On appeal from Division of Youth and Family Services.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 13, 2008
Before Judges Skillman and Yannotti.
Appellant Dexter Tutt appeals from a final decision of respondent Division of Youth and Family Services which upheld the removal of O.K. from his care as a prospective adoptive parent. DYFS's final decision is contained in a thirty-six page written "dispositional review" report prepared by an administrative review officer and approved by the Monmouth/Middlesex area office manager. It is undisputed that this document constitutes final agency action.
Preliminarily, we note that after O.K.'s removal from appellant's home, DYFS placed him in another pre-adoptive home and O.K. has now been adopted. A final judgment of adoption was entered on September 21, 2007. A reversal of DYFS's final decision upholding the removal of O.K. from appellant's home would have no effect upon that adoption because the adoptive parent is not a party to this appeal. See 1 Restatement (Second) of Judgments § 34(3) (1982). Therefore, if appellant's objective in pursuing this appeal is to obtain the return of O.K. to his home, it is moot. However, because DYFS's final decision may have adverse collateral consequences and DYFS has not moved to dismiss on the grounds of mootness, we have elected to consider the merits of the appeal.
DYFS has been delegated statutory authority to "[e]xercise general supervision over children for whom [it has] care, custody or guardianship[.]" N.J.S.A. 30:4C-4(a). Thus, DYFS has authority to determine the appropriate placement of children placed in its care and custody including children who are prospective adoptees.
As in reviewing any other agency decision, the court's role in reviewing a decision by DYFS regarding the placement or removal of a child from a prospective adoptive home is limited to determining whether the agency action was arbitrary, capricious or unreasonable, or violated policies expressed or implied in the agency's enabling legislation. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
We have carefully reviewed DYFS's dispositional review report and the administrative record upon which it was based. That record indicates that appellant failed to provide O.K. with a clean home environment; over-relied upon his mother for child care; failed to assume an appropriate role in O.K.'s education; failed to assure that O.K. regularly took his medication; failed to assure that O.K. had proper eyeglasses; failed to provide O.K. with all the required therapy for his psychiatric problems; and did not spend sufficient time with O.K. Although the record also indicates that there was significant bonding between appellant and O.K. and that appellant made some efforts to address the deficiencies in his parenting of O.K., the problems remained sufficiently serious to justify DYFS's decision to remove O.K. from appellant's home. Finally, we note that there is no evidence in the record to support appellant's assertion that DYFS removed O.K. from his home based on DYFS's perception of his sexual orientation. Therefore, we conclude that DYFS's final decision upholding the removal of O.K. from appellant's home was not arbitrary, capricious or unreasonable, or violative of legislative policy.
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