RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4847-12T1

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION Plaintiff-Appellant, March 20, 2014

v. APPELLATE DIVISION

K.N. and K.E.,

Defendants-Respondents. ___________________________________

IN THE MATTER OF T.E.,

A minor. ___________________________________________________

Submitted February 4, 2014 – Decided March 20, 2014

Before Judges Messano, Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-130-13.

John J. Hoffman, Acting Attorney General, attorney for appellant (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.E. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

Respondents K.N. and K.E. have not filed briefs. The opinion of the court was delivered by

MESSANO, P.J.A.D.

By our leave granted, the Division of Child Protection and

Permanency (the Division) appeals from those provisions of the

June 10, 2013 order of the Family Part that, over the Division's

objections, awarded physical custody of six-year-old T.E.

(Tommy) to his "maternal grandmother as a paid resource

placement," and denied the Division's request for psychological

evaluations of Tommy's maternal grandparents, Charlotte and Carl

H.1 The litigation commenced on May 9, 2013, when the Division

filed a verified complaint and order to show cause seeking care

and supervision of Tommy pursuant to N.J.S.A. 30:4C-12. At the

time, Tommy was in the "physical legal custody" of his mother

K.N. (Kara), and both had resided in Carl and Charlotte's home

for several months.

We need not set forth the contents of the Division's

complaint at length, because they are largely irrelevant to the

1 We have fictionalized the names of those involved to maintain their privacy. Carl is referred throughout the record interchangeably as the "maternal grandfather" and "maternal step-grandfather."

2 A-4847-12T1 issues presented on appeal. However, to place the controversy

in some context, we reference the more pertinent allegations.

Tommy was born in March 2007 to Kara and K.E. (Kevin).

That year, upon receiving referrals of domestic violence between

Kara and Kevin, and after Kara tested positive for marijuana and

opiates, the Division filed an order to show cause and verified

complaint in the Family Part. In November 2007, the court

granted the Division custody of Tommy, who was placed "in a

relative care home."2 In November 2008, after Kara and Kevin

actively participated in services, the litigation was terminated

and the family reunited.

The Division continued to provide services, since Kara was

participating in substance abuse counseling, and additional

referrals were made in December 2009 and September 2011. In

April and May 2012, the Division investigated allegations of

domestic violence between Kara and Kevin, and that Kara had

stolen prescription painkillers from her sister. Kara denied

the allegations and agreed to visit the Division's office for

urine screening. She failed to appear. During the balance of

2012 and into 2013, Kara and Kevin participated in separate drug

and alcohol counseling programs, and the Division continued to

monitor their progress.

2 The record does not set forth with whom Tommy with placed.

3 A-4847-12T1 During a February 2013 visit, the Division's caseworker was

advised that Kara was sixteen weeks pregnant. After Kara failed

to attend a substance abuse evaluation, the caseworker visited

Carl and Charlotte's home on March 27, 2013. Carl reported that

Kara, Kevin and Tommy had moved into their home, but after

Kevin's continued verbal abuse of Kara, Carl told Kevin to

leave. The entire family left for a few days but were evicted

from a motel in Belmar for failing to pay their rent. Only Kara

and Tommy returned to the H.'s home. Carl told the caseworker

he had discovered that eighteen of his pain pills were missing

and was concerned Kara had taken them.

During an April 1, 2013 visit, Tommy told the caseworker

that Kara takes a pill "sometimes in the morning and at night."

Tommy showed the caseworker where he kept his toys and said that

Kara would sometime keep her pills there. Kara denied using any

drugs and claimed Tommy was speaking of the pre-natal vitamins

she was taking. However, on April 3, Kara tested positive for

opiates. The Division's caseworker met with Carl and Charlotte

and advised that Kara would need to be supervised whenever she

was with Tommy. On April 9, Kara submitted another urine sample

that was positive for opiates.

On May 10, 2013, the judge granted the Division's request

and entered an order to show cause against Kara and Kevin,

4 A-4847-12T1 returnable June 6. Although the Division sought an order

placing Tommy in its "care and supervision," the Law Guardian

apparently urged the judge to grant the Division custody.3 The

order provided that

[Tommy] be immediately made a ward of the court and placed in the immediate custody, care and supervision of the Division with authorization for the Division to consent to routine and emergency surgical or medical treatment to safeguard the life or health of the child.

The order did not explicitly provide for Tommy's placement with

Carl and Charlotte; however, later proceedings revealed that the

Division agreed to this as an initial placement. At the time,

Kara's sister and her four children were also living with Carl

and Charlotte. The order further provided:

[Kara] shall be permitted to reside with the maternal grandmother for [five] days (while DCPP has custody) so she can try to obtain in-patient treatment. If [Kara] needs more time[,] then counsel shall conference.

[Kara] shall be supervised by the maternal grandmother on a [twenty-four] hour/[seven] day per week basis and the birth mother is not permitted to drive the child in a car.

On the return date of June 6, the Law Guardian immediately

brought to the Court's attention that Tommy had been removed

3 This was revealed in the transcript of the next proceeding on June 6.

5 A-4847-12T1 from Carl and Charlotte's home by the Division and placed with

his maternal great aunt, C.S. (Celeste). The Law Guardian

reported that Tommy believed the removal was "his fault," and

his behavior had changed as a result of leaving his mother,

aunt, cousins and grandparents.

When the judge asked why the Division had removed Tommy,

the Deputy Attorney General (DAG) directed the judge's attention

to a "court report" dated May 29 that indicated Tommy "had to be

moved due to [Carl] being on the perpetrator list" as the result

of a "[domestic violence] incident where [Carl] held a gun to

[Charlotte's] head." The judge, however, indicated that

pursuant to N.J.S.A. 30:4C-26.8, licensure of a placement home

could be withheld as the result of a criminal conviction, but

"no one is convicted of domestic violence. . . . It's a civil

proceeding . . . ." The judge directed court staff to ascertain

the results of the prior domestic violence complaint against

Carl and obtained a report that it had been dismissed.

The Law Guardian urged the judge to return Tommy to Carl

and Charlotte, but the Division objected, noting that Kara had

not entered an in-patient substance abuse counseling program and

was still in the home. Kara indicated she would immediately

vacate the home to facilitate Tommy's return. The judge entered

an order that provided in part that Tommy would be returned to

6 A-4847-12T1 Charlotte the following day, and that Kara would "vacate the

. . . residence immediately[.]"

The next day, June 7, the judge held a hearing apparently

in response to the Division's emergent request for

reconsideration. The judge stated that the Division "removed a

child from where the [c]ourt had placed [him] . . . without

notice to the [c]ourt, Law Guardian or any defense counsel

. . . . There was absolutely no due process . . . whatsoever."

The judge further explained:

[A] request was made today for the Court to revisit this. The Court denied that request. It made its decision regarding the placement of this child. It issued an order to that effect but, once again, we run into a situation where the Division does not agree with the Court's decision and has engaged, again, in a constant attacking of the Court's decision. The Court made its decision.

All right. The Court denied a request for a rehearing today. Period.

The judge did, however, grant the Division's request for a

hearing to stay the June 6 order. Noting that he wanted the

parties to brief the issue, the judge asked rhetorically:

And why does the Court want that? Because it just went through this with the Division in which many things were misrepresented to the Appellate Division in the context of the request for the stay.

Also, because of the lack of due process that the Court is very concerned

7 A-4847-12T1 with in this case, it will give the parties an opportunity to respond to the Division's submission on a request for a stay so that we can have an accurate [a]ppellate record in this case.

The judge also referenced an "amended court report" dated

June 7. That report revealed that the Division substantiated a

finding of neglect against Carl in 2004 stemming from a referral

by the Family Part domestic violence judge. One of the victims

of the neglect finding was Kara, who was present in the home

when Carl displayed a gun and threatened Charlotte. The amended

court report also indicated that Kara's sister, now living in

the home with her children, had "current child endangerment

charges" filed against her. Additionally, the report stated

that Carl was "verbally hostile" towards the Division's

caseworkers when Tommy was placed on May 10, initially refused

to sign any of the documents in the "resource packet," had

"swastika flags hanging in his office" and made racially

derogatory remarks. However, the judge concluded:

[T]here's nothing in this [amended] report that the [c]ourt feels is an imminent risk of harm to this child's health, safety or welfare such that the child should not be placed there as ordered by the [c]ourt since the child shouldn't have been removed in the first instance, particularly without a hearing or any due process being afforded any of the parties in this case, as well as the child who has rights.

8 A-4847-12T1 The Division filed its formal motion for a stay, supported

by a certification and attachments, including copies of the

police report from the 2004 incident involving Carl. The report

revealed that during a family argument, Carl retrieved a gun

from his home office and threatened to kill Charlotte and other

family members. Charlotte said that he had made similar threats

in the past, but she never reported them to police.

The certification also included the Division's contact

sheets detailing the May 10 placement. It suffices to say that

the caseworkers claimed Carl was "verbally abusive" toward them

in front of the children in the home and made racially

derogatory remarks. When asked to review the resource placement

materials and sign the case plan, Carl initially refused. The

Division placed Tommy with Celeste on May 13. There is no

indication in the record that the Division provided notice to

anyone about Tommy's removal and placement with Celeste.

At the start of the hearing on the Division's request for a

stay, the judge expressed his "hope that this would be taken up

to a higher court for two legal issues to be resolved." He

described those as: (1) "the treatment of domestic violence

findings and how that pertains to the Division's ability to

license a home"; and (2) "whether a substantiation, in and of

9 A-4847-12T1 itself, would require the removal of a child because the

Division could not license a home."

The court heard from Carl, who explained that his

frustrations with the Division were directed solely at the

process. He stated that he and Charlotte were currently raising

four other grandchildren, who were loved and well-cared for. He

wanted Tommy to be part of the family. Carl also explained that

the swastika was a "souvenir[]" his father brought back from

fighting "under General Patton in World War II." He admitted

using a racially derogatory term in front of the workers, but

stated that he did so only in the context of discussing

"political correctness." The Division's caseworker provided

some testimony in rebuttal.

The judge denied the Division's request for a stay, stating

[T]he child should have never been removed in the first instance without hearing to all of the parties [and the court] disagrees that the home can't be licensed under the reasons stated by the Division. . . . [The court] finds no basis to grant the stay, which is denied . . . .

The judge refused the Division's request to order psychological

evaluations of Carl and Charlotte, noting the substantiated

neglect finding was "[n]ine years ago." The judge also refused

the Division's request to include "language in the order that

indicates . . . the placement . . . is not a paid placement."

10 A-4847-12T1 The Division sought leave to appeal and a stay of the

judge's order. The judge filed a written statement of reasons

for his decision. R. 2:5-6(c). He noted that under New Jersey

law, domestic violence proceedings were civil in nature; thus,

there could be no "conviction" for domestic violence, and,

hence, that could not be a basis for disqualification of Carl

and Charlotte as resource family parents. The judge also noted

that even if a resource family parent or household member was

the subject of a substantiated finding of abuse or neglect, the

Division could license the family if it determined there was no

continuing risk of harm and licensure was in the child's best

interests.

Although we granted the Division's motion for leave to

appeal, we refused to stay the June 10 order.

I.

The Division contends that the judge did not have the

authority to order Tommy's placement "in an unlicensed,

dangerous home," or order the Division to "pay for the

placement." The Division also argues that the judge "abused

[his] discretion in enjoining [the Division] from obtaining

evaluations of the proposed caregivers."

The Division's overarching contention is that the

Legislature has granted to it alone the statutory and regulatory

11 A-4847-12T1 authority to select appropriate placements and license them.

The Division argues that the judge's decision in this case,

therefore, violates the separation of powers clause of the State

constitution. See N.J. Const., art. III, ¶ 1 ("The powers of

the government shall be divided among three distinct branches,

the legislative, executive, and judicial. No person or persons

belonging to or constituting one branch shall exercise any of

the powers properly belonging to either of the others, except as

expressly provided in this Constitution.").

The Division concedes that the Family Part may exercise its

jurisdiction and order a particular placement "as between two

fit, licensed homes." See, e.g., In re C.R.,

(App. Div. 2003) (recognizing the court's jurisdiction

to resolve disputes "between competing [permanency] plans that

are reasonably plausible"), certif. denied,

(2004).

However, it argues that the Family Part cannot order a placement

in a home which, in the reasonable, discretionary exercise of

its statutory powers, the Division has determined is

inappropriate. The Division argues that the sole remedy to its

licensing decision is an administrative appeal brought by Carl

and Charlotte.

The Law Guardian argues that whether Carl and Charlotte's

home was a "reasonably plausible" placement required resolution

12 A-4847-12T1 of disputed facts, and the judge's determination, based upon the

evidence presented, should be entitled to our deference.4

We have considered these arguments in light of the record

and applicable legal standards. We reverse and remand for

further proceedings consistent with this opinion.

A.

We begin by reviewing the statutory and regulatory regime.

"The Legislature has established the Division as 'the State

agency for the care, custody, guardianship, maintenance and

protection of children[.]'" N.J. Div. of Youth & Family Svcs.

v. D.P.,

(App. Div. 2011) (quoting

N.J.S.A. 30:4C-2(a)). "In that role, the Division is authorized

to temporarily remove children from the home of their parents or

guardians . . . when the child's best interests are not secured

by their parents who are in need of services[.]"

(citing

N.J.S.A. 30:4C-12).

The Division may accomplish this by "identif[ying] and

approv[ing] a child's placement with a resource family to

provide day-to-day care." Ibid.; and see N.J.S.A. 30:4C-26(a)

("Whenever the circumstances of a child are such that his needs

cannot be adequately met in his own home, the division may

4 Kara and Kevin did not file briefs.

13 A-4847-12T1 effect his placement in a resource family home, with or without

payment of board . . . .") (emphasis added). A "resource family

parent" is any person "with whom a child in the care, custody or

guardianship of the [Division] is placed . . . for care."

N.J.S.A. 30:4C-27.1.5 Resource family parents are entitled to

notice of and a right to be heard at any court review or hearing

involving the child. N.J.S.A. 30:4C-12.2; and see

(noting this notice provision reflects

the Legislature's recognition of "the vital role resource

parents play[,] [p]articularly recognizing their superior

knowledge of the child's physical and emotional status");

N.J.S.A. 9:6-8.19a (requiring notice to resource family parents

of all proceedings brought under Title Nine).

In enacting the Resource Family Parent Licensing Act

(RFPLA), N.J.S.A. 30:4C-27.3 to -27.15, the Legislature declared

"it [was] in the public interest to license resource family

parents and regulate resource family homes in order to ensure

the safety, health and proper development of children placed in

resource family care." N.J.S.A. 30:4C-27.4. Under the RFPLA, a

"'[r]esource family parent' means a person who has been licensed

. . . to provide resource family care . . . ." N.J.S.A. 30:4C-

5 We have frequently substituted "the Division" for the Department of Children and Families (DCP) throughout our discussion of the statutory and regulatory scheme.

14 A-4847-12T1 27.5. Therefore, "[a] person shall not provide resource family

care to a child unless the person is licensed," and is "of good

moral character." N.J.S.A. 30:4C-27.6(a),(c).

N.J.S.A. 30:4C-27.9 provides that a license may be denied

"for good cause, including, but not limited to":

a. . . . ;

b. . . . ;

c. The conviction of a[n] . . . applicant or any adult member of the . . . applicant's household of a crime enumerated under [N.J.S.A.] 30:4C-26.8);

d. A determination that an incident of child abuse or neglect by a[n] . . . applicant or any adult member of the . . . applicant's household has been substantiated, except that the department may issue the license if the department determines that the . . . applicant or adult household member poses no continuing risk of harm to the child and the issuance of the license is in the child's best interests;

. . . .

i. Any conduct, engaged in or permitted, which adversely affects or presents a serious hazard to the education, health, safety, general well-being or physical, emotional and social development of the child residing in the resource family home, or which otherwise fails to comply with the standards required for the provision of resource family care to a child and the maintenance of a resource family home.

[And see N.J.A.C. 10:122C-2.5(b).]

15 A-4847-12T1 While the RFPLA seemingly leaves licensure to the

discretion of the Division, subject to disqualification for

"good cause," the Legislature spoke more emphatically elsewhere

in Title 30. Thus, "[a] person shall be disqualified from being

a resource family parent . . . if that person or any adult

residing in that person's household" was convicted of any of

several listed offenses, including "domestic violence pursuant

to [N.J.S.A.] 2C:25-17 et seq." N.J.S.A. 30:4C-26.8(d)(9)

(emphasis added); and see N.J.A.C. 10:122C-2.5(a) (same).

Before denying a license, the Division must notify the

applicant and afford an "opportunity to be heard and . . .

contest the department's action." N.J.S.A. 30:4C-27.10. Review

of the Division's decision is by way of appeal to this court.

N.J.S.A. 30:4C-27.11.

However, Title 30 contemplates that the Division may place

a child with a relative who is not a resource family parent, nor

wishes to become one. For example, under the Child Placement

Review Act (the CPRA), N.J.S.A. 30:4C-50 to -65 (the CPRA), the

definition of a "'[c]hild placed outside his home' . . . does

not include a child placed by the court in the home of a person

related to the child who does not receive any payment from the

[D]ivision for the care of the child[.]" N.J.S.A. 30:4C-52(b).

Under N.J.S.A. 30:4C-12.2, the right to notice of all hearings

16 A-4847-12T1 involving a child in the Division's "care or custody" extends

not just to the child's "resource family parent," but also to a

"relative providing care for the chil[d]." And see N.J.S.A.

30:4C-54 (requiring that written notice of proceedings following

a voluntary placement agreement must be given to "the child's

caretaker," whether "a resource family parent, preadoptive

parent or relative") (emphasis added).

The distinction between placement with a relative and

placement with a licensed resource family parent is made clear

by N.J.S.A. 30:4C-12.1, Title Thirty's requirement that the

Division first look to place a child with a relative. That

statute provides that once the Division accepts a child "in its

care or custody, including placement," within thirty days it

"shall initiate a search for relatives who may be willing and

able to provide the care and support required by the child."

N.J.S.A. 30:4C-12.1(a). If after conducting an assessment of

the "relative's ability to provide the care and support,

including placement," ibid., the Division "determines that the

relative is unwilling and unable to assume the care of the

child," it must inform the relative of its determination.

N.J.S.A. 30:4C-12.1(b). Notably, one of the things the Division

must tell the child's relative is "that termination of parental

17 A-4847-12T1 rights may occur if the child remains in resource family care

for more than six months[.]" N.J.S.A. 30:4C-12.1(b)(3).

Similar distinctions are implicit in Title Nine. For

example, following a dispositional hearing, see N.J.S.A. 9:6-

8.51, "the court may place [a] child in the custody of a

relative or other suitable person or the division . . . ."

N.J.S.A. 9:6-8.54(a) (emphasis added). As the Court has noted,

"[a]lthough 'placement' is not defined in Title Nine, . . . the

Legislature intended to include a non-custodial parent . . . as

'a relative or other suitable person' with whom the Division was

authorized to place the child." N.J. Div. of Youth & Family

Servs. v. G.M.,

(2009) (quoting N.J.S.A. 9:6-

8.54(a)). N.J.S.A. 9:6-8.19a requires notice of all Title Nine

proceedings be given to "the child's resource family parent or

relative providing care for the child, as applicable[.]"

(emphasis added).

We conclude that under both Title Nine and Title Thirty,

the Legislature intended that the court have the authority to

place a child with an appropriate relative, independent of any

licensing decision made by the Division.

Under the broad authority conveyed by the Legislature in

Title 30, the Division has adopted a comprehensive regulatory

scheme governing the removal of a child after a placement is

18 A-4847-12T1 made. For example, N.J.A.C. 10:122E-1.1 provides that "the

Division has the discretionary authority to remove a child in

placement from a resource family home at any time with or

without the consent of the resource family parent, parent or

child in placement." In emergent situations, "[t]he Division

representative shall remove a child in placement from a resource

family home when the Division determines that the child is not

safe in the resource family home." N.J.A.C. 10:122E-2.1(a)

(emphasis added).

In "non-emergency situations," the Division "may remove a

child in placement" for a variety of reasons, including

"documented evidence that the resource family engages in

behavior[] which is detrimental to any child in placement in

that resource family home." N.J.A.C. 10:122E-2.2(a)(3)

(emphasis added). Prior to a non-emergent removal, the Division

"shall" conduct interviews of the child and the resource family

parent and shall also inform the child, the resource family

parent and the parent "at least [thirty] days prior" to the

removal, "or as soon as possible when a court order is being

followed." N.J.A.C. 10:122E-2.3(a) and (b).

Whether in an "emergency [or] non-emergency situation[],"

the Division "shall consider" a variety of "points when deciding

whether to remove a child in placement." N.J.A.C. 10:122E-

19 A-4847-12T1 2.5(a). One of these is "[t]he resource family's history with

the Division . . . ." N.J.A.C. 10:122E-2.5(a)(7).

When a child is removed or will be removed from a

placement, the Division must provide notice of its actions.

N.J.A.C. 10:122E-2.6. Relevant to this case, "[t]he Division

representative shall notify . . . the family part of the

Chancery Division of the Superior Court, and the child's Law

Guardian . . . when there is a change in placement of any child

in placement known to the court." N.J.A.C. 10:122E-2.6(c)

(emphasis added). "If there is a difference of opinion between

the resource family parent and the Division representative

regarding the removal," the Division "shall inform the resource

family parent" of his or her right to an administrative appeal.

N.J.A.C. 10:122E-2.6(e).

B.

We have in the past discussed the tension between the

Division's statutory and regulatory authority, and the court's

inherent parens patriae jurisdiction over children who are wards

of the court pursuant to Title 30. In In re E.M.B.,

, 32-33 (App. Div. 2001), we reviewed orders from the

Family Part that directed the Division to develop a new

placement plan subsequent to a termination of parental rights.

The dispute there centered on whether the Division's permanency

20 A-4847-12T1 plan – foster parent adoption — or an alternative plan —

adoption by the maternal grandparents — better served the

child's best interests. Id. at 33. The Division argued on

appeal that the court lacked jurisdiction to modify a placement

after a termination of parental rights; it also contended that

the grandparents' sole means of challenge was an administrative

appeal. Id. at 42. We rejected both arguments concluding

that the statutory scheme for review of a permanent placement plan by the child placement review board and the Family Part, as provided in the [CPRA], cannot be transmogrified into an administrative agency review process, effectuated through a change in the permanency planning goal by [the Division] that essentially coincided with the decision to terminate the parental rights of the birth parents in the guardianship case. Moreover, the [CPRA] contemplates an independent judicial review of [the Division's] permanency placement plan, separate and apart from any rights the grandparents may possess to contest the internal administrative decision of [the Division].

[Id. at 48 (emphasis added).]

In another CPRA case, In re C.R., supra,

, the controversy centered upon the Division's refusal to

consider placement of a child in a home in which three of her

siblings already had been adopted because of regulatory

"population limitation[s]."

[T]he Family Part judge determined that he lacked jurisdiction to entertain the

21 A-4847-12T1 dispute, concluding that [the Division] ha[d] sole discretion in placing children in foster care and moving them from one foster home to another, subject to internal Division review and administrative appeal, and subject to judicial review only in the Appellate Division.

[Id. at 267.]

We ultimately rejected arguments made by the Division, similar

to those it advances now, and concluded

[Division] policy cannot supercede the paramount authority of the Family Part, imbued with its traditional parens patriae responsibility and vested by the Legislature with the task of finally approving the permanency placement plans of children removed from their homes. If the Family Part possesses the responsibility and authority to approve such plans, . . . it follows logically that when a bona fide dispute is presented by parties with standing, between competing plans that are reasonably plausible, it is the Family Part that must resolve the dispute.

[Id. at 283.]

II.

We return to this case. Initially, we reject the

Division's argument that the Family Part's review of its

placement decision violates the separation of powers clause of

the Constitution. As the preceding discussion reveals, the

Family Part has the inherent jurisdiction to review placement

decisions made by the Division with respect to a child who has

been made a ward of the court.

22 A-4847-12T1 Indeed, the Division's own regulatory scheme anticipates

such a result. N.J.A.C. 10:122E-2.6(c) requires that "[t]he

Division representative shall notify . . . the family part of

the Chancery Division of the Superior Court, and the child's Law

Guardian . . . when there is a change in placement of any child

in placement known to the court." It would be nonsensical and

contrary to the regulatory scheme to require the Division to

provide notice, yet deny the Family Part judge an opportunity to

assess whether a change in placement was in the child's best

interest.

In our opinion, the judge's frustration with the Division's

failure to abide by its own regulations was entirely

understandable. The Division's decision to remove Tommy from

Carl and Charlotte's home was done without any notice to the

court, and it is unclear whether any notice was provided to the

affected parties as required by the regulations.

Having said that, we agree with the Division that the judge

could not require it to pay Carl and Charlotte as licensed

resource parents. The Legislature has determined that the

licensing of resource parent homes is delegated to the broad

regulatory power of the Division. Denial of a license is

subject to administrative review as outlined above.

23 A-4847-12T1 "Courts have only a limited role to play in reviewing the

actions of other branches of government." In re Musick, Dep't

of Corrections,

(1996). "[O]ur review is

circumscribed, lest we violate the Constitution's separation of

powers." In re Veto of Minutes of New Jersey Racing Comm'n,

(App. Div. 2012) (citation omitted),

certif. denied,

(2013). We find no authority

suggesting that the Family Part's jurisdiction to resolve

disputes over the placement of children already deemed wards of

the court permits the judge to compel the Division to grant a

license to a particular home.

Notably, in C.R., supra,

, we

specifically did not resolve whether the Division's placement

plan, or the alternative proposed by the adoptive parents of the

child's siblings, should prevail. Instead, we held that the

Family Part "shall consider the matter from a clean slate."

As such, we did not conclude that the Division's refusal

to grant a waiver of its occupancy guidelines was improper.6

In sum, while we agree that the Family Part had inherent

jurisdiction to review the Division's decision to remove Tommy

from Carl and Charlotte's home, we reverse that part of the

6 Additionally, in C.R., we stayed the adoptive parents' administrative appeal pending resolution of the remand in the Family Part.

.

24 A-4847-12T1 order that required the Division to treat the child's return to

Carl and Charlotte's home as a "paid resource placement."

III.

While the judge properly exercised his jurisdiction in

deciding Tommy's best interests were served by his continued

placement with Carl and Charlotte, we conclude he failed to

appropriately consider all relevant statutory and regulatory

factors. We therefore reverse the order requiring Tommy's

continued placement with Carl and Charlotte and remand the

matter for further proceedings consistent with the balance of

this opinion.

Initially, we address the judge's stated concern regarding

"the treatment of domestic violence findings and how that

pertains to the Division's ability to license a home." While

the Division's licensing decision is beyond the purview of the

Family Part's review, it is quite clear that the Legislature,

not the Division, has concluded no person may serve as a

resource family parent "if that person or any adult residing in

that person's household ever committed a crime that resulted in

a conviction for" a variety of enumerated offenses, including

"domestic violence." N.J.S.A. 30:4C-26.8(d)(9).

In 1999, the Legislature amended Title 30 to include this

"domestic violence" disqualifier as part of an overall effort to

25 A-4847-12T1 "conform State law to the provisions of the federal 'Adoption

and Safe Families Act of 1997,' (ASFA)[,]

" Bill

Statement to S. 1705 (1999); L. 1999, c. 53, § 34. The

Legislature noted that "ASFA . . . prohibits approval of

applicants who have committed certain crimes[,]" and the

amendment was intended "to identify . . . specific crimes that

prohibit approval." Ibid.

ASFA requires a state receiving federal funding to

provide procedures . . . , including procedures requiring that . . . in any case involving a child on whose behalf such payments are to be so made in which a record check reveals a felony conviction for child abuse or neglect, for spousal abuse, for a crime against children (including child pornography), or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery, if a State finds that a court of competent jurisdiction has determined that the felony was committed at any time, such final approval shall not be granted[.]

[

(a)(20) (emphasis added).]

The language used by Congress in enacting ASFA does not fit our

existing Criminal Code with precision. For example, ASFA uses

the term "felony conviction."

However, the adoption of

the New Jersey Criminal Code in 1979 (the Code) eliminated the

use of the terms "felonies" or "misdemeanors." N.J.S.A. 2C:1-4.

26 A-4847-12T1 Nor does the Code include a specific offense labeled "spousal

abuse."

This imprecision carried forward somewhat when the

Legislature passed the 1999 amendments to Title Thirty. All of

the disqualifiers listed in N.J.S.A. 30:4C-26.8(d) involve

convictions for offenses defined as crimes under the Code,

except subsection (9), which involves domestic violence.

Proceedings brought under the Prevention of Domestic

Violence Act (PDVA) N.J.S.A. 2C:25-17 to -35, are civil in

nature, and the burden of proof is by a preponderance of the

evidence, not beyond a reasonable doubt, the standard required

for a criminal conviction. J.D. v. M.D.F.,

, 474

(2011); Crespo v. Crespo,

(App. Div.

2009). Under the PDVA, "domestic violence" is defined as the

"occurrence of one or more" predicate "acts." N.J.S.A. 2C:25-

19(a). While all domestic violence predicate acts are offenses

under the Code, they are not all crimes. See e.g., N.J.S.A.

2C:25-19(a)(13) (defining harassment, generally a petty

disorderly persons offense, see N.J.S.A. 2C:33-4, as a predicate

act of domestic violence).

"Although committing one of the predicate acts may also

expose the offender to criminal prosecution, the Act did not

create a new class of criminal offenses[.]" J.D., supra, 207

27 A-4847-12T1 N.J. at 474 (citations omitted). Separate from the relief

available to a plaintiff in a hearing under the PDVA, N.J.S.A.

2C:25-27 provides that "[w]hen a defendant is found guilty of a

crime or offense involving domestic violence," the court may

impose restrictions on the defendant's ability to contact the

victim as "a condition of sentence." See J.D., supra,

.

The judge here seemingly concluded that because an action

under the PDVA is civil in nature, the exclusion from licensing

contained in N.J.S.A. 30:4C-26.8(d)(9) did not apply. We

disagree.

In enacting the PDVA, the Legislature declared

that domestic violence is a serious crime against society; . . . that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.

[N.J.S.A. 2C:25-18 (emphasis added).]

Additionally, the Court has said "there is no such thing as an

act of domestic violence that is not serious." Brennan v.

Orban,

(1996). In our view, the Legislature

determined that "spousal abuse" as used in AFSA, should include

all offenses listed in the PDVA, whether crimes or not.

Moreover, the Legislature determined that a "conviction" for

28 A-4847-12T1 domestic violence necessarily required the rejection of any

resource parent license application. While an actor is not

"convicted" of domestic violence under the Code, we believe the

Legislature clearly intended that entry of a final restraining

order under the PDVA, which necessarily presumes a finding that

the defendant committed an act of domestic violence, meets the

requirements for disqualification under N.J.S.A. 30:4C-26.8(d).

This is the only interpretation consistent with both an implicit

purpose of Title Thirty's licensing provisions, and a stated

purpose of the PDVA, i.e., to insure to the extent possible that

a child will not suffer the "deep and lasting emotional effects

from exposure to domestic violence." N.J.S.A. 2C:25-18.

In this case, however, there was no final restraining order

issued against Carl as a result of the incident in 2004.

Although the statutory prohibition did not apply, the judge

still should have considered all the facts and circumstances

surrounding the 2004 incident in deciding whether Tommy's best

interests favored his return. Although the events occurred nine

years earlier, they involved a violent expression of Carl's

anger that arose, in part, from the family dynamics in the

household at the time. On remand, the judge should consider all

of the circumstances surrounding the 2004 incident in deciding

29 A-4847-12T1 whether placement with Carl and Charlotte is in Tommy's best

interests.

The judge also expressed concern as to "whether a

substantiation [of neglect], in and of itself, would require the

removal of a child because the Division could not license a

home." Under N.J.S.A. 30:4C-27.9, the Division is authorized to

deny a license to an applicant for "good cause." Good cause

includes a finding that "an incident of child abuse or neglect

. . . has been substantiated." N.J.S.A. 30:4C-27.9(d); and see

N.J.A.C. 10:122C-2.5(b)(7). However, the Division may issue the

license if it "determines that the . . . applicant or adult

household member poses no continuing risk of harm to the child

and the issuance of the license is in the child's best

interests[.]"

As previously discussed, the judge may not order the

Division to reach any particular decision in exercising its

discretion to grant or deny a license in such situation. In

other words, if the Division concludes there is good cause to

reject an application for a license based upon a prior

substantiated finding of abuse or neglect, the Family Part may

not compel the Division to issue the license. However, in

ordering a placement, the judge must consider whether the prior

substantiated finding of abuse or neglect evidences a continuing

30 A-4847-12T1 risk to the child such that the placement is not in the child's

best interests.

In this case, the judge seemingly concluded that the

passage of nine years, the lack of any referrals in the

intervening years and Tommy's residence with Carl and Charlotte

for several months before the Division filed its complaint all

militated in favor of returning Tommy to his grandparents.

However, on remand, the judge should also consider the serious

nature of the allegations that led to the Division's

substantiation of neglect, and that the incident arose out of

the family dynamics at the time, and while children, including

Kara, witnessed the events.

Lastly, N.J.S.A. 30:4C-27.9(i) also provides that the

Division's denial of a license for good cause may be based upon

"[a]ny conduct . . . which adversely affects or presents a

serious hazard to the education, health, safety, general well-

being or physical, emotional and social development of the child

residing in the resource family home . . . ." Although this

reflects the Legislature's determination that certain factors

should guide the licensing decision, the statute has relevance

to the court's consideration of any placement. The judge did

not make specific findings regarding the incidents between Carl

and the caseworkers that allegedly took place during the initial

31 A-4847-12T1 placement on May 10. On remand, the judge should consider

whether, if true, the reports made by the Division's workers are

evidential of circumstances that adversely affect Tommy's best

interests.

Because we are remanding the matter for further

proceedings, we do not consider the Division's argument that the

judge abused his discretion in not ordering psychological

evaluations of Carl and Charlotte. The Division is free to

pursue its request at the remand hearing.

Additionally, months have passed since we granted the

Division's motion for leave to appeal. We have no information

as to what may have transpired in that intervening time. Of

course, we cannot know whether immediately removing Tommy from

his maternal grandparents' care pending the remand hearing would

be in his best interests. Therefore, despite our decision to

reverse the June 10 order, we leave that decision to the judge's

discretion.

Reversed and remanded. We do not retain jurisdiction.

32 A-4847-12T1