Ex- spouse not entitled to life insurance policy Hadfield v. Prudential Insurance Company,

Ex- spouse not entitled to life insurance policy

APPROVED FOR PUBLICATION June 16, 2009 APPELLATE DIVISION

RONALD HADFIELD and SONIA

E. HADFIELD, Individually and

on behalf of the ESTATE OF

RYAN RONALD HADFIELD, Deceased,

                  Plaintiffs-Respondents,

v.

THE PRUDENTIAL INSURANCE COMPANY,

                  Defendant,

and

ROSE ANN LILLO,

                  Defendant-Appellant.

____________________________________

June 16, 2009

                  Argued May 19, 2009 - Decided

                  Before Judges Wefing, Parker and LeWinn.

                  408 N.J. Super. 4

On appeal from Superior Court of New Jersey,

                  Law Division, Middlesex County, Docket No. L-6184-06.

                  SUPERIOR COURT OF NEW JERSEY

                                                               APPELLATE DIVISION

                                                               DOCKET NO.  A-5140-07T1

                  The opinion of the court was delivered by

WEFING, P.J.A.D.

         Defendant Rose Ann Lillo appeals from orders entered by the trial court denying her motion for summary judgment and entering summary judgment in favor of plaintiffs and denying her subsequent motion for reconsideration.  After reviewing the record in light of the contentions advanced on appeal, we affirm.

         Plaintiffs are Ronald Hadfield and Sonia E. Hadfield, parents of Ryan Hadfield, now deceased.  Ryan was employed as a detective with the Hudson County Prosecutor's Office and as such was a member of the Police and Firemen's Retirement System ("PFRS"). As a member, he was insured under a group life insurance policy issued by defendant Prudential Insurance Company of America ("Prudential").  In his initial enrollment application dated November 5, 1999, he named his sister, Shelby Strassheim, as the beneficiary of this policy.  

         In November 2002, Ryan married defendant, and in February 2003, he named her as the beneficiary of his group life insurance.  He left his sister as the contingent beneficiary.  Defendant also had life insurance, and she named Ryan as the beneficiary under her policy.  

         In December 2003, defendant, acting pro se, filed a complaint for divorce.  Ryan did not contest the matter, and a judgment of divorce was entered on April 13, 2004.  The judgment contains the handwritten notation, "Plaintiff's waiving alimony permanently."  

         Ryan died on March 15, 2006, not having changed the beneficiary designation on his life insurance policy.  Defendant, who by this time had remarried, claimed she was entitled to the proceeds. She contended that her divorce from Ryan had been amicable and that they had agreed that each would maintain the other as the beneficiary on their respective life insurance policies until either married, in which event the new spouse would be named as the beneficiary. Plaintiffs disputed that assertion. They said that Ryan had in fact tried to remove defendant as his beneficiary and replace her with his sister but had completed the forms incorrectly.  Prudential deposited the disputed funds into court, and the parties litigated their claims.  

         After a period of discovery, the parties filed cross- motions for summary judgment, plaintiffs arguing that they should prevail under N.J.S.A.3B:3-14, and defendant contending the statute was inapplicable.  The trial court found in plaintiffs' favor and this appeal followed.

         At the time defendant and Ryan were married and were divorced, N.J.S.A.3B:3-14 provided in pertinent part:

If after having executed a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any dispositions or appointment of property made by the will to the former spouse . . . unless the will expressly provides otherwise.

The Legislature amended this statute, effective February 27, 2005, so that it now provides in pertinent part:

Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals . . . a divorce or annulment

. . . revokes any revocable . . . dispositions . . . made by a divorced individual to his former spouse in a governing instrument . . . .

. . . .

In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse . . . disclaimed all provisions revoked by this section . . . . 

At the same time, the Legislature amended the definition of a governing instrument contained in N.J.S.A.3B:1-1 to include a life insurance policy.  The Senate Judiciary Committee Statement explained that the amendment to N.J.S.A.3B:3-14 would "revoke 

. . . non-probate transfers occurring by reason of the decedent's death to the former spouse."  L.2004, c.132 (Statement by the Senate Judiciary Committee).  

         Defendant presents several arguments in support of her position that N.J.S.A.3B:3-14 does not control the disposition of these insurance proceeds. She first contends that the statute is wholly inapplicable; she asserts that the governing statutes are those controlling PFRS, N.J.S.A.43:16A-1 to -68.  We disagree.

         N.J.S.A.3B:3-14 does not contain any language, which would limit its scope in such a manner; nor does N.J.S.A.3B:1-1 exclude from the definition of "governing instrument" a policy issued under PFRS.  In addition, nothing within N.J.S.A.43:16A-1 to -68 indicates a legislative intent to treat a PFRS group policy in a manner different than any other such policies.  We can perceive no reason in logic or policy, which would warrant exempting a PFRS policy from N.J.S.A.3B:1-1.

         Defendant also contends that N.J.S.A.3B:3-14 in its present formulation does not apply to this matter because, although in effect on the date of Ryan's death, it was not in effect on the date of their divorce.  Again, we do not agree.

         Our research has not disclosed a reported case, which has addressed this precise question.  In our judgment, In re Will of Reilly, 201 N.J. Super.306 (App. Div. 1985), provides guidance.  

         The Reillycase concerned a will that was executed by Bernard J. Reilly on July 9, 1976, in which he left his entire estate to his fiancée, Eileen Budnik. He married Ms. Budnik the following day, July 10, 1976.  That marriage was ultimately annulled on March 23, 1978, and Reilly died some five years later, in 1983, without having changed his will.  Id.at 308-09.  N.J.S.A.3B:3-14, originally affecting only wills, came into effect in 1982, but another provision within the probate statutes stated that N.J.S.A.3B in its entirety applied to testator deaths occurring after September 1, 1978.  Reilly, supra, 201 N.J. Super.at 311.  Thus, a similar situation to this case was presented: a will naming a former spouse as a beneficiary remained unchanged after an annulment; the annulment occurred before the statute’s effective date and the testator's death occurred after the effective date.    

         The former spouse in Reilly, seeking to take under her annulled ex-husband’s will, argued that N.J.S.A.3B:3-14 did not apply because the marriage was annulled before the effective date of that statute.  Reilly, supra, 201 N.J. Super.at 309.    

         This court ruled that N.J.S.A.3B:3-14 applied despite the fact that the annulment predated the effective date of the statute.  This court held that Reilly's will in favor of Budnik had been revoked by operation of law.  Reilly, supra, 201 N.J. Super.at 312.

         Other jurisdictions have also ruled in this manner.  This court in Reillycited to the Virginia Supreme Court, which held that Virginia’s revocation statute applied to divorces that occurred before the effective date of the revocation statute where the death occurred after the effective date.  Papen v. Papen, 224 S.E.2d 153, 155 (Va. 1976).  The Papencourt noted that this application did not present a problem of retroactivity, since wills are ambulatory and thus do not afford a vested right to a party named.  Ibid. That same logic applies to this case as well; defendant had no vested right in the life insurance policy since Ryan could have validly changed his beneficiary at any time prior to his death. 

The New Hampshire Supreme Court in In re Estate of Sharek, 930 A.2d 388 (N.H. 2007), also applied a revocation statute in an analogous situation.  In that case, Robert Sharek married Georgette Sharek on July 1, 1963.  He executed a will on August 24, 1982, naming her as beneficiary.  They divorced on April 20, 1983.  He died on August 12, 2005, without having executed a new will. New Hampshire's statute, enacted in 1998, is substantially similar to New Jersey's.  Relying in part on Reilly,supra, the New Hampshire Supreme Court ruled that his will had been revoked by operation of law.  Sharek,supra, 930 A.2d at 391-92.  

We recognize that not all courts have come to a similar conclusion.  The Nevada Supreme Court, also dealing with the same issue, held that the statute could not be applied to wills where the divorce occurred before the statute's effective date even though the death occurred after that date. De Mars v. Slama, 540 P.2d 119, 120 (Nev. 1975).  

         We think the better reasoned approach is that utilized in Reilly, supra, Papen, supra, andSharek, supra.  Likewise, we think that same logic also applies to the present case, where the issue concerns a life insurance policy rather than a will.  Just as with a will, this life insurance policy allowed Ryan Hadfield to change the beneficiary at any time, and thus defendant, contrary to her argument, did not have a vested right to the policy proceeds.  Because she has no vested right, it is not an improper retroactive application of that statute for this court to hold that the amended N.J.S.A.3B:3-14 applies to this life insurance policy.

         The order entered by the trial court merely granted plaintiffs' motion for summary judgment; it did not address to whom the life insurance proceeds should be payable, i.e., to Ryan's estate, or to his sister, whom he had named as the contingent beneficiary.  We have noted the language in the statute, to the effect that the matter is treated as if the former spouse had disclaimed all interest.  That question has not been raised before us, and we express no opinion on the matter.

         The order under review is affirmed.

                       

No TRO if no fee of harm J.L., v. E.A.J.,

No TRO if no fee of harm

J.L.,
     

v. E.A.J.,

RECORD IMPOUNDED

                 NOT FOR PUBLICATION WITHOUT THE

               APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2421-16T1

     Defendant-Appellant.
______________________________

Submitted1 March 20, 2018 – Decided April 6, 2018

          Before Judges Fasciale and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1186-17.

          Leonard S. Miller, attorney for appellant.

          Respondent has not filed a brief.
PER CURIAM

Defendant appeals from a January 12, 2017 final restraining order (FRO) entered in favor of plaintiff, his former girlfriend, pursuant to the Prevention of Domestic Violence Act (PDVA),

1waived it.

The matter was originally listed for oral argument, but counsel

N.J.S.A. 2C:25-17 to -35. Defendant argues plaintiff failed to produce sufficient proof for the entry of the FRO, and the judge pressured him to consent to the entry of the FRO in exchange for a lower fine. Defendant did not consent, however, and maintained at the FRO hearing that there was no basis for the entry of an FRO against him. We reverse.
In a domestic violence case, we accord substantial deference to a Family Part judge's findings, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We accord that deference especially when much of the evidence is testimonial and implicates credibility determinations. Id. at 412. We do not disturb the judge's factual findings and legal conclusions, unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).
When determining whether to grant an FRO pursuant to the PDVA, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). Under the first Silver prong, "the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or

2

A-2421-16T1

more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125.
Plaintiff alleged that defendant harassed her.2 She worked for a fire department, and defendant allegedly sent her colleagues a text message, which purported to be a screenshot of a conversation he had with plaintiff about plaintiff drinking alcohol on a fire truck. Plaintiff admitted at the FRO hearing that she had been drinking on the truck. Defendant testified at the FRO hearing that he sent the message to protect plaintiff from harming herself.
A person is guilty of harassment where, "with purpose to harass another," he or she:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4(a)-(c).]

2

In the temporary restraining order, plaintiff also checked-off the criminal coercion box. But the judge made no findings about criminal coercion.

3

A-2421-16T1

Harassment requires that the defendant act with the purpose of harassing the victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon sense and experience" when determining a defendant's intent. State v. Hoffman, 149 N.J. 564, 577 (1997).
The judge made inconsistent findings as to the predicate act of harassment. In concluding that defendant harassed plaintiff, the judge found "the intentions of [defendant] were good, but the result resulted in an uncalled-for confrontation with [plaintiff's work colleagues]." Although the judge found defendant's intentions "good," he found that the text message caused annoyance and alarm, and that defendant acted "with purpose to harass" plaintiff. The judge also focused on plaintiff's perception of defendant's purpose for sending the message. Even if the judge's finding was sufficient to establish the predicate act of harassment, which is not the case, the judge failed to make any findings as to prong two of Silver.
Under the second Silver prong, a judge must also determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Silver, 387 N.J. Super. at 127. Under that determination, there must be a finding that "relief is necessary to prevent further abuse." J.D., 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29(b)). It is well established that the commission of one of the predicate acts of domestic

4

A-2421-16T1

violence set forth in N.J.S.A. 2C:25-19(a) does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Although that determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.
As to prong two, plaintiff did not testify that she feared defendant, felt in danger of immediate harm, or anything to that effect. Instead, plaintiff testified at the FRO hearing that "I'm just really mad at him." The judge made no findings as to the second Silver prong.
Finally, the judge improperly attempted to negotiate with defendant that if he consented to the entry of an FRO, the judge would impose a lower fine. After defendant told the judge he wanted nothing to do with plaintiff, the following exchange took place:
[Judge:] [W]ould you consent . . . [to the FRO?] If I make a ruling without a consent, I have to impose a fine between [$]50 and $500. Usually, I impose something within the [$]375- to[$]500 range.
....

5

A-2421-16T1

[If you consent,] I would consider this as a settlement and impose only the minimum $50 fine.
....
[Defendant:] When you say "consent[,]" I'm not sure what that –
[Judge:] So that you have no contact [with plaintiff] . . . .
....
I will find that there is a voluntary [permanent FRO].
[Defendant:] Well, wait. I'm sorry, sir. When you say permanent [FRO], . . . I don't want that on my record . . . .
[Judge:] The only way it would not go on your record is if I find [that] there's no basis for it.
....
You're not consenting to [the FRO] then? [Defendant:] No, sir. I can't.
It is improper for a judge to seek defendant's consent to the entry of an FRO in exchange for a lower fine.
Reversed.

3B :12A-4 Rights, responsibilities, authority of kinship legal guardian.

3B :12A-4  Rights, responsibilities, authority of kinship legal guardian.

   4. a. (1) Except as provided in paragraph (2) of this subsection, a kinship legal guardian shall have the same rights, responsibilities and authority relating to the child as a birth parent, including, but not limited to: making decisions concerning the child's care and well-being; consenting to routine and emergency medical and mental health needs; arranging and consenting to educational plans for the child; applying for financial assistance and social services for which the child is eligible; applying for a motor vehicle operator's license; applying for admission to college; responsibility for activities necessary to ensure the child's safety, permanency and well-being; and ensuring the maintenance and protection of the child.

   (2)   A kinship legal guardian may not consent to the adoption of the child or a name change for the child.  The birth parent of the child shall retain the authority to consent to the adoption of the child or a name change for the child.

   (3)   The birth parent of the child shall retain the obligation to pay child support.

   (4)   The birth parent of the child shall retain the right to visitation or parenting time with the child, as determined by the court.

   (5)   The appointment of a kinship legal guardian does not limit or terminate any rights or benefits derived from the child's parents, including, but not limited to, those relating to inheritance or eligibility for benefits or insurance.

   (6)   Kinship legal guardianship terminates when the child reaches 18 years of age or when the child is no longer continuously enrolled in a secondary education program, whichever event occurs later, or when kinship legal guardianship is otherwise terminated.

   b.   There shall be no filing fee charged for kinship legal guardianship complaints or motions in the court.

   c.   For the purposes of P.L.2001, c.250 (C.3B:12A-1 et al.), a kinship legal guardian shall have the same meaning as the term "legal guardian" as defined in 42 U.S.C. s. 675, except that the process, procedure and ruling for kinship legal guardianship shall be apart from, and shall not amend, supplant or contravene, the provisions of Chapter 12 of Title 3B of the New Jersey Statutes.

   d. (1) The provisions of P.L.2001, c.250 (C.3B:12A-1 et al.) shall not be construed to grant or confer upon any person appointed kinship legal guardian of a child any of the additional rights or privileges accorded to persons appointed guardian of a minor's person or estate by a Surrogate or the Superior Court, Chancery Division, Probate Part pursuant to the provisions of Chapter 12 of Title 3B of the New Jersey Statutes.

   (2)   The provisions of P.L.2001, c.250 (C.3B:12A-1 et al.) shall not be construed to preclude an application to the court for guardianship of the person or estate of a minor by any person appointed kinship legal guardian of a child.

   L.2001,c.250,s.4.

3B :12A-3  Jurisdiction, venue.

   3.   The Superior Court, Chancery Division, Family Part shall have jurisdiction under sections 1 through 6 of P.L.2001, c.250 (C.3B:12A-1 et seq.).  Venue of a kinship legal guardianship action shall be determined in accordance with the applicable Rules of Court.

3B :12A-2 Definitions relative to kinship legal guardianship.

3B :12A-2  Definitions relative to kinship legal guardianship.

   2.   As used in sections 1 through 6 of P.L.2001, c.250 (C.3B:12A-1 et seq.):

   "Caregiver" means a person over 18 years of age, other than a child's parent, who has a kinship relationship with the child and has been providing care and support for the child, while the child has been residing in the caregiver's home, for either the last 12 consecutive months or 15 of the last 22 months.  "Caregiver" includes a resource family parent as defined in section 1 of P.L.1962, c.136 (C.30:4C-26.4).

   "Child" means a person under 18 years of age, except as otherwise provided in P.L.2001, c.250 (C.3B:12A-1et al.).

   "Commissioner" means the Commissioner of Children and Families.

   "Court" means the Superior Court, Chancery Division, Family Part.

   "Department" means the Department of Children and Families.

   "Division" means the Division of Child Protection and Permanency in the Department of Children and Families. 

   "Family friend" means a person who is connected to a child or the child's parent by an established positive psychological or emotional relationship that is not a biological or legal relationship.

   "Home review" means the basic review of the information provided by the petitioner and a visit to the petitioner's home where the child will continue to reside, in accordance with the provisions of P.L.2001, c.250 (C.3B:12A-1 et al.) and pursuant to regulations adopted by the commissioner.

   "Kinship caregiver assessment" means a written report prepared in accordance with the provisions of P.L.2001, c.250 (C.3B:12A-1 et al.) and pursuant to regulations adopted by the commissioner.

   "Kinship legal guardian" means a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court pursuant to P.L.2001, c.250 (C.3B:12A-1 et al.).  A kinship legal guardian shall be responsible for the care and protection of the child and for providing for the child's health, education and maintenance.

   "Kinship relationship" means a family friend or a person with a biological or legal relationship with the child.

   "Parental incapacity" means incapacity of such a serious nature as to demonstrate that the parent is unable, unavailable, or unwilling to perform the regular and expected functions of care and support of the child.

   L.2001, c.250, s.2; amended 2006, c.47, s.31; 2012, c.16, s.13.

42 U.S. Code § 675 - Definitions

42 U.S. Code § 675 - Definitions As used in this part or part B of this subchapter: (1) The term “case plan” means a written document which meets the requirements of section 675a of this title and includes at least the following: (A) A description of the type of home or institution in which a child is to be placed, including a discussion of the safety and appropriateness of the placement and how the agency which is responsible for the child plans to carry out the voluntary placement agreement entered into or judicial determination made with respect to the child in accordance with section 672(a)(1) [1] of this title. (B) A plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan. With respect to a child who has attained 14 years of age, the plan developed for the child in accordance with this paragraph, and any revision or addition to the plan, shall be developed in consultation with the child and, at the option of the child, with up to 2 members of the case planning team who are chosen by the child and who are not a foster parent of, or caseworker for, the child. A State may reject an individual selected by a child to be a member of the case planning team at any time if the State has good cause to believe that the individual would not act in the best interests of the child. One individual selected by a child to be a member of the child’s case planning team may be designated to be the child’s advisor and, as necessary, advocate, with respect to the application of the reasonable and prudent parent standard to the child. (C) The health and education records of the child, including the most recent information available regarding— (i) the names and addresses of the child’s health and educational providers; (ii) the child’s grade level performance; (iii) the child’s school record; (iv) a record of the child’s immunizations; (v) the child’s known medical problems; (vi) the child’s medications; and (vii) any other relevant health and education information concerning the child determined to be appropriate by the State agency. (D) For a child who has attained 14 years of age or over, a written description of the programs and services which will help such child prepare for the transition from foster care to a successful adulthood. (E) In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems to facilitate orderly and timely in-State and interstate placements. (F) In the case of a child with respect to whom the permanency plan is placement with a relative and receipt of kinship guardianship assistance payments under section 673(d) of this title, a description of— (i) the steps that the agency has taken to determine that it is not appropriate for the child to be returned home or adopted; (ii) the reasons for any separation of siblings during placement; (iii) the reasons why a permanent placement with a fit and willing relative through a kinship guardianship assistance arrangement is in the child’s best interests; (iv) the ways in which the child meets the eligibility requirements for a kinship guardianship assistance payment; (v) the efforts the agency has made to discuss adoption by the child’s relative foster parent as a more permanent alternative to legal guardianship and, in the case of a relative foster parent who has chosen not to pursue adoption, documentation of the reasons therefor; and (vi) the efforts made by the State agency to discuss with the child’s parent or parents the kinship guardianship assistance arrangement, or the reasons why the efforts were not made. (G) A plan for ensuring the educational stability of the child while in foster care, including— (i) assurances that each placement of the child in foster care takes into account the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement; and (ii) (I) an assurance that the State agency has coordinated with appropriate local educational agencies (as defined under section 7801 of title 20) to ensure that the child remains in the school in which the child is enrolled at the time of each placement; or (II) if remaining in such school is not in the best interests of the child, assurances by the State agency and the local educational agencies to provide immediate and appropriate enrollment in a new school, with all of the educational records of the child provided to the school. (2) The term “parents” means biological or adoptive parents or legal guardians, as determined by applicable State law. (3) The term “adoption assistance agreement” means a written agreement, binding on the parties to the agreement, between the State agency, other relevant agencies, and the prospective adoptive parents of a minor child which at a minimum (A) specifies the nature and amount of any payments, services, and assistance to be provided under such agreement, and (B) stipulates that the agreement shall remain in effect regardless of the State of which the adoptive parents are residents at any given time. The agreement shall contain provisions for the protection (under an interstate compact approved by the Secretary or otherwise) of the interests of the child in cases where the adoptive parents and child move to another State while the agreement is effective. (4) (A) The term “foster care maintenance payments” means payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, reasonable travel to the child’s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. In the case of institutional care, such term shall include the reasonable costs of administration and operation of such institution as are necessarily required to provide the items described in the preceding sentence. (B) In cases where— (i) a child placed in a foster family home or child-care institution is the parent of a son or daughter who is in the same home or institution, and (ii) payments described in subparagraph (A) are being made under this part with respect to such child, the foster care maintenance payments made with respect to such child as otherwise determined under subparagraph (A) shall also include such amounts as may be necessary to cover the cost of the items described in that subparagraph with respect to such son or daughter. (5) The term “case review system” means a procedure for assuring that— (A) each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child, which— (i) if the child has been placed in a foster family home or child-care institution a substantial distance from the home of the parents of the child, or in a State different from the State in which such home is located, sets forth the reasons why such placement is in the best interests of the child, and (ii) if the child has been placed in foster care outside the State in which the home of the parents of the child is located, requires that, periodically, but not less frequently than every 6 months, a caseworker on the staff of the State agency of the State in which the home of the parents of the child is located, of the State in which the child has been placed, or of a private agency under contract with either such State, visit such child in such home or institution and submit a report on such visit to the State agency of the State in which the home of the parents of the child is located,[2] (B) the status of each child is reviewed periodically but no less frequently than once every six months by either a court or by administrative review (as defined in paragraph (6)) in order to determine the safety of the child, the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and to project a likely date by which the child may be returned to and safely maintained in the home or placed for adoption or legal guardianship, and, for a child for whom another planned permanent living arrangement has been determined as the permanency plan, the steps the State agency is taking to ensure the child’s foster family home or child care institution is following the reasonable and prudent parent standard and to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities (including by consulting with the child in an age-appropriate manner about the opportunities of the child to participate in the activities); (C) with respect to each such child, (i) procedural safeguards will be applied, among other things, to assure each child in foster care under the supervision of the State of a permanency hearing to be held, in a family or juvenile court or another court (including a tribal court) of competent jurisdiction, or by an administrative body appointed or approved by the court, no later than 12 months after the date the child is considered to have entered foster care (as determined under subparagraph (F)) (and not less frequently than every 12 months thereafter during the continuation of foster care), which hearing shall determine the permanency plan for the child that includes whether, and if applicable when, the child will be returned to the parent, placed for adoption and the State will file a petition for termination of parental rights, or referred for legal guardianship, or only in the case of a child who has attained 16 years of age (in cases where the State agency has documented to the State court a compelling reason for determining, as of the date of the hearing, that it would not be in the best interests of the child to return home, be referred for termination of parental rights, or be placed for adoption, with a fit and willing relative, or with a legal guardian) placed in another planned permanent living arrangement, subject to section 675a(a) of this title, in the case of a child who will not be returned to the parent, the hearing shall consider in-State and out-of-State placement options, and, in the case of a child described in subparagraph (A)(ii), the hearing shall determine whether the out-of-State placement continues to be appropriate and in the best interests of the child, and, in the case of a child who has attained age 14, the services needed to assist the child to make the transition from foster care to a successful adulthood; (ii) procedural safeguards shall be applied with respect to parental rights pertaining to the removal of the child from the home of his parents, to a change in the child’s placement, and to any determination affecting visitation privileges of parents; (iii) procedural safeguards shall be applied to assure that in any permanency hearing held with respect to the child, including any hearing regarding the transition of the child from foster care to a successful adulthood, the court or administrative body conducting the hearing consults, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child; and (iv) if a child has attained 14 years of age, the permanency plan developed for the child, and any revision or addition to the plan, shall be developed in consultation with the child and, at the option of the child, with not more than 2 members of the permanency planning team who are selected by the child and who are not a foster parent of, or caseworker for, the child, except that the State may reject an individual so selected by the child if the State has good cause to believe that the individual would not act in the best interests of the child, and 1 individual so selected by the child may be designated to be the child’s advisor and, as necessary, advocate, with respect to the application of the reasonable and prudent standard to the child; (D) a child’s health and education record (as described in paragraph (1)(A)) is reviewed and updated, and a copy of the record is supplied to the foster parent or foster care provider with whom the child is placed, at the time of each placement of the child in foster care, and is supplied to the child at no cost at the time the child leaves foster care if the child is leaving foster care by reason of having attained the age of majority under State law; (E) in the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, or, if a court of competent jurisdiction has determined a child to be an abandoned infant (as defined under State law) or has made a determination that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the State shall file a petition to terminate the parental rights of the child’s parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition), and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless— (i) at the option of the State, the child is being cared for by a relative; (ii) a State agency has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child; or (iii) the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child’s home, if reasonable efforts of the type described in section 671(a)(15)(B)(ii) of this title are required to be made with respect to the child; (F) a child shall be considered to have entered foster care on the earlier of— (i) the date of the first judicial finding that the child has been subjected to child abuse or neglect; or (ii) the date that is 60 days after the date on which the child is removed from the home; (G) the foster parents (if any) of a child and any preadoptive parent or relative providing care for the child are provided with notice of, and a right to be heard in, any proceeding to be held with respect to the child, except that this subparagraph shall not be construed to require that any foster parent, preadoptive parent, or relative providing care for the child be made a party to such a proceeding solely on the basis of such notice and right to be heard; (H) during the 90-day period immediately prior to the date on which the child will attain 18 years of age, or such greater age as the State may elect under paragraph (8)(B)(iii), whether during that period foster care maintenance payments are being made on the child’s behalf or the child is receiving benefits or services under section 677 of this title, a caseworker on the staff of the State agency, and, as appropriate, other representatives of the child provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child, includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services, includes information about the importance of designating another individual to make health care treatment decisions on behalf of the child if the child becomes unable to participate in such decisions and the child does not have, or does not want, a relative who would otherwise be authorized under State law to make such decisions, and provides the child with the option to execute a health care power of attorney, health care proxy, or other similar document recognized under State law, and is as detailed as the child may elect; and (I) each child in foster care under the responsibility of the State who has attained 14 years of age receives without cost a copy of any consumer report (as defined in section 1681a(d) of title 15) pertaining to the child each year until the child is discharged from care, receives assistance (including, when feasible, from any court-appointed advocate for the child) in interpreting and resolving any inaccuracies in the report, and, if the child is leaving foster care by reason of having attained 18 years of age or such greater age as the State has elected under paragraph (8), unless the child has been in foster care for less than 6 months, is not discharged from care without being provided with (if the child is eligible to receive such document) an official or certified copy of the United States birth certificate of the child, a social security card issued by the Commissioner of Social Security, health insurance information, a copy of the child’s medical records, and a driver’s license or identification card issued by a State in accordance with the requirements of section 202 of the REAL ID Act of 2005, and any official documentation necessary to prove that the child was previously in foster care. (6) The term “administrative review” means a review open to the participation of the parents of the child, conducted by a panel of appropriate persons at least one of whom is not responsible for the case management of, or the delivery of services to, either the child or the parents who are the subject of the review. (7) The term “legal guardianship” means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decisionmaking. The term “legal guardian” means the caretaker in such a relationship. (8) (A) Subject to subparagraph (B), the term “child” means an individual who has not attained 18 years of age. (B) At the option of a State, the term shall include an individual— (i) (I) who is in foster care under the responsibility of the State; (II) with respect to whom an adoption assistance agreement is in effect under section 673 of this title if the child had attained 16 years of age before the agreement became effective; or (III) with respect to whom a kinship guardianship assistance agreement is in effect under section 673(d) of this title if the child had attained 16 years of age before the agreement became effective; (ii) who has attained 18 years of age; (iii) who has not attained 19, 20, or 21 years of age, as the State may elect; and (iv) who is— (I) completing secondary education or a program leading to an equivalent credential; (II) enrolled in an institution which provides post-secondary or vocational education; (III) participating in a program or activity designed to promote, or remove barriers to, employment; (IV) employed for at least 80 hours per month; or (V) incapable of doing any of the activities described in subclauses (I) through (IV) due to a medical condition, which incapability is supported by regularly updated information in the case plan of the child. (9) The term “sex trafficking victim” means a victim of— (A) sex trafficking (as defined in section 7102(10) of title 22); or (B) a severe form of trafficking in persons described in section 7102(9)(A) of title 22. (10) (A) The term “reasonable and prudent parent standard” means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the State to participate in extracurricular, enrichment, cultural, and social activities. (B) For purposes of subparagraph (A), the term “caregiver” means a foster parent with whom a child in foster care has been placed or a designated official for a child care institution in which a child in foster care has been placed. (11) (A) The term “age or developmentally-appropriate” means— (i) activities or items that are generally accepted as suitable for children of the same chronological age or level of maturity or that are determined to be developmentally-appropriate for a child, based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group; and (ii) in the case of a specific child, activities or items that are suitable for the child based on the developmental stages attained by the child with respect to the cognitive, emotional, physical, and behavioral capacities of the child. (B) In the event that any age-related activities have implications relative to the academic curriculum of a child, nothing in this part or part B shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State or local educational agency, or the specific instructional content, academic achievement standards and assessments, curriculum, or program of instruction of a school. (12) The term “sibling” means an individual who satisfies at least one of the following conditions with respect to a child: (A) The individual is considered by State law to be a sibling of the child. (B) The individual would have been considered a sibling of the child under State law but for a termination or other disruption of parental rights, such as the death of a parent. (Aug. 14, 1935, ch. 531, title IV, § 475, as added and amended Pub. L. 96–272, title I, §§ 101(a)(1), 102(a)(4), June 17, 1980, 94 Stat. 510, 514; Pub. L. 99–272, title XII, §§ 12305(b)(2), 12307(b), Apr. 7, 1986, 100 Stat. 293, 296; Pub. L. 99–514, title XVII, § 1711(c)(6), Oct. 22, 1986, 100 Stat. 2784; Pub. L. 100–203, title IX, § 9133(a), Dec. 22, 1987, 101 Stat. 1330–314; Pub. L. 100–647, title VIII, § 8104(e), Nov. 10, 1988, 102 Stat. 3797; Pub. L. 101–239, title VIII, § 8007(a), (b), Dec. 19, 1989, 103 Stat. 2462; Pub. L. 103–432, title II, §§ 206(a), (b), 209(a), (b), 265(c), Oct. 31, 1994, 108 Stat. 4457, 4459, 4469; Pub. L. 105–89, title I, §§ 101(b), 102(2), 103(a), (b), 104, 107, title III, § 302, Nov. 19, 1997, 111 Stat. 2117, 2118, 2120, 2121, 2128; Pub. L. 109–239, §§ 6–8(a), 11, 12, July 3, 2006, 120 Stat. 512–514; Pub. L. 109–288, § 10, Sept. 28, 2006, 120 Stat. 1255; Pub. L. 110–351, title I, § 101(c)(4), title II, §§ 201(a), 202, 204(a), Oct. 7, 2008, 122 Stat. 3952, 3957, 3959, 3960; Pub. L. 111–148, title II, § 2955(a), Mar. 23, 2010, 124 Stat. 352; Pub. L. 112–34, title I, § 106(a), (b), Sept. 30, 2011, 125 Stat. 377; Pub. L. 113–183, title I, §§ 101(b), 111(a)(1), 112(a)(1), (b)(2)(B), 113(a)–(c), 114(a), title II, § 209(a)(2), Sept. 29, 2014, 128 Stat. 1921, 1923, 1926–1930, 1941; Pub. L. 114–95, title IX, § 9215(qqq)(1), Dec. 10, 2015, 129 Stat. 2189; Pub. L. 115–123, div. E, title VII, §§ 50711(b), 50753(e), Feb. 9, 2018, 132 Stat. 240, 266.) [1]  See References in Text note below. [2]  So in original. Subsequent subpars. enacted or amended with semicolons at end.