NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3652-07T43652-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.F.,

Defendant-Appellant,

IN THE MATTER OF I.R.,

a minor.

__________________________________

 

Argued December 9, 2008 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-116-07.

Michael S. Harwin, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Harwin, on the brief).

Shona L. Mack, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Mack, on the brief).

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minor I.R. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).

PER CURIAM

P.F., the biological father of I.R., a boy born September 7, 1997, appeals from the March 14, 2008 order of the Family Part dismissing a Title 9 abuse and neglect complaint. For reasons that follow, we dismiss the appeal as moot.

K.R. is the biological mother of I.R. and of his sister, I.L.R., born January 24, 2007. C.G. is I.L.R.'s father. On the day of I.L.R.'s birth, the New Jersey Division of Youth and Family Services (DYFS) received a referral from the hospital alleging substance abuse and neglect by K.R. According to the hospital, both K.R. and I.L.R. tested positive for cocaine.

On January 24, 2007, DYFS filed an abuse and neglect complaint as to both children against K.R. and named P.F. as I.R.'s father, and C.G. as I.L.R.'s father. However, no allegations of abuse and neglect were asserted against them. Immediately following the filing of the complaint, I.R. and I.L.R. were removed from K.R.'s custody. At the time of removal, I.R. resided with K.R.Q., his maternal aunt, pursuant to an informal custody arrangement. I.L.R. was placed in the physical custody of her maternal great-aunt, G.N., and has remained in her care since. On August 31, 2007, I.R. was removed from K.R.Q.'s custody and placed in the home of G.N. with his sister.

In the interim, on March 29, 2007, DYFS served P.F. with a copy of the Title 9 complaint and order to show cause. At that time, P.F. was married to another individual, had two other children by that marriage, and suffered from melanoma cancer. P.F. acknowledged his paternity of I.R. and cooperated with DYFS's request for services, including attending parenting skills classes and visiting with I.R.

On January 14, 2008, the trial court conducted a permanency hearing, pursuant to N.J.S.A. 30:4C-61.2. DYFS's plan proposed termination of K.R.'s, P.F.'s and C.G.'s parental rights to the children followed by adoption by G.N. P.F. and C.G. attended the hearing with counsel. K.R. did not attend the hearing, having been admitted to an in-patient drug treatment facility several days prior. However, K.R.'s attorney did attend the hearing and objected to the proposed permanency plan. P.F. also objected to the plan and testified on his own behalf. At the conclusion of the hearing, the court approved DYFS's permanency plan and directed DYFS to file a guardianship complaint as to both children.

On February 15, 2008, the trial court denied P.F.'s motion for reconsideration. At a compliance review hearing on March 14, 2008, the court entered an order dismissing the Title 9 complaint, DYFS having filed its complaint for termination of parental rights. On March 25, 2008, P.F. filed an appeal from the March 14, 2008 order. Neither C.G. nor I.L.R. is the subject of this appeal.

On June 30, 2008, G.N. requested that DYFS remove I.R. from her custody. Upon removal, I.R. was placed in a non-relative caretaker's home. On July 28, 2008, a DYFS caseworker inquired whether P.F. would take physical custody of I.R. Unfortunately, P.F. could not. He informed the caseworker that he had just been released from the hospital after a one-month stay, and that, "due to his illness[,] he is unable to work and has a lot of medical complications."

On October 22, 2008, the trial court entered an order amending the permanency plan as to I.R. from that of termination of parental rights followed by adoption, to kinship legal guardianship with either K.R.Q. or the current caretaker serving as guardian. K.R. consented to the new plan. Although P.F. did not appear because of his illness, his attorney did. At the hearing, the attorney consented to the new permanency plan on P.F.'s behalf, stating that he opposed the plan only "if [P.F.] survives his medical condition." Tragically, we were informed at oral argument that P.F. lost his battle with cancer, dying the day prior to argument.

On appeal, P.F. had argued that: 1) DYFS violated his due process rights by failing to provide timely notice of its intention to terminate his parental rights prior to the January 14, 2008 permanency hearing; 2) the trial court failed to provide him with a plenary hearing; 3) DYFS failed to consider a long-term placement of I.R. with a relative as an alternative to termination of P.F.'s parental rights; and 4) DYFS failed to make reasonable efforts to reunify I.R. with his family.

DYFS and the Law Guardian request that we dismiss the appeal based on the events that occurred after the March 14, 2008 order. We agree.

"Issues that have been rendered moot by subsequent developments render legal issues abstract and outside the proper realm of courts." In re City of Plainfield's Park-Madison Site, 372 N.J. Super. 544, 550 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005). Accordingly, courts "will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties." Advance, Inc. v. Montgomery Twp., 351 N.J. Super. 160, 166 (App. Div.), certif. denied, 174 N.J. 364 (2002). Nevertheless, "[c]ourts occasionally will rule on such matters where they are of substantial importance and are capable of repetition while evading review." Ibid.

Here, on October 22, 2008, the court entered an order amending DYFS's permanency plan as to I.R., changing the plan from termination of parental rights followed by adoption to that of kinship legal guardianship. We are satisfied that the order provided P.F. the relief sought, that is, that I.R. will be cared for by a family member or by the current caretaker. Because our decision would not have any practical effect on the initial controversy, we dismiss the appeal as moot. Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006).

At oral argument, P.F.'s counsel acknowledged that the issues raised on appeal are moot but requested that we decide

the issues on their merits, contending that they are of substantial public importance and that there is a chance that they may reoccur. We disagree and decline the invitation.

Appeal dismissed.

 

(continued)

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6

A-3652-07T4

RECORD IMPOUNDED

January 2, 2009