DIVISION OF YOUTH AND FAMILY SERVICES v. A.C. and M.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2049-07T42049-07T4

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.C. and M.H.,

Defendants-Respondents.

_________________________________

IN THE MATTER OF J.H.

_________________________________

 

Submitted: August 27, 2008 - Decided:

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-149-07.

Alan L. Zegas, attorney for appellant M.T. (Mr. Zegas and Mary Frances Palisano, on the brief).

Anne Milgram, Attorney General, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth Cashin, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor J.H. (Lysette Hamilton, Designated Counsel, on the brief).

Respondents A.C. and M.H. have not filed a brief.

PER CURIAM

M.T. is the paternal birth grandmother of J.H., an infant boy. M.T. sought leave to appeal an order denying her applica tion to intervene in abuse-and-neglect proceedings instituted by the Division of Youth and Family Services (DYFS). We granted M.T.'s motion and we now reverse and remand to the Family Part so that M.T. may intervene nunc pro tunc and participate in the custody issue relating to J.H. and to thereafter appeal as of right from any final order in the matter.

J.H. was born on May 1, 2007, to A.C., who abandoned him at the hospital the day after his birth. Both J.H. and A.C. had tested positive for opiates. The hospital contacted DYFS, which investigated the matter. While J.H. was still in the hospital, A.C. returned on May 3 and M.H. was there as well. M.H. told the DYFS caseworker that he wanted to care for J.H., his only child, and that his parents were willing to do so as well.

On May 8, 2007, pursuant to a Dodd removal, DYFS took custody of J.H. At that time the paternity of M.T.'s son, M.H., had not been verified, although DYFS was aware that he claimed paternity, that A.C. corroborated his paternity, and that M.T. was interested in caring for J.H., her only biological grandchild. M.T. appeared at the May 17, 2007, hearing on the order to show cause to state her desire to care for her putative grandson and to adopt him. DYFS placed J.H. in a foster home with three of his five maternal half-siblings.

The first case management review occurred on June 4, 2007, with only A.C. and counsel appearing. Custody was continued with DYFS and another review was scheduled for June 28, 2007. M.H.'s paternity was established in a report that the Family Part received on June 6, 2007. At the June 28 hearing, the judge considered a letter from M.T. Custody was continued in DYFS and visitation was ordered for the parents. M.T. was also permitted to have visitation. The judge vacated the fact-finding hearing scheduled for August 20, 2007, and ordered DYFS to "assess the paternal grandmother as a placement for [J.H.] by 8/16/07," when the matter was to return to court. A.C. then stipulated on July 3, 2007, to abuse and neglect and waived the fact-finding hearing.

On August 16, 2007, M.T. and her husband appeared, as did the birth parents, counsel and the DYFS caseworker. Services were ordered for J.H., A.C., and M.H. and a plenary permanency hearing and visitation hearing were scheduled for November 29, 2007, although it was adjourned at the request of the Law Guardian.

On November 9, 2007, M.T., now represented by counsel, filed a motion to intervene and for a transfer of custody. At that point, J.H. was six months old. The Law Guardian and DYFS opposed M.T.'s motion to intervene. DYFS, however, made it clear that it "still strongly believes that it would be in the best interest of [J.H.] to be placed with his paternal grandmother." A.C. and M.H. supported intervention by M.T. and also wrote to the court advocating placement with and adoption by M.T.

After considering the arguments of counsel, the judge pointed out that the proceeding was an abuse-and-neglect case, not a termination-of-parental-rights case. She placed the following decision on the record:

So relying on the fact that the pater nal grandmother has the right to be heard; her position is quite clear to the [c]ourt; relying on the fact that her interests are certainly at this point represented by the Division [because] they've clearly looked with favor on her application to become a resource family member to [J.H.]; and rely ing as well upon the fact that the Division or anybody else who is an attorney for a party in the case has a right to call her as a witness . . . at any future plenary hear ing; . . . this [c]ourt is of the mind that there is absolutely nothing to be gained by allowing [M.T.'s] intervention in this case.

I believe her intervention would unnecessar ily complicate matters. And I think it's not fair to say that her interests are not being represented. Quite the contrary. Since the Division's position at this point is that their plan is placement of [J.H.] with [M.T.], I think her interests are clearly being represented. And placement, of course, is not a unique issue to this case[;] it is always an issue in these cases.

So I am denying the motion to intervene for all of those reasons. And I do think that if we were to allow such intervention, a corollary concern of the [c]ourt is that we would be setting precedent, we would be potentially opening the flood gates to the intervention by other interested friends and relatives and indeed by foster parents. And that would ultimately not inure to the chil dren's best interest in a more global sense. Children who are the subject of these cases are entitled to expeditious resolution of the matters that are being litigated surrounding them.

And I believe that to allow this inter vention by [M.T.] would . . . in fact be used as precedent. I'm sure that other counsel will become aware of it. They would use the very same arguments. And then would be making the same requests. And we'd then get into they're intervening, are they enti tled to counsel if they're indigent, do they have a right to cross-examine witnesses, to be present during otherwise confidential hearings.

I think all of those things would be inimi cal to the core issue which was the legisla tive intent of the Adoption and Safe Fami lies Act, which was to ensure not only the safety of the children, but also to ensure their expeditious attainment of permanency. And I see . . . the [c]ourt allowing this intervention as at cross purposes to that.

So for all of those reasons, the motion by [M.T.] to intervene in this matter is denied.

The judge scheduled compliance review and a plenary permanency hearing and visitation hearing for March 5, 7 and 10, 2008. We granted M.T.'s motion for leave to appeal on February 6, 2008, because "when the placement of the child is an issue, the standing of others to be heard must be viewed expansively."

An application for permission to intervene is governed by Rule 4:33-2. The judge should first consider whether the intervenor presents a question of law or fact in common with those in the main action. R. 4:33-2. Then, "[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Ibid.; see also City of Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006).

"'[J]udicial discretion' is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case." Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952). The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Moreover, the exercise of judicial discretion must have a factual underpinning and a legal basis. Id. at 110.

Here, it seems very clear that the issues to be presented by M.T. are identical to the custody issues already in this case and thus M.T. was qualified to seek permissive intervention. We have searched the record and find no factual underpinnings to support the judge's conclusion that M.T.'s "intervention would unnecessar ily complicate matters." We also find no record support for the judge's conclusion that M.T.'s interests "are clearly being represented" by DYFS. DYFS and the judge knew by early June, when J.H. was barely five weeks old and could not have formed a significant bond with the foster parents, that M.H. was J.H.'s father and that M.T. wanted custody of him. By the end of August, when J.H. was four months old and possibly bonding with his foster parents, both M.T. and her husband had completed twenty-seven hours of training for resource parents, yet custody of J.H. was not transferred to M.T., despite DYFS supporting custody with M.T. These facts simply do not support the judge's conclusion that M.T.'s interests are adequately protected by DYFS.

Finally, the judge denied intervention on the ground that it would set a precedent that would "open the floodgates" to multiple applications to intervene by a host of relatives, friends and others. We are not persuaded that such fears are either realistic or a proper basis for denying intervention. As we observed on February 6, 2008, "no one but the Division, the Law Guardian and the parents should be involved in cases in which the sole issue is whether the child was abused or neglected, or whether to terminate the parent[s'] rights." Thus, we are concerned only with cases where the placement of the child is at issue. M.T. is a direct, blood relative of J.H., not a family friend, a distant relative, or a foster parent. Both parents and DYFS support placement of J.H. with M.T. and M.T. and her husband are licensed by the State "to operate a children's Resource Family Home." M.T. is not a relative whom DYFS has determined to exclude from placement consideration. Where, as here, the application for intervention is by a direct blood relative of the child and DYFS seeks to place the child with that relative, "standing . . . to be heard must be viewed expansively" and the motion to intervene should have been granted.

It is unfortunate that so much time has elapsed since M.T. first sought to intervene and that J.H. is now nineteen months old and may have developed a stronger bond with the foster parents. As a consequence, the judge is to conduct the permanency hearing forthwith and issue a decision by December 1, 2008.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

The Dodd Act, as amended, is found at N.J.S.A. 9:6-8.21 to 8.82.

(continued)

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9

A-2049-07T4

RECORD IMPOUNDED

October 2, 2008