                                 NOT FOR PUBLICATION WITHOUT THE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-3845-18T2

M.R.,

          Petitioner-Appellant,

v.

HUDSON COUNTY
DEPARTMENT OF
FAMILY SERVICES,

     Respondent-Respondent.
___________________________

                   Argued September 23, 2019 – Decided October 24, 2019

                   Before Judges Sumners and Geiger.

                   On appeal from the New Jersey Department of Human
                   Services, Division of Family Development, Agency
                   Docket No. C253478009.

                   Gregory G. Diebold argued the cause for appellant
                   (Northeast New Jersey Legal Services, attorneys;
                   Rachael E. Funk, of counsel and on the briefs).

                   Francis Xavier Baker, Deputy Attorney General,
                   argued the cause for respondent (Gurbir S. Grewal,
                   Attorney General; Melissa H. Raksa, Assistant
              Attorney General, of counsel; Nicholas Logothetis,
              Deputy Attorney General, on the brief).

PER CURIAM

        Appellant M.R. appeals the final agency decision of the Department of

Human Services, Division of Family Development (Department) denying her

application for emergency assistance in the form of temporary rental assistance

through the Work First New Jersey (WFNJ) program. We reverse because we

conclude there was no credible evidence to support the Department's

determination that M.R. was not entitled to emergency assistance since she

voluntary quit her employment as proscribed by N.J.A.C. 10:90-6.1(c)(3).

                                         I

        M.R.'s employment with Star Hospitality Group (Star Hospitality), as a

housekeeper, was terminated.1 Thus, on December 19, 2018, she applied to the

Hudson County Department of Family Services (County), which administers the

WFNJ program, for emergency assistance in order to pay her rent. However,

because eviction proceedings against her had not yet commenced, her

application could not be processed. The situation changed about two months




1
    The record does not indicate M.R.'s termination date.
                                                                       A-3845-18T2
                                        2
later on February 4, 2019, when M.R. faced eviction so the County then

processed her application for emergency assistance.

      On March 12, the County sent M.R. a notice that her emergency assistance

application was denied because her employment termination was "caused by

[her own] actions." The County cited N.J.A.C. 10:90-6.1(c)(3) and imposed a

six-month penalty period precluding M.R. from receiving emergency assistance.

M.R. challenged the ruling by requesting a fair hearing before an Administrative

Law Judge (ALJ).

      At the hearing, Jared Martinez, a County employee, testified regarding his

supervisor's interview of M.R., during her initial application for emergency

assistance on December 19, 2018, and the efforts made to contact Star

Hospitality to find out why M.R. was terminated.

      Martinez revealed that after multiple unsuccessful attempts to contact Star

Hospitality by phone and mail, the County eventually received two letters from

the company's Director of Operations. The first, dated February 13, 2019,

merely confirmed M.R.'s employment.          The second, dated February 21,

disclosed that Star Hospitality "is a temporary work agency," and tersely stated:

"[M.R.] was released from employment due to reduced contractual business."




                                                                         A-3845-18T2
                                       3
Neither correspondence suggested M.R. was terminated due to poor work

performance.

      The County admitted into evidence M.R.'s hand-written statement dated

December 19, providing: "I was fired from Star Hospitality in November for

work performance and the business for the [h]otel was slow."

      Martinez conceded the County, even after explicit requests, was unable to

obtain any information in writing from Star Hospitality about M.R.'s alleged

poor work performance. Nevertheless, the County determined the sole written

statement by M.R. was a sufficient basis to deny her emergency assistance.

      M.R., representing herself, was asked by the ALJ about being fired due to

staff reduction and work performance issues. She responded, "the only reason

why they reduced the staff was because they didn't have enough money to go

out to people that wasn't fully clean in the room [sic]." When the ALJ inquired

if there was any additional information she wanted to share, M.R. revealed she

had attended a job fair hosted by Star Hospitality where she was told she could

get her job back, but was never contacted about reemployment. The record is

unclear when the job fair took place, but it appears to have occurred around the

time prior to M.R's eviction because the ALJ asked her if she informed the

County about the job offer.


                                                                        A-3845-18T2
                                       4
      The ALJ's three-page initial decision made seven findings of fact,

including that M.R.'s termination was for both work performance and reduced

business. In her legal analysis, citing N.J.A.C. 10:90-6.1(c)(3) and N.J.A.C.

10:90-4.14(b), the ALJ stated M.R. "lost her job due to her job performance"

and the "cessation of employment was due to her job performance" with no

mention of the reduction in Star Hospitality's business.

      M.R., now represented by counsel, filed exceptions to the initial decision.

The Department rejected M.R.'s contentions and denied her emergency

assistance. In its final agency decision, the Department, citing only N.J.A.C.

10:90-6.1(c)(3), stated it "agree[s] [with the ALJ] that [M.R.] caused her own

homelessness" and adopted the ALJ's factual findings and legal analysis.

                                       II

      Before us, M.R. maintains the Department erred in applying a definition

of "voluntary cessation of employment" that included unsatisfactory job

performance. She asserts this is an "expansion" of the definition of the phrase

under N.J.S.A. 44:10-63.1(g) and N.J.A.C. 90-4.14(b) and -6.1(c)(3), and, thus,

is plainly unreasonable and de facto rulemaking.       Second, she argues the

Department's determination is not supported by substantial evidence. Finally,

she contends this appeal is not moot because the Department's decision impacts


                                                                         A-3845-18T2
                                       5
her future eligibility for welfare benefits, and the issue of what constitutes

voluntary cessation of employment is capable of future repetition but will likely

evade review because N.J.A.C. 10:90-6.1(c)(3)'s mandated six-month penalty

period would often expire before the Appellate Division can issue a decision.

      Mootness

      We first address the issue of mootness. The issue was seemingly raised

in M.R.'s merits brief, in anticipation of the Department's argument that her

appeal should be dismissed as moot because her six-month ineligibility penalty

for emergency assistance under N.J.A.C. 10:90-6.1(c)(3) expired on September

11, 2019. The Department, however, did not address the issue in its merits brief

opposing the appeal. Since the Department failed to argue M.R.'s appeal was

moot, we need not discuss the issue. See Sklodowsky v. Lushis, 417 N.J. Super.

648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").

That said, for the sake of completeness we briefly address the issue.

      A matter is moot when the requested decision "can have no practical effect

on the existing controversy."    Redd v. Bowman, 223 N.J. 87, 104 (2015)

(quoting Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-

22 (App. Div. 2011)). Mootness occurs when the original issue between those

who began the litigation has been resolved. Comando v. Nugiel, 436 N.J. Super.


                                                                         A-3845-18T2
                                       6
203, 219 (App. Div. 2014) (quoting DeVesa v. Dorsey, 134 N.J. 420, 428

(1993)). We will generally not decide a case "in which the issue is hypothetical,

a judgment cannot grant effective relief, or the parties do not have concrete

adversity of interest." Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243

(App. Div. 1993) (quoting Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div.

1976)).

      However, where there are collateral legal consequences inherent in an

issue to be decided, the legitimate policy concerns underlying the mootness

doctrine do not restrict us in resolving an issue where the relief sought has

passed. See Bd. of Trs. v. Davis, 147 N.J. Super. 540, 543-44 (App. Div. 1977)

(holding "defendant's right to appeal from the parole revocation is unaffected by

his re-parole pending this appeal," because it may prejudice defendant by an

"improperly founded prior parole revocation.").

      Guided by these principles, M.R.'s claim is not moot because the

Department's denial of emergency assistance could affect her ability to receive

future emergency assistance and related pilot-program benefits. As she points




                                                                         A-3845-18T2
                                       7
out, there are two specific pilot programs, PHASE,2 and HHE,3 that have been

made unavailable to applicants who have had penalties imposed against them

for "non-compliance." N.J.A.C. 10:90-6.9(c)(5); 44 N.J.R. 1897(a) (July 2,

2012). In fact, the HHE program specifically indicated that a past determination

that an applicant for benefits caused his or her own homelessness makes the

applicant ineligible for the program. 44 N.J.R. 1897(a) (July 2, 2012) (contained

in section 6.9(c)(4)).

       Appeal Merits

       To resolve the merits of M.R.'s appeal, we must first determine which

provisions of the administrative code apply in deciding whether she was

properly    denied   emergency    assistance   based   upon   the   Department's

determination that M.R. was terminated from her job due to her own voluntary

conduct-poor work performance.

       The Department's final agency decision cited only to N.J.A.C. 10:90-

6.1(c)(3), which sets forth the guidelines for the availability of emergency

assistance. The regulation, in pertinent part, provides:



2
   Provisional Housing -- Awaiting Supplemental Social Security Income/
Disability Insurance Eligibility.
3
    Housing Hardship Extension.
                                                                         A-3845-18T2
                                        8
             3. Emergency assistance shall not be provided to a
             WFNJ applicant when an actual or imminent state of
             homelessness exists as a direct result of the voluntary
             cessation of employment by the adult household
             member without good cause (as provided at N.J.A.C.
             10:90-4.11). [Emergency assistance] shall not be
             provided for a period of six months to the entire
             household in which the recipient adult member
             voluntarily quits employment without good cause
             while receiving emergency assistance (see N.J.A.C.
             10:90-4.11(b) concerning a voluntary quit).

             [N.J.A.C. 10:90-6.1(c)(3) (emphasis added).]
      To determine whether an applicant has voluntarily ceased employment

without good cause, N.J.A.C. 10:90-6.1(c)(3) directs to N.J.A.C. 10:90-4.11,

which provides in pertinent part:

            (a) Good cause for . . . refusal to accept or maintain
            employment shall be found if:

            1. The mandatory WFNJ participant is certified by
            DFD to be physically or mentally unable to engage in
            an assigned WFNJ work requirement or to cooperate
            with a WFNJ program requirement;

            2. The conditions of employment are a risk to the
            WFNJ individual's health and safety (subject to review
            and determination by the Division of Family
            Development);

            3. Child care is needed and not available. (See N.J.A.C.
            10:90-5.2, Supportive services, child care); or

            4. The mandatory WFNJ participant is unable to
            engage in an assigned WFNJ work requirement or to

                                                                       A-3845-18T2
                                       9
             cooperate with a WFNJ program requirement due to
             family violence. If noncompliance relates to family
             violence, the FVO Initiative procedures are to be
             followed (see N.J.A.C. 10:90-20).

      Although the final agency decision adopted the ALJ's factual findings and

conclusions of law, it made no mention of N.J.A.C. 10:90-4.14(b), which the

ALJ relied upon in her initial decision. N.J.A.C. 10:90-4.14(b) provides that a

recipient of WFNJ cash assistance benefits is no longer eligible when the

recipient voluntarily quits employment.4 Considering the Department chose not

to mention N.J.A.C. 10:90-4.14(b), it appears the agency was remiss in not

explaining that the regulation could not apply to M.R. because she was applying

for emergency assistance and was not a recipient of the benefits.

      Yet, neither the Department nor the ALJ cited to N.J.A.C. 10:90-1.15,

which is relevant to an applicant seeking emergency assistance.5 N.J.A.C.

10:90-1.15, titled "Voluntary quit" provides:


4
    N.J.A.C. 10:90-4.14(b) states "voluntary cessation of employment by
recipients, without good cause, may include, but are not limited to, situations
where individuals were discharged from employment due to an action or
inaction on his or her part in violation of the employer's written rules or policies,
or lawful job related instructions."
5
   Given that N.J.A.C. 10:90-6.1(c)(3) discusses the eligibility standard for
emergency assistance and mentions N.J.A.C. 10:90-1.15 (Good cause), it would
seem that N.J.A.C. 10:90-1.15 should also be referenced in N.J.A.C. 10:90-
6.1(c)(3).
                                                                             A-3845-18T2
                                        10
            An adult applicant for WFNJ shall not be eligible for
            benefits when the applicant's eligibility is the result of
            a voluntary cessation of employment, without good
            cause, including situations in which an applicant has
            been discharged from employment due to an action or
            inaction on his or her part in violation of the employer's
            written rules or policies, or lawful job related
            instructions within 90 days prior to the date of
            application. The applicant shall be ineligible for
            assistance for a period of 90 days beginning with the
            date of quit. Other members of the adult applicant's
            assistance unit shall remain eligible to apply for
            benefits. The individual who voluntarily ceased
            employment shall be responsible for providing the
            necessary information so that a good cause
            determination can be made (see N.J.A.C. 10:90-4.14(b)
            for voluntary quit provisions for WFNJ recipients and
            N.J.A.C. 10:90-4.14(c) regarding good cause
            provisions).

            [(Emphasis added).]

      Our decision does not turn on the failure of the Department to rely upon

N.J.A.C. 10:90-1.15, nor its apparent erroneous reliance on N.J.A.C. 10:90-

4.14(b) through its adoption of the ALJ's decision. In fact, the regulations share

almost the exact language to define voluntary quits so the distinction is

irrelevant as to the merits of determining whether M.R.'s termination was a

voluntary cessation of employment.

      Instead, our decision turns on the Department's application of N.J.A.C.

10:90-6.1(c)(3) in determining       whether M.R. voluntarily ceased her


                                                                          A-3845-18T2
                                       11
employment without good cause. In turn, we must decide if "there is a clear

showing that [the Department's decision] is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record.'" R.S. v. Div. of Med.

Assistance & Health Servs., 434 N.J. Super. 250, 261 (App. Div. 2014).

(quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 25

(2011)). In particular, we focus on "whether the record contains substantial

evidence to support the findings on which the agency based its action[.]" A.B.

v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 339 (App. Div.

2009) (citation omitted). If our review of the record leads us to conclude the

agency's finding is clearly erroneous, the decision is not entitled to judicial

deference and must be set aside. L.M. v. Div. of Med. Assistance & Health

Servs., 140 N.J. 480, 490 (1995). We do not simply rubber stamp an agency's

decision. In re Taylor, 158 N.J. 644, 657 (1999).

      The record does not support the Department's conclusion that M.R. was

terminated "caused by [her own] actions" – poor work performance.            Star

Hospitality advised the Department it was a temporary employment agency and

"[M.R.] was released from employment due to reduced contractual business."

The agency's conclusion that M.R.'s work performance caused her termination

was limited to her ambiguous and unsophisticated written statement that she was


                                                                         A-3845-18T2
                                      12
"fired" because of "work performance and the business for the [h]otel was slow."

Given Star Hospitality's correspondence, the record reflects M.R. was a

temporary employee who was terminated because staffing was reduced due to

decreased business. The cause of M.R.'s termination was not due to her actions,

but Star Hospitality's business turndown and the temporary nature of her

employment. The likely inference from M.R.'s written statement, as well as her

testimony, is that Star Hospitality had to reduce staff and decided to retain their

best workers.

      The fact that M.R. was not terminated due to her performance is supported

by her uncontested testimony that a representative of Star Hospitality told her at

a job fair she would be rehired. The ALJ had the opportunity to evaluate M.R.'s

testimony and did not find it lacking in creditability. See In re In re Taylor, 158

N.J. 644, 660 (1999) (deference given to the ALJ's factual findings which were

substantially influenced by the ALJ's opportunity to hear the testimony and

observe the witnesses testify) (citing State v. Locurto, 157 N.J. 463, 474 (1999)).

Although M.R. testified she was not rehired, the record does not indicate it was

due to her poor work performance.

      Furthermore, we are mindful that M.R. was not represented by counsel at

the fair hearing, and given her lack of sophistication evidenced in her testimony,


                                                                           A-3845-18T2
                                       13
she was not aware of the relevant regulatory standards and the proofs she needed

to present to obtain a favorable final agency decision.

      Under the circumstances presented, the denial of emergency assistance to

M.R. was arbitrary, unreasonable, and lacking fair support in the record.

      Reversed.




                                                                        A-3845-18T2
                                      14
