Opinion
DOCKET NO. A-6203-11T4
03-14-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. T.J., Defendant-Appellant. IN THE MATTER OF T.J., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.J. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Ostrer and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-42-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kathryn Talbot, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.J. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant, T.J., the single father of Thomas, appeals from two Family Part orders: (1) a March 15, 2011, fact-finding order under Title 30, finding that T.J. was part of a family in need of services; and (2) a June 26, 2012, order terminating litigation, which granted T.J. alternating weekend visitation with Thomas, granted the mother V.S. and her aunt M.S. joint legal custody of Thomas, and granted M.S. sole physical custody. Having reviewed T.J.'s arguments in light of the facts and applicable legal principles, we affirm. In short, the correctness of the March 15, 2011, order is moot, and T.J. consented on the record to the arrangements embodied in the June 26, 2012, order that he now challenges.
For convenience, we use a pseudonym for the child, who has the same initials as the father.
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I.
V.S. was just seventeen when she gave birth to Thomas. T.J. was twenty. The parents did not live together. Thomas was V.S.'s second child. Her first child was born when V.S. was almost thirteen. T.J. was not the father.
V.S. suffered from various emotional and behavioral problems. She neglected her first child. After the Division offered services that were ultimately unsuccessful, the court terminated V.S.'s parental rights to her first child. The order was entered two months before Thomas's birth.
Based on her prior history, and her refusal to participate in services designed to enable her to parent Thomas, the Division effected an emergency removal of Thomas after birth. N.J.S.A. 9:6-8.21 to -8.82. Upon the Division's filing of a verified complaint against V.S. and T.J., N.J.S.A. 30:4C-12, the court entered an order to show cause on November 17, 2010, granting the Division the care, custody and supervision of Thomas. T.J. was not deemed eligible to assume custody of Thomas because he had a gun charge on his criminal record. However, T.J. was granted liberal visitation supervised by his parents.
In a December 2010 court appearance, the Division's counsel reported that the gun charge was resolved. T.J.'s attorney represented that T.J. supported V.S.'s efforts to raise Thomas in a "mentoring home," while retaining his visitation. T.J. had been visiting with his son at his mother's house and enrolled in a parenting program. T.J.'s counsel stated that if V.S. failed to comply with services, then T.J. would want custody, but counsel did not present a plan. It was represented that he was working part-time and lived with an uncle.
By March 2011, Thomas was living with T.J.'s mother. V.S. was not consistently complying with services, but the Division recommended continuing them. At a hearing on March 8, 2011, the Division's counsel stated that T.J. had not attended parenting classes.
T.J. did not seek custody at that time. His attorney stated, "[T.J.] supports the mother in regards to the care of the child, and he thinks that the child being with the mother is appropriate. He also supports the paternal grandmother. She's the resource parent." Asked if T.J. sought custody if V.S.'s efforts failed, counsel replied that T.J. supported his mother taking his son. "[H]e would support the paternal grandmother's efforts in caring for the child if it doesn't work out for the mother, but he's in her corner rooting for her to succeed."
The court ordered T.J. to attend a parenting program that the Division caseworker identified, although T.J.'s counsel argued that T.J. did not need Division assistance. The court ordered T.J. to prepare an alternate plan for Thomas if reunification of V.S. and Thomas did not succeed.
Before the next court appearance, T.J. signed a certification reiterating that he supported V.S.'s efforts, and if those failed, he supported placement with his own mother. "I support a plan that will grant the mother legal and physical custody of our son. . . . If the mother fails to get legal and physical custody then I support placement with the paternal grandmother under a kinship legal guardianship." He stated he was voluntarily attending a program that provided parenting classes and employment assistance, and which did not require a Division referral.
At the court hearing on March 15, 2011, V.S. stipulated that she and her son were in need of services, specifically a "mommy and me" program. Contrary to his certification, T.J. testified that if V.S. were unsuccessful, he would seek custody himself in his mother's home, with his mother serving as his support system. However, T.J.'s preference was that V.S. continue to engage in services and that Thomas remain in her care.
T.J. resisted a finding that he was in need of services. He testified that he could attend parenting classes without Division assistance, and did not need other Division services or assistance. After hearing the testimony of T.J. and the Division caseworker, the court found by clear and convincing evidence that T.J. was in need of services, in part because he was relying on the Division's services provided to V.S. The court ordered T.J. to attend parenting classes at the Division's selected program, obtain and maintain stable housing, and seek full-time employment. His visitation was still supervised by his mother.
At a June 2011 hearing, it was reported that T.J. had been arrested in April and was still incarcerated, arising out of an alleged assault of V.S. As a result of V.S.'s progress, the court granted her sole legal and physical custody of Thomas. The court ordered V.S. to attend educational and other services. T.J. was required to continue to comply with the parenting skills program. Visitation was conditioned upon his contacting the Division and engaging in services. T.J.'s counsel interposed no objection.
At a September 2011 hearing, T.J.'s counsel, in T.J.'s presence, expressed support for the plan that was in place for V.S. to obtain full physical and legal custody. It was disclosed that he was exercising visitation at his mother's house without Division oversight, contrary to the court's order. The court declined to dismiss T.J. from the case and essentially continued prior orders.
T.J.'s position remained unchanged by the January 2012 hearing. T.J. was present, but left before the hearing to attend a vocational program. As she had previously, his attorney stated that he "supports what the mother is doing in terms of . . . having physical custody of the child." She requested unsupervised parenting time. A similar representation was made at a court hearing in April 2012.
T.J. did not appear at the April hearing. The Division reported that V.S., who also was not present, was not complying with various court-ordered services. The Division sought a fact-finding hearing, upon notice to V.S. and T.J., at which the Division would seek a change in custody.
Notwithstanding this change in circumstances, T.J.'s counsel did not seek custody on T.J.'s behalf. She stated, "He doesn't have custody of the child. All he wants is visits." Acknowledging that T.J. was not attending parenting classes, she argued that T.J. was receiving parenting advice from his mother. The order pertaining to T.J. continued previous provisions. However, the court ordered V.S. to find an alternative arrangement for custody of Thomas by the next hearing.
At the following hearing on May 8, 2012, V.S. proposed relocating to Philadelphia, where she would reside with her aunt, M.S. V.S. would share legal custody with M.S., and M.S. would exercise sole physical custody. The Law Guardian supported the plan.
T.J.'s counsel stated that T.J. objected to the plan, because it allegedly would sever his parental rights. Counsel proposed that Thomas be placed with T.J.'s mother, who had been actively involved in Thomas's life.
However, when the court inquired of T.J., he consented to the plan. The Division's counsel proposed that the order provide for alternating weekend visitation at his mother's house. The judge asked, "Would that satisfy [T.J.'s] concern?" T.J. replied, "Well, I'm good. That's all right." The court asked, "Do you agree to the every other weekend parenting time for yourself, supervised by your mother, and that custody would be shared between Madames [S.]?" T.J. replied, "Yeah. I agree." The court then confirmed that T.J. was thinking clearly, had the advice of counsel, and was entering the agreement knowingly and voluntarily.
The court approved the plan based on a finding that all parties consented to the arrangement. The court provided that it would dismiss the litigation on June 26 on the papers, absent any requests for relief from any party. The court retained jurisdiction for six months, particularly so it would be empowered to address any issue that might arise regarding T.J.'s visitation rights. In the absence of any further applications, the court entered an order terminating the litigation on June 26, 2012.
T.J. filed his initial notice of appeal on August 10, 2012, and presents the following points for our review:
POINT I — THE FATHER SHOULD NOT HAVE BEEN MADE SUBJECT TO THE CONDITIONS OF TITLE 30.
POINT II — THE COURT ERRED BY DENYING THE FATHER UNRESTRICTED VISITS.
POINT III — THE COURT ERRONEOUSLY TERMINATED LITIGATION.
II.
We need not address the merits of T.J.'s argument that the court erred in finding he was in need of services under Title 30. See N.J.S.A. 30:4C-12; N.J. Dep't of Children & Families v. I.S., 214 N.J. 8 (2013) (discussing generally N.J.S.A. 30:4C-12 and Division intervention in cases of children in need of services). The issue is moot. We generally avoid resolving issues in the abstract and deciding moot cases. N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949). "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 Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation marks and citation omitted). T.J. is no longer subject to the court's order compelling his compliance with Division services. He will suffer no continuing adverse consequences from the court's order. Cf. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261-62 (App. Div. 2009) (stating a dispute is not moot if a party will suffer adverse consequences from the decision), certif. denied, 201 N.J. 153 (2010). He was not placed on a registry, and the order from which he appeals was temporary. See I.S., supra, 214 N.J. at 37 (stating that order under N.J.S.A. 30:4C-12 does not implicate child abuse registry, N.J.S.A. 9:6-8.11, it is temporary, and does not require a finding of fault).
We also discern no merit to T.J.'s appeal from the court's June 26, 2012, order. Simply put, T.J. agreed to the plan embodied in that order. Once assured that he would continue to exercise alternating weekend visitation, supervised by his mother, he agreed to V.S.'s plan to relocate to Philadelphia, where she would share legal custody with her aunt, who would have sole physical custody.
"'Settlement of litigation ranks high in our public policy.'" Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961)). That public policy is entitled to great respect in the family courts. Puder v. Buechel, 183 N.J. 428, 438 (2005) (stating that "[a]dvancing that public policy is imperative in the family courts"). The evidence reflects that T.J. entered the agreement knowingly and voluntarily, with the advice of counsel. T.J. has presented no basis for us to disturb the resolution to which he consented.
T.J.'s remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION