DCPP VS. J.H. AND R.H., IN THE MATTER OF C.H. (FN-02-0104-17, BERGEN COUNTY AND STAEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 17, 2019
• Docket: A-1629-17T2
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1629-17T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.H. and R.H.,

Defendants-Appellants. _______________________________

IN THE MATTER OF A.H. and C.H.,

Minors. _______________________________

Submitted September 10, 2019 – Decided September 17, 2019

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0104-17.

Kenneth James Rosellini, attorney for appellants. Gurbir S. Grewal, Attorney General, attorney for respondent (Jason Wade Rockwell, Assistant Attorney General, of counsel; Peter Damian Alvino, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.H. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Cory Hadley Cassar, Designated Counsel, on the brief).

PER CURIAM

In this protective services matter, defendants J.H. (mother) 1 and R.H.

(father) appeal from a now final June 26, 2017 order, entered after a summary

hearing pursuant to N.J.S.A. 30:4C-12 (Section 12), reflecting their family's

continued need for services and extending the Division of Child Protection and

Permanency's care and custody of their two minor children, A.H. (Alice), born

in 1999 and C.H. (Cindy), born in 2011. Defendants claim the Family Part never

acquired jurisdiction to permit the Division to direct services and retain care and

custody of their daughters because the protective services case was dismissed,

and the trial judge's summary decision was not supported by adequate,

substantial, credible evidence in the record. Defendants further contend Section

1 We use initials and pseudonyms to identify the parties and children to protect the confidentiality of the matters related to the alleged child abuse. See N.J.S.A. 9:6-8.10a.

A-1629-17T2 2 12 is unconstitutionally vague as applied to them. Because we conclude the

Division's filing of the guardianship action rendered the matter moot, we dismiss

the appeal.

We incorporate by reference the factual findings and procedural history

set forth in Judge Peter J. Melchionne's June 26, 2017 oral decision following

the contested summary hearing. In essence, the family's substantial history with

the Division dates back several years. 2 Between 2011 and 2015, referrals citing

concerns about the family ran the gamut from domestic violence between

defendants in the presence of Alice, to concerns about the mental health of both

parents and Alice. Although the Division lacked sufficient evidence to

substantiate a judicial finding of abuse or neglect, the Family Part and the

Division have maintained intermittent oversight of the family.

During a home visit in September 2016, father claimed mother was a

member of the Russian mafia and she tried to kill Cindy; mother denied the

allegations and told the Division she feared father. The Division recommended

psychological evaluations for the family, but defendants declined to sign

2 According to father's expert report, the Division initially became involved with the family in 2000, when medical neglect concerns were raised about then ten-month-old Alice. The details and disposition of that referral are not contained in the record on appeal. A-1629-17T2 3 medical releases for the children. The Division provided homemaker services,

but father refused to allow the homemaker entry into the home.

The Division removed the children after its ensuing attempts to implement

a safety plan were frustrated by mother's refusal to cooperate with any restraints

that prevented father's presence in the home. Following the emergency removal,

the Division filed a complaint detailing those events and the family's history

with the Division. Notably, the Division's complaint sought an order for care

and custody of the children under Title 9 and Title 30. Judge Melchionne

granted the Division's request for custody, care and supervision, and the children

were initially placed together in the same resource home. But, Cindy was

removed from that home after Alice assaulted her. Thereafter, Alice was

hospitalized due to suicidal thoughts and her physical aggression toward Cindy.

On January 30, 2017, Judge Melchionne held an uncontested summary

hearing regarding the Division's internal findings of abuse and neglect against

father. The Division caseworker testified Alice was diagnosed with

schizophrenia and had been hospitalized several times. Noting concerns for the

mental health of defendants and Alice, the judge ordered the children to remain

in the Division's care and custody. According to the judge, "[t]he thrust of this

case comes from the mental health issues that seem[] to permeate and that does

A-1629-17T2 4 require the need for the services." The judge concluded, without objection, that

the matter would proceed "pursuant to Title 30." 3

During a compliance review hearing in April 2017, the Division disclosed

Alice had been hospitalized several times in the prior three months and

defendants refused to participate in services aimed at reunification. Because the

parents contested their need for services, Judge Melchionne scheduled another

plenary hearing to permit the testimony of an opposing expert. In the interim,

the judge held an emergent hearing regarding defendants' opposition to Alice's

increased need for psychiatric care in a residential setting.

During the three-day summary hearing, the Division and father presented

the competing testimony of their psychiatric experts; father testified in his own

behalf; mother did not testify nor present any witnesses. Following the hearing,

Judge Melchionne concluded the Division established by a preponderance of the

evidence that the children required the continued care and supervision of the

Division, defendants remained unable to adequately care for the children based

on the mental health concerns for the parents and their children, and defendants

failed to comply with services offered by the Division.

3 The January 30, 2017 order was not provided on appeal. A-1629-17T2 5 In a comprehensive oral decision rendered on June 26, 2017, Judge

Melchionne determined both experts agreed that father had "some form of

psychosis . . . ." But, the judge noted father's expert lacked pertinent information

about the family, including Alice's then current inpatient program and

defendants' refusal to permit her placement in that program. Conversely, the

judge credited the testimony of the Division's expert, finding his diagnosis of

father was corroborated by father's rambling testimony and demeanor at the

hearing.

After Alice turned eighteen years old and was dismissed from the

protective services action, 4 Judge Melchionne conducted a permanency hearing

regarding Cindy, at which he approved the Division's plan for termination of

defendants' parental rights followed by adoption. The judge found defendants

failed to address their domestic violence and mental issues. Noting the

guardianship complaint would not be filed for another five weeks, the judge was

hopeful the parents would avail themselves of services so that the family could

be reunified. When that did not occur, the Division filed its guardianship

complaint, and another Family Part judge dismissed the Title 30 proceeding in

4 Alice returned to defendants' home and is not a party to this appeal. A-1629-17T2 6 a dispositional order on November 14, 2017. This appeal of the June 8, 2016

summary hearing order followed.

Citing our decision in N.J. Div. of Youth & Family Servs. v. A.P., 408

N.J. Super. 252 (App. Div. 2009), the Division argues this appeal is moot

because the only practical effect of the summary order "was to address whether

Alice and Cindy should remain in the Division's custody under the court's Title

[30] jurisdiction, to which the parties had already consented." See id. at 262.

Because the Title 9 action was dismissed without an adjudication of abuse or

neglect, the Division argues the June 26, 2017 order "has none of the adverse

consequences of a final order of disposition . . . ." Id. at 263. The law guardian

joins the Division's alternate argument, urging us to affirm the order because it

was amply supported by substantial credible evidence in the record.

"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." Stop & Shop Supermarket Co., LLC v. Cty. of Bergen,

450 N.J. Super. 286, 291 (App. Div. 2017) (citation omitted). "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. J.C., 423

N.J. Super. 259, 263 (App. Div. 2011) (citation omitted). If, however, "a party

A-1629-17T2 7 'still suffers from the adverse consequences to her caused by [a] proceeding ,' an

appeal from an order in that proceeding is not moot." A.P., 408 N.J. Super. at

262 (citation omitted).

In A.P., the question was whether the defendant's appeal from the

dismissal of a Title 9 action was mooted by the Division's filing of a Titl e 30

action. 408 N.J. Super. at 261. We recognized that a finding of abuse or neglect

under Title 9 could prejudice a parent's cause in a subsequent Title 30

termination proceeding, but that dismissal of the Title 9 action without an

adjudication had no adverse consequence. Id. at 262-63. Significantly, we

recognized the order disposing of the Title 9 action was not a true order of

dismissal because it provided for the continuation of physical custody of the

child with his paternal grandmother. Id. at 263. We concluded the custody order

entered in the Title 30 action superseded the Title 9 order. As a result, the Title

9 order had no operative effect with regard to custody. Ibid. Because the Title

9 order had no practical effect on the existing Title 30 action against the

defendant, her appeal from that order was deemed moot. Id. at 264.

Judged by those standards, we agree with the Division that the present

matter likewise is moot. The Division instituted this action seeking the

temporary care, custody, and supervision of defendants' two daughters pursuant

A-1629-17T2 8 to Section 12 and N.J.S.A. 9:6-8.21 to -8.73. See N.J. Div. of Youth & Family

Servs. v. I.S., 214 N.J. 8, 31 (2013) (noting "the Division usually pleads Title 9

and Title 30 claims concurrently in order to facilitate the efficient processing of

assistance to the family").

The Title 30 protective services case was dismissed following the filing

of a guardianship complaint, without any finding other than the best interests of

the children required the Division to assume temporarily their care, supervision

and custody pursuant to Section 12. See I.S., 214 N.J. at 33 (explaining that

Section 12 "provides the means for the Division to effectuate services to children

in need when a parent does not consent to the Division's supervision, care, or

custody"). The disposition order entered in this protective services case based

on a finding under Section 12 thus has none of the adverse consequences of a

final order of disposition based on a finding of abuse or neglect. See A.P., 408

N.J. Super. at 262-63 (explaining the adverse consequences to a parent of a final

order of disposition entered under N.J.S.A. 9:6-8.50 through N.J.S.A. 9:6-8.58,

including placement of the parent's name in the Central Registry).

We acknowledge the trial judge's finding under Section 12 could form the

basis of jurisdiction in a guardianship case because it establishes one of the five

statutory grounds for instituting an action to terminate parental rights under

A-1629-17T2 9 N.J.S.A. 30:4C-15.5 Relevant here, subsection (c) of that statute permits the

filing of a petition to terminate parental rights when "it appears that the best

interests of any child under the care or custody of the division require that he be

placed under guardianship." Although that provision might suggest a continuing

adverse consequence to defendants, they remain free to contest the Division's

continued care and custody of the children – and thus the guardianship court's

jurisdiction – in the guardianship case. Cf. N.J. Div. of Youth & Family Servs.

v. R.D., 207 N.J. 88, 120-21 (2011) (explaining the limited preclusive effect of

Title 9 determinations in any subsequent and related guardianship proceeding).

As Justice LaVecchia explained in I.S., a protective services order entered

pursuant to Section 12 only is intended to be temporary and requires periodic

review by the court. 214 N.J. at 37.

Indeed, defendants must bring their challenge to the Family Part's

jurisdiction in the guardianship action, or risk its loss through the operation of

laches. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 445-46

(2012). As Justice Albin explained in F.M., even if there were any merit to a

claim that the Division lacked proper "care or custody" of a child at the time it

5 The guardianship complaint is not included in the record, and we are unaware of the asserted basis of jurisdiction in that matter. A-1629-17T2 10 filed its guardianship complaint, "it would be questionable public policy to

upend a properly conducted guardianship hearing at which the family court has

fairly found that termination of parental rights is in the best interests of the

children." Id. at 446.

Any decision of ours in defendants' favor on the care and custody question

would likely be similarly ineffective "to upend a properly conducted

guardianship hearing" culminating in the termination of defendants' parental

rights to Cindy for those same public policy reasons. Defendants must, therefore

pursue – in the guardianship proceeding – their challenge to the care and custody

the Division obtained of their daughters in the protective services proceeding.

Accordingly, that the trial judge's summary order in this protective services case

could form the basis of jurisdiction in the guardianship proceeding is not a

sufficiently adverse consequence to make defendants' appeal of the June 26,

2017 order justiciable. See A.P., 408 N.J. Super. at 262.

In sum, this appeal is moot because any decision we would make could

have no practical effect on the temporary care and custody orders entered under

Section 12 in the Title 30 protective services case, and any adverse consequence

defendants might suffer from those orders in any subsequent guardianship

proceeding can, and indeed must, be addressed in that proceeding. Having

A-1629-17T2 11 reviewed the record, we are convinced that none of the other issues defendants

raise is of such substantial public importance and so unlikely to recur in a live

controversy as to compel our consideration of the appeal on the merits. See De

Vesa v. Dorsey, 134 N.J. 420, 428-29 (1993).

Because of our disposition of the appeal, we decline to consider

defendants' contention that Judge Melchionne's decision to continue the children

in the care and custody of the Division was not based on competent evidence.

Defendants' constitutional challenge to Section 12 lacks sufficient merit to

warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

Dismissed.

A-1629-17T2 12