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New Jersey Division of Youth and Family Services v. T.W


October 14, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-0068-08.

Per curiam.



Submitted September 21, 2011

Before Judges Lihotz and St. John.

In this matter, we are asked to examine the propriety of a Family Part hearing conducted without benefit of testimonial evidence to determine the appropriate permanency plan for a child in the custody of plaintiff the New Jersey Division of Youth and Family Services (the Division). Defendant T.W., the child's biological mother, appeals from the permanency order, entered in a Title Nine proceeding, N.J.S.A. 9:6-1 to -8.73, which subsequently has been dismissed.*fn1 The Division relied upon the case summary certification, prepared by its assigned caseworker, to support a proposed modification of its goal for the child's care. T.W. asserts she was denied the opportunity to be heard and her appointed counsel was ineffective during the Title Nine proceedings. We are not persuaded by the arguments presented. Moreover, the issues raised are moot, warranting dismissal.

These facts are taken from the record of the dismissed Title Nine proceeding. The Division first became involved with T.W. in 1999, when her oldest child, T.Y., tested positive for cocaine at birth. T.Y. was placed in the custody of his maternal great-grandmother. In 2002, custody of T.W.'s second child, E.S., was transferred to his biological father. In 2004, T.W.'s third child, R.S., was removed from her care after R.S. tested positive for cocaine at birth. The child was placed in the custody of her maternal great-grandmother, subject to a kinship legal guardianship order. P.W., the child who is the focus of these proceedings, was born at home on December 15, 2007. Immediately thereafter, P.W. suffered an accident and was taken to a hospital for treatment. Diagnostic tests revealed he tested positive for cocaine. The Division issued a hospital hold to prevent P.W.'s release to T.W., and filed a complaint seeking his care, custody and supervision, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12.

During the initial hearing, T.W. assented to the Division's request for custody of P.W., acknowledging her illicit drug dependence and need for admittance to an in-patient substance abuse facility.

In pursuit of the reunification goal of P.W. with his mother, the Division aided T.W.'s admission to Seabrook's in-patient drug rehabilitation treatment program. During a fact-finding hearing, T.W. stipulated she used cocaine while pregnant and failed to secure pre-natal medical care, exposing P.W. to risk of harm. T.W. was afforded supervised visitation rights and the Division was authorized to extend visitation periods, upon receipt of Seabrook's recommendation, to achieve reunification.

Four months after T.W. commenced treatment, Seabrook recommended P.W. join her. T.W. continued her abstinence, progressed in the program, attended counseling and drug treatment, completed parenting skills training and fully cared for her son. T.W. was discharged from Seabrook on February 19, 2009 and advanced to intensive out-patient treatment. T.W. obtained an apartment for herself and P.W. However, by April 2009, T.W. refused to continue her after-care and relapsed. The Division removed P.W. for a second time, returning him to foster care.

The Division amended its complaint to include the additional facts surrounding P.W.'s risk of harm and secured an order from the Family Part placing the child in the Division's care, custody and supervision. T.W. failed to attend the hearing and missed subsequent court dates when the matter was reviewed. Moreover, she was not compliant with the Division's requests for evaluation and treatment.

Thereafter, realizing her need for substance abuse treatment, T.W. enrolled in a different in-patient rehabilitation facility and completed its program. She progressed to the next phase by enrolling in a follow-up care program which allowed P.W. to reside with her. Notwithstanding the Law Guardian's objection, the court ordered reunification to proceed when authorized by the program.

T.W. was discharged from the program on March 20, 2010, subject to her compliance with after-care treatment. She was admitted to an after-care program, attended for ten days, then quit and resumed using cocaine. In May 2010, P.W. was removed from T.W.'s care, for the third time in less than thirty months, and placed with his former resource family.

T.W. absented herself from subsequent court hearings, declined to attend scheduled substance abuse evaluations, failed to appear for a psychiatric evaluation, tested positive during one urine screen and, thereafter, refused to cooperate with the Division.

In preparation for a scheduled permanency hearing, Division case worker Shannon Alba compiled a six-page document entitled "Court Report" (report), certified as true. Wendy Fegley, a Division Supervisor, also certified the statements in the report were accurate.

The report contained a summary of the Division's involvement with the family since T.W. completed Seabrook's four-month in-patient treatment and P.W. was placed in her care on July 11, 2009. The report enumerated the Division's reunification efforts, which encompassed substance abuse evaluations; psychological evaluations; paternity testing; bus passes; transportation for random urine screens; random urine screen testing; supervised visitation; psychiatric evaluations; search and assessment of relatives for placement; individual therapy and parenting skills training through the inpatient substance abuse programs; resource placement of minor child with Medicaid and subsidy support; [and] clothing checks for child[.]

Further, the report listed T.W.'s series of treatments, her program achievements, facts evincing her relapses such as positive and missed urine screenings, unattended evaluations and aborted treatment attendance. Finally, the report recited the Division's recommendation for a change in its goal to find a permanent home for P.W., stating it intended to terminate the current action and file a guardianship complaint, seeking to terminate parental rights followed by foster-parent adoption.

During the permanency hearing, T.W., through counsel, explained her deep desire to regain custody of P.W. Toward that objective, she had enrolled in an intensive out-patient program with Services to Overcome Drug Abuse Among Teenagers (SODAT). She objected to alteration of the goal of reunification and sought to defer any permanency disposition until completion of her treatment. The Law Guardian related the foster parents' desire to become P.W.'s permanent caretakers, which was supported by an expert's bonding evaluation, which was previously delivered to all parties. On behalf of the child, the Law Guardian supported the proposal for guardianship followed by foster-parent adoption.

The court "heard the positions of all the parties" and "reviewed the court reports[,]" determining by "a preponderance of the evidence that the Division's permanent plan for [P.W. was] appropriate and acceptable." Further, the court found despite the Division's reasonable efforts to help reunify the family, T.W.'s continued drug use made it unsafe for P.W. to return home for the foreseeable future. Understanding the length of time P.W. had spent in placement -- fifteen of the thirty months the case had been pending -- the court found termination of parental rights followed by adoption was the most appropriate plan for the child. The Division acknowledged it would file for guardianship within ninety days, and the court scheduled the case for mediation. T.W. did not seek review of this interlocutory order.

A complaint seeking guardianship of P.W. was filed by the Division on August 30, 2010. The Division's October 12, 2010 request to dismiss the Title Nine action was granted. T.W.'s appeal ensued.

On appeal, T.W. challenges the sufficiency of the evidence supporting the trial court's findings for the conclusions stated in the permanency order. Underlying these assertions, is the suggestion the court must hold a full evidentiary hearing, "observ[ing] the same procedural and substantive requirement applicable to a fact-finding hearing[,]" prior to making a finding, the Division's permanency plan is "appropriate and acceptable." T.W. further implies such a hearing is a prerequisite to the Division's pursuit of a guardianship action under Title Thirty.

"New Jersey's scheme for the protection of children against abuse or neglect is codified in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 108 (2011). Prior to our review of T.W.'s substantive challenge to the trial court's compliance with the requisites of Title Nine, we must examine the procedural question of whether T.W.'s appeal is properly before the court, as the Title Nine action was dismissed.

"A party may not seek appellate review of an adverse interlocutory order without seeking relief from the outcome of the litigation as embodied in the judgment." Magill v. Casel, 238 N.J. Super. 57, 62 (App. Div. 1990); see also R. 2:5-6 (governing appeals from interlocutory orders). We reiterate, "Rule 2:2-3(a)(1) allows an appeal as of right only from 'final judgments' of the Superior Court's trial divisions." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 618 (App. Div. 2010).

The statutory scheme created by the Legislature in Title Nine actions provides "'an appeal may be taken as of right from any final order made pursuant to the act.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003)). N.J.S.A. 9:6-8.70, however, does not include a definition of the term "final order." L.A., supra, 357 N.J. Super. at 164.

In L.A., we examined whether a finding of abuse and neglect made following a fact-finding hearing, N.J.S.A. 9:6-8.44, was a final order, and concluded such an order was interlocutory, and not appealable as of right. L.A., supra, 357 N.J. Super. at 164-65. We later articulated procedures litigants should follow to seek interlocutory review or preserve their rights to appeal interim findings upon the conclusion of the Title Nine litigation when there is no challenge to the final disposition. N.S., supra, 412 N.J. Super. at 620-21. Our conclusions were premised on the "custodial ramifications," and numerous "collateral consequences" which flow from a finding of abuse and neglect, id. at 619, including that the finding was evidential in an action filed under Title Thirty. See R.D., supra, 207 N.J. at 120-21 (delineating the due process prerequisites that allow Title Nine findings to have preclusive effect in a subsequent Title Thirty action); N.J. Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 66-67 (App. Div. 2005) (holding an abuse and neglect finding is admissible in a subsequent Title Thirty action).

Here, T.W. has not challenged the finding that she abused or neglected P.W., rather she attacks an order setting forth the Division's plan for the child's permanent placement. We examine the statutory requirements regarding permanency hearings to discern whether such an order meets the requirements of finality. N.J.S.A. 9:6-8.70.

Once a child is removed from the home of his parents or legal guardians, Title Nine mandates:

(2) The court shall conduct a permanency hearing for the child no later than 30 days after placement in cases in which the court has determined that reasonable efforts to reunify the child with the parent or guardian are not required pursuant to [N.J.S.A. 30:4C-11.3], or no later than 12 months after placement in cases in which the court has determined that efforts to reunify the child with the parent or guardian are required. The hearing shall include, but not necessarily be limited to, consideration and evaluation of information provided by the division and other interested parties regarding such matters as those listed in [N.J.S.A. 30:4C-61.2(c)].

(3) The court shall review the permanency plan for the child periodically, as deemed appropriate by the court, to ensure that the permanency plan is achieved. [N.J.S.A. 9:6-8.54(b).]

"Any hearing held before the Family Part may serve as a permanency hearing to provide judicial review and approval of a permanency plan for the child if all the requirements of [N.J.S.A. 30:4C-61.2] are met." N.J.S.A. 9:6-8.24(e). The requirements detail the timeframes and procedures for the court's approval of a placement plan for a child in the Division's custody.

The order at issue resulted from a review of a prior placement determination. N.J.S.A. 9:6-8.54(b)(3). We note, when the child remains outside the home and either the Division has provided the services ordered or twelve months have passed since the child was removed, the trial court shall hold a permanency hearing, in which the goal is to provide for the child's long term living arrangement.

N.J.S.A. 30:4C-61.2. The permanency hearing will determine whether the family will continue towards reunification or whether an alternative plan must be adopted. Ibid. [N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 400 (2009).]

The provisions adopted for the permanent placement of children were "enacted to enable New Jersey to qualify for the continued federal funding of its child protection system" provided in the federal Adoption and Safe Families Act of 1997 (ASFA). Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended in scattered sections of 42 U.S.C.A.). See also N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 283 (2004).

ASFA conditions receipt of federal funding upon a State's adoption of a system in which, inter alia, the status of each child in placement is reviewed periodically but no less frequently than once every six months, 42 U.S.C.A. § 675(5)(B); requires a permanency hearing to be held not later than twelve months after the child has been in placement, 42 U.S.C.A. § 675(5)(C); and, under specific circumstances, requires States to seek termination of parental rights and concurrently identify, recruit, and process a qualified family for adoption. 42 U.S.C.A. § 675(5)(E). [N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 65-66 (App. Div. 2003), aff'd, 179 N.J. 264 (2004).]

Initially, review of every child's placement made outside his or her home is conducted by citizen review boards created for that purpose, N.J.S.A. 30:4C-57, by the Child Placement Review Act, N.J.S.A. 30:4C-50 to -65. A designated board conducts reviews of the Division's placement plan designed "to ensure the goals of safety and permanency" for the child, N.J.S.A. 30:4C-53.3(b), within forty-five days after the Division's removal of the child. N.J.S.A. 30:4C-58; see also Administrative Office of the Courts, Directive #04-10, p.4 (March 10, 2010), available at directive/2010/Dir_04_10.pdf. Subsequently, additional placement reviews through the use of permanency hearings are conducted by the Family Part within twelve months of the child's placement, and annually thereafter. N.J.S.A. 30:4C-61.2(a)(2).

By their very nature, orders entered following permanency hearings are interlocutory. An aggrieved party who seeks to challenge a trial court's interim order must move for leave to appeal in order to obtain appellate review. L.A., supra, 357 N.J. Super. at 165; R. 2:5-6. Here, T.W. never sought leave to appeal. Accordingly, we determine whether the dismissal of the Title Nine matter renders the issues presented moot.

"'An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) (quoting Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (citation omitted)), certif. denied, 201 N.J. 153 (2010).

"Consequently, if a party 'still suffers from the adverse consequences to her caused by [a] proceeding,' an appeal from an order in that proceeding is not moot." Id. at 261-62 (quoting Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 51 (App. Div. 2008), aff'd as modified on other grounds, 198 N.J. 382, 387 (2009)).

The court's review and approval of the Division's plan for the permanent care of a child effectuates "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999). Entry of a permanency order establishes the Division's goal for the child in placement and places the parent of the child in placement on notice the Division no longer intends to seek reunification. The hearing is not an adjudication of parental rights or the Division's responsibilities. The order does not adversely impact the constitutional or due process rights of parents. These orders, even when modifying the original permanency goal, do not relieve the Division of its obligation to extend services to the parents, coordinate visitation and transportation to the visits or release important information regarding the status of the child. Consequently, once the Title Nine action is dismissed, a Title Nine defendant cannot challenge any interim permanency orders that were entered, as there is no cause for relief.

The Division's voluntary dismissal of this action "'leaves the situation so far as procedures therein are concerned the same as though the suit had never been brought, thus vitiating and annulling all prior proceedings and orders in the case.'" A.P., supra, 408 N.J. Super. at 263 (quoting A.B. Dick Co. v. Marr, 197 F.2d 498, 502 (2d Cir.), cert. denied, 344 U.S. 878, 73 S. Ct. 169, 97 L. Ed. 680 (1952)). Accordingly, T.W.'s assertion of flawed procedural compliance is moot. The Division filed an action for guardianship, which is subject to different burdens and standards of proof. See N.J.S.A. 30:4C-15.1(a) (stating the four-pronged test to terminate parental rights). The Division's filing of a Title [Thirty] action and the entry in that action of an order regarding custody[,] . . . supersedes any orders entered in the Title [Nine] action[,]" A.P., supra, 408 N.J. Super. at 255, and moots the parent's appeal from dispositional orders, including a permanency order, in the withdrawn Title Nine action. T.W.'s "due process rights [are] fully protected by the trial [in] the Title [Thirty] action," id. at 264, as she has the opportunity to defend against the Division's claim that her parental rights should be terminated.

Nevertheless, because of the important nature of these proceedings, see Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), (holding appellate courts may consider allegations of errors not properly presented to the trial court if they "concern matters of great public interest"), certif. denied, 31 N.J. 554 (1960), and respecting a parent's "constitutionally protected right to maintain a relationship with their children[,]" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007), we add our review of T.W.'s arguments asserting improprieties occurred during the permanency hearing. See also N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 343 (App. Div. 2007) (declaring "[p]arental rights and ineffective assistance of counsel [are] matters of great public interest" justifying court review on the issues).

T.W. maintains she was denied "a properly-conducted permanency hearing" because the Division did not present testimony and she was not permitted to offer evidence to challenge the Division's proposed modification which she asserts was not appropriate for P.W. We are not persuaded.

The Family Part is guided by N.J.S.A. 30:4C-61.2 when conducting hearings to assure the safety and permanent care of a child placed outside his or her home by the Division. The matter is heard in a summary hearing, N.J.S.A. 30:4C-61, and the statute specifies all parties to whom notice of the proceeding must be given, which includes: the Division; the child; the parents, including a non-custodial parent or legal guardian; the temporary caretaker; any other person or agency whom the court determines has an interest in or information relating to the welfare of the child; the legal representatives of these parties; and the child's resource family, parent or relative who is caring for the child. N.J.S.A. 30:4C-61.2(b)(1) to (7).

The statute further directs:

c. The hearing shall include, but not necessarily be limited to, consideration and evaluation of information provided by the division and other interested parties regarding such matters as:

(1) a statement of the goal for the permanent placement or return home of the child and the anticipated date that the goal will be achieved;

(2) the intermediate objectives relating to the attainment of the goal;

(3) a statement of the duties and responsibilities of the division, the parents or legal guardian and the temporary caretaker, including the services to be provided by the division to the child and to the temporary caretaker;

(4) a statement of the services to be provided to the parent or legal guardian or an exception to the requirement to provide reasonable efforts toward family reunification in accordance with section 25 of [N.J.S.A. 30:4C-11.3]. Services to facilitate adoption or an alternative permanent placement may be provided concurrently with services to reunify the child with the parent or guardian;

(5) a permanency plan which includes whether and, if applicable, when:

(a) . . . .;

(b) the division has determined that family reunification is not possible and the division shall file a petition for the termination of parental rights for the purpose of adoption; or

(c) . . . . [N.J.S.A. 30:4C-61.2(c).]

The statute's provisions contemplate a review and evaluation of each interested party's position. N.J.S.A. 30:4C-61.2(b)(7). In light of the speed with which the first hearing is conducted, a permanency hearing is not designed as a fact-finding. There exists no Legislative suggestion requiring the Division to satisfy the statute's prerequisites through testimonial evidence. Such a possibility remains within the discretion of the trial judge, particularly when faced with conflicting evidence and credibility determinations that must be tested by the rigors of cross-examination. See R. 5:12-1(f) (granting a trial court the discretion to decide whether testimony is required in the face of material disputes of fact).

We also discern no error in the court's use of the report offered by the Division. Specifically, when reviewing a child's placement, the court must evaluate "material and relevant evidence." N.J.S.A. 9:6-8.46(c). The report, circulated prior to the hearing, was prepared by the Division and addressed the statutory requisites of N.J.S.A. 30:4C-61.2(c)(5). Moreover, the report was certified by the assigned caseworker, properly conforming to Rule 1:4-4(b).*fn2 We conclude the report was an admissible summary of the Division's interaction with the family along with evidence gathered to demonstrate T.W.'s long-standing cocaine dependence and substance abuse, as well as the adverse effects on P.W. See N.J.R.E. 1006 (allowing for the contents of "voluminous writings or photographs which cannot conveniently be examined in court may be presented by a qualified witness in the form of a chart, summary, or calculation"). We find no abuse of the reasoned exercise of the Family Part judge's discretion.

T.W. does not now, nor did she then, dispute the accuracy of the Division's presentation of facts, via the report, to advance the information gathered by the Division respecting its considerations impacting P.W.'s permanency goal. Also, the trial judge was aware of the court's prior findings of abuse and neglect resulting from T.W.'s stipulation.*fn3

Further, all parties were afforded the opportunity to present statements, evidence and arguments. In fact, C.S., who appeared at the hearing, sought permission to and was permitted to provide limited testimony regarding possible timeframes when he might be available to provide for P.W.'s care. T.W. did not request to provide testimony.

Also, we find facts in the record amply support the sufficiency of the trial court's findings in approving the permanency plan. Evidence of T.W.'s continued drug use, multiple relapses, and recent failed drug tests were uncontroverted. T.W. had attended several in-patient rehabilitation facilities yet, each time, she was unable to overcome her cocaine addiction once freed of the rigors of the structured program. Her relapses required P.W.'s repeated removal from her care, as it was profoundly unsafe for a child to remain in the care of a drug dependent parent.

Finally, T.W. contends the proceedings were defective because she was not afforded effective assistance of counsel. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007) (stating "the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution serves as a bulwark against the loss of parental rights without counsel being afforded"). T.W. suggests she was represented by five different attorneys throughout the litigation, who collectively failed to protect her rights by (1) allowing her to stipulate to her drug use while pregnant with P.W. resulting in a finding of abuse and neglect; (2) failing to insist on sworn testimony from witnesses during the permanency hearing; (3) failing to object to the admission of the Division's representations of the factual background of the Division's involvement with the family; and (4) failing to offer evidence on her behalf at the permanency hearing.

In reviewing a termination of parental rights matter, we apply the two-pronged test assuring criminal defendants are afforded the constitutional right to effective counsel, set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See also B.R., supra, 192 N.J. at 309. Defendants facing termination of their parental rights who assert ineffective assistance of trial counsel must prove counsel's performance was objectively deficient and but for counsel's unprofessional errors, there is a reasonable probability the result of the proceeding would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2065, 80 L. Ed. at 687. Bald assertions of ineffective assistance or attacks on counsel's trial strategy are insufficient to meet the requisite proofs.

Following our review, we determine T.W.'s argument lacks sufficient merit to warrant discussion in our written opinion.

R. 2:11-3(e)(1)(E).


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