NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.N.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4986-05T44986-05T4
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
IN THE MATTER OF
Argued telephonically February 22, 2007 - Decided March 7, 2007
Before Judges Parker, C.S. Fisher and Yannotti.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-327-06.
Patricia Nichols, Assistant Deputy Public Defender, argued the cause for appellant (Office of Parental Representation, Appel-late Section, attorney; Ms. Nichols, on the brief).
Lorena L. Perez, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Perez, on the brief).
Maria Emilia Borges, Assistant Deputy Public Defender, argued the cause for the minor-respondent (Yvonne Smith Segars, Public Defender, Law Guaradian, attorney; Phyllis Warren, Assistant Deputy Public Defender, of counsel; Ms. Warren and Ms. Borges, on the brief).
In this appeal, defendant L.N. seeks our review of orders entered by the trial judge on March 10 and April 3, 2006. These orders memorialized the judge's finding that the child in question, M.N., was an abused or neglected child and his determination that the child should remain in foster care under the custody, care and supervision of the Division of Youth and Family Services (Division), and not returned to L.N.
In her appeal, L.N. presents the following arguments for our consideration:
I. A NOTICE OF APPEAL WAS APPROPRIATE.
II. THE PROCEEDINGS BELOW VIOLATED DEFEN-DANT'S RIGHTS TO COUNSEL, DUE PROCESS AND FUNDAMENTAL FAIRNESS, U.S. Const. Amend. XIV.
III. THE TRIAL JUDGES DID NOT PROPERLY COMPORT THEMSELVES IN THE HEARINGS IN THIS MATTER, PREJUDICING DEFENDANT AND VIOLATING HER RIGHTS TO DUE PROCESS AND FUNDAMENTAL FAIRNESS.
After careful review of the record on appeal, we find insufficient merit in any of these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
M.N. was born on December 11, 2005. On December 15, 2005, while the child was still a patient at University Hospital in Newark, the Division commenced this action seeking a determination that the child was "abused or neglected," as defined by N.J.S.A. 9:6-8.21, and an order placing M.N. under the Division's supervision, care and custody. The Division's verified complaint asserted, among other things, that L.N. was an unfit parent because she no longer had custody of any of her five other children, had troubles in the past with drugs and alcohol, and had been involved in episodes of domestic violence.
On the same day the complaint was filed, a hearing occurred during which L.N. was present but without counsel. The proceedings in open court reveal that L.N. was then being represented by the public defender's office in a guardianship action involving C.N. and S.N., but that attorney had declined to appear. As a result, L.N. was left to represent herself. At the conclusion of the hearing, the judge entered an order to show cause that immediately placed M.N. in the custody, care and supervision of the Division.
L.N. was represented by counsel at the hearing on January 5, 2006, which was the return date of the December 15, 2005 order to show cause, and all other events thereafter. The judge ultimately rejected L.N.'s application for return of the child to her custody and found, after conducting an evidentiary hearing on March 10, 2006, that M.N. was an abused or neglected child, N.J.S.A. 9:6-8.21, by chiefly relying upon the past terminations of L.N.'s parental rights to her other children, her past history of substance abuse, and her uncertain housing circumstances.
Immediately after making those findings, the trial judge heard testimony and received evidence concerning the disposition of the child in light of his finding of abuse and neglect. He concluded that the child should remain in foster care and denied L.N.'s motion that the child be returned to her.
In Point I, L.N. argues that the orders in question were appealable as of right and that she was not required to move for leave to appeal. We need not decide that issue. To the extent the March 10 and April 3, 2006 orders were not appealable as of right, we deem it appropriate to grant leave to appeal out of time in the interests of justice, see, e.g., Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002), particularly in light of the fact that the interests of a child are involved and the matter has been fully briefed.
L.N. also argues in Point I that the Law Guardian had no standing to be heard in the trial court. We reject that remarkable contention. The Legislature has declared that "[a]ny minor" who is the subject "of a child abuse or neglect proceeding under this act must be represented by a law guardian to help protect [the minor's] interests and to help . . . express [the minor's] wishes to the court." See N.J.S.A. 9:6-8.23(a). It is true, as L.N. emphasizes, that M.N. was an infant and unable to understand the proceedings or express her wishes. But to have the child's entitlement to an advocate in such a matter turn solely on the child's age or ability to express her wishes represents a myopic view of the legislative declaration; the law guardian does not simply express the child's wishes but is also charged with the obligation to "help protect [the child's] interests." N.J.S.A. 9:6-8.23(a). Moreover, standing in cases in which the interests of children are affected should be viewed broadly. See R.K. v. A.J.B., 284 N.J. Super. 687 (Ch. Div. 1995).
We also reject L.N.'s contention in Point II that she was deprived of the right to counsel on December 15, 2005. We agree with L.N. that the attorney with the public defender's office, who was then representing L.N. in the guardianship action involving L.N.'s fourth and fifth children, ought to have appeared for the December 15, 2005 proceeding. The fact that he did not appear because he had not been formally assigned, however, did not require the judge to postpone the Division's emergent application. More importantly, we discern no prejudice to L.N. as a result. She had a full and fair opportunity thereafter to be heard concerning the allegations of the complaint, the ultimate disposition of the child, and all other aspects of the case, and was represented by counsel at all subsequent stages of the matter.
In addition, we observe that the trial judge's finding that M.N. was an "abused or neglected child," was more than amply demonstrated by the evidence adduced at the fact-finding hearing on March 10, 2006. In seeking a finding that M.N. met the definition contained in N.J.S.A. 9:6-8.21(c)(4), the Division was only required to prove by a preponderance of the evidence that M.N. was a child "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or guardian to exercise a minimum degree of care" (emphasis added). In this regard, "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of another child." N.J.S.A. 9:6-8.46(a)(1). The fact that L.N. was previously found to be unfit provided ample support for a finding that M.N. met the definition of an "abused or neglected child." This circumstance, as well as the other evidence presented, provided an adequate basis for the judge's findings and ultimate disposition in this matter, and we have been provided with nothing that would warrant our second-guessing of that determination.
L.N.'s parental rights to D.M. (born on June 29, 1992) and A.N. (born on July 16, 1996) were involuntarily terminated by separate orders entered on June 14, 2000. We affirmed by way of an unpublished opinion. Division of Youth & Fam. Servs. v. L.N., Docket No. A-6358-99T4 (App. Div. September 10, 2001). L.N. voluntarily surrendered her parental rights to C.M. (born on August 18, 1997) on March 7, 2002, and she voluntarily surrendered her parental rights to C.N. (born on August 7, 2002) and S.N. (born on October 15, 2004) on June 12, 2006.
During the pendency of this appeal, the trial judge forwarded to this court his November 28, 2006 written decision concerning the Division's application for the adoption of a permanency plan regarding M.N. As a result, L.N. moved to suppress the judge's communication and to foreclose our consideration of the November 28, 2006 opinion. Because we have determined that it is appropriate to decide the issues on appeal solely by a consideration of the record existing at the time the orders in question were entered, and not by resort to subsequent events, we have granted L.N.'s motion by separate order.
March 7, 2007