Opinion
DOCKET NO. A-2277-11T4
02-06-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. E.S., Defendant-Appellant. IN THE MATTER OF D.S., a minor.
T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Beatrix W. Shear, Deputy Public Defender, and Douglas M. Greene, Designated Counsel, on the brief). Victoria A. Galinski, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Galinski, on the brief). Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minor-respondent (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Sean P. Lardner, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FN-19-31-11.
T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Beatrix W. Shear, Deputy Public Defender, and Douglas M. Greene, Designated Counsel, on the brief).
Victoria A. Galinski, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Galinski, on the brief).
Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minor-respondent (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Sean P. Lardner, Designated Counsel, on the brief). PER CURIAM
Defendant E.S. appeals from a final order of the Family Part terminating this Title 9 action without a fact-finding or dispositional hearing following the Division of Youth and Family Services' (Division) filing of a guardianship complaint. Because we find that this case is squarely controlled by N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), we dismiss the appeal as moot.
Defendant has suffered for many years with bipolar disorder which was diagnosed in her mid-teens. At some point prior to becoming pregnant with her first child, Donna, defendant stopped taking her medication. That resulted in her being involuntarily committed within days of Donna's birth. The Division was unable to locate or confirm the identity of Donna's father. Because neither parent was available to assume responsibility for Donna upon her discharge from the hospital, the Division effected an emergency removal on November 30, 2010, pursuant to N.J.S.A. 9:6-8.29, and placed the baby with her maternal grandparents.
This name is fictitious.
The following day, the Division filed a verified complaint alleging abuse or neglect and an order to show cause seeking temporary custody of Donna. Although defendant was unable to participate, her appointed counsel appeared at the hearing. The judge entered an order granting temporary custody of Donna to the Division, without objection, and setting a return date on the order to show cause for the following week. Defendant was able to participate by telephone on the return date. Her counsel represented that defendant was "willing to work with the Division and do whatever she needs to do in order to be reunified with her child." The Division requested the appointment of a guardian ad litem for defendant in light of her mental health issues, and counsel for defendant requested a self-executing order to allow for visitation and the start of services as soon as recommended by defendant's clinicians. The court granted both requests, appointing a guardian ad litem for defendant and allowing supervised parenting time as soon as therapeutically indicated. The judge continued care and custody of Donna in the Division and she remained placed with her grandparents.
Defendant remained involuntarily committed to an in-patient psychiatric facility for two months following Donna's birth. After her release at the end of January, the Division provided services in the form of therapeutic supervised visitation, parenting skills classes, individual and family therapy, and arranged for defendant to undergo psychological and substance abuse evaluations. On March 8, 2011, the day scheduled for a fact-finding hearing, defense counsel requested an adjournment to allow the parties to discuss a stipulation. The parties began negotiations over the terms of a stipulation but abandoned them in July due to the Division's concerns about defendant's competency to enter into a stipulation. Although the court held regular compliance hearings and made efforts to schedule a fact-finding hearing, no fact-finding hearing was ever held.
Throughout the pendency of these proceedings, defendant regularly exercised two hours per week of supervised visitation although those visits were often marked by defendant's erratic and unpredictable behavior. Therapeutic visitation had to be discontinued because of defendant's disruptive behavior, and defendant was barred from her parents' home except for times of authorized visits after she broke the windshields of two cars in their driveway. In September, the court suspended individual therapy after defendant's counselors opined that it was impeding her psychiatric care. The clinicians agreed that asking defendant to engage in more challenging levels of individual therapy focusing on parenting issues exacerbated her psychiatric symptoms and condition. Although the Division had also requested a suspension of family therapy for the same reason, defendant objected to the suspension of family counseling and the judge ordered it to continue.
At the September review hearing, counsel for the Division requested that the next hearing be a permanency hearing as Donna had been in placement for nearly twelve months. Defendant did not object and the court scheduled the permanency hearing for November 14, 2011.
At the permanency hearing, counsel for the Division noted that Donna had been in placement since November 30, 2011, and despite defendant's and the Division's efforts, defendant continued to suffer from a severe psychological disorder that she had been unable to stabilize so as to allow her to assume parental responsibility for Donna. Accordingly, the Division's permanency plan was termination of parental rights followed by Donna's adoption by her maternal grandparents, concurrent with reunification. Defendant objected on the grounds that no fact- finding or dispositional hearings had been held and the Division had not made reasonable efforts at reunification as evidenced by its failure to provide defendant with individual therapy.
The court noted the objection but found that the Division had made reasonable efforts toward reunification and that defendant had not made sufficient progress to allow reunification to occur. The court further found that the permanency goal of termination of parental rights followed by adoption, concurrent with a goal of reunification was appropriate. The court entered a permanency order continuing Donna's placement with her grandparents, directing defendant to continue to follow the recommendations of her treating physicians, attend supervised visitation and complete parenting classes, and directing the Division to provide defendant with individual and family therapy and file its complaint to terminate parental rights within two weeks. Defendant did not object to the Division's continuing custody of Donna or move for Donna's return to her upon dismissal of the abuse and neglect proceeding.
The Division filed its verified complaint and application for an order to show cause seeking guardianship of Donna on November 28, 2011. The court entered the order to show cause on the same day, continuing Donna in the care and custody of the Division, and terminating this protective services case. This appeal followed.
Upon our inquiry after oral argument, we have been advised by the Law Guardian Appellate Section that a judgment of guardianship has recently been entered in the Title 30 action.
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Defendant raises the following issues on appeal:
I. [DEFENDANT] WAS DENIED DUE PROCESS IN FN-19-31-11.
A. THE FN-19-31-11 COMPLAINT WAS NOT VERIFIED.
B. DYFS MADE NO REASONABLE EFFORTS TO PREVENT REMOVAL.
C. NO FACT FINDING TRIAL WAS HELD.
D. [THE] REQUIRED COURT PROCESS WAS NOT FOLLOWED AT HEARINGS.
E. AN ORDER TO SHOW CAUSE WAS AWARDED EX-PARTE.
II. DYFS DID NOT OBTAIN ANY LEGAL RIGHT TO DISPOSITIONAL CARE, SUPERVISION, OR CUSTODY OF BABY D. OR TO ANY OTHER RELIEF AGAINST [DEFENDANT] UNDER N.J.S.A. 9:6-8.21 ET SEQ.; SO FN-19-31-11 SHOULD HAVE NOT PROCEEDED AS IF DYFS HAD OBTAINED SUCH RELIEF.This action was dismissed following the filing of a Title 30 action without any final adjudication that defendant abused or neglected Donna. Because the permanency order entered here has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect, the issues raised in this appeal are moot. A.P., supra, 408 N.J. Super. at 263. Because defendant's main contentions on appeal, that she was denied due process by the termination of this abuse and neglect proceeding without a fact-finding hearing upon the Division's filing of a guardianship complaint, have been thoroughly addressed by this court in A.P., we decline to engage in an extended discussion of these same issues here. R. 2:11-3(e)(1)(E). We add only the following.
III. DYFS DID NOT OBTAIN A RIGHT TO ULTIMATE CARE, CUSTODY, OR ANY OTHER RELIEF IN FN-19-31-11 UNDER N.J.S.A. 30:4C-12.
IV. DYFS DID NOT OBTAIN A RIGHT TO CARE, CUSTODY, OR ANY OTHER RELIEF IN FN-19-31-11 VIA ANY JUDGMENT PURSUANT TO ANY STIPULATION.
V. INTERLOCUTORY ORDERS AGAINST [DEFENDANT] GRANTING DYFS INTERIM RELIEF PENDING TRIAL, INCLUDING THE INTERIM RELIEF OF CARE AND CUSTODY OF BABY D., WERE RENDERED VOID AB INITIO AND PROSPECTIVELY, AS IF THEY NEVER EXISTED, WHEN DYFS VOLUNTARILY DISMISSED FN-19-31-11 WITHOUT OBTAINING A JUDGMENT IN ITS FAVOR IN THE MATTER.
VI. THE PERMANENCY ORDER FN-19-31-11 MUST BE REVERSED BECAUSE DYFS MAY NOT BRING AN FG GUARDIANSHIP/TERMINATION OF PARENTAL RIGHTS ACTION FOR BABY D. WITHOUT HAVING FIRST OBTAINED AN FN JUDGMENT FOR CARE OR CUSTODY OF HER.
VII. TO ALLOW DYFS TO AVOID TRIALS IN FN MATTERS BY PARLAYING INTERLOCUTORY FN CUSTODY IT IS AWARDED PENDING FN TRIALS INTO THE CARE OR CUSTODY IT NEEDS TO BRING GUARDIANSHIP/TERMINATION OF PARENTAL RIGHTS ACTIONS UNDER N.J.S.A. 30:4C-15(c) CORRUPTS NEW JERSEY'S CHILD WELFARE SYSTEM.
VIII. THE APPELLATE DIVISION'S OPINION IN THE A.P. CASE DOES NOT JUSTIFY EITHER A PERMANENCY ORDER AUTHORIZING DYFS TO BRING AN FG FOR BABY D. OR DISMISSAL OF FN-19-31-11 WITHOUT RETURNING BABY D. TO [DEFENDANT].
Defendant's objection to the purported improper verification of the Division's complaint for custody based on lack of personal knowledge was not raised in the trial court. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (noting that issues not raised in the trial court will ordinarily not be considered on appeal unless they go to the jurisdiction of the court or substantially implicate the public interest). Accordingly, we have nothing more than defendant's assertion that the complaint was improperly verified, which is obviously inadequate for appellate review. Moreover, if defendant had raised the issue and the court had agreed with her position, the problem could have been rectified promptly and "the course of the litigation might easily have been steered in a straighter path." N.J. Div. of Youth & Family Servs. v. Wunnenberg, 169 N.J. Super. 417, 420 (App. Div.), certif. denied, 82 N.J. 270 (1979).
Although the issues are moot because the Division's voluntary dismissal of the action vitiates and annuls prior orders in this case, A.P., supra, 408 N.J. Super. at 263, we reject the notion, based on the allegation that the complaint was improperly verified, that Donna was never lawfully removed from defendant in this proceeding. We do not lose sight of the fact that defendant was involuntarily committed to an in-patient psychiatric facility within days of giving birth and that she remained involuntarily committed and thus unavailable to assume her parental responsibilities for the first two months of Donna's life. Further, defendant never challenged the Division's continued care and custody of Donna at any point in this Title 9 action and never moved to have her daughter returned to her care. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 445 (2012) (holding defendant must timely challenge whether the Division had right to assume "care or custody" of child or risk application of the doctrine of laches).
To the extent that defendant contends that the Division was without lawful "care or custody" of Donna when the judge signed the order to show cause in the Title 30 action and continued Donna in the Division's custody pending the outcome of the guardianship proceeding, that issue is not properly before us. The issue of whether the Division had the authority to exercise "care or custody" over Donna at the time the Division filed its guardianship complaint must be raised to the court hearing the guardianship before trial. Ibid. Should defendant wish review of that issue, she must file a timely notice of appeal from the final judgment in that Title 30 matter. See R. 2:2-3(a)(1).
This appeal is moot and the case presents no issues of significant public importance compelling our review otherwise. See De Vesa v. Dorsey, 134 N.J. 420, 428 (1993).
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