On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FN-09-127-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Reisner.
Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor T.N.T. (Todd Wilson, Designated Counsel, of counsel and on the brief).
M.T. appeals from a July 16, 2010 order of the Family Part. That order dismissed Title 9 litigation because the Division of Youth and Family Services (DYFS) had filed a Title 30 guardianship complaint seeking to terminate M.T.'s parental rights to her child, T.N.T. For the reasons that follow, we dismiss the appeal.
We briefly summarize the relevant history. The child was born in September 2007, and was removed from M.T.'s custody shortly after her birth because the child had drugs in her system. M.T. admitted using heroin and cocaine during her pregnancy. DYFS initiated a Title 9 complaint alleging abuse and neglect, and on February 26, 2008, the judge entered a fact finding order, finding that M.T. put the child at risk "due to her substance abuse." M.T. does not challenge that order on this appeal.
Because M.T. appeared to be progressing in drug treatment, the child was returned to her in October 2008. On January 7, 2009, Judge Santiago signed an order confirming that physical custody was to continue with M.T. On April 23, 2009, the parties appeared before Judge Santiago, and DYFS recommended that the Title 9 case be dismissed because M.T. had remained drug-free and the child was "doing very well." After the judge agreed to dismiss the action, but before she signed an order dismissing the case, M.T. was observed elsewhere in the courthouse looking unwell and the judge ordered that she submit to an "instant" drug test. The test was positive for cocaine.
Later on that same day, the parties reappeared before Judge Santiago, who outlined the events on the record. During this second hearing, M.T. admitted on the record that she had used cocaine, which she obtained "from a friend," and she admitted that she had "no excuse" for using the drugs. Her attorney also admitted that "[s]he has done drugs, I would characterize it as a slip and not a full blown relapse." Based on that admission, and the lack of another responsible relative to care for the child, the judge authorized a temporary removal of the child from M.T. She entered an order vacating her earlier decision dismissing the case, and set a date for another hearing in thirty days to determine whether custody could be returned to M.T. at that time.
M.T. did not appear at the next hearing, on May 21, 2009, although her attorney was present. The DYFS attorney reported to Judge Santiago that M.T. had been given a drug test on April 14, 2009 at the drug treatment program she was attending, and had tested positive for cocaine. The DYFS attorney indicated that the agency did not know about that positive drug test when it recommended, on April 23, that the Title 9 complaint be dismissed.
By the next hearing, on September 9, 2009, M.T. was in jail, having been arrested on drug charges in July 2009. Prior to her incarceration, she had failed at least one additional drug test, and she had missed numerous visits with the child because "she did not want the child to see her in her current condition." The child was living with a foster mother, who wished to adopt her. At a December 17, 2009 hearing, defendant was still incarcerated, and expected to be released at the end of January 2010.
After DYFS filed a Title 30 complaint seeking to terminate M.T.'s parental rights, the agency applied to dismiss the Title 9 litigation. On July 16, 2010, Judge Schultz granted that application, in an order of the same date. While M.T.'s attorney indicated at the July 16 hearing that his client still wanted reunification with the child, he did not challenge the validity of the April 23, 2009 order reinstating the Title 9 case after M.T. tested ...