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

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0237-09T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.L.,

Defendant-Appellant.

________________________________

IN THE MATTER OF

D.N.L. and D.T.L.,

Minors.

________________________________

November 3, 2010

 

Argued: October 20, 2010 - Decided:

 

Before Judges Axelrad and R. B. Coleman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-121-08.

 

Michael S. Harwin, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Harwin, on the brief).

 

Lisa J. Godfrey, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Godfrey, on the brief).

 

Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minors D.N.L. and D.T.L. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

R.L. appeals the July 27, 2009 order of the Family Part terminating the litigation initiated by the New Jersey Division of Youth and Family Services (DYFS) for care and custody of his two daughters, D.N.L. and D.T.L., pursuant to N.J.S.A. 9:6-8.21 to -8.106 and N.J.S.A. 30:4C-12 (FN matter), and directing the case to proceed as a guardianship (FG matter), N.J.S.A. 30:4C-15(c). We dismiss the appeal as moot.

Following an emergency Dodd removal of then one-and-a-half year-old D.N.L. and four-month-old D.T.L., on April 28, 2008, the Division filed the FN complaint for care and custody against L.L., the mother, naming M.R. as the father of D.T.L. and stating the father of D.N.L. was unknown. D.N.L. was placed with a relative and D.T.L. was placed with a special home services provider (SHSP). The court granted the relief, citing L.L.'s mental health issues, possible alcohol abuse, and D.T.L.'s special health needs.

By the fourth compliance review hearing held on August 4, 2008, a paternity test taken of R.L. while he was incarcerated in the county jail revealed he was the father of both children. It was believed R.L. had been released from jail by that time and his whereabouts were unknown. The court converted the proposed fact-finding trial to a Title 30 hearing, finding by a preponderance of the evidence that L.L. was overwhelmed, unable to care for her children, and in need of services. Pursuant to N.J.S.A. 30:4C-12, custody of the children remained vested in the Division and their placements remained in effect. The court also verbally amended the complaint to substitute R.L. as defendant and father of both girls. These determinations were memorialized in two court orders of that date.

R.L. made his first court appearance at a compliance review hearing on March 17, 2009, having been transported from jail by correctional staff. R.L. was apparently served with a copy of the FN complaint at that time.

A permanency hearing was held on April 14, 2009. The DYFS caseworker testified regarding the agency's plan for termination of parental rights followed by a relative adoption of both girls. She further represented that R.L. informed her on two occasions that he did not currently have the resources to accept custody of the children and was unable to suggest an alternate family placement. R.L.'s counsel informed the court, in R.L.'s presence, that R.L. "want[ed] to get to know" the children before making a determination as to what was in their best interests so counsel was unable to represent that R.L. "absolutely want[ed] custody." The court continued the matter for thirty days at R.L.'s request and directed DYFS to provide R.L. with supervised visits with his children. R.L., however, never contacted the caseworker to arrange the visits. Nor did he respond to the caseworker's letter of April 15, 2009, stating she was unable to reach him at the telephone number he provided, and requesting he promptly call her to arrange visitation.

When the permanency hearing resumed on May 28, 2009, defense counsel represented, with R.L. again present, that R.L. was employed and was building four additional rooms on his home that would be available for his children, and requested R.L. be provided with the training necessary to take care of his special needs daughter. However, when asked by the court what the ultimate result of a further extension would be and whether R.L. was prepared to have the children placed with him, defense counsel responded that R.L. indicated he was not currently available or able to do that, but he "want[ed] to move in that direction." Balancing the concerns of the best interests of the children in view of the length of time the children were in foster placement and their need for permanency, with R.L.'s recent receipt of the FN complaint, the court approved a concurrent permanency plan of termination of parental rights followed by adoption, or reunification with R.L. if he successfully completed court ordered services and was able to support the children and provide them with safe, adequate and secure housing.

On July 9, 2009, DYFS filed the FG guardianship complaint under Title 30 seeking a termination of R.L.'s parental rights to his children. The complaint detailed the procedural history of the matter and asserted that it would be in the best interests of the children to be placed under the guardianship of DYFS for all purposes, including adoption. The complaint also asserted that R.L. "has abandoned [his children] to the care of others," "has substantially failed to perform the regular and expected functions of care and support for [his children]," and to return his children to R.L.'s care "would expose them to an unacceptable level of harm or risk of harm" as R.L. was incapable of parenting them.

At the compliance review hearing on July 27, 2009, DYFS moved to dismiss the FN litigation and have the case proceed as an FG action. Over R.L.'s objection and request for at least a year from the time he was served to be involved in the case and participate in services, the court entered an order terminating the FN litigation in view of the filing of the FG complaint, but ordered DYFS to provide services for both parents under the Title 30 guardianship action. The court reiterated that its primary motivation in dismissing the FN litigation was its determination that the best interests of the children required a move toward permanency and clearly informed R.L. that if he complied with the DYFS requests over the next six months, the agency would probably not seek to terminate R.L.'s parental rights.

On September 14, 2009, R.L. filed a notice of appeal of the July 27, 2009 order. He argued: (1) he was not required to submit to services and thus the permanency hearing should have been extended to provide him sufficient time to prepare to take custody of his children; (2) the court lacked the authority to place the children absent a finding of abuse, neglect, or unfitness against him, and thus DYFS should not have filed a guardianship petition; (3) the trial court had no authority to approve the permanency plan absent the provision by DYFS of reasonable services prior to the permanency and dispositional hearing; (4) the trial court erred in directing DYFS to provide reasonable services to R.L. in the FG case rather than in the FN litigation; (5) the trial court incorrectly believed the best interests of the children negated the obligation of DYFS to provide reasonable services to R.L.; (6) there should have been judicial oversight to determine if it was in the children's best interests for DYFS to file a guardianship petition;1 and (7) R.L.'s due process rights were violated when he was deprived of the custody of his children without the trial court providing him with a hearing to determine the status of his renovations.

On March 4, 2010, the court entered a default against R.L. and, after conducting a proof hearing, terminated his parental rights. No appeal was taken from this judgment.2

We are satisfied the legal analysis regarding mootness in New Jersey Division of Youth and Family Services v. A.P., 408 N.J. Super. 252 (App. Div. 2009) is wholly applicable to this appeal. Moreover, R.L.'s reliance on Division of Youth and Family Services v. G.M., 398 N.J. Super. 21 (App. Div. 2008), aff'd as modified on other grounds, 198 N.J. 382, 387 (2009), which we cited in A.P., has no bearing on this case. In A.P., we reiterated that "'termination proceedings, which are brought pursuant to N.J.S.A. 30:4C-15, do not require a prior determination of abuse or neglect.'" A.P., supra, 408 N.J. Super. at 259-60 (quoting N.J. Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 556 (1994)). See also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 292 (2007) (noting the well-settled principle that as contrasted with Title 9 inquiries, parental fitness is not the touchstone for termination of parental rights under the best interests standard articulated in N.J.S.A. 30:4C-15.1a).

"An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (citation and quotation marks omitted). Where, as here, the Title 9 FN action was dismissed without adjudication as to R.L., there are no adverse abuse or neglect consequences for R.L.; it is as if the suit were never brought. A.P., supra, 408 N.J. Super. at 262-63. As we concluded in A.P., "DYFS' filing of a Title 30 action and the entry in that action of an order regarding custody and related matters . . . , which supersedes any orders entered in the Title 9 action, moots the parents' appeal from the dismissal of the Title 9 action before an adjudication of abuse or neglect." Id. at 255.

Accordingly, absent a final Title 9 determination rendered against R.L., he is not entitled to a substantive appeal of the July 27, 2009 order. More significant is the fact of the March 4, 2010 judgment terminating R.L.'s parental rights as to the children. Any determination made by this court as to R.L.'s Title 9 hearing or his parental rights would not reverse that termination.

The appeal is dismissed as moot.

1 We glean this was R.L.'s argument although the point heading was framed as "SINCE DYFS DID NOT PROVIDE R.L. WITH REASONABLE SERVICES, AND A PERMANENT PLAN WAS ALREADY IN PLACE, THEY WERE NOT REQUIRED TO FILE A TITLE 30 GUARDIANSHIP PETITION."

2 The attorney for DYFS represented at oral argument that the children were scheduled to be adopted in November 2010.