IN THE MATTER OF S.E.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2091-10T4

DOCKET NO. A-2092-10T41

IN THE MATTER OF S.E.,

A Minor.

________________________________

IN THE MATTER OF R.S.

________________________________

May 12, 2014

 

Submitted January 6, 2014 Decided

 

Before Judges Yannotti, St. John and Leone.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FC-21-187-08 (A-2091-10) and the Department of Children and Families, Case ID No. NJS10075598 (A-2092-10).

 

Law Office of Peter J. Laemers, attorneys for appellant R.S. (Peter J. Laemers, of counsel; Joanne Sorrentino, on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency, Department of Children and Families (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan M. Slaff, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.E. (Jeffrey R. Jablonski, Designated Counsel, on the brief).

 

PER CURIAM

R.S. sought placement of his granddaughter S.E. with him after she was removed from her parents' care and their parental rights were terminated. In A-2091-10, R.S. appeals from an order of the Family Part dated November 16, 2010, which denied his motion to intervene in the post-termination proceedings regarding S.E.'s placement. In A-2092-10, R.S. appeals from a final decision of the Division of Youth and Family Services2 (Division), dated September 8, 2010, which ruled him out as a placement for the child. We address both appeals in this opinion. For the reasons that follow, we affirm in A-2091-10 and dismiss the appeal in A-2092-10.

I.

S.E. was born to S.A.E. and father K.S. in March 2004. S.E. was removed from her parents' care on an emergent basis after her two-week-old brother died of a blunt-force head injury, for which S.A.E. was later convicted of first-degree aggravated manslaughter and sentenced to twelve years of incarceration. S.E. had lived with S.A.E., and was home at the time her brother died. D.S., S.E. s half-brother, lived with K.S. and was removed from his care. The children were placed temporarily with foster parents, and the Division offered K.S. services for the purpose of facilitating reunification with the children.

In the meantime, on May 6, 2007, R.S., who is K.S.'s father, submitted a resource-family-home application to the Division, seeking to have both children placed with him. On the application, R.S. disclosed that in May 1970, he was convicted of driving under the influence (DUI). R.S. also disclosed that in May 1996, the woman to whom he was then married obtained a domestic violence restraining order against him. R.S. stated that he admitted harassment in the hope of "reconcil[ing]" with his ex-wife. He said the restraining order was dismissed in June 2004.

The Division considered R.S. s application and issued a letter dated June 20, 2007, advising R.S. that placement of the children with him "would not be in their best interest." The Division noted its concern with his history of domestic violence and his physical altercations with his oldest son, which came to the Division's attention during its investigation of the application. The Division informed R.S. that he had a right to administrative review of its decision. However, R.S. did not pursue the matter because the children were returned to K.S.

On March 6, 2008, the Division received another referral, after S.E. was brought to a hospital with bruising near her eye, a fracture at the base of her skull, and a subdural hematoma. The Division removed the children from K.S.'s care and placed them with the foster parents with whom they had been previously placed. K.S. said S.E.'s injuries were an accident, but D.S. later reported that K.S. had hit S.E. with a picture frame and often hit both children when he was angry. After S.E. was evaluated, the Division substantiated her physical abuse.

On May 13, 2008, R.S. submitted another resource-family-home application to the Division. He again mentioned his 1970 DUI conviction and the domestic violence restraining order. He also revealed that he had been investigated in 1996 for his alleged "abuse" of his oldest son. R.S. stated that "no findings" resulted from that investigation.

On September 18, 2008, the Division informed R.S. that the application was denied due to the Division's concerns regarding R.S.'s history of domestic violence and the physical altercations between R.S. and his son. The Division also noted that in addition to his DUI conviction, its investigation revealed a charge for "obstruction of government operations" in May 1996, which R.S. had not disclosed on his application. The Division told R.S. he had a right to seek administrative review of its decision.

On September 30, 2008, R.S. submitted a timely request for administrative review. He stated that he had frequently taken care of the children prior to their removal, planned to move to a larger, more suitable home to accommodate the children if they were placed with him, and disputed the grounds upon which the Division denied his application.

R.S. stated that he did not contest the Division's earlier determination because the children were placed with K.S. shortly after that decision. R.S. said that the restraining order was not indicative of any domestic violence, and he denied that he had had any altercations with his son. He also stated that the obstruction charge had long been dismissed, and he did not see any need to disclose it on his application because it never resulted in a conviction.

The Division replied on January 26, 2009. The Division stated that, despite its earlier statement to the contrary, R.S. did not have a right to administrative review of its placement decision. The Division said R.S. was not "ruled out as a caretaker." Rather, the Division had determined that it was not in the children's best interest to remove them from their caretakers "based on a report from the children's therapist." The Division said that "[b]est interest decisions" were not subject to administrative review. R.S. did not appeal to this court from the Division s decision.

Meanwhile, K.S. executed a surrender of his parental rights to the children, and the trial court issued an order terminating those rights. D.S. was adopted by his foster parents on December 17, 2009. In addition, on February 4, 2009, the Division filed a complaint seeking the termination of S.A.E.'s parental rights to S.E. On April 1, 2009, R.S. moved to intervene in those proceedings for the purpose of seeking visitation.

The trial court denied without prejudice R.S.'s motion to intervene on April 22, 2009. The court stated that the Division was already handling the placement issue administratively, and the Division s placement decision could be challenged in that context. R.S. did not appeal to this court from the order.

Thereafter, the Division continued to consider R.S. as a resource. The Division facilitated visitation between R.S. and S.E., permitted him to participate in family team meetings, advised him of his appointment for a bonding evaluation scheduled by S.E.'s Law Guardian, and continued working with him to secure a resource family home license.

At the same time, R.S. wrote to the Division expressing his concerns about S.E.'s removal from her foster home and placement in a group treatment facility to address her psychological needs. It appears that S.E. had been diagnosed with reactive attachment disorder, post-traumatic stress disorder, and adjustment disorder. She was depressed and withdrawn, and had been exhibiting sexually inappropriate behavior with her foster father and D.S., whom she apparently attempted to smother with a pillow.

On March 31, 2010, the trial court permitted R.S. to participate telephonically in a case management conference. R.S. expressed his concerns about the quality of S.E.'s care and the possibility that the Division would reject him as a placement for the child.

The court conducted a trial on the Division's guardianship complaint on April 12, 2010, and issued an order and opinion on May 7, 2010, terminating S.A.E.'s parental rights to S.E. In its opinion, the court noted that the Division had considered several relatives for placement, including R.S.

The court pointed out that R.S. had been ruled out as a potential resource because of his history of domestic violence and corporal punishment. The court also pointed out that when R.S. visited S.E., she grew angry and reacted "adversely." Counselors "reported that [S.E.] regressed into talking like a baby after visits with [R.S.]"

On July 20, 2010, the court conducted a post-termination permanency hearing. The Division presented its plan to transition S.E. from the group treatment facility to a treatment home for adoption, pursuant to the recommendations of S.E. s treating therapists. The Division advised the court that the only "wrinkle" in that plan, though, was "a grandfather who has put himself forward as a placement option."

The Law Guardian for S.E. and the Division s attorney advised the court that the Division would soon be issuing a letter to R.S. formally ruling him out for placement, at which point, R.S. would have "an opportunity to appeal that administratively through the [D]ivision, and [he would] be advised about that process."

However, the Division s attorney expressed concern at the prospect of R.S. continuing to delay S.E.'s progress by appealing the Division's placement decision. The Division's attorney noted that the court had the authority to make placement decisions in the child's best interests and urged the court to take testimony for that purpose. The court agreed and heard testimony detailing R.S.'s interactions with S.E.

Based on that testimony, the court issued an order dated July 20, 2010, terminating all contact between R.S. and S.E. The order stated that the Division would "no longer explore or place [S.E.] with the paternal grandfather," and R.S. was restrained from contacting the Division and S.E.'s treatment facility. The court issued another order approving the Division's permanency plan of adoption by a treatment home within an "appropriate and acceptable" timeframe subject to the "Division and therapeutic discretion."

On August 4, 2010, a judge of this court denied R.S. s application for leave to file an emergent motion concerning the trial court s July 20, 2010 order. The judge noted that R.S. was not a party to the case and he had never appealed either the April 22, 2009 order denying his motion to intervene in the guardianship proceedings or the May 28, 2010 order awarding custody to the Division. Thereafter, R.S. filed a motion for leave to appeal from the trial court's May 28, 2010 order out of time. We denied the motion.

During August 2010, R.S. sent the Division a series of letters asking about the trial court's July 20, 2010 order. He expressed confusion as to why the Division was no longer considering him as a placement. The Division wrote to R.S. and reminded him that the court had issued an order precluding him from contacting the Division. The Division stated that R.S. should address any further questions about the matter to his attorney.

On September 8, 2010, the Division wrote to R.S. and informed him that S.E. would not be placed in his home. The letter stated that, "[b]ased on the circumstances of the child," it would be in her "best interest" to remain in her current placement, because he was "not able to provide a home for the child." The Division said its decision was based on his

inability to acknowledge, understand and accommodate [S.E.'s] significant emotional needs, despite [the Division's] extended involvement in attempting to educate you regarding those needs and the provision of supervised visitation and contact with her treating therapists to address this deficit in your ability to care for [S.E.]

 

The letter did not advise R.S. that he had a right to an administrative appeal.

On November 16, 2010, the trial court denied R.S.'s motions to intervene in the post-termination proceedings and for reconsideration of the July 20, 2010 order. On December 13, 2010, R.S. filed notices of appeal from the trial court's November 16, 2010 order and the Division's September 8, 2010 decision.

We have been advised that, thereafter, a complaint for S.E.'s adoption was filed in the trial court. A motion to stay was denied by the trial court, and the adoption was finalized on August 2, 2013.

II.

R.S. argues that the trial court erred by denying his motion to intervene in the post-termination proceedings. As we have explained, R.S. sought to intervene in those proceedings for the purpose of urging the court to place the child with him. However, as we stated previously, the child was adopted on August 2, 2013.

Rule 4:33-1 governs applications for intervention as of right. The rule provides that:

Upon timely application anyone shall be permitted to intervene in an action if 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 as a practical matter impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

 

[Ibid.]

 

Intervention as of right must be permitted if a party not named in the litigation: (1) claims an interest relating to the subject of the action; (2) shows that disposition of the action may impair or impede his ability to protect that interest; (3) demonstrates that the interest is not adequately represented by the parties to the action; and (4) files a timely application to intervene. N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 590 (App. Div. 2011) (citing R. 4:33-1; Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998)). Here, the trial court did not abuse its discretion by denying R.S.'s motion to intervene as of right. R.S. claimed an interest relating to the subject matter of the action, specifically placement of the child with him. Furthermore, R.S.'s interest was not adequately represented in the action because the Division and the Law Guardian did not support his request to have the child placed with him.

However, as the motion judge found, R.S. did not meet the other criteria for intervention under Rule 4:33-1. In April 2009, the court denied R.S.'s motion to intervene and he never appealed from that decision. In August 2010, R.S. again sought to intervene after the court had entered the post-termination order approving the Division's permanency plan, which excluded him as a potential placement.

R.S. could not show that his participation in the matter from that point forward would have any impact on the interest he sought to protect. In addition, when R.S. made his post-judgment intervention motion, he failed to present the trial court with sufficient evidence showing that reconsideration of the court's July 20, 2010 order was warranted.

R.S. additionally argues that he established a basis for permissive intervention under Rule 4:33-2. The rule states that:

Upon timely application anyone may be permitted to intervene in an action if the claim or defense and the main action have a question of law or fact in common. . . . In 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.]

 

We are convinced that the trial court did not abuse its discretion by refusing to allow R.S. to intervene pursuant to Rule 4:33-2. As we have explained, R.S. sought to intervene after the court had approved the Division's permanency plan. He failed to present sufficient evidence warranting reconsideration of the court's decision, and intervention in the matter at that time would "unduly delay or prejudice" the rights of the original parties, including S.E.

Our decision in D.P. supports the trial court's decision denying intervention. There, resource parents sought to intervene in court proceedings involving the best interests of the child placed in their home. D.P., supra, 422 N.J. Super. at 587. We noted that resource parents are permitted by statute to have notice and the right to be heard at hearings concerning the child. Id. at 599 (citing N.J.S.A. 9:6-8.19a, N.J.S.A. 9:3-45.2, and N.J.S.A. 30:4C-12.2).

We added, however, that the Legislature had circumscribed those rights and provided that the resource parent "'shall not be made a party to the review or hearing solely on the basis of the notice and opportunity to be heard.'" Ibid. (quoting N.J.S.A. 9:6-8.19a). We stated that the Legislative directive similarly "restricts [the resource parent's] right to intervene to act like a party." Id. at 600.

Like a resource parent, a relative in a guardianship matter also has the right to notice and the opportunity to be heard. N.J.S.A. 30:4C-12.2. However, as we noted in D.P., the statute provides that a relative may not be made a party to the court proceedings solely on the basis of the notice and opportunity to be heard. Supra, 422 N.J. Super. at 599.

Thus, the statute limits a relative's right to intervene in the action. Id. at 600. The trial court's decision here was consistent with this statutory scheme.

III.

R.S. further argues that he was denied his right to due process by the court's refusal to allow him to intervene in the post-termination proceedings.

Due process is a "flexible concept and calls for such procedural protections as the particular situation demands." Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). To determine whether due process is required, a court must consider:

(1) identification and specification of the private interest that will be affected by the official action; (2) assessment of the risk that there will be an erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) evaluation of the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require.

 

[Id. at 465 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976)).]

 

Generally, due process requires at least "notice and an opportunity to be heard." In re C.A., 146 N.J. 71, 94 (1996).

R.S. claims a right to participate in the post-termination proceedings to protect his interest in having S.E. placed with him. R.S. bases this claim on a parent's fundamental liberty interest in the care and custody of his or her children. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972). R.S. argues that, when a "parent is removed from that equation," a parent's interest in the care and custody of a child "logically passes to the next of kin through a biological bond."

In support of this contention, R.S. relies upon N.J.S.A. 30:4C-12.1(a), which requires the Division to evaluate relatives who might care for a child who has been removed from a parent; N.J.S.A. 9:2-7.1, the grandparents' visitation statute; and N.J.S.A. 3B:12A-6, which allows the court to establish a kinship legal guardianship (KLG) for a child.

However, a parent's fundamental interest in the care and custody of his or her child does not pass to "the next of kin." Indeed, R.S. cites no authority for the proposition that a parent's constitutionally protected interest in the parent-child relationship passes to the next of kin when parental rights are terminated.

Moreover, N.J.S.A. 30:4C-12.1 only requires the Division to evaluate relatives as potential caretakers. The statute does not create a presumption favoring placement of the child with such relatives. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013).

In addition, N.J.S.A. 9:2-7.1 permits a grandparent to apply for visitation with a grandchild, but the grandparent must show that such visitation is necessary to prevent harm to the child. Moriarty v. Bradt, 177 N.J. 84, 117 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Here, R.S moved to intervene in the post-termination proceedings seeking placement of the child, not visitation.

Furthermore, R.S. never expressed an interest in establishing a KLG under N.J.S.A. 3B:12A-6. The statute provides a more permanent option than foster care when adoption is not feasible or likely. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004). We note that, in the guardianship trial, there was no evidence that would have allowed for the establishment of a KLG.

We therefore conclude that R.S. did not have a right to participate in the trial court proceedings as a matter of due process.

IV.

R.S. also argues that the Division erred by ruling him out as a possible resource placement for S.E. He contends that the Division did not have a basis to find that placement of S.E. with him was not in the child's best interest. He contends that he should have been afforded an opportunity for a hearing on the Division's rule-out determination.

A final agency decision is generally accorded a presumption of validity and subject to reversal only on a showing that the decision was "arbitrary, capricious[,] or unreasonable or . . . not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J.571, 579-80 (1980).

As we previously explained, N.J.S.A. 30:4C-12.1(a) requires the Division to explore relatives as possible placement options for children who are removed from their parents' care. The statute provides that a relative, if ruled out by the Division as unwilling or unable to care for the child, must be informed of his right to seek administrative review of the Division's decision. N.J.S.A. 30:4C-12.1(b)(4).

In its letter of September 8, 2010, the Division stated that it had

determined that it would be in the best interest of the child to remain in the current placement or another placement because the Division has determined that you, a relative of the child, are not able to provide a home for the child. This determination is based on your inability to acknowledge, understand and accommodate [S.E.'s] significant emotional needs, despite our extended involvement in attempting to educate you regarding those needs and the provision of supervised visitation and contact with her treating therapists to address this deficit in your ability to care for [S.E.]. The Division has determined it would not be in [S.E.'s] best interests to be placed with you.

 

The Division did not inform R.S. of his right to seek administrative review of its decision.

The Division argues that it was not required to provide or inform R.S. of any review because it stated that it was not in S.E.'s best interest to be placed with R.S. In supporting this contention the Division cites N.J.A.C. 10:120A-3.1(b), which provides:

A relative does not have a right to appeal, as a status issue, a Division action that it is not in a child's best interest to be placed with a relative. A relative can appeal a Division action that the relative is either unwilling or unable to care for a child.

We recently addressed this regulation in J.S., supra, 433 N.J. Super. at 86. There, we noted that "no matter how fit or willing a proposed relative may be, a child will, in some instances, be better off remaining in a successful foster placement." Id. at 85. We agreed "with the Division that a relative has no right to pursue an administrative appeal of a rule-out decision in instances when that decision is predicated upon a best-interests assessment, rather than a finding that the relative is unfit or unwilling." Id. at 86.

However, here the Division's decision clearly was related to R.S.'s perceived inability to care for S.E., although the Division stated that its decision was based on the child's best interest. Indeed, the only reasons that the Division gave for finding that placement with R.S. was not in S.E.'s best interest were that R.S. was "not able to provide a home for the child," that he had an "inability to acknowledge, understand and accommodate [S.E.'s] significant emotional needs," and that he had a "deficit in [his] ability to care for" S.E.

We are therefore convinced that the Division erred by failing to afford R.S. the administrative review process to which he is entitled under N.J.S.A. 30:4C-12.1(b)(4) and N.J.A.C. 10:120A-3.1(a). However, we are convinced that further review of the child's placement by the Division is not warranted at this time.

As we noted previously, the child has been adopted. In New Jersey Division of Youth & Family Services v. J.C., 411 N.J. Super. 508, 513 (App. Div.), certif. denied, 202 N.J. 44 (2010), we denied a motion by a parent to appeal out of time from a final judgment in a guardianship matter. We noted that the parent had delayed sixteen months in seeking review of the judgment and, in that period, the child had been adopted. Id. at 510.

We stated that "[e]ntry of a judgment of adoption triggers the strong public policy of this State to 'promote the creation of a new family unit without fear of interference . . . .'" Id. at 513 (quoting In re Adoption of a Child by W.P., 163 N.J. 158, 169 (2000)). The intervening adoption did not necessarily moot the appeal from the final judgment in the guardianship case, but it "weighed heavily" in our decision to reject an appeal filed out of time. Ibid.

Furthermore, the record in this case does not indicate that R.S. is likely to succeed in any administrative appeal from the Division's September 8, 2010 decision. It is undisputed that R.S. had a prior DUI conviction, once had a domestic violence restraining order, had admitted harassment, and had been investigated for the physical abuse of his oldest son.

In addition, there is testimony in the record indicating R.S. had significant difficulties with S.E. The child became angry and reacted adversely when R.S. visited her, and after his visits S.E.'s behavior regressed. There also is evidence that, during visits, R.S. would not respect rules designed to avoid triggering S.E.'s fears of physical and sexual abuse.

Furthermore, there is evidence that, during meetings with the Division, R.S. would not accept the child's diagnoses or her needs. He was reportedly deceitful and verbally aggressive, and failed to make progress despite therapy and other efforts by the Division.

In his appellate briefs, R.S. disputes some of this evidence. However, nothing that R.S. has proffered suggests that a challenge to the Division's September 8, 2010 decision is likely to succeed.

Moreover, even if the Division were to reverse its decision, it could not afford R.S. meaningful relief. A decision in R.S.'s favor would not affect the final judgment entered in the guardianship matter, the court's July 20, 2010 order approving the Division's placement plan, or the final judgment of adoption.

We are therefore convinced that, although the Division erred by denying R.S. administrative review of its September 8, 2010 decision, further administrative proceedings are not warranted in view of the child's intervening adoption, the unlikelihood that R.S. would succeed in any such administrative appeal, and the Division's inability to afford effective relief to R.S. at this time.

Accordingly, the appeal from the Division's decision is dismissed.

V.

R.S. also argues that he was denied the effective assistance of counsel in the guardianship action. R.S. contends that his attorney did not protect his interests in the proceedings. However, the right to counsel in termination-of-parental-rights proceedings is guaranteed to parents, N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007), not grandparents. Thus, R.S. cannot assert a claim of ineffective assistance of counsel with regard to these proceedings.

Affirmed in A-2091-10, dismissed in A-2092-10.

 

 

 

1 These appeals were originally calendared back-to-back and are consolidated for purposes of opinion only.

2 In 2012, legislation was enacted which reorganized the Department of Children and Families and changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency. L. 2012, c. 16, effective June 29, 2012.