RECORD IMPOUNDED 

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0259-22

 A-0695-22 

M.M. AND R.M.,1

 Petitioners-Appellants, 

v.

DEPARTMENT OF CHILDREN 

AND FAMILIES, 

 Respondent-Respondent. 

_____________________________

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY, 

 Plaintiff-Respondent, 

v.

M.H. AND J.O., 

 Defendants-Respondents. 

_____________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF D.H., 

a minor. 

1

 To protect the privacy of the parties, we refer to individuals by their initials. 

See R. 1:38-3(d). 

APPROVED FOR PUBLICATION 

August 28, 2024 

APPELLATE DIVISION 
A-0259-22 2 

_____________________________

Argued February 6, 2024 – Decided August 28, 2024 

Before Judges Sumners, Smith and Perez Friscia. 

On appeal from the New Jersey Department of 

Children and Families and the Superior Court of New

Jersey, Chancery Division, Family Part, Mercer 

County, Docket Nos. 22-0145 and FG-11-0035-20.

Eric R. Foley argued the cause for appellants (Law 

Office of Louis Guzzo, attorneys; Eric R. Foley, on

the briefs). 

Karen Cavalier, Deputy Attorney General, argued the

cause for respondent Department of Children and 

Families (Matthew J. Platkin, Attorney General, 

attorney; Sara M. Gregory, Assistant Attorney 

General, of counsel; Karen Cavalier, on the brief).

 

Julie E. Goldstein, Assistant Deputy Public Defender, 

argued the cause for minor (Jennifer Nicole Sellitti, 

Public Defender, Law Guardian, attorney; Meredith 

Alexis Pollock, Deputy Public Defender, of counsel;

Julie E. Goldstein, of counsel and on the briefs).

Deric D. Wu, Assistant Deputy Public Defender, 

argued the cause for respondent J.O. (Jennifer Nicole 

Sellitti, Public Defender, attorney; Deric D. Wu, of 

counsel and on the brief). 

Adrienne Kalosieh, Assistant Deputy Public Defender, 

argued the cause for respondent M.H. (Jennifer Nicole 

Sellitti, Public Defender, attorney; Adrienne Kalosieh, 

on the brief). 

The opinion of the court was delivered by 

SMITH, J.A.D. 
A-0259-22 3 

In this consolidated appeal, appellants and foster caregivers M.M. and 

R.M. appeal from a Family Part judge's order dated October 3, 2022, denying 

intervention in the guardianship litigation of D.H., and also appeal from a final 

agency decision of the Department of Children and Families (DCF) affirming 

removal of D.H. from their home. 

Having reviewed the record and the applicable law, the Division of 

Child Protection and Permanency's (Division) removal of the minor child was 

supported by the regulatory officer's consideration of the experts' bonding 

evaluations which properly interpreted the law, court orders, and Division 

records. In addition, we affirm the trial court's order denying intervention into 

the guardianship proceeding in light of the 2021 statutory amendments to the 

Termination of Parental Rights (TPR) Statute, N.J.S.A. 30:4C-15.1, and 

Kinship Legal Guardianship statute, N.J.S.A. 3B:12A-1 to -7. 

I 

We summarize the pertinent facts. D.H. was born December 22, 2018, 

to M.H. and J.O. Shortly after his birth, D.H. was removed from his biological 

parents' care and placed in the custody of the Division. Nine days later, the 

Division placed him with foster-adopt resource caregivers, appellants M.M. 

and R.M. (the foster caregivers). In October 2019, D.H. was transferred to the 

custody of a paternal aunt. However, when the aunt violated a court order 
A-0259-22 4 

approximately two months later by allowing visitation with M.H., D.H. was 

sent back to the foster caregivers. The Division later identified a different 

paternal great aunt, O.A., as a possible kinship placement. 

Psychologist Barry A. Katz, PhD, was retained by the Law Guardian to 

conduct bonding evaluations of the relationships of D.H. and the foster 

caregivers and D.H. and O.A between January and March 2021. Dr. Katz 

opined that D.H. "has a secure bond and attachment toward [the foster 

caregivers] as parental figures and primary nurturing figures" and "does not 

have a bond or attachment with the paternal aunt." Dr. Katz concluded that if 

D.H. were removed from his foster caregivers' home, he would suffer harm 

that "will likely have a substantial negative impact on his . . . long term 

health." Accordingly, Dr. Katz recommended that D.H. "should remain in his 

current placement and not be placed with [O.A.]." 

On June 23, 2021, the Division notified the foster caregivers that its goal 

for D.H. changed from termination of parental rights to kinship legal 

guardianship. The Division began assessing the possibility of placing D.H. 

with his paternal great aunt, O.A. About five weeks later, the trial court 

ordered the Division to continue to assess kinship legal guardianship and 

authorized visitation between D.H. and O.A. Successive court orders 

gradually increased visitation between D.H. and O.A. in line with the 
A-0259-22 5 

transitional plan developed by the Division to transfer care from the foster 

caregivers to O.A. 

The Division retained a second expert, psychologist David R. 

Brandwein, PsyD, to conduct psychological and bonding evaluations for M.M. 

and R.M. with D.H., M.H. and J.O. with D.H., and O.A. with D.H. In his 

August 10, 2021 report, Dr. Brandwein opined that D.H. "is securely bonded to 

his [foster caregivers]." In his October 3, 2021 report, Dr. Brandwein 

observed that while D.H. is not yet bonded to O.A., he observed "signs of an 

initial attachment between [D.H.] and [O.A.]." He further opined that while 

there is a possibility for [D.H.] to be harmed by removal from appellants' 

home, he is at risk of greater harm by "being completely cut off from his 

familial, cultural, and racial heritage." He concluded by recommending the 

Division "begin a process whereby D.H. will be transferred to the care of 

[O.A.]." 

Dr. Katz conducted a second bonding evaluation of D.H. and O.A. in 

February 2022 and produced an updated, comprehensive evaluation report on 

April 16, 2022. He noted that D.H. "demonstrated stronger signs of 

developing an attachment toward [O.A.]," and his concerns with harm D.H. 

might experience by being removed from appellants' home "appear[ed] to be 

mediated in part by the ongoing visitation" with O.A. Dr. Katz wrote that the 
A-0259-22 6 

current recommendation regarding permanency for 

[D.H.] needs to weigh in the likely attachment trauma 

he would experience at loss of his primary nurturing 

figures with the advantage he would gain at being 

placed with a biological family member who would 

then be in a position for [D.H.] to have more extensive 

contact, relationships, and bonds with other relatives. 

Dr. Katz accordingly opined that "there is an argument to be made that [D.H.] 

would suffer less loss and trauma should he . . . begin transferring custody to 

[O.A.] at this time rather than a later date." He concluded that "[g]iven the 

recent change in law along with the ongoing involvement of the aunt and 

biological relatives in [D.H.]'s life . . . the long-term benefit of [D.H.] 

transitioning to the permanent care of [O.A.] would cause less harm." 

On March 22, 2022, the foster caregivers received notice of the 

Division's Mercer North Local Office's plan to change the placement of D.H. 

to O.A. They then requested a dispositional review of the transfer by DCF. 2 

On April 8, 2022, the Division conducted a family team meeting with the 

foster caregivers and O.A., where the parties reached consensus regarding 

upcoming overnight visits and the transitional plan in general. 

2

 N.J.A.C. 3A:5-3.1(a)(2) requires—subject to certain listed exceptions—a 

dispositional review if a foster caregiver "disagrees with the removal of a child 

receiving foster care in his or her resource home when the child has been 

residing with the resource parent for at least six months . . ." 
A-0259-22 7 

On April 26, 2022, the Division notified the foster caregivers that D.H. 

would be removed from their home within thirty days pursuant to the 

transitional plan. DCF notified the foster caregivers that a dispositional review 

hearing would take place virtually on June 13, 2022. 

On May 25, 2022, the foster caregivers moved for the following relief: 

(1) a stay of any change in placement by of D.H. by the Division; (2) 

permitting them full, or in the alternative, limited intervention in this current 

Family Part litigation pursuant to Rule 4:33-1 and Rule 4:33-2; (3) in the 

alternative, a consolidation of the Family Part matter with the administrative 

matter before DCF regarding the current placement of D.H.; (4) where 

intervention is granted, a best interest summary hearing in which the movants 

are permitted to present evidence regarding the best interests of D.H.; and (5) 

in the alternative, if intervention denied, at the court's discretion, a best 

interests hearing be conducted by the court where the movants could present 

evidence regarding the best interests of D.H. in connection with the current 

placement. 

On June 3, 2022, the Division placed D.H. in O.A.'s home and fully 

within her care. The foster caregivers testified at the dispositional review 

hearing and submitted a sworn statement from a Court Appointed Special 

Advocate (CASA) caseworker claiming that O.A. was allowing contact 
A-0259-22 8 

between D.H. and his biological father in violation of a court order. The 

hearing officer did not consider the statement, finding that dispositional review 

was not the appropriate forum for the caregivers' submission, as the hearing 

officer was "assigned to review whether the removal of the child from [the] 

resource home was appropriate per [Division] policy," and not perform an 

assessment of the appropriateness of the child's current kinship caregiver. 

On August 12, 2022, DCF issued its final decision affirming the Mercer 

North Local Office's decision to remove D.H. from the foster caregivers' home. 

As part of its review, the DCF considered bonding evaluation reports by Dr. 

Katz dated March 12, 2021, March 3, 2022, and April 16, 2022; and by Dr. 

Brandwein dated August 10, 2021, and October 3, 2021; DCPP contact sheets; 

and guardianship orders issued by the Family Part. It found the Division's 

decision to move D.H. "to his paternal great aunt is supported by the research 

in child welfare that . . . development is enhanced when placed with kin." 

The Family Part conducted a hearing on September 19, 2022. At the 

hearing, the foster caregivers conceded their requests to consolidate the 

administrative hearing and to stay any placement of D.H. were moot. On 

October 3, 2022, the court issued an order denying the foster caregivers' 

motion. In its written statement of reasons, the court found they did not have 

standing to intervene as of right pursuant to Rule 4:33-1. The court also 
A-0259-22 9 

denied their request for permissive intervention pursuant to Rule 4:33-2. 

Additionally, the court found the foster caregivers failed to establish they 

were D.H.'s psychological parents. The foster caregivers were further denied 

their alternative request for a summary hearing. 

In separate appeals, the foster caregivers challenged both the DCF's final 

decision affirming D.H.’s removal from their home and the Family Part’s order 

denying intervention and related relief. On February 2, 2023, we ordered that 

the appeals be consolidated. On April 3, 2023, we granted D.H.'s motion to 

intervene in the administrative appeal. 

The foster caregivers contend that the final agency decision to remove 

D.H. from their home was arbitrary, capricious and unreasonable. In addition, 

they argue that the trial court: misapplied the prevailing legal standards in 

denying their motion to intervene as of right pursuant to Rule 4:33-1; erred in 

finding they have not met the standards for permissive intervention pursuant to 

Rule 4:33-2; and finally, misapplied the recent statutory changes to the law 

regarding kinship placement. 

II

We begin by reviewing the 2021 Legislative changes to both the TPR 

Statute, N.J.S.A. 30:4C-15.1, and KLG statute, N.J.S.A. 3B:12A-1 to -7. In 

June 2021, a section of the TPR statute, N.J.S.A. 30:4C-15.1(a)(2), was 
A-0259-22 10

amended to change the standards used when initiating petitions to terminate 

parental rights. One of the substantive changes was to a sentence within the 

second prong of the "best interest test," which the Legislature deleted. It 

stated: "Such harm may include evidence that separating the child from his 

resource family parents would cause serious and enduring emotional or 

psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2) (amended 2021). 

We have interpreted this deletion narrowly, so that evidence of a child's 

bonding relationship with their foster family is wholly separate from 

"consideration of whether a parent is able to overcome harm to the child as 

well as whether the parent can cease causing future harm." N.J. Div. of Child 

Prot. & Permanency v. D.C.A., 474 N.J. Super. 11, 25 (App. Div. 2022), aff'd, 

256 N.J. 4 (2023). For completeness' sake we note that we have concluded 

evidence of a child's bonding relationship with the foster caregivers is not 

completely barred from consideration and may be used by our trial courts 

when conducting a best interest analysis using subsections (a)(1), (a)(3), and 

(a)(4). Ibid. 

At the time it amended N.J.S.A. 30:4C-15.1(a)(2), the Legislature also 

amended the KLG statute. It made the following relevant findings: 

a. Foster care is intended by existing state and 

federal statute to be temporary. 
A-0259-22 11

b. Kinship care is the preferred resource for children 

who must be removed from their birth parents. 

There are many benefits to placing children with 

relatives or other kinship caregivers, such as 

increased stability and safety as well as the ability 

to maintain family connections and cultural 

traditions. 

 . . . . 

d. Parental rights must be protected and preserved 

whenever possible. 

e. Children are capable of forming healthy 

attachments with multiple caring adults throughout 

the course of their childhood, including with birth

parents, temporary resource parents, extended 

family members, and other caring adults . . . 

f. The existence of a healthy attachment between a 

child and the child's resource family parent does 

not in and of itself preclude the child from 

maintaining, forming or repairing relationships 

with the child's parent . . . 

g. It is therefore necessary for the Legislature to 

amend current laws to strengthen support for 

kinship caregivers, and ensure focus on parents’ 

fitness and the benefits of preserving the birth 

parent-child relationship, as opposed to considering 

the impact of severing the child's relationship with 

the resource family parents. 

[L. 2021, c. 154.] 

Taken as a whole, the law "strengthened the position of kinship 

caregivers," and was "intended to reflect a preference for viable kinship 
A-0259-22 12

guardians and fit parents over unrelated foster caregivers." D.C.A., 474 N.J. 

Super. at 27. 

III 

We first address the foster caregivers' argument that the final agency 

decision affirming removal of D.H. from their home was arbitrary, capricious 

and unreasonable. They contend: the hearing officer ignored their testimony, 

contradicting the agency's stated goal of assessing the prospective relative 

resource home; the psychologists misinterpreted legal standards in rendering 

their opinions; and the Division interfered with the CASA representative. 

Our scope of our review of a final agency decision is limited. N.J. Dep't 

of Child. & Fams. v. E.L., 454 N.J. Super. 10, 21-22 (App. Div. 2018); see In 

re Stallworth, 208 N.J. 182, 194 (2011). "We extend substantial deference to 

an 'agency's interpretation and implementation of its rules enforcing the 

statutes for which it is responsible' based on the agency's expertise." N.J. 

Dep't of Child. & Fams. v. R.R., 454 N.J. Super. 37, 43 (App. Div. 2018) 

(quoting In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)). 

Accordingly, "an appellate court reviews agency decisions under an arbitrary 

and capricious standard." Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n., 

237 N.J. 465, 475 (2019) (citing Stallworth, 298 N.J. at 194). "An agency's 

determination on the merits 'will be sustained unless there is a clear showing 
A-0259-22 13

that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in 

the record.'" Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J. 

369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 

206 N.J. 14, 27 (2011)). "The burden to make that showing 'rests upon the 

[party] challenging the administrative action.'" In re Att'y Gen. L. Enf't 

Directive Nos. 2020-5 & 2020-6, 246 N.J. 462, 489 (2021) (alteration in 

original) (quoting Lavezzi v. State, 219 N.J. 163, 171 (2014)). 

While our standard of review is limited and we defer to an agency's

decision unless it is arbitrary, capricious, or unreasonable, Saccone, 219 N.J. at 

380, such deference however "is premised on our confidence that there has 

been a careful consideration of the facts in issue and appropriate findings 

addressing the critical issues in dispute." Bailey v. Bd. of Rev., 339 N.J. 

Super. 29, 33 (App. Div. 2001). We "insist that the agency disclose its reasons 

for any decision, even those based upon expertise, so that a proper, searching, 

and careful review by this court may be undertaken." Balagun v. Dep't of 

Corr., 361 N.J. Super. 199, 203 (App. Div. 2003). 

The Division promulgates regulations governing when a child may be 

removed from a resource home in non-emergency situations. N.J.A.C. 3A:17-

2.2. The first cited reason for removal is, "[t]he child's case goal is furthered 

or achieved by the move or a court order is being followed, for example, return 
A-0259-22 14

to family, placement in an adoptive home or uniting a child in placement with 

siblings." N.J.A.C. 3A:17-2.2(a)(1). The Division must inform the foster 

caregiver "at least [thirty] days prior to the move when the child will be 

removed to further or achieve the case goal or as soon as possible when a court 

order is being followed." N.J.A.C. 3A:17-2.3(b). 

In deciding whether to remove a child's placement, the Division 

considers several factors, including: the child's age; the length of stay with the 

resource family; the relationship between the child and the resource family; the 

number and impact of prior moves on the child in placement; the availability 

of support services to maintain the placement; the child's immediate safety; 

and the child's risk of future harm. N.J.A.C. 3A:17-2.5(a). 

 We are not persuaded by the foster caregivers' arguments. The final 

administrative decision was informed and supported by the experts' bonding 

evaluations. The evaluations incorporated the law, court orders, and Division 

records. While the foster caregivers' testimony was not explicitly addressed in 

DCF's final decision, their relationship with D.H was well-documented in the 

comprehensive record, including the bonding evaluations and contact sheets, 

which were reviewed by the Division. The final decision acknowledged "it is 

clear that [M.M. and R.M.] have a genuine concern for [D.H.]'s well-being." 

This genuine and clearly heartfelt concern is commendable, and emblematic of 
A-0259-22 15

the many foster caregivers who open their home to children in need. However, 

given the Legislature's recent amendments and corresponding legislative 

findings, we conclude their arguments, as foster caregivers who want what 

they sincerely believe is best for D.H., do not support the proposition that DCF 

committed error. We conclude the final decision was not arbitrary, capricious 

or unreasonable. See Saccone, 219 N.J. at 380. 

 We turn to the foster caregivers' contention that DCF contradicted itself 

regarding the scope of its review. The hearing officer's review was limited to 

whether the decision made by the Mercer North Local Office to remove D.H. 

from appellants' home was arbitrary, capricious, and unreasonable. The 

decision was not a comprehensive best-interest analysis or comparison 

between caregivers. The hearing officer explained the statement of the CASA 

worker would not be considered because the review "does not assess the 

appropriateness of the child's current relative resource parent." The final 

decision addressed these factors by concluding "[t]he evidence is 

overwhelming that [D.H.] would be safe with either [the foster caregivers] or 

[O.A.]." DCF's conclusion does not result from a comparative analysis, rather 

the decision was limited to the DCF's removal of D.H. DCF's review properly 

accounted for regulatory factors such as "the child's immediate safety" and 

"the child's risk of future harm." N.J.A.C. 3A:17-2.5(a). The review process 
A-0259-22 16

is not a forum for foster caregivers to investigate and challenge the adequacy 

of another resource family's home. See N.J.A.C. 3A:17-1.2; N.J.A.C. 3A:17-

2.5. Therefore, we conclude the hearing officer's statements about the scope of 

administrative review do not warrant reversal. 

 We consider the caregivers' next argument, that Drs. Katz and 

Brandwein misinterpreted changes to both the TPR Statute, N.J.S.A. 30:4C15.1, and KLG statute, N.J.S.A. 3B:12A-1 to -7, to require kinship placement 

regardless of how long a child had been in placement in a non-relative 

resource home. We are unpersuaded. Our review of the record reveals no 

indication that Drs. Katz and Brandwein misinterpreted the law. The reports 

cite the relevant statutory amendments and note the stated legislative 

preference for kinship placements. As discussed above, the statutory 

amendment was "intended to reflect a preference for viable kinship guardians 

and fit parents over unrelated foster caregivers." D.C.A., 474 N.J. Super. at 

27. Contrary to the caregivers' argument before us, the record shows the 

expert reports did not suggest that D.H. should be placed with O.A. regardless 

of the time spent in appellants' home and the bond they formed. Rather, the 

record shows each expert clearly considered the possible harm D.H. would 

suffer by being removed from the foster caregivers, recognized the 

significance of that possible harm, and nonetheless concluded that D.H. would 
A-0259-22 17

suffer the least amount of long-term harm if he is removed and placed with 

O.A. DCF did not rely on a record which included expert opinions grounded 

in a mistake of law. 

IV

We now turn to appellant's arguments for intervention in the Family Part 

matter. "Our Rules of Court govern intervention at trial, and the trial court's 

interpretation of those rules is subject to our de novo review." New Jersey 

Dept. of Environmental Protection v. Exxon Mobil Corp., 453 N.J. Super. 272, 

285 (App. Div. 2018) (citing Washington Commons, L.L.C. v. City of Jersey 

City, 416 N.J. Super. 555, 560 (App. Div. 2010)). "We look first to the plain 

language of the rules and give the words their ordinary meaning." Robertelli 

v. New Jersey Office of Atty. Ethics, 224 N.J. 470, 484 (2016) (citing 

Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch. 

Dist., Somerset Cty., 221 N.J. 349, 361 (2015)). 

Rule 4:33-2 is "the more liberal permissive intervention rule," therefore 

we must "review the court's determination of a permissive intervention motion 

under an abuse of discretion standard." N.J. Dep't of Env't Prot. v. Exxon 

Mobil Corp., 453 N.J. Super. 272, 286-87 (App. Div. 2018) (citing City of 

Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006)). 

A 
A-0259-22 18

We begin with appellant's arguments concerning intervention as of right 

pursuant to Rule 4:33-1. Intervention as of right must be granted when an 

unnamed party meets the following requirements: 

[1] "claims an interest relating to the property or

transaction which is the subject of the action," [2] 

shows she "is so situated that the disposition of the 

action may as a practical matter impair or impede the 

ability to protect that interest," [3] demonstrates her 

"interest is [not] adequately represented by existing 

parties," and [4] files a "timely" application to 

intervene. 

[New Jersey Div. of Youth and Family Servs. v. D.P., 

422 N.J. Super. 583, 590 (App. Div. 2011) (quoting R. 

4:33-1).] 

Specifically in the family context, motions to intervene "must be considered in 

light of statutory limitations." B.C. v. New Jersey Div. of Child Prot. & 

Permanency, 450 N.J. Super. 197, 207 (App. Div. 2017). 

In D.P. we addressed intervention by foster caregivers in court 

proceedings involving the best interests of the child placed in their care. 422 

N.J. Super. at 587. We concluded, despite the statutory allowance for foster 

caregivers to have notice and be heard at certain hearings concerning the child, 

the Legislature has circumscribed those rights, and provided that foster 

caregivers "shall not be made a party to the review or hearing solely on the 

basis of the notice and opportunity to be heard." Id. at 599 (citing N.J.S.A. 
A-0259-22 19

9:6-8.19a). Stated plainly, resource parents do not have a right to intervene as 

a party unless they have some other statutory directive providing for the right. 

Applying D.P. and its principles, the trial court denied the foster 

caregivers' motion to intervene as of right. Making findings, the court first 

referenced D.P.'s clear holding that foster caregivers do not have the right to 

intervene in guardianship proceedings. The court noted that recent changes to 

both the TPR and KLG statutes indicate a Legislative intent to prioritize 

keeping children amongst relatives or "kin." It then stated that placement of 

D.H. with his paternal great aunt "aligns with the amended KLG statute," 

especially in light of the fact that both biological parents have voiced their 

support of the placement. Next, the court rejected the foster caregivers' 

arguments that they are D.H.'s "psychological parents," finding that they failed 

to meet the first prong for intervention, requiring the legal parents (biological 

parents) consent. See V.C. v. M.J.B., 163 N.J. 200 (2000).3

 The court found the foster caregivers could not satisfy the intervention 

as of right requirements, as they "failed to show any evidence of a legal 

interest in the subject matter of the Guardianship litigation." It further found 

that the caregivers' personal interests were not equivalent to the "fundamental 

rights to the care, custody, and nurturance of the child" possessed by a child's 

3

 The foster caregivers have not raised this issue on appeal. 
A-0259-22 20

biological parents. Finally, the court found that the best interest of the child 

was adequately represented in this case by the Law Guardian and that the 

record did "not identify a circumstance wherein the best interest of the child 

has been impaired by the current parties." 

The foster caregivers argue that the record contains significant 

differences which justify a departure from our holding in D.P. Alternatively, 

they argue D.P. did not accurately address the statutory language of N.J.S.A. 

9:3-45.2, making it wrongly decided and in conflict with other relevant 

decisions. We do not agree. 

Although our factual record differs somewhat from the record in D.P., 

such differences do not warrant departure from the D.P.'s principles. We note 

that the best interest hearing in D.P. was not dispositive to its holding. 

Consequently, the absence of a best interest hearing in this record is of no 

moment. 

Relatedly, the lack of notice alleged by the foster caregivers does not 

warrant their standing as full parties to the guardianship litigation. 

N.J.S.A. 9:3-45.2 provides in pertinent part: 

[T]he child's resource family . . . shall receive written 

notice of, and shall have a right to be heard at, any 

review or hearing held with respect to the child, but 

the resource family parent or relative shall not be

made a party to the review or hearing solely on the

basis of the notice and right to be heard. 
A-0259-22 21

The statute clearly states that foster caregivers "shall not be made a party," and 

we discern nothing from the plain reading of this statute which would lead us 

to conclude that a failure to provide notice or opportunity to be heard would 

change this explicit direction from the Legislature. 

 Similarly, alignment of the Law Guardian's and foster caregivers' 

opinions regarding the child's best interests was not material to the court's 

decision in D.P., and that alignment is not material here. It is the Law 

Guardian who is tasked, "as a matter of legislative preference," with assuring a 

child's well-being. D.P., 422 N.J. Super. at 593. See also N.J. Div. of Youth 

& Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div. 2002) 

(explaining the law guardian’s role to "zealously advocate the client’s cause" 

on the minor’s behalf (citation omitted)). Therefore, the foster caregivers' 

interest in D.H.'s well-being, however sincere, does not displace the Law 

Guardian's role in representing him in the Family Part action. 

 We also note that the foster caregivers' right to dispositional review of 

DCF's placement decision does not confer standing to intervene in the Law 

Division action, or shield them from the court's holding in D.P. Although D.P. 

does not specifically reference the foster caregivers' right to dispositional 

review pursuant to N.J.A.C. 3A:5-3.1, it references relevant rights under the 

statute. D.P. illustrates this concept in the context of adoption. "The statute 
A-0259-22 22

designates the Division as the State authority to seek the petition for adoption. 

It does not grant an independent right to file for adoption to the resource 

parents." D.P., 422 N.J. Super. at 594 (citing N.J.S.A. 30:4C-26.7). The foster 

caregivers have not shown that their right to a dispositional hearing should be 

treated differently. 

The foster caregivers' alternative argument for rejecting our holding in 

D.P. also falls short. D.P. is at odds with cases decided long before the 

operative statutes were amended. See e.g., Doe v. State, 165 N.J. Super. 392, 

398 (App. Div. 1979) (holding "under the circumstances existing here" foster 

parents had standing to challenge division placement decisions). 

We also reject the foster caregivers' contention that we misinterpreted 

the statutory language of N.J.S.A. 9:3-45.2 in D.P. The language prohibiting 

party standing based "solely" on an individual's status as a foster caregiver 

implies that a caregiver may assert some other basis for standing, distinct from 

their status as a foster caregiver. 

In B.C. v. N.J. Div. of Child Prot. & Permanency, 450 N.J. Super. 197, 

201 (App. Div. 2017), we held that a minor child's foster caregivers, who were 

also their grandparents, had standing to intervene in child protection litigation 

to assert their "separate legal rights" under the grandparent visitation statute, 

N.J.S.A. 9:2-7.1. Similarly, in D.P. we concluded the separate legal rights of 
A-0259-22 23

the unrelated foster caregivers could be asserted if they could establish that 

they were the child's "psychological parents." Id. at 208. In sum, the foster 

caregivers have failed to show that they have an alternate legal basis to 

establish standing to intervene as of right. 

B 

 Turning to permissive intervention under Rule 4:33-2, we begin by 

noting our more relaxed standard of review. See Exxon Mobil Corp., 453 N.J. 

Super. at 286-87. Rule 4:33-2 allows for permissive intervention by a party, 

within the court's discretion, "in an action if the claim or defense and the main 

action have a question of law or fact in common." When considering a party's 

motion for permissive intervention, a trial court must "liberally determine 

'whether intervention will unduly delay or prejudice the adjudication of the 

rights of the original parties.'" B.C., 450 N.J. Super. at 208 (quoting D.P., 422 

N.J. Super. at 590-91 (internal citations omitted)). In the context of family 

matters intervention may be appropriate in some cases, however it is "not the 

preferable method of proceeding." Id. at 207. 

In making its findings, the trial court considered several factors, 

including: the promptness of the application; whether such intervention would 

cause undue delay; the possibility of elimination of subsequent litigation; and 

the extent to which intervention would further complicate litigation. Weighing 
A-0259-22 24

these factors in light of the underlying litigation, the court denied the foster 

caregivers' application for permissive intervention. 

The court found that the foster caregivers' intervention was "untimely as 

they have known of the Division's intent to move the minor to a relative 

resource home since July 2021," and that "movants sat on their rights and did 

not intervene for nearly a year." The court further found that permitting 

intervention would delay the matter and "unfairly prejudice the minor child." 

Finally, the court found that "[e]stablishing a precedent of allowing resource 

parents and former resource parents to intervene in children-in-court cases on 

the basis of their relationship with the child" would result in cases such as this 

being "severely delayed and overly complicated." We conclude the trial court 

properly exercised its discretion when it denied permissive intervention, 

considering the best interest of D.H. 

The foster caregivers next argue that their application was timely in light 

of the Law Guardian's revised opinion of what placement would be in the best 

interests of D.H. In addition, they argue that the court misapplied the law in 

finding that allowing permissive intervention "would not assist this [c]ourt, or 

any of the parties, in protecting the best interest of this child, which is the 

overall goal of the Guardianship litigation." This argument fails to show that 

the trial court abused its discretion or misapplied the law. 
A-0259-22 25

The trial court correctly pointed out the fact that the foster caregivers 

were notified of the Division's choice to pursue kinship legal guardianship 

rather than termination of parental rights in June 2021. Their argument that 

intervention would be "not yet ripe" because the law guardian was aligned with 

their interests up until March 2022 conflates the roles at play. Regardless how 

its opinions aligned with those of the foster caregivers, the law guardian does 

not represent the caregivers' interests. The trial court correctly observed that it 

would have been prudent for the foster caregivers to move to intervene when 

they first learned of the Division's change of plans to minimize delay and not 

unfairly prejudice D.H. 

We comment briefly on the contention that the trial court misinterpreted 

the law underlying its decision, specifically the recent changes to the TPR and 

KLG statutes. The foster caregivers contend that the Legislature's 

modification of the law to reflect a preference for placement of children with 

family does not mean the law requires placement with a family member "at all 

costs." They argue that the Division fulfilled its legal obligations by 

attempting to place D.H. with family, but erred when it delayed permanency in 

favor of placing D.H. with O.A. 

This assertion minimizes the Legislature's clear policy favoring kinship 

and relative placements, as well as mislabeling the final decision as adhering 
A-0259-22 26

to an "at all costs" policy, while ignoring the benefits for D.H. The objective 

of the statutory amendments was to ensure a focus on preserving the birth 

parent-child relationship given the "benefits to placing children with relatives 

or other kinship caregivers, such as increased stability and safety as well as the 

ability to maintain family connections and cultural traditions." L. 2021, c.

154, §1(b) and (g). This objective is based on the dual premise that "[c]hildren 

are capable of forming healthy attachments with multiple caring adults 

throughout the course of their childhood," and that "[f]oster care is intended by 

existing state and federal statue to be temporary." Id. at §1(e). 

These guidelines established the basis for the trial court's opinion, and 

we do not perceive the court's analysis to mean that it adhered to an approach 

of "family members at all costs." Nowhere in the trial court's findings or 

expert's reports was this language used, nor do we find support in the record 

for adoption of such a rigid policy. 

As mandated by Legislative policy, the trial court found that both 

experts weighed the costs of disrupting D.H.'s attachment with the foster 

caregivers against the benefits of a permanent kinship placement. The experts 

recommended therapy and a transition plan including gradual placement. We 

discern no basis for disturbing the trial court's order. 

Affirmed.