NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.C. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.S.L. IN THE MATTER OF THE GUARDIANSHIP OF J.D.L.C

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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1683-09T4
A-1684-09T4

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
February 11, 2010
J.C.,
APPELLATE DIVISION
Defendant-Appellant.

__________________________________

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,

Plaintiff-Respondent,

T.S.L.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF J.D.L.C.,

A minor.

_________________________________________________

Submitted January 7, 2010 - Decided February 11, 2010

Before Judges Axelrad, Fisher and Sapp-
Peterson.

On motions for leave to file notices of
appeal out of time from a judgment of the
Superior Court of New Jersey, Chancery
Division, Family Part, Mercer County, Docket
No. FG-11-0012-08.1

Yvonne Smith Segars, Office of Parental
Representation, attorney for appellants J.C.
and T.L.S. (Richard Foster, Assistant Deputy
Public Defender, on the motion).

Anne Milgram, Attorney General, attorney for
respondent New Jersey Division of Youth and
Family Services (Lewis A. Scheindlin,
Assistant Attorney General, of counsel; Lisa
B. Landsman, Deputy Attorney General, on the
brief).

The opinion of the court was delivered by

FISHER, J.A.D.

Defendants J.C. and T.S.L. filed separate motions on

December 1, 2009, seeking leave to file notices of appeal in

order to obtain our review of a judgment terminating their

parental rights to a minor child.2 The judgment in question was

entered on August 18, 2008, and the child was adopted on July

17, 2009 -- nearly sixteen months and more than four months,

respectively -- before the filing of the motions at hand.

Notwithstanding that we liberally grant such motions in

guardianship appeals, see N.J. Div. of Youth & Family Servs. v.

R.G.,
354 N.J. Super. 202 (App. Div. 2002), we conclude that

1
Motion orders M-2153-09 and M-2157-09.
2
The child in question, J.D.L.C., was born on April 4, 2006.

A-1683-09T4
2

defendants' extraordinary delay coupled with the child's

adoption requires denial of defendants' motions.

In seeking leave to appeal out of time, appellate counsel

asserts that -- after defendants timely expressed to trial

counsel their desire to appeal -- the case was

properly transmitted to OPR[3] Trenton in
September of 2008, and that OPR Trenton had
on September 29, 2008 faxed the documents
necessary for the filing of the Notice of
Appeal to the central appeals section of the
Office of the Public Defender in Newark, New
Jersey (OPD Central), again in accordance
with the standard OPR procedure. That docu-
mentation had included written confirmation
from T.S.L. that she wished to appeal.

However, according to the moving certification, "OPD Central

reported on November 30, 2009 that they had no record of ever

having received the documents necessary for the filing of an

appeal on behalf of T.S.L., and therefore no Notice of Appeal

had been filed." In short, according to defendants' appellate

counsel, OPR received a timely request to appeal from their

client but somehow failed to follow through.

OPR's failure came to light when, according to appellate

counsel, T.S.L. asked her trial attorney in May 2009 about the

status of the appeal. Her trial attorney then asked OPR Trenton

for an update and "received an assurance from OPR Trenton that

3
Office of Parental Representation.

A-1683-09T4
3

they would investigate the matter." Another request by T.S.L.

to her trial attorney in late November 2009, which was again

relayed, finally prompted the present motions for leave to

appeal out of time.

Like the circumstances in R.G., supra,
354 N.J. Super. at
210, the record demonstrates that defendants followed OPR's

procedure for pursuing an appeal and placed their trust in OPR

that their rights would be protected. And, like R.G.,

defendants cannot be personally faulted for failing to timely

file their appeals. In R.G., we granted relief, but the motions

at hand must be denied.

This court has considered applications for leave to appeal

out of time in such matters with great liberality, utilizing the

standard and framework that has developed and was described in

Judge Fall's opinion in R.G.4 This case, however, differs. In

R.G., the interval between the trial court judgment and the

application for leave to file an appeal out of time was not

quite one year; here, the delay was nearly sixteen months. More

importantly, during that interval in R.G., a timely appeal was

4
We are mindful that Rule 2:4-4(a) permits only an extension of
an additional thirty days beyond the forty-five-day time bar for
filing an appeal contained in Rule 2:4-1(a), and that these
defendants seek leave to file an appeal far beyond those limits.
However, we may further relax the time to file a guardianship
appeal because of the significant constitutional rights
involved. R.G., supra,
354 N.J. Super. at 207-08.

A-1683-09T4
4

filed by the other parent and adjudicated.5 Id. at 205. This

apparently had the effect in R.G. of preventing an adoption; the

child here was adopted before the motions at hand were filed.

With the adoption of the child by the foster parents -- with

whom he has resided since he was four months old (the child is

now nearly four years old) -- if not moot, our ability to render

effective relief in an appeal in this case is dubious at best.

It has been the Division's policy not to authorize adoption

proceedings during the pendency of a guardianship appeal.

However, in the vacuum existing between entry of the trial court

judgment and the filing of a notice of appeal, OPR's clients

remain at grave risk that their appeals may be rendered moot

through inaction. Despite the existence of an office dedicated

to representing indigent defendants in such matters, and despite

the relatively small amount of energy required to prepare and

file a notice of appeal, it is startling how often OPR asks this

court to grant leave to file a notice of appeal out of time due

to mistakes or OPR's inability to move more rapidly or

5
Critical to the exercise of our authority pursuant to Rule 2:4-
4(a) in R.G. was the fact that the other parent had filed a
timely appeal and, in fact, that other appeal had been adjudi-
cated by the time the movant sought leave to file an appeal out

354 N.J. Super. at 205. In that circumstance, we
of time.
recognized there would be little interference with the goal of
permanency because the trial transcript was available from the
earlier appeal and the other parent's tardy appeal could be
rapidly adjudicated. Id. at 210.

A-1683-09T4
5

efficiently.6 In this case, defendants timely requested that OPR

file appeals on their behalf and yet OPR failed to act in a

timely fashion and permitted an extraordinary amount of time to

elapse following entry of the trial court judgment.

We, thus, deny these motions. We find OPR's delay in

seeking leave to file a notice of appeal to be unreasonable even

when judged by our expansive approach in guardianship appeals.

Considering the overarching goal of permanency for children

caught up in such litigation, see, e.g., N.J. Div. of Youth &

Family Servs. v. B.R.,
192 N.J. 301, 309 (2007); R.G., supra,

354 N.J. Super. at 209, it would simply be unconscionable for

this court to permit an appeal at such a late date.

The egregiousness of OPR's delay is demonstrated by the

fact that the child has been adopted. Entry of a judgment of

adoption triggers the strong public policy of this State to

"promote the creation of a new family unit without fear of

interference from the natural parents." In re Adoption of Child

by W.P.,
163 N.J. 158, 169 (2000). The effect of adoption on

the rights flowing from the child's former relationship with his

or her natural parents is so extensive as to preclude the

enforcement of indirect natural rights. For example, in W.P.,

6
It has been estimated that motions are filed in approximately
one-fifth of the appeals commenced by OPR in guardianship
matters.

A-1683-09T4
6

the Court held that a nonrelative adoption precludes the

statutory rights of the child's natural grandparents to

Ibid.7 The policy that adoption creates a new
visitation.

family unit without fear of interference from the child's

natural parents would be disserved if we were to permit the

filing of defendants' nascent guardianship appeals at this late

date. Although it may not be entirely clear whether an

intervening judgment of adoption moots a guardianship appeal,8 it

certainly is a factor that weighs heavily in favor of rejecting

an appeal out of time.

To summarize, in these circumstances, we decline to grant

relief. The completed adoption and defendants' extraordinary

7
But cf., N.J. Div. of Youth & Family Servs. v. S.S.,
187 N.J. 556, 562-63 (2006) (describing the importance of sibling
visitation despite adoption, although ultimately finding
certification of the issue was improvidently granted).
8
The Supreme Court has observed that in determining whether it is
just and equitable to grant relief from a judgment pursuant to
Rule 4:50, the passage of time has "greater significance" in
guardianship matters than "in practically any other context."
In re Guardianship of J.N.H.,
172 N.J. 440, 475 (2002). But the
Court did not necessarily rule out the availability of relief
despite an intervening adoption; instead, the Court held only
that -- in addition to the detrimental impact caused by the
delay in filing such a motion -- "a completed adoption would
constitute an additional heavy weight against Rule 4:50 relief."
Ibid. In short, although hardly expressing a favorable view of
the likely success of such a motion, J.N.H. does not preclude
the possibility that such a motion might be granted even after
adoption has occurred.

A-1683-09T4
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delay in seeking relief compel our determination to withhold

leave to appeal out of time.

Motions denied.

A-1683-09T4
8

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