On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-149-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 27, 2008
Before Judges A.A. Rodríguez and C.L. Miniman.
M.T. is the paternal birth grandmother of J.H., an infant boy. M.T. sought leave to appeal an order denying her application to intervene in abuse-and-neglect proceedings instituted by the Division of Youth and Family Services (DYFS). We granted M.T.'s motion and we now reverse and remand to the Family Part so that M.T. may intervene nunc pro tunc and participate in the custody issue relating to J.H. and to thereafter appeal as of right from any final order in the matter.
J.H. was born on May 1, 2007, to A.C., who abandoned him at the hospital the day after his birth. Both J.H. and A.C. had tested positive for opiates. The hospital contacted DYFS, which investigated the matter. While J.H. was still in the hospital, A.C. returned on May 3 and M.H. was there as well. M.H. told the DYFS caseworker that he wanted to care for J.H., his only child, and that his parents were willing to do so as well.
On May 8, 2007, pursuant to a Dodd*fn1 removal, DYFS took custody of J.H. At that time the paternity of M.T.'s son, M.H., had not been verified, although DYFS was aware that he claimed paternity, that A.C. corroborated his paternity, and that M.T. was interested in caring for J.H., her only biological grandchild. M.T. appeared at the May 17, 2007, hearing on the order to show cause to state her desire to care for her putative grandson and to adopt him. DYFS placed J.H. in a foster home with three of his five maternal half-siblings.
The first case management review occurred on June 4, 2007, with only A.C. and counsel appearing. Custody was continued with DYFS and another review was scheduled for June 28, 2007. M.H.'s paternity was established in a report that the Family Part received on June 6, 2007. At the June 28 hearing, the judge considered a letter from M.T. Custody was continued in DYFS and visitation was ordered for the parents. M.T. was also permitted to have visitation. The judge vacated the fact-finding hearing scheduled for August 20, 2007, and ordered DYFS to "assess the paternal grandmother as a placement for [J.H.] by 8/16/07," when the matter was to return to court. A.C. then stipulated on July 3, 2007, to abuse and neglect and waived the fact-finding hearing.
On August 16, 2007, M.T. and her husband appeared, as did the birth parents, counsel and the DYFS caseworker. Services were ordered for J.H., A.C., and M.H. and a plenary permanency hearing and visitation hearing were scheduled for November 29, 2007, although it was adjourned at the request of the Law Guardian.
On November 9, 2007, M.T., now represented by counsel, filed a motion to intervene and for a transfer of custody. At that point, J.H. was six months old. The Law Guardian and DYFS opposed M.T.'s motion to intervene. DYFS, however, made it clear that it "still strongly believes that it would be in the best interest of [J.H.] to be placed with his paternal grandmother." A.C. and M.H. supported intervention by M.T. and also wrote to the court advocating placement with and adoption by M.T.
After considering the arguments of counsel, the judge pointed out that the proceeding was an abuse-and-neglect case, not a termination-of-parental-rights case. She placed the following decision on the record:
So relying on the fact that the paternal grandmother has the right to be heard; her position is quite clear to the [c]court; relying on the fact that her interests are certainly at this point represented by the Division [because] they've clearly looked with favor on her application to become a resource family member to [J.H.]; and relying as well upon the fact that the Division or anybody else who is an attorney for a party in the case has a right to call her as a witness . . . at any future plenary hearing; . . . this [c]court is of the mind that there is absolutely nothing to be gained by allowing [M.T.'s] intervention in this case.
I believe her intervention would unnecessarily complicate matters. And I think it's not fair to say that her interests are not being represented. Quite the contrary. Since the Division's position at this point is that their plan is placement of [J.H.] with [M.T.], I think her interests are clearly being represented. And placement, ...