D.B. v. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4499-08T44499-08T4

A-0869-09T4

D.B.,

Plaintiff-Appellant,

v.

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Defendant-Respondent.

IN THE MATTER OF THE APPLICATION

FOR THE PLACEMENT OF J.M.S. a/k/a

J.M.C.,

a Minor.

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.C. and J.R.S.,

Defendants.

IN THE MATTER OF THE

GUARDIANSHIP OF J.M.S.

a/k/a J.M.C.,

a Minor.

 
Argued March 22, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from a determination of the Division of Youth and Family Services (No. A-4499-08T4), and from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-51-09V (No. A-0869-09T4).

Richard P. Rinaldo argued the cause for appellant, D.B. (The Rinaldo Law Firm, attorneys; Mr. Rinaldo, on the brief).

Christine Hanselmann, Deputy Attorney General, argued the cause for respondent, Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Hanselmann, on the brief).

Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minor, J.M.S. a/k/a J.M.C. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief).

PER CURIAM

D.B., the maternal grandmother of J.M.S., appeals the April 14, 2009 final agency decision made by defendant New Jersey Division of Youth and Family Services (the Division) ruling her out as a relative placement resource. D.B. also appeals a July 16, 2009 Chancery Division order denying her application to intervene in the litigation seeking to terminate the parental rights of J.M.S.'s biological parents. For the reasons that follow, we affirm.

J.M.S., identified in the caption as "a/k/a J.M.C.," was born prematurely, weighing 2.5 pounds at birth, on March 21, 2007, and was hospitalized for the first fourteen months of his life. His custody, care, and supervision were awarded to the Division on November 29, 2007.

At birth, J.M.S.'s meconium tested "positive for cocaine and opiates"; for this reason, the Division became involved with the child's welfare. The child's mother, D.C., and his father, J.R.S., were limited to supervised visitation in the November 2007 removal order. D.C. supplied D.B.'s name as a possible relative placement on October 4, 2007, prior to the order of removal.

The Division was unable to maintain phone contact with D.B. in the fall of 2007, despite the fact her grandchild was hospitalized. By early 2008, the Division had found only one prospective foster parent, R.M., willing to take J.M.S. R.M. was in the process of being licensed as a "special home service provider" after her home passed inspection, and had the expertise necessary to tend to J.M.S.'s medical needs, including the proper use of specialized medical equipment he required, such as oxygen tanks. J.M.S. was placed with R.M. on May 12, 2008.

Three interstate packets were nonetheless forwarded to potential relative foster parents, including D.B., on April 9, 2008. By July 1, 2008, New York City Children's Services (NYCCS) wrote to D.B. and advised as follows:

I am writing to advise you that we have closed our record of the request to complete a home study of your home for the above child because you stated that at this time you do not have the necessary time to complete the home [s]tudy evaluation and also you will be out of town in one week.

D.C. reported to the Division on July 18, 2008, that her mother, D.B., had canceled the appointment with NYCCS because she would not "pay[] for [D.C.'s] screw-ups."

On September 23, 2008, the Division wrote to D.B. advising that J.M.S. could not be placed with her because she had not had the time to complete the home study process and did not know when she would have the time, and, as a result, NYCCS had closed the case. D.B. continues to reside at the address used in that letter; but for this particular correspondence, she has received all other mail sent there regarding this matter.

A permanency order was entered on October 29, 2008, enabling the Division to continue to seek termination of D.C.'s and J.R.S.'s parental rights, and allowing it to move forward with an adoption plan. Shortly after the complaint for guardianship was filed with the Division, J.M.S.'s mother, D.C., died on March 20, 2009. Four days later, D.B. contacted the Division stating that she wanted "full custody of her grandson" and that she was now willing to schedule home visits and undergo background checks. She physically appeared at a Division office the next day to obtain custody of the child. When she was shown the September 2008 "rule-out letter," D.B. stated she did not remember receiving it, however, she acknowledged having been told of the letter's contents by a prior Division worker.

The Division visited D.B.'s home on March 31, 2009, because of her renewed interest in gaining custody of J.M.S. On April 14, 2009, the Division notified D.B. that she would not be considered for relative placement because she had previously told NYCCS that she did not have enough time to complete the home study process. This letter was also mailed to the same address as used throughout. It stated that although her request had been reconsidered, she was ruled out because "[s]ince you were ruled out on 9/23/08, the Division has not received any inquiries from you regarding J.M.S.'s well-being, nor a request for visitation for over a six[-]month period." J.M.S. had been living in his specialized foster home for almost six months when the first rule-out letter was sent, and at this juncture had lived there for nearly a year.

The trial court denied D.B.'s application to intervene on July 16, 2009, in part because, as D.B. acknowledged in her certification, she purposely did not maintain contact with D.C., nor did she seek to maintain contact with J.M.S. after his foster placement until her daughter's death. Although the court acknowledged D.B.'s belief that she needed to maintain distance from D.C. so that her daughter could recover from her drug addiction, this did not explain D.B.'s absence from J.M.S.'s life. The court also noted that the same address had been used for both rule-out letters, the one initially forwarded to D.B. on September 23, 2008, as well as the confirming letter from which this appeal is taken, dated April 14, 2009.

The court further opined that D.B.'s rights could not rise any higher than that of the biological parents. At that juncture, J.M.S.'s father had voluntarily terminated his parental rights and J.M.S.'s mother was dead. Because neither biological parent had any remaining right to the child, the maternal grandmother did not either, in the trial judge's view. He reasoned that Rule 4:33-1, allowing for intervention as a matter of right was inapplicable, and that Rule 4:33-2, as to permissive intervention was inapplicable as well where there is no basis to deny termination of parental rights. Nonetheless, the court did allow D.B. to exercise supervised visitation with the baby.

In her appeal from rejection as a relative placement, D.B. contends that she was denied procedural due process because she never received the September 2008 rule-out letter. She further claims that the final decision of April 14, 2009, confirming the earlier decision, must be vacated as well because she never received that first letter.

The scope of our review is limited. The trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice. . . .'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). In other words, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded by, 179 N.J. 264 (2004) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

Overall, on judicial review, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). See also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006) (citations omitted). The agency decision must be supported by substantial credible evidence in the record as a whole. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). It must not offend either the state or federal constitution and must accord with the agency's legislative mandate. See ibid. (citation omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citations omitted). See also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (citations omitted). De novo review of an administrative decision is appropriate where a party claims his or her procedural due process rights were violated. SSI Med. Servs. Inc. v. State, Dep't of Human Servs., 146 N.J. 614, 621 (1996).

Due process requires, at a minimum, notice and "an opportunity to be heard at a meaningful time and in a meaningful manner." Doe v. Poritz, 142 N.J. 1, 106 (1995) (citing Kahn v. United States, 753 F.2d 1208, 1218 (3d Cir. 1985)). See, also, United States v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987) (citing Goss v. Lopez, 419 U.S. 565, 579, 95 S. Ct. 729, 737, 42 L. Ed. 2d 725, 737 (1975)). We consider the following in determining the nature and extent of procedural safeguards necessary in any given situation:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

[Doe, supra, 142 N.J. at 107 (citations omitted).]

The United States Supreme Court has ruled that generally, "'the Constitution requires some kind of a hearing before the State deprives a person'" of life, liberty or property. Ibid. (citations omitted).

Notice may be satisfied by any means "'reasonably calculated to inform [a party] of the pendency of the proceedings'" and provide an opportunity to respond. W.S. Frey Co. v. Heath, 158 N.J. 321, 325 (1999) (quoting Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974)). In cases where the Division rules out a relative placement for a child, N.J.S.A. 30:4C-12.1(b) mandates that the relative be notified in writing of the reasons for the determination, "the possibility that termination of parental rights may result" if no action is taken within six months, and "the right to seek review of such determination." D.B. does not challenge the letter's compliance with the statute, only claims that she did not receive it.

D.B. acknowledges receipt of all communications from the Division but for the September 2008 rule-out letter. She does not explain why she would not have received that letter. Most significantly, D.B. admits that she knew that she was ruled out because of her apparent disinterest in being considered as a home for her grandson, as evidenced by her lack of cooperation with NYCCS's home investigator and lack of contact with J.M.S. D.B. knew this by at least March 24, 2009, but had done nothing for the prior seven months.

D.B. was aware of the relative placement process and chose not to participate in it or to have much contact with her grandchild for the first two years of his life. The only evidence she marshals in support of her appeal of the rule-out decision are unsubstantiated claims against the foster parents, as well as the baby's father, and complaints about the father's family's conduct towards her. Even if true, these contentions do not explain why the September 2008 rule-out letter would not have reached her and why she was willing to forego substantial contact with her infant grandson for nearly the first two years of his life.

We find that there is no basis to disturb the Division's decision. It is not arbitrary, capricious, or unreasonable. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 619 (App. Div. 2007) (citation omitted) (noting that while it may be the Division's policy to place children with relatives whenever possible, there are no legal presumptions in favor of relative placement). It was made on the best information the Division had at the time, namely, that D.B. then did not want to be considered a relative placement for J.M.S. and had not maintained contact with either her daughter or her grandson. D.B. knew she had been ruled out as a relative placement and did not object until her daughter's death. We therefore affirm the Division's decision, and find that D.B. had adequate notice of the decision and failed to timely take appropriate action to challenge it. She acted only after her daughter's death. Procedural due process requirements were satisfied.

D.B. also contends that the trial court erred in denying her application to intervene. The trial court premised the decision not to permit intervention on the theory that a grandparent's rights can rise no higher than the rights of a biological parent, citing to J. & E. v. M. & F., 157 N.J. Super. 478, 494 (App. Div.), certif. denied, 77 N.J. 490 (1978), superseded by statute, N.J.S.A. 9:2-7.1, as recognized by New Jersey Division of Youth & Family Services v. E.D., 233 N.J. Super. 401, 416 (App. Div. 1989); and New Jersey Division of Youth & Family Services v. D.T. & J.T., 171 N.J. Super. 520, 524 (App. Div. 1979). Furthermore, the court found that N.J.S.A. 30:14C-11.1 favors an expeditious permanency plan and that D.B.'s motion to intervene was untimely. D.B. contends to the contrary, asserting that the court's order denying her the right to intervene was an abuse of discretion because such intervention does not have a prejudicial impact on any other parties.

A party may intervene either as of right or with the court's permission. R. 4:33-1; R. 4:33-2. A motion to intervene must be granted when "the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may . . . impair or impede the ability to protect that interest." R. 4:33-1. Thus, a movant must be allowed to intervene after demonstrating: (1) an interest in the subject of the litigation; (2) that the interest will be compromised if the movant is not permitted to intervene; (3) that the interest "is not 'adequately represented by existing parties[;]'" and (4) that the application is timely. Sutter v. Horizon Blue Cross Blue Shield of N.J., 406 N.J. Super. 86, 106 (App. Div. 2009) (quoting ACLU of N.J. v. County of Hudson, 352 N.J. Super. 44, 67 (App. Div. 2002)).

Factors to be considered in granting permissive intervention include "the potential for undue delay or prejudice to the rights of" the other parties. City of Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006). Trial courts have the discretion to grant or deny motions for permissive intervention. Ibid. (quoting R. 4:33-2). A reviewing court only reverses a trial court's determination regarding an application for permissive intervention if that discretion was abused. See ibid.

N.J.S.A. 9:2-7.1 recognizes that the grandparents of a child may have rights independent of the minor's biological parents. If the grandparent has a "'direct, personal relationship with the'" minor, the rights of the grandparent will be deemed independent of those of the parents. N.J. Div. Youth & Family Servs. v. E.D., 233 N.J. Super. 401, 416 (App. Div. 1989) (citations omitted). In such cases, intervention should be allowed under Rule 4:33-1.

D.B. does not meet the four-prong test to be an intervenor as of right. Although she is the biological grandmother of J.M.S., she does not have the close personal relationship with the child which would entitle her to claim an interest independent from that of the parents in the guardianship proceeding. When asked by the Division about her last visit with J.M.S., D.B. stated that "the last time she saw her grandson . . . was toward the end of the summer of 2008." She also admitted that she had not sought visitation between January and June 2009, although she claimed that this was because she did not want to "interfere in the court process while [D.C.] was" participating in a drug rehabilitation program.

D.B. does not meet the second prong of the test because the disposition of the matter does not protect rights she currently possesses. Intervention is not necessary in order for her to continue to be considered a placement option; in fact, at the time of the filing of the application, an appeal was pending as to the Division's rule-out decision. The Division initially attempted to place the baby with D.B., but then ruled her out after she was uncooperative. The Division even reconsidered her as a placement option when she expressed interest in obtaining custody of J.M.S. after the first decision.

The court was also informed of D.B.'s desire to be considered as a placement alternative, therefore, it cannot be said that D.B.'s interests were not adequately represented by existing parties. The third prong of the test cannot be met.

Furthermore, D.B. has failed to meet the fourth prong of the test, as her application to intervene was filed approximately eighteen months after the child's removal from his parents' care, and more than one year after his placement in his current foster home. It was filed immediately before the proof hearing that would have terminated D.C.'s parental rights, and would have allowed J.M.S. to be adopted by his current foster family, the only home the child has known outside of the first fourteen months of his life, which he spent in a hospital. Accordingly, D.B.'s application to intervene as a matter of right was properly denied by the trial court.

As to D.B.'s contention regarding permissive intervention, that decision is reviewed under an abuse of discretion standard. See City of Asbury Park, supra, 388 N.J. Super. at 12. Such rulings will be found to be reversible error only if they are so unreasonable that they "shock the judicial conscience." State v. Washington, 408 N.J. Super. 564, 582 (App. Div. 2009) (citing State v. O'Donnell, 117 N.J. 210, 215-16 (1989)). In this case, no such abuse of discretion occurred.

The trial court ruled that permissive intervention should be denied because the child's best interests and public policy called for "an expeditious permanency plan." That decision does not shock our judicial conscience in circumstances where D.B.'s interest in her grandson appears to have been intermittent. D.B.'s change of heart after her daughter's death is certainly understandable, however, it occurred after the termination of parental rights proceedings were underway. But most importantly, it occurred after this medically needy child established a relationship with the specialized foster parent, the only home he has ever known outside of a hospital. Permissive intervention is not in the child's best interest. No abuse of discretion has been committed.

 
Affirmed.

(continued)

(continued)

15

A-4499-08T4

RECORD IMPOUNDED

May 26, 2010