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S.R. v. Division of Youth & Family Services

June 09, 1998


Before Judges Muir, Jr., Kestin and Cuff.

The opinion of the court was delivered by: Kestin, J.A.D.

[9]    Argued: January 20, 1998

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County.

Plaintiff appeals from the trial court's March 26, 1997 order dismissing with prejudice her complaint for custody of her granddaughters, S.M.R. and L.N.R., on the motion of defendant Division of Youth and Family Services (DYFS). Defendants R.V.D. and C.V.D. are the foster parents of the children, approved by DYFS to adopt them. The foster parents' counterclaim for guardianship of the children was also dismissed. There is no appeal from that provision of the order.

S.M.R. and L.N.R. are two of seven siblings whose birth parents were first convicted in 1989 of abusing their then three children. After the parents' incarceration, they and the three children were reunited in early 1990. The two children whose custody is at issue herein were born thereafter, in October 1990 and August 1991, respectively. In early 1992, DYFS again intervened with the family. In April 1992, the birth parents formally surrendered custody of one of the older children, then six years old, and consented to her adoption. The child was placed with plaintiff, her paternal grandmother, who eventually, in 1994, adopted her.

By mid-1992, the four children remaining with the birth parents had also been removed from the parents' care at DYFS's instance. Shortly following, two of the four came to reside with plaintiff and their sister. The two who are the focus of this proceeding came into the care of the foster parents when they were eighteen and eight months old respectively. They have resided with the foster parents ever since.

About a year later, in July 1993, the sixth child was born and was immediately placed in foster care. He soon came to reside with the foster parents. After about a year, foster care of that child was transferred to plaintiff.

In May 1993, DYFS filed a complaint seeking termination of parental rights and guardianship as to all of the children except the one who had previously been surrendered. Trial of the termination/guardianship proceeding was delayed until August 1996, because the birth parents had once again been indicted for child abuse. In the interim, the birth parents fled the State and were ultimately apprehended in Arizona. While the parents were fugitives, they gave birth to a seventh child who, it has been represented, is in the care of Arizona's child protection agency.

From an early point in S.M.R.'s and L.N.R.'s placement with the foster parents, plaintiff maintained a relationship with them through visitation, which occurred on a regular basis until about May 1995 and was more sporadic thereafter. Some issues had arisen between plaintiff and the foster parents concerning visitation. DYFS's recommendation that they seek to resolve those problems with the assistance of a professional mediator was rejected by both sides.

On July 9, 1996, plaintiff and the foster parents met with the manager of DYFS's Northern Regional Adoption Center to discuss plans for the children's futures. They were advised that DYFS had determined, in accordance with its experts' evaluations, that the best interests of S.M.R. and L.N.R. would be served by continuing the foster home arrangement with a goal of eventual adoption by the foster parents. Plaintiff was informed that two procedural options were available to her in seeking to modify that determination: an administrative review could be sought through DYFS, or judicial review could be had through the Child Placement Review Board. In a July 22 letter, plaintiff formally protested the DYFS determination and "request[ed] a judicial review of this matter before the Child Placement Review Board as soon as possible"; and she communicated with DYFS's administrative review officer also requesting an administrative review. Shortly thereafter, however, plaintiff's attorney advised that plaintiff would not go forward with the child placement review, but would take steps instead to intervene in the pending guardianship proceeding. This was confirmed in a July 29, 1996 letter from court personnel to plaintiff, referring to a conversation with plaintiff's attorney. DYFS's administrative review officer, apparently aware of plaintiff's choice, advised her in a letter dated August 5, 1996, confirming two telephone conversations, that "it would appear to be more advantageous for you to request a summary hearing before the Warren County court concerning the placement of [the children]." The record discloses no effort by plaintiff to intervene in the termination proceedings.

Trial in the termination/guardianship proceeding began on August 12, 1996. On August 26, 1996, the trial court entered a judgment and order based upon the testimony and other evidence received at trial. The parental rights of the birth parents were terminated, and guardianship of all five children subject to the court's jurisdiction was granted to DYFS "for all purposes, including the placement of the minors for adoption[.]"

On January 14, 1997, plaintiff filed the instant complaint for custody. DYFS moved to dismiss the complaint. After oral argument on the return date of the motion, March 26, 1997, before the same Judge who had heard and ruled upon the termination/guardianship petition, the trial court dismissed the complaint with prejudice. The reasons for this determination were articulated on the record.

Under the prevailing statutory scheme, N.J.S.A. 30:4C-20 to - 22, once a trial court terminates parental rights and reposes guardianship in DYFS, the post-termination guardianship authority of DYFS is plenary, as "absolute" as that of a parent. Division of Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582, 595-96 (App. Div. 1996); In re Guardianship of R.O.M.C., 243 N.J. Super. 631, 633-34 (App. Div. 1990). This is not to say that the trial court, as a matter of inherent authority, may not, in the best interests of the children, undo that which it created, revisiting its guardianship ruling, by way of reconsideration or otherwise, especially where the guardianship order was recently entered and no adoption proceeding has yet begun. For this to occur, an interested party must, at the very least, make a clear showing of manifest error in the guardianship ruling in terms of the best interests of the children involved, or of a denial of a fair opportunity to be heard in the guardianship proceeding. Cf. R. 4:49-2; R. 4:50-1. Absent any such showing, after guardianship has been granted, the court's authority over DYFS's decisions concerning the welfare of children committed to its care is no greater than the court's authority over any parent.

On its face, plaintiff's complaint seeks residential custody of S.M.R. and L.N.R. in the context of DYFS's authority as legal guardian and in the face of DYFS's determination that residential custody should be elsewhere, i.e., with the foster parents. We are in substantial agreement with the trial court's view that its authority does not extend to a review of DYFS's custody decisions in the ordinary course of guardianship events, in the absence of a charge of failure to supervise the welfare of the children ...

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