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S.M. v. A.W.

April 17, 1995

S.M., PLAINTIFF-APPELLANT,
v.
A.W., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication April 17, 1995.

Before Judges Pressler, Conley and Newman. The opinion of the court was delivered by Newman, J.s.c. (Temporarily assigned)

The opinion of the court was delivered by: Newman

NEWMAN, J.S.C. (temporarily assigned)

Plaintiff, S.M., the maternal grandmother of L.M., appeals from an order continuing the custody of L.M.'s foster mother, defendant A.W. This appeal raises issues concerning the appropriate standards to be considered by the court in applying a "best interest" test where a grandparent seeks custody of her grandchild in order to reunite with the child and to reunite the child with her own siblings. We are satisfied that the correct standards were not followed and reverse.

The facts are these. L.M. was born on July 4, 1991. Her two brothers, T.M. and J.M., live with plaintiff. At the time of the plenary hearing on October 13, 1993, T.M. was 15, J.M. was 4, L.M. was 2 and plaintiff was 54 years old. Both T.M. and J.M. have lived with plaintiff since their birth. The children's mother, plaintiff's daughter, also lived with the plaintiff, except for a brief period of time when she moved out with L.M. In February, 1992 when L.M. and her mother were living in an apartment, L.M.'s mother left her with a 14 year old babysitter for several days. In the mother's absence, L.M. was burned and hospitalized.

Criminal charges of endangering the welfare of L.M. were brought against her mother. She was convicted, sentenced to 364 days in jail as a condition of a 5 year probation and was incarcerated from sometime in February, 1992 until July, 1992.

DYFS intervened and placed L.M. with Jo Ellen Crawford, whom the grandmother knew. L.M. lived with Ms. Crawford from February, 1992 until July 9, 1992. In July, 1992, defendant, learning of the child through a mutual friend of hers and plaintiff, offered to provide foster care for L.M. DYFS barred plaintiff from having L.M. under her care at the same time that L.M.'s mother lived under the same roof. Plaintiff was put in a position of choosing between her own daughter who had just been released from jail without a place to live and her granddaughter. Satisfied with the temporary provision for L.M. offered by defendant, plaintiff elected to house her own daughter and defendant assumed the care for the granddaughter.

On September 4, 1992, an order for custody was signed by Judge Krafte, placing L.M. with defendant, ostensibly with the mother's consent. L.M. visited with plaintiff and siblings as arranged pursuant to the court order.

On February 19, 1993, L.M.'s mother died of emphysema. On March 1, 1993, plaintiff filed a petition in the Family Part of the Superior Court seeking custody of her granddaughter for the reason that her daughter "just recently passed away and I would like to raise my granddaughter."

A probation investigation was ordered by the court on March 24, 1993 which then provided as well for supervised visitation. Custody was continued with defendant. A diagnostic evaluation was ordered on May 18, 1993. A family services evaluation was prepared. A plenary hearing was held. No expert testimony on psychological bonding was furnished at the hearing.

The family evaluation done by DYFS saw both the grandmother and the foster mother as offering acceptable homes for L.M. The grandmother lived in a six room apartment in a two family house owned by her brother in Paterson. She had worked for the past 6 years in the housekeeping department of Barnet Hospital. She was viewed as a warm and sincere woman, anxious to have her granddaughter returned to her. She received welfare assistance of $322 monthly for L.M.'s brothers. The grandmother believed it essential that the three children be raised together since they are natural brothers and sister. L.M.'s older brother was a student at East Side High School, appeared respectful of his grandmother and a rather intelligent young man. The younger brother was not home at the time of the interview.

Defendant was also interviewed by the evaluator. She owns a small grocery store in Englewood where she also lives in her own home. The child was at defendant's grocery store when the evaluation took place. She acted friendly and appeared to enjoy the activities taking place in the retail establishment. Defendant told the evaluator that when she first spoke to plaintiff, plaintiff did not welcome the responsibility of raising L.M. for the avowed reason that she already had five children and was tired of childrearing. The evaluator also noted a bond between the child and defendant.

The evaluator interviewed Kathryn Brown, the DYFS worker assigned to this matter. She indicated that the foster mother would be receiving $170 per month for L.M. along with a retroactive payment, although no money had been paid to her to date. According to Ms. Brown's supervisor, DYFS did not make a recommendation on custody. Both situations were considered very good and the ...


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