On appeal from a Final Decision of the Department of Human Services, Division of Youth and Family Services, Office of Adoption Services, ARC-02013 (A-0817-02T2F). On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-177-02 (A-2024-02T4).
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted (A-0817-02T2F) September 10, 2003
Argued (A-2024-02T4) September 10, 2003
We are confronted in this appeal with competing requests and recommendations for the placement for adoption of C.R., a female born on February 8, 2002. C.R. is the tenth child born to her mother. None of the children are in the mother's custody. The identity of C.R.'s father is unknown. In a termination proceeding initiated by the New Jersey Division of Youth and Family Services (DYFS or the Division), the mother defaulted, and the Family Part judge, on November 22, 2002, after consideration of the evidence submitted, ordered the termination of the parental rights of C.R.'s mother and father,"whomsoever he may be." No one appeals that order.
Prior to the termination, these events transpired. Immediately after C.R.'s birth, DYFS sought and obtained legal and physical custody of her. On March 20, 2002, Elwood and Dianne Green (fictitious names) petitioned DYFS to place C.R. in their home. The Greens were the adoptive parents of three of C.R.'s siblings, had previously had other siblings of C.R. residing in their household, and provided for ongoing contact between the siblings living in their home and most of C.R.'s other siblings. DYFS refused to place C.R. with the Greens because they exceeded the"population limitation" of eight children provided for in Division policies. Although those policies allow for waivers under certain circumstances, including the recognized desirability of keeping sibling groups together, DYFS refused to seek a waiver.
C.R.'s law guardian, acting on C.R.'s behalf, joined in the request for placement with the Greens, asserting C.R.'s"sibling rights." The law guardian expressed this position to DYFS and to the Family Part judge presiding over the guardianship action. The Child Placement Review Board (CPRB) also recommended placement with the Greens, expressly disagreeing with the Division's position. By June 2002, DYFS had formulated a permanency plan that would place C.R. in a pre-adoptive foster home. The law guardian moved to prevent the placement and requested a hearing in the guardianship action to determine whether placement with the Greens or the other foster parents would be in C.R.'s best interests.
On June 14, 2002, the Family Part judge determined that he lacked jurisdiction to entertain the dispute, concluding that DYFS has 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. On June 28, 2002 the law guardian petitioned the Family Part judge to conduct a summary hearing under the Child Placement Review Act (Act), N.J.S.A. 30:4C-50 to -65, to determine which placement would be in C.R.'s best interests. The law guardian also sought to prevent the Division's intended placement of C.R. in a pre adoptive home other than the Greens'. The judge refused to intervene, and on July 2, 2002 DYFS placed C.R. in the pre-adoptive foster home, where she has since resided. We have entered an order staying the adoption of C.R. pending appeal.
At the time of the termination proceeding in November 2002, the law guardian again argued for C.R.'s placement in the Greens' home and again requested that the court conduct a best interests hearing to resolve the placement issue. The law guardian was armed with a report and supplemental report by a psychological expert opining that C.R.'s best interests would be served by placement with her siblings in the Greens' home. The judge again refused to interfere with the Division's placement decision because of lack of jurisdiction.
We disagree. We are satisfied that a sufficient showing was made by the law guardian, bolstered by the concurring CPRB recommendation, to establish the reasonable plausibility that C.R.'s best interests would be served by a permanent placement plan providing for her placement for adoption with the Greens. Of course, the Division's plan, rejecting the Greens because of the population issue and providing for placement for adoption with other foster parents, was also reasonably plausible. We hold that jurisdiction to resolve the dispute lies in the Family Part, which has an obligation to conduct a full evidentiary hearing to determine what permanent placement plan is in C.R.'s best interests.
We have before us two appeals, which we have calendared back-to-back, and which we address in this single opinion. The Greens' appeal of DYFS's decision denying their request for placement of C.R. in their home is docketed at A-0817-02T2F. The law guardian's appeal of various orders of the Family Part judge under FG-09-177-02 and FC-09-387-02, refusing to conduct a best interests hearing because of lack of jurisdiction, is docketed at A-2024-02T4.
C.R. was born to E.R. on February 8, 2002 at Christ Hospital in Jersey City. C.R. tested positive at birth for cocaine and syphilis. On February 25, 2002, DYFS filed a verified complaint alleging neglect and obtained a court order placing C.R. under its custody, care and supervision, and appointing a law guardian (FN-09-282-02). A guardianship complaint was filed on May 28, 2002 (FG-09-177-02).
C.R. was discharged from Christ Hospital on February 22, 2002 and placed by DYFS at Hudson Cradle. She remained there until May 16, 2002, when she was placed in a foster home. She remained there until DYFS placed her on July 2, 2002 in her current foster home.
Between 1990 and 2002, the Greens were DYFS-approved foster parents and the Division had placed approximately thirty-three children in their home. The Greens have three biological children. At the time of C.R.'s birth, two of the biological children were emancipated, and one, a sixteen-year-old son, was living at home. At that time the Greens also had nine other children in their home. Seven, including three of C.R.'s sisters, were adopted, and two were foster children. We are advised by counsel that since completion of the trial court and DYFS administrative proceedings, one of the foster children has been reunited with her family and no longer resides in the Greens' home.
E.R.'s oldest child, M.L., born in 1984, was placed by the Division with her grandmother. One of her children, G.R.I., born on January 17, 1998, was placed with the Greens, and died of SIDS while in their care on April 3, 1998. The remaining seven have been adopted: three by the Greens, two by a family in Bayonne, one by a family in Bloomfield, and one by a family in Prospect Park. In addition to G.R.I. and the three adoptive siblings of C.R., two other siblings of C.R. have resided at times in the Green household. One was in their foster care for six weeks before her adoption. Another, who had been adopted by other parents stayed with the Greens for six months, from January to July 2001, when her adoptive mother was ill and unable to care for her. In the summer of 2002, that child spent a week with the Greens, visiting her sisters.
The Greens have regularly invited the siblings of their adopted children born to E.R. to join the family for special occasions. Elwood Green is a sales manager at a car dealership located only five minutes from home, and he is available to come home from work from time to time when needed to assist with the children. Dianne Green does not work outside the home. On May 18, 2001, Elwood and Dianne Green were presented with the"DYFS Director's Award," the Division's highest commendation.
DYFS has never questioned the fitness of the Greens. The sole basis for refusing to place C.R. in their care was violation of the Division's population limitation policy, as embodied in the Division's"Field Operations Casework Policy and Procedures Manual" (Manual). Section 1502.1b of the Manual provides that children shall not be placed in a foster home where the placement will result in:
ù More than a total of eight children in that foster family including the foster family's natural and adoptive children and other children living in the home;
ù More than five foster children living in the home;
ù More than four children under six years of age living in the home;
ù More than two children under two years of age in the home; or
ù More than two children over two years of age who are non-ambulatory living in the home.
Section 1502.1c allows exceptions to the population limitations, in compelling or exceptional circumstances, ...