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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

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
v.
K.M.J. and M.A.W., SR., Defendants-Appellants. IN THE MATTER OF M.A.W., JR., minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

PER CURIAM

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 ...


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