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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.M.,

Defendant-Appellant,

and

A.L.,

Defendant-Respondent.

__________________________________

IN THE MATTER OF R.M.,

a minor.

__________________________________

December 23, 2013

Submitted December 3, 2013 - Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FN-19-26-11.1

Joseph E. Krakora, Public Defender, attorney for appellant W.M. (Larry Leung, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent A.L. (John A. Salois, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.M. (Caitlin A. McLaughlin, Designated Counsel, on the brief).

PER CURIAM

Appellant W.M. is the father of a young girl, R.M., who was born in March 2010 while appellant was in jail. Appellant and the child's mother, A.L., each have a history of drug abuse.

While appellant was incarcerated, the Division of Youth and Family Services2 (the "Division") had removed the daughter from the mother's care on three separate occasions because of the mother's substance abuse. Consequently, the Division brought the present case in the Family Part under Docket Number FN-19-26-11. The Division alleged abuse and neglect by the child's mother, but apparently made no such allegations against appellant.

Fortunately, the mother made good progress in her drug treatment, prompting the Division in July 2012 to move before the Family Part to dismiss the FN litigation. In the meantime, the mother moved in a separate non-dissolution case (Docket No. FD-19-325-10) for sole physical and legal custody of R.M. The mother contended that appellant, who was still in jail, was not capable of caring for R.M. and, moreover, had not seen his daughter since November 2010.

In response, appellant sought to preserve his custodial rights, asserting that he was then scheduled to be released from prison soon in August 2012, that he expected to live with his grandmother upon release, and that he hoped to reunify with his daughter.

The parents and their respective public defenders in the FN case appeared before the Family Part judge on the return date, July 23, 2012, along with the Deputy Attorney General representing the Division. Because appellant was still incarcerated, he appeared by phone. At the outset of the hearing, appellant's public defender stated that he did not and could not represent appellant on the FD case. The judge accepted that limitation, but then asked counsel whether there was any objection to the court hearing the FN and FD cases at the same time. The lawyers assented. The court then heard brief testimony from each of the parents.

At the conclusion of the hearing, the judge granted the Division's application to voluntarily dismiss the FN case, and entered an order that same day terminating the FN litigation. Among other things, the FN order recited that the child had been "returned home, [because the] conditions have been remediated." The FN order further stated that the child "shall remain in the legal and physical custody of [A.L.]." In addition, the FN order directed that "[appellant's] parenting time [was] suspended until further [o]rder of the [c]ourt. [A.L.] may address any further custody issues under FD-19-325-10."

In a companion order in the FD docket issued that same day, the judge directed that the mother be "granted sole legal and residential custody of the parties' minor child, [R.M.]." The FD order further noted that appellant "is currently incarcerated," and that "pending further [c]ourt [o]rder, [his] rights for visitation or parenting time with [R.M. are] suspended." The FD order added that "upon release, [appellant] may make [an] application to the court for any change in custody or visitation requests."

Represented by the Office of Parental Representation in the Public Defender's Office, appellant filed the present appeal of the FN termination order. The notice of appeal and the heading of appellant's case information statement ("CIS") reflect that the appeal is only from the FN ruling, although the body of the CIS also mentions the FD order. Appellant has not filed, either through private counsel or as a self-represented litigant, a separate appeal of the FD order. Consequently, the only appeal properly before us is from the FN order.3

Appellant does not contest the propriety of terminating the FN litigation, given the mother's progress in stabilizing herself. Indeed, no one at the July 23, 2012 hearing in the trial court opposed the Division's application to end the FN case. Instead, appellant raises what are mainly procedural claims relating to the custodial facets of the court's determination.

More specifically, appellant contends in his brief that he was deprived of procedural due process because the trial court did not conduct a fact-finding hearing before terminating his legal custody to R.M. He argues that it was improper to strip him of custodial rights without any finding that he himself had abused or neglected his child. Appellant further asserts that the FN order was flawed because it did not recite any reasons for depriving him of custody and visitation. In this regard, he adds that the court misapplied a "best interests" test in the FN order, and that the court also wrongfully penalized him because of his incarceration.

The Division opposes all of these contentions, maintaining that the order terminating the FN litigation simply reinstated the previous custodial status quo, in which the mother had been caring for the child while appellant was incarcerated. The Law Guardian and mother, A.L., also join in opposing W.M.'s appeal.

We are satisfied that the order terminating the FN litigation was properly issued. Title Nine, which authorizes the Division to remove a child from a home, see, e.g., N.J.S.A. 9:6-8.29, establishes certain judicial proceedings following the removal of children from their parents. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398-400 (2009). One of those elements, as here, involves the issuance of a "dispositional order" at the conclusion of an FN case.

A dispositional order entered pursuant to N.J.S.A. 9:6-8.51 placing a child with a person other than the parent from whose custody the child was removed requires first a finding of abuse and neglect against that offending parent. N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 110 (App. Div. 2010) (citing N.J. Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 394 (1990)). Conversely, a parent against whom the court did not make an abuse and neglect finding is not entitled to a dispositional hearing, as the condition precedent has not been satisfied. In G.M., supra, 198 N.J. at 387-88, the Supreme Court explained:

the statutory framework of Title Nine provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be.

[(Emphasis added).]

Accordingly, the "dismissal of a Title [Nine] action without an adjudication that the parent has abused or neglected his or her child has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect." N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 262-63 (App. Div. 2009) (determining that the filing of a guardianship complaint under Title Thirty rendered moot the parent's appeal from an order dismissing the Division's Title Nine action where there was no adjudication of abuse or neglect), certif. denied, 201 N.J. 153 (2010). Such a dismissal "adjudicates nothing," and instead leaves the parties in a position as if "the suit had never been brought, thus vitiating and annulling all prior proceedings and orders in the case." Id. at 263 (internal quotation marks and citations omitted).

In the present case, the order terminating the FN litigation essentially restored the mother's custodial role that she had been assuming while the child's father was incarcerated and before the Division had removed the child. The order makes clear that further custody issues could be addressed in the future under the separate FD docket. Although the order literally refers to potential future applications by the mother in the FD case, we sensibly construe the order to also permit appellant, as the child's father, to seek relief reciprocally under the FD docket.4

We discern no violation of appellant's procedural or parental rights flowing from these circumstances. Although the FN order does suspend his parenting time, the record does not indicate that appellant actually had been exercising any visitations or parental functions while he was in prison, at least after November 2010. Appellant is not foreclosed from seeking parenting time, or any other custodial rights, from the court in a future application.

Appellant argues that the court's disposition has placed him at an unfair disadvantage because he presumably would have to show a "change in circumstances" to obtain legal or physical custody of his daughter, or to obtain parenting time. See, e.g., Hand v. Hand, 391 N.J. Super. 102, 105-06 (App. Div. 2007). But as the trial court evidently envisioned, when appellant is eventually released from prison, that event inherently will comprise a change in circumstances and trigger a reexamination of the terms of custody. Moreover, if appellant seeks to exercise any parental rights before his release (such as visitation at the prison with the child), he certainly may apply for such relief in the FD case.

That said, because of the potential confusion that may have been created by combining the FN and FD matters at the July 2012 hearing, we direct the trial court to consider whether it would be fair, in retrospect, to impose any burden of proving "changed circumstances" upon appellant if he files such a future custody-related motion in the FD case. The key point worth emphasizing is that the termination of the FN litigation does not preclude appellant from fully litigating his claimed interests as a parent against those of the child's mother in the FD docket, without the involvement of the Office of the Public Defender or the Division.

The balance of appellant's arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed, without prejudice to appellant's right to seek future relief in the FD case.

1 For the reasons we note in this opinion, the trial court's companion order in FD-19-325-10 was not properly raised on appeal.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families and renamed it as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 The mother has not appealed any aspects of either the FN order or the FD order. She did, however, file a responding brief on appellant's appeal of the FN order, urging that we not disturb the trial court's decision.

4 In fact, the judge orally advised appellant at the hearing that he would have the right to seek relief in the future in the FD case.