RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0259-22 A-0695-22
M.M. AND R.M.,1
Petitioners-Appellants, APPROVED FOR PUBLICATION August 28, 2024 v. APPELLATE DIVISION DEPARTMENT OF CHILDREN AND FAMILIES,
Respondent-Respondent. _____________________________
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.H. AND J.O.,
Defendants-Respondents. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF D.H., a minor.
1 To protect the privacy of the parties, we refer to individuals by their initials. See R. 1:38-3(d). _____________________________
Argued February 6, 2024 – Decided August 28, 2024
Before Judges Sumners, Smith and Perez Friscia.
On appeal from the New Jersey Department of Children and Families and the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. 22-0145 and FG-11-0035-20.
Eric R. Foley argued the cause for appellants (Law Office of Louis Guzzo, attorneys; Eric R. Foley, on the briefs).
Karen Cavalier, Deputy Attorney General, argued the cause for respondent Department of Children and Families (Matthew J. Platkin, Attorney General, attorney; Sara M. Gregory, Assistant Attorney General, of counsel; Karen Cavalier, on the brief).
Julie E. Goldstein, Assistant Deputy Public Defender, argued the cause for minor (Jennifer Nicole Sellitti, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Julie E. Goldstein, of counsel and on the briefs).
Deric D. Wu, Assistant Deputy Public Defender, argued the cause for respondent J.O. (Jennifer Nicole Sellitti, Public Defender, attorney; Deric D. Wu, of counsel and on the brief).
Adrienne Kalosieh, Assistant Deputy Public Defender, argued the cause for respondent M.H. (Jennifer Nicole Sellitti, Public Defender, attorney; Adrienne Kalosieh, on the brief).
The opinion of the court was delivered by
SMITH, J.A.D.
A-0259-22 2 In this consolidated appeal, appellants and foster caregivers M.M. and
R.M. appeal from a Family Part judge's order dated October 3, 2022, denying
intervention in the guardianship litigation of D.H., and also appeal from a final
agency decision of the Department of Children and Families (DCF) affirming
removal of D.H. from their home.
Having reviewed the record and the applicable law, the Division of
Child Protection and Permanency's (Division) removal of the minor child was
supported by the regulatory officer's consideration of the experts' bonding
evaluations which properly interpreted the law, court orders, and Division
records. In addition, we affirm the trial court's order denying intervention into
the guardianship proceeding in light of the 2021 statutory amendments to the
Termination of Parental Rights (TPR) Statute, N.J.S.A. 30:4C-15.1, and
Kinship Legal Guardianship statute, N.J.S.A. 3B:12A-1 to -7.
I
We summarize the pertinent facts. D.H. was born December 22, 2018,
to M.H. and J.O. Shortly after his birth, D.H. was removed from his biological
parents' care and placed in the custody of the Division. Nine days later, the
Division placed him with foster-adopt resource caregivers, appellants M.M.
and R.M. (the foster caregivers). In October 2019, D.H. was transferred to the
custody of a paternal aunt. However, when the aunt violated a court order
A-0259-22 3 approximately two months later by allowing visitation with M.H., D.H. was
sent back to the foster caregivers. The Division later identified a different
paternal great aunt, O.A., as a possible kinship placement.
Psychologist Barry A. Katz, PhD, was retained by the Law Guardian to
conduct bonding evaluations of the relationships of D.H. and the foster
caregivers and D.H. and O.A between January and March 2021. Dr. Katz
opined that D.H. "has a secure bond and attachment toward [the foster
caregivers] as parental figures and primary nurturing figures" and "does not
have a bond or attachment with the paternal aunt." Dr. Katz concluded that if
D.H. were removed from his foster caregivers' home, he would suffer harm
that "will likely have a substantial negative impact on his . . . long term
health." Accordingly, Dr. Katz recommended that D.H. "should remain in his
current placement and not be placed with [O.A.]."
On June 23, 2021, the Division notified the foster caregivers that its goal
for D.H. changed from termination of parental rights to kinship legal
guardianship. The Division began assessing the possibility of placing D.H.
with his paternal great aunt, O.A. About five weeks later, the trial court
ordered the Division to continue to assess kinship legal guardianship and
authorized visitation between D.H. and O.A. Successive court orders
gradually increased visitation between D.H. and O.A. in line with the
A-0259-22 4 transitional plan developed by the Division to transfer care from the foster
caregivers to O.A.
The Division retained a second expert, psychologist David R.
Brandwein, PsyD, to conduct psychological and bonding evaluations for M.M.
and R.M. with D.H., M.H. and J.O. with D.H., and O.A. with D.H. In his
August 10, 2021 report, Dr. Brandwein opined that D.H. "is securely bonded to
his [foster caregivers]." In his October 3, 2021 report, Dr. Brandwein
observed that while D.H. is not yet bonded to O.A., he observed "signs of an
initial attachment between [D.H.] and [O.A.]." He further opined that while
there is a possibility for [D.H.] to be harmed by removal from appellants'
home, he is at risk of greater harm by "being completely cut off from his
familial, cultural, and racial heritage." He concluded by recommending the
Division "begin a process whereby D.H. will be transferred to the care of
[O.A.]."
Dr. Katz conducted a second bonding evaluation of D.H. and O.A. in
February 2022 and produced an updated, comprehensive evaluation report on
April 16, 2022. He noted that D.H. "demonstrated stronger signs of
developing an attachment toward [O.A.]," and his concerns with harm D.H.
might experience by being removed from appellants' home "appear[ed] to be
mediated in part by the ongoing visitation" with O.A. Dr. Katz wrote that the
A-0259-22 5 current recommendation regarding permanency for [D.H.] needs to weigh in the likely attachment trauma he would experience at loss of his primary nurturing figures with the advantage he would gain at being placed with a biological family member who would then be in a position for [D.H.] to have more extensive contact, relationships, and bonds with other relatives.
Dr. Katz accordingly opined that "there is an argument to be made that [D.H.]
would suffer less loss and trauma should he . . . begin transferring custody to
[O.A.] at this time rather than a later date." He concluded that "[g]iven the
recent change in law along with the ongoing involvement of the aunt and
biological relatives in [D.H.]'s life . . . the long-term benefit of [D.H.]
transitioning to the permanent care of [O.A.] would cause less harm."
On March 22, 2022, the foster caregivers received notice of the
Division's Mercer North Local Office's plan to change the placement of D.H.
to O.A. They then requested a dispositional review of the transfer by DCF. 2
On April 8, 2022, the Division conducted a family team meeting with the
foster caregivers and O.A., where the parties reached consensus regarding
upcoming overnight visits and the transitional plan in general.
2 N.J.A.C. 3A:5-3.1(a)(2) requires—subject to certain listed exceptions—a dispositional review if a foster caregiver "disagrees with the removal of a child receiving foster care in his or her resource home when the child has been residing with the resource parent for at least six months . . ."
A-0259-22 6 On April 26, 2022, the Division notified the foster caregivers that D.H.
would be removed from their home within thirty days pursuant to the
transitional plan. DCF notified the foster caregivers that a dispositional review
hearing would take place virtually on June 13, 2022.
On May 25, 2022, the foster caregivers moved for the following relief:
(1) a stay of any change in placement by of D.H. by the Division; (2)
permitting them full, or in the alternative, limited intervention in this current
Family Part litigation pursuant to Rule 4:33-1 and Rule 4:33-2; (3) in the
alternative, a consolidation of the Family Part matter with the administrative
matter before DCF regarding the current placement of D.H.; (4) where
intervention is granted, a best interest summary hearing in which the movants
are permitted to present evidence regarding the best interests of D.H.; and (5)
in the alternative, if intervention denied, at the court's discretion, a best
interests hearing be conducted by the court where the movants could present
evidence regarding the best interests of D.H. in connection with the current
placement.
On June 3, 2022, the Division placed D.H. in O.A.'s home and fully
within her care. The foster caregivers testified at the dispositional review
hearing and submitted a sworn statement from a Court Appointed Special
Advocate (CASA) caseworker claiming that O.A. was allowing contact
A-0259-22 7 between D.H. and his biological father in violation of a court order. The
hearing officer did not consider the statement, finding that dispositional review
was not the appropriate forum for the caregivers' submission, as the hearing
officer was "assigned to review whether the removal of the child from [the]
resource home was appropriate per [Division] policy," and not perform an
assessment of the appropriateness of the child's current kinship caregiver.
On August 12, 2022, DCF issued its final decision affirming the Mercer
North Local Office's decision to remove D.H. from the foster caregivers' home.
As part of its review, the DCF considered bonding evaluation reports by Dr.
Katz dated March 12, 2021, March 3, 2022, and April 16, 2022; and by Dr.
Brandwein dated August 10, 2021, and October 3, 2021; DCPP contact sheets;
and guardianship orders issued by the Family Part. It found the Division's
decision to move D.H. "to his paternal great aunt is supported by the research
in child welfare that . . . development is enhanced when placed with kin."
The Family Part conducted a hearing on September 19, 2022. At the
hearing, the foster caregivers conceded their requests to consolidate the
administrative hearing and to stay any placement of D.H. were moot. On
October 3, 2022, the court issued an order denying the foster caregivers'
motion. In its written statement of reasons, the court found they did not have
standing to intervene as of right pursuant to Rule 4:33-1. The court also
A-0259-22 8 denied their request for permissive intervention pursuant to Rule 4:33-2.
Additionally, the court found the foster caregivers failed to establish they
were D.H.'s psychological parents. The foster caregivers were further denied
their alternative request for a summary hearing.
In separate appeals, the foster caregivers challenged both the DCF's final
decision affirming D.H.’s removal from their home and the Family Part’s order
denying intervention and related relief. On February 2, 2023, we ordered that
the appeals be consolidated. On April 3, 2023, we granted D.H.'s motion to
intervene in the administrative appeal.
The foster caregivers contend that the final agency decision to remove
D.H. from their home was arbitrary, capricious and unreasonable. In addition,
they argue that the trial court: misapplied the prevailing legal standards in
denying their motion to intervene as of right pursuant to Rule 4:33-1; erred in
finding they have not met the standards for permissive intervention pursuant to
Rule 4:33-2; and finally, misapplied the recent statutory changes to the law
regarding kinship placement.
II
We begin by reviewing the 2021 Legislative changes to both the TPR
Statute, N.J.S.A. 30:4C-15.1, and KLG statute, N.J.S.A. 3B:12A-1 to -7. In
June 2021, a section of the TPR statute, N.J.S.A. 30:4C-15.1(a)(2), was
A-0259-22 9 amended to change the standards used when initiating petitions to terminate
parental rights. One of the substantive changes was to a sentence within the
second prong of the "best interest test," which the Legislature deleted. It
stated: "Such harm may include evidence that separating the child from his
resource family parents would cause serious and enduring emotional or
psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2) (amended 2021).
We have interpreted this deletion narrowly, so that evidence of a child's
bonding relationship with their foster family is wholly separate from
"consideration of whether a parent is able to overcome harm to the child as
well as whether the parent can cease causing future harm." N.J. Div. of Child
Prot. & Permanency v. D.C.A., 474 N.J. Super. 11, 25 (App. Div. 2022), aff'd,
256 N.J. 4 (2023). For completeness' sake we note that we have concluded
evidence of a child's bonding relationship with the foster caregivers is not
completely barred from consideration and may be used by our trial courts
when conducting a best interest analysis using subsections (a)(1), (a)(3), and
(a)(4). Ibid.
At the time it amended N.J.S.A. 30:4C-15.1(a)(2), the Legislature also
amended the KLG statute. It made the following relevant findings:
a. Foster care is intended by existing state and federal statute to be temporary.
A-0259-22 10 b. Kinship care is the preferred resource for children who must be removed from their birth parents. There are many benefits to placing children with relatives or other kinship caregivers, such as increased stability and safety as well as the ability to maintain family connections and cultural traditions.
....
d. Parental rights must be protected and preserved whenever possible.
e. Children are capable of forming healthy attachments with multiple caring adults throughout the course of their childhood, including with birth parents, temporary resource parents, extended family members, and other caring adults . . .
f. The existence of a healthy attachment between a child and the child's resource family parent does not in and of itself preclude the child from maintaining, forming or repairing relationships with the child's parent . . .
g. It is therefore necessary for the Legislature to amend current laws to strengthen support for kinship caregivers, and ensure focus on parents’ fitness and the benefits of preserving the birth parent-child relationship, as opposed to considering the impact of severing the child's relationship with the resource family parents.
[L. 2021, c. 154.]
Taken as a whole, the law "strengthened the position of kinship
caregivers," and was "intended to reflect a preference for viable kinship
A-0259-22 11 guardians and fit parents over unrelated foster caregivers." D.C.A., 474 N.J.
Super. at 27.
III
We first address the foster caregivers' argument that the final agency
decision affirming removal of D.H. from their home was arbitrary, capricious
and unreasonable. They contend: the hearing officer ignored their testimony,
contradicting the agency's stated goal of assessing the prospective relative
resource home; the psychologists misinterpreted legal standards in rendering
their opinions; and the Division interfered with the CASA representative.
Our scope of our review of a final agency decision is limited. N.J. Dep't
of Child. & Fams. v. E.L., 454 N.J. Super. 10, 21-22 (App. Div. 2018); see In
re Stallworth, 208 N.J. 182, 194 (2011). "We extend substantial deference to
an 'agency's interpretation and implementation of its rules enforcing the
statutes for which it is responsible' based on the agency's expertise." N.J.
Dep't of Child. & Fams. v. R.R., 454 N.J. Super. 37, 43 (App. Div. 2018)
(quoting In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)).
Accordingly, "an appellate court reviews agency decisions under an arbitrary
and capricious standard." Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n.,
237 N.J. 465, 475 (2019) (citing Stallworth, 298 N.J. at 194). "An agency's
determination on the merits 'will be sustained unless there is a clear showing
A-0259-22 12 that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in
the record.'" Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J.
369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,
206 N.J. 14, 27 (2011)). "The burden to make that showing 'rests upon the
[party] challenging the administrative action.'" In re Att'y Gen. L. Enf't
Directive Nos. 2020-5 & 2020-6, 246 N.J. 462, 489 (2021) (alteration in
original) (quoting Lavezzi v. State, 219 N.J. 163, 171 (2014)).
While our standard of review is limited and we defer to an agency's
decision unless it is arbitrary, capricious, or unreasonable, Saccone, 219 N.J. at
380, such deference however "is premised on our confidence that there has
been a careful consideration of the facts in issue and appropriate findings
addressing the critical issues in dispute." Bailey v. Bd. of Rev., 339 N.J.
Super. 29, 33 (App. Div. 2001). We "insist that the agency disclose its reasons
for any decision, even those based upon expertise, so that a proper, searching,
and careful review by this court may be undertaken." Balagun v. Dep't of
Corr., 361 N.J. Super. 199, 203 (App. Div. 2003).
The Division promulgates regulations governing when a child may be
removed from a resource home in non-emergency situations. N.J.A.C. 3A:17-
2.2. The first cited reason for removal is, "[t]he child's case goal is furthered
or achieved by the move or a court order is being followed, for example, return
A-0259-22 13 to family, placement in an adoptive home or uniting a child in placement with
siblings." N.J.A.C. 3A:17-2.2(a)(1). The Division must inform the foster
caregiver "at least [thirty] days prior to the move when the child will be
removed to further or achieve the case goal or as soon as possible when a court
order is being followed." N.J.A.C. 3A:17-2.3(b).
In deciding whether to remove a child's placement, the Division
considers several factors, including: the child's age; the length of stay with the
resource family; the relationship between the child and the resource family; the
number and impact of prior moves on the child in placement; the availability
of support services to maintain the placement; the child's immediate safety;
and the child's risk of future harm. N.J.A.C. 3A:17-2.5(a).
We are not persuaded by the foster caregivers' arguments. The final
administrative decision was informed and supported by the experts' bonding
evaluations. The evaluations incorporated the law, court orders, and Division
records. While the foster caregivers' testimony was not explicitly addressed in
DCF's final decision, their relationship with D.H was well-documented in the
comprehensive record, including the bonding evaluations and contact sheets,
which were reviewed by the Division. The final decision acknowledged "it is
clear that [M.M. and R.M.] have a genuine concern for [D.H.]'s well-being."
This genuine and clearly heartfelt concern is commendable, and emblematic of
A-0259-22 14 the many foster caregivers who open their home to children in need. However,
given the Legislature's recent amendments and corresponding legislative
findings, we conclude their arguments, as foster caregivers who want what
they sincerely believe is best for D.H., do not support the proposition that DCF
committed error. We conclude the final decision was not arbitrary, capricious
or unreasonable. See Saccone, 219 N.J. at 380.
We turn to the foster caregivers' contention that DCF contradicted itself
regarding the scope of its review. The hearing officer's review was limited to
whether the decision made by the Mercer North Local Office to remove D.H.
from appellants' home was arbitrary, capricious, and unreasonable. The
decision was not a comprehensive best-interest analysis or comparison
between caregivers. The hearing officer explained the statement of the CASA
worker would not be considered because the review "does not assess the
appropriateness of the child's current relative resource parent." The final
decision addressed these factors by concluding "[t]he evidence is
overwhelming that [D.H.] would be safe with either [the foster caregivers] or
[O.A.]." DCF's conclusion does not result from a comparative analysis, rather
the decision was limited to the DCF's removal of D.H. DCF's review properly
accounted for regulatory factors such as "the child's immediate safety" and
"the child's risk of future harm." N.J.A.C. 3A:17-2.5(a). The review process
A-0259-22 15 is not a forum for foster caregivers to investigate and challenge the adequacy
of another resource family's home. See N.J.A.C. 3A:17-1.2; N.J.A.C. 3A:17-
2.5. Therefore, we conclude the hearing officer's statements about the scope of
administrative review do not warrant reversal.
We consider the caregivers' next argument, that Drs. Katz and
Brandwein misinterpreted changes to both the TPR Statute, N.J.S.A. 30:4C -
15.1, and KLG statute, N.J.S.A. 3B:12A-1 to -7, to require kinship placement
regardless of how long a child had been in placement in a non-relative
resource home. We are unpersuaded. Our review of the record reveals no
indication that Drs. Katz and Brandwein misinterpreted the law. The reports
cite the relevant statutory amendments and note the stated legislative
preference for kinship placements. As discussed above, the statutory
amendment was "intended to reflect a preference for viable kinship guardians
and fit parents over unrelated foster caregivers." D.C.A., 474 N.J. Super. at
27. Contrary to the caregivers' argument before us, the record shows the
expert reports did not suggest that D.H. should be placed with O.A. regardless
of the time spent in appellants' home and the bond they formed. Rather, the
record shows each expert clearly considered the possible harm D.H. would
suffer by being removed from the foster caregivers, recognized the
significance of that possible harm, and nonetheless concluded that D.H. would
A-0259-22 16 suffer the least amount of long-term harm if he is removed and placed with
O.A. DCF did not rely on a record which included expert opinions grounded
in a mistake of law.
IV
We now turn to appellant's arguments for intervention in the Family Part
matter. "Our Rules of Court govern intervention at trial, and the trial court's
interpretation of those rules is subject to our de novo review." New Jersey
Dept. of Environmental Protection v. Exxon Mobil Corp., 453 N.J. Super. 272,
285 (App. Div. 2018) (citing Washington Commons, L.L.C. v. City of Jersey
City, 416 N.J. Super. 555, 560 (App. Div. 2010)). "We look first to the plain
language of the rules and give the words their ordinary meaning." Robertelli
v. New Jersey Office of Atty. Ethics, 224 N.J. 470, 484 (2016) (citing
Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch.
Dist., Somerset Cty., 221 N.J. 349, 361 (2015)).
Rule 4:33-2 is "the more liberal permissive intervention rule," therefore
we must "review the court's determination of a permissive intervention motion
under an abuse of discretion standard." N.J. Dep't of Env't Prot. v. Exxon
Mobil Corp., 453 N.J. Super. 272, 286-87 (App. Div. 2018) (citing City of
Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006)).
A
A-0259-22 17 We begin with appellant's arguments concerning intervention as of right
pursuant to Rule 4:33-1. Intervention as of right must be granted when an
unnamed party meets the following requirements:
[1] "claims an interest relating to the property or transaction which is the subject of the action," [2] shows she "is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest," [3] demonstrates her "interest is [not] adequately represented by existing parties," and [4] files a "timely" application to intervene.
[New Jersey Div. of Youth and Family Servs. v. D.P., 422 N.J. Super. 583, 590 (App. Div. 2011) (quoting R. 4:33-1).]
Specifically in the family context, motions to intervene "must be considered in
light of statutory limitations." B.C. v. New Jersey Div. of Child Prot. &
Permanency, 450 N.J. Super. 197, 207 (App. Div. 2017).
In D.P. we addressed intervention by foster caregivers in court
proceedings involving the best interests of the child placed in their care. 422
N.J. Super. at 587. We concluded, despite the statutory allowance for foster
caregivers to have notice and be heard at certain hearings concerning the child,
the Legislature has circumscribed those rights, and provided that foster
caregivers "shall not be made a party to the review or hearing solely on the
basis of the notice and opportunity to be heard." Id. at 599 (citing N.J.S.A.
A-0259-22 18 9:6-8.19a). Stated plainly, resource parents do not have a right to intervene as
a party unless they have some other statutory directive providing for the right.
Applying D.P. and its principles, the trial court denied the foster
caregivers' motion to intervene as of right. Making findings, the court first
referenced D.P.'s clear holding that foster caregivers do not have the right to
intervene in guardianship proceedings. The court noted that recent changes to
both the TPR and KLG statutes indicate a Legislative intent to prioritize
keeping children amongst relatives or "kin." It then stated that placement of
D.H. with his paternal great aunt "aligns with the amended KLG statute,"
especially in light of the fact that both biological parents have voiced their
support of the placement. Next, the court rejected the foster caregivers'
arguments that they are D.H.'s "psychological parents," finding that they failed
to meet the first prong for intervention, requiring the legal parents (biological
parents) consent. See V.C. v. M.J.B., 163 N.J. 200 (2000). 3
The court found the foster caregivers could not satisfy the intervention
as of right requirements, as they "failed to show any evidence of a legal
interest in the subject matter of the Guardianship litigation." It further found
that the caregivers' personal interests were not equivalent to the "fundamental
rights to the care, custody, and nurturance of the child" possessed by a child's
3 The foster caregivers have not raised this issue on appeal.
A-0259-22 19 biological parents. Finally, the court found that the best interest of the child
was adequately represented in this case by the Law Guardian and that the
record did "not identify a circumstance wherein the best interest of the child
has been impaired by the current parties."
The foster caregivers argue that the record contains significant
differences which justify a departure from our holding in D.P. Alternatively,
they argue D.P. did not accurately address the statutory language of N.J.S.A.
9:3-45.2, making it wrongly decided and in conflict with other relevant
decisions. We do not agree.
Although our factual record differs somewhat from the record in D.P.,
such differences do not warrant departure from the D.P.'s principles. We note
that the best interest hearing in D.P. was not dispositive to its holding.
Consequently, the absence of a best interest hearing in this record is of no
moment.
Relatedly, the lack of notice alleged by the foster caregivers does not
warrant their standing as full parties to the guardianship litigation.
N.J.S.A. 9:3-45.2 provides in pertinent part:
[T]he child's resource family . . . shall receive written notice of, and shall have a right to be heard at, any review or hearing held with respect to the child, but 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 right to be heard.
A-0259-22 20 The statute clearly states that foster caregivers "shall not be made a party," and
we discern nothing from the plain reading of this statute which would lead us
to conclude that a failure to provide notice or opportunity to be heard would
change this explicit direction from the Legislature.
Similarly, alignment of the Law Guardian's and foster caregivers'
opinions regarding the child's best interests was not material to the court's
decision in D.P., and that alignment is not material here. It is the Law
Guardian who is tasked, "as a matter of legislative preference," with assuring a
child's well-being. D.P., 422 N.J. Super. at 593. See also N.J. Div. of Youth
& Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div. 2002)
(explaining the law guardian’s role to "zealously advocate the client’s cause"
on the minor’s behalf (citation omitted)). Therefore, the foster caregivers'
interest in D.H.'s well-being, however sincere, does not displace the Law
Guardian's role in representing him in the Family Part action.
We also note that the foster caregivers' right to dispositional review of
DCF's placement decision does not confer standing to intervene in the Law
Division action, or shield them from the court's holding in D.P. Although D.P.
does not specifically reference the foster caregivers' right to dispositional
review pursuant to N.J.A.C. 3A:5-3.1, it references relevant rights under the
statute. D.P. illustrates this concept in the context of adoption. "The statute
A-0259-22 21 designates the Division as the State authority to seek the petition for adoption.
It does not grant an independent right to file for adoption to the resource
parents." D.P., 422 N.J. Super. at 594 (citing N.J.S.A. 30:4C-26.7). The foster
caregivers have not shown that their right to a dispositional hearing should be
treated differently.
The foster caregivers' alternative argument for rejecting our holding in
D.P. also falls short. D.P. is at odds with cases decided long before the
operative statutes were amended. See e.g., Doe v. State, 165 N.J. Super. 392,
398 (App. Div. 1979) (holding "under the circumstances existing here" foster
parents had standing to challenge division placement decisions).
We also reject the foster caregivers' contention that we misinterpreted
the statutory language of N.J.S.A. 9:3-45.2 in D.P. The language prohibiting
party standing based "solely" on an individual's status as a foster caregiver
implies that a caregiver may assert some other basis for standing, distinct from
their status as a foster caregiver.
In B.C. v. N.J. Div. of Child Prot. & Permanency, 450 N.J. Super. 197,
201 (App. Div. 2017), we held that a minor child's foster caregivers, who were
also their grandparents, had standing to intervene in child protection litigation
to assert their "separate legal rights" under the grandparent visitation statute,
N.J.S.A. 9:2-7.1. Similarly, in D.P. we concluded the separate legal rights of
A-0259-22 22 the unrelated foster caregivers could be asserted if they could establish that
they were the child's "psychological parents." Id. at 208. In sum, the foster
caregivers have failed to show that they have an alternate legal basis to
establish standing to intervene as of right.
B
Turning to permissive intervention under Rule 4:33-2, we begin by
noting our more relaxed standard of review. See Exxon Mobil Corp., 453 N.J.
Super. at 286-87. Rule 4:33-2 allows for permissive intervention by a party,
within the court's discretion, "in an action if the claim or defense and the main
action have a question of law or fact in common." When considering a party's
motion for permissive intervention, a trial court must "liberally determine
'whether intervention will unduly delay or prejudice the adjudication of the
rights of the original parties.'" B.C., 450 N.J. Super. at 208 (quoting D.P., 422
N.J. Super. at 590-91 (internal citations omitted)). In the context of family
matters intervention may be appropriate in some cases, however it is "not the
preferable method of proceeding." Id. at 207.
In making its findings, the trial court considered several factors,
including: the promptness of the application; whether such intervention would
cause undue delay; the possibility of elimination of subsequent litigation; and
the extent to which intervention would further complicate litigation. Weighing
A-0259-22 23 these factors in light of the underlying litigation, the court denied the foster
caregivers' application for permissive intervention.
The court found that the foster caregivers' intervention was "untimely as
they have known of the Division's intent to move the minor to a relative
resource home since July 2021," and that "movants sat on their rights and did
not intervene for nearly a year." The court further found that permitting
intervention would delay the matter and "unfairly prejudice the minor child."
Finally, the court found that "[e]stablishing a precedent of allowing resource
parents and former resource parents to intervene in children-in-court cases on
the basis of their relationship with the child" would result in cases such as this
being "severely delayed and overly complicated." We conclude the trial court
properly exercised its discretion when it denied permissive intervention,
considering the best interest of D.H.
The foster caregivers next argue that their application was timely in light
of the Law Guardian's revised opinion of what placement would be in the best
interests of D.H. In addition, they argue that the court misapplied the law in
finding that allowing permissive intervention "would not assist this [c]ourt, or
any of the parties, in protecting the best interest of this child, which is the
overall goal of the Guardianship litigation." This argument fails to show that
the trial court abused its discretion or misapplied the law.
A-0259-22 24 The trial court correctly pointed out the fact that the foster caregivers
were notified of the Division's choice to pursue kinship legal guardianship
rather than termination of parental rights in June 2021. Their argument that
intervention would be "not yet ripe" because the law guardian was aligned with
their interests up until March 2022 conflates the roles at play. Regardless how
its opinions aligned with those of the foster caregivers, the law guardian does
not represent the caregivers' interests. The trial court correctly observed that it
would have been prudent for the foster caregivers to move to intervene when
they first learned of the Division's change of plans to minimize delay and not
unfairly prejudice D.H.
We comment briefly on the contention that the trial court misinterpreted
the law underlying its decision, specifically the recent changes to the TPR and
KLG statutes. The foster caregivers contend that the Legislature's
modification of the law to reflect a preference for placement of children with
family does not mean the law requires placement with a family member "at all
costs." They argue that the Division fulfilled its legal obligations by
attempting to place D.H. with family, but erred when it delayed permanency in
favor of placing D.H. with O.A.
This assertion minimizes the Legislature's clear policy favoring kinship
and relative placements, as well as mislabeling the final decision as adhering
A-0259-22 25 to an "at all costs" policy, while ignoring the benefits for D.H. The objective
of the statutory amendments was to ensure a focus on preserving the birth
parent-child relationship given the "benefits to placing children with relatives
or other kinship caregivers, such as increased stability and safety as well as the
ability to maintain family connections and cultural traditions." L. 2021, c.
154, §1(b) and (g). This objective is based on the dual premise that "[c]hildren
are capable of forming healthy attachments with multiple caring adults
throughout the course of their childhood," and that "[f]oster care is intended by
existing state and federal statue to be temporary." Id. at §1(e).
These guidelines established the basis for the trial court's opinion, and
we do not perceive the court's analysis to mean that it adhered to an approach
of "family members at all costs." Nowhere in the trial court's findings or
expert's reports was this language used, nor do we find support in the record
for adoption of such a rigid policy.
As mandated by Legislative policy, the trial court found that both
experts weighed the costs of disrupting D.H.'s attachment with the foster
caregivers against the benefits of a permanent kinship placement. The experts
recommended therapy and a transition plan including gradual placement. We
discern no basis for disturbing the trial court's order.
Affirmed.
A-0259-22 26