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New Jersey Division of Child Protection and Permanency v. C.S.

Superior Court of New Jersey, Appellate Division

August 19, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
C.S., Defendant, and J.C., Defendant-Respondent. IN THE MATTER OF J.C. and N.C. , Minors-Appellants.

Telephonically Argued May 7, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-206-12.

Kristin Nanette Briggs, Assistant Deputy Public Defender, argued the cause for minors-appellants (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Nancy P. Fratz, Assistant Deputy Public Defender, of counsel; Ms. Briggs, on the brief).

Reid Adler, Deputy Attorney General, argued the cause for respondent Division of Child Protection and Permanency (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Adler, on the brief).

Evan S. Goddard argued the cause for respondent J.C.

James E. Drake argued the cause for intervening respondents A.S. and E.T. (Drake Law Firm, attorneys; Mr. Drake, on the brief).

Before Judges Fisher, Alvarez and Waugh.

OPINION

FISHER, P.J.A.D.

Defendants J.C. and C.S. are the parents of three children, who we will refer to by the fictitious names, Arthur, Jane, and Nicholas. Jane and Nicholas were born on February 12, 2012, and February 13, 2013, respectively, well after the commencement of the pending litigation concerning Arthur.[1]

On February 29, 2012, the Division commenced a separate action with respect to Jane that led to her placement with the same foster home in which Arthur resided.

A week after Nicholas was born, the Division filed an amended complaint, seeking custody of him as well. At that time, A.S. and E.T., the children's maternal grandparents, [2]sought custody of Nicholas in the context of the pending action; they also sought custody of Jane in a separate custody action.[3]Nicholas was placed with the grandparents by order entered on February 20, 2013. Following an evidentiary hearing, which consisted of the testimony of C.S., a Division caseworker and the grandparents, the trial judge entered an order on March 4, 2013, transferring custody of Jane to the grandparents despite the Law Guardian's objection that a bonding evaluation concerning Jane's relationship with the foster family should have been conducted prior to any change. The judge found that placement with a relative was preferable regardless of what a bonding evaluation concerning the foster family might show.

We permitted the filing of a motion for leave to appeal on an expedited basis, and on March 14, 2013, among other things, we granted leave to appeal, stayed the transfer of custody, but also granted the grandparents liberal visitation with Jane pending our disposition of this appeal. We also imposed an expedited briefing schedule so that we could resolve, as soon as practicable, the issue addressed by this interlocutory appeal which we described in our March 14, 2013 order as: "whether a plenary 'best interests' hearing should have been conducted by the trial court before a transfer of custody to the maternal grandparents."

As noted, the hearing that led to the entry of the order under review consisted of the testimony of C.S., a Division caseworker and the maternal grandparents. This testimony revealed that the maternal grandparents had not been involved prior to the placement of Nicholas with them because the children's mother did not disclose the maternal grandparents as an available resource until December 2012. The information provided during the hearing revealed that the maternal grandparents were quite capable of providing a suitable home for Jane. The judge ruled that an evaluation of whether a bond had formed between Jane and the foster family was irrelevant in light of the availability of a suitable relative and transferred custody to the grandparents. The judge, thus, separated Jane from her foster home, where her older brother, Arthur, continues to reside, to live with her maternal grandparents and her younger brother, Nicholas.

The judge's findings regarding the suitability of the maternal grandparents are supported by the evidence and entitled to our deference. Cesare v. Cesare, 154 N.J. 394, 413 (1998). The issue raised by the Law Guardian in this appeal, however, poses a legal question: whether the judge correctly excluded, as irrelevant, evidence of what a bonding evaluation concerning the relationship between Jane and the foster family might show. That was a legal question; the judge's determination on that point is not entitled to deference. W.J.A. v. D.A., 210 N.J. 229, 238 (2012); N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J.Super. 538, 543 (App. Div. 2011). Although the issue posed constitutes a legal question, we reject what the parties appear to argue -- that ...


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