New Jersey Appellate Division Decision – Kinship Placement in Child Welfare Cases

Introduction to Kinship Placement in New Jersey

On August 28, 2024, the New Jersey Appellate Division issued its opinion in M.M. and R.M. v. Department of Children and Families, 479 N.J. Super 471 (App. Div. 2024), a consolidated case involving the removal of a minor child, D.H., from foster caregivers to a paternal great-aunt under 2021 statutory changes prioritizing kinship placement. This case underscores New Jersey’s legislative efforts to preserve familial ties in child welfare matters.

Facts and Procedural History of the Kinship Placement Case

D.H., born in December 2018, was removed from his biological parents and placed with foster caregivers M.M. and R.M. shortly after birth. The Department of Children and Families (DCF) subsequently identified O.A., a paternal great-aunt, as a potential kinship placement. Bonding evaluations by experts Dr. Barry Katz and Dr. David Brandwein highlighted the child’s strong bond with foster caregivers but also recognized developing bond between the child and O.A. and the long-term benefits of maintaining cultural and familial ties through kinship placement. D.H. was thus removed from his foster home, where he had been residing for three years, and was placed with O.A.

In this consolidated proceeding, the foster parents appealed from the Family Part judge’s order denying intervention in the guardianship litigation, and from the DCF’s final agency decision affirming removal of D.H. from their home.

Legal Issues Addressed by the Appellate Division

• Foster Caregivers’ Right to InterveneThe foster caregivers sought to intervene in the guardianship proceedings.  The Appellate Division denied their motion, referencing New Jersey Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583 (App. Div. 2011) and emphasizing that foster caregivers do not have standing as a party unless they demonstrate independent legal rights beyond their caregiving role. The Appellate Division found that the Law Guardian adequately represented the child’s interests.
• Review of the Division’s Placement DecisionThe foster parents also argued that DCF’s final agency decision affirming the removal of D.H. from their home was arbitrary, capricious and unreasonable. The Appellate Division rejected that argument finding that the agency action was supported by experts’ bonding evaluations which properly interpreted the law, court orders, and agency records. The Agency decision was supported by the 2021 amendments to the Termination of Parental Rights statute, N.J.S.A. 30:4C-15.1, and Kinship Legal Guardianship statute, N.J.S.A. 3B:12A-1 to -7, which indicated a legislative preference for viable kinship guardians and fit parents over unrelated foster caregivers.

Impact of Statutory Changes on Kinship Placement Decisions

The 2021 amendments to the Termination of Parental Rights statute, N.J.S.A. 30:4C-15.1 and the Kinship Legal Guardianship statute, N.J.S.A. 3B:12A-1 to -7, shifted the legal landscape by prioritizing kinship placement. These changes emphasize preserving familial and cultural connections while maintaining children’s best interests. Both bonding experts highlighted this legislative intent when recommending placement with O.A., a paternal great-aunt.

Key Takeaways from the Kinship Placement Decision

The Appellate Division’s decision reinforces New Jersey’s legislative emphasis on kinship placement as a guiding principle in child welfare cases. While the court acknowledged the foster caregivers’ significant role in D.H.’s early life, it ultimately concluded that long-term stability and connections to family outweighed the immediate emotional harm caused by the transition. This decision affirms the importance of balancing a child’s best interests with the legislative mandate for preserving family ties.

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