The agency proposal follows:

Summary

Pursuant to Executive Order No. 66 (1978), N.J.A.C. 10:133J will expire on September 2, 2002. In accordance with N.J.S.A. 52:14B-5.1c, this date is extended to March 1, 2003. The Division has reviewed these rules and has determined that they continue to be necessary, proper and reasonable for the purpose for which they were originally promulgated, as required by Executive Order No. 66 (1978).

As the Department has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

One purpose of readopting the rules is to maintain Division compliance with New Jersey State Supreme Court decisions, notably the Woodland case (Woodland Private Study Group v. Department of Environmental Protection, 109 N.J. 62 (1987)).

Based on the premise that each child deserves a safe, stable and permanent home in which to grow up, the United States government amended the Social Security Act to strengthen and clarify the requirement that states make reasonable efforts to preserve families, to reunify children with their families and to implement a permanent plan for a child who has been placed out of his or her home, whether that plan includes reunification or not. Among the many provisions of these amendments, referred to as the Adoption and Safe Families Act (ASFA) of 1997, specifically at 42 U.S.C. §675 (5) (E), are deadlines for initiation of termination of parental rights proceedings. Also included are provisions for exceptions to the requirements for filing for termination of parental rights. The State of New Jersey did amend sections of Titles 9 and 30 of the New Jersey Statutes in order to comply with the Federal ASFA. New Jersey’s amendments were signed into law on March 31, 1999 as P.L. 1999, c.53.

The Division is proposing a number of amendments to the rules. Most of these amendments are in response to the Federal ASFA, specific section cited above, and to the New Jersey statutory amendments subsequent to ASFA.

The Division proposes to repeal N.J.A.C. 10:133J-1.1, Authority, because it is unnecessary. The authority for the Division to promulgate rules is already stated in the chapter heading in the code. Consequently, the rest of subchapter 1 is recodified.

The Division proposes to delete from the recodified N.J.A.C. 10:133J-1.1(a), the phrase "describe the factors considered when the Division makes a determination that termination of parental rights is necessary to offer a child a permanent relationship with a family through adoption or to provide a child with the long-term protection," replace it with the word "state" and add at proposed N.J.A.C. 10:133J-1.1(a)1 and 2 the circumstances under which the Division must file or join a petition to terminate parental rights or document an exception and the procedures for taking a surrender of parental rights for purposes of allowing a child to be adopted.

The Division proposes adding two definitions to recodified N.J.A.C. 10:133J-1.3(b). Definitions of the words "expert" and "surrender" are proposed. These words are used in this chapter and are not defined in N.J.A.C. 10:133-1.3.

The Division proposes amending the heading of subchapter 2 by deleting "General Considerations Regarding" before "Termination of Parental Rights" and replacing it with "Requirements for and Exceptions to" in order to be consistent with the Adoption and Safe Families Act amendments to N.J.S.A. 30:4C-15 et seq.

The Division proposes deleting the words "Factors to consider when making a determination to pursue" from the section heading of N.J.A.C. 10:133J-2.1 and adding the word "Involuntary" to the heading before "termination of parental rights", because it will better describe the section as the Division is proposing to amend it.

The Division proposes deleting, after "The Division shall," the phrase "consider pursuing termination of parental rights when the child needs a long-term relationship with an adult that provides stability, predictability and the least amount of government interference and" in N.J.A.C. 10:133J-2.1(a) and paragraphs (a)1 through 6. Those deletions are replaced with "file or join a petition to terminate the parental rights of a child’s parents when one or more of the circumstances stated in N.J.S.A. 30:4C-15 is established, but no later than when the child has been in out-of-home placement for 15 of the most recent 22 months, unless the Division has established an exception to the requirement to seek termination of parental rights, pursuant to N.J.S.A. 30:4C-15.3." The proposed language is consistent with and references N.J.S.A. 30:4C-15 which includes all the grounds for involuntary termination of parental rights. Information referring to surrenders, previously referred to as voluntary termination of parental rights, is contained in the N.J.A.C. 10:133J-3 as proposed for amendment.

The Division proposes adding at N.J.A.C. 10:133J-2.1(b) a provision that references Division consultation with the Deputy Attorney General about situations that may meet the grounds and standards in the State statute.

The Division proposes adding at N.J.A.C. 10:133J-2.1(c), "The Division representative shall advise each parent whose whereabouts are known to the Division and whose parental rights the Division is seeking to involuntary terminate, that the parent has the right to a trial and to be represented by legal counsel at any involuntary termination of parental rights court proceeding. If the parent is unable to afford an attorney, the parent may ask the court to assign an attorney to represent the parent." The content of this paragraph is in existing N.J.A.C. 10:133J-4.1. It is being proposed that it, with minor changes in wording, be moved to N.J.A.C. 10:133J-2.1, which addresses termination of parental rights.

The Division proposes deleting the section heading at N.J.A.C. 10:133J-2.2 and recodifying the section text as new N.J.A.C. 10:133J-2.1(d) because the information contained therein is about an action the Division takes after making a determination to pursue an involuntary termination of parental rights. The Division also proposes to correct the statutory reference in proposed N.J.A.C. 10:133J-2.1(d) and remove the reference to N.J.A.C. 10:133J-2.1 because it is not necessary.

The Division proposes a new N.J.A.C. 10:133J-2.2 to set forth the exceptions to termination of parental rights that were added to the New Jersey statutes at N.J.S.A. 30:4C-15.3 with the March 1999 ASFA amendments.

Proposed new N.J.A.C. 10:133J-2.2(a) references the three exceptions pursuant to N.J.S.A. 30:4C-15.3 under which the Division is not required to file for termination of parental rights.

Proposed N.J.A.C. 10:133J-2.2(b) and (b)1 through 16 state that exceptions to termination of parental rights must be made on a case-by-case basis and state some of the factors that may be considered in that decision-making process. The list is not all-inclusive.

Proposed new N.J.A.C. 10:133J-2.2(c) states that documentation is required when making an exception to the termination of parental rights requirement.

The Division proposes deleting the words "Voluntary Termination" before "of Parental Rights" and replacing them with "Surrender" in the heading at N.J.A.C. 10:133J-3 because "Surrender" is the term used in State statute at N.J.S.A. 9:3-41 and 30:4C-23, and also proposes replacing "voluntary termination" with "surrender" throughout this chapter.

The Division proposes, at new N.J.A.C. 10:133J-3.1(a), to add a statement similar to that which is contained in the current N.J.A.C. 10:133J-2.1(a)3ii because the statement provides information about the Division representative counseling the parent regarding surrenders, previously referred to as voluntary termination of parental rights. Consequently, N.J.A.C. 10:133J-3.1(a) through (j) is recodified.

The Division proposes adding the word "representative" after "Division" to recodified N.J.A.C. 10:133J-3.1(b), (f), (f)1, (f)2, (h)3 and (k) to clarify that there is an individual responsible for the stated activities.

The Division proposes, at recodified N.J.A.C. 10:133J-3.1(g) to delete the words "individual who is not the" before "Division representative" and to add the words "who is not assigned" to clarify that it is a Division representative who witnesses the surrender.

The Division proposes correcting the cross-references in the recodified N.J.A.C. 10:133J-3.1(h)3, (j) and (k).

The Division proposes amending recodified N.J.A.C. 10:133J-3.1(j) by changing the word "in," which follows the word "observations," to the word "during" because it better describes the situation.

The Division proposes adding the word "representative" after "Division" in N.J.A.C. 10:133J-3.2(a), (b), (c) and (d) to clarify that there is an individual responsible for the stated activities.

The Division proposes replacing the word "or" with "and" between "possible" and "necessary" in N.J.A.C. 10:133J-3.2(c) to clarify that the Division will obtain certain documentation when it is both possible and necessary to obtain the documentation.

The Division proposes, at N.J.A.C. 10:133J-3.2(d), to make a grammatical correction by changing the word "Division" before "Adoption Registry" to "Division’s."

The Division proposes adding, to N.J.A.C. 10:133J-3.3, the statutory reference N.J.S.A. 9:3-41. The Division is also proposing to amend the rules to state that a surrender executed in a foreign country, as well as in any other state, currently in the rule, will be given full faith and credit by the Division if the procedures compiled with that state’s or country’s applicable standards and regulations. The Division is further proposing adding that the surrender be taken more than 72 hours after the birth of the child. These additions are pursuant to N.J.S.A. 9:3-41.

The Division proposes repeating subchapter 4, because information about involuntary termination of parental rights is now included in N.J.A.C. 10:133J-2.1 as proposed herein.

A summary of the rules proposed for readoption with amendments follows:

Recodified N.J.A.C. 10:133J-1.1 states the purpose of the chapter.

Recodified N.J.A.C. 10:133J-1.2 establishes the scope of the chapter.

Recodified N.J.A.C. 10:133J-1.3 references the definitions used in the chapter and adds definitions of two words used in this chapter.

Proposed N.J.A.C. 10:133J-2.1 references the requirements for filing for termination of parental rights.

Proposed N.J.A.C. 10:133J-2.2 references the statutory exceptions to the requirements to file for termination of parental rights, states that exceptions must be made on a case-by-case basis and gives a list of factors that may be considered in the decision making process. The list is not all-inclusive.

Proposed N.J.A.C. 10:133J-3.1 states the Division responsibilities related to surrenders of parental rights.

Proposed N.J.A.C. 10:133J-3.2 states additional procedures that the Division must follow in conjunction with surrenders of parental rights.

Proposed N.J.A.C. 10:133J-3.3 states the circumstances under which the Division gives full faith and credit to surrenders executed in another state or country.

Social Impact

In November 2001, the Division’s caseload included a total of 51,337 children. Of this number, 10,345 children were in substitute care. It is on behalf of the children in substitute care that the Division is required to apply these rules about termination of parental rights and the exceptions to those requirements.

Each of these children, his or her parents, and the child’s out-of-home placement provider, adoptive parent, or relative providing care for the child may be affected by the readoption of these rules, depending upon the individual circumstances of each case. These rules allow those individuals to know what the termination of parental rights requirements are and what the exceptions to those requirements are.

In calendar year 2000, the Division accepted surrenders on behalf of 21 children and filed for termination of parental rights on behalf of 1,252 children; termination of parental rights was ordered by the court on behalf of 1336 children. The numbers of court orders include cases filed before the year 2000.

The projected reaction to these rules is positive because the rules were initially developed with the input of individuals who represented a wide array of interested persons and organizations. In addition, these proposed rules were developed with an ASFA Rule Advisory Group which also represented a wide array of interested persons and organizations.

Economic Impact

A parent is liable for the full costs of maintenance of the child incurred by the Division in accordance with N.J.S.A. 30:4C-29.1. The support obligations of the parent are not altered by these rules except that they transfer to the new parent following the adoption of the child. A parent who contests an involuntary termination of parental rights action by the Division will have an attorney appointed by the court, if the parent is unable to afford his or her own attorney.

The Division does not expect a great change in expenses from the readoption of these rules. There are no new requirements on Division operations that would require additional capital improvements or expenditures for staff or equipment on the part of the Division or any individual. Collateral costs, such as fees for legal counsel through the Office of the Attorney General and fees for professional evaluations and reports are expected to remain unchanged.

The readoption of these rules with amendments brings the rules concerning termination of parental rights into compliance with 42 U.S.C. §675 (5) (E) as amended by the Federal Adoption and Safe Families Act of 1997 (ASFA). Title IV-E of the Social Security Act is the source of Federal funding for child welfare services. New Jersey was appropriated $83,291,000 for Title IV-E in fiscal year 2002.

Federal Standards Statement

N.J.A.C. 10:133J contains subject matter governed by Federal law, specifically 42 U.S.C. §675 (5) (E) which sets forth the requirements, and the exceptions to those requirements, for states to file to terminate parental rights of a child’s parents. N.J.A.C. 10:133J helps the Division to meet and not exceed the requirements contained in Federal law.

Jobs Impact

The Division does not expect that the rules proposed for readoption with amendments will result in the generation or loss of any jobs.

Agriculture Industry Impact

The rules proposed for readoption with amendments have no impact on the agriculture industry.

Regulatory Flexibility Statement

Neither the Division, its applicants, clients, persons referred for services nor persons making referrals to the Division are considered a small business under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. The rules proposed for readoption with amendments do not impose recordkeeping, reporting or compliance requirements on small businesses. The rules states the procedures under which the Division considers terminating parental rights. Therefore, a regulatory flexibility analysis is not required.

Smart Growth Impact

The Division does not anticipate that the proposed readoption with amendments will have any impact on the achievement of Smart Growth or the implementation of the State Development and Redevelopment Plan.

Full text of the proposed readoption follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):