On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FN-07-446-05.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges Axelrad, Payne and Sapp-Peterson.
Defendant, T.M., appeals from the January 30, 2007 Chancery Division, Family Part order awarding Kinship Legal Guardianship (KLG), N.J.S.A. 3B:12A-1 to -7 and N.J.S.A. 30:4C-84 to -92, to L.C., the maternal aunt of his biological son, A.C., and dismissing his counterclaim in which he sought an order directing the Division of Youth and Family Services (Division) to facilitate and pay for his visitation with A.C., who L.C. removed to North Carolina in July 2006 while A.C. and his sibling had been temporarily placed in her custody by the Division. Six months later, the trial court entered an order granting KLG of A.C. to L.C. Although defendant consented to the KLG, he contends that the court should not have awarded KLG to L.C. without first exercising its equitable power to fashion an accompanying visitation component that would have facilitated the exercise of his visitation rights and, in failing to do so, the court effectively terminated his parental rights.*fn1 We affirm the grant of KLG but remand to the trial court for further proceedings, in accordance with N.J.S.A. 9:2-2, to address L.C.'s removal of A.C. to North Carolina.
On February 27, 2005, A.C., who was born to T.M. and M.C. on May 23, 2003, was treated at Jersey City Medical Center for an abrasion on his forehead. L.C. brought A.C. to the hospital and reported that A.C.'s brother told her that A.C. had been injured during a domestic dispute between M.C. and M.C.'s paramour. The hospital social worker contacted the Division, and a caseworker was immediately assigned to investigate the matter. L.C. agreed to care for A.C. and his brother at that time. On March 1, 2005, the Division filed an abuse and neglect complaint and an order to show cause against M.C. The Division alleged that M.C., against whom it had previously investigated abuse and neglect allegations dating back to 1999, physically abused and exposed A.C. and C.S. to domestic violence in the home. The complaint requested that the court give the Division temporary custody of the two children. The court ordered that A.C. and C.S. be made wards of the court and placed under the custody, care, and supervision of the Division.
When the Division filed the initial complaint, M.C. refused to provide the names of the minors' fathers. Through its records, however, the Division learned their names and filed an amended verified abuse and neglect complaint and an order to show cause on June 17, 2005. The amended complaint named T.M. as the father of A.C., and C.S., Sr. as the father of C.S. At the time the amended complaint was filed, the Division could not locate defendant and a search was initiated for him.
On December 7, 2005, the court approved the Division's proposed permanent plan to place A.C. and C.S. in the custody of L.C. because M.C. was unable to care for her children at that time. The order also indicated that the Division was investigating the fathers who had recently come forward.
On April 10, 2006, the court conducted a protective service review, and defendant, for the first time, appeared at the proceeding. He was represented by counsel, who advised the court that defendant wanted custody of A.C. and was willing to undergo a psychological evaluation and attend parenting classes, was employed, and had a furnished apartment. Defense counsel also informed the court that T.M. was one of fourteen children and several of his six sisters had pledged to give him assistance with A.C. A Division caseworker confirmed that defendant had been in contact with L.C., at least by telephone, to maintain contact with A.C. Finally, defense counsel indicated that the Division had not provided any services to defendant, to which the Division responded that defendant had never requested any services. The court directed the Division to provide services and to develop a case plan for defendant.
On July 25, 2006, the court held an emergency hearing. Defendant appeared, along with defense counsel. Defense counsel advised the court of her belief that the "matter is on a downward spiral to the . . . detriment of [her] client and [she thought] . . . the case [had] to be put on the correct path." One of the chief concerns expressed by defense counsel was that defendant had learned that A.C. and his brother had in fact been sent to South Carolina without an interstate [sic], with the custodian who has expressed to my client an intent to move to South Carolina and, therefore, I think, Your Honor, that the entire situation has been very much to the detriment of my client because my client has not been permitted to have me come to court and put his position on the record with reference to these things and, most certainly, to object to decisions being made in this case without his participation and, also, with reference to the sending of the children out of state without the court's knowledge or approval, and it has been my experience, and I have been doing these cases for a lot of year[s], that when the children go out of the . . . state temporarily or permanently there must be an advocation [sic] to the court. And, further, if the children are [going to] be sent anywhere permanently, before they can be sent anywhere permanently . . . there has to be an interstate done, and I'm sure the court recalls that we have another case here, not with [plaintiff's counsel], with someone else where terrible issues have arisen because the interstate was never done.
And, therefore, Your Honor, I think we're so -- this case is so out of bounds that something has to emanate from the court to get this back on track now.
The Division advised the court that although L.C. had initially expressed her desire to relocate to South Carolina, her plans changed and that "[L.C.] stated that something didn't go through, maybe it was a job or maybe it was where she was [going to] stay, and she wanted to come back here." The Division informed the court that the children were on vacation in North Carolina and that "[g]enerally, as long as the children aren't being taken out of the country, if it's for [a] finite period of time and it's not over 30 days, the Division can consent with a case plan and an affidavit in lieu of . . . all of the arrangements, and that is what's done." The court ordered that the matter proceed to a regular review on September 20, 2006.
Two days later, a second emergency hearing was conducted, at which time the Division advised the court that L.C. planned to relocate out of state. Defendant objected and his attorney pointed out to the court that the Division was sanctioning this plan without complying with the interstate compact on children, [N.J.S.A.] 9:23-5, which requires that if children are removed from the [S]tate of New Jersey and are placed in a home outside the [S]tate of New Jersey under any circumstances, the child welfare authorities in that particular state have to be notified. They have to, at a bare minimum, look over the physical plant where the children are and check out the entire situation and be the eyes and ears of [the Division] in that particular state.
In this particular instance not only is [the Division] desirous of violating the interstate compact, apparently [L.C.] has not designated the address [where] she's going to be residing permanently. She is transient, she may or may not be homeless when she . . . leaves the state. We don't know where the children are, we don't know who the children are with. This is not what's . . . contemplated by law and I think it's just blatantly illegal.
But even if they were going to place the children out of state . . . [L.C.] has to go there, find the place . . . she's going to live, have the permanent place, have it checked out by the local welfare agency, and then perhaps, if everything is okay and . . . other things don't come into it like defense counsel objecting, the children would be placed under those circumstances, and this can take six months to a year, but [L.C.] has made her decision she doesn't want to live in New Jersey and . . . if she wants to take the children with her[,] [the Division] must comply with the statute and they cannot, as a matter of law, do what they want to do.
Be that as that may [sic], even though they will comply with the . . . contact which they . . . haven't, my client still objects very strenuously to the children being removed from the [S]tate of New Jersey. Now, while they're in the [S]tate of New Jersey my client has easy access to the children, he has a good relationship with [L.C.] and when she's here he can see the children and she supervises it, so that is not a problem. However, he does want his child. He definitely wants his child. The child knows him, he knows the child. . . .
[A]nd if he can't have the child, and there's no problem with him whatsoever, he's the father . . . there's no objection to him, he's completely appropriate and he has superior rights to anybody else if . . . the mother is unfit in the circumstances that [the Division] is saying. He has superior rights.
The court's response to defendant's objection at that point was that [t]he children have resided with their current . . . caretaker for some 17 months. I leave it up to the Division to establish that the defendants' due process rights have been met at a further hearing with regard to their claim that their rights have been violated, and the court will determine whether or not . . . there is merit to the claim of defense counsel with regard to the failure of the Division to follow through with its responsibilities.
The . . . children enjoy a stable family environment with their current caretaker. This is the life that they have known for the last 17 months and will be continued pending further hearing to determine the ultimate issues.
With respect to the claim that the litigation is in any way going to be delayed by the current arrangement or that the interstate process requires anything more than what the Division is offering, I believe is to deny basic rights to this family which has . . . announced a[n] apparent desire to relocate. . . . So long as the rights of the defendants are met and the Division meets its statutory obligations, which it claims it is doing, the current case plan should move forward. This at a time when the defendants, according to what is being represented, are provided with contact with the children, counsel are provided with the ability to have the children meet with their experts and . . . as such, the current case plan to provide permanency with the current caretaker is to continue.
At the conclusion of the hearing, the court ordered that the matter would return to court on September 20, for a compliance review, as previously scheduled.
Defense counsel referred defendant for a defense psychological evaluation with Dr. Richard Klein (Klein), which took place on August 11, 2006. In his report, Dr. Klein acknowledged that "[o]f concern is the fact that [defendant]'s current apartment is most likely not suitable for having [A.C.] live with him. To that end, [defendant] discussed the possibility of living with one of his twelve siblings who are in the Jersey City area." Klein opined that defendant is capable of parenting and protecting A.C. He recommended that it was in A.C.'s best interest to reside with defendant.
On September 20, at the compliance review, defendant offered himself as a primary care provider for A.C. The Division responded that defendant had not initially offered himself as a primary care provider for A.C. and that he had not attended parenting classes, which defendant disputed. Further, the Division advised the court that defendant had not undergone the psychological evaluation it had offered. The court ordered defendant to undergo a psychological evaluation. It also ordered the Division to facilitate visitation between A.C. and defendant.
At the next review hearing conducted on December 5, 2006, defense counsel confirmed that defendant was not in a position to take custody of A.C. for at least one year. Defense counsel raised the issue of visitation and visitation costs, in light of L.C.'s relocation out of state and, in order to preserve these issues, advised the court that a counterclaim seeking visitation at the expense of the Division would be filed. The court entered a permanency order adopting the plan of KLG for A.C. and C.S. and also granted the Division's motion to amend its March 1, 2005 complaint to seek KLG.
The hearing on the amended complaint occurred on January 30, 2007. Defense counsel argued that the court should enter an order directing the Division to facilitate visitation that was affordable to defendant or, alternatively, absorb the costs of visitation, noting that defendant was currently unemployed and collecting unemployment and that the round trip rail transportation cost for each visit was $300. The court responded that "a consequence of the implementation of the permanency ...