IN THE MATTER OF G.G. AND J.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3964-10T2

IN THE MATTER OF G.G.

AND J.G.

________________________________________________________________

January 18, 2013

Submitted July 11, 2012 - Decided

Before Judges Espinosa and Koblitz.

On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU-11-0064.

G.G. and J.G., appellants pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia J. O'Dowd, Deputy Attorney General, on the brief).

PER CURIAM

G.G. is the paternal grandfather of A.G. He and his wife, J.G., appeal from a final administrative action of the New Jersey Division of Youth and Family Services (DYFS or the Division)1 that ruled them out as placement providers for their grandson. For the reasons that follow, we affirm.

A.G. was born January 21, 2009. In July 2009, his parents, C.C. and B.G., were arrested on charges of possession of heroin and endangering the welfare of a child. An emergency removal of A.G. was executed on July 29, 2009 pursuant to N.J.S.A. 9:6-8.29 and .30. B.G. expressed a preference for A.G. to be placed with his father, G.G. On the same date, a DYFS worker contacted G.G. and advised him of the situation and the need for placement. G.G. told the worker that he is "almost 70 years old" and that both he and his wife work and would be unable to care for A.G. The DYFS worker advised G.G. that A.G. would be placed in foster care, at least until another relative was found who would be willing to care for him. G.G. agreed and A.G. was placed in a Division-approved resource home.

By letter dated August 5, 2009, the Division advised appellants that they would no longer be considered as a possible placement for A.G.:

I am writing to inform you that you will no longer be considered as a potential caregiver for [A.G.]. The reason for this decision is because you expressed that you are unable to care for [A.G.] due to health concerns. If there is a change in circumstances, please contact me so that the Division may consider you as a potential caregiver for [A.G.]

As placement is a temporary arrangement, if the child is unable to return to [his] parents or other relatives, other living arrangements will be made for him, in which the child may be placed in adoption.

If you disagree with this decision, you may request a review of the decision by an agency representative who has no role in this case . . . within ten days of the date of this letter.

The rule-out letter supplied the contact information for both the agency representative and the writer in the event appellants had any further questions. 2

On August 28, 2009, A.G.'s parents and appellants had a supervised visit with A.G. A DYFS contact sheet for that date states,

[J.G.] apologized stating she is sorry that she is unable to keep the baby. She stated that [G.G.] is getting over a stroke and she had an operation recently that she is still recovering from the surgery.

Later that day, G.G. contacted DYFS and reiterated that he was unable to care for A.G. full-time but would like to have visits with him. In February 2010, A.G. was placed with his current foster family, who is committed to adoption. B.G. died on December 9, 2010.

By letter dated December 21, 2010, G.G. wrote to the Division, stating the appellants' intention "to do anything and everything in our power and the legal system to obtain custody of our grandchild." G.G. explained that he and his wife had refrained from interfering because his son had been reassured that he would regain custody "once the biological mother was out of the picture." G.G. stated that "the situation [had] drastically changed" as a result of his son's death and that it was the wish of both B.G. and appellants for them to have custody if B.G. was unable to regain custody. G.G. demanded the immediate return of A.G.

G.G. met with the DYFS caseworker, who provided him with information on how to appeal the rule-out letter. In a letter dated January 10, 2011 to appellants, the Division again advised that it had reached out to them at the time of original placement and that, following appellants' representation that they were unable to care for A.G., an alternative plan was pursued. Nonetheless, appellants were advised that they could appeal the decision within twenty days and the necessary contact information was provided.

By letter dated January 12, 2011, appellants requested a review of the rule-out letter and advised that their health issues had been resolved. They participated in the dispositional review conference on March 9, 2011. In her report, dated March 30, 2011, the administrative review officer noted points made by appellants at the review conference, which included the following:

Appellants stated that prior to the emergency removal, they saw A.G. on the average of two times per week to make sure he had whatever needed.

Appellants contended they never received the rule-out letter dated August 5, 2009 until G.G. made an unannounced visit to the DYFS office and obtained a copy on January 4, 2011.

Appellants asserted that DYFS did not respond to their requests for visits with A.G.; they were able to see him in August 2009 because they just showed up when B.G. and C.C. were having a scheduled visit.

Appellants confirmed that they had no contact with A.G. for the sixteen month period following the August 2009 visit through December 2010.

Appellants stated they speak to C.C. once or twice a week and she wants them to adopt A.G.

Appellants claimed that their medical conditions improved so that they are "now in the best of health" and have the resources to provide a nurturing, loving home environment for A.G.

The administrative review officer concluded that there was sufficient evidence to support the ruling that appellants were "unwilling or unable" to serve as resource providers for A.G., stating, in part:

Although Mr. and Mrs. [G.'s] circumstances have changed, their noted absence in the child's life from August 2009 though December 2010 is remarkable. Furthermore, while Mr. and Mrs. [G.] purportedly did not receive the rule out letter in August 2009, they were aware that their grandson had been removed from his parents and placed in foster care. Further, they made no attempt to request visitation with the child, contact that would have maintained a relationship with him. Additionally, Mr. and Mrs. [G.] could have expressed a desire to have the child placed in their home once their health had improved, and failed to do so. Based on the foregoing, the determination by the Morris East Local Office is affirmed.

The letter further advised appellants that they had forty-five days in which to file an appeal with the Appellate Division.

In the interim, the guardianship trial proceeded. Default was entered against C.C. on February 3, 2011. Appellants filed two motions to intervene in the guardianship action, which were denied on February 3 and May 17, 2011. An order was entered on June 21, 2011, terminating C.C.'s parental rights as to A.G.

In September 2011, appellants filed a motion for visitation, custody and a stay of the adoption of A.G. This court granted the motion for a stay and granted visitation, remanding to the trial court for the entry of an order scheduling visitation. Appellants have had visitation with A.G. since then. A subsequent motion to increase visitation was denied.

In this appeal, G.G. and J.G. present the following issues for our consideration:

POINT I

THE GRANDPARENTS OF [A.G.] SHOULD BE GRANTED CARE PROVIDER STATUS AS THEY ARE THE CHILD'S CLOSEST RELATIVES

A. THE DIVISION OF YOUTH AND FAMILY SERVICES DECISION WAS UNREASONABLE[,] ARBITRARY, AND CAPRICIOUS, AND MUST BE REVERSED BECAUSE THE DIVISION FAILED TO CONSIDER THE CHANGED CIRCUMSTANCES

B. CASE LAW AND STATUTES SUPPORT A RULING IN FAVOR OF G.G. AND J.G. IN BEING CONSIDERED AS THE PRIMARY CARE PROVIDERS FOR THEIR GRANDSON

C. THE DIVISION OF YOUTH AND FAMILY SERVICES DECISION WAS PRIMARILY BASED ON AN INACCURATE SUPPOSOTION [SIC]

D. THERE IS NO FACTUAL SUPPORT IN THE RECORD TO SUPPORT THE DIVISION OF YOUTH AND FAMILY SERVICES DECISION TO EXCLUDE G.G. AND J.G. FOR CONSIDERATION AS THE PRIMARY CARE PROVIDERS OF [A.G.]

POINT II

THE ALLEGED ISSUES AND OR BEHAVIORAL PROBLEMS OF [A.G.] ARE COMPLETELY UNSUBSTANTIATED, WITHOUT MERIT, AND CONSTITUTE SELF SERVING ASSERTIONS PURPORTED BY [A.G.]'S CURRENT CARE PROVIDER

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). Normally, when reviewing agency decisions, we defer to matters that lie within the special competence of an administrative tribunal. E.g., Brady v. Dep't of Pers., 149 N.J. 244, 256-57 (1997); Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" Circus Liquors, supra, 199 N.J. at 9; see also In re Herrmann, 192 N.J. 19, 27-28 (2007); Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). "'If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

N.J.S.A. 30:4C-12.1 defines the Division's statutory obligation at issue here and states in pertinent part:

a. In any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. The search shall be initiated within 30 days of the department's acceptance of the child in its care or custody. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days. The department shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.

b. If the department determines that the relative is unwilling or unable to assume the care of the child, the department shall not be required to re-evaluate the relative. The department shall inform the relative in writing of:

(1) the reasons for the department's determination;

(2) the responsibility of the relative to inform the department if there is a change in the circumstances upon which the determination was made;

(3) the possibility that termination of parental rights may occur if the child remains in resource family care for more than six months; and

(4) the right to seek review by the department of such determination.

[(Emphasis added).]

Appellants do not dispute that the Division notified them on a timely basis that A.G. had been removed from his parents' custody and that they had been asked about their interest and ability to serve as caregivers for A.G. at that time. They further acknowledge that they responded that they were both recovering from medical and surgical procedures and could not take custody of A.G. at that time. By their own admitted response, appellants removed themselves from consideration as a resource placement in 2009, relieving the Division of the obligation to complete an assessment of their ability to provide care and support of A.G. The letter dated August 5, 2009 fully satisfied the remaining notice requirements. Therefore, pursuant to N.J.S.A. 30:4C-12.1(b), the Division was not required to re-evaluate appellants as a potential placement for A.G.

Nonetheless, the Division did review the matter when appellants contended that they had not received the August 2009 rule-out letter. Appellants do not dispute that they had no contact with A.G. for sixteen months and did not make any effort to obtain custody of him until B.G. died in December 2010. Yet, they argue that the Division was arbitrary in failing to consider the "changed circumstances" that accompanied their interest in adopting A.G. that emerged after B.G.'s death.

The administrative review officer's report reflects her consideration of the "changed circumstances" articulated by appellants. She found appellants' absence from A.G.'s life for a sixteen-month period to be "remarkable." She noted they failed to request contact that would have maintained a relationship with A.G. after he was placed in foster care and had also failed to express a desire for placement when their health improved. In short, their conduct following the August 2009 rule-out letter corroborated, rather than belied, the finding that they were unwilling or unable to be caregivers for A.G. throughout that period. We are satisfied that the Division's decision was fairly supported by the record and should not be disturbed.

A

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Rule-out letters were also sent to a maternal aunt who had also advised the Division that she was not interested in being considered as a placement and to B.G.'s sister, who had withdrawn her application to be considered as a potential caregiver.