Division of Child Protection and Permanency v. C.S., A-3353-12T3; Appellate Division; opinion by Fisher, P.J.A.D.; decided and approved for publication August 19, 2013. Before Judges Fisher, Alvarez and Waugh. On appeal from the Chancery Division, Family Part, Atlantic County, Docket No. FN-01-206-12. D.D.S. No. 20-2-1044 [9 pp.]

Defendants J.C. and C.S. are the parents of three children, referred to by the fictitious names Arthur, Jane and Nicholas. Jane was born in February 2012; Nicholas in February 2013, well after the filing of pending litigation to terminate parental rights as to Arthur.

Plaintiff Division of Child Protection and Permanency commenced a separate action that led to Jane being placed in the same foster home as Arthur. A week after Nicholas was born, the division filed an amended complaint, seeking custody of him as well. A.S. and E.T., the children's maternal grandparents, sought custody of Nicholas, which was granted. They sought custody of Jane in a separate custody action.

Following an evidentiary hearing, which consisted of the testimony of C.S., a division caseworker and the grandparents, the trial judge entered an order transferring custody of Jane to the grandparents, despite the Law Guardian's objection that a bonding evaluation concerning her relationship with the foster family should have been conducted prior to any change.

The Appellate Division granted leave to file an interlocutory appeal on an expedited basis. The issue on appeal is whether a plenary "best interest" hearing should have been conducted by the trial court before a transfer of custody to the maternal grandparents.

Held: Although there is a statutory preference for temporary placement of a child with suitable relatives, the best interests of the child are the polestar in such matters and under the circumstances here, the trial judge erred in refusing to allow the Law Guardian to present bonding evidence regarding the child's bonding with her foster family before ordering her transfer to her maternal grandparents.

The testimony at the evidentiary hearing revealed that the maternal grandparents were quite capable of providing a suitable home for Jane. The judge ruled that an evaluation of whether a bond had formed between Jane and the foster family was irrelevant in light of the availability of a suitable relative.

The panel says the judge's findings regarding the maternal grandparents' suitability are supported by the evidence and are entitled to deference. However, whether the judge correctly excluded, as irrelevant, evidence concerning the relationship between Jane and the foster family was a legal question not entitled to deference. But although a legal question, the panel says disposition of this appeal is highly dependent on the particular circumstances.

There is a statutory preference for the temporary placement of children with suitable relatives pending the ultimate determination of the children's future. It also is well-established that foster care is only a temporary palliative. Relying on these general principles, the grandparents argue that the judge properly found no significance in the possibility that a transfer of custody might cause a break in a bond between Jane and her foster family.

The Law Guardian's argument relies on the child's best interests, which is always the polestar in such matters. The Law Guardian contends that the trial judge could not make a determination — even with regard to only a temporary change in custody — without hearing evidence considering the bond between child and foster family and the impact on the child caused by severing that bond.

The panel says the undisputed facts reveal that Jane has been in the custody of her foster family, with Arthur, since shortly after her birth, slightly more than one year ago. This was not such a brief or inconsequential period of time as to guarantee that her departure from that home will not cause harm. Although rejecting the argument that every temporary removal of a child from a foster home to a relative's home will require a bonding evaluation, the panel says the circumstances here militated against the judge's refusal to allow bonding evidence before making a change. Therefore, it reverses the order and remands for an evidentiary hearing for the development and consideration of bonding evidence.

The panel stresses the importance of proceeding expeditiously, lest a delay have the undesired effect of strengthening any bond that may exist between the child and the foster family.

For appellant-minors — Kristin Nanette Briggs, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender, Law Guardian; Nancy P. Fratz, Assistant Deputy Public Defender, of counsel). For respondent Division — Reid Adler, Deputy Attorney General(Jeffrey S. Chiesa, Attorney General; Lewis A. Scheindlin, Assistant Attorney General, of counsel). For respondent J.C. — Evan S. Goddard. For intervening respondents A.S. and E.T. — James E. Drake (Drake Law Firm).