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Division of Youth and Family Services v. K.R.


July 29, 2008


On appeal from Superior Court of New Jersey, Law Division, Family Part, Passaic County, Docket No. FN-16-0083-08.

Per curiam.



Submitted July 21, 2008

Before Judges Graves and Yannotti.

The Office of the Public Defender (Public Defender) appeals from an oral decision by a Family Part judge, which prohibited a law guardian from participating in a court proceeding on November 2, 2007, to determine whether an application by the Division of Youth and Family Services (the Division) for an order to show cause would be granted. For the reasons that follow, we conclude the Public Defender's motion for leave to appeal was improvidently granted. Therefore, the current appeal is dismissed.

The facts are not in dispute. On October 23, 2007, K.R. gave birth to her fifth child, C.M. At the time of birth, C.M. weighed four pounds and ten ounces. Blood samples taken from mother and child tested positive for cocaine. The Division was familiar with K.R. because her parental rights to four other children had been involuntarily terminated. Shortly after C.M.'s birth, the Division filed a verified complaint*fn2 and order to show cause seeking to place C.M. in the immediate custody, care and supervision of the Division. The Division's application was considered by a Family Part judge on November 2, 2007. During that proceeding a law guardian within the Office of the Public Defender asked to participate on behalf of C.M., but the court denied the request:

The law guardian has no standing in this case because if you look at the complaint, it's an Order to Show Cause and to appoint a law guardian. . . . The fact that it's docketed doesn't mean a thing because I haven't heard anything.

. . . If I sign the Order to Show Cause in addition to whatever other relief the Division may be asking for as it [a]ffects the child and/or parent or parents, it also includes the right to have a . . . law guardian appointed on behalf of the child.

. . . . . . . The child's interests are not in any way prejudiced by the law guardian having no standing at this point until I sign the order.

If I sign the order and a law guardian is appointed, there is nothing stopping the law guardian from being in court the next morning to seek whatever relief they [may] or may not want on behalf of the child, if there is a dispute as to the relief granted in the Order to Show Cause . . . .

The Division is here to protect everybody's interest and will do that. The Division just doesn't come in haphazardly and ask for relief. . . . To tell me that [the child] is not represented, I don't buy that for one second.

If the law guardian wants to come into the case, be my guest, come in any time you want, but you're going to come in after I enter the order and not before. That is my decision.

The trial court also denied the Public Defender's request to stay the proceedings pending appeal, reasoning as follows:

I'm not going to stay it because I'm not going to jeopardize the child which is exactly [the] opposite [of] what you're trying to do. You should be worried about the child, not running to the Appellate Division on a stay because then this [child is] in bigger jeopardy. . . . That's exactly the point.

The order entered on November 2, 2007, awarded custody of C.M. to the Division, and it required C.M.'s parents to show cause on November 29, 2007, why the child should not continue in the care and custody of the Division. The order also contained the following provisions:

8. The Office of the Public Defender, Law Guardian Program, be assigned as law guardian for the child; and it is further ordered,

9. The Law Guardian for the child shall be entitled and permitted to have access to obtain copies of all records, including but not limited to medical, mental health, school, drug or alcohol treatment and other records and/or information concerning his/her client, and shall have access to the children at their home, resource family home, school or day care center or treatment facility, and shall be entitled to speak to the children and/or service providers, privately, outside the presence of parents, resource family or school personnel without further release . . . .

On January 16, 2008, we granted the Public Defender's motion for leave to appeal the trial court's oral decision. On appeal, the Public Defender argues the appointment of counsel must occur "prior to the commencement of hearing evidence and argument at an Order to Show Cause hearing." Neither the Division nor C.M.'s parents have filed a brief in this matter.

Case law is clear "that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); see also Credit Bureau Collection Agency v. Lind, 71 N.J. Super. 326, 328 (App. Div. 1961) ("It has long and invariably been recognized . . . that no appeal lies from opinions or from written or oral conclusions of courts, but only from judgments or orders.").

In this case, no order was entered precluding the Public Defender from representing C.M. To the contrary, following the hearing on November 2, 2007, the order to show cause was entered appointing the Public Defender as law guardian for C.M. See In re Petition for a Declaratory Ruling Regarding the City of Plainfield's Park-Madison Site, 372 N.J. Super. 544, 550 (App. Div. 2004) ("Issues that have been rendered moot by subsequent developments render legal issues abstract and outside the proper realm of courts."), certif. denied, 182 N.J. 630 (2005); Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993) ("It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed."). See also In re Court Budget & Court Personnel in Essex County, 81 N.J. 494, 497 (1980) (refusing to consider the merits of a moot appeal, even though the question was of "wide public importance").

Additionally, our courts are hesitant to render opinions in the absence of an action that is adversarial in nature. See Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J. Super. 295, 301-02 (App. Div. 2005). "[T]hat is, there must be a controversy between the plaintiff and a defendant, subject to the court's jurisdiction, having an interest in opposing his claim. Simply put, the threshold question is whether the controversy presented is actual and bona fide." Ibid. (internal quotations and citations omitted); see also Zamboni v. Stamler, 199 N.J. Super. 378, 383 (App. Div. 1985) ("We will not render advisory opinions or function in the abstract; nor will we decide a case based upon facts which are undeveloped or uncertain."). In the present appeal, neither the Division nor C.M.'s mother or father have filed a brief, and the Public Defender was ultimately appointed law guardian for C.M. Moreover, the record does not contain the Division's complaint or any other facts or documentation outside of the hearing on November 2, 2007.

In sum, given the lack of an order denying C.M.'s requested relief, the absence of a controversy between disputing parties on the issue appealed, the court's appointment of the Public Defender as law guardian for C.M. on November 2, 2007, and the undeveloped record before us, we ultimately conclude the Public Defender's motion for leave to appeal was improvidently granted on January 16, 2008. See State v. Abeskaron, 326 N.J. Super. 110, 122 (App. Div. 1999) ("An appellate court may vacate an order granting leave to appeal as improvidently granted."), certif. denied, 163 N.J. 394 (2000); Pressler, Current N.J. Court Rules, comment 1 on R. 2:5-6 (2008) ("The appellate court has the authority to vacate an order granting leave to appeal improvidently entered.").

The appeal is dismissed.

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