New Jersey Division of Child Protection and Permanency v. K.N. and K.E. in the Matter of T.E., a Minor , 435 N.J. Super. 16 ( 2014 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4847-12T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, March 20, 2014
v. APPELLATE DIVISION
K.N. and K.E.,
Defendants-Respondents.
___________________________________
IN THE MATTER OF T.E.,
A minor.
___________________________________________________
Submitted February 4, 2014 – Decided March 20, 2014
Before Judges Messano, Hayden and Rothstadt.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Ocean County, Docket No. FN-15-130-13.
John J. Hoffman, Acting Attorney General,
attorney for appellant (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Stephanie Anatale, Deputy Attorney General,
on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor T.E. (Noel C.
Devlin, Assistant Deputy Public Defender, on
the brief).
Respondents K.N. and K.E. have not filed briefs.
The opinion of the court was delivered by
MESSANO, P.J.A.D.
By our leave granted, the Division of Child Protection and
Permanency (the Division) appeals from those provisions of the
June 10, 2013 order of the Family Part that, over the Division's
objections, awarded physical custody of six-year-old T.E.
(Tommy) to his "maternal grandmother as a paid resource
placement," and denied the Division's request for psychological
evaluations of Tommy's maternal grandparents, Charlotte and Carl
H.1 The litigation commenced on May 9, 2013, when the Division
filed a verified complaint and order to show cause seeking care
and supervision of Tommy pursuant to N.J.S.A. 30:4C-12. At the
time, Tommy was in the "physical legal custody" of his mother
K.N. (Kara), and both had resided in Carl and Charlotte's home
for several months.
We need not set forth the contents of the Division's
complaint at length, because they are largely irrelevant to the
1
We have fictionalized the names of those involved to maintain
their privacy. Carl is referred throughout the record
interchangeably as the "maternal grandfather" and "maternal
step-grandfather."
2 A-4847-12T1
issues presented on appeal. However, to place the controversy
in some context, we reference the more pertinent allegations.
Tommy was born in March 2007 to Kara and K.E. (Kevin).
That year, upon receiving referrals of domestic violence between
Kara and Kevin, and after Kara tested positive for marijuana and
opiates, the Division filed an order to show cause and verified
complaint in the Family Part. In November 2007, the court
granted the Division custody of Tommy, who was placed "in a
relative care home."2 In November 2008, after Kara and Kevin
actively participated in services, the litigation was terminated
and the family reunited.
The Division continued to provide services, since Kara was
participating in substance abuse counseling, and additional
referrals were made in December 2009 and September 2011. In
April and May 2012, the Division investigated allegations of
domestic violence between Kara and Kevin, and that Kara had
stolen prescription painkillers from her sister. Kara denied
the allegations and agreed to visit the Division's office for
urine screening. She failed to appear. During the balance of
2012 and into 2013, Kara and Kevin participated in separate drug
and alcohol counseling programs, and the Division continued to
monitor their progress.
2
The record does not set forth with whom Tommy with placed.
3 A-4847-12T1
During a February 2013 visit, the Division's caseworker was
advised that Kara was sixteen weeks pregnant. After Kara failed
to attend a substance abuse evaluation, the caseworker visited
Carl and Charlotte's home on March 27, 2013. Carl reported that
Kara, Kevin and Tommy had moved into their home, but after
Kevin's continued verbal abuse of Kara, Carl told Kevin to
leave. The entire family left for a few days but were evicted
from a motel in Belmar for failing to pay their rent. Only Kara
and Tommy returned to the H.'s home. Carl told the caseworker
he had discovered that eighteen of his pain pills were missing
and was concerned Kara had taken them.
During an April 1, 2013 visit, Tommy told the caseworker
that Kara takes a pill "sometimes in the morning and at night."
Tommy showed the caseworker where he kept his toys and said that
Kara would sometime keep her pills there. Kara denied using any
drugs and claimed Tommy was speaking of the pre-natal vitamins
she was taking. However, on April 3, Kara tested positive for
opiates. The Division's caseworker met with Carl and Charlotte
and advised that Kara would need to be supervised whenever she
was with Tommy. On April 9, Kara submitted another urine sample
that was positive for opiates.
On May 10, 2013, the judge granted the Division's request
and entered an order to show cause against Kara and Kevin,
4 A-4847-12T1
returnable June 6. Although the Division sought an order
placing Tommy in its "care and supervision," the Law Guardian
apparently urged the judge to grant the Division custody.3 The
order provided that
[Tommy] be immediately made a ward of the
court and placed in the immediate custody,
care and supervision of the Division with
authorization for the Division to consent to
routine and emergency surgical or medical
treatment to safeguard the life or health of
the child.
The order did not explicitly provide for Tommy's placement with
Carl and Charlotte; however, later proceedings revealed that the
Division agreed to this as an initial placement. At the time,
Kara's sister and her four children were also living with Carl
and Charlotte. The order further provided:
[Kara] shall be permitted to reside with the
maternal grandmother for [five] days (while
DCPP has custody) so she can try to obtain
in-patient treatment. If [Kara] needs more
time[,] then counsel shall conference.
[Kara] shall be supervised by the
maternal grandmother on a [twenty-four]
hour/[seven] day per week basis and the
birth mother is not permitted to drive the
child in a car.
On the return date of June 6, the Law Guardian immediately
brought to the Court's attention that Tommy had been removed
3
This was revealed in the transcript of the next proceeding on
June 6.
5 A-4847-12T1
from Carl and Charlotte's home by the Division and placed with
his maternal great aunt, C.S. (Celeste). The Law Guardian
reported that Tommy believed the removal was "his fault," and
his behavior had changed as a result of leaving his mother,
aunt, cousins and grandparents.
When the judge asked why the Division had removed Tommy,
the Deputy Attorney General (DAG) directed the judge's attention
to a "court report" dated May 29 that indicated Tommy "had to be
moved due to [Carl] being on the perpetrator list" as the result
of a "[domestic violence] incident where [Carl] held a gun to
[Charlotte's] head." The judge, however, indicated that
pursuant to N.J.S.A. 30:4C-26.8, licensure of a placement home
could be withheld as the result of a criminal conviction, but
"no one is convicted of domestic violence. . . . It's a civil
proceeding . . . ." The judge directed court staff to ascertain
the results of the prior domestic violence complaint against
Carl and obtained a report that it had been dismissed.
The Law Guardian urged the judge to return Tommy to Carl
and Charlotte, but the Division objected, noting that Kara had
not entered an in-patient substance abuse counseling program and
was still in the home. Kara indicated she would immediately
vacate the home to facilitate Tommy's return. The judge entered
an order that provided in part that Tommy would be returned to
6 A-4847-12T1
Charlotte the following day, and that Kara would "vacate the
. . . residence immediately[.]"
The next day, June 7, the judge held a hearing apparently
in response to the Division's emergent request for
reconsideration. The judge stated that the Division "removed a
child from where the [c]ourt had placed [him] . . . without
notice to the [c]ourt, Law Guardian or any defense counsel
. . . . There was absolutely no due process . . . whatsoever."
The judge further explained:
[A] request was made today for the Court to
revisit this. The Court denied that
request. It made its decision regarding the
placement of this child. It issued an order
to that effect but, once again, we run into
a situation where the Division does not
agree with the Court's decision and has
engaged, again, in a constant attacking of
the Court's decision. The Court made its
decision.
All right. The Court denied a request
for a rehearing today. Period.
The judge did, however, grant the Division's request for a
hearing to stay the June 6 order. Noting that he wanted the
parties to brief the issue, the judge asked rhetorically:
And why does the Court want that? Because
it just went through this with the Division
in which many things were misrepresented to
the Appellate Division in the context of the
request for the stay.
Also, because of the lack of due
process that the Court is very concerned
7 A-4847-12T1
with in this case, it will give the parties
an opportunity to respond to the Division's
submission on a request for a stay so that
we can have an accurate [a]ppellate record
in this case.
The judge also referenced an "amended court report" dated
June 7. That report revealed that the Division substantiated a
finding of neglect against Carl in 2004 stemming from a referral
by the Family Part domestic violence judge. One of the victims
of the neglect finding was Kara, who was present in the home
when Carl displayed a gun and threatened Charlotte. The amended
court report also indicated that Kara's sister, now living in
the home with her children, had "current child endangerment
charges" filed against her. Additionally, the report stated
that Carl was "verbally hostile" towards the Division's
caseworkers when Tommy was placed on May 10, initially refused
to sign any of the documents in the "resource packet," had
"swastika flags hanging in his office" and made racially
derogatory remarks. However, the judge concluded:
[T]here's nothing in this [amended] report
that the [c]ourt feels is an imminent risk
of harm to this child's health, safety or
welfare such that the child should not be
placed there as ordered by the [c]ourt since
the child shouldn't have been removed in the
first instance, particularly without a
hearing or any due process being afforded
any of the parties in this case, as well as
the child who has rights.
8 A-4847-12T1
The Division filed its formal motion for a stay, supported
by a certification and attachments, including copies of the
police report from the 2004 incident involving Carl. The report
revealed that during a family argument, Carl retrieved a gun
from his home office and threatened to kill Charlotte and other
family members. Charlotte said that he had made similar threats
in the past, but she never reported them to police.
The certification also included the Division's contact
sheets detailing the May 10 placement. It suffices to say that
the caseworkers claimed Carl was "verbally abusive" toward them
in front of the children in the home and made racially
derogatory remarks. When asked to review the resource placement
materials and sign the case plan, Carl initially refused. The
Division placed Tommy with Celeste on May 13. There is no
indication in the record that the Division provided notice to
anyone about Tommy's removal and placement with Celeste.
At the start of the hearing on the Division's request for a
stay, the judge expressed his "hope that this would be taken up
to a higher court for two legal issues to be resolved." He
described those as: (1) "the treatment of domestic violence
findings and how that pertains to the Division's ability to
license a home"; and (2) "whether a substantiation, in and of
9 A-4847-12T1
itself, would require the removal of a child because the
Division could not license a home."
The court heard from Carl, who explained that his
frustrations with the Division were directed solely at the
process. He stated that he and Charlotte were currently raising
four other grandchildren, who were loved and well-cared for. He
wanted Tommy to be part of the family. Carl also explained that
the swastika was a "souvenir[]" his father brought back from
fighting "under General Patton in World War II." He admitted
using a racially derogatory term in front of the workers, but
stated that he did so only in the context of discussing
"political correctness." The Division's caseworker provided
some testimony in rebuttal.
The judge denied the Division's request for a stay, stating
[T]he child should have never been removed
in the first instance without hearing to all
of the parties [and the court] disagrees
that the home can't be licensed under the
reasons stated by the Division. . . . [The
court] finds no basis to grant the stay,
which is denied . . . .
The judge refused the Division's request to order psychological
evaluations of Carl and Charlotte, noting the substantiated
neglect finding was "[n]ine years ago." The judge also refused
the Division's request to include "language in the order that
indicates . . . the placement . . . is not a paid placement."
10 A-4847-12T1
The Division sought leave to appeal and a stay of the
judge's order. The judge filed a written statement of reasons
for his decision. R. 2:5-6(c). He noted that under New Jersey
law, domestic violence proceedings were civil in nature; thus,
there could be no "conviction" for domestic violence, and,
hence, that could not be a basis for disqualification of Carl
and Charlotte as resource family parents. The judge also noted
that even if a resource family parent or household member was
the subject of a substantiated finding of abuse or neglect, the
Division could license the family if it determined there was no
continuing risk of harm and licensure was in the child's best
interests.
Although we granted the Division's motion for leave to
appeal, we refused to stay the June 10 order.
I.
The Division contends that the judge did not have the
authority to order Tommy's placement "in an unlicensed,
dangerous home," or order the Division to "pay for the
placement." The Division also argues that the judge "abused
[his] discretion in enjoining [the Division] from obtaining
evaluations of the proposed caregivers."
The Division's overarching contention is that the
Legislature has granted to it alone the statutory and regulatory
11 A-4847-12T1
authority to select appropriate placements and license them.
The Division argues that the judge's decision in this case,
therefore, violates the separation of powers clause of the State
constitution. See N.J. Const., art. III, ¶ 1 ("The powers of
the government shall be divided among three distinct branches,
the legislative, executive, and judicial. No person or persons
belonging to or constituting one branch shall exercise any of
the powers properly belonging to either of the others, except as
expressly provided in this Constitution.").
The Division concedes that the Family Part may exercise its
jurisdiction and order a particular placement "as between two
fit, licensed homes." See, e.g., In re C.R., 364 N.J. Super.
263, 283 (App. Div. 2003) (recognizing the court's jurisdiction
to resolve disputes "between competing [permanency] plans that
are reasonably plausible"), certif. denied, 179 N.J. 369 (2004).
However, it argues that the Family Part cannot order a placement
in a home which, in the reasonable, discretionary exercise of
its statutory powers, the Division has determined is
inappropriate. The Division argues that the sole remedy to its
licensing decision is an administrative appeal brought by Carl
and Charlotte.
The Law Guardian argues that whether Carl and Charlotte's
home was a "reasonably plausible" placement required resolution
12 A-4847-12T1
of disputed facts, and the judge's determination, based upon the
evidence presented, should be entitled to our deference.4
We have considered these arguments in light of the record
and applicable legal standards. We reverse and remand for
further proceedings consistent with this opinion.
A.
We begin by reviewing the statutory and regulatory regime.
"The Legislature has established the Division as 'the State
agency for the care, custody, guardianship, maintenance and
protection of children[.]'" N.J. Div. of Youth & Family Svcs.
v. D.P., 422 N.J. Super. 583, 593 (App. Div. 2011) (quoting
N.J.S.A. 30:4C-2(a)). "In that role, the Division is authorized
to temporarily remove children from the home of their parents or
guardians . . . when the child's best interests are not secured
by their parents who are in need of services[.]" Ibid. (citing
N.J.S.A. 30:4C-12).
The Division may accomplish this by "identif[ying] and
approv[ing] a child's placement with a resource family to
provide day-to-day care." Ibid.; and see N.J.S.A. 30:4C-26(a)
("Whenever the circumstances of a child are such that his needs
cannot be adequately met in his own home, the division may
4
Kara and Kevin did not file briefs.
13 A-4847-12T1
effect his placement in a resource family home, with or without
payment of board . . . .") (emphasis added). A "resource family
parent" is any person "with whom a child in the care, custody or
guardianship of the [Division] is placed . . . for care."
N.J.S.A. 30:4C-27.1.5 Resource family parents are entitled to
notice of and a right to be heard at any court review or hearing
involving the child. N.J.S.A. 30:4C-12.2; and see D.P., supra,
422 N.J. Super. at 594 (noting this notice provision reflects
the Legislature's recognition of "the vital role resource
parents play[,] [p]articularly recognizing their superior
knowledge of the child's physical and emotional status");
N.J.S.A. 9:6-8.19a (requiring notice to resource family parents
of all proceedings brought under Title Nine).
In enacting the Resource Family Parent Licensing Act
(RFPLA), N.J.S.A. 30:4C-27.3 to -27.15, the Legislature declared
"it [was] in the public interest to license resource family
parents and regulate resource family homes in order to ensure
the safety, health and proper development of children placed in
resource family care." N.J.S.A. 30:4C-27.4. Under the RFPLA, a
"'[r]esource family parent' means a person who has been licensed
. . . to provide resource family care . . . ." N.J.S.A. 30:4C-
5
We have frequently substituted "the Division" for the
Department of Children and Families (DCP) throughout our
discussion of the statutory and regulatory scheme.
14 A-4847-12T1
27.5. Therefore, "[a] person shall not provide resource family
care to a child unless the person is licensed," and is "of good
moral character." N.J.S.A. 30:4C-27.6(a),(c).
N.J.S.A. 30:4C-27.9 provides that a license may be denied
"for good cause, including, but not limited to":
a. . . . ;
b. . . . ;
c. The conviction of a[n] . . . applicant or
any adult member of the . . . applicant's
household of a crime enumerated under
[N.J.S.A.] 30:4C-26.8);
d. A determination that an incident of child
abuse or neglect by a[n] . . . applicant or
any adult member of the . . . applicant's
household has been substantiated, except
that the department may issue the license if
the department determines that the . . .
applicant or adult household member poses no
continuing risk of harm to the child and the
issuance of the license is in the child's
best interests;
. . . .
i. Any conduct, engaged in or permitted,
which adversely affects or presents a
serious hazard to the education, health,
safety, general well-being or physical,
emotional and social development of the
child residing in the resource family home,
or which otherwise fails to comply with the
standards required for the provision of
resource family care to a child and the
maintenance of a resource family home.
[And see N.J.A.C. 10:122C-2.5(b).]
15 A-4847-12T1
While the RFPLA seemingly leaves licensure to the
discretion of the Division, subject to disqualification for
"good cause," the Legislature spoke more emphatically elsewhere
in Title 30. Thus, "[a] person shall be disqualified from being
a resource family parent . . . if that person or any adult
residing in that person's household" was convicted of any of
several listed offenses, including "domestic violence pursuant
to [N.J.S.A.] 2C:25-17 et seq." N.J.S.A. 30:4C-26.8(d)(9)
(emphasis added); and see N.J.A.C. 10:122C-2.5(a) (same).
Before denying a license, the Division must notify the
applicant and afford an "opportunity to be heard and . . .
contest the department's action." N.J.S.A. 30:4C-27.10. Review
of the Division's decision is by way of appeal to this court.
N.J.S.A. 30:4C-27.11.
However, Title 30 contemplates that the Division may place
a child with a relative who is not a resource family parent, nor
wishes to become one. For example, under the Child Placement
Review Act (the CPRA), N.J.S.A. 30:4C-50 to -65 (the CPRA), the
definition of a "'[c]hild placed outside his home' . . . does
not include a child placed by the court in the home of a person
related to the child who does not receive any payment from the
[D]ivision for the care of the child[.]" N.J.S.A. 30:4C-52(b).
Under N.J.S.A. 30:4C-12.2, the right to notice of all hearings
16 A-4847-12T1
involving a child in the Division's "care or custody" extends
not just to the child's "resource family parent," but also to a
"relative providing care for the chil[d]." And see N.J.S.A.
30:4C-54 (requiring that written notice of proceedings following
a voluntary placement agreement must be given to "the child's
caretaker," whether "a resource family parent, preadoptive
parent or relative") (emphasis added).
The distinction between placement with a relative and
placement with a licensed resource family parent is made clear
by N.J.S.A. 30:4C-12.1, Title Thirty's requirement that the
Division first look to place a child with a relative. That
statute provides that once the Division accepts a child "in its
care or custody, including placement," within thirty days it
"shall initiate a search for relatives who may be willing and
able to provide the care and support required by the child."
N.J.S.A. 30:4C-12.1(a). If after conducting an assessment of
the "relative's ability to provide the care and support,
including placement," ibid., the Division "determines that the
relative is unwilling and unable to assume the care of the
child," it must inform the relative of its determination.
N.J.S.A. 30:4C-12.1(b). Notably, one of the things the Division
must tell the child's relative is "that termination of parental
17 A-4847-12T1
rights may occur if the child remains in resource family care
for more than six months[.]" N.J.S.A. 30:4C-12.1(b)(3).
Similar distinctions are implicit in Title Nine. For
example, following a dispositional hearing, see N.J.S.A. 9:6-
8.51, "the court may place [a] child in the custody of a
relative or other suitable person or the division . . . ."
N.J.S.A. 9:6-8.54(a) (emphasis added). As the Court has noted,
"[a]lthough 'placement' is not defined in Title Nine, . . . the
Legislature intended to include a non-custodial parent . . . as
'a relative or other suitable person' with whom the Division was
authorized to place the child." N.J. Div. of Youth & Family
Servs. v. G.M., 198 N.J. 382, 403 (2009) (quoting N.J.S.A. 9:6-
8.54(a)). N.J.S.A. 9:6-8.19a requires notice of all Title Nine
proceedings be given to "the child's resource family parent or
relative providing care for the child, as applicable[.]"
(emphasis added).
We conclude that under both Title Nine and Title Thirty,
the Legislature intended that the court have the authority to
place a child with an appropriate relative, independent of any
licensing decision made by the Division.
Under the broad authority conveyed by the Legislature in
Title 30, the Division has adopted a comprehensive regulatory
scheme governing the removal of a child after a placement is
18 A-4847-12T1
made. For example, N.J.A.C. 10:122E-1.1 provides that "the
Division has the discretionary authority to remove a child in
placement from a resource family home at any time with or
without the consent of the resource family parent, parent or
child in placement." In emergent situations, "[t]he Division
representative shall remove a child in placement from a resource
family home when the Division determines that the child is not
safe in the resource family home." N.J.A.C. 10:122E-2.1(a)
(emphasis added).
In "non-emergency situations," the Division "may remove a
child in placement" for a variety of reasons, including
"documented evidence that the resource family engages in
behavior[] which is detrimental to any child in placement in
that resource family home." N.J.A.C. 10:122E-2.2(a)(3)
(emphasis added). Prior to a non-emergent removal, the Division
"shall" conduct interviews of the child and the resource family
parent and shall also inform the child, the resource family
parent and the parent "at least [thirty] days prior" to the
removal, "or as soon as possible when a court order is being
followed." N.J.A.C. 10:122E-2.3(a) and (b).
Whether in an "emergency [or] non-emergency situation[],"
the Division "shall consider" a variety of "points when deciding
whether to remove a child in placement." N.J.A.C. 10:122E-
19 A-4847-12T1
2.5(a). One of these is "[t]he resource family's history with
the Division . . . ." N.J.A.C. 10:122E-2.5(a)(7).
When a child is removed or will be removed from a
placement, the Division must provide notice of its actions.
N.J.A.C. 10:122E-2.6. Relevant to this case, "[t]he Division
representative shall notify . . . the family part of the
Chancery Division of the Superior Court, and the child's Law
Guardian . . . when there is a change in placement of any child
in placement known to the court." N.J.A.C. 10:122E-2.6(c)
(emphasis added). "If there is a difference of opinion between
the resource family parent and the Division representative
regarding the removal," the Division "shall inform the resource
family parent" of his or her right to an administrative appeal.
N.J.A.C. 10:122E-2.6(e).
B.
We have in the past discussed the tension between the
Division's statutory and regulatory authority, and the court's
inherent parens patriae jurisdiction over children who are wards
of the court pursuant to Title 30. In In re E.M.B., 348 N.J.
Super. 31, 32-33 (App. Div. 2001), we reviewed orders from the
Family Part that directed the Division to develop a new
placement plan subsequent to a termination of parental rights.
The dispute there centered on whether the Division's permanency
20 A-4847-12T1
plan – foster parent adoption — or an alternative plan —
adoption by the maternal grandparents — better served the
child's best interests. Id. at 33. The Division argued on
appeal that the court lacked jurisdiction to modify a placement
after a termination of parental rights; it also contended that
the grandparents' sole means of challenge was an administrative
appeal. Id. at 42. We rejected both arguments concluding
that the statutory scheme for review of a
permanent placement plan by the child
placement review board and the Family Part,
as provided in the [CPRA], cannot be
transmogrified into an administrative agency
review process, effectuated through a change
in the permanency planning goal by [the
Division] that essentially coincided with
the decision to terminate the parental
rights of the birth parents in the
guardianship case. Moreover, the [CPRA]
contemplates an independent judicial review
of [the Division's] permanency placement
plan, separate and apart from any rights the
grandparents may possess to contest the
internal administrative decision of [the
Division].
[Id. at 48 (emphasis added).]
In another CPRA case, In re C.R., supra, 364 N.J. Super. at
266, the controversy centered upon the Division's refusal to
consider placement of a child in a home in which three of her
siblings already had been adopted because of regulatory
"population limitation[s]."
[T]he Family Part judge determined that he
lacked jurisdiction to entertain the
21 A-4847-12T1
dispute, concluding that [the Division]
ha[d] sole discretion in placing children in
foster care and moving them from one foster
home to another, subject to internal
Division review and administrative appeal,
and subject to judicial review only in the
Appellate Division.
[Id. at 267.]
We ultimately rejected arguments made by the Division, similar
to those it advances now, and concluded
[Division] policy cannot supercede the
paramount authority of the Family Part,
imbued with its traditional parens patriae
responsibility and vested by the Legislature
with the task of finally approving the
permanency placement plans of children
removed from their homes. If the Family
Part possesses the responsibility and
authority to approve such plans, . . . it
follows logically that when a bona fide
dispute is presented by parties with
standing, between competing plans that are
reasonably plausible, it is the Family Part
that must resolve the dispute.
[Id. at 283.]
II.
We return to this case. Initially, we reject the
Division's argument that the Family Part's review of its
placement decision violates the separation of powers clause of
the Constitution. As the preceding discussion reveals, the
Family Part has the inherent jurisdiction to review placement
decisions made by the Division with respect to a child who has
been made a ward of the court.
22 A-4847-12T1
Indeed, the Division's own regulatory scheme anticipates
such a result. N.J.A.C. 10:122E-2.6(c) requires that "[t]he
Division representative shall notify . . . the family part of
the Chancery Division of the Superior Court, and the child's Law
Guardian . . . when there is a change in placement of any child
in placement known to the court." It would be nonsensical and
contrary to the regulatory scheme to require the Division to
provide notice, yet deny the Family Part judge an opportunity to
assess whether a change in placement was in the child's best
interest.
In our opinion, the judge's frustration with the Division's
failure to abide by its own regulations was entirely
understandable. The Division's decision to remove Tommy from
Carl and Charlotte's home was done without any notice to the
court, and it is unclear whether any notice was provided to the
affected parties as required by the regulations.
Having said that, we agree with the Division that the judge
could not require it to pay Carl and Charlotte as licensed
resource parents. The Legislature has determined that the
licensing of resource parent homes is delegated to the broad
regulatory power of the Division. Denial of a license is
subject to administrative review as outlined above.
23 A-4847-12T1
"Courts have only a limited role to play in reviewing the
actions of other branches of government." In re Musick, Dep't
of Corrections, 143 N.J. 206, 216 (1996). "[O]ur review is
circumscribed, lest we violate the Constitution's separation of
powers." In re Veto of Minutes of New Jersey Racing Comm'n, 429
N.J. Super. 277, 291 (App. Div. 2012) (citation omitted),
certif. denied, 214 N.J. 116 (2013). We find no authority
suggesting that the Family Part's jurisdiction to resolve
disputes over the placement of children already deemed wards of
the court permits the judge to compel the Division to grant a
license to a particular home.
Notably, in C.R., supra, 364 N.J. Super. at 283, we
specifically did not resolve whether the Division's placement
plan, or the alternative proposed by the adoptive parents of the
child's siblings, should prevail. Instead, we held that the
Family Part "shall consider the matter from a clean slate."
Ibid. As such, we did not conclude that the Division's refusal
to grant a waiver of its occupancy guidelines was improper.6
In sum, while we agree that the Family Part had inherent
jurisdiction to review the Division's decision to remove Tommy
from Carl and Charlotte's home, we reverse that part of the
6
Additionally, in C.R., we stayed the adoptive parents'
administrative appeal pending resolution of the remand in the
Family Part. 364 N.J. Super. at 283-84.
24 A-4847-12T1
order that required the Division to treat the child's return to
Carl and Charlotte's home as a "paid resource placement."
III.
While the judge properly exercised his jurisdiction in
deciding Tommy's best interests were served by his continued
placement with Carl and Charlotte, we conclude he failed to
appropriately consider all relevant statutory and regulatory
factors. We therefore reverse the order requiring Tommy's
continued placement with Carl and Charlotte and remand the
matter for further proceedings consistent with the balance of
this opinion.
Initially, we address the judge's stated concern regarding
"the treatment of domestic violence findings and how that
pertains to the Division's ability to license a home." While
the Division's licensing decision is beyond the purview of the
Family Part's review, it is quite clear that the Legislature,
not the Division, has concluded no person may serve as a
resource family parent "if that person or any adult residing in
that person's household ever committed a crime that resulted in
a conviction for" a variety of enumerated offenses, including
"domestic violence." N.J.S.A. 30:4C-26.8(d)(9).
In 1999, the Legislature amended Title 30 to include this
"domestic violence" disqualifier as part of an overall effort to
25 A-4847-12T1
"conform State law to the provisions of the federal 'Adoption
and Safe Families Act of 1997,' (ASFA)[,] Pub.L. 105-89." Bill
Statement to S. 1705 (1999); L. 1999, c. 53, § 34. The
Legislature noted that "ASFA . . . prohibits approval of
applicants who have committed certain crimes[,]" and the
amendment was intended "to identify . . . specific crimes that
prohibit approval." Ibid.
ASFA requires a state receiving federal funding to
provide procedures . . . , including
procedures requiring that . . . in any case
involving a child on whose behalf such
payments are to be so made in which a record
check reveals a felony conviction for child
abuse or neglect, for spousal abuse, for a
crime against children (including child
pornography), or for a crime involving
violence, including rape, sexual assault, or
homicide, but not including other physical
assault or battery, if a State finds that a
court of competent jurisdiction has
determined that the felony was committed at
any time, such final approval shall not be
granted[.]
[42 U.S.C.A. § 671(a)(20) (emphasis added).]
The language used by Congress in enacting ASFA does not fit our
existing Criminal Code with precision. For example, ASFA uses
the term "felony conviction." Ibid. However, the adoption of
the New Jersey Criminal Code in 1979 (the Code) eliminated the
use of the terms "felonies" or "misdemeanors." N.J.S.A. 2C:1-4.
26 A-4847-12T1
Nor does the Code include a specific offense labeled "spousal
abuse."
This imprecision carried forward somewhat when the
Legislature passed the 1999 amendments to Title Thirty. All of
the disqualifiers listed in N.J.S.A. 30:4C-26.8(d) involve
convictions for offenses defined as crimes under the Code,
except subsection (9), which involves domestic violence.
Proceedings brought under the Prevention of Domestic
Violence Act (PDVA) N.J.S.A. 2C:25-17 to -35, are civil in
nature, and the burden of proof is by a preponderance of the
evidence, not beyond a reasonable doubt, the standard required
for a criminal conviction. J.D. v. M.D.F., 207 N.J. 458, 474
(2011); Crespo v. Crespo, 408 N.J. Super. 25, 40 (App. Div.
2009). Under the PDVA, "domestic violence" is defined as the
"occurrence of one or more" predicate "acts." N.J.S.A. 2C:25-
19(a). While all domestic violence predicate acts are offenses
under the Code, they are not all crimes. See e.g., N.J.S.A.
2C:25-19(a)(13) (defining harassment, generally a petty
disorderly persons offense, see N.J.S.A. 2C:33-4, as a predicate
act of domestic violence).
"Although committing one of the predicate acts may also
expose the offender to criminal prosecution, the Act did not
create a new class of criminal offenses[.]" J.D., supra, 207
27 A-4847-12T1
N.J. at 474 (citations omitted). Separate from the relief
available to a plaintiff in a hearing under the PDVA, N.J.S.A.
2C:25-27 provides that "[w]hen a defendant is found guilty of a
crime or offense involving domestic violence," the court may
impose restrictions on the defendant's ability to contact the
victim as "a condition of sentence." See J.D., supra, 207 N.J.
474.
The judge here seemingly concluded that because an action
under the PDVA is civil in nature, the exclusion from licensing
contained in N.J.S.A. 30:4C-26.8(d)(9) did not apply. We
disagree.
In enacting the PDVA, the Legislature declared
that domestic violence is a serious crime
against society; . . . that there is a
positive correlation between spousal abuse
and child abuse; and that children, even
when they are not themselves physically
assaulted, suffer deep and lasting emotional
effects from exposure to domestic violence.
[N.J.S.A. 2C:25-18 (emphasis added).]
Additionally, the Court has said "there is no such thing as an
act of domestic violence that is not serious." Brennan v.
Orban, 145 N.J. 282, 298 (1996). In our view, the Legislature
determined that "spousal abuse" as used in AFSA, should include
all offenses listed in the PDVA, whether crimes or not.
Moreover, the Legislature determined that a "conviction" for
28 A-4847-12T1
domestic violence necessarily required the rejection of any
resource parent license application. While an actor is not
"convicted" of domestic violence under the Code, we believe the
Legislature clearly intended that entry of a final restraining
order under the PDVA, which necessarily presumes a finding that
the defendant committed an act of domestic violence, meets the
requirements for disqualification under N.J.S.A. 30:4C-26.8(d).
This is the only interpretation consistent with both an implicit
purpose of Title Thirty's licensing provisions, and a stated
purpose of the PDVA, i.e., to insure to the extent possible that
a child will not suffer the "deep and lasting emotional effects
from exposure to domestic violence." N.J.S.A. 2C:25-18.
In this case, however, there was no final restraining order
issued against Carl as a result of the incident in 2004.
Although the statutory prohibition did not apply, the judge
still should have considered all the facts and circumstances
surrounding the 2004 incident in deciding whether Tommy's best
interests favored his return. Although the events occurred nine
years earlier, they involved a violent expression of Carl's
anger that arose, in part, from the family dynamics in the
household at the time. On remand, the judge should consider all
of the circumstances surrounding the 2004 incident in deciding
29 A-4847-12T1
whether placement with Carl and Charlotte is in Tommy's best
interests.
The judge also expressed concern as to "whether a
substantiation [of neglect], in and of itself, would require the
removal of a child because the Division could not license a
home." Under N.J.S.A. 30:4C-27.9, the Division is authorized to
deny a license to an applicant for "good cause." Good cause
includes a finding that "an incident of child abuse or neglect
. . . has been substantiated." N.J.S.A. 30:4C-27.9(d); and see
N.J.A.C. 10:122C-2.5(b)(7). However, the Division may issue the
license if it "determines that the . . . applicant or adult
household member poses no continuing risk of harm to the child
and the issuance of the license is in the child's best
interests[.]" Ibid.
As previously discussed, the judge may not order the
Division to reach any particular decision in exercising its
discretion to grant or deny a license in such situation. In
other words, if the Division concludes there is good cause to
reject an application for a license based upon a prior
substantiated finding of abuse or neglect, the Family Part may
not compel the Division to issue the license. However, in
ordering a placement, the judge must consider whether the prior
substantiated finding of abuse or neglect evidences a continuing
30 A-4847-12T1
risk to the child such that the placement is not in the child's
best interests.
In this case, the judge seemingly concluded that the
passage of nine years, the lack of any referrals in the
intervening years and Tommy's residence with Carl and Charlotte
for several months before the Division filed its complaint all
militated in favor of returning Tommy to his grandparents.
However, on remand, the judge should also consider the serious
nature of the allegations that led to the Division's
substantiation of neglect, and that the incident arose out of
the family dynamics at the time, and while children, including
Kara, witnessed the events.
Lastly, N.J.S.A. 30:4C-27.9(i) also provides that the
Division's denial of a license for good cause may be based upon
"[a]ny conduct . . . which adversely affects or presents a
serious hazard to the education, health, safety, general well-
being or physical, emotional and social development of the child
residing in the resource family home . . . ." Although this
reflects the Legislature's determination that certain factors
should guide the licensing decision, the statute has relevance
to the court's consideration of any placement. The judge did
not make specific findings regarding the incidents between Carl
and the caseworkers that allegedly took place during the initial
31 A-4847-12T1
placement on May 10. On remand, the judge should consider
whether, if true, the reports made by the Division's workers are
evidential of circumstances that adversely affect Tommy's best
interests.
Because we are remanding the matter for further
proceedings, we do not consider the Division's argument that the
judge abused his discretion in not ordering psychological
evaluations of Carl and Charlotte. The Division is free to
pursue its request at the remand hearing.
Additionally, months have passed since we granted the
Division's motion for leave to appeal. We have no information
as to what may have transpired in that intervening time. Of
course, we cannot know whether immediately removing Tommy from
his maternal grandparents' care pending the remand hearing would
be in his best interests. Therefore, despite our decision to
reverse the June 10 order, we leave that decision to the judge's
discretion.
Reversed and remanded. We do not retain jurisdiction.
32 A-4847-12T1