Dcpp v. O v. in the Matter of K.V. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-0926-23
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
O.V. (deceased),
Defendant.
_________________________
IN THE MATTER OF K.V.,
a minor.
_________________________
Argued March 6, 2024 – Decided July 10, 2024
Before Judges Sumners and Smith.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Chancery Division, Family Part,
Passaic County, Docket No. FN-16-0092-20.
Anne E. Gowen argued the cause for appellant J.F.
(Legal Services of New Jersey, attorneys; Anne E.
Gowen, Mary M. McManus, and Sylvia L. Thomas, on
the brief).
Renee Greenberg, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Donna Arons, Assistant Attorney
General, of counsel; Renee Greenberg, on the brief).
Noel C. Devlin, Assistant Deputy Public Defender,
argued the cause for minor (Jennifer Nicole Sellitti,
Public Defender, Law Guardian, attorney; Meredith
Alexis Pollock, Deputy Public Defender, of counsel;
Noel C. Devlin, of counsel and on the brief).
PER CURIAM
In this Title 30 action, we granted J.F. (Jen)1 leave to appeal the Family
Part judge's September 27, 2023 orders (1) denying her Rule 4:34-1(b) motion
to substitute for her deceased sister, O.V. (Olivia) in Title 30, N.J.S.A. 30:4C-1
to -40, permanency proceedings regarding K.F. (Kamila), Olivia's daughter and
Jen's niece; and (2) dismissing her summary judgment motion. The New Jersey
Division of Child Protection and Permanency (Division) and Law Guardian
oppose substitution and entry of summary judgment. We affirm.
In January 2020, the Division removed the five-month-old Kamila from
her mother's care due to her mother's substance misuse. Kamila, whose
biological father is unknown, was placed with a resource parent for twenty-two
months but was subsequently reunited with her mother. Approximately eight
1
We use pseudonyms or initials to protect the confidentiality of the participants
in these proceedings. R. 1:38-3(d).
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2
months later, Kamila was removed from her mother's care again because her
mother violated the Division's safety and protection plan. Kamila was placed
back in the care of her previous resource parent, where she continues to reside
today.
In October 2022, Olivia died during the pendency of the Division's
permanency proceedings to determine the best interests of Kamila's placement.
Over the ensuing months, the Division considered Kamila's placement with Jen
and another family member, which included home assessments, bonding
evaluations, and in-person and virtual visits. Meanwhile, at a January 2023
permanency hearing, Olivia's attorney asked to be relieved as counsel due to his
lack of standing and suggested the judge join Jen in the permanency proceeding.
The order relieving Olivia's attorney was not included in the record. However,
it appears the request was granted based on the court's comments at the time of
the request and the record reflects that Olivia's attorney did not appear at any
subsequent hearings.
While Jen was being evaluated by the Division for Kamila's placement,
Jen took offensive action in March 2023, by filing a complaint under N.J.S.A.
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9:2-92 to obtain custody of Kamila. About three months later, Jen moved under
Rule 4:34-1(b)3 to substitute for Olivia in the permanency proceeding, claiming
2
N.J.S.A. 9:2-9 provides:
When the parents of any minor child or the parent or
other person having the actual care and custody of any
minor child are grossly immoral or unfit to be intrusted
with the care and education of such child, or shall
neglect to provide the child with proper protection,
maintenance and education, or are of such vicious,
careless or dissolute habits as to endanger the welfare
of the child or make the child a public charge, or likely
to become a public charge; or when the parents of any
minor child are dead or cannot be found, and there is no
other person, legal guardian or agency exercising
custody over such child; it shall be lawful for any
person interested in the welfare of such child to institute
an action in the Superior Court, Chancery Division,
Family Part, in the county where such minor child is
residing, for the purpose of having the child brought
before the court, and for the further relief provided by
this chapter. The court may proceed in the action in a
summary manner or otherwise.
[Emphasis added.]
3
Rule 4:34-1(b) provides:
Non-Party Survivors. If a party dies and the claim is
not thereby extinguished, the court shall on motion
order substitution of the proper parties. The motion for
substitution may be made by the successors or
representatives of the deceased party or by any party,
and notice thereof shall be served on parties as provided
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she was the proper party to take over for her sister in the Division's continued
prosecution of Kamila's permanency. While awaiting oral argument, Jen moved
for summary judgment, anticipating her substitution motion would be granted.
About four months later, the Division ruled out Jen's home for licensing
due to several safety concerns and "missing documentation."
Following argument, the judge reserved judgment. Several weeks later,
the judge rendered a bench decision denying Jen's substitution motion. The
judge determined there is no case law interpreting Rule 4:34-1(b), which
governs substitution of non-surviving parties, to "support[] the proposition that
a relative may intervene [or substitute] in[to] [an] FN litigation instituted by the
Division . . . [in other words,] to step into the shoes of a deceased parent." The
judge cited S.M. v. A.W., 281 N.J. Super. 63, 69 (App. Div. 1995), "the closest
case on point," for its ruling that a relative who is interested in obtaining custody
of a child of a recently deceased parent should institute a separate custody
by R. 1:5-2 and on persons not parties in the manner
provided by either R. 4:4 (service of original process),
or, if the court directs, R. 4:67-3 (service of orders to
show cause).
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litigation. The judge noted that because Jen filed such litigation "which is
proceeding simultaneously with the within [permanency hearing]," her
substitution motion must be denied. Because Jen did not have standing in the
permanency hearing, the judge did not consider her motion for summary
judgment. Finally, the judge determined that because Olivia passed away and
Kamila's father was unknown, the Division should continue to have custody,
care, and supervision of Kamila. The judge's rulings were memorialized in two
September 23, 2023 orders.
In appealing, Jen asserts her substitution is appropriate under Rule 4:34-
1(b) because the Division "continu[es] to prosecute the [permanency litigation]
towards a goal of terminating parental rights." As the soon-to-be executor and
administrator of her deceased sister's estate, Jen contends she is the proper party
for substitution. Fed. R. Civ. P. 25(a)(1); accord L. 2021, c. 481, §§ 1, 2
(amending, respectively, N.J.S.A. 2A:15-3(a)(2) and 2A:31-2(b), to avoid
prejudicial delay by allowing qualified persons to initiate litigation under
wrongful death statute or Survivor's Act even prior to formal appointment as
executor or administrator of estate). Claiming she had standing to substitute for
Olivia, Jen argues summary judgment was erroneously denied because the
Division "can no longer sustain its . . . allegations concerning its need to take
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custody of Kamila to protect her from [Olivia's] substance abuse." Following
argument, Jen submitted a supplemental letter under Rule 2:6-11(d)(1) arguing
that our Supreme Court's recent decisions in N.J. Div. of Child Prot. &
Permanency v. B.P., 257 N.J. 361 (2024) and N.J. Div. of Child Prot. &
Permanency v. J.C., 257 N.J. 451 (2024) support her summary judgment claims.
The Division and the Law Guardian opposed Jen's arguments.
Based on our de novo review of the judge's interpretation of Rule 4:34-
1(b) in considering Jen's motion for substitution, see N.J. Dept. of Env't Prot. v.
Exxon Mobil Corp., 453 N.J. Super. 272, 285 (App. Div. 2018), we affirm
substantially for the reasons set forth by the judge. We add the following brief
comments.
Under Rule 4:34-1(b), "[i]f a party dies and the claim is not thereby
extinguished," the party may be substituted by a "successor[] or representative[]
of the deceased party." Olivia's rights in the permanency proceeding were
extinguished upon her death; therefore, the Division has no claims against her.
This was evidenced by Olivia's counsel's request to be relieved as counsel after
her death and his absence in any subsequent proceedings. Moreover, "[p]arental
rights are individual in nature." N.J. Div. of Youth & Fam. Servs. v. M.M., 189
N.J. 261, 288 (2007). As the Law Guardian points out, the "[c]ustody of a child
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is not 'a claim' that passes from one person to another." See N.J. Div. of Youth
& Fam. Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div. 2004). Olivia's rights
were subject to the State's interest as the "protector of [the] child[]" according
to its "parens patriae" responsibility to do what is in Kamila's best interest. See
ibid. Jen thus has no right to replace her sister.
Jen's pathway to obtain custody of Kamila is only through the custody
action she filed under N.J.S.A. 9:2-9, which the Family Part will adjudicate.4
See Watkins v. Nelson, 163 N.J. 235, 246 (2000). Because we agree with the
judge that Jen cannot be a party in this action, her summary judgment motion is
moot. See Redd v. Bowman, 223 N.J. 87, 104 (2015) ("An issue is 'moot when
our decision sought in a matter, when rendered, can have no practical effect on
the existing controversy.'" (quoting Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422
N.J. Super. 214, 221-22 (App. Div. 2011))). Consequently, we do not address
Jen's reliance on B.P. and J.C.5
4
While this appeal was pending, Jen learned her original complaint was lost
after it was delivered by courier to the Passaic County courthouse and it was not
filed. Jen re-filed the complaint, which is pending before the Family Part.
5
We observe that neither B.P. nor J.C. apply. Each involves proceedings
different from the record before us. B.P. considered whether a parent committed
abuse and neglect under Title Nine. 257 N.J. at 365. J.C. considered "whether
a family court judge may dismiss an action for the care and supervision of
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Affirmed.
children brought pursuant to [Title 30] but continue restraints on a parent's
conduct." 257 N.J. at 455.
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