NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.S and K.H.

 
(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NOT FOR PUBLICATION WITHOUT THE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-1533-09T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.S.,

Defendant-Appellant,

and

K.H.,

Defendant.

IN THE MATTER OF C.S., a minor.

November 8, 2010

 

Submitted October 27, 2010 - Decided

 

Before Judges Axelrad, Lihotz, and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-343-05.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Peter D. Alvino, Senior Deputy Attorney General, on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor C.S. (Phyllis

G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This appeal seeks review of the October 15, 2009, order of the Family Part, which dismissed the Title 91 care and supervision proceedings in favor of a contemporaneously-filed Title 302 action for the termination of parental rights. Aligning ourselves with N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), we dismiss the appeal as moot.

I.

Because of the nature of our disposition, we briefly recite the factual and procedural background. C.S. was born on Christmas Day, 2004, in Christ Hospital in Jersey City. He came to the attention of the New Jersey Division of Youth and Family Services (the Division or DYFS) three days later when his mother, defendant Caron,3 was reported by hospital staff as acting erratically and endangering her child. Upon its investigation at the hospital, the Division determined that Caron suffered from a mental illness, which may not have been adequately addressed during her pregnancy. The DYFS investigation uncovered information concerning Caron's medical history, prior short-term hospitalization in a New York psychiatric hospital, and her lack of permanent housing. After interviewing Caron and a relative, and upon presenting her with a variety of the Division's resources and services to protect her newborn, Caron declined to accept the Division's offer.

On January 3, 2005, the Division filed a Title 9 verified complaint for care and supervision in the Family Part against Caron and C.S.'s presumed biological father, defendant K.H. K.H. did not participate in the ensuing almost-five years of proceedings; Caron did. From the inception of the action, C.S. was removed from the custody of Caron and placed with the Division.

Throughout at least twenty-one court events,4 the Family Part oversaw the tumultuous relationship between Caron and the Division. Caron was obliged to undergo several mental health assessments, bonding evaluations, and parenting education. DYFS provided a smorgasbord of services, including investigation of alternate custodial arrangements; provision of homemakers; supervised and in-home visitation; mental health evaluations, including medication monitoring; rental assistance; and a variety of counseling opportunities.

In December 2005, the Division envisioned reunification of mother and child, conditioned upon Caron's satisfactory compliance with mental health treatment and assessment of her medication. Reunification was not achieved because Caron failed to diligently comply with the services provided. The parties frequently returned to court to address visitation problems, compliance with medication issues, treatment alternatives, and allegations of Caron's erratic behavior in the presence of DYFS employees. In early 2006, two outstanding arrest warrants surfaced relating to Caron: one from New York (a parole violation) and the other from Jersey City (theft by deception).

The court was aware of Caron's warrants, noting in an order dated October 10, 2006, that reunification was still contemplated, but only upon "[Caron] taking her medication and must resolve criminal issue before reunification can occur." With no further explanation in the record, it appears that following satisfaction of the Jersey City warrant, Caron was transferred to New York, where she was initially incarcerated at Rikers Island. Shortly thereafter, she suffered a breakdown and was transferred to the Central New York Psychiatric Center.

Although Caron was discharged by October 2007 and resumed visitation, serious problems continued throughout 2008. By then, C.S. had been living with the same foster family for more than two years. Caron lodged complaints to the Division concerning alleged abuse, including sexual abuse, and other improper conduct by members of C.S.'s foster family. Although investigated by DYFS, none of Caron's allegations were substantiated. Her impulsive and sometimes irrational behavior continued to be documented by the Division because much of it was directed against DYFS employees in their presence.

By April 2009, the Division proposed termination of Caron's parental rights, following psychiatric and bonding evaluations that suggested the futility of attempting reunification. After several more months of a disquieting relationship between Caron and the Division (as well as with the foster family), Caron was accused of threatening to kill her attorney in the Hudson County Courthouse. In the next week, in-home visitation with C.S. was suspended, pending a mental health reassessment.

In the succeeding months leading up to the final order of October 15, 2009, the Family Part reviewed the matter on several occasions. On August 17, 2009, the court determined that the Division had "demonstrated by the preponderance of the evidence that every attempt at reunification has been exhausted and the plan of termination of parental rights followed by foster home adoption is the most appropriate plan for [C.S.]." It ordered the Division to file a guardianship complaint within sixty days, and a hearing was scheduled for October 15, 2009, to begin case management of the anticipated Title 30 action. The court explained that this would ultimately lead to a "termination of parental rights trial which will take place approximately four to six months from today."

Indeed, on October 15, 2009, the Family Part entered the final order in this Title 9 action, holding:

Litigation under this FN docket number is dismissed, superseded by FG-09-122-10.

 

Notwithstanding the absence of a finding that C.S. had either abused or neglected C.S., this appeal ensued.

On appeal, Caron raises the following point:

POINT I THE ORDER APPROVING THE DIVISION'S PERMANENCY PLAN OF TERMINATION OF PARENTAL RIGHTS SHOULD BE REVERSED AND THE DEFENDANT SHOULD BE IMMEDIATELY REUNIFIED WITH HER SON [1] BECAUSE THERE WAS NO BASIS FOR THE COURT TO FIND THAT IT HAD CONTINUING JURISDICTION IN THIS MATTER SINCE THE DIVISION FAILED TO PROVE ABUSE OR NEGLECT UNDER TITLE 9 CRITERIA; [2] BECAUSE THE DEFENDANT'S RIGHTS UNDER THE MENTAL PATIENTS BILL OF RIGHTS ACT WERE UNDERMINED; [3] BECAUSE THE DIVISION DID NOT MAKE REASONABLE EFFORTS TOWARDS REUNIFICATION; AND [4] BECAUSE THE ORDER WAS CONTRARY TO THE BEST INTERESTS OF THE CHILD TEST AS SET FORTH IN N.J.S.A. 30:4C-15.1.

Because we are thoroughly satisfied that Caron's rights will be adequately protected in the superseding Title 30 action, all of her grievances with the Title 9 proceedings are moot and do not warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(1)(E).

II.

To the extent that Caron regards this appeal as a pre-emptive strike against the Title 30 action, her substantive challenges to the Division's petition for termination of parental rights are properly directed to the Title 30 court during that proceeding, not here. The "dismissal of a Title 9 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." A.P., supra, 408 N.J. Super. at 262-63. Most importantly,

we emphasize that [defendant]'s due process rights will be fully protected by the trial of the Title 30 action, which will afford her the opportunity . . . to contest the charges of abuse or neglect or other harm to the child caused by the parental relationship, [her] willingness and ability to address the causes of that harm, the adequacy of the remedial services DYFS provided [her], and whether the termination of [the defendant]'s parental rights . . . would do more harm than good. Moreover, DYFS will bear the burden of establishing the standards for the termination of parental rights by "clear-and-convincing- evidence" rather than the lesser burden of proof by a "preponderance of the evidence" that would apply in an action under Title 9.

 

[Id. at 264 (citations omitted).]

See also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 292 (2007) (holding, "[i]t is well settled that, unlike Title 9 inquiries, a parent's fitness is not the touchstone under the best-interests standard" for termination of parental rights set forth in N.J.S.A. 30:4C-15.1(a)).

"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." A.P., supra, 408 N.J. Super. at 259; see also M.M., supra, 189 N.J. at 292; N.J. Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 556 (1994). Moreover, since the Title 9 action was dismissed without adjudication, it is as if the suit were never brought. A.P., supra, 408 N.J. Super. at 262-63.

Furthermore, "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.

The appeal is dismissed as moot.

 

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

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

3 We elect to substitute a pseudonym to name the mother, rather than utilize initials, because her initials are identical to her son's.

4 The Division's brief refers to thirty-two hearings, but we have been provided with transcripts of only twenty-one.