DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.N.

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NOT FOR PUBLICATION WITHOUT THE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 CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.N.,

Defendant-Appellant,

and

T.S.,

Defendant-Respondent.

___________________________________

IN THE MATTER OF K.C., M.J. and

N.S., Minors.

___________________________________

August 29, 2016

Submitted June 8, 2016 Decided

Before Judges Ostrer and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-125-14, and Essex County, Docket No. FN-07-624-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Joseph F. Kunicki, Designated Counsel, on the briefs).

Robert Lougy, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent T.S. (Cary L. Winslow, Designated Counsel, on the brief).

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

PER CURIAM

In this Title 9 case, defendant A.N. (Amy) appeals from the Camden County Family Part's dispositional orders that continued physical custody of her daughter N.S. (Nancy) with her father, defendant T.S. (Tom).1 We dismiss the appeal as moot, as the court also granted Tom primary residential custody of Nancy under a separate non-dissolution docket, and Amy does not appeal from that order. However, we remand to the Essex County Family Part, where the Title 9 case was later transferred, to correct the order terminating the litigation.

The pertinent facts may be briefly stated. This case began with a July 2013 referral to the Division of Child Protection and Permanency. Nancy had reportedly suffered burns to her back, arms, and knee. For several days, Amy did not seek medical care for Nancy's injuries. The Division removed Nancy from Amy's home and placed her with Tom. Amy's two younger children were also removed and placed with their maternal grandmother. Tom is not their father. They were later returned to Amy, and are not the subject of this appeal. At subsequent hearings, the court continued custody of Nancy with Tom. Meanwhile, Amy was ordered to attend substance abuse treatment, based on her history of marijuana use.

On October 25, 2013, in lieu of a fact-finding hearing, Amy stipulated that she had abused or neglected Nancy by failing to seek prompt medical attention for her injuries. The court accepted Amy's stipulation and found that Amy abused or neglected Nancy by "fail[ing] to promptly seek medical attention for significant injury to the child." That finding is not challenged on appeal.

The court held a three-day dispositional hearing in March 2014, at which a Division caseworker, Amy, and Tom testified. Applying New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382 (2009), the court concluded that Nancy could not be safely returned to Amy's custody, based on Amy's continued marijuana use, her pattern of missing visitation with Nancy, and her repeated failure to get one of her other two children to school on time, which the court found demonstrated a lack of problem-solving. The court entered an order on March 27, 2014, memorializing its decision to continue physical custody with Tom.

Shortly thereafter, Tom sought custody under an open FD case. On June 6, 2014, the court entered an order under the FD docket granting Tom primary residential custody, and Tom and Amy joint legal custody. The court relied on its findings in the FN matter. The court entered a companion order under the FN docket that noted physical custody of Nancy was continued with Tom under the FD docket.

The FN case was transferred to Essex County after Amy moved there. The court terminated the FN litigation in an October 27, 2014 order, which erroneously stated that physical custody of all three children was "continued with" Amy.

Amy appeals from the March 27 and June 6 FN orders. She contends the court erred in finding that Nancy could not be safely returned to her. She relies on the fact that her other two children were returned to her without contest. She also argues that the evidence of her continued marijuana use was insufficient to demonstrate a threat to Nancy's safety. She relies on our decisions that require a greater showing than the simple fact of drug use to establish abuse or neglect. See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011); N.J. Div. of Child Protection & Permanency v. R.W., 438 N.J. Super. 462 (App. Div. 2014).

The Division, Law Guardian, and Tom oppose Amy's appeal. In addition to opposing Amy's appeal on the merits, the Division and Tom argue that Amy's challenge to the court's dispositional orders is moot, since she does not challenge the FD order. As we agree that the appeal is moot, we need not reach the issues Amy raises with respect to the dispositional orders.

"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 Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation marks and citation omitted). In child custody cases, an appeal is moot if a "ruling on how . . . custody should have been determined . . . can have no practical effect on the existing controversy." N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 297 (App. Div.) (appeal from order changing custody mooted by emancipation of children, since court could no longer award custody of emancipated children), certif. denied, 218 N.J. 275 (2014).

Even if we reversed the dispositional orders that Amy challenges, the unchallenged FD order granting Tom primary residential custody would remain in place. Consequently, a decision on Amy's appeal "can have no practical effect on the existing controversy." See ibid. Although Amy contends the court would not have entered the FD order if it had not first entered the dispositional order, the FD order is controlling. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (appeals are from orders, not reasons or opinions). Because Amy does not appeal from the FD order, no practical effect can result from our decision.

Although we dismiss Amy's appeal as moot, we remand to the Essex County Family Part to correct the October 27 order terminating the FN litigation to reflect that primary residential custody was granted to Tom under the FD docket.

Appeal dismissed.

1 We use initials and pseudonyms to protect the family's privacy.