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New Jersey Division of Youth & Family Services v. K.M.J.

Superior Court of New Jersey, Appellate Division

June 14, 2013

K.M.J. and M.A.W., SR., Defendants-Appellants. IN THE MATTER OF M.A.W., JR., minor.


Argued May 21, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-79-12.

Adrienne M. Kalosieh, Assistant Deputy Public Defender, argued the cause for appellant K.M.J. (Joseph E. Krakora, Public Defender, attorney; Jennifer Kurtz, Designated Counsel, on the brief).

Mary Potter, Designated Counsel, argued the cause for appellant M.A.W., Sr. (Joseph E. Krakora, Public Defender, attorney; Ms. Potter, on the brief).

Elizabeth S. Sherwood, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Sherwood, on the brief).

Maria Emilia Borges, Assistant Deputy Public Defender, argued the cause for minor M.A.W., Jr. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Borges, on the brief).

Before Judges Messano, Lihotz and Ostrer.


In these two appeals, consolidated for purposes of this opinion by our order dated February 15, 2012, we address challenges by defendants K.M.J. and M.A.W., Sr., the parents of M.A.W., Jr., to three Family Part orders, entered in the course of a Title 9 action. Defendants present various due process challenges and allegations of substantive error by the trial judge, resulting in the initial removal of their infant, M.A.W., Jr., and his continued placement under the custody, care and supervision of plaintiff the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the Division).[1] We have considered the claims raised by each defendant in their respective appeals. Following review, we conclude our determination on these issues would have no practical effect on an ensuing controversy because the Title 9 action was voluntarily dismissed by the Division prior to any finding of abuse or neglect, and a guardianship proceeding was conducted and resulted in the termination of defendants' parental rights. Consequently, the issues are moot and this appeal must be dismissed.

Defendants are the parents of three children: J.W., now six years old; A.W., now five years old; and M.A.W., Jr., now 20 months old. K.M.J. also has two older children from a prior relationship, D.W., now thirteen years old, and S.W., now twelve years old. The four older children were the focus of a separate Title 9 action, which was dismissed once the Division filed a complaint seeking guardianship and termination of parental rights. M.A.W., Jr. was born after that guardianship complaint was filed and this Title 9 matter was initiated.

The Division filed a guardianship complaint after approximately twenty referrals and more than ten years of the Division's involvement with K.M.J. and nearly five years of working with M.A.W., Sr. to address harmful behaviors adversely affecting the older children's health, safety and welfare, including alcoholism, explosive anger, criminal activity, substance abuse, domestic violence, lack of supervision and emotional support, general neglect, and possible exposure to pornography and/or sexual activity. The children's removal from defendants' care occurred after repeated violations of Family Part orders prohibiting M.A.W., Sr. from being in the home and the entry of final restraining orders under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The parents remained together, continuing their toxic relationship, and M.A.W., Jr. was born.

Prior to the baby's discharge from the hospital, the Division filed an order to show cause and Title 9 complaint to obtain an order for the care, custody, and supervision of M.A.W., Jr. pursuant to N.J.S.A. 9:6-8.21. The complaint alleged defendants were high risk parents and the infant's "physical, mental, or emotional condition . . . [wa]s in imminent danger of becoming impaired as the result of the failure of his parents to exercise a minimum degree of care[.]" Much of the support for the Division's allegations was contained in documents incorporated by reference and attached as exhibits to the pleading. In addition to reciting past parental actions and omissions constituting abuse and neglect of the four older children, the Division incorporated all prior protective services complaints it had filed, its guardianship complaint, and an April 25, 2011 forensic team mental health assessment of defendants conducted by their counselors from the Center for Evaluation and Counseling (CEC).

A hearing attended by defendants, represented by counsel, the Division and Law Guardian was held the same day. The Division argued protective custody for M.A.W., Jr. was warranted because of defendants' lengthy involvement with the Division, which culminated in a complaint for guardianship of the four older children. The Division relied on findings made during the prior proceeding held on April 28, 2011, which identified past harmful behaviors, including minimal compliance with services and failure to present a parenting plan. The Law Guardian also urged protective custody be awarded to the Division, emphasizing:

[I]n these circumstances parents don't start with a clean slate. . . . [T]he law requires you consider any abuse or neglect suffered by other children . . . at the hands of the parents. . . . [P]lacing . . . a fragile newborn in the hands of parents who have shown such a lack of progress and understanding [of] the concerns that led to the removal of their other children would place the child at significant risk of harm.

K.M.J. argued things had changed since the court's findings on April 28, 2011: she passed a substance abuse screening and the baby was born free of substance exposure; she was completing parenting training; she had safe, stable housing; she had not been deemed unfit to parent; and she was willing to allow the Division's supervision and participate in in-home services if the baby were placed in her custody. She objected to consideration of the CEC evaluation because the practitioners were not psychologists, and their information was not current because defendants had voluntarily enrolled and were attending couples counseling.

M.A.W., Sr. maintained he too had changed. Since April, he enrolled in anger control therapy, which he attended as frequently as his work schedule allowed, the couple was attending counseling, and he successfully engaged the older children during visitation. M.A.W., Sr. further argued the Division offered no specific allegation of harm toward M.A.W., Jr., and urged the baby be returned home to his parents, who were residing together.

The judge considered the prior findings that defendants, individually and collectively, were incapable of parenting the four older children, which she found "raise[d] a significant level of alarm." Also, the judge was familiar with the family because she was assigned to oversee the guardianship action. The judge concluded, after viewing the circumstances as a whole, including defendants' past history with respect to the other children, the broken agreements for the parents to live separately, and the parents' only recent commitment to services, "it would be irresponsible of me to permit this child to stay in the home with these parents[.]" The judge stated:

[B]ased upon the prior history in this case it's contrary to the welfare of this child to continue in the residence with these parents due to the fact there's a Guardianship litigation pending against the other children. And . . . placing the newborn with them would expose the child to unacceptable and substantial risk of harm based upon the prior substantiations as to the other children, and the ongoing Guardianship case with regard to the other children.

The judge entered the August 23, 2011 order granting the Division temporary custody, care, and supervision of M.A.W., Jr., "due to the pending guardianship litigation and the Division's assessment that the parents are unable or unwilling to provide a safe and stable environment for [the four older children, ]" subject to defendants' supervised visitation. The order noted "placing the newborn with [defendants] would expose the child to an unacceptable and substantial risk of harm based on the significant and well-documented history of abuse and/or neglect of the children."

The return date of the order to show cause was September 20, 2011. Defendants appeared along with their attorneys. The Law Guardian moved to include M.A.W., Jr. in the pending guardianship proceeding, asserting further delay was not in the child's best interest. K.M.J. moved for all the children to be returned to her custody. She admitted M.A.W., Sr. and she resided together, claiming the Division stated it made no difference; she asserted a willingness to find alternate housing if ordered to do so. Following the hearing, an order was entered continuing M.A.W., Jr. in the care, custody and supervision of the Division, and setting forth the Division's transportation obligations to aid defendants' attendance at services and visitation.

A case management conference was held on December 8, 2011. The Division moved to add M.A.W., Jr. to the guardianship litigation, suggesting they sought to terminate parental rights. The Law Guardian agreed, stating the older children wanted to stay in the care of their grandparents and none of them desired to return to their parents.

Defendants objected. K.M.J. asserted she posed no harm to the infant or any of her children and had done everything the Division asked of her; she had finished parenting classes, presented no risk for substance abuse, attended individual therapy, participated in couples counseling, and attended every visitation session with the children. M.A.W., Sr. challenged the facts asserted by the Division substantiating he had abused and/or neglected the children.

Having heard the parties, the judge observed, until the scheduled guardianship trial

the parents have time to address some of the[ir] problems. Services will be in place, obviously, concurrent planning is . . . the other goal in this case. The Division plans for adoption, but they also are required to keep services in place to plan for reunification if the parents can establish that they can maintain a safe and healthy home for these children. And so far they haven't done it, and they have several months to do that. That means jobs, that means housing, it means mental health addressed, it means the ability to provide a safe and healthy environment. Substance abuse, domestic violence, everything has to be addressed, and jobs, and an ability . . . to raise these children. So, until I see . . . some demonstrated [progress], . . . not just going to a couple of therapy sessions and conning everybody. And that's what I see going on here. I need real progress, and that's what I want to see. And . . . if before April . . . I see that, I may be sympathetic to some of the defendants['] positions here. But I don't see it [now].

The case management order continued the status of custody and services then in place.

On December 9, 2011, the Division filed an amended complaint for guardianship, adding M.A.W., Jr. to the pending action seeking to terminate parental rights. At the Division's request, on December 22, 2011, the judge dismissed the Title 9 litigation "because . . . a complaint for the Termination of Parental Rights ha[d] been filed[.]" That same day K.M.J. called 9-1-1, reporting M.A.W., Sr. returned home drunk. Police responded and saw M.A.W., Sr. exiting from the rear door. K.M.J. asserted he had called her a "bitch" and a "whore" and stated he would "bury [her] where nobody would find [her]."

Defendant appealed from the August 23, 2011, September 20, 2011, and December 22, 2011 orders. Defendants moved to stay the guardianship trial pending appellate review, which the trial judge denied in a March 20, 2012, written opinion. M.A.W., Sr. requested this court review whether a stay should be entered. The emergent request was denied.

The guardianship trial as to all five children was conducted on April 11, 19, 20, and 23, and May 7, and 8, 2012. On July 3, 2012, the Family Part ordered the termination of defendants' parental rights and awarded the Division guardianship of all five children for the purpose of securing their adoption. Defendants' separate appeals from the judgment of guardianship are currently pending under Docket Nos. A-6298-11 and A-6301-11.

In this matter, defendants argue they were denied due process during the Title 9 proceedings. K.M.J. cites the fact that the August 21, 2011 complaint was not verified; no evidentiary fact-finding hearing was held; counsel made material factual representations accepted by the court in lieu of sworn testimony from witnesses; and the Division failed to make reasonable efforts to prevent removal. She also contends her child should not have been removed without an evidential hearing and the Division's dismissal of the Title 9 action rendered the order granting it temporary custody, care and supervision of M.A.W., Jr. void ab initio.

M.A.W., Sr. seeks reversal of the identified orders, contending the complaint was unverified and inadequate to allow the Division to obtain temporary custody of M.A.W., Jr., and the court erred by not requiring the Division to present evidentiary proof during a fact-finding or dispositional hearing proving M.A.W., Jr. was an abused or neglected child. Finally, he avers his counsel was ineffective in violation of his fundamental constitution rights.

The essence of defendants' claims is the Division improperly gained custody, care and supervision of M.A.W., Jr. However, defendants did not raise any of these issues during the Title 9 proceeding. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding as a general rule "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest") (internal quotation marks and citations omitted)). They also would have had another opportunity to advance these assertions during the guardianship proceeding.

We cannot ignore the events that followed the dismissal of this Title 9 action, including trial on the Division's complaint, which resulted in the termination of defendants' parental rights and a July 3, 2012 judgment awarding guardianship to the Division. Therefore, any relief from the Title 9 orders, even if appropriate, will have no effect.

"'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). "It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed." Cinque v. N.J. Dep't of Corrs., 261 N.J.Super. 242, 243 (App. Div. 1993). "'[C]ourts will not decide cases in which the issue is hypothetical[.]'" Ibid. (quoting Anderson v. Sills, 143 N.J.Super. 432, 437 (Ch. Div. 1976)).

"[I]f a party 'still suffers from the adverse consequences . . . caused by [a prior] proceeding, ' an appeal from an order in that proceeding is not moot." A.P., supra, 408 N.J.Super. at 262 (quoting N.J. 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)).

Here, no order adjudicating whether defendants committed an act of abuse and neglect was entered. Consequently, "dismissal of a Title 9 action without 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 and neglect." Ibid. Challenges to the Division's legal custody of M.A.W., Jr., along with any other due process challenges were subjects to be raised in the guardianship matter. Id. at 264. Accordingly, these issues raised in the context of a terminated proceeding are moot, requiring that we dismiss this appeal.

We add these brief observations and comments. Defendants have correctly pointed out procedural irregularities present in the initial hearing, which resulted in the order granting the Division temporary custody. Although we reject the premise the court erred in that decision, we briefly address what appear to be irregularities, which should be avoided.

Unlike the prior complaints filed regarding the older children, this Title 9 complaint was not accompanied by a certification in lieu of oath verifying the information as contained in the Division's official case record, kept in the regular course of business. Pursuant to Rule 5:12-1(a), a complaint for removal under either Title 9 or Title 30 is presented in a summary proceeding governed by Rule 4:67, which requires the complaint be "verified by affidavit made pursuant to R[ule] 1:6-6[.]" We infer from the record that the urgency driving the Division's filing caused this oversight. In any event, we note no harm actually resulted to defendants because the judge's factual findings resulting in the order enjoining the infant's return to defendants' home were based on the evidential record, not an unverified complaint. The record is clear; the judge specifically considered the April 28, 2011 permanency adjudication and her recent orders entered in the guardianship action. She also considered the assertions advanced by defendants regarding their recent efforts.

Defendants' challenge to the CEC report is meritless. Rule 5:12-4(d) allows the Division to submit into evidence, pursuant to N.J.R.E. 801(d) and 803(c)(6), reports by staff personnel, professional consultants, law enforcement records, school and medical records, or "other professional reports, containing information relevant to the child's health and safety or the parent's fitness[.]" N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 259-60 (App. Div. 2002). The court may consider these documents as prima facie evidence, subject to rebuttal. R. 5:12-4(d); see also N.J.S.A. 9:6-8.46a (stating such reports "shall be prima facie evidence").

Also, contrary to defendants' suggestion, the court's inquiry at this stage is not limited to examining only one snapshot of time -- the date of the hearing -- turning a blind eye to past years of harmful behavior committed by parents whose older children are in the Division's custody. The judge must determine whether the child's "life, safety, or health will be in imminent danger" if released to his parents. R. 5:12-1(d). If the court finds "that there is reasonable cause to believe a child has been subjected to or will be at risk of abuse or neglect absent such relief[, ]" it may confer interim care, custody, and/or supervision on the Division. Ibid. See also N.J. Div. of Youth & Family Servs v. F.M., 211 N.J. 420, 443 (2012).

Defendants also contest the failure of the court to conduct an evidentiary hearing. They argue the court's factual findings were flawed because neither the Division's caseworker nor the parents presented testimony during the August 23, 2011 hearing.

Sworn testimony is permissible, and in many cases preferable, but it is not mandatory. See J.Y., supra, 352 N.J.Super. at 260. Certainly, when presented with disputed testimony offered as the basis of the court's evidential findings, such statements must be under oath. Ibid. However, here, the judge accepted the prior court findings and professional reports offered by the Division, and also considered the defendants' refutations and additional representations regarding their current rehabilitative efforts. A judge need only be "satisfied . . . the evidence adduced provides a sufficiently reliable basis upon which to make the required findings." Ibid. (citing N.J.S.A. 9:6-8.46).

Defendants and their counsel were present and given the opportunity to present any evidence for consideration to refute the Division's proffers or present their position the child would be safe in their care. They "had notice and an opportunity to be heard — the very essence of due process." F.M., supra, 211 N.J. at 444-45 (citing In re Commitment of E.D., 183 N.J. 536, 548 (2005)). At no time did they request an evidentiary hearing.

We find the trial judge reflected on the progress asserted by defendants since the permanency adjudication made almost four months earlier. She weighed all facts, finding the additional positive steps by defendants were insufficient to overcome the prior years of established harmful conduct that had been shown to adversely impact the older children and the court's recent finding they could not safely and properly care for the four older children. The judge grounded her decision on admissible evidence, finding "'reasonable cause to believe a child has been subjected to or will be at risk of abuse or neglect absent such relief[.]'" F.M., supra, 211 N.J. at 443 (quoting R. 5:12-1(d)). She discerned defendants could not have overcome the parental deficits noted just months before and concluded the two-day-old infant's safety required conferring interim care, custody and supervision upon the Division.

The appeal is dismissed as moot.

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