On appeal from a Final Decision of the New Jersey Division of Youth and Family Services, MRO-01-0096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Graves and Alvarez.
J.W.F.'s grandchildren, D.F., born June 22, 1995, and Y.F., born March 16, 1999, are in the custody*fn1 of the Division of Youth and Family Services (DYFS). Their mother, J.F., the daughter of J.W.F., is incarcerated. J.W.F., who is pro se, seeks an agency dispositional review, pursuant to N.J.A.C. 10:120A-2.5, of DYFS's most recent refusal to place the children with him. For the reasons set forth below, no additional hearing will be required.
J.W.F. was first denied placement of the children by DYFS's Edison District Office in 2000. He appealed. Accordingly, on September 5, 2001, a dispositional review conference was conducted at which J.W.F. appeared with counsel. See N.J.A.C. 10:120A-2.5. During the conference, DYFS presented records dating back to 1987 regarding emotional and physical abuse inflicted by J.W.F. on his own children, including J.F., as well as upon his wife. J.W.F. denied abusing his children, but acknowledged spanking J.F. once. He admitted striking his wife on one occasion, but claimed it was in self-defense. The dispositional review report, issued March 22, 2002, notes that as a child J.F. was the target of J.W.F.'s "anger and violence, chronic verbal and sometimes physical cruelty." The review officer concluded that J.W.F. had an "extensive history of violent behavior while caring for children" and she therefore affirmed the Edison District Office's decision.
Decisions made by an administrative review officer are final agency decisions. N.J.A.C. 10:120A-3.2(n). Any appeal is directly to this court. N.J.A.C. 10:120A-2.8. J.W.F. did not appeal the final agency decision and is therefore bound by the review officer's fact-finding.
The children were moved to a second pre-adoptive placement in 2005. As a result, J.W.F. again sought custody. On October 5, 2005, he was notified that his request was denied because, among other reasons: the children wished to remain with their caretakers, J.F. opposed the placement, and psychological and bonding evaluations established that "extreme psychological harm" would result if the children were removed from their pre-adoptive home. J.W.F. did not seek a dispositional review until November 30, 2005, after the twenty days in which to request it elapsed. N.J.A.C. 10:120A-2.5. On January 4, 2006, DYFS refused his request based on the 2002 decision from which no appeal had been taken. N.J.A.C. 10:120A-3.2(m); N.J.A.C. 10:120A-2.8.
In 2005 DYFS was not obligated to revisit J.W.F.'s potential as a relative placement. Nonetheless, it obtained upto-date psychological and bonding evaluations of the children. Further, DYFS took steps to evaluate his request a second time despite the absence of a presumption in the law favoring relative placement. N.J. Div. Youth and Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003). As stated in the October 5, 2005 letter, DYFS also relied upon the 2002 dispositional review report in making its determination. DYFS thoroughly considered the children's needs as well as J.W.F.'s status.
J.W.F. does not proffer any new information as to his potential as a caretaker which might, for equitable reasons, compel a second dispositional review. He merely reiterates his denials of abuse and his wish to care for his grandchildren.
Even if judicial review were not time barred, the final agency decision made in 2002 by the review officer was based on substantial credible evidence. That decision, along with current psychologicals, was reasonably relied upon by DYFS in 2006. An appellate court will not upset a final agency decision unless it is shown to be arbitrary, capricious or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Judicial capacity to review administrative decisions is severely limited because of the limited role courts "play in reviewing the actions of other branches of government." In re Musick, 143 N.J. 206, 216 (1996). It is restricted to inquiries as to:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency bases its action; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a ...