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State in Interest of L.L.

Decided: June 2, 1993.

THE STATE OF NEW JERSEY IN THE INTEREST OF L.L., A MINOR CHILD


On appeal from the Superior Court, Chancery Division - Family Part, Morris County.

Gaulkin, Havey and Stern. The opinion of the court was delivered by Havey, J.A.D.

Havey

[265 NJSuper Page 72] L.L., Sr. appeals from an order entered in the Chancery Division, Family Part, which rejected a plan presented by the Division of Youth and Family Services (Division) for the placement of his son, L.L., pursuant to the Child Placement Review Act (Act), N.J.S.A. 30:4C-50 to -65. The central issue is whether the trial court was correct in applying the "best interests" standard in denying the Division's placement plan. We conclude that the "best interests" standard is the appropriate standard in reviewing a placement plan under the provisions of the Act. We therefore affirm the trial court's order. However, we remand for a modification of that order.

On October 24, 1989, L.L., Sr. stabbed his wife to death in the course of a fight.*fn1 Their child (L.L.), five months old at the time, was placed in the physical custody of the Division pursuant to a voluntary placement agreement executed by L.L., Sr. On the day after the stabbing, the Division placed L.L. in the foster care of Mr. and Mrs. H. (foster parents), who have a natural son, an adopted daughter and two other foster children.

Pursuant to L.L., Sr.'s suggestion, the Division contacted Mr. and Mrs. Doe (fictitious names), L.L., Sr.'s half-brother and sister-in-law who are of Hispanic heritage, and who lived in Panama. In the Division's quest for permanent placement of L.L., it determined that Mr. Doe, a salesman, and Mrs. Doe, a social worker, had a monthly income of approximately $3,000, have a two-year old daughter and maintain a middle-class lifestyle in Panama City. The Does expressed a strong desire to take custody of L.L.

In January 1990, the Division notified the foster parents that it intended to place L.L. with the Does in Panama. In response, the foster parents moved in the Chancery Division to prevent the Division from removing L.L. from their home. At a May 15, 1990 summary hearing, the Division advised the trial court that L.L., Sr. had revoked his voluntary placement agreement and supported the Division's plan to place L.L. with the Does. The Division also presented a home study report prepared by Panamanian social services describing the Does' lifestyle. The trial court rejected the Division's proposal, citing shortcomings in the Panamanian home-study report, the fact that the Does had never seen the child, and the possibility that L.L., Sr. would have access to the child upon release from prison. The Does thereupon flew up from Panama and testified at a subsequent hearing conducted on July 10, 1990. At the hearing, the court granted the foster parents'

request for extensive discovery and that the Does be examined by the foster parents' privately-retained psychologist.

On October 11, 1990, the Morris County Child Placement Review Board, by a majority vote, approved the Division's proposed placement of L.L. with the Does. See N.J.S.A. 30:4C-58. Thereafter, psychological evaluations of the Does and the foster parents were performed by Dr. Sharon Ryan (for the foster parents) and Dr. Robert McCormick (for the Division). L.L., Sr. was evaluated by Dr. Ernesto Perdomo (for the Division). Soon after the evaluations were performed, the trial court granted the foster parents' request for a plenary hearing at which the three experts were examined and cross-examined by counsel, including counsel for the foster parents. The court also received testimony from the foster parents.

Applying a "best interests" standard, the trial court denied the Division's placement plan by order dated May 13, 1991. The court was concerned that if L.L. were placed with the Does, L.L., Sr. would seek to "re-establish his paternity" with L.L. upon release from prison, a prospect the court deemed "a dangerous situation for the child." It also cited the psychological testimony concerning the substantial bonding between L.L. and the foster parents, and the emotional harm L.L. would suffer upon separation from his foster family. Further, the court was not convinced that the Does had had sufficient time to interact with L.L. to enable them to commence parenting. It also expressed some doubt as to whether the Does could invest the time and commitment to visit L.L. in order to establish some relationship with the child prior to his move to Panama. Finally, the court was of the view that the child's Hispanic heritage, while relevant, did not overcome the compelling reasons to continue foster care.

L.L., Sr. and the Division first argue that the trial court erred in granting the foster parents "adversarial" standing in the placement proceedings. They contend that such standing is contrary to the best interests of the child because it may create an impediment to the voluntary consent by natural parents who may not

wish to disclose "intimate details of their personal lives" during an adversarial proceeding, and may harm the child because of the inevitable conflicts such a proceeding will ...


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