DOCKET NO. A-0547-10T2
Tisha N. Adams, attorney for appellant T.M. Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Department of Children and Families (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alaina Antonucci, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent D.D. (Cory H. Cassar, Assistant Deputy Public Defender, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Happas.
On appeal from the New Jersey Department of Children and Families, Docket No. AHU 10-0975.
Tisha N. Adams, attorney for appellant T.M.
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Department of Children and Families (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alaina Antonucci, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent D.D. (Cory H. Cassar, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant T.M., a non-relative resource parent, appeals the decision of the Department of Children and Families (Division) removing minor D.D. from her care and placing her into the home of another resource parent for adoption. She argues that her due process rights were violated and the Division's decision was not in the best interest of D.D. The Law Guardian supports the removal on appeal. Based on our review of the record and applicable law, we are satisfied the evidence supports the Division's decision to remove D.D. from the resource home of T.M. We affirm.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
On May 7, 2007, the Division placed D.D. with T.M., a non-relative resource parent. T.M. had been a resource parent since 2000. T.M. adopted a special needs child placed in her care at birth by the Division in July 2005. D.D. resided with T.M. and T.M.'s adoptive daughter throughout the pendency of the Division's litigation to terminate the parental rights of D.D.'s natural parents. On April 28, 2009, the court issued an order terminating the parental rights of D.D.'s parents and awarding guardianship of D.D. to the Division. The permanency plan for D.D. was adoption by T.M.
In June 2009, T.M. admitted to being pregnant. T.M. gave birth to a son on July 7, 2009. T.M. placed her adoptive daughter with a friend while she recovered from childbirth. T.M. obtained approval from the Division to have D.D. placed in respite care for a month. The Division placed D.D. with her sibling's resource parent.
There is a discrepancy in the record as to whether D.D. has more than one biological sibling. The Division reports and the parties' briefs are inconsistent when referring to whether D.D. has one or two siblings. The March 17, 2012 Family Part order states, "the Division shall change the plan to select home adoption with the current adoptive parent of this child's sister [T.]" The June 29, 2010 "Post Termination Status Report" noted that C.M. "adopted [D.D.'s] sibling and wishe[d] to adopt D.D." We will refer to D.D. as having one sibling.
On August 31, 2009, the caseworker expressed the Division's concerns about T.M.'s ability to care for D.D. and recommended that T.M. engage in counseling. T.M. stated she was receiving counseling to address her feelings of being overwhelmed and agreed to have her therapist provide the Division with progress reports. D.D. was returned to T.M. on September 4, 2009.
The caseworker met with T.M. on November 20, 2009. Due to concerns about T.M.'s parenting capabilities, the caseworker told T.M. that the Division had placed a hold on her adoption of D.D. The Division recognized that T.M. was extremely overwhelmed in caring for three children on her own. The caseworker informed T.M. that D.D. had been exhibiting signs of attention deprivation since the birth of T.M.'s son. The caseworker further noted that D.D. was "sloppy and unkept" since she returned to T.M.'s home.
T.M. cried often during the November 20, 2009 meeting. The caseworker discussed T.M.'s non-compliance with her therapist's recommendation to continue therapy. The caseworker told T.M. that C.M., a resource parent for D.D.'s sibling, was willing to adopt D.D. T.M. replied, "she was not sure if she wanted to give [D.D.] up."
The caseworker advised T.M. that in order for D.D.'s adoption to proceed as planned, the Division required T.M. to participate in individual and family counseling. The caseworker explained that services would be offered in-home for T.M.'s convenience. T.M. refused the services, insisting that she was "fine." She stated she did not want more service providers in her "business." At the conclusion of the visit, the caseworker told T.M. to take "a few days to think about her options regarding [D.D.'s] placement and [T.M.'s] emotional needs."
On November 23, 2009, T.M. called the caseworker and agreed to engage in counseling. On December 14, 2009 a meeting was held to discuss T.M.'s emotional health and her ability to parent D.D. At this meeting, T.M. was very emotional and cried. She stated she sought therapy because she was feeling overwhelmed and wanted an extension of her maternity leave from work. She told the caseworker she would resume therapy if that would prevent D.D.'s removal. T.M. explained to the caseworker that she did not tell the Division about her pregnancy, until one month prior to her son's birth, because she did not believe it would have any effect on D.D.
Due to the Division's concerns with D.D.'s current placement, T.M. was informed that C.M.'s home would provide a more stable permanency plan for D.D. and would allow D.D. to be reunited with her sibling. T.M. inquired about her right to appeal the removal decision. She was told she would receive information about the appeal process after the removal was finalized. At the conclusion of the meeting, the Division asked T.M. if she would undergo a psychological evaluation to rule out post-partum depression or other emotional and psychological issues. T.M. told the caseworker her therapist conducted a psychological evaluation in August, but stated the Division would have to "wait and see" if she would permit the Division to obtain the results of that evaluation.
In her brief, T.M. denies she had a psychological evaluation in August.
On December 17, 2009, Bill Powell, T.M.'s therapist, addressed a letter to the Division summarizing his two sessions with T.M. Powell concluded T.M. was "mildly depressed because of her feelings about her son's father," but overall, she was in good emotional health. On December 21, 2009, T.M. told the caseworker she would not release her August 2009 psychological evaluation to the Division.
On January 19, 2010, the Family Part held a hearing to address the Division's concerns about D.D.'s continued placement with T.M. The Division highlighted its concerns about T.M.'s parenting capabilities and stated D.D.'s best interest would be ensured by amending the permanency plan to place D.D. with C.M. This amended plan would allow D.D. to be reunified with her sibling. The Law Guardian was concerned with the possible psychological impact the removal may have on D.D. as well as the unresolved factual issues regarding T.M.'s emotional stability in the absence of a psychological evaluation.
At the hearing, the court acknowledged receipt of a letter from T.M. dated December 17, 2009, objecting to the proposed removal. T.M. was permitted to address the court briefly at the close of the hearing. T.M. stated her desire to continue to parent D.D. The judge directed counsel for the Division to ensure that T.M. received information about the appeals process. In addition, the judge advised T.M. that in the event she was not satisfied with the outcome of the administrative decision, she should appeal directly to the Appellate Division, not the Law Division. The matter was relisted for March 17, 2010.
The Division, on January 25, 2010, referred T.M. to Family Preservation Services (FPS). Between January 27, 2010 and February 23, 2010, T.M. received over twenty-five hours of in-home counseling during twelve sessions. In a report dated March 5, 2010, FPS concluded T.M.'s ability to parent D.D. was affected by her unstable relationship with the father of her newborn son. FPS recommended additional counseling and proposed the use of a parent aide and enrollment in a "FPS step-down program." T.M. rejected all of FPS's recommendations.
On February 9, 2010, Dr. Barry A. Katz conducted a psychological and bonding evaluation of T.M. and D.D. The results of the personality test revealed a "fake good" profile, indicative of a person who presents a façade of having no faults or psychological problems. Dr. Katz opined that "even with this propensity to fake good, [T.M.] still generated a clinical profile that [was] indicative of an individual with a compulsive personality disorder with histrionic features." T.M. was identified as being rigid in her defense mechanisms and had a limited coping ability to deal with D.D.'s problems or behavior. Dr. Katz also identified attachment issues between T.M. and D.D. Dr. Katz suggested that while the problem may have originated from D.D.'s loss of her biological mother, the issue may have been exacerbated by the changes in T.M. and D.D.'s relationship following the birth of T.M.'s son. Furthermore, he observed T.M. was insensitive to D.D.'s attachment issues, which placed D.D. at risk of developing a "reactive attachment disorder." Finally, Dr. Katz recommended continued services and opined if T.M. did not cooperate, then "[the Division] and the court [should] review the situation . . . to ascertain [D.D.'s] best interests in terms of placement and treatment."
On March 17, 2010, the Family Part held a hearing. The court reviewed Dr. Katz's evaluation, as well as several documents submitted by T.M. including her December 17, 2009 letter opposing the removal, personal reference letters, and a letter from her therapist. Based upon the evidence reviewed and T.M.'s refusal to participate in services recommended by the Division and FPS, the court ordered the removal of D.D. from T.M.'s home and modified the placement plan to have D.D. placed with C.M., the adoptive parent of D.D.'s sibling. The Law Guardian did not oppose the removal of D.D. from T.M.'s home. T.M. was not present at the hearing. T.M. received a copy of the Family Part's order on March 19, 2010, and on March 22, 2010 D.D. was removed from T.M.'s home.
It is difficult to determine from the record whether T.M. received proper notice from the court regarding the March 17, 2010 hearing. T.M.'s appendix contains a notice of the January 19, 2010 hearing with a handwritten note stating "court date of 3-17-10 is cancelled."
On June 25, 2010, the Division sent T.M. a "rule-out" letter detailing the reasons why D.D. was removed from her care. The Division relied upon Dr. Katz's report and T.M.'s unwillingness to participate in recommended services. This letter provided T.M. with instructions on how to appeal the Division's decision. On July 7, 2010, T.M. sent a letter to the Division's Administrative Review Officer seeking review of the Division's June 25, 2010 decision.
On July 8, 2010, T.M. filed an Order to Show Cause seeking, in part, the right to intervene in the Family Part litigation involving D.D.'s placement and adoption. The Family Part heard the matter on July 13, 2010 and denied the motion. The judge cited T.M.'s ability, as a resource parent, to seek administrative review of the Division's June 25, 2010 decision, and her right to appeal to the Appellate Division. T.M. did not file a motion for reconsideration or seek an appeal from the July 13, 2010 order. T.M. sent a second appeal request to the Administrative Review Officer on July, 19, 2010, after learning that there was no record of her July 7th request.
On August 6, 2010, the Administrative Review Officer, Darlene R. Dixon, issued a letter opinion affirming the Division's decision to remove D.D. from T.M.'s home. Officer Dixon reviewed the case materials, T.M.'s rebuttal to the removal, the March 17, 2010 Family Part order, Division policy and the Administrative Code. She concluded D.D.'s removal was appropriate under N.J.A.C. 10-122E-2.2(a)(1),(2), and (4). She referenced the modified case goal to place D.D. with C.M., the adoptive parent of D.D.'s sibling. She also relied upon the psychological and bonding evaluation conducted by Dr. Katz, as well as documented evidence of T.M.'s refusal to comply with services offered by the Division. On August 11, 2010, Officer Dixon notified T.M. that her "appeal rights [were] through the Appellate Division . . . not the Office of Administrative Law. . . . [She had] 45 days from the date [she] receive[d] [the] letter to seek judicial review[.]" Accordingly, on September 29, 2010, T.M. appealed the Division's final decision of August 11, 2010.
There is no record of when T.M. received the August 11 letter; however, the Division has not challenged the timeliness of T.M.'s appeal.
On April 27, 2011, T.M. filed an emergent application to stay D.D.'s adoption with C.M. pending the outcome of the instant appeal, which we denied on May 5, 2011. On May 11, 2011, C.M.'s adoption of D.D. was finalized. This appeal ensued.
On appeal T.M. argues:
T.M. WAS NOT AFFORDED HER 14TH AMENDMENT RIGHT TO DUE PROCESS AND WAS DENIED HER RIGHT TO BE HEARD.
THE TRIAL COURT ERRED WITH REGARD TO ITS DECISION TO REMOVE D.D. FROM T.M.'S CARE WITHOUT FIRST CONDUCTING AN INDEPENDENT JUDICIAL REVIEW OF [THE DIVISION'S] PERMANENCY PLACEMENT PLAN BY TAKING
TESTIMONY, EVIDENCE AND INFORMATION FROM ALL RELEVANT SOURCES PERTAINING TO THE BEST INTEREST OF D.D. PURSUANT TO N.J.S.A. 30:4C-51 AND N.J.S.A. 30:4C-61.
T.M. submits that the Division violated her "fundamental right to establish a permanent home and to continue to raise D.D. as part of her family." Specifically, T.M. asserts that she was not properly noticed of the March 17, 2010 hearing, she was not afforded the right to contest the allegations made by the Division, and the Division failed to provide her with information regarding her right to appeal. We reject these arguments.
"The legal relationship between the resource parent and the child emanates through a contract with the Division sanctioned by state law." N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 593 (App. Div. 2011) (citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 845, 97 S. Ct. 2094, 2110, 53 L. Ed 2d 14, 35 (1977)) (concluding that unlike natural families whose liberty interests are rooted in intrinsic human rights, "whatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset."). While resource parents serve a tremendously essential purpose in child protective services, their "legal rights . . . in securing an undisturbed relationship with a child placed in their home are very limited." Id. at 592-59.
The Division is charged with the responsibility for the "care, custody, guardianship, maintenance and protection of children." N.J.S.A. 30:4C-2(a). To ensure that all children requiring foster care are placed in safe homes, the Division is statutorily authorized to create and implement rules and regulations. See N.J.S.A. 30:4C-26a; 30:4C-4(h). The Division possesses considerable discretion in the selection of foster parents and in removing children from one foster home and placing them in another. N.J.A.C. 10:122E-1.1; N.J.A.C. 10:122E-2.2. The Division's decision can only be reviewed by the Appellate Division. N.J.A.C. 10:120A-2.8.
To ensure the discretion vested in the Division is exercised in the best interest of the child, the Legislature created a system which charges the Family Part with reviewing and approving placement plans proposed by the Division. N.J.S.A. 30:4C-61.2(a). This review ensures that "the placement serves the best interest of the child." Div. of Youth and Family Servs. v. D.H., 398 N.J. Super. 333, 338 (App. Div. 2008); N.J.S.A. 30:4C-51. Pursuant to N.J.S.A. 30:4C-61, the court may schedule summary hearings to determine the proper course for a child's placement.
The Division expressed its concerns about continuing the placement of D.D. with T.M. at the January 19, 2010 hearing. T.M. appeared at the hearing and informed the judge of her desire to continue to parent D.D. The hearing was relisted for March 17, 2010. T.M. contends she was unable to contest the allegations asserted against her by the Division since she did not get proper notice of the March 17, 2010 hearing.
A resource parent has the right to object to a proposed removal of a child from his or her care. See N.J.S.A. 30:4C-12.2. However, the Legislature clearly circumscribed this right, stating "the resource family[,] parent or relative shall not be made a party to the review or hearing solely on the basis of the notice and opportunity to be heard." N.J.S.A. 30:4C- 12.2; D.P., supra, 422 N.J. Super. at 599. Furthermore, Rule 5:12-4(i) reinforces this limitation, stating, "[t]he notice shall further state that, in accordance with law, such person is not made a party to the case and that he or she may not be permitted to be present in the courtroom except for purposes of making a statement to the court."
Consequently, even if T.M. appeared at the March 17, 2010 hearing, her participation in that hearing would have been extremely limited. R. 5:12-4(i). Nonetheless, the record is clear that the Family Part was aware of T.M.'s position. T.M. made a statement in court on January 19, 2010 and submitted a detailed letter expressing her objection to the proposed removal of D.D. from her home.
T.M. also challenges the accuracy and timeliness of the information she received about the appeal process. T.M. was provided a "rule-out" letter on June 25, 2010 explaining the Division's reasons for removal. T.M. requested and received a dispositional review on August 6, 2010, pursuant to N.J.A.C. 10:120A-3.1. On August 11, 2010 Officer Dixon notified T.M. that her "appeal rights [were] through the Appellate Division . . . and not the Office of Administrative Law." See N.J.A.C. 10:120A-4.1(e). We are satisfied that T.M.'s due process rights were not violated.
Finally, we find no reason to disturb the Division's decision to remove D.D. from T.M.'s care. Our review of an agency's final decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Ordinarily, we will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). "Agencies, however, have no superior ability to resolve purely legal questions[.]" Id. at 513.
Pursuant to N.J.A.C. 10:122E-2.2(a), the Division may remove a child in placement from a resource family home for any of the following reasons:
1. The child's case goal is furthered or achieved by the move or a court order is being followed, for example, return to family, placement in an adoptive home or uniting a child in placement with siblings.
2. The child has a need, which cannot be met by the current resource family.
3. There is documented evidence that the resource family engages in behavior, which is detrimental to any child in placement in that resource family home.
4. There is documented evidence that the resource family disagrees with the approved case plan and repeatedly fails to cooperate with the Division or to make the child in placement available for visits or services, which are part of the approved case plan, despite the Division representative's attempts to involve the resource family in remediating the situation.
5. The resource family has a pattern of violating any Division rules, which may have a negative impact on any child in placement, despite attempts by the Division representative to ensure compliance.
Officer Dixon reviewed the case material, T.M.'s rebuttal, and consulted both Division policy and the Administrative Code. She concluded D.D.'s removal was appropriate under N.J.A.C. 10-122E-2.2(a)(1),(2), and (4). We agree.
D.D.'s case goal was "furthered . . . [by D.D.'s] placement in [a proposed] adoptive home . . . uniting [D.D.] with [her] sibling." See N.J.A.C. 10-122E-2.2(a)(1). In addition, D.D.'s needs were unable to be met by T.M. See N.J.A.C. 10-122E-2.2(a)(2). Dr. Katz identified attachment issues between T.M. and D.D. and noted T.M.'s insensitivity to these issues and her "limited coping ability" to deal with D.D.'s needs.
Moreover, there was documented evidence demonstrating T.M.'s failure to abide by the case plan and her unwillingness to accept the services offered by the Division. See N.J.A.C. 10-122E-2.2(a)(4). On November 20, 2009, T.M. was told that she needed to continue with therapy and, if she did not, she would be precluded from adopting D.D. T.M. stated she was "fine" and did not want more service providers in her "business." Additionally, T.M. refused all of FPS's recommendations for counseling.
We are satisfied there is sufficient evidence in the record to support Officer Dixon's conclusion that the Division appropriately used its discretionary authority to remove D.D. from T.M.'s home. Officer Dixon followed the Administrative Code and rendered a decision supported by substantial evidence that was not arbitrary, capricious or unreasonable. In re Virtua-West, supra, 194 N.J. at 422 (2008).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION