NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4192-11T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.B.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF C.F. AND A.S.,

Minors.

____________________________________

May 22, 2013

Submitted March 19, 2013 Decided

Before Judges Alvarez, St. John, and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-166-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.F. and A.S. (David R. Giles, Designated Counsel, on the brief).

PER CURIAM

Defendant C.B. is the mother of C.F., born April 2008, and A.S., born April 2009.1 On September 21, 2009, defendant called the New Jersey Division of Youth and Family Services (the Division).2 Sobbing, she stated that she did not want to harm the infants, but she was overwhelmed. She urged the Division to remove C.F. and A.S. from her home because she had decided to commit suicide.3 Defendant took a knife and an entire bottle of prenatal vitamin pills into the bathroom, and tried to swallow all the pills. Her roommate came in the bathroom, knocked the rest of the pills out of defendant's mouth, and tried to hold her. After the roommate let go to call the police, defendant took the knife and began to stab herself in the wrist in an effort to kill herself. When police arrived, defendant became irate and it took several officers to restrain her. Defendant was admitted to the hospital for a mental evaluation.

Later that same day, the Division performed an emergency removal of C.F. See N.J.S.A. 9:6-8.29, -8.30. The Division subsequently performed an emergency removal of A.S. from R.S. when he was discovered not to be her father. The Division placed C.F. and A.S. with a relative.

On September 23, 2009, the Division filed a complaint initiating a Title 9 action, and a request for an order to show cause. At a hearing that day, Judge Margaret M. Foti signed the order to show cause and upheld the emergency removal of C.F. and A.S., finding that they were in imminent danger.

On January 28, 2010, at a fact-finding hearing pursuant to N.J.S.A. 9:6-8.44, defendant admitted that she had attempted to commit suicide while "in a big rage" and "out of [her] mind." She also admitted that she had said afterwards that she had thrown A.S., although she testified that she did not throw him. She added that she smoked four marijuana "blunts" each day, and had psychological issues. Judge Foti found that defendant had been using marijuana since the age of thirteen, except when she was pregnant; that on September 21, 2009, she was concerned that she had dropped or thrown one of the children; and that she attempted to commit suicide by taking many pills and cutting herself. Under N.J.S.A. 9:6-8.21(c) and -8:50, Judge Foti sustained the complaint for abuse and neglect, finding that defendant subjected her children to a risk of harm because of her sustained marijuana use and her failure to address her mental health issues.

During 2010, Judge Foti conducted several compliance review and permanency hearings. At the end of one hearing, defendant became hysterical and abusive to court officers, and emergency personnel were called to assist her in obtaining psychiatric treatment. Defendant repeatedly tested positive for P.C.P. and marijuana, and was discharged from her drug program for non-compliance. In October 2010, Judge Foti accepted the Division's permanency plan to terminate defendant's parental rights over C.F. and A.S. In December 2010, the Title Nine action was dismissed and a guardianship complaint was filed.

During a June 2011 permanency hearing, Judge Foti dismissed the guardianship complaint and reinstated the Title Nine action, approving a change of the permanency goal to reunification, as defendant had entered a Mommy and Me program. However, defendant was released from the program in August 2011, because the staff felt that she was not stable enough to have visits with the children. She tested positive for P.C.P. and marijuana in August and September 2011. The Division recommended that the permanency goal be changed to adoption after a termination of parental rights.

On January 17, 2012, Judge Bernadette N. DeCastro held a permanency hearing. After hearing brief testimony from a Division representative, the judge entered an order finding appropriate and acceptable the Division's permanency plan of termination of defendant's parental rights to C.F. and A.S., to be followed by adoption by the relative who was the children's caretaker. The judge found that the Division had made reasonable efforts in providing defendant with services, but defendant had not been fully compliant until recently, had only been testing negative in her drug screens for a few months, did not have suitable housing, and was not employed. Based upon a psychiatric evaluation and psychological report, the judge determined that it was not safe to return the children to defendant, who would not be able to parent the children in the foreseeable future. The judge noted, however, that there would be about sixty days before the Title Thirty complaint was filed, and many months before the trial, so defendant should still work hard and the Division should continue to offer services to her.

On March 13, 2012, Judge DeCastro ordered that the Title Nine action be terminated because of the filing of a Title Thirty complaint for termination of parental rights. That complaint commenced a new guardianship action (the Title Thirty action).

In the Title Thirty action, Judge DeCastro conducted trial in September and October 2012. On December 4, 2012, the judge issued a written opinion and judgment terminating defendant's parental rights to C.F. and A.S.

I.

Defendant appeals raising the following argument:

POINT ONE

THE TRIAL COURT ERRED IN PREMATUR[E]LY CONDUCTING A PERMANENCY HEARING WHERE IT ACCEPTED THE DIVISION'S PLAN OF TERMINATING C.B.'S PARENTAL RIGHTS TO C.F. AND A.S., EVEN THOUGH C.B. WAS IN COMPLIANCE WITH THE DIVISION'S DIRECTIVES AND TERMINATING C.B.'S PARENTAL RIGHTS WAS NOT IN THE BEST INTERESTS OF C.F. AND A.S.

Defendant's April 27, 2012 notice of appeal states that she appeals from "the January 26, 2010 Fact Finding Order and the January 17, 2012 Permanency Order that were made ripe for appeal by way of the March 13, 2 012 Order Terminating Litigation" in the Title Nine action. We assume that the notice of appeal's reference to a "January 26, 2010" order was intended to refer to the order issued after the January 28, 2010 fact-finding hearing, in which Judge Foti found abuse and neglect. Defendant's brief mentions that date only in passing, does not mention or attach the order, and makes no arguments concerning that order or the finding of abuse and neglect. Accordingly, we conclude that defendant has waived any challenge in this appeal to that order. N.J. Div. of Youth & Family Servs. v. S.S., 405 N.J. Super. 1, 3 n.2 (App. Div. 2008).

Defendant solely challenges the January 17, 2012 permanency order. The Division, and the law guardian for C.F. and A.S., argue that defendant's appeal from the permanency order is moot. To decide that issue, we must first examine the impermanent nature of permanency orders.

In Title Nine litigation, after a child is placed in the custody of a relative or other suitable person, the court must conduct a permanency hearing within twelve months (or thirty days if the court has determined that reasonable efforts at reunification are not required), and must review the permanency plan periodically thereafter. N.J.S.A. 9:6-8.54b(2)-(3); see N.J.S.A. 9:6-8.24e. "The permanency hearing[s] will determine whether the family will continue towards reunification or whether an alternative plan must be adopted." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 400 (2009). Permanency hearings also occur in Title Thirty litigation. N.J.S.A. 30:4C-11.3, -11.4, -61b(6). In litigation under either title, the permanency hearing reviews the goal and "the anticipated date that the goal will be achieved," "the intermediate objectives relating to the attainment of the goal," the services "to be provided" by the Division, and the current permanency plan. N.J.S.A. 30:4C-61.2c. If the court approves a permanency plan, the court must make a finding on whether the Division has made reasonable efforts "thus far," and on "the appropriateness of the reasonable efforts to achieve the permanency plan" in the future. N.J.S.A. 30:4C-61.2d.

The provisions requiring permanency hearings were enacted "to comply with the Federal Adoption and Safe Families Act of 1997 (ASFA), in order to qualify for the continued receipt of federal funding for New Jersey's child protection system." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 63 (App. Div. 2003) (citation omitted), aff'd as modified, 179 N.J. 264, 282-83 (2004). Specifically, ASFA requires a "case review system" to assure that each child has a case plan, and that "the status of each child is reviewed periodically" to "determine the permanency plan for the child." 42 U.S.C.A. 675(5); see 42 U.S.C.A. 671(a)(15)(E)(i).

Thus, under the federal and New Jersey legislative schemes, permanency hearings are interim reviews of an ongoing permanency plan. By their very nature, orders entered in permanency hearings are interlocutory orders, not final orders under N.J.S.A. 9:6-8.70 or Rule 2:2-3(a)(1). A permanency order can be appealed only by obtaining leave to file an interlocutory appeal under Rule 2:2-3(b). E.g., Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 335 & n.1 (App. Div. 2008); see N.J. Div. Of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163-66 (App. Div. 2003) ("an order finding that a child has been abused or neglected is an interlocutory order," for which leave to appeal is required). No such leave has been sought or granted here.

Defendant suggests that the permanency order was "made ripe for appeal by way of the March 13, 2 012 Order Terminating Litigation." Even if true, an appeal of the permanency order is moot because of the termination of the Title Nine action, and the filing and resolution of the Title Thirty action. In reaching this conclusion, we are guided by New Jersey Division of Youth & Family Services v. A.P., 408 N.J. Super. 252 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).4

"'An issue is "moot" when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" Id. at 261 (quoting Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006)). The January 17, 2012 permanency order was part of the Title Nine action, which the March 13, 2012 order dismissed. "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." Id. at 263 (citations omitted). "Moreover, the voluntary dismissal of an 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. (citations omitted). The permanency order in a Title Nine action thus has no vitality once that action has been dismissed.

Of course, "if a party 'still suffers from the adverse consequences to her caused by [a] proceeding,' an appeal from an order in that proceeding is not moot." Id. at 262 (quoting Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 51 (App. Div. 2008), aff'd as modified on other grounds, 198 N.J. 382, 387 (2009)). A permanency order is merely an interim review, and has no continuing adverse consequences for defendant. It does not remove the child from a parent's care, modify the rights or privileges of a parent, or alter the Division's responsibilities.

A permanency order is also unlike a finding of abuse and neglect. A finding of abuse and neglect may cause the Division to take custody of a child, may be admissible in Title Thirty litigation for termination of parental rights, and may result in the inclusion of the parent's name in the Division's Central Registry. Ibid. A parent's inclusion in the registry "may prevent the parent from obtaining certain types of employment and have other adverse effects." Ibid. (citing N.J. Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 66-67 (App. Div. 2005)).

The permanency order here did only two things. Primarily, it approved the Division's plan to file the Title Thirty action. Secondarily, it continued the child in placement outside the home while the Division filed the new Title Thirty action. Neither is a continuing adverse consequence.

First, the permanency order's approval of the plan to file the Title Thirty action was not a prerequisite to the Division filing such an action. As we explained in A.P., the Division may file an action under Title Thirty without prevailing in, trying to conclusion, or even bringing an action under Title Nine. Id. at 258-61; accord N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011); see N.J.S.A. 30:4C-12, -15.5

Second, the permanency order's temporary continuation of custody pending the Title Thirty action has no continuing "operative effect." See A.P., supra, 408 N.J. Super. at 263. The dismissal of the Title Nine action resulted in the "annulment of the interlocutory orders entered in that action," so the permanency order "'can have no practical effect on the existing [Title 30 action]' against [defendant], which renders this appeal moot." See id. at 263-64 (quoting Greenfield, supra, 382 N.J. Super. at 257-58). Furthermore, the trial court in the Title Thirty action has entered orders, indeed a final judgment, "which superseded the parts of the [permanency] order dealing with custody." See id. at 263.

"In concluding that [the appeal in A.P. was] moot because the orders entered in the Title 9 action have no continuing adverse consequences," we emphasized that a parent's "due process rights will be fully protected by the trial of the Title 30 action." Id. at 264. We explained that in the Title Thirty action, the parent will have

the opportunity, under the criteria set forth in N.J.S.A. 30:4C-15.1(a), 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 [her] parental rights to [the child] 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.

[Ibid. (quoting K.M., supra, 136 N.J. at 557).]

Defendant here has already had the benefit of a full adjudication under Title Thirty. She does not claim in this appeal that she did not receive the due process predicted in A.P. and required by law. More importantly, any such issue is not before us in this appeal, but can be addressed in an appeal from the final judgment in the Title Thirty action.6 There is thus no reason to hear this appeal from the "annull[ed]," "superseded," and inoperative permanency order. See id. at 263.

Under the cogent analysis in A.P., this appeal would be moot even if the Title Thirty action was still pending. The issuance of the final judgment in the Title Thirty action, however, illustrates the utter mootness of this appeal. In challenging the permanency order, defendant argues that, because defendant was in compliance with the Division's directives, and because terminating her parental rights was not in the best interests of C.F. and A.S., Judge DeCastro conducted the permanency hearing prematurely. Defendant notes that at the time of the January hearing she had entered into a Mental Illness and Chemical Abuse/Addiction (MICA) program to address her drug and mental health issues; had not received a positive drug screen since September 2011; and had applied for public housing. However, the opinion supporting the final judgment in the Title Thirty action subsequently found that defendant was non-compliant with the services offered by the Division; that she was discharged from the MICA program in April 2012 due to poor attendance; that she relapsed and tested positive for P.C.P. in April 2012; that she lacked stable housing at the time of trial in the Title Thirty action; and that terminating her parental rights was in the best interest of C.F. and A.S.

We do not address in this appeal the correctness of the findings in the December 2012 final judgment in the Title Thirty action. Nonetheless, it is pointless for us to review those issues in an appeal from a January 2012 permanency order, when those issues have been reviewed in the Title Thirty action, with the benefit of a full trial considering many months' worth of additional evidence. It is equally pointless for us to consider whether the permanency order prematurely approved the filing of a Title Thirty action when that action has already been tried to conclusion with a finding that termination of parental rights is necessary. As in A.P., it is the Title Thirty action and any appeal from the Title Thirty action that should determine the ultimate appropriateness of the Division's plan to terminate defendant's parental rights.

"'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. J.C., 423 N.J. Super. 259, 263 (App. Div. 2011) (quoting Cinque v. N.J. Dep't. of Corrs., 261 N.J. Super. 242, 243 (App. Div. 1993). "We will consider the merits of an issue notwithstanding its mootness if significant issues of public import appear." Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011). No such issues appear here. Therefore, we dismiss as moot this appeal from the January 17, 2012 permanency order.

D

1 In 2009, F.F., C.F.'s father, was incarcerated, and R.S. was believed to be A.S.'s father, but a DNA test later revealed R.R. to be A.S.'s father. Ultimately, R.R. voluntarily surrendered his parental rights to A.S.

2 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

3 Other people apparently removed C.F. and A.S. before defendant's suicide attempt.

4 A.P. held that the Division's "filing of a Title 30 action and the entry in that action of an order regarding custody and related matters such as visitation, which supersedes any orders entered in the Title 9 action, moots the parent's appeal from the dismissal of the Title 9 action before an adjudication of abuse or neglect." Id. at 255. Here, there was an adjudication of abuse and neglect before the dismissal of the Title Nine action, but defendant is not challenging the adjudication of abuse and neglect in this appeal, and has filed a separate appeal of the order dismissing the Title Nine action. An appeal raising the adjudication of abuse and neglect might not be moot. See N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 236-37 (App. Div.) (Carchman, P.J.A.D., concurring), certif. denied, 200 N.J. 505 (2009) and 201 N.J. 272 (2009), cert. denied, _ U.S. _, 130 S. Ct. 3537 and 3502, 177 L. Ed. 2d 1095 (2010).

5 We noted that actions under Title Thirty "'do not require a prior determination of abuse or neglect,'" except for an action under N.J.S.A. 30:4C-15(a). A.P., supra, 408 N.J. Super. at 259-60, (quoting N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556 (1994)). There is no indication in the record before us that the Title Thirty action was brought under N.J.S.A. 30:4C-15(a). Rather, the opinion supporting the final judgment in the Title Thirty action cited N.J.S.A. 30:4C-15(c) and -15.1a, the commonly-used "best interest" provisions. See id. at 259. In any event, as noted above, the adjudication of abuse and neglect is not before us in this appeal.

6 We note that defendant has filed an appeal from the final judgment in the Title Thirty action.