On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-121-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
R.L. appeals the July 27, 2009 order of the Family Part terminating the litigation initiated by the New Jersey Division of Youth and Family Services (DYFS) for care and custody of his two daughters, D.N.L. and D.T.L., pursuant to N.J.S.A. 9:6-8.21 to -8.106 and N.J.S.A. 30:4C-12 (FN matter), and directing the case to proceed as a guardianship (FG matter), N.J.S.A. 30:4C-15(c). We dismiss the appeal as moot.
Following an emergency Dodd removal of then one-and-a-half year-old D.N.L. and four-month-old D.T.L., on April 28, 2008, the Division filed the FN complaint for care and custody against L.L., the mother, naming M.R. as the father of D.T.L. and stating the father of D.N.L. was unknown. D.N.L. was placed with a relative and D.T.L. was placed with a special home services provider (SHSP). The court granted the relief, citing L.L.'s mental health issues, possible alcohol abuse, and D.T.L.'s special health needs.
By the fourth compliance review hearing held on August 4, 2008, a paternity test taken of R.L. while he was incarcerated in the county jail revealed he was the father of both children.
It was believed R.L. had been released from jail by that time and his whereabouts were unknown. The court converted the proposed fact-finding trial to a Title 30 hearing, finding by a preponderance of the evidence that L.L. was overwhelmed, unable to care for her children, and in need of services. Pursuant to N.J.S.A. 30:4C-12, custody of the children remained vested in the Division and their placements remained in effect. The court also verbally amended the complaint to substitute R.L. as defendant and father of both girls. These determinations were memorialized in two court orders of that date.
R.L. made his first court appearance at a compliance review hearing on March 17, 2009, having been transported from jail by correctional staff. R.L. was apparently served with a copy of the FN complaint at that time.
A permanency hearing was held on April 14, 2009. The DYFS caseworker testified regarding the agency's plan for termination of parental rights followed by a relative adoption of both girls. She further represented that R.L. informed her on two occasions that he did not currently have the resources to accept custody of the children and was unable to suggest an alternate family placement. R.L.'s counsel informed the court, in R.L.'s presence, that R.L. "want[ed] to get to know" the children before making a determination as to what was in their best interests so counsel was unable to represent that R.L. "absolutely want[ed] custody." The court continued the matter for thirty days at R.L.'s request and directed DYFS to provide R.L. with supervised visits with his children. R.L., however, never contacted the caseworker to arrange the visits. Nor did he respond to the caseworker's letter of April 15, 2009, stating she was unable to reach him at the telephone number he provided, and requesting he promptly call her to arrange visitation.
When the permanency hearing resumed on May 28, 2009, defense counsel represented, with R.L. again present, that R.L. was employed and was building four additional rooms on his home that would be available for his children, and requested R.L. be provided with the training necessary to take care of his special needs daughter. However, when asked by the court what the ultimate result of a further extension would be and whether R.L. was prepared to have the children placed with him, defense counsel responded that R.L. indicated he was not currently available or able to do that, but he "want[ed] to move in that direction." Balancing the concerns of the best interests of the children in view of the length of time the children were in foster placement and their need for permanency, with R.L.'s recent receipt of the FN complaint, the court approved a concurrent permanency plan of termination of parental rights followed by adoption, or reunification with R.L. if he successfully completed court ordered services and was able to support the children and provide them with safe, adequate and secure housing.
On July 9, 2009, DYFS filed the FG guardianship complaint under Title 30 seeking a termination of R.L.'s parental rights to his children. The complaint detailed the procedural history of the matter and asserted that it would be in the best interests of the children to be placed under the guardianship of DYFS for all purposes, including adoption. The complaint also asserted that R.L. "has abandoned [his children] to the care of others," "has substantially failed to perform the regular and expected functions of care and support for [his children]," and to return his children to R.L.'s care "would expose them to an unacceptable level of harm or risk of harm" as R.L. was incapable of parenting them.
At the compliance review hearing on July 27, 2009, DYFS moved to dismiss the FN litigation and have the case proceed as an FG action. Over R.L.'s objection and request for at least a year from the time he was served to be involved in the case and participate in services, the court entered an order terminating the FN litigation in view of the filing of the FG complaint, but ordered DYFS to provide services for both parents under the Title 30 guardianship action. The court reiterated that its primary motivation in dismissing the FN litigation was its determination that the best interests of the children required a move toward permanency and ...