January 7, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
L.P. AND S.P.,
DEFENDANTS-APPELLANTS. IN THE MATTER OF A.F.P., N.P., G.P., M.P. AND A.P., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-23-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012 -
Before Judges Fuentes, Grall and Hayden.
Defendants L.P. and S.P. appeal from a December 8, 2006 Family Part order, which found, pursuant to N.J.S.A. 9:6-8.21, that both defendants had abused and neglected their five minor children. Because we conclude that defendants did not file notices of appeal within the time prescribed by Rule 2:4-1, we dismiss the appeals.
The record shows that, on August 18, 2006, the New Jersey Division of Youth and Family Services (DYFS) filed a Title Nine*fn2 complaint against L.P. and S.P. for abuse and neglect of defendants' five minor children, A.F.P., N.P., G.P., M.P., and A.P., and obtained custody of the children. After a three-day fact-finding hearing, the trial judge issued an oral decision and an order on December 8, 2006, finding that both L.P. and S.P. had abused or neglected their children, N.J.S.A. 9:6-8.21(c)(4)(b), and that L.P. had sexually abused A.P., N.J.S.A. 9:6-8.21(c)(3). He also ordered the parents to participate in services to be reunified with the children and ordered DYFS to retain custody.
On November 8, 2007, the judge issued an order terminating the Title
Nine litigation. DYFS had recently filed a Title Thirty*fn3
complaint requesting guardianship of defendants' minor
children and termination of their parental rights under N.J.S.A.
30:4C-15. About seventeen months later, the judge changed the plan
from termination of parental rights to reunification and dismissed the
Title Thirty complaint without prejudice on April 23, 2009. At that
time, the Title Nine complaint was re-opened to effectuate the
reunification plan. On May 18, 2011, the trial judge entered an order
awarding L.P. and S.P. custody of A.F.P., G.P., M.P., and
N.P.,*fn4 and terminating the Title Nine litigation.
Both parents now appeal the December 8, 2006 findings of abuse and
DYFS and the Law Guardian contend that defendants' appeals are untimely under Rule 2:4-1(a) and Rule 2:4-4(a). Defendants argue that the time to appeal the 2006 order started running after the Title Nine litigation closed again in 2011.
Under Title Nine, "[a]n appeal may be taken as of right from any final order of disposition and from any other final order made pursuant to this act." N.J.S.A. 9:6-8.70. We have previously explained that a "final order" under this provision means "an order which disposes of 'all issues as to all parties.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 164 (App. Div. 2003) (quoting Hudson v. Hudson, 36 N.J. 549, 553 (1962)). See also R. 2:2-3. Although fact-finding orders by themselves do not meet this definition of "final order," a final dispositional order following the fact-finding is appealable "as of right." L.A., supra, 357 N.J. Super. at 164.
Under Rule 2:4-1(a), appeals must be taken within forty-five days of the entry of a final order. However, we may extend the time to file an appeal up to thirty days, "on a showing of good cause and the absence of prejudice," but only "if the notice of appeal . . . was in fact served and filed within the time as extended." R. 2:4-4(a). We do not have the authority to extend the time for appeal after expiration of that thirty-day period. See Cabrera v. Tronolone, 205 N.J. Super. 268, 271-72 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986).
We agree with DYFS and the Law Guardian that defendants' appeals here are untimely under Rule 2:4-1(a) and Rule 2:4-4(a). The fact-finding order entered on December 8, 2006 was not a final order as it did not dispose of all issues as to all parties. L.A., supra, 357 N.J. Super. at 164. However, when the Title Nine litigation in which this adjudication occurred terminated on November 8, 2007, the order disposed of all Title Nine issues as to all parties. Consequently, the forty-five-day time limit for appealing the December 8, 2006 fact-finding order began running no later than November 8, 2007 and expired on December 24, 2007. Defendants did not file within thirty days for an extension. Hence, the appeals were untimely.