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Division of Youth and Family Services v. D.L. and M.M.K


February 1, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FN-16-117-06 and FG-16-104-08.

Per curiam.



Argued September 21, 2010

Before Judges Carchman and Waugh.

Defendant M.M.K. appeals from a November 18, 2009 order of the Family Part terminating his right to visit with his son, A.R.K. Defendant asserts that the trial court lacked jurisdiction to enter the order. In addition, he claims that even if the court did have jurisdiction, its decision was in error. We now dismiss the appeal as moot.

We briefly set forth the relevant facts as well as the procedural posture of this appeal to place our determination in context.

Defendant and D.L.*fn1 are the birth-parents of A.R.K., born April 19, 2004. For reasons not relevant to the narrow issue before us, plaintiff New Jersey Division of Youth and Family Services (DYFS) filed a guardianship complaint against defendant and D.L. resulting in a judgment granting guardianship and terminating defendant's and D.L.'s parental rights. While the appeal was pending, we stayed the judgment and ordered that "[v]isitation, as it existed prior to the entry of judgment, is restored pending our disposition of the appeal. The filing or prosecution of any adoption proceeding is also stayed. The judgment under review is not otherwise stayed." (The March 5th order.) We denied DYFS' motion for reconsideration.

On August 11, 2009, defendant filed a motion to supplement the record with regard to the appeal from the initial guardianship judgment. In an order dated September 1, 2010, we denied this motion "without prejudice to the right to seek compliance with [the March 5th order] in the Family Part." We further noted that "[j]urisdiction over that issue is conferred to the Family Part judge."

DYFS then moved in the Family Part seeking the following relief:

1. Ordering that [defendant's] weekly supervised visits with [A.R.K.] take place at the Division office.

2. Prohibiting [defendant] from undressing [A.R.K.] during the visits or from videotaping or recording the visits.

3. Restraining [defendant] from threatening Division personnel.

4. Restraining [defendant] from any contact with [A.R.K.'s] foster parents.

5. Ordering that [defendant] immediately return all confidential Division records, including but not limited to psychological evaluations, to the Division.

6. Restraining [defendant] from the Division office except for the purpose of attending weekly supervised visits.

On October 22, 2009, the Family Part judge, who had managed the case and presided at the guardianship trial, entered an interim order requiring M.M.K.'s visits to take place at the Division's office. He reserved decision on DYFS' other requests.

Defendant filed a cross-motion seeking the following relief:

1. Denying Plaintiff's Motion in its entirety;

2. Ordering the immediate removal of the minor child, [A.R.K.], from his present foster home, with [J.T.], and transferring [A.R.K.] to an alternate Muslim foster home;

3. Compelling the Division to turn over all records relating to the investigation of [A.R.K.'s] foster home to the court for in camera review;

4. Enforcing the April 25, 2008 Order of the Court and requiring the Division to turn over medical records for the minor child, [A.R.K.], to Defendant; and

5. For such other relief as the Court may deem equitable and just.

In deciding the motions, the motion judge entered an order terminating defendant's visitation rights and denying defendant's cross-motion. The judge concluded that the Family Part had jurisdiction and determined that the best interests of the child would be served by terminating defendant's visitation rights while the appeal was pending. He said:

I do believe that this . . . order confers upon me the right to do what I believe is proper for that child for the best interest of the child if I believe an injustice is being done, if I believe that this child is in a position of jeopardy, if I believe that what's happening is against his interest, whether it be under our relaxation rules, or just common sense, I believe that this court has the right to do so, especially in the light of the language of [the] . . . order.

He then entered an order providing that:

1. Further visitation by either parent with the minor child [A.R.K.] is hereby suspended, with the exception of a final visit of one hour's duration for each parent to be held at the Division's office.

2. Defendant [M.M.K.] is restrained from threatening Division personnel.

3. Defendant [M.M.K.] is restrained from contact with [A.R.K.'s] foster parents.

4. Defendant must immediately return to the Division all copies of confidential Division records, including any psychological evaluations.

5. Defendant [M.M.K.] is restrained from the Division office except for the purpose of attending a last visit with [A.R.K.].

6. Defendant [M.M.K.'s] application for a stay of this Order pending appeal is denied.

Defendant appealed this order and filed a notice of motion to vacate, or in the alternative, stay the trial judge's order terminating all visitation. He moved:

1. For an Order Vacating the Trial Court's Order dated November 18, 2009; or, in the alternative, for a Stay of the Trial Court's Order dated November 18, 2009.

2. Enforcing the Appellate Division's Order filed March 13, 2009, and re-implementing Defendant-Appellants' visitation with the subject minor child, [A.R.K.].

We declined to rule on the motion, issuing the following order:

Because the decision in DYFS v. DL and MK (A-1771-08) will likely impact the issues raised in this motion and this appeal, we decline at this time to rule on the application and refer the issues to [the Part] where A-1771-08 is presently calendared for disposition on March 3, 2010.

On April 19, 2010, in a per curiam opinion, we affirmed the Family Part's October 30, 2008 decision terminating the parental rights of defendant and D.L. N.J. Div. Youth & Fam. Servs. v. D.L. & M.M.K., No. A-1771-08T4, A-1974-08T4 (App. Div. Apr. 19, 2010). Thereafter, defendant petitioned the Supreme Court for certification to review the decision.

After our decision on the merits of the appeal from the guardianship judgment, DYFS filed a notice of motion to dismiss this appeal. We denied this motion and issued the following order:

DYFS argues that this appeal regarding [defendant's] visitation rights should be dismissed as moot because we affirmed the trial court's judgment terminating the parental rights of D.L. and [defendant.] (Docket Nos. A-1771-08T4 and A-1974-08T4).

However, we decline to dismiss this appeal while [defendant's] petition for certification is pending.

On November 16, 2010, the Supreme Court denied the defendant's petition for certification. N.J. Div. Youth & Fam. Servs. v. D.L. & M.M.K., ___ N.J. ___ (2010). We now dismiss this appeal as moot.*fn2

Defendant asserts that we should consider and determine the due process rights that should be afforded to defendant-parents during the pendency of an appeal.

We recently considered a claim of mootness and said:

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. Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231, 762 A.2d 255 (App. Div. 2000), certif. denied, 167 N.J. 630, 772 A.2d 932 (2001). "A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." DeVesa v. Dorsey, 134 N.J. 420, 428, 634 A.2d 493 (1993) (Pollock, J., concurring) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303, 344 A.2d 769 (1975)). To restate, "'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. 257-58, 888 A.2d 507 (App. Div. 2006) (quoting N.Y.S. & W. R. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984)), aff'd, 204 N.J. Super. 630, 499 A.2d 1037 (App. Div. 1985).

Courts normally will not decide issues when a controversy no longer exists, and the disputed issues have become moot. DeVesa, supra, 134 N.J. at 428, 634 A.2d 493; N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240, 69 A.2d 875 (1949); Edelstein v. City of Asbury Park, 12 N.J. Super. 509, 514-15, 79 A.2d 860 (App. Div. 1951).

[Betancourt v. Trinitas Hospital, 415 N.J. Super. 301, 311 (App. Div. 2010).]

We recognized that there are exceptions and instances where courts will consider and decide an issue that is technically moot.

On occasion, however, courts have decided an otherwise moot appeal "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330, 676 A.2d 1065 (1996). Accord Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165, 712 A.2d 188 (1998) (involving an application for Medicaid benefits); In re Conroy, 98 N.J. 321, 342, 486 A.2d 1209 (1985) (addressing the withholding or withdrawing life-sustaining treatment); State v. Perricone, 37 N.J. 463, 469, 181 A.2d 751 (considering blood transfusion for infant son of Jehovah's Witnesses), cert. denied, 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962); Advance Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166, 797 A.2d 216 (App. Div.) (considering a school board contract and subcontract), certif. denied, 174 N.J. 364, 807 A.2d 195 (2002).

[Betancourt, supra, 415 N.J. Super. at 311-12.]

All parties concede that the issues raised on this appeal are moot. We determine that none of the stated exceptions for considering a moot issue apply here. We agree that the issue of due process rights of parents whose parental rights have been terminated is of "substantial importance," but we question whether the issues raised here are either "likely to reoccur" or "capable of evading review." The circumstances here were unique and were prompted by the motion to supplement the record and remand.

Finally, the Supreme Court, in the different factual context of sibling visitation, set forth the parameters of the rights of parties in a hearing addressing post-termination judgment visitation rights. See Re D.C. and D.C., Minors, 203 N.J. 545, 574-576 (2010). The hearing described in D.C. would apply under these circumstances as well. We do not cite D.C. as dispositive but to suggest that there is no need to address the issues raised here in the context of a case that is admittedly moot.

The appeal is dismissed.

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