                       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                  NOT FOR PUBLICATION WITHOUT THE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., 364 N.J. Super.

263, 283 (App. Div. 2003) (recognizing the court's jurisdiction

to resolve disputes "between competing [permanency] plans that

are reasonably plausible"), certif. denied, 179 N.J. 369 (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., 422 N.J. Super. 583, 593 (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[.]"                             Ibid. (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 D.P., supra,

422 N.J. Super. at 594 (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., 198 N.J. 382, 403 (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., 348 N.J.

Super. 31, 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, 364 N.J. Super. at

266, 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, 143 N.J. 206, 216 (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, 429

N.J.    Super.    277,    291    (App.      Div.       2012)    (citation      omitted),

certif.    denied,      214    N.J.   116   (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,         364    N.J.    Super.   at     283,   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."

Ibid.     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. 364 N.J. Super. at 283-84.



                                            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)[,] Pub.L. 105-89."                               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[.]

            [42 U.S.C.A. § 671(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."               Ibid.             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., 207 N.J. 458, 474

(2011); Crespo v. Crespo, 408 N.J. Super. 25, 40 (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, 207 N.J.

474.

       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, 145 N.J. 282, 298 (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[.]"        Ibid.

      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
