Opinion
DOCKET NO. A-5604-14T3
04-22-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant, v. G.B., Defendant-Respondent. IN THE MATTER OF THE GUARDIANSHIP OF E.C.-F. and D.C.-F., Minors.
Renee Greenberg, Deputy Attorney General, argued the cause for appellant (Robert Lougy, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Greenberg, on the brief). Deric Wu, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, of counsel and on the brief). Danielle Ruiz, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Ruiz, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-258-15. Renee Greenberg, Deputy Attorney General, argued the cause for appellant (Robert Lougy, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Greenberg, on the brief). Deric Wu, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, of counsel and on the brief). Danielle Ruiz, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Ruiz, on the brief). PER CURIAM
Two years ago, we reversed the judgment terminating parental rights entered in this matter and remanded for further proceedings. See N.J. Div. of Child Prot. & Permanency v. G.C.-F., No. A-4462-12 (App. Div. Apr. 24, 2014). We found the judgment against the defendant mother rested in part on incompetent evidence and on findings of fact on the first two prongs of the best interests standard, N.J.S.A. 30:4C-15.1a(1) and (2), that were inconsistent with the record. See G.C.-F., supra, slip op. at 2, 39. Accordingly, we remanded the matter to the Family Part with the direction "that efforts to reunify defendant and her children should continue pending the rehearing and reconsideration that will be required if the Division seeks to pursue the matter." Id. at 32. We also directed the court to reinstate visitation, which we understood had continued on a voluntary basis during the pendency of the appeal, and "order . . . any other services it deems appropriate in light of present circumstances." Id. at 39.
In light of our conclusion that the Division did not carry its burden on the first two prongs, we did not consider defendant's arguments on the third and fourth prongs. G.C.-F., supra, slip op. at 39 n.8. --------
The guardianship matter was reinstated the following July and the Division again began providing services to defendant. At the conclusion of a permanency hearing in January 2015, the trial court rejected the Division's plan of termination of parental rights followed by adoption and ordered the dismissal of the Title 30 case and reinstatement of the Title 9 litigation with a goal of reunification within six to twelve months.
Approximately five months later, in June 2015, the Division filed a proposed order to show cause and a second guardianship complaint again seeking to terminate defendant's parental rights. Defendant objected and orally moved for the dismissal of the complaint and that the matter continue on the schedule established in January 2015.
During the colloquy with counsel, the court expressed its concerns about the adequacy of the services the Division had provided after remand and its doubts as to whether the Division could show a reasonable probability of success on its guardianship complaint at that time. It thereafter determined to deny the Division's request to dismiss the Title 9 matter, and instead allow the case to proceed under both dockets. After further colloquy, however, and the Division's expressed intent to seek a stay pending appeal of any order that prevented it from proceeding on its guardianship complaint, the court entered the order of August 5, 2015 from which the Division appeals. That order either "denied" or dismissed the guardianship complaint and granted the Division's request for a stay.
Although the clerk's office of this court initiated a finality review of that order, it ultimately determined to allow the matter to proceed. After reviewing the parties' briefs and appendices, the panel determined it required oral argument, which no party had requested.
At argument, we learned that the Title 9 litigation is continuing under the supervision of a different judge, who has appointed an independent expert to evaluate defendant and perform bonding evaluations. A two-day permanency hearing is scheduled for late June at which the expert is expected to testify. Defendant's counsel remains concerned about the lack of services provided to defendant and the effect the years of placement is having on her two children.
We asked at argument whether defendant intended to object to the Division's authority to file a guardianship complaint should it determine to do so after the June permanency hearing. Defendant has advised she will not challenge the Division's authority to file a guardianship complaint. We also learned there was no agreement as to expediting proceedings in the trial court or relying on evidence admitted in the June permanency hearing in a later guardianship trial.
After considering the parties' submissions and the state of the proceedings in the trial court, we have concluded that the order of August 5, 2015 is not final, despite the Division's desire to make it so and the court's willingness to accede to its request. See R. 2:2-3(a)(1); cf. House of Fire Christian Church v. Zoning Bd. of Adjustment of Clifton, 426 N.J. Super. 157, 162-64 (App. Div. 2012) (discussing problems presented by improper certification of interlocutory orders as final). This may well have been a case in which we would have considered granting leave to appeal in order to better supervise the remand had the motion been made promptly after entry of the order. Doing so now, however, we conclude would be improvident in light of developments in the trial court and the scheduled permanency hearing.
Accordingly, we dismiss the appeal as interlocutory. Should the Division wish to pursue the issue it has brought before us, which appears under the circumstances to implicate the question left open in N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 264-65 n.3 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), it may include it in any appeal of the final order entered in this matter. We leave to the trial judge for now to ascertain the best way forward to bring this protracted proceeding to a just conclusion, respectful of defendant's rights and in the best interests of the children.
Appeal dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION