Opinion
DOCKET NO. A-4830-09T1
01-19-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.C., Defendant-Appellant, and Defendant. IN THE MATTER OF B.C. and S.C., MINORS.
Beatrix W. Shear, Deputy Public Defender, argued the cause for appellant L.C. (Joseph E. Krakora, Public Defender, attorney; Ms. Shear and Douglas M. Greene, Designated Counsel, on the briefs). Christian A. Arnold, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lauren F. Carlton, Assistant Attorney General, and Ariela E. Herzog, Deputy Attorney General, on the brief). Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minor respondents B.C. and S.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Harris and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-175-10.
Beatrix W. Shear, Deputy Public Defender, argued the cause for appellant L.C. (Joseph E. Krakora, Public Defender, attorney; Ms. Shear and Douglas M. Greene, Designated Counsel, on the briefs).
Christian A. Arnold, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lauren F. Carlton, Assistant Attorney General, and Ariela E. Herzog, Deputy Attorney General, on the brief).
Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minor respondents B.C. and S.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief). PER CURIAM
Defendant L.C. appeals from a December 31, 2009 order to show cause for investigation and a January 12, 2010 order on the return date that fixed physical custody of her two children with her husband, A.C., allowed L.C. only supervised visitation and ordered her to undergo psychological evaluations. On May 4, 2010, the New Jersey Division of Youth And Family Services (Division) filed a verified complaint under a different docket number seeking the care and supervision of the two children with restraints regarding contact between L.C. and her children. The judge granted the new order to show cause and dismissed the investigation complaint.
On February 4, 2011, the court dismissed the new action after a fact-finding hearing. The court held there was insufficient evidence to sustain a finding of abuse and neglect and granted physical and legal custody of the children to both parents. We dismiss this appeal as moot.
L.C. and A.C. are mother and father, respectively, to Bruce (fictitious name), born in 2002, and Steve (fictitious name), born in 2007. On December 17, 2009, the Division received a referral from A.C. indicating that L.C. screamed profanity and threw a sandal at Bruce, causing a bruise on his leg, and punched A.C. in the mouth while in the presence of the children. A.C. also complained to Bruce's school, which then referred the matter to the Division.
After interviewing the members of the family, the Division caseworker devised a safety plan "wherein [L.C.] agreed to leave the children in the father's care until the Division further assessed the situation because [Bruce] had indicated he was afraid of his mother." A case plan was produced, specifying that A.C. and L.C. would "cooperate with the Division, submit to a psychological evaluation, and all contact between [L.C.] and the children would be supervised at the Division office." Both parties agreed to comply with the plan and signed Division agreements to that effect.
The Division brought an action for investigation against both parents pursuant to N.J.S.A. 30:4C-12, which failed to allege a lack of cooperation by either parent. Nonetheless, the court entered an order to show cause for investigation requiring L.C. and A.C. to appear before the court on January 12, 2010, and show cause why an order "should not be entered to permit the Division to investigate the circumstances of the minors and directing [L.C.] and [A.C.] to assist and cooperate with the Division in the conduct of its investigation pursuant to N.J.S.A. 30:4C-12, Rule 4:67-1 and Rule 5:12-1." The order also mandated that L.C. and A.C. meet with the Division and cooperate with its investigation, that L.C., A.C. and Bruce complete psychological evaluations, and that all visitations between L.C. and her children be supervised.
On January 12, 2010, the court held a hearing on the order to show cause with both parents present with an interpreter, but without counsel. No witnesses testified and no evidence was introduced; rather, the Division provided the dates of the scheduled psychological and parenting evaluations and information regarding L.C.'s supervised visitation. The court asked if both parents understood the nature of the proceedings and if they had any questions, after which the court explained the importance of completing the evaluations expeditiously.
The court subsequently entered an order granting A.C. sole physical custody of the children, requiring both parents and Bruce to undergo psychological evaluations and L.C. to attend a parenting assessment, and allowing L.C. only weekly supervised visitation with the children. The order further stated that unsupervised visitation would be permitted if recommended after the psychological evaluations.
A case management review was held on March 30, 2010. The court was advised that the parties were participating in therapy, but the Division had yet to receive the psychological evaluations. Legal custody of the children remained with both parents, while A.C. retained sole physical custody. L.C. was receiving one hour of supervised visitation at the Division office and three hours of supervised visitation with her stepmother present. Upon the recommendation of Bruce's therapist, L.C. was to be allowed unsupervised visits.
A third hearing was held a month later, at which time the investigation complaint was dismissed.
On appeal L.C. raises the following issues:
I. COURT ORDERS AGAINST L.C. IN FN-2-175-10 THAT CHANGED CUSTODY ARRANGEMENTS FOR HER CHILDREN AND RESTRAINED HER FROM UNSUPERVISED CONTACT WITH THEM WERE LEGALLY IMPROPER, BECAUSE DYFS MAY NOT USE AN ACTION FOR INVESTIGATION UNDER N.J.S.A. 30:4C-12 TO OBTAIN SUCH ORDERS.
A. UNDER N.J.S.A. 30:4C-12, DYFS MUST COMPLETE ITS INVESTIGATION BEFORE IT MAY SEEK ANY RELIEF AGAINST AN FN DEFENDANT BEYOND AN ORDER FOR INVESTIGATION.
B. DYFS MAY OBTAIN EMERGENT RELIEF ONLY UNDER N.J.S.A. 9:6-8.28 OR 9:6-8.29, NOT UNDER N.J.S.A. 30:4C-12 .II. DYFS WAS NOT ENTITLED TO AN ORDER FOR INVESTIGATION IN THIS CASE, BECAUSE IT DID NOT ALLEGE ANY WAY IN WHICH EITHER L.C. OR A.C. REFUSED TO PERMIT OR IMPEDED ITS INVESTIGATION.
C. NOTHING ANYWHERE IN N.J.S.A. 30:4C-12 ALLOWS DYFS TO TAKE AWAY ONE PARENT'S RIGHT TO JOINT RESIDENTIAL CUSTODY OF HER CHILDREN AND GIVE EXCLUSIVE RESIDENTIAL CUSTODY OF THE CHILDREN TO THE OTHER PARENT.
III. THAT DYFS OBTAINED RELIEF IN FN-2-175-10 WITHOUT EVER PROVING ITS RIGHT TO ANY RELIEF AT TRIAL ON COMPETENT EVIDENCE IS SHOCKINGLY IMPROPER.
IV. DYFS' APPLICATION FOR ITS FN-2-175-10 ORDER TO SHOW CAUSE SHOULD HAVE BEEN DENIED BECAUSE IT WAS NOT SUPPORTED BY A COMPLAINT VERIFIED ON PERSONAL KNOWLEDGE.
V. ORDERING AN FN DEFENDANT PARENT TO UNDERGO A PSYCHOLOGICAL EVALUATION AND TO PARTICIPATE IN THERAPEUTIC SERVICES IS IMPROPER ABSENT A FINDING OF CHILD ABUSE/NEGLECT UNDER N.J.S.A. 9:6-8.21, ET SEQ., AND IT IS ESPECIALLY IMPROP[]ER IN AN UNTRIED ACTION FOR INVESTIGATION UNDER N.J.S.A. 30:4C-12.
VI. THIS MATTER, IN WHICH L.C.'S RIGHT TO RESIDE WITH AND EVEN HAVE UNSUPERVISED CONTACT WITH HER CHILDREN WAS TAKEN FROM HER, SHOULD NOT HAVE PROCEEDED WITHOUT L.C., AN INDIGENT DEFENDANT
PARENT, HAVING BEEN PROVIDED WITH APPOINTED LEGAL COUNSEL.
The Division conceded for the first time at oral argument that the order to investigate was improperly granted because the Division did not allege in its complaint that either parent had impeded their investigation. The Division also acknowledged that the order should not have contained provisions restraining L.C.'s contact with her children or ordering evaluations or therapy. The Division agreed that L.C. was entitled to counsel, which was not provided, if access to her children was at stake. See N.J.S.A. 30:4C-12; Crist v. N.J. Div. of Youth & Family Servs. , 135 N.J. Super. 573, 575 (App. Div. 1975) (noting that judges "should assign counsel without cost to indigent parents who are subjected to proceedings which may result in either temporary loss of custody or permanent termination of their parental rights"); see also N.J. Div. of Youth & Family Servs. v. Wunnenberg, 169 N.J. Super. 417, 421 (App. Div. 1979); In re Guardianship of C.M., 158 N.J. Super. 585, 591 (J. & D.R. Ct. 1978).
Our courts have repeatedly held that a parent in L.C.'s position is entitled to the assistance of counsel in such proceedings, as "[s]imple justice demands nothing less in light of the magnitude of the consequences involved." Crist, supra, 135 N.J. Super. at 575; see also In re Guardianship of Dotson, 72 N.J. 112, 123 (1976) (citing Crist and noting "indigent parents who are subjected to proceedings which may result in either temporary loss of custody or permanent loss of parental rights have a constitutional right to appointed counsel"). Because the Division conceded error and assured us at oral argument that this was an anomalous situation unlikely to recur, and all allegations against L.C. have since been dismissed, we need not decide this appeal.
We do not perceive the statutory obligation to wait three years before purging the Division's records to be a harm to L.C. N.J.S.A. 9:6-8.40a(a); N.J.A.C. 10:129-6.1.
L.C.'s counsel relates anecdotally that the Division regularly files orders to investigate containing "restraints." The Division, however, has indicated that steps have been taken within the Office of the Attorney General to avoid any such recurrence.
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"Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010) (citing Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001)). As a result, courts will not normally decide issues when a controversy no longer exists and the disputed issues have become moot. Ibid. (citing DeVesa v. Dorsey, 134 N.J. 420, 428 (1993)). In limited circumstances, however, "courts have decided an otherwise moot appeal 'where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review.'" Ibid. (citing Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996)). We find no reason to conclude that a similar situation will recur in future cases. Thus, we refrain from addressing the merits of this appeal.
Dismissed as moot.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
_______________
CLERK OF THE APPELLATE DIVISION