RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1629-17T2

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

J.H. and R.H.,

Defendants-Appellants.

_______________________________

IN THE MATTER OF A.H. and C.H.,

Minors.

_______________________________

Submitted September 10, 2019 – Decided

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Bergen County, 

Docket No. FN-02-0104-17.

Kenneth James Rosellini, attorney for appellants.

NOT FOR PUBLICATION WITHOUT THE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.

September 17, 2019
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Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jason Wade Rockwell, Assistant Attorney 

General, of counsel; Peter Damian Alvino, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor C.H. (Meredith Alexis Pollock, 

Deputy Public Defender, of counsel; Cory Hadley

Cassar, Designated Counsel, on the brief).

PER CURIAM

In this protective services matter, defendants J.H. (mother) 1and R.H. 

(father) appeal from a now final June 26, 2017 order, entered after a summary 

hearing pursuant to N.J.S.A. 30:4C-12 (Section 12), reflecting their family's 

continued need for services and extending the Division of Child Protection and 

Permanency's care and custody of their two minor children, A.H. (Alice), born 

in 1999 and C.H. (Cindy), born in 2011. Defendants claim the Family Part never 

acquired jurisdiction to permit the Division to direct services and retain care and 

custody of their daughters because the protective services case was dismissed, 

and the trial judge's summary decision was not supported by adequate, 

substantial, credible evidence in the record. Defendants further contend Section 

 

1

 We use initials and pseudonyms to identify the parties and children to protect 

the confidentiality of the matters related to the alleged child abuse. See N.J.S.A. 

9:6-8.10a.
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12 is unconstitutionally vague as applied to them. Because we conclude the 

Division's filing of the guardianship action rendered the matter moot, we dismiss 

the appeal. 

We incorporate by reference the factual findings and procedural history 

set forth in Judge Peter J. Melchionne's June 26, 2017 oral decision following 

the contested summary hearing. In essence, the family's substantial history with 

the Division dates back several years.2 Between 2011 and 2015, referrals citing 

concerns about the family ran the gamut from domestic violence between 

defendants in the presence of Alice, to concerns about the mental health of both 

parents and Alice. Although the Division lacked sufficient evidence to 

substantiate a judicial finding of abuse or neglect, the Family Part and the 

Division have maintained intermittent oversight of the family.

During a home visit in September 2016, father claimed mother was a 

member of the Russian mafia and she tried to kill Cindy; mother denied the 

allegations and told the Division she feared father. The Division recommended 

psychological evaluations for the family, but defendants declined to sign 

 

2 According to father's expert report, the Division initially became involved 

with the family in 2000, when medical neglect concerns were raised about then 

ten-month-old Alice. The details and disposition of that referral are not 

contained in the record on appeal.
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medical releases for the children. The Division provided homemaker services, 

but father refused to allow the homemaker entry into the home. 

The Division removed the children after its ensuing attempts to implement 

a safety plan were frustrated by mother's refusal to cooperate with any restraints 

that prevented father's presence in the home. Following the emergency removal, 

the Division filed a complaint detailing those events and the family's history 

with the Division. Notably, the Division's complaint sought an order for care 

and custody of the children under Title 9 and Title 30. Judge Melchionne 

granted the Division's request for custody, care and supervision, and the children 

were initially placed together in the same resource home. But, Cindy was 

removed from that home after Alice assaulted her. Thereafter, Alice was 

hospitalized due to suicidal thoughts and her physical aggression toward Cindy.

On January 30, 2017, Judge Melchionne held an uncontested summary 

hearing regarding the Division's internal findings of abuse and neglect against 

father. The Division caseworker testified Alice was diagnosed with 

schizophrenia and had been hospitalized several times. Noting concerns for the 

mental health of defendants and Alice, the judge ordered the children to remain 

in the Division's care and custody. According to the judge, "[t]he thrust of this 

case comes from the mental health issues that seem[] to permeate and that does 
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require the need for the services." The judge concluded, without objection, that 

the matter would proceed "pursuant to Title 30."3 

During a compliance review hearing in April 2017, the Division disclosed 

Alice had been hospitalized several times in the prior three months and 

defendants refused to participate in services aimed at reunification. Because the 

parents contested their need for services, Judge Melchionne scheduled another 

plenary hearing to permit the testimony of an opposing expert. In the interim, 

the judge held an emergent hearing regarding defendants' opposition to Alice's 

increased need for psychiatric care in a residential setting.

During the three-day summary hearing, the Division and father presented 

the competing testimony of their psychiatric experts; father testified in his own 

behalf; mother did not testify nor present any witnesses. Following the hearing, 

Judge Melchionne concluded the Division established by a preponderance of the 

evidence that the children required the continued care and supervision of the 

Division, defendants remained unable to adequately care for the children based 

on the mental health concerns for the parents and their children, and defendants 

failed to comply with services offered by the Division. 

 

3 The January 30, 2017 order was not provided on appeal.
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In a comprehensive oral decision rendered on June 26, 2017, Judge 

Melchionne determined both experts agreed that father had "some form of 

psychosis . . . ." But, the judge noted father's expert lacked pertinent information 

about the family, including Alice's then current inpatient program and 

defendants' refusal to permit her placement in that program. Conversely, the 

judge credited the testimony of the Division's expert, finding his diagnosis of 

father was corroborated by father's rambling testimony and demeanor at the 

hearing. 

After Alice turned eighteen years old and was dismissed from the 

protective services action,4Judge Melchionne conducted a permanency hearing 

regarding Cindy, at which he approved the Division's plan for termination of 

defendants' parental rights followed by adoption. The judge found defendants 

failed to address their domestic violence and mental issues. Noting the 

guardianship complaint would not be filed for another five weeks, the judge was 

hopeful the parents would avail themselves of services so that the family could 

be reunified. When that did not occur, the Division filed its guardianship 

complaint, and another Family Part judge dismissed the Title 30 proceeding in 

 

4 Alice returned to defendants' home and is not a party to this appeal.
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a dispositional order on November 14, 2017. This appeal of the June 8, 2016 

summary hearing order followed. 

Citing our decision in N.J. Div. of Youth & Family Servs. v. A.P., 408 

N.J. Super. 252 (App. Div. 2009), the Division argues this appeal is moot 

because the only practical effect of the summary order "was to address whether 

Alice and Cindy should remain in the Division's custody under the court's Title 

[30] jurisdiction, to which the parties had already consented." See id. at 262. 

Because the Title 9 action was dismissed without an adjudication of abuse or 

neglect, the Division argues the June 26, 2017 order "has none of the adverse 

consequences of a final order of disposition . . . ." Id. at 263. The law guardian 

joins the Division's alternate argument, urging us to affirm the order because it 

was amply supported by substantial credible evidence in the record.

"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." Stop & Shop Supermarket Co., LLC v. Cty. of Bergen, 

450 N.J. Super. 286, 291 (App. Div. 2017) (citation omitted). "An issue is moot 

when the decision sought in a matter, when rendered, 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) (citation omitted). If, however, "a party 
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'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 (citation omitted). 

In A.P., the question was whether the defendant's appeal from the 

dismissal of a Title 9 action was mooted by the Division's filing of a Title 30 

action. 408 N.J. Super. at 261. We recognized that a finding of abuse or neglect 

under Title 9 could prejudice a parent's cause in a subsequent Title 30 

termination proceeding, but that dismissal of the Title 9 action without an 

adjudication had no adverse consequence. Id. at 262-63. Significantly, we 

recognized the order disposing of the Title 9 action was not a true order of 

dismissal because it provided for the continuation of physical custody of the 

child with his paternal grandmother. Id. at 263. We concluded the custody order 

entered in the Title 30 action superseded the Title 9 order. As a result, the Title 

9 order had no operative effect with regard to custody. Ibid. Because the Title 

9 order had no practical effect on the existing Title 30 action against the 

defendant, her appeal from that order was deemed moot. Id. at 264.

Judged by those standards, we agree with the Division that the present 

matter likewise is moot. The Division instituted this action seeking the 

temporary care, custody, and supervision of defendants' two daughters pursuant 
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to Section 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"). 

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. 9:6-8.50 through N.J.S.A. 9:6-8.58, 

including placement of the parent's name in the Central Registry). 

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

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

statutory grounds for instituting an action to terminate parental rights under 
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N.J.S.A. 30:4C-15.5 Relevant here, subsection (c) of that statute permits 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 provision might suggest a continuing 

adverse consequence to defendants, they remain 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 only is intended to be temporary and requires periodic 

review by the court. 214 N.J. at 37. 

Indeed, defendants must bring their challenge to the Family Part's 

jurisdiction in the guardianship action, or risk its loss through the operation of 

laches. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 445-46 

(2012). As Justice Albin explained in F.M., even if there were any merit to a 

claim that the Division lacked proper "care or custody" of a child at the time it 

 

5 The guardianship complaint is not included in the record, and we are 

unaware of the asserted basis of jurisdiction in that matter. 
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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 defendants' favor on the care and custody question 

would likely be similarly ineffective "to upend a properly conducted 

guardianship hearing" culminating in the termination of defendants' parental 

rights to Cindy for those same public policy reasons. Defendants must, therefore 

pursue – in the guardianship proceeding – their challenge to the care and custody 

the Division obtained of their daughters in the protective services proceeding. 

Accordingly, that the trial judge'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 defendants' appeal of the June 26, 

2017 order justiciable. See A.P., 408 N.J. Super. at 262. 

In sum, this appeal 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 

defendants might suffer from those orders in any subsequent guardianship 

proceeding can, and indeed must, be addressed in that proceeding. Having 
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reviewed the record, we are convinced that none of the other issues defendants 

raise 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).

Because of our disposition of the appeal, we decline to consider 

defendants' contention that Judge Melchionne's decision to continue the children 

in the care and custody of the Division was not based on competent evidence. 

Defendants' constitutional challenge to Section 12 lacks sufficient merit to 

warrant discussion in our written opinion. R. 2:11-3(e)(1)(E). 

Dismissed.