New Jersey Division of Youth and Family Services v. w.F. and R.F. in the Matter of J.F., J.F., J.F., J.F. and J.F.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0190-12T3
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,1
Plaintiff-Respondent, APPROVED FOR PUBLICATION
January 28, 2014
v.
APPELLATE DIVISION
W.F.,
Defendant-Respondent,
and
R.F.,
Defendant-Appellant.
_____________________________________
IN THE MATTER OF
J.F., J.F., J.F., J.F.,
AND J.F.,
Minors.
_____________________________________
Submitted October 21, 2013 – Decided January 28, 2014
Before Judges Yannotti, Ashrafi and Leone.
1
On June 29, 2012, the Governor signed into law A-3101, which
reorganized the Department of Children and Families, and renamed
the Division of Youth and Family Services as the Division of
Child Protection and Permanency. L. 2012, c. 16, eff. June 29,
2012. We will refer to it as "the Division".
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Salem County, Docket No. FN-17-67-07.
Joseph E. Krakora, Public Defender, attorney
for appellant (Thomas G. Hand, Designated
Counsel, on the briefs).
John J. Hoffman, Acting Attorney General,
attorney for respondent New Jersey Division
of Child Protection and Permanency (Lisa A.
Puglisi, Assistant Attorney General, of
counsel; Mara Spiegeland, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, attorney
for respondent W.F. (Durrell Wachtler
Ciccia, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Karen A.
Lodeserto, Designated Counsel, on the brief).
The opinion of the court was delivered by
LEONE, J.S.C. (temporarily assigned).
Defendant R.F. (Father) and defendant W.F. (Mother) married
and had six children, all with the initials J.F. The three
older children were born in 1991, 1992, and 1993. The three
younger children were born in 1999, 2001, and 2003.
The Division obtained care and supervision, but not
custody, over all six children in litigation under the "abuse
and neglect" (FN) docket. Father appeals from the order
terminating the FN litigation. He argues that the litigation
gave custody of the children to Mother without an appropriate
hearing. However, the three older children became adults during
2 A-0190-12T3
the course of the FN litigation, and so the issue of their
custody is moot. Moreover, the custody of the three younger
children was decided by consent under the "non-dissolution" (FD)
docket, when Father and Mother agreed that they would share
joint legal custody with Mother being the parent of primary
residence. Accordingly, we affirm.
I.
We summarize the pertinent history of this litigation. In
2006 and 2007, the Division received referrals that Father
physically abused the older children, and that there had been
dangerous altercations. On June 11, 2007, the Division under
the FN docket requested an order to show cause and filed a
verified complaint pursuant to N.J.S.A. 9:6-8.21 to -8.73 and
N.J.S.A. 30:4C-12. The judge placed all six children under the
Division's care and supervision. The judge issued an order of
protection restraining the Father from going near the marital
home. See N.J.S.A. 9:6-8.31(c), -8.55. The judge also required
Father's visitation with the children to be supervised.
On December 3, 2007, the date set for the fact-finding
hearing, the parties agreed to convert the litigation to a
"family in need of services" case. Then and in frequent
hearings thereafter, the court continued care and supervision
under N.J.S.A. 30:4C-12.
3 A-0190-12T3
Subsequently, the judge found that Father's visitation with
the three younger children could be unsupervised, but continued
supervision of his visits with the three older children. Later,
the judge ruled that the three older children did not have to
visit with Father.
In December 2008, a judge to whom the matter was reassigned
permitted Father to return to the marital home on a full-time
basis and to enjoy unrestricted time with the children. Within
a month, however, the judge reinstated the order of protection
restraining Father from the marital home, and restricted
Father's contact with the three older children, after Father had
an altercation with one of the older children. The judge
nonetheless continued Father's unsupervised parenting time with
the three younger children.
Father filed a motion for custody under the FD docket. The
judge consolidated the FN and FD actions, and dismissed Father's
FD motion for lack of changed circumstances. On March 20, 2009,
the judge ordered that custody would be handled in the FD
action, and in an FD order granted Mother's request for
temporary custody of all six children, without prejudice. The
Law Guardian for the three younger children stated, however,
that they wanted Father returned to the home and that visits
were going very well.
4 A-0190-12T3
At the June 12, 2009 hearing, Mother and Father agreed to
joint custody of the three younger children, with Mother as the
parent of primary residence. The judge's order in the FD action
provided: "By consent both parties are granted joint legal
custody of the three youngest children . . . , with [Mother]
being the parent of primary residence." The judge's order in
the FN case stated that "joint legal and physical custody" of
the three younger children "will be continued with [Mother and
Father] pursuant to [the judge's] order under [the FD] docket .
. . with [Mother] named as parent of primary residence and
[Father] the parent of alternate residence." Father's counsel
stated, "I'm glad that we were able to resolve the issue of
custody as to the three younger children."
Father's counsel, who had originally requested a hearing
for all the children under N.J. Div. of Youth & Family Servs. v.
G.M., 198 N.J. 382 (2009), now limited his argument to the three
older children. He argued that a hearing was necessary under
G.M. because Father "still want[ed] to have custody of his older
children." The judge disagreed, saying he had resolved the
custody issue in a full hearing in the FD case. The judge
issued an FD order granting Mother sole legal custody of the
three older children. The Division agreed that the FN action
should be closed. The judge ruled that there were no longer any
5 A-0190-12T3
issues of abuse or neglect remaining for the Division to
address, that there was no need for "additional hearing[s] under
this [FN] docket," and that the "[l]itigation in this matter is
hereby terminated effective this date." In the FN order, the
judge continued to restrain Father from the marital home.
Father filed a notice of appeal from the June 12, 2009
order terminating the FN litigation and denying his "motion for
further hearings under the FN docket." The Division filed a
motion asking us to vacate the termination of the abuse and
neglect litigation under the FN docket, and to remand for a
dispositional hearing that satisfied G.M. We granted the
Division's motion "for final remand" on March 29, 2010.
On remand, Father argued that a hearing was necessary under
G.M. because he "had custody of all six children" before the
Division's involvement, and after the June 12, 2009 hearing "he
only had custody of 3 children" because "the court refused to
give custody of the three older [children] back to [him]." By
that time, however, the oldest child had turned eighteen and
aged out of the litigation. By July 2010, the second oldest
child had also turned eighteen. By November 2011, the last of
the three older children turned eighteen, and was dismissed from
the litigation, along with the Law Guardian for the older
children.
6 A-0190-12T3
The trial court ruled that the only issue to be addressed
at a hearing was "whether it was safe for the children to be
with their father" so that the court could decide whether to
lift "the order of protection" barring him from the marital
home. Father's counsel repeatedly agreed that the only issue
left under the FN docket was "whether the order of protection
should be lifted."
The Division maintained that it was safe for Father to
return home. The Law Guardian for the three younger children
agreed that Father's return was safe for his clients. Mother
objected, however, in part because she no longer wished to live
with Father. Indeed, Mother soon filed a divorce complaint
under the matrimonial (FM) docket.
The trial court stated that the hearing would not address
"custody between the two parents," which could be challenged "in
the FD, FM world." Father's counsel agreed that custody of the
three younger children should be handled "under the FM docket."
On July 20, 2012, Father's counsel said a dispositional
hearing was still necessary to resolve the issue of the order of
protection restraining Father from the marital home. Mother
stated that she recently vacated the home, and offered Father
the keys to that home. The Division and the Law Guardian for
7 A-0190-12T3
the three younger children reiterated that the FN case should be
closed, and Mother agreed.
After a summary dispositional hearing, the judge now
handling the matter dismissed the order of protection
restraining Father from that home, and gave him the keys. At
Mother's request, the judge restrained Father from Mother's new
home "under all Family Court dockets," including the FD and FM
dockets. The judge ruled that "there are no longer any issues
to be determined under the FN docket and all other issues [are]
to be determined under the FD/FM dockets." Accordingly, the
judge ordered that "[l]itigation in this [FN] matter is
terminated." The judge's order reiterated that joint legal and
physical custody of the three younger children continued under
the FD docket "with [Mother] named as parent of primary
residence and [Father] the parent of alternate residence."
II.
Father appeals from the July 20, 2012 order. We must hew
to our standard of review:
[W]e generally "defer to the factual
findings of the trial court because it has
the opportunity to make first-hand
credibility judgments about the witnesses
who appear on the stand; it has a 'feel of
the case' that can never be realized by a
review of the cold record." Moreover, we
recognize that "[b]ecause of the family
courts' special . . . expertise in family
matters, appellate courts should accord
8 A-0190-12T3
deference to family court factfinding."
Nevertheless, when no hearing takes place,
no evidence is admitted, and no findings of
fact are made, different principles apply.
On those rare occasions, appellate courts
need not afford deference to the conclusions
of the trial court.
[G.M., supra, 198 N.J. at 396 (citations
omitted).]
III.
Given the length of this litigation, we focus our
discussion by quoting Father's statement of what this appeal
challenges:
This is a case about custody, not real
estate rights. The State effectuated a
change in this father's physical custody to
his six children. Without appropriate
factual or legal findings, the State then
dismissed the litigation without affording
the father the opportunity to challenge the
change in his custodial rights.
Father urges that "[t]he orders changing custody must be vacated
and the matter remanded for a hearing to protect, not destroy,
the rights of the father and the safety of the remaining minor
children."
Father's appeal challenging custody fails for two
fundamental reasons. First, the three older children are now
adults. Second, the three younger children's custody was
determined by consent.
9 A-0190-12T3
A.
To the extent Father seeks to challenge or obtain custody
of the three older children, this appeal is moot. When the FN
litigation began, all the children were less than eighteen years
old. They were therefore within the scope and "purpose of [the
abuse and neglect] act [which] is to provide for the protection
of children under 18 years of age . . . ." N.J.S.A. 9:6-8.8(a).
The act thus provides that an "'[a]bused or neglected child'
means a child less than 18 years of age," N.J.S.A. 9:6-8.21(c)
and an "'[a]bused child' means a child under the age of 18
years," N.J.S.A. 9:6-8.9. Elsewhere in Title Nine, "the word
'child' is similarly defined as 'any person under 18 years of
age.'" N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1,
20 (2013) (quoting N.J.S.A. 9:2-13(b)); see, e.g., N.J.S.A. 9:3-
38(b), 9:6-8.84, 9:6A-10(a).
Similarly, Title Thirty addresses the care and custody of
"a child," and defines a "child" as a "person under the age of
18 years." N.J.S.A. 30:4C-2(b)-(d); accord N.J.S.A. 30:4C-
52(a). A few "circumscribed" statutes permit the Division to
provide certain services to particular persons between the ages
of eighteen and twenty-one, but they do not apply here. State
ex rel. J.S., 202 N.J. 465, 478-79 (2010) (citing N.J.S.A.
10 A-0190-12T3
30:4C-2.3 and -27.5); see N.J.S.A. 9:17B-2(f), 30:4C-1.1(g),
30:4C-4.4(a), 30:4C-26.20(e).
Likewise, trial courts in FD and FM actions can award
custody of "a minor child," N.J.S.A. 9:2-4, which the
Legislature has elsewhere defined as "a child under the age of
eighteen years," N.J.S.A. 3B:12-69; accord N.J.S.A. 43:10-18.1,
43:13-22.3; see also N.J.S.A. 2A:34-54 (defining "[c]hild" as
"an individual who has not attained 18 years of age" for
purposes of the Uniform Child Custody Jurisdiction Act). In
determining when a parent's obligation of financial support
ends, "[a]ttainment of age 18 establishes prima facie, but not
conclusive, proof of emancipation." Newburgh v. Arrigo, 88 N.J.
529, 543 (1982). In certain situations, parents still have an
economic duty to support children after their eighteenth
birthday, and thus have not fully "relinquish[ed] the right to
custody." Id. at 543-45; see Dolce v. Dolce, 383 N.J. Super.
11, 17 (App. Div. 2006). Father does not claim that any of his
three older children are unemancipated, or that such economic
dependence would justify an award of custody over an adult. See
Ort v. Ort, 428 N.J. Super. 290, 296-97 (Ch. Div. 2012).
Finally, the age-of-majority statute provides that, subject
to limited exceptions inapplicable here, "every person 18 or
more years of age shall in all other matters and for all other
11 A-0190-12T3
purposes be deemed to be an adult," N.J.S.A. 9:17B-3, in order
to exercise "the basic civil . . . rights" of adults, N.J.S.A.
9:17B-1(a). See Green v. Auerbach Chevrolet Corp., 127 N.J.
591, 594-99 (1992). Adults normally are not under the custody
of another. See Ort, supra, 428 N.J. Super. at 295-98 (ruling
that a child who turns eighteen may seek her own emancipation
over parental objection); see also N.J.S.A. 9:6-8.54(c) ("No
placement may be made or continued under this section beyond the
child's eighteenth birthday without his consent.").2
Therefore, the issue of custody of the three older children
became moot when they turned eighteen-years old. See, e.g.,
N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 21
n.3 (2011); L. v. G., 203 N.J. Super. 385, 390 (Ch. Div. 1985);
see also Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303
(1975) (holding that a case challenging a high school's
regulation became moot when the petitioners finished high
school). "It is firmly established that controversies which
have become moot or academic prior to judicial resolution
ordinarily will be dismissed." Cinque v. N.J. Dept. of Corr.,
261 N.J. Super. 242, 243 (App. Div. 1993). Generally, "'courts
will not decide cases in which . . . a judgment cannot grant
2
We do not address the situation of persons with mental or
physical disabilities.
12 A-0190-12T3
effective relief.'" Ibid. (quoting Anderson v. Sills, 143 N.J.
Super. 432, 437 (Ch. Div. 1976)).
We cannot grant effective relief because we cannot award
Father custody of his three adult children. To the extent
Father seeks a ruling on how their custody should have been
determined, such a request is moot because it "'can have no
practical effect on the existing controversy.'" N.J. Div. of
Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 263 (App.
Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. A.P.,
408 N.J. Super. 252, 261 (App. Div. 2009)). Further, this is
not an appeal where the issues raised "involve significant
matters of public policy, are extremely important, and
undoubtedly will recur in cases that are likely to be mooted
before adjudication." In re N.N., 146 N.J. 112, 124 (1996). We
thus do not reach any claims concerning the custody of the three
older children.
B.
Father also claims that the trial court improperly entered
"orders changing custody" of the three younger children in the
FN action. Father, however, ignores that their custody was
determined not by judicial fiat, but by parental consent in the
FD case.
13 A-0190-12T3
On June 12, 2009, Father agreed that he and Mother would
have joint legal custody of the three younger children with
Mother as the parent of primary residence and Father as the
parent of alternate residence. The judge embodied the parties'
consent in an order in the FD case. The June 12, 2009 order in
the FN action made clear that the custody of the three younger
children had been determined in the FD case. All subsequent
case management and compliance review orders in the FN
litigation reiterated that the parents' joint custody of the
three younger children was governed by the order in the FD case,
"with [Mother] named as parent of primary residence and [Father]
the parent of alternate residence." Similarly, the June 20,
2012 disposition order, from which Father appeals, merely
continues the parents' joint legal and physical custody over the
three younger children as determined by the order under the FD
docket.
At the June 12, 2009 hearing, Father's counsel made clear
that the parents' agreement had "resolved" the custody of the
three younger children. He then confined to the three older
children his argument that further FN hearings were required
under G.M. After the judge denied that request and terminated
the FN litigation, Father appealed the June 12, 2009 order
terminating the FN action, but not the order in the FD case
14 A-0190-12T3
resolving the custody of the three younger children by consent.
His notice of appeal named all six children, but made clear that
he was challenging the "denial of the motion for further
hearings under the FN docket," which he had requested for the
three older children only. The Division's motion for remand
asked us to vacate the termination of the abuse and neglect
litigation, and remand for a dispositional hearing under G.M.,
which again had been requested only for the three older
children. Nothing in our "final remand" in the FN action
indicates that we were overturning the parents' consensual
resolution in the FD case of the custody of the three younger
children.
After the remand, Father did not claim that the remand was
granted to address the agreed-upon custody of the three younger
children. Instead, Father's counsel complained that Father had
lost "custody of the three older [children]" without a hearing
under G.M. As the three older children became adults, Father's
counsel agreed that the sole issue remaining in the FN
litigation was the order of protection restraining him from the
marital home. Father's counsel agreed that any change in
custody of the three younger children should be handled under
the FM docket.
15 A-0190-12T3
Father confirms that he is not appealing the June 12, 2009
FD order which resolved the custody of the three younger
children by agreement between Father and Mother. Because Father
consented to that custody arrangement, and does not challenge
the FD order embodying that arrangement, he cannot raise the
issue of the custody of the three younger children in this
appeal. See generally N.J. Div. of Youth & Family Servs. v.
M.D., 417 N.J. Super. 583, 620-21 (App. Div. 2011) (allowing
parents to change the result of a judicial custody determination
in an FN action by consent order or by "attempt[ing] to
'resolv[e] the questions of custody and parenting time by
agreement'") (quoting N.J. Div. of Youth & Family Servs. v.
N.D., 417 N.J. Super. 96, 115 (App. Div. 2010)); N.J. Div. of
Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 23 (App. Div.
2010) (ruling that where the parents in an FN action agreed to a
judicial "custody determination under N.J.S.A. 9:2-4," they "may
not now protest the procedures followed").
If Father believes that the custodial arrangement he agreed
to on June 12, 2009, is no longer appropriate, he may raise that
issue in the FM docket, for example, by filing a motion to
change custody alleging sufficient changed circumstances. N.J.
Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 40, cert.
denied, __ U.S. __, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013);
16 A-0190-12T3
G.M., supra, 198 N.J. at 402 n.3; Hand v. Hand, 391 N.J. Super.
102, 105 (App. Div. 2007).
IV.
Father argues that G.M. required that a dispositional
hearing be held after our remand because it would determine the
custody of the children. However, the issue of the custody of
the three older children became moot as they became adults, and
the issue of the custody of the three younger children had been
settled by consent prior to our remand.
Moreover, the requirements for a dispositional hearing
under G.M. were never triggered after our remand. G.M. "h[e]ld
that the statutory framework of Title Nine provides that upon a
finding of abuse and neglect, the offending parent or guardian
is entitled to a dispositional hearing to determine whether the
children may safely return to his or her custody, and if not,
what the proper disposition should be." G.M., supra, 198 N.J.
at 387-88. Before a dispositional hearing is required, however,
there must be a fact-finding hearing at which a finding of abuse
and neglect is made. N.J.S.A. 9:6-8.44, -47. No such hearing
or finding ever occurred here. Therefore, the preconditions for
a dispositional hearing under N.J.S.A. 9:6-8.51 never arose, and
G.M.'s requirements never came into play. Father's G.M.
arguments thus do not apply here. See I.S., supra, 214 N.J. at
17 A-0190-12T3
29-30 (distinguishing G.M. because there was a finding of abuse
and neglect in G.M.).3
Because Father's appeal is "about custody," and the custody
issues were either mooted by adulthood or resolved by consent,
we have no occasion to untangle the trial court's post-remand
proceedings, which were prolonged and confused substantially,
but not solely, by Father. We note, however, the Supreme
Court's recent ruling that if the Division fails to establish
abuse and neglect in a fact-finding hearing, "[t]he Title 9
action must be dismissed," and that the Division must proceed
under Title Thirty if it proceeds at all. I.S., supra, 214 N.J.
at 14, 29-39; see N.D., supra, 417 N.J. Super. at 109 (noting
that "the Division may proceed under Title 30, irrespective of a
finding of abuse or neglect"); see also J.D., supra, 417 N.J.
Super. at 23 ("Title 30 does not discuss dispositional hearings,
as delineated in Title 9.").
3
Also misplaced is Father's reliance on our ruling in G.M. that
the proper remedy is to remand for a custody determination based
on "the best interest of the child standard" in the FN
litigation, at which the parents would receive State-supplied
counsel. Div. of Youth & Family Servs. v. G.M., 398 N.J. Super.
21, 44-52 (App. Div. 2008), aff'd as modified, 198 N.J. 382(2009). The Supreme Court rejected that remedy, however,
because the trial court's error "was not in the failure to hold
a custody hearing, but in the failure to hold a dispositional
hearing." G.M., supra, 198 N.J. at 402.
18 A-0190-12T3
V.
Father does not dispute the dispositional order allowing
him to occupy the former marital home. Father's brief also does
not challenge the other relief granted at the dispositional
hearing, namely the order of protection for Mother at her new
home, and so its propriety is not before us.4 Thus, Father does
not challenge any decision actually made at the July 20, 2012
dispositional hearing. Nonetheless, Father attacks the
dispositional hearing, claiming it changed custody without due
process. Because the dispositional hearing did not change
custody of the children, we need not consider the process
provided at that hearing.
Father also challenges orders before June 12, 2009 which he
contends changed custody to his three younger children.
However, when Father agreed to the June 12, 2009 custody
4
We note that N.J.S.A. 9:6-8.31(c) permits a preliminary order
of protection prior to a finding of abuse and neglect, and that
orders of protection are authorized after a fact-finding
hearing, N.J.S.A. 9:6-8.50(d), after a dispositional hearing,
N.J.S.A. 9:6-8.51(c), -8.53, and "in assistance or as a
condition of any other order made under this act," N.J.S.A. 9:6-
8.55. However, "the family court lacks authority to enter Title
9 orders when 'it finds that the child has not been abused or
neglected.'" I.S., supra, 214 N.J. at 31-32 (quoting N.J. Div.
of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 64 (App.
Div. 2012)). Because Father does not challenge the order of
protection issued at the dispositional hearing, we have no
occasion to explore whether that order was authorized under
Title Nine, Title Thirty, or the FD or FM dockets.
19 A-0190-12T3
agreement of the three younger children, any errors in earlier
proceedings regarding custody of those children became moot.
See J.C., supra, 423 N.J. Super. at 262-63 (ruling that a
parent's claim that she was denied due process and a full
dispositional hearing was mooted by her consent to adoption).
In any event, we find Father's challenges to those orders lack
sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E). To the extent Father claims that
orders after June 12, 2009, changed the custody of the younger
three children, he is mistaken, and accordingly those arguments
also lack sufficient merit. Ibid. We also do not find
sufficient merit concerning his complaints at the trial court's
handling of his allegations of problems in Mother's house, which
in any event were not raised in a motion to change custody.
Ibid.Affirmed.
20 A-0190-12T3