NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

E.S.,

Defendant-Appellant.

________________________________

IN THE MATTER OF K.S. AND J.S.,

Minors.

________________________________

November 29, 2016

Submitted October 11, 2016 Decided

Before Judges Ostrer and Leone.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-211-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Hannah F. Edman, Deputy Attorney General, on the brief).

Jeffrey E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief).

PER CURIAM

Appellant E.S. (Father) appeals the trial court's November 14, 2014 order finding that his family was in need of services from the Division of Child Protection and Permanency ("Division"). We dismiss the appeal as moot.

I.

The trial court found the following facts. In 2010, the Division substantiated Father for sexual abuse and penetration of his thirteen-year-old granddaughter. Father pled guilty to endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a). On September 28, 2012, he was sentenced to three years in prison.

In May 2013, Father was released from prison on parole. The conditions of Father's parole included that he could not have unsupervised contact with his young daughters K.S. and J.S. and could not reside in the home with them.

On February 11, 2014, Parole Exchange reported to the Division that Father may have been staying overnight at the home of D.B.S. (Mother), Father's wife, where K.S. and J.S. live. This report prompted a Division investigation.

A Division intake worker, Nicholas Del Bono, went to Mother's residence and found Father there. K.S. told Del Bono she had spent some time alone with Father and he was sleeping in the home. While Father and Mother denied Father ever spent the night in the home, the Division went to Father's residence and the "residents denied that [Father] sleeps there every night." The Division made an emergency removal of K.S. and J.S. from the home.

On February 19, 2014, the Division filed a verified complaint and request for an order to show cause against Father and Mother, alleging the family was in need of the Division's services. The Division's complaint cited N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 ("Section 12"). The Division may file a complaint to provide services pursuant to Section 12

[w]henever it shall appear that the parent or parents, guardian, or person having custody and control of any child within this State is unfit to be entrusted with the care and education of such child, or shall fail to provide such child with proper protection, maintenance and education, or shall fail to ensure the health and safety of the child, or is endangering the welfare of such child[.]

[N.J.S.A. 30:4C-12.]

Following an investigation, if "it appears the child requires care or supervision of the division or other action to ensure the health or safety of the child," the Division may apply to the Family Part to enter a court order "placing the child under the care and supervision or custody of the division. The court, at a summary hearing," may issue such an order if "the best interests of the child so require." Ibid.

At the February 19, 2014 hearing on the order to show cause, Judge Louise D. Donaldson held the Division had not shown removal was proper under N.J.S.A. 9:6-8.21 and ordered custody of the children be returned to Mother. The judge granted the Division care and supervision of K.S. and J.S. pursuant to Section 12. The judge granted Father supervised visitation but provided he could not live or sleep in the children's home. Father was ordered to complete a "sex-specific psychological evaluation," and Mother was ordered to complete a psychological evaluation.

Judge Paula T. Dow held a summary hearing on October 23, 2014, and issued a letter opinion on November 10, 2014. In the opinion, the trial court found the Division met its burden pursuant to Section 12. The court concluded that

the totality of the record, including [Father's] prior substantiation by the Division for sexual abuse of a minor child, his corresponding criminal record, the conditions of his release, and the restrictions on [Father's] unsupervised and overnight presence around minor children, support the Division's determination that [Father, K.S. and J.S.] are a family in need of services [and] that the family should continue at this time under the care and supervision of the Division pursuant to N.J.S.A. 30:4C-12.

The court reiterated that finding in its November 14, 2014 order.

On February 9, 2015, Judge Dow entered an order terminating the litigation. By that time, Father completed the court-ordered "sex-specific psychological evaluation," which revealed no concerns. Moreover, Father had completed his parole. The Division requested the litigation be terminated on the basis that "[a]ll the services have been completed by the parties and there's no need for any other future services." The law guardian for the children also noted the children were safe in their home and happy to spend time with their father. The trial court terminated the litigation because the "conditions have been remediated." Pursuant to this order, the children remained in the home and continued the joint legal and physical custody of K.S. and J.S. with Father and Mother.

Father filed his appeal on March 25, 2015, arguing the trial court improperly applied Section 12 when finding the family in need of the Division's services.

II.

We must hew to the limits on adjudicating moot issues. "Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). "'It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed.'" N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 297 (App. Div.) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)), certif. denied, 218 N.J. 275 (2014). "'[F]or reasons of judicial economy and restraint, courts will not decide cases in which the issue is hypothetical, [or] a judgment cannot grant effective relief[.]'" Cinque, supra, 261 N.J. Super. at 243 (citation omitted).

This matter was resolved when the trial court terminated the N.J.S.A. 30:4C-12 litigation on February 9, 2015. The court determined all services to Father and his family were completed and there was no need for future services. The trial court then entered an order terminating the litigation because the "conditions have been remediated." The court continued both legal and physical custody of K.S. and J.S. with Father and Mother.

As Father and his family are no longer receiving the Division's services, Father and Mother have custody of their children, and the litigation has been terminated, "this appeal is moot because the orders entered in the [N.J.S.A. 30:4C-12] action have no continuing adverse consequences." See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 264 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010); see also N.J. Div. of Child Prot. & Permanency v. K.N., 223 N.J. 530, 534 (2015) (dismissing as moot where "the Division returned [the child] to the care and custody of his mother").

This reflects the limited nature of litigation under Section 12. "[T]he Legislature intended N.J.S.A. 30:4C-12 to authorize the Division to intervene when children need services and a parent cannot provide that help for no fault-based reason." N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 15, cert. denied, __ U.S. __, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). "N.J.S.A. 30:4C-12 allows for 'intervention by the Division . . . to protect a child who, although not abused or neglected, is in need of services to ensure its health and safety.'" N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 19 (2013) (citation omitted). Our Supreme Court has made clear there need not "be the equivalent of Title 9 abuse or neglect level of culpability on the part of the parent in order to file a complaint under Section 12." I.S., supra, 214 N.J. at 33, 35-36. "Imposing a fault-based finding in respect of a parent or parents would impede the apparent legislative intent to facilitate services to children in need[.]" Id. at 36.

"[T]he court's determination is based on the best-interests-of-the-child standard, not the specific language in the abuse and neglect law." A.L., supra, 213 N.J. at 33. "[U]nlike Title 9 inquiries, a parent's fitness is not the touchstone under the best-interests standard." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 292 (2007). "Importantly, Section 12 is less damaging to parents in that the child abuse registry is not implicated." I.S., supra, 214 N.J. at 37 (citing N.J.S.A. 9:6-8.11). Thus, like the Division's "dismissal of a Title 9 action without an adjudication that the parent has abused or neglected his or her child," the dismissed litigation under Section 12 "has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect." See A.P., supra, 408 N.J. Super. at 262-63.

Here, the trial court did not find Father abused or neglected the children or that he was unfit. Rather, the court's November 14, 2014 order merely stated that services were necessary because the parents were temporarily "unable to adequately care for the child(ren)." The adverse conditions on which that order was based have been remediated, the Division no longer seeks to provide services, the children remain in the parents' custody, the Division has relinquished care and supervision, and the Section 12 litigation has been dismissed. Cf. N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 57-58 (App. Div. 2012) (hearing an interlocutory appeal from the order placing children in the Division's care and supervision).

Accordingly, Father's appeal is moot. "We cannot grant effective relief because we cannot" undo the services that have already been provided. See W.F., supra, 434 N.J. Super. at 297. "To the extent Father seeks a ruling on how [the complaint to provide services] should have been determined, such a request is moot because it '"can have no practical effect on the existing controversy."'" See ibid. (quoting N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 263 (App. Div. 2011)). "Further, this is not an appeal where the issues raised 'involve significant matters of public policy, are extremely important, and undoubtedly will recur in cases that are likely to be mooted before adjudication.'" Ibid. (quoting In re N.N., 146 N.J. 112, 124 (1996)). Thus, we must dismiss the appeal. See J.C., supra, 423 N.J. Super. at 263.

Dismissed as moot.