On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FC-12-53-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges Axelrad, Sapp-Peterson and Espinosa.
On leave granted, the New Jersey Division of Youth and Family Services (Division) appeals from the December l7, 2008 post-termination summary hearing order of the Family Part exempting J.A. from the Division's requirement for immunizations and the April l6, 2009 order denying reconsideration. We remand.
J.A. was born on June l7, 2007, having been exposed to Hepatitis C prenatally and testing positive for cocaine.*fn1 He was placed in a special needs foster home upon his discharge from the hospital in July 2007. J.A. was treated for plagiocephaly with a helmet for about six months in May 2008, and has been diagnosed with RAD (reactive airway disease) and asthma. On August l and September 26, 2007, J.A. received the Prevnar and polio immunizations, and on August 29 and October 31, 2007, he received the Dtap and Comvax haemophilus influenza immunizations.
J.E.A. and J.C.K. are his biological mother and father, respectively. Apparently, J.C.K. was not aware of the child until J.A. was three months old and a DNA test confirmed his paternity. On November 29, 2007, J.A. was placed in the home of his paternal aunt and her husband, D.H. and G.H., under presumptive eligibility for resource parent approval. By court order, J.C.K. was given unsupervised visitation, including overnight visitation. J.C.K. decided, however, that he would prefer that his sister, who he was going to use as a daycare provider, continue to raise his son. Accordingly, in April 2008, J.C.K. signed an identified surrender for D.H. to adopt J.A.
On October 2, 2008, in the course of the guardianship proceeding that had been filed against her, J.E.A. also surrendered her parental rights to J.A. with the express intent that D.H., individually or with G.H., adopt him. On that date, a judgment of guardianship accepting surrender and terminating both parents' rights was entered by the court. The judgment expressly provided that if the designees did not adopt J.A., each identified surrender would be void.
On December l7, 2008, a post-termination summary hearing was held by the trial court pursuant to the Child Placement Review (CPR) Act. The Division informed the court that it was unable to proceed with finalizing J.A.'s adoption because its policy required his resource parents to ensure that he receive all age-appropriate immunizations as recommended by his physician and that D.H. had objected to his receiving any immunizations based on her religious beliefs. The attorney referenced a report that had been sent to the court indicating what shots were missing and what the recommendations were by the physician. She also referenced a letter that the Division had received from the resource parents' pastor dated October 31, 2008, advising that D.H. and G.H., who are "practicing members of his Roman Catholic parish in good standing," sought to have J.A. exempted from the immunization requirement "on the basis of their personal religious beliefs which are not contrary to anything the Catholic Church teaches," and recommending them for this exemption and their adoption of J.A. The attorney explained that the Division did not "feel that [its] policy allows for any opting out," and represented that although the agency felt it was in the child's best interest to be immunized, it would be able to move forward if it had a court order specifically exempting J.A. from that requirement.
The caseworker stated that the aunt and uncle were doing a "wonderful job" with J.A. and she had no concerns about his care in their home. The only expressed roadblock to the adoption was the supervisor's reluctance to sign the consent because of the requirement that the child be fully immunized.
The law guardian informed the court that both biological parents supported D.H.'s position with regard to the immunization issue and represented that they executed their identified surrenders with knowledge of her position. The law guardian also commented that the Division was well aware of the resource parents' religious beliefs and not wanting the child to be immunized, as there had been an off-the-record discussion of this issue at a prior case management conference in the presence of D.H.'s attorney. Nevertheless, the Division accepted the identified surrenders to this particular caretaker. The law guardian argued that the Division's policy was a "broad policy for [the] overall best interest of the children" but there was "nothing specific" requiring J.A. to be immunized by virtue of his physical well-being or his exposure to other children as in a day care setting. She also surmised that if the identified surrenders of J.A.'s biological parents were vacated and the guardianship litigation were re-instituted, J.A. would likely be reunified with his father who would then make a private placement with his sister, the resource parent.
The court stated it was taking a commonsense approach in order to remove the obstacle to adoption and "save about nine months' worth of legal dancing" that would result in the parties ending up in exactly the same place. Immediately following the hearing, the court signed an order allowing the Division to "exempt [J.A.] from its policy regarding immunizations based upon the resource parent's religious beliefs" so the agency could "move forward with the consent package" for the child's adoption.
On January 28, 2009, the Division filed a motion for reconsideration of the prior exemption order. It argued that as J.A.'s guardian it had the sole legal authority to make decisions on his behalf until such time as he was adopted*fn2 and its regulations mandated that J.A. be given all age-appropriate immunizations. The Division took the position for the first time that J.A.'s special medical circumstances created a particularized need for immunizations. It submitted some of J.A.'s medical records and a January 8, 2009 letter from his pediatrician, Dr. Sunita Coutinho Haas, which recommended that J.A. "receive all routine immunizations and the influenza vaccine" in accordance with "the recommendations of the American Academy of Pediatrics" and opined that it was "particularly important for [J.A.] given his diagnoses of prematurity and reactive airway disease." The agency urged the court to defer to its "reasonable and medically supported" decision to have J.A. immunized for so long as he remained in its guardianship. According to the Division's pediatric nurse consultant, J.A. needed the following ...