Opinion
DOCKET NO. A-2856-11T2
06-06-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. T.F., Defendant-Appellant. IN THE MATTER OF Z.J.G., J.M. and J.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kimberly S. Dinenberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors Z.J.G, J.M. and J.M. (Nancy P. Fratz, Assistant Deputy Pubic Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-174-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kimberly S. Dinenberg, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors Z.J.G, J.M. and J.M. (Nancy P. Fratz, Assistant Deputy Pubic Defender, of counsel and on the brief). PER CURIAM
Defendant T.F. appeals from the Family Part order of September 20, 2011, that approved the permanency plan of the Division of Youth and Family Services (the Division) to terminate her parental rights to her son, Z.J.G. (Zeke). In a single point heading, defendant contends:
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families and renamed the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
We have fictionalized the children's first names to maintain their anonymity.
THE TRIAL COURT'S FAILURE TO ABIDE BY REQUIRED PROCEDURAL SAFEGUARDS DEPRIVED T.F. OF DUE PROCESSThe Division counters by arguing that the permanency hearing was "procedurally proper" and complied with "applicable statute[s] and case law." Both the Division and the Law Guardian further contend that, because a Title 30 guardianship complaint was subsequently filed, and the proceedings were pending when this appeal was filed, defendant's appeal is moot.
We have considered these arguments in light of the record and applicable legal standards. We agree that the order under review has no continuing impact in light of developments in the Title 30 proceedings. We therefore dismiss the appeal.
I.
Zeke was born in April 2010. His father, C.G., appeared at a single hearing during the proceedings in the Family Part, has had no contact with Zeke and has not participated in this appeal. Defendant is the mother of two other children, Jenny, born in 2002, and Jane, born in 2005. Jenny and Jane have been in the legal and physical custody of their maternal aunt, T.F. (Toni), pursuant to a Family Part order entered on the FD -- non-dissolution -- docket in March 2010.
The judge incorporated the FD order into the order terminating the instant Title 9 proceedings against defendant. J.M., the father of Jenny and Jane, participated to a limited extent in the proceedings in the Family Part, but he has not participated in this appeal.
The Division was notified of Zeke's birth by Shore Memorial Hospital; his gestational age was estimated to be thirty-four weeks. The hospital advised that defendant had tested positive for opiates, cocaine and marijuana the day before the birth. Zeke weighed three pounds, twelve ounces at birth, experienced respiratory problems and was admitted to the neonatal intensive care unit at AlantiCare Regional Medical Center. Although Zeke demonstrated no signs of substance withdrawal, it was anticipated he would remain hospitalized for one to two weeks.
The Division visited Jenny and Jane at Toni's home and found them to be in good health. Toni was willing to care for Zeke, but could not accommodate him in her home. Defendant told the Division that she had "relapsed" under the stress of "the situation," but also advised that she was attending group counseling sessions and complying with a methadone maintenance program.
On April 26, 2010, the Division filed a verified complaint for care, custody and supervision of Zeke, Jenny and Jane. The complaint set forth a history of three prior unsubstantiated referrals regarding defendant. On May 18, 2010, the judge entered an order granting the Division's request and continuing physical custody of Jenny and Jane with Toni.
On August 10, the matter was listed for a fact-finding hearing. Although she had been given proper notice of the date, defendant failed to appear. The deputy attorney general (DAG) indicated that the Division was seeking "a Title 30 finding for [defendant]," and entry of default based upon defendant's non-appearance.
Defense counsel objected, noting she had not "specifically discussed a fact finding hearing with [her] client." Counsel did not object to the admission in evidence of "the Division's records," and added: "I would just request that in the event that my client has any issues with that I would be able to revisit the fact finding at some future point." A substance abuse evaluation was introduced into evidence; it confirmed defendant's admitted use of various drugs and alcohol before and after Zeke's birth.
Finding there was "[no] good reason" for defendant's failure to appear, the judge entered default and further found "this is a family in need of services." The order reflected a "fact-finding of Title 30 for [defendant]," and further included a determination that defendant had "abused or neglected the children" pursuant to "N.J.S.A. 9:6-8.21(c)1 - 4."
A compliance review hearing was held on November 9. No testimony was taken and defendant did not appear. Based upon the representations of the DAG and defense counsel, it appears defendant was an inpatient at Integrity House at the time and "doing well." Zeke remained in a medically-approved foster home, and the Law Guardian indicated he was "happy and well-cared for."
Another compliance review was conducted on February 1, 2011. Defendant did not appear because she remained an inpatient at Integrity House. No testimony was adduced, and no documentary evidence was introduced. However, the DAG made certain representations about defendant's progress, or lack thereof, in counseling and indicated the need for a permanency hearing by April, i.e., the one-year anniversary of the filing of the custody complaint.
Defense counsel indicated a reluctance to proceed to a permanency hearing because defendant was complying with the Integrity House program, and "after care" planning was ongoing. She expressed frustration at being unable to contact defendant or access the program's records. Defense counsel believed that the litigation should continue "strictly [as] a reunification plan" at this time. The judge entered an order setting a permanency hearing for April 26, while acknowledging the DAG's comment that "reunification co[u]ld really happen before" then.
Defendant was present at the April 26 permanency hearing. No testimony was taken. The DAG reported that defendant had completed the inpatient program at Integrity House and moved into a "halfway house." The Division proposed "an extension of the current placement followed by reunification . . . after a [ninety] day period provided . . . [defendant] remains compliant with her treatment." The permanency order entered approved the Division's plan for a "short-term" extension followed by reunification.
Another review hearing was conducted on July 19. Again, no evidence was introduced, and no testimony was taken. The attorneys reported to the judge regarding defendant's progress, which included completion of the halfway house program, negative urine screens and attendance at supervised visitation through Robin's Nest's therapeutic visitation program. The order entered granted the Division a thirty-day extension and required it issue a letter to "Social Services stating that the plan is reunification . . . ."
On September 20, the parties again appeared for what the DAG stated was "the third permanency hearing." No testimony was taken and no evidence was introduced. The DAG reported that defendant had "relapsed," admitted heroin use to her caseworker, was arrested for "burglary," was living in a "boarding home," had been terminated from Robin's Nest and was "sporadic with her visitation." The Division's permanency plan was now termination of defendant's parental rights, followed by adoption "with either a select home or hopefully the relative who has come forward." The Law Guardian added her opinion that the Division's plan was "appropriate."
This was a reference to C.G.'s mother, Zeke's paternal grandmother, who had adopted two of C.G.'s other children and indicated her interest as a placement resource for Zeke.
Defense counsel objected to the "[short] notice" of the Division's change of permanency plans. She requested "a full hearing on the issue[,]" indicating that the "Court Rules provide for . . . a contested hearing when there's disputed information . . . ."
The DAG indicated the Division intended to file a guardianship complaint. She suggested defendant "file a motion" "requesting a contested permanency hearing," and "that a hearing be held appropriately under that motion."
Noting the extensions previously granted, the judge agreed "to grant a permanency plan today of termination of parental rights with adoption and a concurrent plan of reunification . . . ." She instructed the Division to "move forward" with the filing of any guardianship complaint.
Defense counsel continued her objection. She cited Rule 5:12-1(f), claiming defendant was entitled to a hearing "at any stage of the proceedings . . . where's there nonconsensual relief requested . . . ." Defense counsel also asserted a right to "documentary evidence," such as a "permanency report" rather than the "representations by [the Division's] attorneys, sometimes based upon bad information."
Defendant appeals from the conforming order entered by the judge on September 20, 2011. It approved the Division's permanency plan and found that defendant had "admitted to relapsing on heroin within the last two weeks . . . ." It did not provide for a "concurrent plan for reunification," and further noted the approval of the plan "over defendant[]'[s] objection and verbal request for a plenary hearing."
From the record provided, it is unclear exactly when the Division filed its guardianship complaint. However, the first hearing under the FG docket occurred on November 28, 2011. The Division continued to assess Zeke's paternal grandmother as a placement resource, but he remained in foster care.
On December 19, the parties appeared before the judge for consideration of the custody of Jenny and Jane, which the judge continued with Toni. The judge entered an order terminating the FN litigation. Defendant filed her appeal on February 14, 2012.
Defendant contends in her brief that the hearing was conducted under the FD docket. The judge took limited testimony from the Division's caseworker regarding Jenny and Jade's continued custody with Toni, and Toni herself testified. Defendant was placed under oath and consented to Toni's continued custody of her daughters and the judge indicated she was entering an order under the FD docket. That order is not part of the record.
The Division subsequently moved to dismiss the appeal as moot. It argued that, because a September 2012 permanency hearing was scheduled in the Title 30 litigation, defendant was still able to challenge the permanency plan of termination of parental rights. The Division contended no meaningful relief could be accorded by the appeal.
Defendant opposed the motion. She noted that the foster parents no longer wished to adopt Zeke. Defendant also argued that, while the Division's motion supposed a permanency hearing was to take place in the Title 30 hearing, one had not actually occurred. She noted a permanency hearing in the context of a Title 30 guardianship case "serves [only] as a status hearing," since the decision to terminate parental rights had already been made in the Title Nine litigation. A panel of our colleagues denied the Division's motion to dismiss on October 18, 2012.
Since then, the Title 30 litigation has continued. On March 27, 2013, the judge entered a permanency order approving the Division's plan for "termination of parental rights followed by select home adoption concurrent with reunification." A trial is scheduled in October 2013.
II.
Before us, defendant contends she was denied her due process rights at the September 20, 2011 permanency hearing because: 1) the Division changed its permanency plan to termination of parental rights shortly before the hearing and provided her with inadequate notice; 2) she was denied her right to a contested permanency hearing, Rule 5:12-4(h), pursuant to Rule 5:12-1(f); and 3) the Division produced no evidence in support of the permanency plan, but, instead, relied upon unsworn and inaccurate representations of the DAG.
The Division argues that the permanency hearing was conducted in accordance with the applicable statute, court rules and decisional precedent. It further renews the argument that the appeal is moot.
The Law Guardian asserts that the procedures employed at the September 20, 2011 hearing denied the parties "a meaningful opportunity to be heard regarding the permanency plan." However, she argues the permanency plan was appropriate and the order should be affirmed, or, alternatively, the issue is moot in light of the Title 30 proceeding.
A.
N.J.S.A. 9:6-8.54(b)(2) provides:
The court shall conduct a permanency hearing for the child no later than 30 days after placement in cases in which the court has determined that reasonable efforts to reunify the child with the parent or guardian are not required pursuant to [N.J.S.A. 30:4C-11.3], or no later than 12 months after placement in cases in which the court has determined that efforts to reunify the child with the parent or guardian are required. The hearing shall include, but not necessarily be limited to, consideration and evaluation of information provided by the division and other interested parties regarding such matters as those listed in [N.J.S.A. 30:4C-61.2]."The permanency hearing 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) (citing N.J.S.A. 30:4C-61.2). We have said that in the context of a Title Nine proceeding, "this reference to permanency should not be understood to permit the Division to effectuate a non-temporary placement . . . ." N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 111 n.5 (App. Div. 2010).
The contours of the permanency hearing, procedurally and substantively, are more fully fleshed-out by the Child Placement Review Act, N.J.S.A. 30:4C-50 to -65. The court "may schedule a summary hearing" if confronted with "conflicting statements of material fact which it cannot resolve without a hearing[,]" or "[i]f the review is to serve as a permanency hearing." N.J.S.A. 30:4C-61(b)(1) and (6). "Written notice of the date, time and place of the permanency hearing shall be provided at least 15 days in advance to," among others, the parents, "whom shall be entitled to attend the hearing and to submit written information to the court[.]" N.J.S.A. 30:4C-61.2(b). Pursuant to subsection (c),
The hearing shall include, but not necessarily be limited to, consideration and evaluation of information provided by the division and other interested parties regarding such matters as:In approving any permanency plan, "the court shall make a specific finding of the reasonable efforts made thus far by the division and the appropriateness of the reasonable efforts to achieve the permanency plan." N.J.S.A. 30:4C-61.2(d).
(1) a statement of the goal for the permanent placement or return home of the child and the anticipated date that the goal will be achieved;
(2) the intermediate objectives relating to the attainment of the goal;
(3) a statement of the duties and responsibilities of the division, the parents or legal guardian and the temporary caretaker, including the services to be provided by the division to the child and to the temporary caretaker;
(4) a statement of the services to be provided to the parent or legal guardian or an exception to the requirement to provide reasonable efforts toward family reunification in accordance with [N.J.S.A. 30:4C-11.3]. Services to facilitate adoption or an alternative permanent placement may be provided concurrently with services to reunify the child with the parent or guardian;
(5) a permanency plan which includes whether and, if applicable, when:
(a) the child shall be returned to the parent or guardian, if the child can be returned home without endangering the child's health or safety;
(b) the division has determined that family reunification is not possible and the division shall file a petition for the termination of parental rights for the purpose of adoption; or
(c) the division has determined that termination of parental rights is not appropriate in accordance with [N.J.S.A. 30:4C-15.3] and the child shall be placed in an alternative permanent placement.
[N.J.S.A. 30:4C-61.2(c).]
Rule 5:12-4(h) incorporates the statutory structure and time frames into our procedural rules. Rule 5:12-1(e) permits the parties to inspect the Division's case file without court order. Subsection (f) of the same rule provides:
The Rule provides: "A permanency hearing shall be held to provide review and court approval of the placement plan for each child in placement outside of his or her own home no later than 12 months after the child goes into such placement, or no later than 30 days after the court makes a determination that reasonable efforts to reunify the child with the family are not required, whichever is sooner. Any hearing or proceeding scheduled before the court may serve as a permanency hearing, provided that notice of that fact is given to all parties in advance." R. 5:12-4(h).
Testimony. In the court's discretion, oral testimony may be taken at any stage of the proceeding at which non-consensual relief is being considered. In deciding whether to require oral testimony, the court shall determine whether there are material facts in dispute and whether the required findings can be made by a preponderance of the evidence based on reliable and relevant documents that all parties have had a full and fair opportunity to challenge. The court may rely on previous findings made in the same case, but only if the findings are based on competent evidence that has been subjected to review through cross-examination and confrontation by opposing parties, including affording them an
opportunity to rebut the evidence with their own submissions.
[R. 5:12-1(f).]
The statutory framework and or procedural rules clearly support the proposition that interested parties may challenge the Division's permanency plan. In a different context -- a dispute between the Division and the Law Guardian regarding placement options following termination of parental rights -- we stated:
If the Family Part possesses the responsibility and authority to approve such plans, . . . it follows logically that when a bona fide dispute is presented by parties with standing, between competing plans that are reasonably plausible, it is the Family Part that must resolve the dispute.See also N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 598 (App. Div. 2011) (noting the Child Placement Review Act "contemplated an independent judicial review of the Division's permanency plan").
[In re C.R., 364 N.J. Super. 263, 283 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004).]
The Division contends defendant had notice of the date for the September 20, 2011 permanency hearing and was present, but provided no opposition to the Division's plan. That is true, but the assertion overlooks the context of prior events in the litigation. It was the Division that requested two prior adjournments of the permanency hearing, and the Division implied that defendant's progress, to that point, kept the possibility of reunification alive. It is unclear exactly when, and under what circumstances, the Division first told defense counsel of the decision to submit a permanency plan calling for termination of parental rights. But, it is clear from defense counsel's statements that she only recently was advised of this significant change.
We accept the Division's assertion that testimony need not be taken in the context of a summary proceeding, and, pursuant to Rule 5:12-1(f), that decision is vested with the trial judge's sound discretion. But, we do not accept the Division's contention that, because defendant presented no information contrary to the DAG's assertions at the permanency hearing, the judge was free to decide the issue over defendant's expressed objections to lack of notice.
The Division cites to our unreported decision, Div. of Youth & Family Servs. v. T.W., No. A-1536-10 (App. Div. Oct. 14, 2011), in support of the proposition that testimony is not required at a permanency hearing. While not precedential, we find the decision in T.W. to be persuasive on that point. See T.W., supra, slip op. at 18 (noting "no Legislative suggestion requiring the Division to satisfy [N.J.S.A. 30:4C-61.2's] prerequisites through testimonial evidence"). However, unlike the factual scenario in T.W., where the Division introduced its permanency report which was "circulated prior to the hearing," ibid., in this case the only information supplied to the judge was the unsworn and unsupported representation of the DAG that defendant had relapsed.
We therefore reject the Division's assertion that the proceedings leading to the entry of the order under review complied with the necessary procedural and substantive prerequisites.
B.
Having said that, however, we agree with the Law Guardian and the Division that the appeal is moot. "'An issue is "moot" when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) (quoting Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (citation omitted)), certif. denied, 201 N.J. 153 (2010). Such is the case here.
In A.P., supra, 408 N.J. Super. at 262, we held that orders entered in Title Nine proceedings having continued "adverse consequences" for the parent, such as the finding of abuse and neglect, will not become moot simply by the filing of a Title 30 complaint for guardianship. However, once jurisdiction is properly exercised under Title 30, the interlocutory orders entered in the Title Nine proceedings "'can have no practical effect on the existing [Title 30 action]' . . . , which renders th[e] appeal moot." Id. at 264 (quoting Greenfield, supra, 382 N.J. Super. at 257-58).
Defendant has not appealed from the August 10, 2010 order following the fact-finding hearing that adjudged her to have violated N.J.S.A. 9:6-8.21(c).
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Indeed, in this case, the Title 30 proceedings have advanced to such a stage that, even if denied on September 20, 2011, defendant has since had a full opportunity to challenge the Division's permanency plan.
We are therefore compelled to dismiss the appeal 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