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New Jersey Division of Youth and Family Services v. A.P.

July 17, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.P., DEFENDANT-APPELLANT, AND F.H., DEFENDANT.
IN THE MATTER OF S.H., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-99-03.

The opinion of the court was delivered by: Skillman, P.J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 19, 2009

Before Judges Skillman, Graves and Grall.

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 placed S.H. in the physical custody of his paternal grandmother.

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 ...


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