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In re E.M.B.

February 13, 2002


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Numbers FC-12-16-99 and FC-12-65-99.

Before Judges Newman, Fall and Axelrad.

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


Argued: December 4, 2001 *fn1

On leave granted appellant, New Jersey Division of Youth and Family Services (DYFS), appeals from orders entered in the Family Part subsequent to termination of the parental rights of the birth parents, directing DYFS to develop a new placement plan in accordance with the recommendations of the child placement review board, and scheduling a hearing to determine the permanency placement plan that serves the best interests of the children.

The issues in this case center on a dispute between DYFS, the maternal grandparents and the child placement review board concerning the goal of the permanency placement plan for children whose birth parents' parental rights have been terminated. All parties agree that termination of the parental rights of the birth parents and placement for adoption serves the best interests of the children. However, the permanency plan presented by DYFS contends foster parent adoption ensures the best interests of the children. The maternal grandparents contend adoption of the children by them serves the best interests of the children. Upon its review of the DYFS plan, the child placement review board reported to the court its recommendation that the permanency placement plan that ensures the safety and health and serves the best interest of the children is grandparent adoption. The trial court has ordered a summary hearing to resolve that dispute.

This appeal raises significant issues regarding the effect of a judgment of guardianship on the roles of DYFS, the court, and the child placement review board. Under the circumstances of this case, we hold that the termination of the parental rights of the birth parents in the guardianship action did not divest the child placement review board or the Family Part of their jurisdiction to review the permanent placement plan submitted by DYFS in accordance with the provisions of the Child Placement Review Act (the Act), N.J.S.A. 30:4C-50 to -65.

A detailed review of the factual and procedural history is necessary. E.M.B. was born on February 3, 1997; J.B. was born on October 8, 1998. M.A.B. is the mother and J.E.B. is the father of these children. E.M.B. tested positive for marijuana and methadone at birth. On February 7, 1997, custody of E.M.B. was vested with DYFS by the court upon the initiation of a Title 9 child abuse and neglect complaint in the Family Part against the parents, docketed as FN-12-185-97.

For a period of time, E.M.B. was placed with J.E.B. However, on August 3, 1998, DYFS discovered that E.M.B. was living in deplorable conditions, and the child was removed from J.E.B.'s home and placed in foster care, where he has been since.

J.B. tested positive for methadone at birth, was removed from his parents, and has been in foster care since November 5, 1998.

Despite being offered and provided services, programs and treatment by DYFS, neither parent has followed through nor made efforts to overcome his or her substance abuse problem and other parental deficiencies. Both M.A.B. and J.E.B. relocated to Florida and have not visited with the children since November 3, 1999.

Consistent with its policy to place children with relatives when possible, upon removal of the children from their parents, DYFS attempted to place the children with the maternal grandparents, E.D. and H.D., who reside in New York City. Prior to J.B.'s birth, an order was entered in the Title 9 action on February 21, 1997, ordering a priority interstate assessment concerning the possible placement of E.M.B. with E.D. and H.D. An order entered in that action on March 7, 1997, directed that the interstate evaluation be expedited. However, by letter dated April 23, 1997, New York's Administration for Children's Services advised DYFS that E.D. and H.D. were unable to care for E.M.B. due to the chronic thyroid condition of H.D.

Numerous orders were entered in the Title 9 action directing that the parents and children be provided with services, programs and supervised visitation. The parents failed to comply with or benefit from these services and it became increasingly evident that the original goal of reunification of the children with their parents would not be in the best interests of the children.

In January 2000, E.D. and H.D. expressed an interest in obtaining custody of both E.M.B. and J.B., and adopting them. On February 16, 2000, an order was entered, again requesting an interstate evaluation of E.D. and H.D. for possible placement of the children with them, noting that it was "critical for prompt eval[uation] given the length of time [the] children have been in foster care." The order also provided that E.D. and H.D. be given increasing visitation, "including unsupervised visitation as soon as possible when deemed appropriate by DYFS."

An order was entered in the Title 9 action on March 29, 2000, granting E.D. and H.D. legal custody of the children, with physical custody remaining with the foster parents. Specifically, the order stated that E.D. and H.D. were "granted joint legal custody for the purpose of obtaining educational opportunities for the children; the plan being to give them legal custody, then they will adopt them." The order was "self executing in regards to transferring custody to [E.D. and H.D.] subject to [a] transition plan being agreed to by DYFS, . . . [the] foster parent[s] [and E.D. and H.D.]"

An order entered on May 31, 2000 provided that custody, care and supervision of E.M.B. and J.B. shall continue with DYFS; physical custody of the children shall remain with the foster parents; unsupervised visits between the children and E.D. and H.D. shall proceed each week during weekends and other extended periods; the DYFS permanency plan of adoption of the children by E.D. and H.D. was accepted by the court; and DYFS was to file a guardianship complaint within sixty days.

On June 5, 2000, DYFS filed a guardianship complaint against M.A.B. and J.E.B., docketed as FG-12-50-00, seeking termination of their parental rights as to E.M.B. and J.B., and the placement of the children in the guardianship of DYFS for all purposes, including placement for adoption. Notably, at the time the guardianship complaint was filed, the permanency plan approved by the court in the May 31, 2000 order contemplated adoption by E.D. and H.D. An order entered on June 28, 2000 dismissed the child abuse and neglect action.

M.A.B. and J.E.B. were served with the guardianship complaint in Florida; however, they failed to respond or otherwise oppose the relief sought in the complaint.

A home evaluation report of E.D. and H.D. dated July 7, 2000 by the City of New York Administration for Children's Services stated, in pertinent part:

There is no reservation in making a strong recommendation that [E.D. and H.D.] be granted custody of their grandchildren [E.M.B. and J.B.]. [E.D. and H.D.] appear perfectly capable of providing a healthy and loving environment for their grandchildren. We are, therefore, approving the placement plan for the children in the home.

A case management order in the guardianship action was entered on August 9, 2000, directing completion of a bonding evaluation to assess the relationship of the children with the foster parents, and with E.D. and H.D. The order further provided that pending the results of the bonding evaluation the children were to remain in foster care placement.

At the request of DYFS, Dr. Lori Goldblatt, a psychologist, performed the ordered psychological and bonding evaluation. In her September 29, 2000 report, Dr. Goldblatt found that both children were bonded and attached to the foster parents, noting that

If the children were removed from their foster parents, they would initially suffer a grief reaction, since this is the only home that [J.B.] knows and the only stable home that [E.M.B.] knows. [J.B.], especially, would likely have a very strong grief reaction. However, since he is less than two, the trauma of this loss may be easier to overcome. [E.M.B.] has lived with the [foster parents] since he was eighteen months old and knows no other real home. If he were removed from the [foster home], he might revert to early autistic behavior and confusion, as demonstrated by his behavior in the train station. He could likely get adequate support from his grandparents in overcoming this loss. But he might also experience additional confusion if he is left with a neighbor whom he doesn't know well either. [E.M.B.] needs consistency of routine and people in his life, in addition to appropriate educational experiences and stimulation, to maximize his potential, given his current level of developmental delays.

Both children have also adjusted to having their grandparents in their lives and enjoy these visits. It is unclear, though, how committed [E.D. and H.D.] are to having permanent full-time custody of their grandchildren. They were aware that the grandchildren were in foster care for at least one and one-half years before they came forward to state that they could now care for them. [E.D. and H.D.] stated they couldn't care for [E.M.B.] when he was first born due to [H.D.'s] medical problems. However, they have not been able to identify a permanent alternative other than a babysitter, if either one of them should again become incapacitated, or in some way unable to care for the children full time. Ideally, the children should be raised by a biological relative if one is available to care for them. However, this may not necessarily be the best solution for these children. The [foster parents] have been more than willing to facilitate regular visitation with the grandparents and have gone out of their way to ensure that the children have consistent contact with their grandparents. They have also stated that they would have no problem continuing this arrangement, if they were granted custody. My recommendation is to grant physical custody to the [foster parents] with continued regular visits with their grandparents, so the children may have the benefit of both the parental relationship and the grandparent relationship that they already appear to enjoy.

An order entered on October 5, 2000 continued the weekend visitation for E.D. and H.D. with the children, afforded them the opportunity to obtain an independent bonding evaluation, and scheduled a case management conference for October 16, 2000.

On October 16, 2000, M.A.B. and J.E.B. failed to appear. The court granted the application of DYFS for entry of default against M.A.B. and J.E.B. and directed DYFS to present its proofs on the guardianship complaint through an affidavit of proof. DYFS advised the court that its permanency plan for the children had changed from grandparent adoption to foster parent adoption. E.D. and H.D. were not present at the October 16, 2000 hearing; however, their counsel was present and requested an adjournment to allow completion of the bonding evaluation permitted by the October 5, 2000 order. At that time, the trial court determined it had "no jurisdiction to decide in which home the children should be placed for the purpose of adoption[.]" DYFS agreed to cooperate with the completion of the independent bonding evaluation and advised the court that E.D. and H.D. could contest the change in the DYFS permanency plan by pursuing available administrative remedies.*fn2

By letter to E.D. and H.D. dated October 27, 2000, DYFS stated:

This [is] to advise [you] that after careful consideration of the facts in this case a decision has been made to rule you out as prospective caretakers for your grandchildren, [E.M.B.] and [J.B.] We feel that it would be in the best interest of the minor children for them to remain in the home of their current caretakers and that adoption by these caretakers be consummated.

You have the right to request a formal review of this decision by the Metropolitan Adoption Resource Center, District Office Manager. If you would like to request a review, please contact the undersigned within ten (10) days of receipt of this letter. . .

By letter dated November 3, 2000, counsel for E.D. and H.D. informed DYFS that his clients requested an administrative hearing to review DYFS's decision set forth in its October 27, 2000 letter.

As a result of the October 16, 2000 hearing, an affidavit of proof of Constance Charleston, a DYFS Family Services Specialist, dated January 12, 2001, was submitted to the court in support of DYFS's application for entry of default judgment against M.A.B. and J.E.B. In her affidavit, Ms. Charleston incorporated by reference "each and every averment of facts set forth in the Complaint for Guardianship, Docket No. FG-12-50-00 and the Protective Service Complaint filed under Docket No. FN-12-185-97A as if these averments were set forth as statements of fact in this Affidavit." Ms. Charleston further stated that "[t]he purpose of this incorporation is for the Court to consider the averments in both Complaints as facts in making its decision to terminate the parental rights of [M.A.B.] and [J.E.B.]"

In accordance with the October 6, 2000 order, Dr. Jerome Goodman, a psychiatrist, performed a bonding evaluation at the request of E.D. and H.D. In his February 2, 2001 report, Dr. Goodman found the children "are affectionate and closely bonded with [their foster mother]." He also found the children to be bonded with E.D. and H.D., and recommended the children be placed with the grandparents for adoption.

By letter to counsel for E.D. and H.D. dated February 15, 2001, DYFS stated that counsel would be contacted concerning a Regional Dispositional Review of the Metropolitan Adoption Resource Center's decision not to approve them as adoptive parents for their grandchildren and, when completed, "[they] will be notified accordingly of the Regional Administrator's decision." By letter to the grandparents' counsel dated March 9, 2001, DYFS provided its case notes related to the grandparents' involvement with the children, in anticipation of "the Regional Dispositional Review Conference."

During this period, the child placement review board continued to review the placement status of the children and the modification in the DYFS permanency placement plan pursuant to the Act. A child placement review order was executed on March 21, 2001, expressing dissatisfaction with the permanency planning decision of DYFS in rejecting the grandparents' application for custody and placement for adoption, and a "summary hearing for a review of permanency plan issues" was scheduled by the court for May 21, 2001.

The judgment of guardianship was not executed until April 16, 2001. It briefly recited the procedural history, stating, inter alia, that "the Court having found that it has no jurisdiction to decide in which home the children should be placed for purposes of adoption" and noting that "the Division having stated that the grandparents have administrative remedies that they may pursue[.]" The judgment stated that the court found by clear and convincing evidence that termination of the parental rights of M.A.B. and J.E.B. is in the best interests of the children, and placed both children in the ...

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