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State, Division of Youth and Family Services v. K.F.

August 13, 2002


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

Before: Judges Newman, Braithwaite and Fall.

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


Argued: August 6, 2002

New Jersey Division of Youth and Family Services (DYFS), appeals from an order entered by Judge Marilyn Rhyne Herr terminating DYFS's involvement in this action and requiring it to send the minor children, C.F. and A.F., to live with their maternal grandparents in Pennsylvania without Pennsylvania's approval of that placement. DYFS argues that the order must be reversed because it does not comply with the requirements of the provisions of the Interstate Compact on the Placement of Children, N.J.S.A. 9:23-5, (ICPC); namely, that the receiving state issue its approval prior to such placement. We disagree and hold that the ICPC does not apply to relative placement and, therefore, it does not require the prior approval of the receiving state when a court in this state has decided against foster care in favor of placing children with their out-of-state maternal grandparents.

The facts as found by the trial court are not contested. C.F. was born on October 31, 1997, and A.F. was born on July 24, 2000. K.F. is the mother of both children. C.W. is the father of C.F., and B.M. is the father of A.F. Intervenors R.G., the step-grandfather, and G.G. are the maternal grandparents of the minor children.

In October of 2000, A.F. required hospitalization at Hunterdon Medical Center for breathing problems. K.F., who was living with her parents, argued with them and left their house with C.F. and A.F. She did so, however, without A.F.'s asthma medications. K.F. brought A.F. to Hunterdon Medical Center. Hospital personnel, DYFS caseworker Mildred Alvarez and her supervisor reviewed their "concerns" about K.F.'s care of her children. They described her as "overwhelmed" and reported her as stating that, "her mother would kick her out" for signing a voluntary placement agreement for the children.

Although K.F. withdrew her consent to such placement, A.F. was released from the hospital on December 12, 2000, to a foster home. The maternal grandmother called the DYFS supervisor and expressed her anger over the children's placement in foster care. On December 4, 2000, at the recommendation of Alvarez, the maternal grandparents filed for custody of C.F. and A.F. On December 13, 2000, DYFS filed a verified complaint for custody. The court entered a show cause order on December 14, 2000, which granted immediate custody of both C.F. and A.F. to DYFS and scheduled the return date for January 11, 2001.

On the return date the trial court entered an order that continued custody with DYFS, granted weekly supervised visits at DYFS' offices, ordered psychological evaluations for K.F. and the maternal grandparents and ordered parenting skills classes. The court also ordered K.F. and R.G. to undergo drug treatment services. The maternal grandparents appeared with K.F. on the return day of the show cause order and on every court date thereafter.

At the request of DYFS, Michael J. Fiore, Ph.D. conducted a psychological assessment of K.F. and the maternal grandparents. He submitted a report dated February 15, 2001, concluding that although the maternal grandparents would require counseling, they were appropriate caretakers for their grandchildren.

By the time of the February 22, 2001 case management review hearing, the maternal grandparents were receiving family counseling with K.F. At that hearing, DYFS agreed to unsupervised visitation and submitted a report to the court dated February 15, 2001, stating that K.F. and the maternal grandparents had "been compliant with all of the Division's recommendations. They've attended all visits with the children, and have met all scheduled appointments with service providers." One such service provider was Judith Kail, a family therapist with Catholic Charities in Flemington.

Kail began working with K.F. and the maternal grandparents in February 2001. In a report dated April 25, 2001, Kail detailed the family's progress and recommended that the children be placed with their maternal grandparents. K.F. and the maternal grandparents continued to treat with Kail until DYFS terminated therapy on August 1, 2001. Kail recommenced treatment with the family in October 2001, when the court ordered therapy to resume. In a report dated December 6, 2001, signed only by Kail, she described the maternal grandparents as "willing and invested participants" and recommended placement of the children with them.

Kail gave a draft of this report to her supervisor who had recommended grammatical corrections. Kail made the corrections, signed and dated the report December 6, 2001, and sent a copy to the maternal grandparents. Kail also sent a copy to the DYFS caseworker because a court permanency hearing was scheduled for December 13, 2001. The attorney for the maternal grandparents ascertained that DYFS altered the December 6, 2001 Kail report before that hearing.

The court conducted a plenary hearing and determined that DYFS did in fact alter the December 6, 2001 Kail report. Sharon McCobin, the Director of the Hunterdon County DYFS office, had received a copy of the Kail report and requested that it be altered. McCobin directed Kail to omit from her report any reference to the grandparents gaining custody of the children and to omit "all" of her recommendations. Kail revised the report without changing the date, signed it and, after her supervisor signed the report, forwarded it to the court and all attorneys. Kail testified at the plenary hearing that she continued to hold the ...

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