NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.A IN THE MATTER OF THE GUARDIANSHIP OF Z.A a minor NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES - v. V.H - IN THE MATTER OF THE GUARDIANSHIP OF Z.A a minor

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5855-07T45855-07T4

A-6051-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.A.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF Z.A.,

a minor.

________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

V.H.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF Z.A.,

a minor.

_________________________________

 

Submitted May 5, 2009 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-232-07.

Yvonne Smith Segars, Public Defender, attorney for appellant M.A. (Jeffrey S. McClain, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant V.H. (Janet A. Allegro, Designated Counsel, of counsel and on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

M.A. and V.H., the biological father and mother, respectively, of baby boy Z.A., appeal from the June 24, 2008 order that terminated their parental rights to their son. We affirm.

V.H. has a long history of drug abuse. None of her six prior children are in her custody. Several of the children were born exposed to drugs. In July 2006, V.H. gave birth to Z.A. at Newark Beth Israel Hospital. On that day, the New Jersey Division of Youth and Family Services (DYFS) received a referral from the hospital advising that, at time of childbirth, V.H. tested positive for cocaine, methadone and benzodiazephines. The hospital expected Z.A. to also test positive. Unfortunately, that expectation came true, with Z.A. testing positive for the same drugs as V.H. and experiencing severe withdrawal symptoms. Because of his medical condition, Z.A. was not cleared to leave the hospital until September 10, 2006.

In the interim, on July 31, 2006, DYFS filed a complaint and order to show cause (OTSC), seeking custody and supervision of Z.A. The trial court granted DYFS's application the same day. While Z.A. remained in the hospital, the parents informed DYFS that A.A., V.H.'s friend, was willing to serve as a resource parent for their son. However, because Z.A. had been classified as medically fragile as a result of suffering pre-natal exposure to drugs and Hepatitis B, DYFS placed him in a Children Aid and Family Services (CAFS) foster-adopt treatment home.

On February 15, 2007, the court entered a permanency order approving DYFS's plan of termination of parental rights followed by adoption. Because they "continue to be drug involved," the court determined that it was not safe to return Z.A. to his parents' custody. The court also relieved DYFS from the responsibility of taking reasonable efforts to reunify Z.A. with his parents because of a prior order involuntarily terminating their parental rights to two other children. On February 22, 2007, following an initial home assessment and background investigation of A.A., DYFS placed Z.A. in A.A.'s custody. Following placement, Z.A. became attached to A.A., with A.A. providing him appropriate care. On June 13, 2007, DYFS filed a guardianship complaint, seeking to terminate the parents' parental rights to Z.A.

During the early part of the summer of 2007, when DYFS was continuing its assessment of A.A. to serve as a long-term caregiver for Z.A., a DYFS worker recalled that A.A. had been previously disqualified as a resource parent. A follow-up investigation disclosed that in 2002, A.A., then using her maiden name, "used a foster child's identity to falsify documents." In using the false identity, A.A. secured a lease for an apartment and utilities for herself under the child's name. On discovery of A.A.'s fraudulent actions, DYFS removed the child in placement from her care and revoked her resource family license.

Because her resource family home was administratively closed, a waiver was required to continue the present home study of A.A. to act as a long-term caregiver for Z.A. On July 9, 2007, the trial court ordered DYFS to resolve the waiver issue. On August 20, 2007, DYFS advised the court that its Newark adoption office was not in agreement with continuing the home evaluation of A.A. because of her past fraudulent actions. DYFS informed the court that it was "exploring the possibility of placing [Z.A.] in the adoptive home of his sister." Nevertheless, on September 24, 2007, the court entered an order "leav[ing] it to [A.A.] to rehabilitate her licensing issue"; directing DYFS to complete its assessment of A.A. as a possible long-term caregiver; and ruling A.A. out as a caregiver if the agency found her not satisfactory. On December 13, 2007, DYFS sent A.A. a letter informing her "that you are being ruled out for continued placement of [Z.A.]" because of "[y]our use of a foster child's identity to fraudulently procure [a] lease [and] utilities in the child's name and subsequent administrative closure of your home by [the] Office of Licensing (OOL)."

On December 21, 2007, A.A. requested a dispositional review of DYFS's decision denying continued placement of Z.A. in her home. On January 29, 2008, an administrative hearing officer denied A.A.'s request for a dispositional review, informing her that "[a]ppeal requests concerning licensing issues are not reviewable by [an administrative hearing officer,]" but rather was within "the purview of the [OOL]."

On January 25, 2008, the OOL sent A.A. a letter advising her that the agency had denied her application for a resource family home license because its review of the facts pertaining to the August 26, 2002 revocation of her prior resource family license disclosed that she was not "of good character" as required by N.J.A.C. 10:122C-5.1(a)2. The same letter informed A.A. of her right to request an administrative appeal challenging DYFS's determination.

On February 6, 2008, DYFS filed an application to remove Z.A. from A.A.'s custody and to place him with R.B., the adoptive parent of Z.A.'s sister. The court conducted a guardianship trial on April 17, April 30, June 13, and June 24, 2008. As part of this proceeding, a "best interests" hearing was conducted to determine whether Z.A. should be removed from the custody of A.A. On June 24, 2008, the trial court issued an order, supported by an oral decision, directing the removal of Z.A. from A.A.'s custody and terminating the parents' parental rights.

On appeal, V.H. argues:

POINT I.

THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. V.H. IS WILLING OR ABLE TO ELIMINATE THE HARM FACING HER CHILD.

B. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROPERLY PLACE Z.A. IN THE HOME OF A.A. AND TO EXPLORE A MOMMY AND ME INPATIENT PROGRAM FOR Z.A. AND V.H.

C. DYFS DID NOT PREVAIL ON PRONG FOUR OF N.J.S.A. 30:4C-15.1A BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.

POINT II.

THE TRIAL COURT ERRED IN DEFERRING TO THE PERMANENT PLACEMENT CHOICE OF DYFS WHICH WAS NOT IN THE BEST INTERESTS OF [Z].A.

POINT III.

THE TRIAL COURT ERRED BY FINDING THAT AGGRAVATED CIRCUMSTANCES EXISTED TO WARRANT AN EXCEPTION TO THE REASONABLE EFFORTS REQUIREMENT.

On appeal, M.A. does not challenge the determination of his parental rights to Z.A. but does appeal from that part of the July 24, 2008 order that denied his request for Z.A. to be placed with A.A. In so doing, M.A. argues:

POINT I.

THE PARAMOUNT AUTHORITY AND JURISDICTION OF THE COURT TO DETERMINE THE PERMANENCY PLAN THAT ENSURES A CHILD'S HEALTH AND SAFETY AND SERVES THE BEST INTEREST OF THE CHILD IS NOT SUPERCEDED BY ANY DIVISION POLICY.

A. THE "BEST INTERESTS" OF Z.A. SHOULD HAVE CONTROLLED.

B. THE COURT MUST CONSIDER THE TOTALITY OF THE CIRCUMSTANCES.

C. THE COURT DID NOT CONSIDER THE BEST INTERESTS OF Z.A. WHEN IT ORDERED RELOCATION OF THE CHILD.

D. THE COURT IS NOT REQUIRED TO DEFER TO AN ADMINISTRATIVE POLICY OF THE DIVISION.

E. THE TRIAL JUDGE IMPROPERLY ACCEPTED DIVISION POLICY OVER THE BEST INTERESTS OF Z.A.

F. THE COURT HAS THE AUTHORITY TO MODIFY THE DIVISION'S SANCTION.

I.

We first address V.H.'s arguments challenging the termination of her parental rights to her son. Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. E.P., supra, 196 N.J. at 103. Termination actions brought under N.J.S.A. 30:4C-15.1a, are decided under a four part "best interests of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986), and now codified in N.J.S.A. 30:4C-15.1a. Under that standard, parental rights may be terminated only when:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1a.]

The four prongs of the best interests test "are neither discreet nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

An appellate court should not disturb the "'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)) (alteration in original). Simply stated, "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

We have considered V.H.'s arguments challenging the termination of her parental rights to Z.A. in light of the record and applicable law, and have determined that the arguments are without merit. R. 2:11-3(e)(1)(E). We conclude, for the reasons stated by Judge Craig Harris in his oral decision of June 24, 2008, that the evidence clearly and convincingly establishes that Z.A.'s best interests, assessed under the statutory standard, N.J.S.A. 30:4C-15.1a, warrants termination of V.H.'s parental rights. R. 2:11-3(e)(1)(A).

II.

We now turn to the parents' arguments that the trial court erred by deferring to DYFS's decision to remove Z.A. from A.A.'s custody. M.A. contends that the court failed to consider the best interests of his son and failed to evoke its inherent power directing DYFS to issue A.A. a resource family home license. V.H. contends that the court improperly "ignored its own decision[-]making authority and [factfinding] powers and deferred to the administrative decisions of [DYFS]." V.H. further asserts that the court has inherent jurisdiction to resolve disputes pertaining to placement plans of children based on the "totality of the circumstances" and must not defer to a "technical ruling" of DYFS not to process a waiver in favor of A.A. when "'the administrative review process offered by DYFS is not the type of plenary review desirable for resolution of the fundamental issue of whether a permanency placement plan effectuates the best interest of children,'" quoting In the matter of C.R., 364 N.J. Super. 263, 279 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004).

DYFS counters that the trial court made an informed and complete best interests decision in permitting DYFS to place Z.A. in the foster-adopt home with his sister while awaiting adoption. DYFS contends that its decision, ruling out A.A. as a long-term caregiver and denying her a resource family home license, is supported by the credible evidence in the record and is not arbitrary, capricious or unreasonable. The Law Guardian supports the trial court's decision and argues that the parents lack standing to appeal the court's decision removing Z.A. from A.A.'s custody based on DYFS's decision ruling her out as a long-term caregiver.

When a trial court is confronted with two "reasonably plausible" placement plans, "[n]either of the proposed plans is entitled to a presumption of correctness. The court is to receive testimony, evidence and information from all relevant sources pertaining to [the child's] best interests and determine a permanency plan that ensures [his or] her safety and health and serves [his or] her best interests." C.R., supra, 364 N.J. Super. at 283.

In C.R., DYFS rejected a permanency plan that sought to place the child with a family that had already adopted several of the child's siblings, because the family already housed more than the maximum number of children permitted by DYFS guidelines for foster parents. Id. at 271. The trial court affirmed DYFS's decision without conducting a best interests hearing. Id. at 274. We reversed, concluding that the placement of the child could not hinge solely on DYFS's policy limiting the number of children in a foster parent household. In so doing, we emphasized that

the totality of the circumstances must be considered. This requires a full hearing, at which evidence supporting or opposing the conflicting viewpoints can be presented by parties in interest. Indeed, C.R. was not a party to the DYFS administrative proceedings and had no opportunity there to present evidence in support of her sibling rights assertion and why it would be in her best interests to be adopted by the Greens. She also did not have the opportunity to refute the Division's unyielding position on the population limitation policy under all of the circumstances in her case.

[Id. at 279-80.]

Here, contrary to C.R., the trial court conducted a best interests hearing. The court was confronted with a choice between DYFS's permanency plan to place Z.A. with the individual that had adopted his sister and a plan, then advocated by the parents and the Law Guardian, that would have continued Z.A.'s placement with A.A. In conducting the hearing, the court determined that A.A.'s care of Z.A. had been appropriate and that bonding evaluations conducted by Dr. Mark Singer, on January 7, 2008, and by Dr. Robert Raymond, on March 11, 2008, indicated that there was an emotional and physical closeness between A.A. and Z.A. and that they had established a foundation for a secure attachment. However, the court also found that Z.A. was almost two years of age, had spent the first eight months of life with another caretaker, and determined that "there is nothing [in either expert's report] to suggest that [any harm resulting from removing Z.A. from A.A.'s custody] would be permanent and irreparable." The court further determined that A.A.'s prior resource family home license had been administratively revoked by DYFS for "fraudulent use of the identity of a child placed in [her] care to both obtain a lease and to obtain further benefit." In determining that DYFS had not acted arbitrarily, capricious or unreasonable in not issuing a waiver of the licensing requirement to A.A., the court reasoned:

With the [c]ourt deferring to the Division based upon the Division's investigation and [co]nclusion, which is supported in the record, which is that in order to be in accordance with the administrative regulations, the Division must pass upon the good character of the proposed caretaker; that the Division must be in a position to license that caretaker, so that adoption can occur.

In this case, it is clear that the Division has exercised its administrative function and has come to a determination. That determination is based upon the history of the current caretaker; one which is not arbitrarily made; one which I criticized the Division in terms of a delay. But it is clear that the Division has justified [its] position, and accordingly, the [c]ourt cannot consider it as being arbitrary or based upon capriciousness. And as such, it is clearly an agency function to make such determination.

After determining that it was in the best interest of Z.A. for DYFS to remove him from the custody of A.A. and place him in the foster home of his sibling, the court then addressed the four-prong standard of N.J.S.A. 30:4C-15.1a.

We first address the Law Guardian's argument that the parents lack standing to appeal the court's decision removing Z.A. from A.A.'s custody. Generally, when one questions whether a party has standing in a legal proceeding, the term "refers to the [party's] ability or entitlement to maintain an action before the court." N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13 (1997), and appeal dismissed as moot, 152 N.J. 361 (1998). To have standing to raise an issue, "a party must have 'a sufficient stake and real adverseness with respect to the subject matter of the litigation.'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 81 (App. Div. 2001) (quoting In re Adoption of Baby T., 160 N.J. 332, 340 (1999)).

"Standing has been broadly construed in New Jersey as 'our courts have considered the threshold for standing to be fairly low.'" Ibid. (quoting Reaves v. Egg Harbor Twp., 277 N.J. Super. 360, 366 (Ch. Div. 1994)). Although, "a litigant may not [ordinarily] claim standing to assert the rights of a third party, . . . standing to assert the rights of third parties is appropriate if the litigant can show sufficient personal stake and adverseness so that the [c]ourt is not asked to render an advisory opinion." Jersey Shore Med. Ctr. v. Est. of Baum, 84 N.J. 137, 144 (1980) (internal citations omitted). Such is not the case here.

Although the issue of DYFS denying A.A. a waiver from the licensing requirement to operate a resource family home and the issue of whether it is in the best interests of Z.A. that he be removed from A.A.'s custody and placed in another foster home with his sister are intertwined, they are separate issues. The parents are not appealing the administrative decision denying the license waiver to A.A. If they were, we would agree with the Law Guardian that they lack standing to prosecute the appeal. The right to appeal that decision rests solely with A.A. Rather, the parents are appealing the court's decision concerning where their child will be placed. We are satisfied the parents have standing to prosecute the appeal. With that said, however, we conclude that the trial court properly determined the issue concerning the removal of Z.A. from A.A.'s custody.

The trial court initially determined that DYFS's administrative action in denying A.A.'s application for a resource family home license was not arbitrary, capricious or unreasonable, having been based on A.A.'s past fraudulent action and that the agency's determination was consistent with its regulations requiring that licensees be "of good character." After reaching that initial determination, the trial court next considered which placement was in Z.A.'s best interests. The court did consider the findings of the experts concerning the established relationship between Z.A. and A.A. and accepted the experts' findings that no significant or enduring harm would be suffered by Z.A. if removed from A.A.'s custody. After concluding that Z.A. was in need of permanency, the court found that it would be in Z.A.'s best interest to place him in a resource family home with his sister pending adoption. We are satisfied that the trial court followed the principles of C.R.

Affirmed.

 

As of filing their appellate briefs, none of the parties were aware whether A.A. had pursued an administrative appeal from the denial of her application for a resource family home license.

(continued)

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A-5855-07T4

RECORD IMPOUNDED

June 18, 2009