On motions for leave to file notices of appeal out of time from a judgment of the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-0012-08.*fn1
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2010
Before Judges Axelrad, Fisher and Sapp-Peterson.
Defendants J.C. and T.S.L. filed separate motions on December 1, 2009, seeking leave to file notices of appeal in order to obtain our review of a judgment terminating their parental rights to a minor child.*fn2 The judgment in question was entered on August 18, 2008, and the child was adopted on July 17, 2009 -- nearly sixteen months and more than four months, respectively -- before the filing of the motions at hand. Notwithstanding that we liberally grant such motions in guardianship appeals, see N.J. Div. of Youth & Family Servs. v. R.G., 354 N.J. Super. 202 (App. Div. 2002), we conclude that defendants' extraordinary delay coupled with the child's adoption requires denial of defendants' motions.
In seeking leave to appeal out of time, appellate counsel asserts that -- after defendants timely expressed to trial counsel their desire to appeal -- the case was properly transmitted to OPR[*fn3 ] Trenton in September of 2008, and that OPR Trenton had on September 29, 2008 faxed the documents necessary for the filing of the Notice of Appeal to the central appeals section of the Office of the Public Defender in Newark, New Jersey (OPR Central), again in accordance with the standard OPR procedure. That documentation had included written confirmation from T.S.L. that she wished to appeal.
However, according to the moving certification, "OPR Central reported on November 30, 2009 that they had no record of ever having received the documents necessary for the filing of an appeal on behalf of T.S.L., and therefore no Notice of Appeal had been filed." In short, according to defendants' appellate counsel, OPR received a timely request to appeal from their client but somehow failed to follow through.
OPR's failure came to light when, according to appellate counsel, T.S.L. asked her trial attorney in May 2009 about the status of the appeal. Her trial attorney then asked OPR Trenton for an update and "received an assurance from OPR Trenton that they would investigate the matter." Another request by T.S.L. to her trial attorney in late November 2009, which was again relayed, finally prompted the present motions for leave to appeal out of time.
Like the circumstances in R.G., supra, 354 N.J. Super. at 210, the record demonstrates that defendants followed OPR's procedure for pursuing an appeal and placed their trust in OPR that their rights would be protected. And, like R.G., defendants cannot be personally faulted for failing to timely file their appeals. In R.G., we granted relief, but the motions at hand must be denied.
This court has considered applications for leave to appeal out of time in such matters with great liberality, utilizing the standard and framework that has developed and was described in Judge Fall's opinion in R.G.*fn4 This case, however, differs. In R.G., the interval between the trial court judgment and the application for leave to file an appeal out of time was not quite one year; here, the delay was nearly sixteen months. More importantly, during that interval in R.G., a timely appeal was filed by the other parent and adjudicated.*fn5 Id. at 205. This apparently had the effect in R.G. of preventing an adoption; the child here was adopted before the motions at hand were filed. With the adoption of the child by the foster parents -- with whom he has resided since he was four months old (the child is now nearly four years old) -- if not moot, our ability to render effective relief in an appeal in this case is dubious at best.
It has been the Division's policy not to authorize adoption proceedings during the pendency of a guardianship appeal. However, in the vacuum existing between entry of the trial court judgment and the filing of a notice of appeal, OPR's clients remain at grave risk that their appeals may be rendered moot through inaction. Despite the existence of an office dedicated to representing indigent defendants in such matters, and despite the relatively small amount of energy required to prepare and file a notice of appeal, it is startling how often OPR asks this court to grant leave to file a notice of appeal out of time due to mistakes or OPR's inability to move more rapidly or efficiently.*fn6 In this case, defendants timely requested that OPR file appeals on their behalf and yet OPR failed to act in a timely fashion and permitted an extraordinary amount of time to elapse following entry of the trial court judgment.
We, thus, deny these motions. We find OPR's delay in seeking leave to file a notice of appeal to be unreasonable even when judged by our expansive approach in guardianship appeals. Considering the overarching goal of permanency for children caught up in such litigation, see, e.g., N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 309 (2007); R.G., supra, 354 N.J. Super. ...