Opinion
DOCKET NO. A-0877-13T4
07-29-2014
IN THE MATTER OF R.R., AN ALLEGED INCAPACITATED PERSON.
Michael Confusione argued the cause for appellant Shirley McDevitt (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief). Theodore E. Baker, County Counsel, argued the cause for respondent County of Cumberland Office on Aging. Suzanne M. Dykes argued the cause for respondent Public Guardian for Elderly Adults (Helen C. Dodick, Acting Public Guardian, attorney; Joseph A. Fontana, on the brief). Respondent Robert J. Pryor, Court Appointed Interim Guardian, has not filed a brief. Respondent R.R. has not filed a brief. Respondent Alana Fanzo has not filed a brief. Respondent David Bomaro has not filed a brief. Respondent Al Bombaro has not filed a brief. Respondent John Bombaro has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Cumberland County, Docket No. 024076. Michael Confusione argued the cause for appellant Shirley McDevitt (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief). Theodore E. Baker, County Counsel, argued the cause for respondent County of Cumberland Office on Aging. Suzanne M. Dykes argued the cause for respondent Public Guardian for Elderly Adults (Helen C. Dodick, Acting Public Guardian, attorney; Joseph A. Fontana, on the brief). Respondent Robert J. Pryor, Court Appointed Interim Guardian, has not filed a brief. Respondent R.R. has not filed a brief. Respondent Alana Fanzo has not filed a brief. Respondent David Bomaro has not filed a brief. Respondent Al Bombaro has not filed a brief. Respondent John Bombaro has not filed a brief. PER CURIAM
In this guardianship matter, the Cumberland County Office on Aging & Disabled, Adult Protective Services (APS), sought a declaration of incapacity and appointment of a guardian for R.R., an eighty-three-year-old woman. Appellant Shirley McDevitt, R.R.'s sister, and Alana Fanzo, R.R.'s daughter, both demanded to serve as guardian. At the start of the hearing on July 26, 2013, all interested parties, including Ms. McDevitt who was present and represented by counsel, consented to the appointment of the Office of the Public Guardian as the guardian of R.R.'s person and property. The Chancery Court judge entered a Judgment of Incapacity and Order Appointing Guardian of the Person and the Estate of R.R.
Ms. McDevitt filed this appeal seeking to vacate the appointment and remand the matter to the trial court with direction that she be appointed R.R's guardian. Several weeks prior to the scheduled oral argument before this panel, APS reported that R.R. passed away in May 2014. We directed counsel to submit briefs on whether R.R's death rendered the appeal moot. In their supplemental briefs, all counsel agreed that R.R.'s passing away has rendered the appeal moot; however, Ms. McDevitt argues that the appeal should not be dismissed.
In its brief and at oral argument, counsel for Ms. McDevitt, relying on In re N.N., 146 N.J. 112, 124 (1996), argues the issues raised on appeal "involve significant matters of public policy, are extremely important, and undoubtedly will recur in cases that are likely to be mooted before adjudication." Ms. McDevitt requests a decision on the issues presented, namely:
1) Did the chancery court err by appointing the Public Guardian as guardian of R.R.'s person and property without making the findings required by The Public Guardian for Elderly Adults Act, N.J.S.A. 52:27G-20 to -31?
2) Did the chancery court err by appointing the Public Guardian based solely on the alleged "understanding" presented by counsel below?
3) Can "understanding" or "consent" of the parties sustain a chancery court's appointment of the Public Guardian without the court making the findings that The Public Guardian for Elderly Adults Act, N.J.S.A. 52:27G-20 to -31, prescribes?
Counsel also argues that once the Public Guardian was appointed, and Ms. McDevitt no longer had control over her sister's welfare, R.R. physically suffered while in the care of her nursing facility. Ultimately, concern over R.R.'s well-being prompted this appeal.
Counsel for APS argues the issues raised are moot, under the circumstances. All parties consented to the appointment of the Public Guardian, in lieu of either Ms. Fanzo or Ms. McDevitt, with full knowledge that neither one of the two interested family members was acceptable to the other. The court accepted the consent agreement aware of the family dynamics. APS further argues, if Ms. McDevitt later had concerns with the Public Guardian's care of R.R., she could have and should have brought the matter before the trial court for a hearing on the issues.
A court-appointed counsel for R.R. had previously prepared and submitted a report to the court, pursuant to Rule 4:86-4(b), which set forth her finding as to R.R.'s medical and mental status; her financial resources, assets, and liabilities; and the "strained" family dynamics. The report recommended Ms. Fanzo as guardian of R.R.'s person.
Counsel for the Public Guardian argues that the court has the authority to address the needs of an incapacitated person under both N.J.S.A. 3B:12-1 and N.J.S.A. 52:27G-29. It argues that when read together, and applied to the circumstances of this case, the court had the authority to appoint the Public Guardian as R.R's guardian in lieu of the interested family members.
Chapter 12 of Title 3B pertains to guardianship and delineates the court's authority to address the immediate needs of an incapacitated person. See Assembly Judiciary Committee, Statement to Assembly Bill No. 1922, at 1 (May 19, 2005).
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With that background, we conclude plaintiffs' appeal must be dismissed as moot. "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." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). "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. 254, 257-58 (App. Div. 2006).
As noted previously, the guardianship has been terminated as a result of R.R.'s death. Thus, resolution of the issues presented by Ms. McDevitt would have no practical effect on the present controversy. Moreover, the issue as to whether the trial court erred by appointing the Public Guardian without making certain findings of fact is an issue that could arise in other cases. While the issue is moot in this matter, it is not likely to be moot in all cases in which such appointments are made. Therefore, we decline to address the issue raised by appellant.
Dismissed as moot.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION