DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.O.

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NOT FOR PUBLICATION WITHOUT THE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-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

R.O.,

Defendant-Appellant,

and

B.H. and G.C.,

Defendants.

_________________________________

IN THE MATTER OF

J.H., C.H. and A.C.,

Minors.

__________________________________

November 4, 2016

Argued October 25, 2016 Decided

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-136-15.

Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the brief).

Erica Sharp, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Ms. Sharp, on the brief).

Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).

PER CURIAM

The Division of Child Protection and Permanency commenced this action against defendants, seeking only care and supervision but not custody of their three children, then ages thirteen, eleven and nine. Defendant R.O. (defendant), the mother of the three children, was ordered on three occasions during the litigation to provide a urine screen; no sample proved positive for drug use. By consent order, the action was dismissed.

Defendant appeals, arguing the judge erred in compelling drug testing because the Division failed to establish, in a number of ways, a factual nexus for such an order.1 Because defendant already complied with these interlocutory orders, she recognizes a potential for a determination that the issues posed are moot. Defendant, however, argues the appeal is not moot "because it concerns an issue of public importance that is likely to recur" and because of a continuing adverse effect, i.e., the possibility these orders could be released and "have a negative impact on [her] employment opportunities, on her ability to adopt children or become a foster parent, or on other aspects of her life."

That is, defendant first argues the appeal is not moot because she remains burdened by the orders entered in the trial court. In response, the Attorney General has represented that defendant will face no "future adverse consequences as a result of the trial court's order requiring her to submit to a urine drug screen." The Attorney General explained that because the allegations of the complaint were not established and because the action was dismissed, "the Division's records remain confidential" and records of the action may only be disclosed for the limited purposes specified by N.J.S.A. 9:6-8.10a. Moreover, the existing records of this litigation reveal only the Division's unproven allegations and the fact that defendant was compelled to submit to drug testing that did not reveal drug usage. In these circumstances, we fail to see a potential for a future adverse impact of significant consequence or how any mandate we might issue in this case will have any practical effect. See Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006).

This appeal presents only moot issues, which we will not consider unless they are of public importance and are likely to recur but will nevertheless evade appellate review. See, e.g., N.J. Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 118-19 (1990). Even if, as defendant argues, there exists a practice in the trial courts of compelling urine screenings without adequate factual foundations a claim unsupported by the record on appeal and even if such occurrences may be said to be matters of public importance, defendant has not demonstrated why future similar occurrences will evade appellate review. There is no reason why the next parent or guardian claiming to be subjected to an erroneous order for drug testing could not apply for interlocutory review and seek this court's intervention even on an emergent basis before complying with what may be viewed as an unjust and unwarranted direction.

We reject defendant's arguments that the appeal is not moot or, if it is, that we should reach the merits of this appeal.

Appeal dismissed.

1 For example, defendant contends the complaint was not verified and, for that reason, the judge could not rely upon the allegations of the complaint in compelling drug testing.