NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. H.L.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2198-08T42198-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.L.,

Defendant-Appellant.

 

IN THE MATTER OF

J.L. AND J.L.,

Minors.

 
 

Submitted December 2, 2009 - Decided

Before Judges Graves, J.N. Harris, and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-0210-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel and on the brief; Eva Pagano, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors-respondents J.L. and J.L. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This protective services action involves the adoptive mother of six children, two of whom are the focus of this appeal. The New Jersey Division of Youth and Family Services (DYFS or Division) initiated Title 9 abuse or neglect proceedings against defendant, H.L., but the complaint was ultimately dismissed by the trial court in favor of a Title 30 guardianship proceeding. Defendant subsequently voluntarily surrendered her parental rights to the children, Jack and Jordan, and consented to adoption by their current foster family. Defendant now appeals the dismissal of the abuse or neglect proceedings, seeking, among other remedies, a plenary fact-finding hearing. Because defendant voluntarily surrendered her parental rights, and for the reasons that follow, we dismiss this appeal as moot.

The tale of H.L., her husband J.L., their six Russian-born adopted children, and their involvement with DYFS is a long one. The oldest child has since turned eighteen years of age and is not a part of the Division's proceedings or this current appeal. In December 2001, the youngest of the adopted children died from trauma to the head. His death was ruled a homicide, with the adoptive parents as primary suspects. Defendant is currently serving a six-year sentence for second-degree child endangerment, in violation of N.J.S.A. 2C:24-4(a).

On May 24, 2006, the Division commenced an action pursuant to N.J.S.A. 9:6-8.21 for the care and custody of defendant's minor children. On October 31, 2006, Judge Julio Mendez held a fact-finding hearing, determining that the children required the care and supervision of DYFS pursuant to N.J.S.A. 30:4C-12. The trial court suspended the Title 9 abuse or neglect proceedings against defendant while the court prepared to make Title 30 best interest findings for the children. As a result, no Title 9 abuse or neglect finding was made against defendant and the matter was dismissed.

On October 1, 2008, Judge Mendez held a permanency hearing in which the Division, along with the approval of the Law Guardian, proposed the termination of defendant's parental rights as to Jack and Jordan, to be followed by adoption by their current foster parents. At that time, Judge Mendez dismissed the Title 9 action against H.L., instead focusing on a best interests Title 30 action before approving the termination of defendant's parental rights. On November 12, 2008, the Family Part formally dismissed the Title 9 proceedings after the Division filed its complaint for guardianship for Jack and Jordan.

On December 23, 2008, defendant filed the current appeal, arguing due process violations concerning the lack of fact finding for the Title 9 allegations that had been lodged against her, among other grievances. However, as the Division's subsequent motion denotes, on July 31, 2009, defendant while represented by counsel voluntarily surrendered her parental rights as to Jack and Jordan, with the intent that their current foster family adopt them.

Pursuant to Rule 2:8-2, we are permitted to entertain an application to dismiss an appeal for procedural and technical defects. Specifically, mootness is defined as the inability of the court to grant judicial relief, as our decision can have no practical effect on an existing controversy. Pressler, Current N.J. Court Rules, comment 1.2 on R. 2:8-2 (2010) (citing Marjarum v. Twp. Of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000)); Greenfield v. N.J. Dep't. of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006)).

It is also well established in New Jersey that a party may not appeal a Title 9 matter if there is no final order regarding abuse or neglect. N.J.S.A. 9:6-8.70. The statute states, in relevant part, that

[a]n appeal may be taken as of right from any final order of disposition and from any other final order made pursuant to this act. An appeal from a final order or decision in a case involving child abuse may be taken as of right to the Appellate Division of the Superior Court.

[Ibid. (emphasis added).]

Furthermore, we have considered the issue of mootness of issues in child abuse cases and due process arguments quite recently. In N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252 (App. Div. 2009), the defendant parent argued that there was a violation of her due process rights when Title 9 proceedings were dismissed before she had an opportunity to appear in her own defense. The factual similarities between A.P. and defendant's case are striking, and the legal analysis regarding mootness in A.P. is wholly applicable to this appeal.

In A.P., we noted that "DYFS may bring an action for the termination of parental rights under any of the other subsections of N.J.S.A. 30:4C-15 without first bringing an action under Title 9." Id. at 259. See also N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 292 (2007); N.J. Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 556 (1994). In A.P., this court directed much of its opinion to the issue of mootness, stating that "an issue is `moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Ibid. (quoting Greenfield, supra, 382 N.J. Super. at 257-58). Moreover, if the Title 9 action is dismissed without adjudication, there are no adverse abuse or neglect consequences for the defendant; it is as if the suit were never brought. Id. at 262-63. In conclusion, we found that "DYFS'[s] filing of a Title 30 action and the entry in that action of an order regarding custody[,]. . . which supersedes any orders entered in the Title 9 action, moots the parent's appeal from the dismissal of the Title 9 action before adjudication of abuse or neglect." Id. at 255.

Without a final Title 9 determination rendered against defendant, there is no appropriate opportunity to appeal. More significant is the fact that defendant voluntarily surrendered her parental rights as to the children; any determination made by this court as to her Title 9 hearing or her parental rights would not reverse that voluntary termination. The Division's motion is granted.

The appeal is dismissed as moot.

 

N.J.S.A. 9:6-8.21 to -8.73.

N.J.S.A. 30:4C-1 to -40.

We elect to substitute pseudonyms to name the minors rather than utilize initials.

Pending at the time of the submission of the appeal is a motion by DYFS to dismiss the appeal as moot. We incorporate that motion into this opinion and grant the relief sought.

J.L. is not a party to this appeal.

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2

A-2198-08T4

RECORD IMPOUNDED

December 14, 2009