DCPP VS. A.C. AND M.E., IN THE MATTER OF J.C. AND V.E. (FN-15-0044-16, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2081-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.C.,

Defendant-Appellant,

and

M.E.,

Defendant.
______________________________________

IN THE MATTER OF J.C. and V.E., minors.
______________________________________

Submitted March 19, 2018 - Decided September 11, 2018

Before Judges Messano, Accurso and Vernoia.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FN-15-0044-16.
 Joseph E. Krakora, Public Defender, attorney for
appellant (Victor E. Ramos, Assistant Deputy Public
Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Cynthia McGeachen, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Linda Vele Alexander,
Designated Counsel, on the brief).

PER CURIAM

In this protective services matter, defendant A.C. appeals from a now

final June 8, 2016 order, entered after a summary hearing pursuant to N.J.S.A.

30:4C-12 (Section 12), reflecting her family's continued need of services and

extending the Division of Child Protection and Permanency's care and custody

of her two minor children. The order became final in December 2016 when

the Division dismissed the Title 30 protective services case when it filed a

guardianship complaint against defendant.1

Defendant claims the trial court never acquired jurisdiction to permit the

Division to direct services and retain care and custody of the children because

1
See N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 164-65
(App. Div. 2003) (distinguishing an interlocutory order finding abuse or
neglect from a final and appealable dispositional order).
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2
her stipulation to the need for both was the result of ineffective assistance of

her counsel. She further claims she was subsequently denied notice of the

June 2016 summary hearing, and that the trial court's finding at the hearing

that her family continued to be in need of services and extending the Division's

care and custody of the children was not supported by adequate, substantial,

credible evidence in the record.

We conclude the Division's filing of the guardianship action effectively

mooted this appeal, see N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J.

Super. 252, 261-64 (App. Div. 2009), and that defendant must bring her

challenge to the Family Part's jurisdiction in the guardianship action, or risk its

loss through operation of laches, see N.J. Div. of Youth & Family Servs. v.

F.M., 211 N.J. 420, 445-46 (2012).

Defendant's two young children, a girl almost three and another girl just

three months at the time of these events, were the subject of an emergency

removal in August 2015 after another domestic violence incident between

defendant and her partner M.E., the father of the infant. Defendant had

recently obtained a temporary restraining order against M.E. after she alleged

he pushed her, punched her and chased her around their apartment with a

knife, which he plunged into the door of the bedroom in which she had taken

A-2081-16T1
3
refuge with the children. Defendant admitted to the Division's intake workers

that she used the baby as a shield on that occasion, as she had on others,

because M.E., whom she claimed was abusing steroids and Suboxone, would

not hit her when she was holding his daughter.

After defendant dismissed the temporary restraining order, the Division

arranged for her temporary housing at a local motel, and defendant agreed to a

safety plan forbidding M.E. to have any contact with the children. Defendant

also agreed to undergo a psychological evaluation, meet with the Division's

domestic violence liaison and contact Providence House for domestic violence

services. The Division received another referral days later that defendant was

"constantly screaming and cursing" at her toddler, and that the child had fallen

into the motel pool when defendant left her in the care of other residents.

Defendant denied yelling at the toddler but admitted she fell into the pool after

defendant asked other residents to watch the toddler when defendant went to

feed the baby. Defendant signed another safety plan agreeing to never leave

the child alone near the pool, and the Division provided her an emergency 911

cell phone to use in the event M.E. ever appeared at her residence.

The Division removed the children several days later, after defendant

was arrested for simple assault of M.E. following an argument at the motel that

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4
turned physical. M.E. claimed defendant picked him up to go to a bar in

Seaside Heights. He claimed defendant flirted with other men at the bar,

prompting an argument between the two of them, after which he left for the

motel where defendant's great aunt was caring for the children. When

defendant returned to the motel, they continued to argue and M.E. claimed

defendant struck him on the head. Police, who noted defendant appeared

under the influence of alcohol, arrested her after seeing proof of injury.

Defendant's story was different. She denied picking up M.E. Instead,

she claimed he just showed up at the bar, where he was eventually escorted out

by bouncers. She also denied she told M.E. where she lived, speculating that

one of his friends must have seen her car at the motel. She told the Division

workers she returned to the motel only after her great aunt appeared at the bar

and told her M.E. was at the motel with the children, which defendant knew

was a violation of the safety plan. She claimed she struck M.E. in self-defense

only after he pushed her and she felt threatened.

After the emergency removal, the Division filed a complaint detailing

those events and defendant's history with the Division, including her prior

substantiation for neglect of another child. That finding stemmed from

defendant and a partner being under the influence of drugs in a car with

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5
defendant's son in 2010, resulting in defendant's arrest for possession.

Defendant's rights to her son were terminated in 2012, and he was adopted by

defendant's mother. Defendant acknowledges she formerly had a ten-bag-a-

day heroin habit. She has been on methadone maintenance for several years,

including throughout these proceedings.

The Division also noted in the complaint that the month before

defendant obtained her temporary restraining order against M.E., the Ocean

County Board of Social Services made a referral to the Division regarding

defendant's ability to care for her newborn. The referral was prompted by staff

having observed defendant "nodding off" while visiting the office with the

baby. The Board expressed concern that defendant might be overmedicated.

An investigation revealed defendant, in addition to methadone, had also

been prescribed Klonopin and Zoloft. At the Division's request, both

defendant and M.E. attended substance abuse evaluations. M.E. was referred

for an extended assessment. Although the Division's count of defendant's

Klonopin did not match the amount she should have had in her possession, she

tested negative for non-prescribed substances and the Division closed the case

against her. The Division did not refer defendant for treatment as she was

already in treatment.

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6
 In its complaint, the Division sought an order for care and custody of the

children under Title 9 and Title 30. At the initial hearing on August 25, 2015,

three days after the removal, defendant, through her counsel, consented to

jurisdiction and did not oppose the Division's application, but reserved the

right to do so on the return date. The court found the Division "had reasonable

cause to remove the children from the household based on allegations of both

substance abuse and violence in the household." On the return date, the court

continued custody, care and supervision with the Division and the children

were continued in placement with defendant's sister. The transcript from that

hearing is not in the record.

When the matter returned for a Title 30 summary hearing on December

21, 2015, counsel for the Division advised that defendant and M.E. "have

signed off on the Title 30 summary order." That order, which defendant and

her counsel signed consenting to both its form and entry, provides, among

other things, that the court finds "[b]y consent, based on the testimony set forth

on the record and having reviewed the defendant's voluntary admission(s),

that" defendant "knowingly, willingly and voluntarily" agreed to give up her

"right to a summary hearing" and that "[h]er family is in need of services due

to domestic violence concerns." (Emphasis in original.)

A-2081-16T1
7
 Counsel for defendant argued the Division should continue its care and

supervision of the children but return custody to defendant, or that the children

be placed with defendant's mother, the adoptive parent of defendant's older

child, and defendant allowed liberal, supervised visitation in order to assist her

mother with all three children. Counsel argued the Title 30 order was based on

domestic violence issues, "[t]hat's why there's a continued need for services."

Acknowledging that defendant "does have a drug history," counsel contended

the court report and the various attachments note that
she is in [Jersey Shore Addiction Services], and she's
doing very well in that program. She is complying
with the court services, and we are simply asking that
she be allowed to have her children back; that it be
supervised by her mother.

Defendant's counsel acknowledged the psychologist who evaluated

defendant opined in an attachment to the court report that placing the children

with defendant's mother "does not seem the best arrangement." Counsel

argued, however, that the expert's opinion was based on an incomplete

understanding of defendant's mother's position. Counsel contended "[t]he

maternal grandmother is ready, willing and able to care for them. She just

needs a little help, and that would be from my client." Counsel relied on that

portion of the psychologist's opinion recommending defendant "engage in

counseling to address the P.T.S.D. and continue to wean off the methadone and

A-2081-16T1
8
to avoid further concerns over sedation and fatigue, and then re-explore the

maternal grandmother's home as an option," as supportive of defendant's

request to "change to the care and supervision and just allow the maternal

grandmother to supervise [defendant's] contact."

Having heard argument and after reviewing the court report and its

attachments, the court denied defendant's request to return custody to her or

her mother as not in the children's best interests at that time, and continued

placement with defendant's sister. The judge, however, ordered the expedited

psychological evaluation of defendant's mother, which the Division requested

in order to assess her for placement, and which was supported by the Law

Guardian, in order to determine quickly whether such a placement would be

appropriate for the children, and if so, that it be effected as soon as possible.

The judge ordered that defendant continue in substance abuse treatment and

that she be referred for services as recommended by the evaluating

psychologist, including individual counseling. The judge further ordered that

defendant continue receiving domestic violence services at Providence House.

Following a compliance hearing in March 2016 that maintained the

status quo, the court conducted another Title 30 summary hearing on June 8,

2016. Although defendant maintains she was not provided notice that a

A-2081-16T1
9
summary hearing would occur on that date, and the Division concedes the

order entered after the March compliance hearing checked the box noting the

next hearing would be a compliance review, not a summary hearing,

defendant's counsel did not object to proceeding on June 8. Indeed, all counsel

appeared prepared to participate in a summary hearing on that date and there is

no indication otherwise in the transcript.

Specifically, after counsel made their appearances on the record, the

judge stated she had "the matter scheduled for a Title 30 summary hearing

today." The deputy attorney general announced the Division was seeking "to

continue jurisdiction based upon a need for services as to the mother,

[defendant]," and the judge asked defendant's counsel whether defendant was

"going to consent that the Division needs to continue to be involved i n this

case, or do we have to have a summary hearing." When defense counsel

replied that "[w]e'd need a summary hearing in this matter," the judge directed

the Division to "call your witness," and the permanency worker was sworn in.

The worker testified the Division was involved with defendant's family

because the children were in placement "as a result of domestic violence issues

and some substance abuse concerns" as to both parents. The worker made

clear the case was not one for abuse and neglect, and services were being

A-2081-16T1
10
offered to correct the conditions that led to the children's placement. She

testified the Division was providing therapeutic and supervised visitation,

substance abuse evaluations and individual counseling.

The worker testified defendant had successfully completed domestic

violence counseling and was compliant with individual counseling. She

testified she was "not aware" of whether defendant and M.E. continued in a

relationship, although she believed they no longer lived together.

The court admitted the worker's report without objection, which noted

defendant was administratively discharged from Jersey Shore Addiction

Services in April 2016 following five positive urine screens over four weeks in

March. Defendant refused a random screen on April 19. The worker testified

defendant's screens on May 31 and June 3 were negative, as was a random

screen on May 27. The worker's report also noted that M.E. was granted a

temporary restraining order against defendant on May 5. The report noted

"[t]he circumstances surrounding this restraining order are unclear" and further

noted the temporary order was dismissed when M.E. failed to appear for a

hearing on a final order.

Following the hearing, the judge found the Division established by a

preponderance of the evidence that the children required the continued care

A-2081-16T1
11
and supervision of the Division, that defendant remained unable to adequately

care for the children based on substance abuse and domestic violence between

defendant and M.E., and that the family continued to be in need of services. In

an amplified statement of reasons pursuant to R. 2:5-1(b), the court provided a

lengthy history of the matter and explained the worker testified it was in the

children's best interests to continue the matter to allow defendant to complete

recommended services and the court report "indicated there were safety and

risk factor of substance abuse and domestic violence, which continued to be

issues."

The court conducted a permanency hearing on August 2, 2016, at which

it approved the Division's plan for termination of parental rights followed by

adoption. The judge noted defendant was arrested for possession of marijuana

on June 23, 2016, coinciding with a hair follicle test, which defendant

contested, evidencing use of marijuana. The judge also noted defendant had

not completed substance abuse treatment and "recently left a visit with her

children, and then had a physical altercation with [M.E.] in the parking lot of

the Division office." Following the filing of a complaint for guardianship, the

court dismissed the Title 30 proceeding in a dispositional order on December

12, 2016. This appeal of the June 8, 2016 summary hearing order followed.

A-2081-16T1
12
Defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT'S DETERMINATION UNDER
N.J.S.A. 30:4C-12 THAT THE FAMILY
CONTINUED TO BE IN NEED OF SERVICES
REQUIRING THE CONTINUATION OF THE
CHILDREN IN THE CUSTODY, CARE, AND
SUPERVISION OF DCPP WAS NOT SUPPORTED
BY ADEQUTE SUBSTANTIAL CREDIBLE
EVIDENCE IN THE RECORD. (RAISED BELOW).

POINT II

A.C. WAS DENIED HER DUE PROCESS RIGHT
TO TIMELY AND ADEQUATE NOTICE OF
DCPP'S BASIS FOR THE JUNE 8, 2016 SUMMARY
HEARING. (NOT RAISED BELOW).

POINT III

THE TRIAL COURT DID NOT ESTABLISH
PROPER JURISDICTION OVER THE MATTER TO
ALLOW DCPP TO RETAIN CARE CUSTODY AND
SUPERIVISION OF THE CHILDREN OR TO
DIRECT SERVICES GIVEN THE INADEQUACY
OF THE ADMISSION OBTAINED AT THE
DECEMBER 21, 2015 SUMMARY HEARING THAT
RESULTED FROM THE INADEQUATE
REPRESENTATION OF A.C.'S TRIAL COUNSEL
THAT DAY. (NOT RAISED BELOW).

A. DCPP's Defective Stipulation and The Trial
Court's Inadequate Jurisdiction.

B. A.C.'s Trial Counsel's Ineffective
Assistance.

A-2081-16T1
13
 The Division argues this appeal is moot because the only practical effect

of the summary order extending the Division's care, supervision and custody of

defendant's daughters and reflecting her family's continued need of services "is

that her children were not in her custody while the [protective services

proceeding] was pending." The Division asserts that as current and future

custody determinations will be made in the pending guardianship action,

defendant "faces no ongoing consequences from the [o]rder on appeal."

"Mootness is a threshold justiciability determination rooted in the notion

that judicial power is to be exercised only when a party is immediately

threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311

(App. Div. 2010). "An issue is 'moot' when the decision sought in a matter,

when rendered, can have no practical effect on the existing controversy."

Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div.

2006) (internal quotation marks and citation omitted). If, however, "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." A.P., 408 N.J. Super.

at 262 (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)).

A-2081-16T1
14
 Judged by those standards, we agree with the Division the matter is

moot. The Division instituted this action seeking the temporary care, custody,

and supervision of defendant's two daughters pursuant to N.J.S.A. 30:4C-12

and N.J.S.A. 9:6-8.21 to -8.73. See N.J. Div. of Youth & Family Servs. v. I.S.,

214 N.J. 8, 31 (2013) (noting "the Division usually pleads Title 9 and Title 30

claims concurrently in order to facilitate the efficient processing of assistance

to the family"). It never alleged defendant abused or neglected either child.

The Title 30 protective services case was dismissed, following the filing

of a guardianship complaint, without any finding other than the best interests

of the children required the Division to assume temporarily their care,

supervision and custody pursuant to Section 12. See I.S., 214 N.J. at 33

(explaining that Section 12 "provides the means for the Division to effectuate

services to children in need when a parent does not consent to the Division's

supervision, care, or custody"). The disposition order entered in this

protective services case based on a finding under Section 12 thus has none of

the adverse consequences of a final order of disposition based on a finding of

abuse or neglect. See A.P., 408 N.J. Super. at 262-63 (explaining the adverse

consequences to a parent of a final order of disposition entered under N.J.S.A.

A-2081-16T1
15
9:6-8.50 through N.J.S.A. 9:6-8.58, including inclusion of the parent's name in

the Central Registry).

We acknowledge the trial court's finding under Section 12 could form

the basis of jurisdiction in a guardianship case, as it establishes one of the five

statutory grounds for instituting an action to terminate parental rights under

N.J.S.A. 30:4C-15.2 See N.J.S.A. 30:4C-15(c) (permitting the filing of a

petition to terminate parental rights when "it appears that the best interests of

any child under the care or custody of the division require that he be placed

under guardianship"). Although that might suggest a continuing adverse

consequence to defendant, she remains free to contest the Division's continued

care and custody of the children, and thus the guardianship court's jurisdiction,

in the guardianship case. Cf. N.J. Div. of Youth & Family Servs. v. R.D., 207

N.J. 88, 120-21 (2011) (explaining the limited preclusive effect of Title 9

determinations in any subsequent and related guardianship proceeding). As

Justice LaVecchia explained in I.S., a protective services order entered

pursuant to Section 12 is only intended to be temporary and requires periodic

review by the court. N.J.S.A. 30:4C-12; see also I.S., 214 N.J. at 37; N.J. Div.

2
The guardianship complaint is not included in the record, and we are
unaware of the asserted basis of jurisdiction in that matter.
A-2081-16T1
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of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 267-68 (App. Div.

2011).

Indeed, as our Supreme Court has warned that a parent failing to contest

the Division's authority " to exercise 'care or custody,' . . . at or about the time

of the filing of the guardianship petition" risks losing the opportunity to do so

by operation of laches, F.M., 211 N.J. at 445-46, an appeal of a summary order

under Section 12, even if successful, may well be a Pyrrhic victory. The

Court's directive in F.M. is clear: "[i]f there is to be a challenge to [DCPP's]

very right to proceed with a termination-of-parental-rights hearing, it must

come before the hearing." Id. at 445. As Justice Albin explained, even were

there merit to a claim that the Division lacked proper "care or custody" of a

child at the time it filed its guardianship complaint, "it would be questionable

public policy to upend a properly conducted guardianship hearing at which the

family court has fairly found that termination of parental rights is in the best

interests of the children." Id. at 446.

Any decision of ours in defendant's favor on the care and custody

question would likely be similarly ineffective "to upend a properly conducted

guardianship hearing" culminating in the termination of defendant's parental

rights to her daughters for those same reasons of public policy. Thus it is

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imperative that defendant, and indeed any parent wishing to challenge the care

and custody the Division obtained of his or her child in a protective services

proceeding ending with the filing of a guardianship complaint, pursue that

challenge in the only case where success will matter — the subsequent

guardianship. Accordingly, that the trial court's summary order in this

protective services case could form the basis of jurisdiction in the guardianship

proceeding is not a sufficiently adverse consequence to make defendant's

appeal of that order justiciable. See A.P., 408 N.J. Super. at 262.

In sum, this case is moot because any decision we would make could

have no practical effect on the temporary care and custody orders entered

under Section 12 in the Title 30 protective services case, and any adverse

consequence defendant might suffer from those orders in any subsequent

guardianship proceeding can, and indeed must, be addressed in that

proceeding. Having reviewed the record, we are convinced that none of the

other issues defendant raises is of such substantial public importance and so

unlikely to recur in a live controversy as to compel our consideration of the

appeal on the merits. See De Vesa v. Dorsey, 134 N.J. 420, 428-29 (1993).

Appeal dismissed as moot.

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