NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6212-09T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.B.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE GUARDIANSHIP

OF F.L.R.,

a Minor.

_____________________________________________________

October 25, 2010

Submitted September 30, 2010 - Decided

Before Judges Cuff and Fisher.

On motion for leave to file a notice of appeal out of time from a judgment of the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-70-10.

Yvonne Smith Segars, Public Defender, attorney for appellant (Victor E. Ramos, Assistant Deputy Public Defender, of counsel; Deric Wu, Assistant Deputy Public Defender, on the reply brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, of counsel and on the brief).

PER CURIAM

Defendant K.B. filed a motion on August 16, 2010, seeking leave to file out of time a notice of appeal of an April 12, 2010 judgment, which terminated her parental rights. Because of the undue delay in pursuing an appeal -- during which the child was adopted by nonrelatives -- we conclude that defendant's motion must be denied.

Defendant's motion is based solely on the certification of her current attorney, an assistant deputy public defender assigned to the Office of Parental Representation's Appellate Section (OPR Appellate). In the moving certification, counsel represented that, on August 11, 2010, OPR Appellate received a telephone call from defendant for the purpose of "following up" on the status of her appeal.

According to the certification, defendant advised she had "previously indicated to her trial attorney that she wanted to appeal the termination of her parental rights." Neither defendant nor her trial attorney filed certifications to support this assertion, and the hearsay statement attributed to defendant by her appellate counsel does not suggest the date upon which defendant first advised of her desire to appeal. Nevertheless, defendant's appellate counsel attached to his certification a copy of a notice of right to appeal form, which was purportedly signed by defendant on May 21, 2010, and which expressed her desire to appeal the April 12, 2010 judgment terminating her parental rights.1

The Law Guardian opposed this motion chiefly because the child was adopted in the interim on August 9, 2010. The Law Guardian argued that to permit an appeal to go forward could lead to "an unconscionable disruption of the life of F.L.R."2 Because defendant had not mentioned in her motion papers that the child had been adopted, we permitted defendant to reply to the Law Guardian's arguments.

In the reply brief, defendant cavalierly argued, without citation to any authorities, that the intervening adoption poses no obstacle to an appeal of the judgment terminating her parental rights. Defendant further expressed in the reply a lack of concern about the potential for disruption of the child's life resulting from further appellate proceedings in this matter:

The contention that the adoption would be jeopardized without due process if [defendant] were to proceed with her appeal is also without merit. In fact, it is [defendant's] right to due process that is jeopardized if her child were to be adopted in light of a denial of [defendant's] right to appeal. Furthermore, this appeal will have no effect on her child, F.L.R.[,] or the adoptive parents during the pendency of the appeal. F.L.R. will remain in the same home under the care of the same people. If [defendant] were to prevail on appeal, then the adoption would be properly rescinded because the Appellate Division would have determined that F.L.R. should not have been available for adoption in the first place.

We do not share defendant's view. Once a judgment of adoption was entered and not challenged on appeal, the adoptive parents and the child have a right to assume that the parental relationship has been permanently fixed.

Defendant's motion presents a circumstance quite similar to that recently considered in N.J. Div. of Youth & Family Servs. v. J.C., 411 N.J. Super. 508 (App. Div.), certif. denied, 202 N.J. 44 (2010). There, defendant advised trial counsel, and trial counsel advised OPR Appellate, of defendant's desire to appeal within the forty-five day time period prescribed by Rule 2:4-1(a). J.C., supra, 411 N.J. Super. at 510. Accordingly, the movants in J.C., like defendant here, did all that was required to pursue an appeal; and, as occurred here, OPR Appellate failed in J.C. to file a timely notice of appeal, and in the interim, the child was adopted by a nonrelative. Id. at 511-12. In J.C., we adhered to the liberal approach taken in such matters, as more fully described in N.J. Div. of Youth & Family Servs. v. R.G., 354 N.J. Super. 202, 207-08 (App. Div. 2002), certif. denied, 177 N.J. 491 (2003), but denied leave to file a notice of appeal out of time because of OPR Appellate's considerable delay in seeking relief and because of the intervening nonrelative adoption. J.C., supra, 411 N.J. Super. at 512-14.

Only the length of OPR Appellate's delay distinguishes J.C. from the matter at hand. In J.C., defendants' motions for leave to file their notices of appeal out of time were filed nearly sixteen months after entry of the trial court judgment. Id. at 511. Here, only four months elapsed.3 We find that difference, however, to be inconsequential in light of the other key similarity with J.C. -- that the child in question was adopted by nonrelatives in the interim. Although we recognized in J.C. that it is not "entirely clear" that an intervening judgment of adoption moots a guardianship appeal, we determined that it "is a factor that weighs heavily in favor of rejecting an appeal out of time." Id. at 513. Accordingly despite the significantly shorter delay in seeking relief here than in J.C., we conclude for the reasons expressed in J.C. that the intervening nonrelative adoption requires the denial of defendant's motion.

Motion denied.4

1Appellate counsel certified that, after making inquiry in light of defendant's telephone call to OPR Appellate on August 11, 2010, he spoke with the Southern OPR Office's supervising attorney, who faxed the next day a copy of the notice of right to appeal form. There appears to be no dispute that some office of OPR was aware of defendant's desire to appeal within forty-five days of the trial court's entry of final judgment.

2The judgment of adoption authorized the child's future use of the surname of the adoptive parents.

3In R.G., we granted relief even though nearly one year passed between the trial court's judgment and the motion for leave to file a notice of appeal out of time. R.G., supra, 354 N.J. Super. at 205. However, unlike J.C., and unlike the case at hand, the child in question in R.G. had not been adopted during OPR Appellate's delay in commencing the appeal. R.G., supra, 354 N.J. Super. at 210. We also found in R.G. that no prejudice arose from the delay because of the peculiar fact that the other parent had filed a timely appeal, which had been adjudicated on its merits, and thus, during OPR Appellate's lengthy delay in commencing the second appeal, the child's status had not been permanently fixed. Id. at 205; see J.C., supra, 411 N.J. Super. at 511-12.

4At the time this motion was filed, the clerk's office also filed defendant's notice of appeal conditioned upon the granting of this motion. Now that we have denied the motion, the appeal is dismissed.