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New Jersey Division of Youth and Family Services v. D.P. and O.B

November 3, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-149-10.

The opinion of the court was delivered by: Lihotz, J.A.D.




Argued October 5, 2011

Before Judges Cuff, Lihotz and St. John.

Allison C. Williams argued the cause for appellants L.C. and S.Z. (Pitman, Mindas, Grossman, Lee and Moore, P.C., attorneys; Ms. Williams, of counsel and on the briefs). Delia A. De Lisi, Deputy Attorney General, argued the cause for respondent Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. De Lisi, on the brief). Adrienne Kalosieh, Assistant Deputy Public Defender, argued the cause for respondent D.P. (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, of counsel and on the brief).

The opinion of the court was delivered by LIHOTZ, J.A.D.

We are asked to consider the role of resource parents in the Family Part's determination of the best interests of a child in the legal custody of plaintiff, the Division of Youth and Family Services (Division). Resource parents L.C. and S.Z. appeal from two Family Part orders. The first order, dated March 21, 2011, denied L.C. and S.Z.'s request to intervene in the hearing to determine the best interests of the child placed in their home. The second order, dated April 8, 2011, denied L.C. and S.Z.'s request to stay the court's plan to remove the child from their care pending their review of best interests hearing transcripts and expert reports, and to allow their participation in a new hearing.

On appeal, L.C. and S.Z. assert the trial court erroneously denied intervention, disregarding their status as "indispensable parties" and their standing as the child's "psychological parents." L.C. and S.Z. request reversal of the orders. They maintain the only way to assure the trial court considers all factual information relevant to the child's best interests is to reopen the litigation and allow their full participation. Their position is opposed by the Division, the child's biological parents and the Law Guardian, who advocate for finalization of the child's adoption by a relative as provided in the court approved plan.

Following our review, we determine the trial court fully abided all statutory provisions governing a resource parent's participation in litigation involving a child entrusted to their care by the Division. This process, as designed by the Legislature, assures protection of the child's best interests by permitting resource parents the opportunity to impart information to the Family Part, but otherwise precludes their participation as a party in the litigation. We conclude resource parents present no individual legal claim sanctioning their right to discovery or intervention in a best interests hearing. Accordingly, we affirm.

These facts provide context for our examination of this question of law. V.B., the child who is the center of this controversy, was born on July 16, 2009 to her natural parents, defendants D.P. and O.B. The Division sought custody of V.B. after learning the infant suffered in utero exposure to cocaine and opiates, compelling her inpatient hospitalization for narcotics withdrawal. At six weeks of age, V.B. was discharged from the hospital and placed by the Division in the care of resource parents, L.C. and S.Z., where she remained until April 21, 2011.

The Division's investigation for relatives to care for V.B. proved unsuccessful. The child's grandmother was ruled out. So was her aunt S.B. when the Division determined her home was unsafe, obviating licensure approval. Thereafter, based on the biological parents' failure to resolve their substance abuse issues, the Division proposed to seek guardianship of V.B. followed by resource parent adoption.

As the litigation proceeded, S.B. and her husband successfully sought visitation with V.B. D.P. moved for the child to be transferred to S.B.'s care. The court ordered an evidentiary hearing to determine V.B.'s appropriate placement. At some point prior to the hearing, the Division modified its proposed plan for V.B.'s permanent care. Although the Division remained intent on seeking termination of the natural parents' rights, it now proposed S.B. would adopt V.B., not the resource parents.

L.C. and S.Z. filed an order to show cause to intervene in the best interests hearing. They certified: "As [V.B.]'s daily caregivers, we have a lot of information that may not be known to the other parties or their experts." Additionally, L.C. and S.Z. sought "the right to participate in the [b]est [i]nterest[s] hearing, . . . [to] advocate for [V.B.]'s interests, as well as [their] own interests, to keep [V.B.] in [their] family." L.C. and S.Z. also desired to review the parties' experts' reports in preparation for the hearing and sought the opportunity to obtain their own expert.

In support of the motion, L.C. and S.Z. explained V.B. had adapted well to their home and was very attached to each of them. L.C. and S.Z. maintained they were V.B.'s psychological parents such that continued placement with them was in the child's best interests. They attached expert statements from V.B.'s pediatrician and a psychologist.*fn1

V.B.'s physician said:

I would be seriously concerned about [V.B.]'s well-being and future if she were to be removed from this optimal environment in which she is doing so well despite her early life experience. I would have special concerns about both the short-term and long-term risks associated with disrupting [V.B.]'s bonded parent-child relationships with [L.C. and S.Z.] after being in their care her whole life.

Also, David Brodzinsky, Ph.D., an expert in child development and clinical psychology, opined that severing the relationship between V.B. and her foster parents to place her with biological relatives "cannot be presumed to outweigh the risks of disrupting a child's secure attachment[.]"

All parties to the litigation filed briefs objecting to L.C. and S.Z.'s motion to intervene. In its March 21, 2011 order, the Family Part denied the motion and declined to stay its order so that the best interests hearing commenced that day.*fn2

L.C. and S.Z. were permitted to voice their positions in a statement to the court on the second and final hearing date.

During the hearing, D.P. and O.B. joined in the Division's proposal to place V.B. with S.B. The Law Guardian, however, disagreed, asserting "it was in [V.B.]'s best interests to remain with [L.C. and S.Z.]." S.B. and her husband expressed their willingness to assume V.B.'s care and to adopt her if permitted. The court also heard ...

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