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New Jersey Division of Youth and Family Services v. L.F.

July 26, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.F., DEFENDANT-APPELLANT, AND E.M., DEFENDANT. IN THE MATTER OF J.M. AND J.M., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0353-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2011

Before Judges Reisner and Alvarez.

Defendant L.F. is the mother of three sons - A.G., born on March 8, 1999, twins C.G. and J.G., born on August 18, 2001 - and two daughters, J.M. (hereinafter Mary), born April 20, 2008, and J.M. (hereinafter Jane), born April 15, 2009. On June 23, 2010, a Family Part order was entered dismissing abuse and neglect proceedings instituted against her by the Division of Youth and Family Services (the Division). New proceedings were initiated by the Division for guardianship with respect to Mary and Jane, who are in foster placement. L.F.'s former husband, the father of A.G., C.G., and J.G., was granted custody of the boys. E.M., the girls' father, has not joined in the appeal.

The challenged June 23, 2010 order contains no findings of abuse and neglect. It grants the Division continued custody of the girls and indicates that the matter was "superceded by FG-09-190-10," the guardianship proceedings. Therein lies the procedural and substantive quandary presented by this appeal. The order did no more than clear the way for the potentially more consequential litigation that may result in termination of L.F.'s parental rights. But it cleared the way after the legally significant finding that the Division had proven L.F. abused or neglected the children by a preponderance of the evidence. Fact-finding orders were entered as to Mary, on March 31, 2009, and as to Jane, on August 5, 2009.

L.F. challenges the Division's permanency plan for Mary and Jane, the removal of the boys, and several other substantive issues nowhere referenced in the order attached to the notice of appeal. Rule 2:5-1(f)(3)(A) provides that, in civil actions, a notice of appeal "shall set forth . . . the judgment, decision, action or rule, or part thereof appealed from[.]" Thus, "[w]hile the rule does not in terms so provide, it is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2011) (citing 1266 Apt. Corp. v. New Horizon Deli, 368 N.J. Super. 456, 459 (App. Div. 2004); Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); Campagna v. Amer. Cyanamid, 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). Likewise, Rule 2:5-1(f)(2) requires a copy of the final judgment, order, or agency decision appealed from to be attached to the parties' case information statement. To reiterate, the notice of appeal and attached order do not include any adjudication or disposition. The order merely dismisses one form of litigation in preparation for the pursuit of another.

Where no findings are made as to abuse and neglect, and a Title 9 action is dismissed in order that guardianship proceedings can be filed, the case is moot:

DYFS's dismissal of a Title 9 action without an adjudication that the parent has abused or neglected his or her child has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect. Such a disposition, like the dismissal of any other action by a plaintiff under Rule 4:37-1, adjudicates nothing and thus cannot provide a predicate for relief [N.J. Div. of Youth & Family Servs. v. A.P. & F.H., 408 N.J. Super. 252, 262-63 (App.

Div. 2009) (internal quotations omitted).]

N.J.S.A. 9:6-8.70 explicitly provides an appeal may be taken as of right from any Title 9 order "adjudicat[ing] a complaint of abuse and neglect and provid[ing] an appropriate disposition in light of that adjudication." A.P. & F.H., supra, 408 N.J. Super. at 262. Because the order appealed from in this instance was a dismissal, it cannot strictly speaking be considered an appealable disposition. It "adjudicate[d] nothing." See id. at 263. Yet the order did two important things of great consequence to L.F. - it continued custody of the girls in the Division, and rendered the fact-findings available for use in the guardianship proceedings.

Fact-finding orders are considered interlocutory and generally require a motion for leave to appeal. N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003). But we have recently found the procedure wanting in Title 9 matters, observing that "[g]ranting leave to appeal from the interim finding is unnecessarily disruptive and unreasonably causes delay in the dispositional review and family reunification, . . . the desired outcome of Title [9] litigation." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 620 (App. Div. 2010). In that matter, we relieved parents of their burden to contest "'the outcome of the litigation as embodied in the judgment,'" id. at 618 (quoting Magill v. Casel, 238 N.J. Super. 57, 62 (App. Div. 1990)), in order to contest a finding of abuse or neglect, "notwithstanding their agreement to an acceptable resolution of the litigation." Id. at 621. In other words, because of the importance of interim findings and the effect upon parents of the entry of such orders, despite the ultimate reunification of a parent and a child, a parent is permitted to pursue an appeal of the finding of abuse and neglect even if he or she consented to the final dispositional order.

This case, therefore, seemingly falls into a category of its own. In A.P. & F.H., the appeal was considered moot because no adjudication was made as to the alleged abuse and neglect - the litigation was merely dismissed. In N.S., after an interlocutory fact-finding, the parents consented to dismissal of the Title 9 proceedings because the result was favorable to them. Here, appeal is taken from an interlocutory fact-finding order where a parent disagrees with the ...


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