On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FL-12-02-06; FL-12-03-06.
The opinion of the court was delivered by: Baxter, J.S.C. (temporarily assigned).
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fuentes and Baxter.
S.F. appeals from a June 12, 2006 order granting Kinship Legal Guardianship (KLG), pursuant to N.J.S.A. 3B:12A-6c, of her two children S.L., born September 29, 2002, and S.L., born November 17, 2003, to their paternal grandparents.*fn1 T.L. is the father of the older son, but the father of the younger son is unknown. T.L. consented on May 4, 2006 to the awarding of KLG to his parents, acknowledging that he could not properly care for his son, and he is therefore not a party to this appeal.
S.F. argues that the court erred in awarding KLG to the paternal grandparents and contends that the evidence did not support a finding by clear and convincing evidence that such a result was warranted. The Law Guardian for both children agrees with the position asserted by S.F. and urges us to remand the matter for additional fact-finding "in light of the confusing and incomplete record developed below," which would afford all parties "an opportunity to provide additional evidence relating to S.F.'s current drug status." We disagree with these contentions, and affirm.
I. The Division of Youth and Family Services (DYFS) first became involved with S.F. more than a decade before these proceedings began. On August 29, 1995, DYFS received a referral indicating that S.F. was addicted to drugs and had been using drugs in front of her two older children, both of whom were then in the custody of their maternal grandmother.*fn2 After receiving the 1995 referral, DYFS offered S.F. substance abuse treatment.*fn3
Less than one year later, on April 30, 1996, DYFS received another referral, again alleging that S.F. was abusing drugs and charging that, by doing so, she had also violated her probation. The referent also claimed that the maternal grandmother was overwhelmed with the responsibilities of caring for S.F.'s two older children; however, no further action was taken by DYFS at that time. On March 10, 2003, when the older son was less than six months old, DYFS received a third referral, this one alleging that S.F. had abandoned the older son on numerous occasions without food or diapers, and left him in the care of a paternal aunt. When DYFS investigated the referral, S.F. acknowledged using drugs and DYFS again referred her to a drug treatment program, this time on an in-patient basis.
DYFS remained concerned about the older son's well-being and filed a complaint for custody, pursuant to N.J.S.A. 9:6-8.21 to -8.73. The requested relief was granted by the court on April 14, 2003. As a result of that order, the older child was placed in the physical custody of his paternal grandparents. When the younger son was born in November 2003, DYFS expressed a heightened concern for his safety because S.F. had admitted using drugs during her pregnancy. S.F. and T.L. signed a fifteen-day consent for placement, and on November 15, 2003, the younger son was also placed with his paternal grandparents.
Three weeks later, on December 8, 2003, the court granted DYFS formal legal custody of the younger son. Because the children were living with their paternal grandparents without the benefit of the permanency that adoption would confer, DYFS was required by the provisions of N.J.S.A. 30:4C-55 to file an action to implement a permanent plan for the child. Pursuant to N.J.S.A. 30:4C-61.2, a compliance review hearing was conducted on February 23, 2006. At the hearing, DYFS announced its intention to convert the then-existing complaint for custody of both boys into a complaint for KLG, and on May 4, 2006, the court granted the motion to amend the complaint charging abuse and neglect to a complaint for KLG, and set the matter down for a hearing on June 12, 2006.
At that hearing, DYFS presented the testimony of Martin Yazgier, the caseworker responsible for providing services to S.F. and her two sons and for monitoring the children's well-being in the care of their paternal grandparents. Yazgier's testimony described S.F.'s history of repeatedly relapsing into substance abuse and how those relapses severely jeopardized the health and safety of her two sons, especially the older son whose autism requires intensive and highly specialized services.
Yazgier explained that although S.F. had attended in-patient drug treatment programs in 2003 and 2004, and had indeed successfully completed both of them, she thereafter relapsed and was referred to other programs. Although S.F. had received treatment at a total of "four or five programs," at the time of the KLG hearing on June 12, 2006, she was not enrolled in any after-care for her drug problem, and had not been involved in any for a considerable period of time. Yazgier described a "continual pattern of relapses" where S.F. will "do well for a few months and then relaps[e]." Despite both children being in placement for several years, he noted that "there still has been no continuous time of drug clearance and . . . no stable housing [and] no stable employment" on the part of S.F. Yazgier also testified that S.F. had been uncooperative in providing the urine drug screens ordered by the court during the May 4, 2006 hearing. Yazgier explained that he went to S.F.'s residence on May 11, 2006 to secure a urine sample, and when no one was home, he left his business card. S.F. never contacted him in response to that visit. Yazgier again went to S.F.'s home on May 16, 2006, and again left his business card when no one answered the door. Two days later on May 17, 2006, a relative answered the door and stated that S.F. was not home and did not know when she would return. Again, Yazgier left his business card.
The next day S.F. contacted Yazgier, and they agreed that he would come to her house on May 19, 2006 for the purpose of serving her with a copy of the KLG complaint and notice of the hearing to be held on June 12, 2006. She answered the door on May 19, 2006 with a quilt on her head, indicating she was very sick and ...