IN THE MATTER OF J.A

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4932-08T44932-08T4

IN THE MATTER OF

J.A.

__________________

 

Submitted: November 18, 2009 - Decided:

Before Judges Axelrad, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FC-12-53-08.

Anne Milgram, Attorney General, attorney for appellant New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent minor J.A. (Melissa Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

On leave granted, the New Jersey Division of Youth and Family Services (Division) appeals from the December l7, 2008 post-termination summary hearing order of the Family Part exempting J.A. from the Division's requirement for immunizations and the April l6, 2009 order denying reconsideration. We remand.

J.A. was born on June l7, 2007, having been exposed to Hepatitis C prenatally and testing positive for cocaine. He was placed in a special needs foster home upon his discharge from the hospital in July 2007. J.A. was treated for plagiocephaly with a helmet for about six months in May 2008, and has been diagnosed with RAD (reactive airway disease) and asthma. On August l and September 26, 2007, J.A. received the Prevnar and polio immunizations, and on August 29 and October 31, 2007, he received the Dtap and Comvax haemophilus influenza immunizations.

J.E.A. and J.C.K. are his biological mother and father, respectively. Apparently, J.C.K. was not aware of the child until J.A. was three months old and a DNA test confirmed his paternity. On November 29, 2007, J.A. was placed in the home of his paternal aunt and her husband, D.H. and G.H., under presumptive eligibility for resource parent approval. By court order, J.C.K. was given unsupervised visitation, including overnight visitation. J.C.K. decided, however, that he would prefer that his sister, who he was going to use as a daycare provider, continue to raise his son. Accordingly, in April 2008, J.C.K. signed an identified surrender for D.H. to adopt J.A.

On October 2, 2008, in the course of the guardianship proceeding that had been filed against her, J.E.A. also surrendered her parental rights to J.A. with the express intent that D.H., individually or with G.H., adopt him. On that date, a judgment of guardianship accepting surrender and terminating both parents' rights was entered by the court. The judgment expressly provided that if the designees did not adopt J.A., each identified surrender would be void.

On December l7, 2008, a post-termination summary hearing was held by the trial court pursuant to the Child Placement Review (CPR) Act. The Division informed the court that it was unable to proceed with finalizing J.A.'s adoption because its policy required his resource parents to ensure that he receive all age-appropriate immunizations as recommended by his physician and that D.H. had objected to his receiving any immunizations based on her religious beliefs. The attorney referenced a report that had been sent to the court indicating what shots were missing and what the recommendations were by the physician. She also referenced a letter that the Division had received from the resource parents' pastor dated October 31, 2008, advising that D.H. and G.H., who are "practicing members of []his Roman Catholic parish in good standing," sought to have J.A. exempted from the immunization requirement "on the basis of their personal religious beliefs which are not contrary to anything the Catholic Church teaches," and recommending them for this exemption and their adoption of J.A. The attorney explained that the Division did not "feel that [its] policy allows for any opting out," and represented that although the agency felt it was in the child's best interest to be immunized, it would be able to move forward if it had a court order specifically exempting J.A. from that requirement.

The caseworker stated that the aunt and uncle were doing a "wonderful job" with J.A. and she had no concerns about his care in their home. The only expressed roadblock to the adoption was the supervisor's reluctance to sign the consent because of the requirement that the child be fully immunized.

The law guardian informed the court that both biological parents supported D.H.'s position with regard to the immunization issue and represented that they executed their identified surrenders with knowledge of her position. The law guardian also commented that the Division was well aware of the resource parents' religious beliefs and not wanting the child to be immunized, as there had been an off-the-record discussion of this issue at a prior case management conference in the presence of D.H.'s attorney. Nevertheless, the Division accepted the identified surrenders to this particular caretaker. The law guardian argued that the Division's policy was a "broad policy for [the] overall best interest of the children" but there was "nothing specific" requiring J.A. to be immunized by virtue of his physical well-being or his exposure to other children as in a day care setting. She also surmised that if the identified surrenders of J.A.'s biological parents were vacated and the guardianship litigation were re-instituted, J.A. would likely be reunified with his father who would then make a private placement with his sister, the resource parent.

The court stated it was taking a commonsense approach in order to remove the obstacle to adoption and "save about nine months' worth of legal dancing" that would result in the parties ending up in exactly the same place. Immediately following the hearing, the court signed an order allowing the Division to "exempt [J.A.] from its policy regarding immunizations based upon the resource parent's religious beliefs" so the agency could "move forward with the consent package" for the child's adoption.

On January 28, 2009, the Division filed a motion for reconsideration of the prior exemption order. It argued that as J.A.'s guardian it had the sole legal authority to make decisions on his behalf until such time as he was adopted and its regulations mandated that J.A. be given all age-appropriate immunizations. The Division took the position for the first time that J.A.'s special medical circumstances created a particularized need for immunizations. It submitted some of J.A.'s medical records and a January 8, 2009 letter from his pediatrician, Dr. Sunita Coutinho Haas, which recommended that J.A. "receive all routine immunizations and the influenza vaccine" in accordance with "the recommendations of the American Academy of Pediatrics" and opined that it was "particularly important for [J.A.] given his diagnoses of prematurity and reactive airway disease." The agency urged the court to defer to its "reasonable and medically supported" decision to have J.A. immunized for so long as he remained in its guardianship. According to the Division's pediatric nurse consultant, J.A. needed the following immunizations to be brought current: Hepatitis B (one dose), Dtap (two doses), Haemophilus influenzae type b (one dose), Pneumococcal (two doses), Polio (one dose), MMR (one dose), Varicella (one dose), Hepatitis A (two doses), and Influenza (two doses now, then one dose yearly).

On January 29, 2009, the Division sent a supplemental letter to the court stating that J.A.'s resource parents were planning to place him in daycare. On February 17 and March 4, 2009, the Division submitted a certification from its consultant, Dr. Robert Morgan, the Chief Medical Officer for the New Jersey Department of Children and Families, rendering an opinion that J.A. was under-immunized for his age and should receive his age-appropriate immunizations. He stated that the child was "in potential danger of severe morbidity, if not mortality, from a number of vaccine preventable infectious diseases" based on the standard of care in this country that "all children be age appropriately vaccinated unless there is a valid medical contraindication." The pediatrician further opined that

Children with possible immune compromise, such as [J.A.] because of his prenatal exposures, are especially at risk for severe illness from many vaccine preventable diseases. Prematurity also affects a child's normal host defenses against infectious diseases and consequently raises the risk threshold. Asthma which requires medical care is an especially complicating factor for respiratory borne vaccine preventable diseases. Moreover, socialization must be viewed in the context of life in New Jersey, the most densely populated state in the nation, which vastly increases exposure possibilities for this child.

Dr. Morgan concluded that J.A. was not protected at all from measles, mumps, rubella and varicella and not adequately protected from Haemophilus B infection and invasive pneumococcal disease.

At oral argument on April l6, 2009, the Division also pointed out that D.H. was not opposed to immunizations when J.A. was placed with her; that D.H. did not voice any objections to the immunizations during a home visit with the Division worker and nurse on January l5, 2008 and, in fact, as reflected on the contact sheet, showed the nurse J.A.'s immunization book and stated that he was up-to-date with all his vaccines; and that on February l3, 2008, D.H. signed a Foster Family Care Agreement, which included agreeing to be responsible for "arranging for and transporting the child to routine and emergency medical . . . care, according to the policies and procedures of DYFS."

The law guardian argued that the Division had engaged in gamesmanship by going forward with the October 2008 termination and adoption plan, including the December l7, 2008 post-termination hearing, knowing that the resource parent would not agree to the immunizations. She noted J.C.K.'s letter requesting that J.A. be exempt from immunizations for religious reasons, other instances in the record clearly evidencing the Division's knowledge of the resource parent's religious objection to immunizations prior to the judgment of guardianship accepting surrender, the Division's failure to make any medical arguments at the December hearing, the practicalities of the situation, and the need for finality and permanency for J.A. The trial court denied the Division's motion for reconsideration. This appeal ensued.

We are not persuaded by the Division's arguments that the record supports a summary reversal of the Family Part's orders. We, too, have a concern about the way this matter was handled by the Division, which was well aware that the immunization requirement was going to be an issue with the resource parents. Even if the Division were under the mistaken impression that it might have been able to convince D.H. that it was in J.A.'s best interest to receive age-appropriate immunizations, that is an issue that should have been resolved prior to the October 2 termination hearing. The Division should not have waited until this CPR hearing two months later to bring the issue before the court. To make matters worse, when the agency did raise the issue, it did so perfunctorily, giving the court the impression it had no real objection to a waiver from its general policy requirement so it could proceed to finalize J.A.'s adoption, and that it merely needed a judicial imprimatur. Thus, the court did not abuse its discretion when it granted the exemption for J.A. based on the record before it in December.

The Division, however, took a complete turnaround a month later when it asserted specific medical necessity for J.A.'s immunizations without any explanation as to why the medical information was not presented earlier. Although not expressly articulated, it appears the court denied reconsideration based on the theory of "too little, too late." Though we somewhat agree, we are also not persuaded that an affirmance of the exemption is in order based solely on the scant record presented at the December hearing because of the significant health issue raised by the Division, although belatedly, regarding this young child who may potentially be at greater risk for contracting vaccine preventable infectious diseases.

The record is not clear, for example, as to the content and timetable of the Division's discussions with D.H. regarding the issue of immunizations, D.H.'s understanding of her express obligations as a resource parent regarding J.A.'s immunizations, whether D.H. clearly conveyed her intent to the Division not to immunize J.A. up through the December hearing, and whether the Division acquiesced or led D.H. to believe the agency was no longer pursuing the immunization requirement as a condition of adoption. Nor is the record clear whether J.C.K.'s surrender was conditioned on J.A.'s not being immunized. Accordingly, we are constrained to remand this matter for further review and analysis by the court. We trust that the court will also consider what has transpired in the past year regarding J.A.'s health, the status of any immunizations, whether he has been placed in daycare, and his current medical condition. The Family Part judge may also determine that ultimately it may be necessary to vacate the identified surrender of the biological parents and permit the matter to proceed as a private adoption.

Remanded for further proceedings consistent with this opinion.

In March 2008, the Division was informed by Cooper Children's Regional Hospital that J.A.'s recent blood tests were negative for the Hepatitis C antibody.

The Division noted that its goal for J.A. remained adoption by D.H. and G.H.

The letter from J.C.K.'s attorney, which contains J.C.K.'s signed request, is dated January l6, 2008, and is addressed "To Whom It May Concern." There is a handwritten notation stating "faxed to DYFS on 7/8/08."

As an additional example, the Division's moving papers included a May 28, 2008 medical report from the Regional Child Protection Center noting that the "[k]inship provider has refused further immunizations based on her Catholic beliefs regarding not putting toxins into the body. . . . The caretaker also chose not to have blood drawn today for anemia and lead screening."

(continued)

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11

A-4932-08T4

RECORD IMPOUNDED

December 10, 2009