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New Jersey Division of Youth and Family Services v. M.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 8, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
v.
M.M. DEFENDANT-RESPONDENT.
IN THE MATTER OF J.M. AND J.M. MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-206-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 1, 2009

Before Judges Rodríguez, Payne and Newman.

On leave granted, this court decided to review certain interlocutory orders of the trial court. M.M. and W.M. were married on June 6, 1999. There were two children born of the marriage, one born on February 11, 2000, and one born on March 11, 2002. In April, 2004 W.M. was murdered. M.M. was ultimately charged with the murder, found guilty of the murder by a jury and sentenced to life imprisonment.

The children have been in the care of the paternal aunt C.L. and her husband. The trial judge has permitted the children's maternal grandparents visitation of their grandchildren. It is clear that the factual circumstances are unique where the father is dead and the mother is imprisoned for life.

During the pendency of the appeal, we granted a motion to remand to permit, if appropriate, the paternal aunt and her husband to intervene as well as the grandparents. Judge Strelecki granted the order of intervention to these interested parties.

Judge Strelecki was conducting the permanency hearing to determine what type of permanent plan would be most appropriate given the unusual circumstances of the case. DYFS sought to file a guardianship pleading by way of an order to show cause which Judge Strelecki did not deem proper, determining that it was important to conclude the permanency hearing before undertaking, if necessary, any guardianship matter. DYFS filed and served a guardianship summons and complaint anyway and sought to have that consolidated with the permanency hearing, contending that similar testimony would be presented. Judge Strelecki rejected consolidation. DYFS eventually secured a stay of the permanency hearing and sought leave to appeal which was ultimately granted.

On appeal, DYFS contends that Judge Strelecki erred in refusing to consolidate the permanency hearing with the guardianship hearing, that she should not have allowed the participation of the families as interested parties which would turn it into a custody battle, and that the interested parties should not have been given access to DYFS records, including grand jury transcripts and reports from M.M.'s criminal investigation. It is also claimed that portions of Judge Strelecki's "additions to the record" should be stricken from DYFS's appellate brief and appendix and that leave to appeal was improvidently granted.

After consideration of the record, the briefs and oral argument, we are satisfied that the rulings made by Judge Strelecki should be affirmed.

Judge Strelecki properly declined to consolidate the permanency hearing with the guardianship hearing. To have done otherwise would have approved of DYFS's action in violation of an order not to file the guardianship complaint. Moreover, termination of M.M.'s parental rights is premature at this time. Kinship legal guardianship may turn out to be a permanent disposition. See DYFS v. D.H. and J.V., 398 N.J. Super. 333 (App. Div. 2008). It does not make sense to proceed to a guardianship proceeding when kinship legal guardianship may be available to the relatives. If M.M.'s parental rights were terminated, the children would be free for adoption, presumably by the aunt and uncle who already indicate they do not want the maternal grandparents to have anything to do with the children. This may not be in the best interests of the children. With a kinship legal guardianship arrangement, the aunt and uncle would not have that choice if the court permits grandparent visitation.

We find no basis to disturb the intervention application by the aunt and uncle and grandparents in the permanency hearing as interested parties. This is a unique case and these relatives were the most interested parties and properly allowed to intervene. R. 4:33-2.

We need not address whether the interested parties should have been given access to DYFS records, which includes grand jury transcripts and reports of the criminal investigation. That issue is moot because the records were already furnished to the parties and we need not address it further.

M.M. had moved to strike Judge Strelecki's "additions to the record". That material is clearly part of the trial record and properly before us. We see no basis to strike that portion of DFYS's brief and appendix material. The motion M-6464-07 is denied.

Lastly, the issue of whether leave to appeal was improvidently granted is rejected. Our only regret is that this matter was not presented to us on a much faster track than the fourteen month interlude that has taken place since leave to appeal was initially granted.

In conclusion, we affirm the challenged decisions of Judge Strelecki. Because she is no longer available on recall, we remand to the presiding judge of the Family Part for assignment to the judge who has been substituted for Judge Strelecki on this case and we direct that the hearing be expedited. That judge may determine what portion of the permanency hearing that has already been heard may be utilized and continue the proceedings from that point forward or, if the existing record may not be usable, to begin the permanency hearing anew.

Affirmed and remanded for further proceedings consistent with this opinion.

20090408

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