Interest of M.R.

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 31, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 68In the Interest of M.R., a child
State of North Dakota, Petitioner and Appellee
v.
J.R., Father, Respondent and Appellant
and
M.R., Child, and N.K., Mother, Respondents
No. 20210204
Appeal from the Juvenile Court of Divide County, Northwest Judicial District,
the Honorable Robin A. Schmidt, Judge.
DISMISSED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justices VandeWalle and McEvers joined. Justice Crothers filed a specially
concurring opinion.
Seymour R. Jordan (on brief), State’s Attorney, Crosby, N.D., for petitioner and
appellee.
Kiara C. Kraus-Parr, Grand Forks, N.D., for respondent and appellant.
Interest of M.R.
No. 20210204
Tufte, Justice.
[¶1] A father, J.R., appeals a juvenile court order finding his child, M.R., to
be deprived; removing M.R. from the care, custody, and control of the parents;
and placing M.R. with North Star Human Service Zone (“North Star”). Because
M.R. is no longer a minor child and the order on appeal has expired, we dismiss
the appeal as moot.
I
[¶2] North Star petitioned to have M.R. placed in its care, custody, and
control, alleging M.R. was a “deprived child” as defined by statute. After a
hearing, the juvenile court found the parties agreed that M.R.’s placement with
North Star until the age of eighteen was in M.R.’s best interests. The court
found M.R. was a deprived child, M.R. remaining in the parental home was
contrary to M.R.’s welfare, reasonable efforts were made to prevent removal,
and M.R. desired to be placed with North Star. The court placed M.R. in North
Star’s care, custody, and control. The order provides that it shall expire on
M.R.’s eighteenth birthday. The father appealed. After the notice of appeal was
filed, M.R. turned eighteen years old. In light of M.R. no longer being a minor
child, we directed the parties to address in their briefs whether the case is
moot.
II
[¶3] “This Court may consider the threshold issue of mootness in every
appeal.” Interest of B.A.C., 2017 ND 247, ¶ 7, 902 N.W.2d 767. We do not
render advisory opinions, and “an appeal will be dismissed if the issues
become moot or academic, leaving no actual controversy to be determined.”
Schwartzenberger v. McKenzie Cty. Bd. of Cty. Comm’rs, 2017 ND 211, ¶ 6, 901
N.W.2d 64. “No actual controversy exists if certain events have occurred which
make it impossible for this Court to issue relief, or when the lapse of time has
made the issue moot.” In re G.K.S., 2012 ND 17, ¶ 4, 809 N.W.2d 335. An appeal
is not moot if the district court’s decision “continues to have ‘collateral
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consequences’ for the appealing party.” Id. (quoting Millang v. Hahn, 1998 ND
152, ¶ 6, 582 N.W.2d 665).
[¶4] The father contends the case is not moot because the judicial
determination of deprivation may potentially have collateral consequences for
him. He asserts that if he has more children, the deprivation determination
may be used against him in some future proceeding, citing In re B.B., 2008 ND
51, ¶ 9, 746 N.W.2d 411 (“[E]vidence of the parent’s background, including
previous incidents of abuse and deprivation, may be considered in determining
whether deprivation is likely to continue.”). He also argues the deprivation
determination could affect his future employment, such as in an educational
setting with minors; limit his housing options; and hinder his ability to obtain
a professional license.
[¶5] In Interest of B.A.C., the district court ordered B.A.C. to be hospitalized
at the State Hospital for 90 days. 2017 ND 247, ¶ 5. The court found that as a
result of its order, B.A.C. was prohibited from possessing firearms under
federal law. Id. The court ordered B.A.C. to be released from the hospital about
two weeks after the hospitalization order. Id. On appeal, we addressed whether
the case was rendered moot by B.A.C.’s release. Id. at ¶ 6. We concluded the
appeal was not moot because the finding that federal firearms restrictions
applied was a “lasting collateral consequence of the order.” Id. at ¶ 9. We
emphasized, “Absent evidence that B.A.C. was already subject to a federal
firearms restriction, we will presume that these restrictions are a collateral
consequence.” Id. at ¶ 10 (emphasis added).
[¶6] The father’s alleged collateral consequences are remote and speculative,
as opposed to the actual firearm restrictions in effect in Interest of B.A.C. The
father does not point to any evidence in the record showing that his alleged
collateral consequences are anything more than mere possibilities. See Dep’t of
Human Servs. v. A.B., 412 P.3d 1169, 1178-79 (Or. 2018) (rejecting mother’s
alleged collateral consequences that finding of abuse and neglect would
disadvantage her in future child abuse and neglect proceedings and limit her
employment options); Dep’t of Human Servs. v. B.A., 330 P.3d 47, 50-51 (Or. Ct.
App. 2014) (rejecting parents’ asserted collateral consequences of possible
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harm to prospective employment and adverse future action by Department of
Human Services as too speculative); N.F. v. G.F., 2013 UT App 281, ¶ 14, 316
P.3d 944 (rejecting grandmother’s alleged collateral consequence that child
abuse finding in expired protective order may be used against her by mother
in subsequent civil action as hypothetical and speculative).
[¶7] Further, the father’s alleged collateral consequences would not be cured
by a favorable ruling on appeal. The record shows the father is incarcerated in
Oregon. At oral argument, the father’s attorney did not dispute that the father
was convicted of rape and attempted murder. Thus, the father’s alleged
collateral consequences of the deprivation determination—informing future
deprivation determinations and limiting his ability to obtain employment,
housing, and professional licensure—are no different or greater than the
adverse consequences flowing from his convictions for rape and attempted
murder. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (identifying
adverse consequences of a criminal conviction); In re A.K., 628 S.E.2d 753, 755-
56 (N.C. 2006) (same); Cole v. Campbell, 968 S.W.2d 274, 276 (Tenn. 1998)
(same); State v. Golston, 643 N.E.2d 109, 111 (Ohio 1994) (stating “collateral
legal consequences associated with a felony conviction are severe and
obvious”). In other words, the father has not established he will suffer an
adverse consequence as a result of the deprivation determination.
[¶8] Because M.R. has reached the age of eighteen, the juvenile court order
has expired, and the father has failed to show the order caused any collateral
consequences, we conclude no actual controversy remains and the appeal is
moot.
III
[¶9] The appeal is dismissed.
[¶10] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
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Crothers, Justice, specially concurring.
[¶11] I agree with the majority opinion that the collateral consequences
exception to the mootness doctrine does not apply because M.R. reached the
age of majority and the father did not sufficiently prove consequences actually
exist. Majority opinion, ¶¶ 7-8. I do not agree with the majority that extraneous
likely adverse effects from the father’s convictions and current incarceration
should be considered collateral consequences in this deprivation appeal. Id. at
¶ 7.
[¶12] This Court regularly invokes the collateral consequences exception to
mootness. See, e.g., Interest of B.A.C., 2017 ND 247, ¶ 7, 902 N.W.2d 767(appeal of mental illness adjudication after release); State v. Olson, 2003 ND
23, ¶ 9, 656 N.W.2d 650 (guilty plea after probation revocation not moot
because an increased risk that any future violation of a condition of his
probation will result in revocation); Kahl v. Dir., N.D. Dep’t of Transp., 1997
ND 147, ¶ 7, 567 N.W.2d 197 (defendant’s completion of sentence for criminal
conviction does not render a direct appeal from the conviction moot because of
the collateral consequences stemming from a conviction, including
consideration of the conviction in sentencing if defendant is again convicted of
a crime); Matter of Contempt of Grajedas, 515 N.W.2d 444, 448 (1994)
(contemptors did not comply with the district court’s orders and were not
purged of their contempts so that appeal was only way to challenge the orders
and remove the individual stigma of their contempt convictions). However, I do
not find that we have described how the exception works, and what burden is
imposed on an appealing party.
[¶13] The Connecticut Supreme Court provided a useful explanation of the
collateral consequences exception as follows:
Our inquiry begins with some basic principles. Mootness is
a question of justiciability that must be determined as a threshold
matter because it implicates this court’s subject matter
jurisdiction. Wallingford v. Dept. of Public Health, 262 Conn. 758,
766, 817 A.2d 644 (2003). The mootness doctrine is founded on the
same policy interests as the doctrine of standing, namely, to assure
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the vigorous presentation of arguments concerning the matter at
issue. The standing doctrine is designed to ensure that courts and
parties are not vexed by suits brought to vindicate nonjusticiable
interests and that judicial decisions which may affect the rights of
others are forged in hot controversy, with each view fairly and
vigorously represented. Indeed, we note that courts are called upon
to determine existing controversies, and thus may not be used as
a vehicle to obtain advisory judicial opinions on points of law.
An actual controversy must exist not only at the time the
appeal is taken, but also throughout the pendency of the appeal.
When, during the pendency of an appeal, events have occurred
that preclude an appellate court from granting any practical relief
through its disposition of the merits, a case has become moot.
However, under this court’s long-standing mootness jurisprudence
. . . despite developments during the pendency of an appeal that
would otherwise render a claim moot, the court may retain
jurisdiction when a litigant shows that there is a reasonable
possibility that prejudicial collateral consequences will occur.
To invoke successfully the collateral consequences doctrine,
the litigant must show that there is a reasonable possibility that
prejudicial collateral consequences will occur. Accordingly, the
litigant must establish these consequences by more than mere
conjecture, but need not demonstrate that these consequences are
more probable than not. This standard provides the necessary
limitations on justiciability underlying the mootness doctrine
itself. Where there is no direct practical relief available from the
reversal of the judgment, as in this case, the collateral
consequences doctrine acts as a surrogate, calling for a
determination whether a decision in the case can afford the litigant
some practical relief in the future. State v. McElveen, supra, 261
Conn. at 208, 802 A.2d 74.
Putman v. Kennedy, 900 A.2d 1256, 1261 (Conn. 2006). (Cleaned up.)
[¶14] In the present appeal, the father only offered conjecture that he would
suffer collateral consequences from the finding M.R. was deprived. Majority
opinion, ¶ 7. His arguments were just that—which fall short of showing by a
reasonable probability that he would be harmed by the juvenile court’s
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deprivation finding. Absent that showing of collateral consequences, this case
is not justiciable and I agree this appeal should be dismissed as moot.
[¶15] Daniel J. Crothers
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