLY CAN COUNSEL WNS THAT STARTS.
ELIZABETH H. WALLACE: WE DO AGREE THERE SHOULD BE A CONSISTENT PROCESS SIMILAR
TO KL G OR SOME DIRECTION. JUSTICE SOLOMON: RIGHT NOW THERE IS
NONE. ELIZABETH H. WALLACE: YES. CORRECT. THERE IS CURRENTLY
NO CONSISTENT PROCESS. L. JUSTICE PIERRE-LOUIS: GOING BACK TO THE
REQUIREMENTS IN THE ORDER WITH REGARD TO THE TREATMENT THAT J.C. SHOULD BE
SEEKING DURING THIS AMENDING, APPARENTLY PERIOD OF TIME DURING WHICH SHE SHOULD BE
COMPLYING SO, WHAT EXACTLY FROM YOUR PERSPECTIVE ARE THE
MENTAL HEALTH REQUIREMENTS THAT SHE NEEDS TO COMPLY WITH? ARE
THEY THE REQUIREMENTS INPUT IN THE PREVIOUS ORDERS OF THIS CASE?
ELIZABETH H. WALLACE: THE REQUIREMENT THAT THE TRIAL COURT WOULD LOOK TO
IN TERMS OF MODIFYING THE RESTRAINTS IF IT WERE TO RETURN TO COURT, PRESUMEAAABLY
WOULD BE WHAT WAS SET OUT IN THAT TERMINATION ORDER.
JUSTICE PIERRE-LOUIS: THE TERMINATION ORDER IS PRETTY GENERAL WITH REGARD TO ADDRESSING
ANY MENTAL HEALTH CONCERNS, COMPLYING WITH ALL TREATMENT RECOMMENDATIONS
WHAT I AM ASKING IS WHAT ARE THOSE TREATMENT RECOMMENDATIONS,
ARE THEY THE RECOMMENDATIONS THAT WERE PREVIOUSLY PUT IN PLACE BY PREVIOUS ORDERS
IN THIS CASE? W ELIZABETH H. WALLACE: THE PRIOR ORDERS WOULD BE
INSTRUCTIVE. JUSTICE PIERRE-LOUIS: SO THE PRIOR ORDERS, I
THINK TASH DASH IF I AM LOOKING AT ONE OF THE PRIOR ORDERS, I THINK, FROM JUNE
REQUIRED J.C. TO ATTEND THERAPY WITH A SPECIFIC DOCTOR, DR. FRANKLIN MAC ARTHUR,
IS THAT WHAT SHE IS REQUIRED TO DO NOW BECAUSE IT IS MY UNDERSTANDING THE
DIVISION WAS PROVIDING THOSE SERVEIICES. SHE WAS ALSO SUPPOSED TO BE
UNDER THE CARE OF A QUALIFIED PSYCHIATRIST, ALSO UNDER THE CARE OF A
THERAPIST, A SOCIAL WORKER, SO THA'S ALREADY THREE DIFFERENT INDIVIDUALS UNDER THEIR
CARE AND I BELIEVE DURING THAT PERIOD OF TIME, WHEN THOSE ORDERS WERE INPUTTED,
THE DIVISION WAS PROVIDING THOSE SERVEIICES. SO, NOW, AS YOU ALREADY
NOTED, NOW THAT THE CASE HAS BEEN TERMINATED, THE DIVISION IS NOT PROVIDING
ANY OF THOSE SERVEIICES SO THIS INDIVIDUAL WHO IS INDIGEN NEEDS TO FIND AT LEAST
THREE PROFESSIONALS TO BE UNDER THEIR CARE, PROVIDING CARE AT SOME DEGREE THAT
WOULD AT SOME POINT BE SATISFACTORY TO A COURT THAT IS NO LONGER SUPERVISEINGI
THIS CASE. DOES THAT SOUND LIKE IT PRACTICALLY MAKES SENSE
AT ALL? ELIZABETH H. WALLACE: SO THE OPPORTUNITY HERE IS
FOR THE PARENT TO LOCATE THEIR OWN SERVEIICES. AS I MENTIONED, EARLIER
PIERRE POOEFR YOU'RE SAYING THE OPPORTUNITY, BUT THE BURDEN IS ON, AGAIN, AN
INDIGENT PARENT TO LOCATE THEIR OWN SERVEII AND ENSURE THAT THE SERVEIICES
THEY RECEIVE FROM THESE INDIVIDUALS THAT THEY'VE LOCATED IS SUFFICIENT TO COMPLY
WITH THE REQUIREMENTS OF A COURT THAT IS NOT SUPERVISEIIING THEIR CASE.
ELIZABETH H. WALLACE: WELL -- AND, AGAIN, IF THE PARENT WANTED
TO HAVE SOME COMMUNICATION WITH THE DIVISION, EVEN IF THE DIVISION'S CASE IS
CLOSED AND CONTACTED THE DIVISION FOR REFERRALS OR DIRECTION IN TERMS OF
SERVEIICES THAT MIGHT MEET THOSE PARAMETERS OR FALL WITHIN THOSE SPECIFIED SERVEIICE
TYPES, THEN CERTAINLY THAT INDIVIDUAL COULD CONTACT THE DIVISION TO MAKE
THOSE REQUESTS FOR DIRECTION. AS I SAID, THE DIVISION NOT ONLY HAS
ITS ABUSE AN NEGLECT HOTLINE, IT HAS A VARIETY OF OTHER PHONE NUMBERS THAT
CAN BE CONTACTED FOR THAT ASSISTANCE. JUSTICE MICHAEL NORIEGA:
JUST ALONG THOSE LINES, PRACTICALLY SPEAKING WHAT DOES J.C. HAVE TO DO TO
WALK INTO BERGEN COUNTY SUPERIOR COURT AND GET A HEARING BEFORE THE COURT TO RESTART
THE TITLE 30 ACTION? ELIZABETH H. WALLACE: WELL -- AND, AGAIN,
ALLTTHOUGH THERE IS NO CONSISTENT PROCESS AT THIS POINT IN TIME IN TERMS
OF THAT MECHANICSSSM, BUT THAT IS REALLY WHAT IT IS, A MECHANICSSM THAT WOULD BE
NEEDED, WE WOULD LOOK TO J.C. PERHAPS COMPLETEIING SOME SORT OF APPLICATION,
SUBMITTING THAT TO THE COURT. JUSTICE WAINER APTER: THERE IS NO
APPLICATION, CORRECT? ELIZABETH H. WALLACE: CORRECT. THERE
CURRENTLY IS NOT THAT PRCESS. JUSTICE WAINER APTER: AM I
CORRECTLY UNDERSTANDING THAT THIS IS NOT THE ONLY TITLE 30 CASE THAT HAS BEEN
CLOSED WITH RESTRAINTS REMAINING IN PLACE. ELIZABETH H. WALLACE:
JUSTICE WAINER APTER: DCPP&&P IS ASKING THE COURT TO CLOSE
CASES WITH RESTRAINTS REMAINING IN PLACE WITH NO MECHANICSSSM EXISTING FOR THOSE
CASES TO EVER BE REOPENED? ELIZABETH H. WALLACE: WELL, ARGUEAABLY
THE MECHANICSMS THAT WOULD CURRENTLY EXIST IS A MOTION OF SOME SORT BEING
FILED BY THE INDIVIDUAL ASKING TO MODIFY THOSE RESTRAINTS. BAIN WAYNE EXAMPLES
RIGHT NOW HAVE TO BE FIELTD BY DCPP THE P. ELIZABETH H. WALLACE:
I'M SORR. JUSTICE WAINER APTER: I THINK THE A C L U SAID
ALL THE FORMS HAVE BEEN TO BE APPLIED BY DCPP&&P ITS'S' ALWAYS DCPP&&P THAT IS
APPLYING NOT THE PAREN. ELIZABETH H. WALLACE: WHEN TITLE 30 IS NESH
YATD, YES, IT IS INITIALTTED BY THE DIVISION. HOWEVER WE SEE NO REASON
WHY THE PREXISTING LITIGATION COULD NOT BE REOPENED OR REINSTITUTED SO THAT THE
COURT COULD REVISIT WHATEVER RESTRAINTS ARE PLACED IN THE FINAL COURT ORDER.
JUSTICE PATTERSON: IF THE COURT CONCLUDES THAT THE CURRENT
MECHANICSSM IS NOT SUFFICIENT TO ACHIEVE THE GOALS OF TTLE 30, BASED ON YOUR
EXPERIENCE REPRESENTING THE DIVISION, HOW SHOULD THE PROCESS WORK IF THERE WERE
TO BE A REINSTATEMENT OF THE CASE. ELIZABETH H. WALLACE: YES.
THANK YOU. SO ONE RECOMMENDATION THAT WE DO HAVE THE
PERHAPS A REFERRAL TO THE FAMILY PRACTICE COMMITTEE, BUT, AS I SAID, WE CAN LOOK
TO WHAT HAPPENS IN KL G CASES AS INSTRUCTIVE. IN KL G CASES, A PARENT CAN
RETURN TO COURT, COMPLETE AN APPLICATION, ITS'''S A FAIRLY BRIEF FORM, THAT THE
COURT HAS AVAILABLE AND WE SEE THIS QUITE OFTEN, VERY, VERY REGULARLY, IN TERMS
OF PARENTS AND GUARDIANS RETURNING TO COURT UNDER KL Gs WITHOUT THAT INITIAL
REPRESENTATION OF COUNSEL. JUSTICE PATTERSON: JUST FOR CLARIFICATION,
IS THIS THE TYPE OF SITUATION WHERE THE CHILDREN ARE PLACED IN A KL G
PLACEMENT, THE PARENT, FOR WHATEVER -- WHATEVER THE CIRCUMSTANCES MAY BE FEELS THAT
ITS''S TIME TO UNDO THAT AND GET FULL CUSTODY TO THE CHILD BACK; IS THAT
WHAT THE SCENARIO IS. ELIZABETH H. WALLACE: YES. ITS''S LIKE
ASKING FOR SHALL -- PERHAPS THE RESTRAINTS TO BE MODIFIED OR FOR THE RETURN OF THE
CHILD. JUSTICE PATTERSON: SO IT HAS SOME POINTS IN COMMON
WITH THE SITUATION. ELIZABETH H. WALLACE: YES.
JUSTICE PATTERSON: I INTERRUPTED YOU. PLEASE CONTINUES WITH HOW IT WOULD WORK.
ELIZABETH H. WALLACE: ONCE THAT APPLICATION IS FILED, AGAIN,
COUNSEL BOTH FOR THE DIVISION AN THE LAW GUARDIAN'S OFFICE IS REINSTITUTED AS WELL AS
THE OFFICE FOOF PARENTAL REPRESENTATION. THE MATTER THEN GOES BEFORE THE
COURT. THE COURT SETS DOWN WHATEVER SCHEDULE IT MIGHT SET, REQUESTS WHATEVER DOIMGS
IT MIGHT REQUEST AND THAT IS ESSENTIALLY WHAT WE SEE AS BEING INSTRUCTIVE HERE
AS A MECHANICSSM FOR THESE TYPES OF CASES TO BE REVISITED SFLFRNLTS WHAT SORT OF
SHOWING WOULD THAT APPLICATION HAVE TO MAKE? ELIZABETH H.
WALLACE: SO, THAT IS THE DIFFERENCE WITH KL G, HOWEVER. KL Gs ARE CLEAR AND
CONVINCEIING. HOWEVER, HERE, WHAT WE WOULD LOOK TO IS WHATEVER THE BURDEN WAS AT
THAT FINAL TERMINATION. SO, TIYPICALL, PREPONDERANCE OF THE EVIDENCE WOULD BE
THE STANDARD. THE COURT: SO THEY'D HAVE TO COME FORWARD
WITH DEMONSTRATEIIVE PROOFS THAT WOULD JUSTIFY REOPENING AND DO THAT ON THEIR
OWN WITHOUT COUNSEL? ELIZABETH H. WALLACE: THE INITIAL
APPLICATION, ALLTTHOUGH IT ASKS FOR PROOFS, THEY ARE SOMETIMES NOT MANDATED AND
OFTENTIMES THE COURT WILL REOPEN THE MATTER AND THEN GATHER ADDITIONAL
DOCUMENTATION. JUSTICE WAINER APTER: ARE YOU TALKING ABOUT IN
KL G SCENARIOS. ELIZABETH H. WALLACE: YES. JUSTICE
PIERRE-LOUIS: WHAT SHOULD IT BE HERE. ELIZABETH H. WALLACE:
WE'RE LOOKING AT PERHAPS A SIMILAR PROCESS OR SIMILAR MECHANICSSM BEING
APPROPRIATE IN THESE TYPES OF CASES WHERE AN INDIVIDUAL COULD RETURN,ING MAKE THAT
APPLICATION AND THEN THE COURT COULD LOOK TO WHATEVER INFORMATION MIGHT BE
AVAILABLE AGAIN, THE MOVEAAANT, THE PARENT WOULD BE THE
PERSON MOST WELL SUITED TO PROVIDE THE DOCUMENTATION BECAUSE PRESUMEAABLY
THEY WOULD HAVE LETTERS FROM THEIR SERVEIICE PROVIDERS OR WHATEVER IT MIGHT BE.
THE COURT: IS AN INDIGENT INDIVIDUAL WHO SUFFERS FROM MENTAL
HEALTH ILLNESSES THEIDEAL PERSON TO MAKE THAT APPLICATION?
ELIZABETH H. WALLACE: IT IS THE DIVISION'S VIEW THAT THAT INDIVIDUAL CERTAINLY
COULD BE IN A POSITION TO MAKE THAT APPLICATION, PARTICULARLY IF THEY HAVE
ARRIVED TO THE POINT OF HAVING THE SUPPORT OF WHATEVER THEIR SERVEIICE PROVIDERS
MIGHT BE TO SAY THAT THEY ARE IN A POSITION TO MAKE THAT SHOWING TO THE
COURT. JUSTICE FASCIALE: IF WE AGREE WITH YOU, DO WE HAVE
TO REVERSE I.S. THAT HAS BEEN IN PLACE FOR MORE THAN TEN YEARS?
ELIZABETH H. WALLACE: NO. THE COURT DOES NOT HAVE TO REVERSE I.S. IN FACT, IN
LOOKING AT I.S., REALLY WHAT HAPPENS IN THIS CASE IS CONSISTENT WITH I.S. IN
I.S., THERE IS SOME SPECIFIC LANGUAGE WHERE THE COURT RECOGNIZES THE FLEXIBILITY
AND THE AUTHORITY THAT IS VESTED WITH THE TRIAL COURT UNDER TITLE 30. AND, IN
FACT, IN I.S., THIS COURT LOOKED AT THE CONCLUSIONS OF THE I.S. CASE,
ALLTTHOUGH THAT CASE DIFFERED INSOFAR AS THERE WAS A SEPARATE DOCKET, AN F M DOCKET,
I BELIEVE, BUT THE COURT HERE LOOKED AT WHAT THE TRIAL COURT DID IN I.S.
AND FOUND THAT IT BAS AITI WAS A PRACTICAL RESOLUTION BASED ON THE RECORD THAT
WAS BEFORE IT AND FOUND NO ISSUE WITH THE WAY IN WHICH THAT CASE WAS CONCLUDED.
THE COURT: CAN YOU LARIFY SOMETHING ABOUT THIS CASE.
DID THE DIVISION ASK FOR CONTINUED RESTRAINTS OR DID THE JUDGE MPOSE IT ON
THE COURT'S OWN DETERMINATION? ELIZABETH H. WALLACE: WHEN
THE DIVISION WAS RECOMMENDING TERMINATION OF THE LITIGATION IT WAS WITH
RESTRAINTS IN PLACE. CHIEF JUSTICE RABNER: IF WE DON'T ACCEPT
THE ARGUEMMENTS THAT YOU'RE ADVANCEIING TODAY AND IMPOSE PERIODIC REVIEWS, CUSS
THE CHILD NEED TO BE INVOLVED IN THAT? ELIZABETH H. WALLACE:
IT WOULD BE OUR VIEW THAT ABSOLUTELY THE CHILDREN WOULD REMAIN INVOLVED, THE
OTHER PARENT WOULD, OBVIOUSLY, REMAIN INVOLVED IN THE LITIGATION AND WHAT IS VERY
IMPORTAN, ALSO, TO RECALL, IS THAT WHEN A CASE IS IN LITIGATION, AS WELL AS
INVOLVED WITH THE DIVISION, THERE ARE THESE VERY REGULAR CHECKS AND CONTACTS WITH
THE FAMILY THAT MUST OCCUR, THAT ARE, IN FACT, MANDATED BOTH BY STATUTE AN BY
REGULARTTION. THE COURT: CAN YOU EXPLAIN THE WAY, THE
PARTICULAR WAY IN WHICH THE CHILDREN WOULD BE INVOLVED? ELIZABETH H.
WALLACE: YES. SO, IN TERMS OF COURT INVOLVEMENT, THE CHILDREN
ARE OFTENTIMES INVITED TO PARTICIPATE IN COURT HEARINGS. SOMETIMES, DEPENDING
ON THEIR AGE, THE COURT MAY LOOK TO INTERVIEW THE CHILDREN. THE COURT MAY LOOK
TO FWAERT GATHER INFORMATION ABOUT THE CHILDREN THROUGH THEIR REPRESENTATION
TAGS. JUSTICE PATTERSON: SHOULD THE LAW GUARDIAN REMAIN COUNSEL
IN THE CASE TO REPRESENT THE CHILDREN? ELIZABETH H. WALLACE: IF
THE MATTER IS REINSTITUTE, YES. YES, THE LAW GUARDIAN'S OFFICE WOULD BE
EXPECTED TO CONTINUE, AS WELL. SO, THE CHILDREN WOULD CONTINUE TO HAVE
THEIR REGULAR MEETINGS WITH THEIR ATTORNEY WHERE THEY ARE ABLE TO PROVIDE
WHATEVER FEEDBACK THEY WISH TO DO SO AND WITH THE DIVISION'S CASE BEING REINSTITUTED,
WITH THAT COMES REGULAR, OFTENTIMES MONTHLY VISITS FROM CASEWORKERS EITHER
VISITING THE CHILDREN AT THEIR HOME, PERHAPS AT SCHOOL. THERE
ARE OTHER THINGS SUCH AS SERVEIICE PROVIDERS OR EVALUATIONS THAT COULD BE
ENVISIONED THAT COULD IMPACT UPON THE CHILDREN'S DAILY LIFE SO THERE IS A
VERY REAL IMPACT ON THE CHILDREN. THE COURT: IAPPRECIATE THE WAY
YOU ANSWERED THE QUESTION THAT THESE THINGS MAY NEED TO BE INVOLVED
ARE THERE ANY THINGS THAT WOULD NECESSARYIILY INVOLVE THE CHILDREN IN
ALL OF THESE CASES WERE THEY TO BE REOPENED OR NOT TERMINATED WITH RESTRAINTS
CON CONTINUING. ELIZABETH H. WALLACE: SO, I'M SORRY.
SO, ALL OF THESE THINGS ARE MANDATED BY STATUTE AN REGULARTTTION.
JUSTICE WAINER APTER: YOU MEAN ISSOURILY VISITS TO THE HOME OR TO THE
CHILDREN'S SCHOOL MANDATED? ELIZABETH H. WALLACE: YES. THOSE ARE
DIRECTED BY THE DIVISION. LETTER THE DIVISION IS ALSO DIRECTED BY STATUTE
TO HAVE REGULAR CONTACT WITH THE CHILDREN AND WITH THE FAMILY AS A WHOLE. THE
LAW GUARDIAN'S OFFICE IS MANDATED AND DIRECTED BY STATUTE AS WELL. THE
OTHER THING SUCH AS POTENTIALLY THE CHILDREN GOING TO COURT, THAT OBVIOUSLY IS
TO BE DETERMINED BY THE TRIAL COURT OR THE OTHER ATTORNEYS IF THEY'RE ASKING FOR
THAT. JUSTICE PATTERSON: DO YOU HAVE ANY SENSE OF THE NUMBER
OF CASES IN THIS CATEGORY? ELIZABETH H. WALLACE: IN TERMS OF CASES
THAT CONCLUDE IN THIS WAY? HAD. JUSTICE PATTERSON: THAT HAVE
AT THIS POINT BEEN CONCLUDED BUT THERE ARE CONTINUED RESTRAINTS.
ELIZABETH H. WALLACE: I DO NOT HAVE A SPECIFIC NUMBER. HOWEVER, WE DO SEE CASES
CONCLUDE, TITLE 30 CASES CONCLUDE WITH RESTRAINTS. I WOULD NOT SAY THAT
IT IS A RARE INSTANCE FOR THAT TO OCCUR, BUT IT IS ALSO NOT SOMETHING THAT OCCURS
WITH TOO MUCH REGULARITY. WHAT WE ALSO SEE, OFTEN, IS THAT THESE
TYPES OF REEGSZ ARE NEGOTIATED REEGSZ AND, IN FACT, EVEN THE INDIVIDUAL
THAT IS RESTRAINED IS, IN SOME WAY, AGREEABLE TO THE CASE CONCLUDE BEING IN THAT
WAY. JUSTICE WAINER APTER: YOU MENTIONED EARLIER THAT COUNSEL
IN THIS CASE FOR J.C. DRAFTED THE ORDER? ELIZABETH H. WALLACE:
IN REVIEWING THE TRANSCRIPTS FOR THAT FINAL HEARING, COUNSEL FOR J.C.
PROVIDED TO THE COURT SOME VERY SPECIFIC RECOMMENDATIONS IN TERMS OF LANGUAGE
TO BE PLACED IN THE ORDER. MENT OBVIOUSLY THAT LANGUAGE, ULTIMATELY WAS UP TO THE
TRIAL COURT, BUT I BELIEVE THE PHRASEIING WAS THAT COUNSEL HAD WRITTEN OUT
OR PREPARED SOME NOTES IN TERMS OF THE ORDER AND WHAT SHOULD BE SET FORTH IN THE
ORDER. JUSTICE PATTERSON: WAS THAT THE THREE, I THINK,
REQUIREMENTS THAT J.C. WOULD HAVE TO MEET? ELIZABETH H. WALLACE:
YES. JUSTICE PATTERSON: AND THAT ACTUALLY -- THE LANGUAGE
ACTUALLY ORIGINALTTED WITH HER COUNSEL? HAD. ELIZABETH H. WALLACE:
(NO AUDIBLE RESPONSE.) THE COURT: BUT YO'RE
NOT SUGGESTING THAT COUNSEL CONSENTED TO THESE RESTRAINTS.
ELIZABETH H. WALLACE: NO. CHIEF JUSTICE RABNER: JUDGE, IF YOU PUT
IT IN WRITE IT THIS WAY BUT NOT THE OTHER WAY. ELIZABETH H.
WALLACE: YES, COUNSEL WAS CLEAR THEY WERE NOT IN AGREEMENT.
JUSTICE FASCIALE: CAN I FOCUS REALLY QUICKLY ON THE LAST SENTENCE OF THE STATUTE,
SECTION 12. ELIZABETH H. WALLACE: YES. JUSTICE
FASCIALE: THE ORDER UNDERSTAND SECTION 12 IS ENTERED PROVIDED THAT SUCH ORDERS SHALL
NOT BE EFFECTIVE BEYOND A PERIOD OF SIX MONTHS DOT, DOT, DOT, UNLESS UPON
APPLICATION OF THE DIVISION DOT, DOT, DOT THE ORDER IS EXTENDED. IS
IT YOUR POSITION THAT THAT LANGUAGE IS CONFUSEIIING? ELIZABETH
H. WALLACE: NO. IT IS OUR POSITION THAT THAT LANGUAGE IS CLEAR AND WHAT HAPPENED
HERE IS IN ACCORDANCE WITH THE PLAIN LANGUAGE OF THE STATUTE. AND THEN,
LOOKING AT THE STATUTE, COUPLED WITH I.S., THAT WHAT HAPPENED HERE WAS ALSO NTIRELY
CONSISTENT WITH WHAT THE COURT HAD LOOKED AT PREVIOUSLY IN I.S. AND REALLY
FOCUSES ON THE CRUCIAL NEED FOR THAT FLEXIBILITY TO BE GIVEN TO THE TRIAL COURT
TO CRAFT THESE TYPES OF ORDERS THAT WILL MEET THE NEED OF THE FAMILY, ENSURE
THE BEST INTEREST OF THE CHILDREN AND ALLOW THE FAMILY TO ESSENTIALLY CARRY ON
AND CARRY FORWARD. JUSTICE MICHAEL NORIEGA: IS THERE A
POSSIBILITY FOR SOME HYBRID SOLUTION THAT GOES IN BETWEEN WHERE THE DIVISION OR
THE COURT COULD HOLD THE MATTER IN ABAEEYANCE OR ADDMMMINISTRATIVLY PAUSE THE
MATTER SO THE DIVISION DOES NOT HAVE TO EXTEND THE RESOURCES TO BE INVOLVED
WITH THE FAMILY DURING THAT PERIOD OF TIME, BUT THE MATTER IS BROUGHT BACK AFTER
SIX MONTHS SO THERE IS AN AUTOMATIC COURT APPEARANCE REQUIRED WHERE THE RIGHT
TO COUNSEL IS REVIVED AND THAT THE PARENT COULD GET READY FOR THAT COURT APPEARANCE
DURING THOSE SIX MONTHS. IS THERE SOME POSSIBILITY OF THA.
ELIZABETH H. WALLACE: THE STATUTE AN REGULARTTIONS THAT DIRECT
THE DIVISION'S INVOLVEMENT WITH A FAMILY AND THOSE REGULAR APPOINTMENTS THAT I
MENTIONED EARLIER ARE DIRECTIVE AND MANTDDATORY IN TERMS OF THEIR LANGUAGE
SO THERE REALLY IS NOT FLEXIBILITY IN THOSE DIRECTIVES TO THE DIVISION IN TERMS
OF IT CARRYING OUT ITS OBLIGATIONS AND HAVING THOSE REGULAR MEETINGS, THOSE
MONTHLY MEETINGS WITH THE FAMILY. THE COURT: WHAT REGULARTIONSTIONST
OR STATUTES ARE YOU RELYING ON SPECIFICALLY? ELIZABETH
H. WALLACE: YES. SO, -- JUST WITHIN MOMENT ONE MOMENT
SO THE STATUTE THAT DIRECTS THE CASEWORKER VISITS IS N.J.S.A. 30:4 C-2.
JUSTICE PATTERSON: WE NEED THAT A LITTLE SLOWER. L. ELIZABETH
H. WALLACE: SORERRY. IT'S N.J.S.A. 3:4 C-25 AND THEN THE REGULARTTION THAT DIRECTS
MONTHLY VISITATION REQUIREMENTS TO THE DIVISION IS ACKNOWLEDGE A CAN.J.A.C.
3 A:12-2.. I DO JUST WANT TO NOTE THAT THERE IS A REGULARTTION THAT IS DIRECTIVE
TO THE DIVISION IN TERMS OF CASE PLANS THAT IS AN.J.A.C 3 A:12-1.4. AND I
MENTION THAT BECAUSE THAT IS ALSO SOMETHING THAT THE DIVISION IS OBLIGATED TO COMPLETE
WITH A FAMILY ON ON A REGULAR BASIS IT INVOLVES MEETING WITH THE FAMIY AND
HAVING DISCUSSION IN TERMS OF WHAT THEIR SITUATION IS AT THAT POINT IN MANY TIME
AND SO CONTINUES THAT FAMILY ENGAGEMENT AND THAT CONTACT WITH THE FAMILY AND THOSE
I THOSE REGULAR MEETINGS. THE COURT: OTHER QUESTIONS ANYONE?
IS THERE ANYTHING YOU WOULD LIKE TO ADD COUNSEL?
ELIZABETH H. WALLACE: THE ONLY THING I WOULD CONCLUDE WITH IS ASKING THIS COURT
TO AFFIRM THE APPELLATE DIVISION'S PALD SGIGS T DECISION AN ALSO THE FINAL
ORDER THAT WAS DRAFTED BY THE TRIAL COURT IN THIS CASE,.. THANK YOU.
THE COURT: THANK YOU. MS. POLLOCK. CHIEF JUSTICE RABNER:
MS. POLLOCK? MEREDITH ALEXIS POLLACK: MAY IT PLEASE THE COURT. THE FAMILY
COURT'S ORDER IS GROUND M.D. THE OVERLAPPING AUTHORITY OF 43-12. THE ELIMINATION OF THE
FIRST DOES NOT NEGATE THE OTHER. THE DISTINCT FACTS OF THIS CASE HIGHLIGHT THE INTEGRATED
AND MEANS WHEN ADJUDICATING CHALLENGING FAMILY SITUATIONS. UN-LIKE MOST CASES WHERE CUSTODY
AND PARENTING TIME ARE AT ISSUE, THE CHILDREN HERE LIVE TOGETHER WITH THEIR MARRIED
PARENTS. THE FAMILY's LIVE IS PUNK SITUATED BY J.C.'s CHALLENGES. SINCE 2018,
THE FATHER HAS ACCEPTED HELP. BUT HE HAS NOT FILED A PRIVATE CUSTODY OR DISSOLUTION
COMPLAINT. ULTIMATELY THE COURT FOUVEND THAT J.C.'s MENTAL HEALTH ISSUES REMAINED UN-
ABATED. AT THE CONCLUSION OF THE PLENARY HEARING, THE MOTHER -- THE COURT
FOUND THE MOTHER's CONTACT MUST REMAIN SUPERVISED TO ENSURE THE CHILDREN'S SAFETY. THE
COURT ENTERED A CORRESPONDING ORDER AND PROVIDED THE MOTHER COULD APPLY TO LIFT THE
SUPERVISION. THE COURT'S ORDER WAS IN THE AUTHORITY OF THE FAMILY COURT FOR TWO
REASONS. FIRST, THE SIX-MONTH LIMIT ON ORDERS AUTHORIZED BY SECTION 12 DOES NOT APPLY TO
A COURT'S ORDER TERMINATING PARENTS SUPERVISION. PARAGRAPH TWO SPEAKS TO THE DIVISION's
AUTHORITY TO APPLY TO THE COURT FOR AN ORDER OF CARE AND SUPERVISION. PARAGRAPH THREE
REFERS TO THE COURT'S AUTHORITY TO GRANT AN ORDER AS REQUESTED. READING THE PARAGRAPHS
TOGETHER, THE TERM ORDER IN PARAGRAPH THREE REFERS TO THE ORDER GRANT K THE DIVISION's
REQUEST FOR PARENT SUPERVISION. THE ORDER AT ISSUE HERE IS NOT SUBJECT TO THE SIX-MONTH
LIMITATION. SECTION 12 DOES NOT LIMIT THE COURT'S AUTHORITY WHEN THE CARE AND
SUPERVISION ACTION HAS BEEN ADJUDICATED. THIS IS IN KEEPING WITH THE PURPOSE OF TITLE
30 TO CODIFY THE PUBLIC POLICY THAT CHILDREN'S SAFETY IS PARAMOUNT, THEIR BEST INTEREST
IS A PRIMARY CONSIDERATION AND PRESERVATION OF THE FAMILY IS A PRIMARY REASON BUT THE
HEALTH AND SAFETY OF CHILDREN OVERRIDES THAT. COMMON SENSE ALSO DICTATES THIS
INTERPRETATION. OTHERWISE THE COURT WOULD HAVE BEEN REQUIRED TO ENTER AN ORDER CONTRARY
TO '0 ITS FINDINGS. SECOND, HAVING DETERMINED THAT THE DIVISION's INTERVENTION
WAS NO LONGER IN THE CHILDREN'S BEST INTEREST, THE JUDGE WAS LEFT TO DECIDE THE PARAMETERS.
ORDERS ARE ALWAYS TEMPORARY SUBJECT TO A CHANGE IN CIRCUMSTANCES ANALYSIS AND GOVERNED
BOO I THE BEST INTEREST OF THE CHILD'S STANDARD. NO PARENT HAS AN ABSOLUTE RIGHT TO VISITATION
OF THE CHILD BECAUSE THAT RIGHT CAN OVERRIDE A CHILDREN'S NEED TO BE FREE FROM HARM.
THE LEAST RESTRICTIVE LIMITATION ON THE MOTHER's PARENTAL AUTO TON MONEY. WITHOUT AUTHORITY
TO DO SO, THE COURT'S LIMITED OPTIONS SPAN FROM BAD TO WORSE. INDEFINITE TONIGHT COURT
OVERSIGHT AND DCPP INVOLVEMENT IN THE CHILDREN'S LIVES WITH NO INDICATION THAT THE MOTHER's
FUNCTIONING WOULD IMPROVE. A SECOND CHOICE WOULD BE TO RE-MOVE THE CHILDREN
FROM THEIR PARENTS, POSSIBLY LEADING TO A GUARDIANSHIP ACTION AND THUS DISMANTLING THE
FAMILY. THE THIRD CHOICE WOULD BE FOR THE COURT TO TURN A BLIND EYE FOR THE CHILDREN'S
SAFETY. NONE OF THESE OPTIONS SERVE THE BEST INTEREST OF THE CHILDREN AS DETERMINED
BY THE COURT. CHILDREN HAVE INDEPENDENT RIGHTS FOR THEIR PARENTS AND THEY CANNOT WAIT
IN PERPETUITY. THE COURT'S ORDER AUTHORIZED BY LAW REFLEX NO COOKIE CUTTER. IN
ADDITION TO PARENTS, CHILDREN ARE ENTITLED TO COUNSEL ON CASES BROUGHT UNDER THE F M
DOCKET. FOR CHILDREN THAT CONFLICT WITH THOSE PARENTS AND THE STATE. IT IS PARTICULARLY
CRITICAL IN THIS CASE FOR A.C. AND WORKER'S COMPENSATION THAT ANY FUTURE APPLICATIONS
BE HEARD UNDER THE F M DOCKET AS NIERNL OF THEIR PARENTS SOUGHT A SEPARATE ACTION TO SOLIDIFY
THE PROTECTIONS PROVIDED TO THEM. PROCEDURALLY, J.C.'s APPLICATION TO MODIFY THE ORDER
WOULD ONLY APPROPRIATELY BE BROUGHT UNDER THE SAME DOCKET. ONCE NOTIFIED OF THE
APPLICATION, PRESUMABLY THE DIVISION WOULD NOTIFY THE OFFICE OF PARENTAL REPRESENTATION
AND THE OFFICE OF LAW GUARDIAN AS IT DOES WITH MOTIONS TO MODIFY ORDERS. JUSTICE
PATTERSON: CAN I STOP YOU THERE? DO YOU AGREE WITH THE ATTORNEY GENERAL THAT IF THE COURT
WERE TO MAKE SOME MODIFICATION IN THE PROCESS HERE THAT THE KLG STATUTE WHILE -- NOT THE
IDENTICAL CONSIDERATIONS BUT THE PROCESS OUTLINED BY THE A G SOMEWHAT BASED ON KLG WOULD BE
THE WAY TO GO? MEREDITH ALEXIS POLLACK: I DO AGREE THAT WOULD BE THE WAY
TO GO. WE SOMETIMES SEE THAT WITH APPLICATIONS TO VACATE AN F G ORDER UNDER A JUDGMENT
UNDER RULE 4:50 WHERE THERE HAVE BEEN CHANGED CIRCUMSTANCES AND JUST HYPOTHETICALLY THE
OFFICE OF THE LAW GUARDIAN HAS HAD CASES WHERE WE SEEK TO MODIFY A FINAL F M ORDER.
JUSTICE PATTERSON: I'M SORRY. COULD YOU EXPLAIN A LITTLE MORE WHAT THAT SECOND PROCESS
IS THAT YOU THINK MIGHT BE ANALOGOUS? CHANGED CIRCUMSTANCES. MEREDITH ALEXIS
POLLACK: POST-TERMINATION, AFTER THERE'S BEEN A TERMINATION JUDGMENT. THERE ARE CASES
WHERE THE CIRCUMSTANCES CHANGED. AND THERE'S A MOTION BROUGHT UNDER RULE 4:50 TO VACATE
THE TERMINATION JUDGMENT DUE TO THOSE CHANGED CIRCUMSTANCES. AND SIMILARLY FOR EXAMPLE
IF THE RESOURCE PARENT WHOSE TO ADOPT THE CHILD DIES AND THAT DOES HAPPEN, PRACTICALLY
THAT JUDGMENT CANNOT BE EFFECTUATED TO ADOPTION SO THERE WOULD BE A MOTION TO CHANGED
CIRCUMSTANCES. JUSTICE PATTERSON: WHAT DO YOU SEE AS THE ROLE OF THE CHILDREN?
OBVIOUSLY YOU'RE TALKING ABOUT YOU'RE ENVISIONING YOUR OFFICE AS LAW GUARDIAN PARTICIPATING.
WHAT DO YOU SEE AS THE -- DO YOU SEE A NECESSITY IN EVERY CASE FOR A ROLE FOR THE CHILDREN
OR WOULD THAT BE DISCRETIONARY? MEREDITH ALEXIS POLLACK: UNDER THE F M
DOCKET, YES, I DO. AND I'D LIKE TO BE CLEAR. JUST AS THE ATTORNEY FOR THE PARENT IS --
THE OFFICE OF PARENTAL REPRESENTATION REPRESENTS THE PARENT NSHGS THE SKAM WAY THE LAW
GUARDIAN IS ONLY COUNSEL FOR THE CHILDREN. THE CHILDREN AREN'T PARTIES TO THE CASE.
JUSTICE PATTERSON: AND SO YOU'RE TALKING ABOUT CONTINUED REPRESENTATION OF THE
CHILDREN BY THE LAW GUARDIAN. DO YOU SEE AN ADDERALL FOR THE CHILDREN THEMSELVES OTHER
THAN BEING REPRESENTED IN THE PROCEEDING? MEREDITH ALEXIS POLLACK: WELL,
THEIR POSITION AND THEIR INTERESTS WOULD HAVE TO BE PRESENTED TO THE COURT. THAT WOULD
NECESSITATE THEIR ENGAGEMENT WITH COUNSEL. BUT IN ADDITION TO THAT, THE DIVISION --
IN ADDITION TO THEIR REGULATIONS -- WOULD HAVE TO REMAIN INVOLVED BECAUSE AT LEAST SUMMARY
HEARING THEY WOULD HAVE TO HAVE PROOFS AS TO WHY THE RESTRICTION WAS STILL NECESSARY.
BECAUSE IT'S NOT JUST ABOUT WHETHER OR NOT THE MOTHER HAS COMPLIED WITH THE TERMS OF THE
ORDER. CIRCUMSTANCES CHANGE OVER TIME. THESE CHILDREN ARE NOW 11 AND SIX. THEY WERE
NINE AND FOUR AT THE TIME THIS CASE WAS DECIDED. SO AS THOSE CIRCUMSTANCES
CHANGE, THE DIVISION WOULD HAVE TO CONTINUALLY BE GATHERING INFORMATION AS TO THE RESTRICTIONS
THAT WERE IN THE BEST INTEREST OF THE CHILDREN. JUSTICE FASCIALE: IF THAT WERE
THE CASE, WOULDN'T BE IT BETTER FOR THE CHILDREN TO HAVE THE DIVISION INVOLVED PROVIDING
SERVICES? MEREDITH ALEXIS POLLACK: I DO NOT BELIEVE SO. BECAUSE THE SERVICE
S HAD RUN THEIR COURSE. SO HAVING A DIVISION INVOLVED MEANS -- ESPECIALLY OVER A LONG
PERIOD OF TIME, EXTENSIVE INVOLVEMENT INTO THE CHILDREN'S PRIVATE LIVES. THAT MEANS
DOCUMENTS GOING TO THEIR SCHOOL. EACH TIME THEY SWITCH A NEW SCHOOL, A NEW PEDIATRICIAN,
THAT'S WHERE THE DIVISION GATHERS THEIR COLLATERAL. IT'S NOT JUST THE DIVISION GOING
TO THEIR HOME, SPEAKING TO THE PARENT, THEY'RE VERY INVOLVED IN THE REST OF THEIR LIFE
AND THE CHILDREN LIVE UNDER THE SPECTER OF THAT, OF, YOU KNOW, THE SCHOOL PRINCIPAL AND
MAIN OFFICE AND THEIR PEDIATRICIAN KNOWING THAT THEY'RE INVOLVED WITH DCPP.
JUSTICE MICHAEL NORIEGA: BUT THE MENTAL HEALTH CONCERNS HAD THE COURT IS CONCERNED ABOUT
ARE UN-ABATED. AREN'T THE CHILDREN STILL IN SOME JEOPARDY THAT MAY NEVER RESOLVE AND
WOULDN'T IT BE BETTER TO HAVE THE COURT CONTINUE TO MONITOR UNTIL IT IS PERHAPS ADDRESSED?
MEREDITH ALEXIS POLLACK: AT THE POINT THAT THE CASE CLOSED, NEITHER COURT
MONITORING NOR DIVISION ENTER INVENTION WAS BRINGING ABOUT ANY SORT OF CHANGE. SO IF
YOU'RE WEIGHING IT ON A SCALE, THE IMPACT AND INTRUSION INTO THE CHILDREN'S LIFE IS MUCH
GREATER THAN ANY BENEFIT THAT COMES ABOUT FROM HAVING THE COURT MAINTAIN THE CASE AS AN
OPEN CASE. HOWEVER, JUST BECAUSE THE MENTAL HEALTH SNEEDZ WERE UN-ABATED AT THE
TIME THE CASE WAS DISMISSED DOESN'T MEAN THAT WHEN THOSE CHILDREN ARE IN HIGH SCHOOL THE
IMPACT WOULD BE THE SAME OF THOSE MENTAL HEALTH NEEDS. FOR BETTER OR FOR WORSE THAT
COULD SHIFT. AND IT MAY. JUSTICE FASCIALE: SO IF THE TITLE 30 CLOSES, DOES
THAT MEAN THAT THE LAW GUARDIAN's ROLE CEASES? THERE'S NO OVERSIGHT TO PROTECT THE CHILD
OR THE CHILDREN? ESPECIALLY IN A SITUATION WHERE THE SERVICES ARE REQUIRED AND RESTRAINTS
ARE NECESSARY. MEREDITH ALEXIS POLLACK: IT DOES MEAN BECAUSE THE OFFICE OF
THE LAW GUARDIAN IS THE ATTORNEY FOR THE CHILDREN WHEN THE CASE IS DISMISSED, THERE IS
NO ONGOING ENGAGEMENT. HOWEVER, THERE ARE SITUATION WHERE'S A FORMERLY REPRESENTED
CHILD WILL CONTACT THE LAW OFFICE OF THE LAW GUARDIAN AND IF IT'S WARRANTED THE OFFICE
OF THE LAW GUARDIAN WILL GET BACK INVOLVED. FOR EXAMPLE THE CASE I MENTION WHERE'D THE
OFFICE OF THE LAW GUARDIAN FILED A MOTION TO VACATE A CUSTODY ORDER DECISION THAT WAS
DISMISSED WITH RESTRAINTS BECAUSE THE CHILDREN WAS NO LONGER LIVING WITH THE PERSON IN
THE ORDER. AND THAT WAS ACCEPTED BY THE TRIAL COURT AND IT DID PROCEED. I
DO AGREE THAT IT'S NOT THE PROCEDURAL MECHANISM IS NOT CLEAR AND THERE SHOULD BE MUCH
MORE CLARITY TO THAT. THAT DOESN'T NECESSARILY IMPACT THE PROVIDENCE OF SECTION 12.
IT CALLS OUT FOR SOME GUIDANCE AS TO THE ADMINISTRATION OF THE COURTS.
CHIEF JUSTICE RABNER: QUESTIONS? ANYTHING ELSE, COUNSEL? MEREDITH
ALEXIS POLLACK: JUST BRIEFLY. I BELIEVE THE TRANSCRIPT WHICH WAS A PLENARY HEARING,
DR. MAC ARTHUR's TESTIMONY WAS THAT HE WAS RETAINED BY THE MATERNAL GRANDPARENTS AS
OPPOSED TO THE DIVISION. SO I DO THINK THROUGHOUT THE CASE MANY OF THE SERVICES WERE BEING
PROVIDED OUTSIDE THE DIVISION. THE MOTHER WAS JUST SIGNING RELEASES. JUSTICE
PIERRE-LOUIS: THERE'S AT LEAST ONE ORDER THAT SAYS THE DIVISION WAS ASSISTING WITH PAYMENT.
DO YOU KNOW WHAT HAPPENED WITH THAT? MEREDITH ALEXIS POLLACK: I DON'T. I WAS NOT
TRIAL COUNSEL ON THE CASE. JUSTICE PIERRE-LOUIS: THERE'S AN INDICATION THERE
MAY HAVE BEEN DIVISION PAYMENT FOR SOME OF THOSE SERVICES GIVEN THE ORDERS IN THIS CASE.
MEREDITH ALEXIS POLLACK: I'M SURE THEY PAID FOR SOME OF THEM BUT I DO THINK
IT WAS MORE MIXED THAN IT IS IN OTHER CASES. BECAUSE THE TERMINATION IS AUTHORIZED BY
THE PLAIN LANGUAGE OF THE STATUTE, THE BROADER CONTEXT OF TITLE 30 AND THE FAMILY PART's
DUTY TO PROTECT CHILDREN WHEN PARENTS CANNOT, THE CHILDREN URGE THIS COURT TO AFFIRM.
CHIEF JUSTICE RABNER: MR. MITCHELL, REBUTTAL? AS YOU'RE WALKING TO THE PODIUM,
I HOPE YOU CAN HELP US WITH RESPECT TO THE ATTORNEY GENERAL'S POSITION THAT THE STATUTE
AND THE REGULATIONS SHE CITED REQUIRE MONTHLY VISITS. PLEASE COMMENT ON THAT.
T. GARY MITCHELL: I BROUGHT MY STATUTE BOOK UP JUST FOR THAT PURPOSE, YOUR HONOR. THE
STATUTE THAT WAS CITED BY THE ATTORNEY GENERAL, THE 34 C-25 DOESN'T PROVIDE MONTHLY.
IT JUST USES A VERY GENERAL TERM, REGULARLILY VISIT. AS I THINK JUSTICE NRG POINTED OUT,
THE SUGGESTION MAKES PRACTICAL SENSE TO ME. THAT YOU HOLD A CASE IN ABEYANCE RATHER THAN
DISMISS IT. THAT WAY THE OPPORTUNITY FOR SERVICES CONTINUE. REGULAR VISITS IN A CASE
SUCH AS THIS MIGHT MEAN ONCE EVERY SIX MONTHS RATHER THAN ONCE A MONTH. JUSTICE
WAINER-APTER: THE REGULATION SAYS ONCE A MONTH, CORRECT? T. GARY MITCHELL:
THAT'S CORRECT, YOUR HONOR. AND THE REGULATION WOULD BE SUBJECT TO I WOULD THINK THIS
COURT'S DIRECTION ON WHAT -- ON THE FLEXIBILITY THAT THE DIVISION HAS IN CASES SUCH AS
A 34 C-12-CASE. AS 4C 25 COULD NOT PLATES. REGULAR WHEN THERE IS INTENSE NEED AND
CHILDREN ARE IN PERIL MIGHT MEAN ONCE A WEEK. IT MIGHT MEAN ONCE A MOVEMENT THERE'S NO
REASON IT CANNOT MEAN SOMETHING WITH A LONGER TERM THAT WOULD COMPORT WITH WHAT THE
LEGISLATURE SAID IN 1962 IN SECTION 12. PERIODIC REVIEW EVERY SIX MONTHS. SO I THINK
THAT SHOULD NOT BE AN IMPEDIMENT TO THIS COURT'S CONSTRUING SECTION 12 IN A MANNER THAT
SUGGESTS THAT THE DIVISION MIGHT HAVE FLEXIBILITY WHERE A CASE SUCH AS THIS MAY WARRANT
LESS INTRUSIVE, LESS FREQUENT INVOLVEMENT BY THE DIVISION. JUSTICE FASCIALE:
HOW DO YOU RESPOND TO THE DIVISION's POSITION THAT IF WE ACCEPT THE DIVISION's POSITION
AS SUPPORTED BY THE LAW GUARDIAN THAT WE WOULD NOT NEED TO REVERSE I S? T. GARY
MITCHELL: I THINK THAT'S ENTIRELY IN-CONSISTENT, JUSTICE. THIS COURT USED THE WORD TEMPORARY
I BELIEVE AT LEAST FIVE TIMES IN I S, IN THE SECTION WHERE IT PROVIDED AN EXPLANATION
OF SECTION 12. PALLET PAT I'M SORRY. GIVE US A LITTLE MORE CONTEXT TO THAT. TEMPORARY
IN MODIFYING WHAT? T. GARY MITCHELL: THAT THE ORDER ENTERED UNDER ELF SECTION
12 WOULD BE TEMPORARY. THIS COURT USED THAT -- IN SEVERAL DIFFERENT CONTEXT, BUT IN EVERY
CONTEXT IN WHICH THIS COURT USED THE WORD TEMPORARY. I BELIEVE IT'S FIVE INSTANCES ON
A SINGLE PAGE OF THE PUBLISHED OPINION. AT LEAST AS IT APPEARS ON WESTLAW. JUSTICE
PATTERSON: WHAT DOES TEMPORARY MEAN? OBVIOUSLY WHEN THE CHILDREN REACH ADULTHOOD, AT
THE VERY LATEST, ALL OF THIS IS OVER. T. GARY MITCHELL: THAT'S CORRECT.
JUSTICE PATTERSON: SO WHEN YOU SAY THAT -- WHEN YOU REFER TO I S SAYING THAT THE ORDER
WOULD BE TEMPORARY, WHY IS THAT IN-CONSISTENT WITH PROVIDING ADDITIONAL HEARINGS AND HAVING
THE COURT INTERVENE AT CERTAIN INCREMENTS BUT KEEPING THE CASE ESSENTIALLY IN ABEYANCE?
T. GARY MITCHELL: JUSTICE PATTERSON, I DON'T THINK I DISAGREE WITH ANYTHING
THAT YOU SAID. I THINK THAT CORRECTLY RE-COUNTS IS. ACCEPT THAT THE WORD TEMPORARY I BELIEVE
THAT THIS COURT WAS REFERRING BACK TO THE SIX-MONTH PERIOD OF THE LIMITATION, THE TIME
LIMITATION ON THE COURT'S ORDER AS THE REASON IT WAS JUSTIFYING THE FLEXIBILITY THAT SECTION
12 PROVIDED TO THE FAMILY PART TO ADDRESS WITHOUT FINDING ANY PARENTAL FAULT OF ANY KIND,
NO ONE WAS RESPONSIBLE FOR ANY HARM TO A CHILD. JUST THE FAMILY PART AND THE DIVISION
NEEDED TO BE INVOLVED. SECTION 12 PROVIDED THAT AUTHORITY. AND THAT AUTHORITY WAS CABIN
ED BY THE TIME LIMIT THAT THE LEGISLATURE PROVIDED IN 1962 TO SIX MONTHS. AND THE NOTION
THAT WE DON'T HAVE A MECHANISM, YOU MIGHT SAY, TO CONTINUE THIS CASE, I THINK IS A RED
HERRING. I THINK WE OFFER A MECHANISM. THE MECHANISM IS IN SECTION 12. THE MECHANISM
IS PERIODIC REVIEW. AND PERIODIC IS NOT AN ONEROUS BURDEN. FRANKLY, I WOULD SUGGEST
ON THE DIVISION NOR ON THE FAMILY PART. THE NATURE, AS I THINK ONE COULD COULDN'T TRUE
WITH WHAT JUSTICE NRG SUGGESTED, I BELIEVE THE JUSTICE USED THE WORD HYBRID OR HELD IN
ABEYANCE. I THINK THAT'S A VERY HELPFUL GUIDE. AND IT'S CONSISTENT WITH SECTION 12 AND
IT'S CONSISTENT WITH THE GUIDANCE OF THE LEGISLATURE IN SECTION 12 TO MAXIMIZE THE
FLEXIBILITY THAT THE DIVISION WOULD HAVE IN A CASE SUCH AS THIS. AND IN THAT
REGARD, I THINK IT'S -- THERE WAS AN EXCHANGE WITH THE ATTORNEY GENERAL IN WHICH SHE USED
THE WORD THERE ARE COUNTLESS CASES. I THINK IN A FURTHER EXCHANGE WITH JUSTICE PATTERSON
SHE CONCEDED THAT THE -- THEY WERE IN-FREQUENT AT BEST. AND I THINK THAT'S THE -- CERTAINLY
IN ALL THE UN-PUBLISHED CASES THAT WERE PROVIDED TO THIS COURT BY THE ATTORNEY GENERAL,
THE THREE OR FOUR THAT THERE WERE AND THE JD CASE THAT THE LAW GUARDIAN CITED IN ITS
SUPPLEMENTAL BRIEF, THEY ALL INVOLVE ORDERS ENTERED UNDER DIFFERENT STATUTES. IT STARTED
OUT AS A SECTION 12-CASE, BUT THE ORDERS WERE ENTERED EITHER IN A CUSTODY CASE THAT
DEVELOPED FROM IT, AN F D OR AN F M CASE AND I THINK THAT IS WHY THIS CASE IS NO IN-FREQUENT
BUT WHY IT'S SO IMPORTANT. BECAUSE AS I THINK THE CHIEF JUSTICE SAID, CAN THIS GO ON
FOR A DECADE? THERE IS NO LIMITATION TO THAT TIME FRAME? I THINK IT WOULD BE ENTIRELY
IN-CONSISTENT WITH WHAT SECTION 12 CONTEMPLATES AND WHAT THE LEGISLATURE CONTEMPLATED.
AND ALTHOUGH THE RESTRICTION TO A TITLE NINE-CASE TO A YEAR, A YEAR EXTENSION WAS
ADDED A DECADE OR SO LATER, THAT DOESN'T ALTER WHAT THE LEGISLATURE SAID WHERE WE WOULD
PROVIDE THIS KIND OF FLEXIBLE AUTHORITY TO A FAMILY PART JUDGE TO INTERVENE INTO THE LIFE
OF A FAMILY, AS THEY DID HERE, NOT JUST TO REQUIRE SUPERVISION BUT TO REQUIRE COMPLIANCE
TO A REGIMEN OF PSYCHIATRIC, MEDICATION AND TO BE ABLE TO COME BACK TO COURT TO DO THAT
IS SOMETHING I THINK CONTEMPLATED IN ONGOING CASE THAT WOULD HAVE A JUDGE ASSIGNED TO
IT, HAVE A JUDGE SUPERVISING IT. WHETHER IT'S THE CHILDREN OR WHETHER IT'S THE PARENTS,
ARE NOT LEFT TO THEIR OWN DEVICES TO FIGURE OUT HOW DO I ADDRESS THE CONCERNS HERE.
AND THAT'S NOT TO SAY THAT A PARENT IN THIS SITUATION HASN'T HAD ANY SUPERVISION
OTHER THAN WITH THE FAMILY MEMBERS, WHY THAT WOULD REQUIRE THE DIVISION TO SOMEHOW
INTERVENE MORE SEVERELY THAN THEY HAVE FOR THE LAST TWO YEARS. WHEN THE PARENTS AND
CHILDREN AND -- HAVE MANAGED THEIR AFFAIRS WELL, PERHAPS WE REVISIT THIS AND WE BRING BACK
THE EXPERTS AS THE SECTION 12 COULD NOT PLATES AND WE LEARN THAT THE MENTAL HEALTH CONCERNS
HAVE ABATED. OR NOT. JUSTICE FASCIALE: AND THAT CAN BE DONE IN A SUMMARY
FASHION AS SECTION 12 POINTS OUT. I USED TO DO THESE WHEN I WAS A C I C JUDGE IN UNION
COUNTY. IT CAN EVEN BE DONE ON THE PAPERS. IT'S NOT A VERY LENGTHY PROCESS. T.
GARY MITCHELL: CORRECT. I THINK THAT'S EXACTLY WHAT WE ARE SEEKING HERE. NOT A LENGTHY
PROCESS. NOT DETAILED INTERVENTION BY THE DIVISION IN THE LIVES OF PARENTS OR THE
CHILDREN. BUT AN ASSESSMENT OF HOW ARE THINGS GOING? DOES IT MAKE SENSE FOR US TO CONTINUE
THIS. AND TO HAVE WHAT IS REALLY THE GIFT THAT NEW JERSEY GIVES TO FAMILIES IN THIS
SITUATION; THAT IS THE SUPERVISION OF A FAMILY PART JUDGE. AND THAT CANNOT BE UNDERESTIMATE
D, I THINK. AND I THINK THAT'S WHAT, RESPECTFULLY, MY -- THE RESPONDENTS MINIMIZE.
THE INVOLVEMENT OF A FAMILY PART JUDGE IS VITAL FOR EVERYONE CONCERNED. CHIEF
JUSTICE RABNER: THANK YOU, COUNSEL. MILTS MITCHELL THANK YOU, YOUR HONOR.
CHIEF JUSTICE RABNER: DID I CATCH YOU BEFORE YOU -- T. GARY MITCHELL: I HAVE
ONE ITEM TO CLOSE WITH. THANK YOU, CHIEF JUSTICE. I APPRECIATE IT. THIS
COURT'S JUDGMENT SHOULD UPHOLD THE PROMISES MADE 60 YEARS AGO BY THE LEGISLATURE TO NEW
JERSEY FAMILIES WHO FACE THE POWER AND DEMANDS REFLECTED IN A SECTION 12 ORDER. SUCH POWER
AND DEMANDS CANNOT BE LEFT EFFECTIVELY UN-REVIEWABLE AS OCCURRED IN THIS MATTER ABD
A PARENT IN THE PROCESS ROBBED OF A RIGHT TO COUNSEL AND ALL THAT THAT ENTAILS. AND THE
POWER AND DEMANDS OF THE STATE ARE CONTINUING. THE SECTION 12-CASE ALSO MUST WITH ITS
TIME LIMITS, IT'S PERIODIC REVIEW AND IT'S ASSURANCE OF COUNSEL's ASSISTANCE.
THANK YOU VERY MUCH, YOUR HONORS, FOR YOUR TIME AND YOUR PATIENCE. CHIEF JUSTICE
RABNER: THANK YOU VERY MUCH FOR YOUR HELPFUL ARGUMENTS. WE'LL TAKE THE MATTER UNDER
ADVISEMENT.