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

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NOT FOR PUBLICATION WITHOUT THE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 SERVICES1,

Plaintiff-Respondent,

v.

E.W.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF A.G., D.G.,

E.W. and O.W.,

Minors.

___________________________________

November 18, 2013

Submitted October 8, 2013 Decided

Before Judges Espinosa and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FN-19-39-11.

Joseph E. Krakora, Public Defender, attorney for appellant E.W. (Carol A. Weil, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

A.G. was the mother of four children, two of whom she had with E.W. In January 2011, the Division of Child Protection and Permanency (Division) obtained legal custody of all four children and had them removed from the home of E.W. and A.G., pursuant to N.J.S.A. 9:6-8.21 to -8.73, for alleged abuse and neglect. When the children had not been reunited with either E.W. or A.G. by December 2011, the trial court conducted a permanency hearing,2 following which the court approved the Division's plan to seek the termination of the parental rights of A.G. and E.W. A permanency order memorializing the court's decision was entered on December 9, 2011.

A.G. died a few weeks later. On January 23, 2012, the Division filed a complaint for guardianship seeking the termination of the parental rights of E.W.'s two biological children, pursuant to N.J.S.A. 30:4C-15 -20. On February 3, 2012, the court signed an order which, among other things, contained a provision dismissing the Title 9 protective services matter and continuing E.W.'s two children as wards of the court under the care, custody and supervision of the Division, pending the outcome of the guardianship proceeding. Before the Title 9 matter was dismissed, a fact-finding hearing to determine whether the children had been abused or neglected had not been conducted.

In this appeal E.W. seeks to vacate the December 9, 2011 permanency order. He alleges there was no evidence introduced during the permanency hearing to support the court's decision to approve the Division's plan to terminate parental rights. E.W. further seeks to vacate the provision in the February 3, 2012 order which terminated the Title 9 matter. He argues the court erred in failing to conduct a fact-finding hearing in the Title 9 matter before such matter was dismissed. He contends the Title 9 matter must be reinstated so that a fact-finding hearing can be conducted. Having reviewed the record, the contentions of the parties and the applicable law, we conclude that the appeal is moot.

First, it is settled law that the Division can dismiss a Title 9 action and file a complaint under Title 30 to terminate a party's parental rights, even if there had not been a finding in the Title 9 action that such party abused or neglected his or her child. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556 (1994). Moreover, in this matter, as there had not been any adjudication of abuse and neglect during the Title 9 action and such action has been dismissed, the appeal of the provision within the February 3, 2012 order which terminated the Title 9 action is moot. See New Jersey Div. of Youth and Family Services v. A.P., 408 N.J. Super 252, 262-63 (App. Div. 2009).

[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. Such a disposition, like the dismissal of any other action by a plaintiff under Rule 4:37-1, "adjudicates nothing," and thus cannot provide a predicate for relief against the defendant.

[Ibid. (Citations omitted).]

Similarly, the December 9, 2011 permanency order did not have any continuing effect once the Title 9 matter was dismissed. The voluntary dismissal of the Title 9 action "leaves the situation so far as procedures therein are concerned the same as though the suit had never been brought, thus vitiating and annulling all prior proceedings and orders in the case." Ibid. Consequently, E. W.'s allegation there were flaws in the manner in which the permanency hearing was conducted or in the findings by the trial court is moot.

The appeal is dismissed as moot.

1 L. 2012, c. 16, effective June 29, 2012, reorganized the Department of Children and Families and renamed the Division of Youth and Family Services (DYFS) as the Division of Child Protection and Permanency.

2 When a child has been temporarily placed with the Division under either N.J.S.A. 30:4C-12 or N.J.S.A. 9:6-8.21 to -8.73, a permanency hearing must be held "no later than 12 months after placement." N.J.S.A. 9:6-8.54(b); N.J.S.A. 30:4C-61.2(a)(2). "The permanency hearing will determine whether the family will continue towards reunification or whether an alternative plan must be adopted." New Jersey Div. of Youth & Family Services v. G.M., 198 N.J. 382, 400 (2009) (citing N.J.S.A. 30:4C-61.2).