Opinion
DOCKET NO. A-0375-13T2
05-07-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant, v. M.D. and D.F., Defendants-Respondents. IN THE MATTER OF THE GUARDIANSHIP OF M.D. and M.D., Minors.
John J. Hoffman, Acting Attorney General, attorney for appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the briefs). Joseph E. Krakora, Public Defender, attorney for respondent S.B. (Gregory S. Heizler, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.D. and M.D. (Keri L. Popkin, Assistant Deputy Public Defender, on the brief). Respondents M.D. and D.F. have not filed briefs.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-19-13.
John J. Hoffman, Acting Attorney General, attorney for appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the briefs).
Joseph E. Krakora, Public Defender, attorney for respondent S.B. (Gregory S. Heizler, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.D. and M.D. (Keri L. Popkin, Assistant Deputy Public Defender, on the brief).
Respondents M.D. and D.F. have not filed briefs. PER CURIAM
The New Jersey Division of Child Protection and Permanency (Division) appeals from an order entered by the Family Part on August 29, 2013, which terminated the parental rights of M.D. and D.F. to their two minor children, Ethan and James, based upon M.D.'s and D.F.'s identified surrenders of their parental rights to S.B.
We use fictitious names for the children to protect their privacy.
The Division also appeals from an order entered by the Family Part on July 25, 2013, permitting S.B. to be a "dispositional" defendant in the action, and ordering the Office of the Public Defender to represent her. For the reasons that follow, we reverse and remand the matter to the trial court for further proceedings.
I.
M.D. and D.F. are Ethan's birth parents. He was born in June 2008. The child has been diagnosed as having autism and attention deficit hyperactivity disorder (ADHD). From October 2008 through April 2010, the Division received eight referrals concerning the family. The referrals included allegations of substance abuse and neglect.
On April 11, 2010, the Division received a report that D.F. left Ethan at home with M.D. She was locked out of the apartment and heard Ethan crying inside. Using a ladder, the landlord was able to gain access to the apartment through a window. They found M.D. on the couch, unresponsive but breathing.
Ethan was crawling next to an opened bag of powdery rocks, which was identified as crack cocaine. M.D. also hid heroin packets in his pocket. D.F. brought Ethan to an emergency room. She was concerned that he had been exposed to some drug or drug paraphernalia.
Ethan was examined at the hospital and all of his medical tests were normal. In addition, a urine drug screen was negative for a controlled dangerous substance. At the hospital, one of the Division's workers spoke with D.F., who stated that she was not under the influence of any illegal substance, but admitted that she used heroin in the past. D.F. said she was not in treatment.
D.F. also said she was working full time, seven days a week, at a diner, and M.D. took care of Ethan while she works. D.F. stated that, when she left for work that day, M.D. was fine. She said he had not used illegal drugs since November 2009. She noted that she had another child, who was staying with his father.
The caseworker also interviewed M.D., who had been arrested and was handcuffed to a hospital bed during the interview. He stated that he had been taking Suboxone for two years because he had a prior addiction to heroin.
The Division thereupon conducted an emergency removal of Ethan, and he was placed in a Division-approved foster home. The Division then filed a complaint in the Family Part seeking the custody, care and supervision of Ethan. The court granted the Division's application. Ethan remained in foster care for a brief time, after which he was returned to M.D. and D.F. In November 2010, D.F. gave birth to James.
In October 2011, the Division received another referral, reporting that D.F. had used heroin three days before. The Division investigated the report. D.F. told the investigator that she was living at the time with two women, S.B. and J.M., whom she described as her roommates. D.F. said that, during the previous month, S.B.'s mother had evicted them from her home, where they had been living.
On October 18, 2011, D.F. admitted to using illegal drugs. At the Division's behest, D.F., S.B. and J.M. agreed to a safety protection plan, which provided that S.B. and J.M. would supervise D.F. in her parenting of the children. In November 2011, D.F. entered an inpatient drug treatment program.
On November 15, 2011, the Division filed a complaint in the Family Part seeking protective custody of Ethan and James. The court granted the application on November 17, 2011. Thereafter, the Division referred M.D. and D.F. for various services, including substance abuse treatment, psychological evaluations, parenting skills classes, and supervised visitation. However, M.D. and D.F. did not successfully complete any of the services, and they did not maintain regular contact with the Division or the children.
On October 5, 2012, the trial court entered an order approving the Division's plan for termination of M.D.'s and D.F.'s parental rights and adoption of the children by S.B. On November 20, 2012, the Division filed a complaint seeking guardianship of Ethan and James.
On April 17, 2013, the Division removed Ethan and James from S.B.'s residence, after it received a report that Ethan had a suspicious burn mark on his neck. The next day, Ethan was examined by Dr. Steven Kairys, who said the burn had the appearance of an intentionally inflicted injury. S.B.'s teenage son Tyler was then living with S.B. and the children. He told detectives from the prosecutor's office that he had intentionally burned Ethan's neck, using a cigarette lighter. Later, Tyler spoke with the Division's investigators and claimed that the burn was accidental.
In this opinion, we refer to S.B.'s son as Tyler, which is also a fictitious name.
On April 19, 2013, the trial court ordered the temporary placement of Ethan and James with J.M. The Division filed an application with this court seeking leave to file an emergent motion for a stay of the order. We granted the Division's application and temporarily stayed the order. On April 23, 2013, we denied the Division's motion for leave to appeal and vacated the stay.
On May 17, 2013, Dr. Yasir J. Ahmad, a certified psychiatrist, evaluated Tyler. S.B. had informed Dr. Ahmad of the burn incident, and Dr. Ahmad noted that Tyler had admitted to burning Tyler. Dr. Ahmad also noted that Tyler had previously been diagnosed with ADHD but he had never been prescribed medications for that condition.
Dr. Ahmad said Tyler should not be around his younger foster brothers without adult supervision. Dr. Ahmad noted, however, that he did not believe the younger siblings were in imminent danger of harm. He stated that Tyler needed to demonstrate a "greater sense of maturity" and "it would be advisable to keep an eye on the group." Dr. Ahmad prescribed ADHD medication, and recommended both individual therapy and ADHD-related accommodations at Tyler's school.
On May 21, 2013, the trial court held a hearing and ordered that Ethan and James would be returned to S.B. within one week, unless the Division presented the court with "competent and material evidence" as to why they should not be placed in her care. Several days later, the Division filed an amended order to show cause and a verified complaint for guardianship.
On May 23, 2013, the court held a hearing to determine whether Tyler posed an imminent risk of harm that would preclude the children's return to S.B. At the hearing, Colleen Burke, one of the Division's investigators, testified that Tyler had admitted to intentionally burning Ethan, but later told the Division it was an accident.
Burke further testified that S.B. could not adequately protect Ethan because she refused to acknowledge or accept responsibility for the burn incident. She said there was an imminent risk that Ethan could be harmed if returned to S.B.'s care. Burke noted, however, that she had not completed her investigation.
On May 24, 2013, the trial court entered an order that permitted S.B. to visit the children without supervision, but barred Tyler from contacting Ethan or James. The court also ordered Tyler to comply with certain services.
On June 12, 2013, D.F. appeared before the court telephonically and entered an identified surrender of her parental rights to Ethan and James, so that they could be adopted by S.B. In response to the court's questions, D.F. stated that she was surrendering her parental rights to S.B. because she believed it was in the children's best interests to do so.
The Division objected and sought to question D.F. concerning the injury that Tyler had inflicted upon Ethan, but the court overruled the objection and accepted the identified surrender "on specific condition that the children be adopted by [S.B.]" The court then noted that it had received Dr. Ahmad's full report detailing his May 17, 2013 examination of Tyler. After reviewing the report and an audio recording of the May 23, 2013 court proceedings, the court barred the Division from presenting additional evidence and ordered that Ethan and James be returned to S.B. The court noted that Dr. Ahmad had determined that there was no imminent risk of harm to the children.
The court entered an order dated June 12, 2013, memorializing its decision and its acceptance of D.F.'s identified surrender of her parental rights. The order stated that Ethan and James were to be returned "to the home of [S.B.] after a [seven]-day transitional period," during which S.B. would have supervised visitation.
On or around June 17, 2013, the Division filed a motion for reconsideration of the court's June 12, 2013 decision. The following day, Dr. David R. Brandwein, a psychologist, provided the Division with a report of the findings of his evaluations of S.B., Ethan and James. Dr. Brandwein opined that Tyler should not have unsupervised contact with Ethan or James.
Dr. Brandwein noted that S.B. did not present with any "major psychological difficulties" that would interfere with her ability to parent Tyler or the other children. He stated, however, that he was concerned that S.B. had permitted Tyler to smoke and have lighters in the home. He said S.B. "apparently failed to provide appropriate supervision of the interaction between the children in the home."
Dr. Brandwein concluded that it was in Ethan's and James's best interests to return to S.B.'s home because she is their "psychological parent." He indicated that "extended removal" of Ethan and James from S.B.'s care would likely "lead to enduring psychological harm." The doctor also indicated that an appropriate safety protection plan was required and he incorporated a recommended plan in his report.
On June 19, 2013, another judge conducted a hearing on the Division's reconsideration motion. The motion judge refused to disturb the court's prior order, noting that S.B. had indicated her willingness to comply with the safety plan that Dr. Brandwein recommended. The judge entered an order memorializing her decision.
On July 22, 2013, Nicole Coburger of the Children's Home Society (CHS) reported to the Division on her visit to S.B.'s home that day. She stated that Ethan had "a bruise in a straight line on the left side from the top of his ear to his jawline." S.B. told Coburger that James had struck Ethan with his hand. But Coburger said the "injury [was] not consistent with the story due to [its] shape."
On July 24, 2013, Amy Dudley, the Division's caseworker, advised Coburger that Ethan had told an examining physician that Tyler caused the bruise. Ethan also told the physician that Tyler had "duct taped his wrists and legs together and has hit him." Based on this information, the Division removed Ethan and James from S.B.'s home and placed them in a foster home.
On July 25, 2013, the court held a hearing on Ethan's and James's removal. The Law Guardian applied in court to add S.B. as a dispositional defendant and allow S.B. time to retain counsel. The Division opposed the motion, noting that it should have been filed in accordance with the court rules. Burke and Dudley then testified concerning the children's removal.
The court entered an order dated July 25, 2013, adding S.B. as a dispositional defendant and appointing the Office of Public Defender to represent her. The order provided that Ethan and James would be placed with J.M. S.B. was allowed to reside in the home, provided that her contact with the children was supervised. The order stated that, "[Tyler] shall not be permitted to reside in [S.B.'s] home at this time and shall have no contact with the children." The court denied the Division's application for a stay of the order.
On August 2, 2013, the court continued its hearing regarding Ethan's and James's placement. Nicole Coburger testified about her July 22, 2013 visit to S.B.'s home, which led her to contact the Division to report the possibility of abuse or neglect. She said S.B. had reported that James was very aggressive with Ethan. Coburger was concerned that Ethan could be harmed. Coburger did not say that S.B. failed to adequately supervise the children, but she said the matter required further investigation.
The hearing continued on August 16, 2013. Dr. Gladibel Medina, the Director of the Dorothy B. Hersh Regional Child Protection Center, testified for the Division. The court limited Dr. Medina's testimony to Ethan's declarations about Tyler. She summarized her conversation with Ethan:
I was talking to him about his home, so he identified his family members. I talked to him about his body, any complaints he might have, his friends, summer camp, and in that conversation I did ask him, "And how did you get the boo-boo on your face?"
And he said, "[Tyler] did it -- I mean, [James] did it."
So when he caught himself like that, I said, "Well, it's really important for you to tell me what happened exactly so that I can make sure you don't get boo-boos again and that you feel better."
So he said that [Tyler] told him to say that [James] hit him, but he hit him and pushed him because he doesn't like him. He was playing with toys and [Tyler] doesn't love him. He said, "[Tyler] hurts," he told
me [Tyler] hurts a lot of people and he lives at home.
So I asked him, "What people does [Tyler] hurt?"
And he said, "He hurts me a lot. He doesn't like me."
I asked him, "How does he hurt you?"
"He pushed me on the wall and I cry."
"What happens when you cry?"
"Mommy [S.B.] tells [Tyler], 'No hitting, [Tyler].'" And she helps him that way. He also said that [Tyler] hurts him by taping his hands together, and feet, and mouth, and Mommy [S.B.] told him -- yelled at him. And he also mentioned that [Tyler] burned him with the lighter. And that was the extent of that conversation in terms of hurting him.
The court made a number of findings following Dr. Medina's testimony:
[T]here are major issues on how Dr. Medina got the information that she got. And in the context of this particular proceeding . . . the stark contrast of keeping this child on point in a conversation and what Dr. Medina just testified about this child is not explained. It's not explained on any level in this case. It was definitely pointed out that she just made an assumption that because he was making certain statements, that they were true, period, without even establishing if he understood the difference between a truth and lie, fantasy, fiction, truth, reality, nothing.The court refused to allow the Division to admit Dr. Medina's full report into evidence.
M.D. then appeared telephonically and entered an identified surrender of his parental rights to Ethan and James so that they could be adopted by S.B. M.D.'s counsel was in the court. M.D. told the court he believed the surrender to S.B. was in the children's best interests.
The Division objected to the surrender and questioned M.D. about his knowledge of the care that S.B. had provided to Ethan and James. M.D. indicated that he had only a limited knowledge of the Division's investigation, but he acknowledged that it concerned him.
Some time later, Tyler pleaded guilty in the Family Part to simple assault and endangering the welfare of a child. The court's juvenile order of disposition placed Tyler on probation for twelve months. The order stated that Tyler was not permitted to have any contact with a child under the age of thirteen, unless permitted by the court in the guardianship matter.
On August 29, 2013, the court conducted another hearing in the guardianship matter, and entered an order allowing Ethan and James to remain in S.B.'s care. The order stated that the Division could not remove the children without a court order, unless they were at "immediate risk" of harm. The court permitted Tyler to reside in the home, so long as J.M. supervised all contact with Ethan and James.
The court also ordered the Division to implement certain services within one week, and required S.B. to comply with the previously-established safety protection plan. The order stated that the court had based its decision
upon testimony of witnesses, the fact that [S.B.] has been identified as the psychological parent by the Division's own expert, the context of the investigation which was conducted, the fact that at the end of the day, the Division's own expert previously weighed in on the return and recommended the return, all of which was ignored by the Division.In addition, the court entered a separate order, memorializing its acceptance of M.D.'s identified surrender of his parental rights to Ethan and James, conditioned upon their adoption by S.B.
On August 29, 2013, we granted the Division's application to file an emergent motion for a stay. On September 4, 2013, the Division informed this court that new allegations of abuse had been reported involving Tyler and Ethan.
It appears that the information was shared with the Law Guardian, but not with S.B. or her attorney.
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On September 12, 2013, we granted the Division's motion for a stay pending appeal, and we summarily remanded the matter to the trial court. We ordered that the stay remain in place until further proceedings are conducted by the trial court after the completion of the Division's investigation into the new allegations. These further proceedings are apparently still pending.
Since we did not dismiss the Division's appeal, but only remanded the case for a limited purpose, this matter is still pending in this court. Therefore, we will address the issues raised by the Division in its appeal.
II.
The Division argues that resource parents in a Title Thirty action do not have standing to intervene and they cannot be made parties to the case. The Division therefore argues that the trial court exceeded its authority by allowing S.B. to be a dispositional defendant and by appointing the Office of the Public Defender to represent her.
N.J.S.A. 9:3-45.2 and N.J.S.A. 30:4C-12.2 provide that in any case in which the Division "accepts a child in its care or custody, the child's resource family parent or relative providing care for the child" must be given notice and the opportunity to be heard at "any review or hearing held with respect to the children, 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." (Emphasis added).
S.B. argues that the trial court did not order that she be added as a dispositional defendant "solely" on the basis of the notice and the opportunity to be heard, as provided in N.J.S.A. 9:3-45.2 and N.J.S.A. 30:4C-12.2. S.B. contends that she was properly made a dispositional defendant because she has been identified in the identified surrenders as the potential, permanent caretaker for the children, and because she is the children's psychological parent.
We are not convinced that S.B.'s status as a potential permanent caretaker is sufficient to justify her participation in this litigation as a party. In N.J.S.A. 9:3-45.2 and N.J.S.A. 30:4C-12.2, the Legislature made clear that, while resource family parents and caretakers are to be afforded notice and the opportunity to be heard on placement decisions, they should not be made a party to the proceedings solely on the basis of such notice and opportunity to be heard.
The statutory bar applies even though S.B. has been identified by M.D. and D.F. in their identified surrenders as a potential permanent caretaker for the children. If party status were allowed on that basis, resource parents would be parties in numerous guardianship cases. We are not convinced that the Legislature intended N.J.S.A. 9:3-45.2 and N.J.S.A. 30:4C-12.2 to be applied in that manner.
Furthermore, intervention was not warrented under Rule 4:33-1. S.B. could present the court with relevant information, but intervention as a party was not required.
Our decision in New Jersey Division of Youth & Family Services v. D.P., 422 N.J. Super. 583 (App. Div. 2011), supports this conclusion. There, we noted that in N.J.S.A. 9:3-45.2 and other statutes, the Legislature had allowed resource parents to appear in the relevant court proceedings and contest the removal of a child from their care. Id. at 599.
We noted, however, that under the statutes, the resource parents should not be made a party to the proceeding. Ibid. We said there may be rare instances where a court may allow a resource parent to present specific information not otherwise available, but even then, the resource parents would not be permitted "to assume an active role of advocacy by calling witnesses or employing experts." Id. at 600.
We also concluded in D.P. that the trial court correctly refused to permit the resource parents to intervene pursuant to Rule 4:33-1. Id. at 590-92. We noted that the Law Guardian had presented evidence opposing the disruption of the child's placement with the resource parents, and the resource parents had participated in all of the bonding evaluations. Id. at 591. The resource parents had also been allowed to present the court with a statement of their own concerns. Ibid.
S.B. and the Law Guardian nevertheless contend that S.B. was properly allowed party status because the trial court determined that she is the children's psychological parent. A psychological parent has standing to assert custody rights to a child. V.C. v. M.J.B., 163 N.J. 200, 221-22, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). However, to be considered a psychological parent, four elements must be satisfied:
"(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature."
[Id. at 223 (quoting Custody of H.S.H.-K., 533 N.W.2d 419, 421 (Wis. 1995)).]
In V.C., the Court suggested that "psychological parent" standing should be granted liberally. Id. at 227. The Court said, "The standards to which we have referred will govern all cases in which a third party asserts psychological parent status as a basis for a custody or visitation action regarding the child of a legal parent, with whom the third party has lived in a familial setting." Ibid. (emphasis added).
In ruling on S.B.'s motion for permission to appear in this action as a party, the trial court did not mention the V.C. test. It appears the court relied solely on Dr. Brandwein's use of the term. However, there is no indication that Dr. Brandwein considered or applied all of the V.C. factors when he made that statement.
We conclude that, if S.B. has the status of a psychological parent, the court has the discretion to grant her status as a party in the Division's guardianship case. However, party status should only be granted if S.B. establishes that she is the psychological parent of the children, under the test enunciated in V.C. Furthermore, S.B.'s right to representation by the Office of Public Defender will turn on whether she is permitted to be a party to the guardianship case. N.J.S.A. 30:4C-15.4(c).
Accordingly, we vacate the court's July 25, 2013 order, declaring that S.B. shall be deemed a dispositional defendant and remand the matter to the trial court for further proceedings on that issue. On remand, the Public Defender may continue to represent S.B. in the proceedings conducted to determine whether S.B. is the psychological parent of the children.
III.
The Division further argues that the trial court erred by accepting D.F.'s and M.D.'s identified surrenders of their parental rights to Ethan and James. The Division contends that the court cannot accept an identified surrender of parental rights if it objects to the surrender.
N.J.S.A. 9:3-41(d) provides that, at a parent's request:
an approved agency authorized to receive surrenders, may receive that parent's surrender of his child for purposes of having the child adopted by a person specified by the surrendering parent. The agency shall follow all regulations regarding the securing of a surrender and shall cooperate with the prospective parents in the processing of the proposed adoption.
The term "surrender" is defined as "a voluntary relinquishment of all parental rights by a birth parent . . . for purposes of allowing a child to be adopted." N.J.S.A. 9:3-38(j). The Division is an approved agency for placement of children through adoption under N.J.S.A. 9:3-41(d). State Div. of Youth & Fam. Servs. v. T.G., 414 N.J. Super. 423, 436 (App. Div.), certif. denied, 205 N.J. 14 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 2925, 179 L. Ed. 2d 1255 (2011).
In addition, N.J.S.A. 30:4C-23 governs a parent's voluntary surrender of her parental rights in a guardianship proceeding:
[The Division], after due investigation and consideration, may, in cases where it would be to the permanent advantage of the child, take voluntary surrenders and releases of custody and consents to adoption from the parent . . . . Such surrenders . . . shall be irrevocable except at the discretion of [the Division] or upon order of a court of competent jurisdiction.
Neither N.J.S.A. 9:3-41(d) nor N.J.S.A. 30:4C-23 expressly preclude the court from accepting an identified surrender of parental rights unless the Division consents. Although the statutes provide that the Division "may" accept a surrender, they do not expressly bestow on the Division the power to bar a court from accepting the surrender when the Division objects.
We note, however, that when a parent surrenders a child not simply for adoption, but rather for adoption by a specific resource parent in a guardianship matter, the Division retains authority to consent to the adoption. N.J.S.A. 30:4C-20 provides that
If upon the completion of the hearing the court is satisfied that the best interests of the child require that the child be placed under proper guardianship, the court shall make an order terminating parental rights and committing the child to the
guardianship and control of the [Division of Child Protection and Permanency], and the child shall thereupon become the legal ward of the division, which shall be the legal guardian of the child for all purposes, including the placement of the child for adoption. . . .
[(Emphasis added.)]
Therefore, where a parent seeks to surrender his or her parental rights subject to the child's adoption by a designated resource parent in a Title Thirty guardianship action, the court may not accept the identified surrender where the Division has indicated that it does not consent to the adoption, provided that the Division's determination is not arbitrary, capricious or unreasonable.
Here, the trial court erred by accepting D.F.'s and M.D.'s identified surrenders before the Division had an opportunity to complete its investigation of the injuries that Tyler allegedly inflicted upon Ethan, while Ethan was in S.B.'s care. As we noted previously, Tyler burned Ethan's neck with a lighter in April 2013, and there was evidence that S.B. was home at the time. Thereafter, Dr. Ahmad rendered a report indicating that he did not believe that Ethan and James would be at risk of harm in S.B.'s care. However, Dr. Ahmad stated that Tyler should not be around Ethan and James without supervision.
Ethan and James were returned to S.B.'s home, and S.B. agreed to supervise Tyler's interaction with Ethan and James. Nevertheless, within a month, it appeared that Tyler may have again injured Ethan, by causing him to sustain a bruise that extended from above his ear along the jaw to a spot above the chin.
Ethan initially said that James caused the bruise, but on July 23, 2013, he told Dr. Medina that Tyler "did it." Ethan also said that Tyler hurt him "a lot." He said that, at times, Tyler pushes him to the wall and tapes his hands, mouth and feet together.
At the August 16, 2013 hearing, the trial court refused to allow Dr. Medina to discuss Ethan's injuries. The court also would not allow the Division to introduce Dr. Medina's entire report into evidence. Based on the circumstances in which Ethan made the statements, the court questioned the veracity of his allegations, but there was no direct evidence indicating that Ethan's statements were coached.
Simply put, the record of Tyler's interactions with Ethan raises serious questions as to whether S.B. is, in fact, an appropriate resource parent and potential permanent caretaker for the children. The Division should have been permitted to complete its investigation into these matters before the court decided whether the Division's decision to withhold consent to the children's adoption by S.B. was arbitrary, capricious or unreasonable.
Accordingly, we reverse the orders accepting M.D.'s and D.F.'s identified surrenders of parental rights, and the August 29, 2013 order terminating their parental rights to Ethan and James. We remand the matter for further proceedings on whether the court should accept the identified surrenders, which should await the conclusion of the Division's investigation and a plenary hearing on the results of that investigation.
We note that, since the trial court entered its order on August 29, 2013, there have been further developments that should be considered on remand. As we stated previously, in September 2013, the Division advised this court that there were new allegations and it needed more time to investigate those allegations. We remanded the matter to the trial court for further proceedings following the completion of that investigation. It appears that those proceedings have not been completed.
In addition, in October 2013, S.B. was informed that the Office of Licensing in the Department of Children and Families intended to revoke her resource parent license. S.B. has contested the proposed action, and requested a hearing before the Office of Administrative Law. We have not been advised of the results of that proceeding.
In December 2013, the Division filed an order to show cause in the trial court seeking permission to remove Ethan and James from S.B.'s home. The hearing was scheduled for February 2014. The record does not indicate whether the trial court authorized the removal.
Furthermore, in the brief filed in this matter in January 2014, the Law Guardian for Ethan and James states that S.B. is no longer a suitable placement for them. The Law Guardian provided no explanation for this statement. This should be addressed on remand.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION