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New Jersey Division of Youth v. M.T.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 18, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.T. DEFENDANT-APPELLANT.
IN THE MATTER OF T.N.T., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FN-09-127-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 9, 2011

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.

I

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 positive for drugs. Nor did he raise any issues concerning the legality of the Title 9 dismissal or the Title 30 filing.

II

We begin by considering the law that applies to appeals in cases arising under Title 9, N.J.S.A. 9:6-1 to -8.106, which governs abuse and neglect proceedings, as opposed to actions under Title 30, N.J.S.A. 30:4C-11 to -24, which governs termination of parental rights. "In actions initiated in accordance with Title 9 alleging abuse or neglect of a child, the Legislature has . . . declared that an appeal may be taken as of right from any final order made pursuant to the act. N.J.S.A. 9:6-8.70." N.J. Div. of Youth & Family Servs.v. L.A., 357 N.J. Super. 155, 163 (App. Div.). However, "an order finding that a child has been abused or neglected, is an interlocutory order. . . . [T]he only final [Title 9] order is the order following the dispositional hearing." Id. at 164. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397-400 (2009) (A fact finding hearing is required before entering an order finding that the parent abused or neglected the child; a dispositional hearing is required to determine, among other things, whether a parent who has lost custody, due to abuse or neglect, will regain custody of the child).

In N.J. Division of Youth & Family Services v. A.P., 408 N.J. Super. 252 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), we addressed the dismissal of a Title 9 complaint and the filing of a Title 30 complaint, before there was a Title 9 finding of abuse and neglect and entry of a final order of disposition. Under those circumstances, we held that the filing of the Title 30 complaint rendered the Title 9 complaint moot.

In concluding that this appeal is moot because the orders entered in the Title 9 action have no continuing adverse consequences, we emphasize that [the parent's] due process rights will be fully protected by the trial of the Title 30 action, which will afford her the opportunity, under the criteria set forth in N.J.S.A. 30:4C-15.1(a), to contest the charges of abuse or neglect or other harm to the child caused by the parental relationship, [the parent's] willingness and ability to address the causes of that harm, the adequacy of the remedial services DYFS provided [to the parent], and whether the termination of [her] parental rights to [the child] would do more harm than good.

Moreover, DYFS will bear the burden of establishing the standards for the termination of parental rights by "clear-and-convincing-evidence" rather than the lesser burden of proof by a "preponderance of the evidence" that would apply in an action under Title 9. [Id. at 264.]

We conclude that A.P. is on point here. In her brief, M.T. contends that there was no Title 9 order finding her guilty of abuse and neglect and there was no fact finding hearing or final Title 9 order entered. As we understand her position on this appeal, she is not challenging the February 26, 2008 order finding that she placed the child at risk through her drug use.

Rather, she argues that the April 23, 2009 proceeding constituted a new finding of abuse and neglect, which was never memorialized in a formal order. Accepting her premise that no order finding her guilty of abuse and neglect was entered, and no final Title 9 order was entered, the dismissal of the Title 9 action and the filing of the Title 30 action renders this appeal moot. A.P., supra, 408 N.J. Super. at 263.

Seeking to circumvent A.P., M.T. argues that there was no legal basis for DYFS to commence a Title 30 proceeding. But, she did not raise that issue before Judge Schultz at the July 16 hearing. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973)(we will not entertain issues on appeal that were not raised in the trial court); N.J. Div. of Youth & Family Servs. v. Wunnenberg, 169 N.J. Super. 417, 420 (App. Div.), certif. denied, 82 N.J. 270 (1979).

She also contends that the process by which the Family Part issued the April 23, 2009 order, vacating its initial determination terminating the Title 9 case, was unfair because there was no formal hearing establishing her relapse into drug use or determining that such a relapse constituted abuse or neglect. But, she did not raise that issue in the trial court, and she and her attorney both admitted on the record that she had relapsed. Wunnenberg, supra, 169 N.J. Super. at 420.

Further, it is well established that "termination proceedings, which are brought pursuant to N.J.S.A. 30:4C-15, do not require a prior determination of abuse or neglect." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556 (1994).

For all of the reasons stated above, this appeal is hereby dismissed. In dismissing this appeal, we intimate no view as to the merits of the Title 30 proceeding, and our decision is without prejudice to M.T.'s right to raise any issues before the trial court in that proceeding.

Dismissed.

20110518

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