Opinion
DOCKET NO. A-4638-10T1 DOCKET NO. A-1566-12T1
03-27-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. Y.Z., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.Z., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Rebekah E. Heilman, Designated Counsel). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.Z. (Charles Ouslander, Designated Counsel).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
A-4638-10T1 Argued Telephonically June 4, 2012 - Decided June 14, 2012.
Remanded from Supreme Court and Consolidated with A-1566-12T1 March 13, 2013.
Before Judges Reisner and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0129-11, and on Remand from the Supreme Court, Docket No. C-553.
Joseph E. Krakora, Public Defender, attorney for appellant (Rebekah E. Heilman, Designated Counsel).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.Z. (Charles Ouslander, Designated Counsel). PER CURIAM
This appeal comes to us on remand from the Supreme Court. In our prior opinion, New Jersey Division of Youth and Family Services v. Y.Z., No. A-4638-10 (App. Div. June 14, 2012), we reversed the trial judge's order, dismissing the Division's guardianship complaint based on his finding that the agency failed to satisfy the fourth prong of the best interests test. N.J.S.A. 30:4C-15.1(a). Our decision was premised on evidence that the child's foster family was committed to adopting him and evidence that, despite his expressed desire to live with his mother, the child's paramount need was for permanency.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. For consistency, we continue to use "Division of Youth and Family Services" in the caption of this opinion.
At the time we rendered our decision, Y.Z. had not contested that the Division proved the first three prongs of the best interests test; she only contested the fourth prong. We remanded the case to the trial judge to enter an order terminating parental rights and to address the issue of continued therapeutic visitation between the child and Y.Z. to assist him in his transition to his permanent adoptive placement.
While Y.Z.'s petition for certification was pending, the Division disclosed to the Supreme Court and to the parties that the child's adoptive placement had fallen through, due to changes in the foster parents' life situation. However, the Division represented to the Court, and later to this court in motions on remand, that the agency had identified a new prospective adoptive parent for the child. According to the Division, the child had previously lived with this foster parent, likes him, and is comfortable with him and with the other children who live in that home.
There were other significant developments in the case. On our remand to the trial court, the trial judge determined that Y.Z.'s visits with the child had become counterproductive, and he terminated visitation.
Y.Z. also filed in the trial court a Rule 4:50 motion to set aside the guardianship judgment on the grounds of alleged "newly discovered evidence." For the first time, she contended that the Division failed to satisfy the third prong of the best interests test, due to errors in its decision to rule out Y.Z.'s aunt and grandmother as possible caretakers for the child. The trial judge denied the motion, finding that he had no jurisdiction to entertain it due to the pending appeal of the underlying guardianship judgment. However, he also considered that the purported newly discovered evidence relating to prong three could have been presented during the original trial, and therefore did not warrant vacating the judgment.
Y.Z. appealed from the order denying her Rule 4:50 motion. N.J. Div. of Youth and Family Servs. v. Y.Z., No. A-1566-12. Y.Z. and the Division then filed motions with this court, seeking, respectively, summary decision on the "prong three" appeal, and to have that appeal summarily dismissed. Y.Z. also filed a series of motions in the Supreme Court, seeking summary reversal of the termination order, reunification with D.Z. or placement of the child with her relatives, and to supplement the record.
On March 13, 2013, the Supreme Court entered an order granting certification and summarily remanding the case to this court for reconsideration in light of the disrupted adoption plan and the proposed new adoptive placement: "The matter is summarily remanded to the Appellate Division for reconsideration of its decision in respect of only prong four of N.J.S.A. 30:4C-15.1(a), in light of the changed circumstances referenced above." N.J. Dep't of Children and Families, Div. of Youth and Family Servs. v. Y.Z., No. C-553, Motion Nos. M-924/925/926/927 (March 13, 2012). The Court also ordered that the remanded appeal be consolidated with the pending appeal on prong three. The Court further denied Y.Z.'s motion for reunification with the child or his placement with relatives. However, the Court directed that "in light of all these changing circumstance," either this court, or the trial court on further remand from this court, should "reevaluate the termination of defendant's visitation rights and evaluate the relationship between D.Z. and the putative adopting parents pending resolution of this matter." The Court also denied Y.Z.'s motion to supplement the record "without prejudice to defendant renewing that motion before the Appellate Division."
After the Court issued the remand order, Y.Z. filed with this court a motion for visitation pending appeal. For the reasons set forth below, Y.Z. should promptly re-file that motion with the trial judge as part of the remand that we order here.
Having thoroughly reviewed the motion papers that all parties have filed, and being familiar with the history of this case, we are firmly convinced that a remand to the trial court is indispensable. We cannot possibly re-evaluate the fourth prong without an evidentiary record. Nor can we re-evaluate the visitation issue without a further record. The trial judge, who is intimately familiar with this case and these parties, is in the best position to create that record and decide the issues in the first instance. Therefore, we remand this case to the trial judge to "evaluate the relationship between D.Z. and the putative adopting parents" and determine in light of that evaluation whether termination of Y.Z.'s parental rights is now in the child's best interests. We also remand to the trial judge the task of reevaluating whether termination of defendant's visitation rights continues to be in the child's best interests.
We anticipate that the remand will necessitate further psychological evaluations of the child and his current needs, of Y.Z. to determine her current psychological condition and the benefits or pitfalls of visitation, and of the relationship between the child and the new putative adoptive parent. We also anticipate that a testimonial hearing will be required. Unless the trial judge determines that it would be clearly counterproductive, the judge should conduct an in camera interview with the child. In the trial judge's discretion, he may require some brief testimony from the new putative adoptive parent. Accordingly, we remand to the trial court in No. A-4638-10.
However, we reach a different conclusion on the "third prong" appeal. We are persuaded that the trial judge correctly decided Y.Z.'s Rule 4:50 motion by holding that he did not have jurisdiction to decide the motion, due to the pending appeal of the order she sought to vacate. Moreover, consideration of a Rule 4:50 motion was clearly outside the scope of our limited remand. Having read Y.Z's motion papers, we also note that they consist largely of hearsay, including her attorney's recitation of conversations with Y.Z.'s relatives and Y.Z.'s own self-serving statements. There are no affidavits from the relatives themselves. We agree with the trial judge that this was not newly discovered evidence for purposes of a Rule 4:50 motion. Accordingly, in No. A-1566-12, we summarily affirm the trial judge's October 24, 2012 order denying the Rule 4:50 motion. See R. 2:8-3.
However, should the trial judge on remand determine that the Division has not satisfied the fourth prong or that the putative adoptive parent is not an appropriate placement, it may then become appropriate to take another look at possible relative placements. In that event, if Y.Z. can produce clear and persuasive, legally competent evidence that one or more of her relatives is now a fit and appropriate placement for the child, nothing precludes her from filing an appropriately-supported motion with the trial court.
For all of these reasons, we affirm the order in No. A-1566-12. We remand No. A-4638-10 to the trial judge for further proceedings consistent with this opinion. We do not retain jurisdiction.
The Division's motion to dismiss the appeal in M-4161-12 is denied. Y.Z.'s motion for summary disposition in M-3875-12 is moot in light of this opinion.
--------
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION