Summary
dismissing as moot where "the Division returned [the child] to the care and custody of his mother"
Summary of this case from In re K.S.Opinion
A-10/11 074161
12-15-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent and Cross–Appellant, v. K.N., Defendant and Cross–Respondent, and K.E., Defendant. In the Matter of T.E., a minor, Appellant and Cross–Respondent.
Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for appellant cross-respondent (Joseph E. Krakora, Public Defender Law Guardian, attorney). Christian A. Arnold, Deputy Attorney General, argued the cause for respondent cross-appellant (John J. Hoffman, Acting Attorney General of New Jersey, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel). T. Gary Mitchell, Deputy Public Defender, argued the cause for cross-respondent (Joseph E. Krakora, Public Defender Parental Representation, attorney; Mr. Mitchell and Robyn A. Veasey, of counsel). Jeyanthi C. Rajaraman argued the cause for amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., President; Ms. Rajaraman, Mr. Miller, and Mary M. McManus–Smith, on the brief).
Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for appellant cross-respondent (Joseph E. Krakora, Public Defender Law Guardian, attorney).
Christian A. Arnold, Deputy Attorney General, argued the cause for respondent cross-appellant (John J. Hoffman, Acting Attorney General of New Jersey, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel).
T. Gary Mitchell, Deputy Public Defender, argued the cause for cross-respondent (Joseph E. Krakora, Public Defender Parental Representation, attorney; Mr. Mitchell and Robyn A. Veasey, of counsel).
Jeyanthi C. Rajaraman argued the cause for amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., President; Ms. Rajaraman, Mr. Miller, and Mary M. McManus–Smith, on the brief).
Opinion
PER CURIAM.
This appeal concerns the scope of a Family Part judge's authority to make placement and licensing decisions under Titles Nine, N.J.S.A. 9:6–8.21 to –8.73; Thirty, N.J.S.A. 30:4C–11 to –14; and specifically the Resource Family Parent Licensing Act, N.J.S.A. 30:4C–27.3 to –27.15.
The pertinent facts gleaned from the record are as follows. In May 2013, the Division of Child Protection and Permanency (“Division”) filed an Order to Show Cause for Care and Supervision of T.E. (“Tommy”), the six-year-old son of K.N. (“Kara”) and K.E. (“Kevin”). The Family Part investigated allegations of domestic violence and drug use in Tommy's home and awarded temporary custody of Tommy to the Division. The Division temporarily placed Tommy in the home of his maternal grandmother, where he had been residing for several months, and conducted an on-site evaluation of the home. A later evaluation revealed that Tommy's maternal step-grandfather had been the subject of a domestic-violence complaint, which was dismissed. The Division substantiated the domestic violence claim and determined that the maternal grandparents' home could not be licensed under the Resource Family Parent Licensing Act (“Act”). As a result, the Division removed Tommy from his maternal grandparents' home and placed him with his maternal great aunt who was eligible to be licensed as a resource family parent and receive financial assistance under the Act.
As did the Appellate Division, we fictionalized the names of the parties involved to protect their anonymity and to be consistent with the opinion of the Appellate Division.
At the permanency hearings that followed Tommy's placement with his maternal great aunt, the Law Guardian argued that Tommy should be returned to the home of his maternal grandparents because Tommy was developing “attachment” issues and experiencing “personality changes.” The Division maintained that Tommy could not be returned to the home because the maternal step-grandfather had been the subject of a domestic violence complaint that was substantiated by the Division. At the conclusion of the hearings, the Family Part judge ordered the Division to return Tommy to the home of his maternal grandparents and to provide them with the financial assistance available to a resource family parent licensed under the Act.
The Division filed an emergent appeal to stay the Family Part's order. The Appellate Division held that the Family Part had the authority to place Tommy with his maternal grandparents, but remanded the matter for further consideration of all relevant statutory and regulatory factors to determine the suitability of the placement. N.J. Div. of Child Prot. & Permanency v. K.N., 435 N.J.Super. 16, 86 A.3d 158 (App.Div.2014). The Appellate Division also concluded that the Family Part exceeded its authority when it ordered the Division to make resource family parent payments to the maternal grandparents, and that a final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25–17 to –35, against an individual in a household bars that household from licensure as a resource family parent. Id. at 32–33, 33–38, 86 A.3d 158. This Court granted leave to appeal. 219 N.J. 624–25, 99 A.3d 829 (2014).
We are called upon to resolve two issues: (1) whether the Family Part has the authority to place a minor who is under the care and supervision of the Division in the household of a relative who has not been licensed by the Division as a resource family parent under the Act; and (2) whether the Family Part may compel the Division to provide to an unlicensed household financial assistance available to a resource family parent licensed under the Act.
We affirm, substantially for the reasons expressed in the Appellate Division opinion, that the Family Part judge had the authority to determine that the child's best interests were served by his continued placement with a relative not licensed as a resource family parent under the Act, and that the Family Part judge did not have the authority to compel the Division to pay financial assistance under the Act to a relative not licensed as a resource family parent. However, because the Division returned Tommy to the care and custody of his mother, we dismiss as moot the Appellate Division's remand to the Family Part to consider factors relevant to a placement review, including the claim of prior domestic violence involving the maternal step-grandfather.
We add the following two points for future guidance. First, a Family Part judge may require the Division to pay statutorily authorized assistance to unlicensed persons caring for a foster child. See N.J.S.A. 30:4C–2(a) (describing the Division as being responsible for the “maintenance ... of children”); see also N.J.S.A. 30:4C–2(f) (stating that “maintenance ... includes but is not limited to moneys expended for shelter, utilities, food, repairs, essential household equipment, and other expenditures to remedy situations of an emergent nature to permit, as far as practicable”).
Second, entry of a temporary or final restraining order may be considered by a Family Part judge as a factor in a child's placement review, but does not automatically disqualify a potential resource family parent from licensure under the Act. N.J.S.A. 30:4C–26.8(d) provides that no person may serve as a resource family parent “if that person or any adult residing in that person's household ever committed a crime which resulted in a conviction for” domestic violence pursuant to the Prevention of Domestic Violence Act. However, entry of a temporary or final restraining order is not a criminal conviction. See J.D. v. M.D.F., 207 N.J. 458, 474, 25 A.3d 1045 (2011) (noting that “the Prevention of Domestic Violence Act tests a victim's entitlement to relief in accordance with the preponderance of the evidence standard, consistent with the lowered burden of proof in civil proceedings”); see also Crespo v. Crespo, 408 N.J.Super. 25, 38–40, 972 A.2d 1169 (App.Div.2009) (concluding that restraints under the Prevention of Domestic Violence Act are essentially civil in nature), aff'd o.b., 201 N.J. 207, 989 A.2d 827 (2010).
The judgment of the Appellate Division is modified and affirmed.
For affirmance as modified—Chief Justice RABNER, Justices LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and Judge CUFF (temporarily assigned)—6.
Not Participating—Justice FERNANDEZ–VINA.
Opposed—None.