Dyfs v. ApDyfs v. Ap
Lauren Carlton, Assistant Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin and Melissa H. Raksa, Assistant Attorneys General, of counsel; Jennifer Jaremback, Deputy Attorney General, on the briefs).
Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor S.H. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
The dispositive issue presented by this appeal is whether a parent‘s appeal of an order that dismisses a Title 9 action brought by the Division of Youth and Family Services (DYFS) before there has been an adjudication of abuse or neglect and entry of a final order of disposition is mooted by DYFS’ filing of a Title 30 action for the termination of parental rights. We conclude that DYFS’ filing of a Title 30 action and the entry in that action of an order regarding custody and related matters such as visitation, which supersedes any orders entered in the Title 9 action, moots the parent‘s appeal from the dismissal of the Title 9 action before an adjudication of abuse or neglect.
On December 18, 2002, DYFS filed this action under Title 9, which alleged that defendants A.P. and a paramour, J.B., had abused or neglected their child, K.B., who was born on April 18, 2002. On December 18, 2002, the trial court placed K.B. under the care, custody and supervision of DYFS.
On August 25, 2005, DYFS filed an amended complaint, which alleged that defendants A.P. and her husband, F.H., had abused or neglected their child, S.H., who was born on June 23, 2004, and sought custody of that child. The basis for this amended complaint was an incident of domestic violence between A.P. and F.H. that occurred on August 22, 2005, which resulted in the arrest of both parents. The amended complaint incorporated by reference the original complaint relating to K.B., who was still under DYFS’ care, custody and supervision. On August 25, 2005, the trial court entered an order that also placed S.H. under the care, custody and supervision of DYFS, and DYFS
On September 15, 2005, the trial court entered another order continuing the placement of both K.B. and S.H. in DYFS’ care, custody and supervision, with S.H. continuing in the physical custody of his paternal grandmother. This order provided that both parents would be entitled to supervised visitation and various services, including anger management and parenting skills training.
Compliance review hearings were conducted on November 10, 2005, February 16, 2006, April 27, 2006, September 5, 2006, December 7, 2006, January 30, 2007, March 27, 2007, and June 19, 2007, which resulted in the continuation of S.H.‘s placement under DYFS’ care, custody and supervision and physical custody remaining with his paternal grandmother.
On January 23, 2006, DYFS brought a guardianship action under Title 30 seeking the termination of A.P.‘s and J.B.‘s parental rights with respect to K.B. When that guardianship action was filed, DYFS’ original complaint against A.P. and J.B., which alleged that they had abused or neglected K.B., was dismissed. A.P. and J.B. both failed to appear for the trial of the guardianship action, which resulted in a default being entered, and on September 18, 2006, a judgment was entered terminating their parental rights with respect to K.B. No appeal was taken from this judgment.
On September 19, 2007, the trial court conducted a permanency hearing in DYFS’ Title 9 action against A.P. and F.H. regarding their alleged abuse or neglect of S.H. A DYFS manager and A.P. both testified. F.H. did not appear. Following the hearing, the trial court entered an order, which found that it was “appropriate and acceptable” for DYFS to file a complaint for the termination of A.P.‘s and F.H.‘s parental rights.
On January 14, 2008, DYFS filed a complaint under Title 30 seeking the termination of A.P.‘s and F.H.‘s parental rights with respect to S.H. The complaint asserted that “it would be in [S.H.‘s] best interest ... if he was placed under the guardianship of [DYFS] for all purposes, including adoption.” The complaint also asserted that A.P. “had abandoned S.H. to the care of others and had substantially failed to perform the regular and expected functions of his care and support.”
On January 29, 2008, the trial court entered an order dismissing DYFS’ Title 9 abuse or neglect action. This order stated: “This litigation is terminated as the guardianship complaint was filed in this matter on January 14, 2008 .... The return date is February 22, 2008.” Although the January 29, 2008 order dismissed the Title 9 action, it also provided that S.H.‘s “legal custody” was “continued with DYFS” and his “physical custody” was “continued with paternal grandmother.”
On March 19, 2008, A.P. filed a notice of appeal from the January 29, 2008 order dismissing the Title 9 action against her.
On February 22, 2008, the return date referred to in the order dismissing the Title 9 action, the trial court in the Title 30 guardianship action entered an order which provided, among other things, that S.H. “shall remain a ward of the court and remain in the care, custody and supervision of [DYFS].” On March 31, 2008, June 2, 2008, November 10, 2008, and December 22, 2008, the court entered further orders continuing this provision. In addition, on August 25, 2008, the trial court in the guardianship action entered a permanency order, which concluded that DYFS’ “permanent plan for the ... termination of parental rights [as to S.H.] followed by adoption [is] appropriate and acceptable.” This order found that “[A.P.‘s] where-abouts
On December 22, 2008, the trial court in the guardianship action entered an order, apparently on its own motion, staying that action pending this court‘s disposition of the present appeal.
On her appeal from the order dismissing the Title 9 action, A.P. argued that the trial court deprived her of due process by dismissing the Title 9 action without affording her an opportunity to appear. A.P. also presented a series of arguments that rest on the underlying premise that DYFS was required to prove its case in the Title 9 abuse or neglect action before it could file a Title 30 guardianship action. She argued that the court violated the governing statutory provisions by allowing DYFS to file a Title 30 action without first finding that she had abused or neglected S.H., that the termination of her parental rights rather than reunification was the appropriate plan for S.H., or that the proposed adoptive parents were approved and interested in adoption.
Upon an initial review of this appeal, we questioned whether the January 29, 2008 order dismissing the Title 9 action was appealable or, alternatively, whether the appeal was moot, in light of DYFS’ filing of the Title 30 action. Therefore, we directed the parties to file supplemental briefs addressed to this issue.
A.P. argues in her supplemental brief that this appeal is not moot because DYFS’ proof of abuse or neglect in an action brought under Title 9 is a prerequisite for bringing a guardianship action under Title 30. DYFS and the Law Guardian argue that this appeal is moot because the Title 9 action was dismissed before trial and DYFS may bring a Title 30 guardianship action without proving child abuse or neglect in an action brought under Title 9.
I.
In addressing the mootness issue, we first consider whether DYFS is required to prevail in a Title 9 abuse or neglect action before initiating an action under Title 30 for the termination of parental rights. Title 30 sets forth five separate and independent grounds for filing a guardianship petition.
[w]henever
(a) it appears that a court wherein a complaint has been proffered as provided in chapter 6 of Title 9 ... has entered a conviction against the parent or parents ... because of abuse, abandonment, neglect of or cruelty to such child; or
....1
(c) it appears that the best interests of any child under the care or custody of [DYFS] require that he be placed under guardianship; or
(d) it appears that a parent ... following the acceptance of such child by [DYFS] pursuant to [
N.J.S.A. 30:4C-11 or-12 ] ... has failed for a period of one year to remove the circumstances or conditions that led to the removal or placement of the child, although physically and financially able to do so, notwith-standing [DYFS‘] reasonable efforts to assist the parent ... in remedying the conditions; or(e) the parent has abandoned the child; or
(f) the parent of a child has been found by a criminal court of competent jurisdiction to have committed [any one of a series of enumerated violent criminal offenses against] the child or another child of the parent ... or the parent has committed a similarly serious act which resulted, or could have resulted, in the death or significant bodily injury to the child or another child of the parent....
It is thus clear on the face of
If there could be any doubt about the correctness of this conclusion, it was resolved by N.J. Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 556 (1994), which expressly held that “termination proceedings, which are brought pursuant to
Moreover, DYFS may obtain custody of a child in need of care and supervision in a proceeding brought under Title 30 without any prior action under Title 9.
[i]f ... it appears that [a] child requires care and supervision by [DYFS] or other action to ensure the health and safety of the child, [DYFS] may apply to the Family Part of the Chancery Division of the Superior Court ... for an order making the child a ward of the court and placing the child under the care and supervision or custody of [DYFS].
See N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 258-61 (App. Div. 2002) (discussing “separate” authority provided by Title 9 and Title 30 for DYFS’ removal of child from parent‘s custody). In fact, DYFS may obtain an order for custody of a child under the “best-interests standard” of
However, K.M. holds that DYFS is not required to try a Title 9 action to conclusion before bringing a Title 30 action for the termination of parental rights. Id. at 556. In reaching this conclusion, the Court observed that “[i]f DYFS cannot bring a termination proceeding until an abuse or neglect action finally winds its way through the courts, the Legislature‘s goal of achieving permanency in the placement of children will be frustrated and the child will suffer.” Id. at 559.
Although K.M. involved a Title 9 action that was pending on appeal when DYFS filed a Title 30 action for the termination of parental rights, id. at 549, its rationale is equally applicable to a case such as this, in which DYFS filed a Title 30 action for the termination of parental rights while the prior Title 9 action was still pending before the trial court. Therefore, DYFS was not required to try this Title 9 action to conclusion before filing a Title 30 action for the termination of parental rights.
Furthermore, because DYFS may bring a Title 30 action without first filing a Title 9 action, K.M., 136 N.J. at 556, and the Title 30 action may “proceed independently” of the Title 9 action, id. at 558, DYFS had the authority to dismiss the pending Title 9 action when it decided to bring the Title 30 action. Once the Title 30 action was filed, any appropriate interim remedial measures regarding A.P. or S.H., including provisions for custody and visitation, could be entered in that action. See, e.g.,
II.
The further question presented by this appeal, to which the parties’ supplemental briefs were addressed, is whether A.P.‘s appeal from the dismissal of the Title 9 action was mooted by DYFS’ filing of the Title 30 action.
“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 Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (citation omitted). Consequently, if a party “still suffers from the adverse consequences to her caused by [a] proceeding,” an appeal from an order in that proceeding is not moot. Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 51 (App. Div. 2008), aff‘d as modified on other grounds, 198 N.J. 382, 387 (2009).
In determining whether this appeal is moot, it is important to distinguish between the January 29, 2008 order dismissing DYFS’ Title 9 action against A.P. without any adjudication of abuse or neglect and a final order of disposition entered under
However, DYFS’ dismissal of a Title 9 action without an adjudication that the parent has abused or neglected his or her child has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect. Such a disposition, like the dismissal of any other action by a plaintiff under Rule 4:37-1, “adjudicates nothing,” Malhame v. Borough of Demarest, 174 N.J. Super. 28, 30 (App. Div. 1980) (quoting Christiansen v. Christiansen, 46 N.J. Super. 101, 109 (App. Div.), certif. denied, 25 N.J. 56 (1957)), and thus cannot provide a predicate for relief against the defendant. Moreover, the voluntary dismissal of an action “leaves the situation so far as procedures therein are concerned the same as though the suit had never been brought, thus vitiating and annulling all prior proceedings and orders in the case.” A.B. Dick Co. v. Marr, 197 F.2d 498, 502 (2d Cir.), cert. denied, 344 U.S. 878 (1952); accord Nat‘l R.R. Passenger Corp. v. Int‘l Ass‘n of Machinists & Aerospace Workers, 915 F.2d 43, 48 (1st Cir. 1990).
We recognize that the January 29, 2008 order dismissing the Title 9 action did not simply dismiss that action, but also provided for the continuation of legal custody of S.H. with DYFS and physical custody with his paternal grandmother. In this respect, it was not a true order of dismissal. The trial court undoubtedly included this provision in the January 29, 2008 order because the court in the Title 30 action had not yet exercised jurisdiction regarding custody and related matters such as visitation. In our view, the preferable procedure would have been for the court to defer dismissal of the Title 9 action until the court exercised jurisdiction over custody and related matters in the Title 30 action, which would have left the prior custody orders in the Title 9 action in effect during this short interim period.
In any event, the trial court entered an order regarding custody in the Title 30 action on February 22, 2008, which superseded the parts of the January 29, 2008 order dealing with custody. Consequently, the sole operative effect of the January 29, 2008 order since the entry of the February 22, 2008 order in the Title 30 action is the dismissal of the Title 9 action and the resulting annulment of the interlocutory orders entered in that action. Therefore, those orders “can have no practical effect on the existing [Title 30 action]” against
In concluding that this appeal is moot because the orders entered in the Title 9 action have no continuing adverse consequences, we emphasize that A.P.‘s due process rights will be fully protected by the trial of the Title 30 action, which will afford her the opportunity, under the criteria set forth in
III.
There are several additional matters that warrant brief comment.
First, A.P.‘s counsel suggested in response to our questions at oral argument that DYFS was required to secure the permission of the trial court in the Title 9 action before filing a Title 30 action for termination of parental rights. We find nothing in Title 9 or Title 30 to support the existence of such a requirement. To the contrary, we read
Second, the Supreme Court has taken note of the “unnecessary complexity ... introduced into the disposition of ... child-welfare cases by the parallel but not congruent tracks of Title 9 and Title 30 proceedings” and suggested that the Legislature consider “combin[ing] both avenues of child advocacy under a single title.” In re Guardianship of G.S., III, 137 N.J. 168, 179 (1994). The convoluted procedural history of this case provides another illustration of the desirability of legislative attention to the relationship between Titles 9 and 30 and consideration of enactment of a single unified statute to govern such proceedings.4
Third,
For the foregoing reasons, the appeal is dismissed as moot.