NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5406-04T45406-04T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Appellant,

v.

A.M.,

Defendant-Respondent.

IN THE MATTER OF THE GUARDIANSHIP

OF A.L.G.,

A Minor.

______________________________________

 
Argued telephonically December 21, 2005 - Decided January 25, 2006

Before Judges Lintner, Parrillo and

Holston, Jr.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FG-18-106-04.

Nicole S. Piccoli, Deputy Attorney General, argued the cause for appellant (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

Patricia Nichols, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney; Ms. Nichols, on the brief).

Noel Christian Devlin, Assistant Deputy Public Defender, Law Guardian, argued the cause for the minor (Yvonne Smith Segars, Public Defender, attorney; Mr. Devlin, on the brief).

PER CURIAM

On April 29, 2002, five days after A.L.G.'s birth, the New Jersey Division of Youth and Family Services (DYFS) filed a Complaint, FN-18-130-02, for Protective Services and Custody of A.L.G. (FN Complaint), alleging abuse and or neglect, N.J.S.A. 30:4C-12. On the same day, the Family Part judge entered an order placing A.L.G. in the custody of DYFS. A.L.G. was then placed in foster care where he remains today.

On December 3, 2003, DYFS filed a Guardianship Complaint, FG-18-106-04, (FG Complaint), seeking to terminate parental rights, N.J.S.A. 30:4C-15. On December 11, 2003, the judge entered an order appointing a guardian ad litem for A.M., the infant's natural father, who resides in Ohio. On January 11, 2005, A.L.G.'s natural mother, A.F.G., surrendered her parental rights on condition that A.L.G. be adopted by his foster parents.

A four-day trial took place spanning the period between January 11 and April 11, 2005, during which A.M. testified via videoconference from Ohio. On May 19, 2005, the judge issued a written decision in which he essentially found that DYFS failed to establish the third prong of the best interest test as enumerated in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1a. Specifically, the judge found that DYFS failed to make reasonable efforts to fairly evaluate, help, and assist A.M. in remedying the circumstances and conditions that led to A.L.G.'s placement in foster care. It is noteworthy that the judge elaborated his factual findings and conclusions of law only with respect to the third prong. Although the judge found DYFS "failed to meet any of the four prongs," he did not make any factual findings nor set forth his conclusions of law with regard to prongs one, two, and four.

The judge dismissed DYFS's FG Complaint, reactivated the earlier FN Complaint and ordered DYFS to submit a plan that would give A.M. the opportunity for parenting time, establish a bond with the child, and provide fair psychological and drug evaluations along with services to enable him to parent his child. The judge also continued A.L.G.'s care, custody, and supervision with DYFS and scheduled the matter for further review. An order memorializing his decision was also filed on May 19, 2005.

DYFS appeals, contending:

THE TRIAL COURT'S ORDER DISMISSING THE DIVISION'S COMPLAINT FOR GUARDIANSHIP OF [A.L.G.] WAS NOT SUPPORTED BY THE RECORD, HAS RESULTED IN A DENIAL OF JUSTICE, AND WARRANTS INTERVENTION AND CORRECTION.

1. Introduction.

2. The Health And Development Of [A.L.G.] Have Been And Will Continue To Be Endangered By The Parental Relationship With [A.M.].

3. [A.M.] Is Unable and Unwilling To Eliminate The Harm Facing [A.L.G.] And Is Unable and Unwilling To Provide A Safe And Stable Home For [A.L.G.], And Delay Of Permanent Placement Will Add To The Harm.

4. The Division Has Made Reasonable Efforts To Provide Services To Help [A.M.] Correct The Circumstances Which Led To The Placement Of [A.L.G.] Outside The Home, And There Are No Alternatives To Termination.

5. Termination Of The Parental Rights of [A.M.] Will Not Do More Harm Than Good.

While this appeal was pending and prior to oral argument before us, the judge, in a letter dated December 14, 2005, advised us that he had held a permanency hearing and "approved termination of parental rights followed by foster home adoption as the permanent plan with the understanding that [DYFS] would refile a new complaint to terminate parental rights no later than February 15, 2006." See R. 5:12-4(h). He enclosed a December 14, 2005, Multi-Purpose Order continuing the custody and care of the child with DYFS and his foster home, requiring DYFS to provide further services to A.M. to attend substance abuse evaluation, neurological assessment, counseling, parenting skill training, and permitting monthly visitation.

The judge also enclosed a Permanency Order, finding that DYFS's permanency plan and timeframe for termination of parental rights followed by foster home adoption is appropriate and acceptable. The order noted that DYFS's timeframe anticipates a complaint to terminate parental rights will be filed by DYFS no later than February 15. The order further stated: (1) A.M. is not presently in a position to care for A.L.G.; (2) DYFS has provided services, including the arrangement for psychological, substance abuse and drug evaluations, and paid for his visits with his child in New Jersey but observed "very little" interaction with the child; (3) A.M. "has failed to maintain consistent contact with his caseworker despite having been court-ordered to do so."

At oral argument on appeal, DYFS argued that the judge erred in his findings of fact and legal conclusions that it failed to meet the third prong requirement. It also asserted that its proofs at trial established that it had met the four elements of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. It sought that we reverse the May 19 Order and direct the judge to enter an order terminating A.M.'s parental rights.

As we previously indicated, the judge's factual findings were limited to his decision that DYFS failed to meet the third prong. A trial court is required to "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . . " R. 1:7-4(a). "Failure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). Setting aside for the moment the issues raised respecting the judge's specific findings on the third prong, the judge's decision respecting the remaining prongs leaves the litigants and us uninformed of the basis for his conclusory statement that DYFS "failed to meet any of the four prongs." We cannot tell whether he meant that the failure to prove one element rendered the sufficiency of the proofs on the remaining elements moot, or whether he found DYFS's proofs on elements one, two, and four insufficient. Under normal circumstances, we would remand for factual findings and conclusions of law on those elements.

We "do not resolve issues that have become moot due to . . . intervening events." City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999). Because the judge recently decided that DYFS has now provided adequate and appropriate services to A.M., entitling it to re-file its FG complaint, we decline to decide the issues raised respecting the judge's conclusions that DYFS previously failed to afford appropriate efforts to fairly evaluate, help, and assist A.M. Accordingly, we remand the matter for new trial to permit the parties to supplement the prior record with any intervening events that have occurred since the May 19, 2005, order and argue their positions anew. Our remand is without prejudice to the parties' rights to argue whatever position they deem appropriate based upon the facts previously established at trial and any subsequent facts established in the supplemental plenary hearing. We do not address the substantive merits.

 
A.L.G. has been in foster care since his birth, a period of time that is now in excess of three and one-half years. Out of an acute awareness for the need to expedite the matter, we direct the judge to reinstate the FG Complaint, thus alleviating the need for DYFS to file a new complaint. The plenary hearing should be held at the earliest possible date. We do not retain jurisdiction.

(continued)

(continued)

7

A-5406-04T4

RECORD IMPOUNDED

January 25, 2006