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Division of Youth and Family Services v. D.H.

February 21, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-428-06.

The opinion of the court was delivered by: RODRÍGUEZ, A. A.




Argued December 12, 2007

Before Judges A. A. Rodríguez, C. S. Fisher and C. L. Miniman.

In this opinion, we hold that Kinship Legal Guardianship (KLG) pursuant to the Kinship Legal Guardianship Act (KLG Act), N.J.S.A. 3B:12A-1 to -7 is deemed to be a permanent placement option in the appropriate circumstances specified in the statute.

This is an interlocutory appeal*fn1 by the Law Guardian on behalf of A.H., a five-year-old girl, from the March 14, 2007 Order approving the Division of Youth and Family Service's (DYFS) permanency plan to terminate the birth parents' rights followed by select-home adoption. In doing so, the judge rejected as an option KLG by the maternal grandmother, K.P. The judge found that, "based on the child's age, termination would be the more appropriate goal."

The Law Guardian contends that because A.H. has been in the custody of her maternal grandmother for seventeen months and the grandmother does not wish to adopt her, but instead wants the child to live with her on a long-term basis, a permanency plan that calls for adoption by strangers is not in A.H.'s best interests. The Law Guardian also contends that KLG is the appropriate permanency plan and the judge should have considered this alternative to termination of parental rights. We agree and reverse.


D.H. is A.H.'s birth mother and J.V. is the birth father. DYFS first became involved with this family in January 2006, when the birth father, who had court-ordered visitation with A.H., was refused such visitation by the mother. The mother, who belongs to the Ifa religion, refused to allow J.V. visitation because her Ifa minister, claiming the power to communicate with spirits, advised her against it. The minister told the mother that the spirits revealed that the father's brother had inserted his pinky finger into A.H.'s vagina when she was two years old.

DYFS's Special Response Unit and the police visited the home to conduct an investigation. The DYFS worker noticed that the front door was covered with chalk markings of a cross and an angel. After speaking with the mother, it was confirmed that she practiced the Ifa religion. The mother stated that she believed A.H. had been molested by her paternal uncle, who lives with the child's father. DYFS was unable to speak with the child during this visit because she was sleeping.

On that same day, the DYFS worker visited the father, who stated that he disapproved of the mother's involvement with the Ifa religion. He also expressed concern over A.H.'s well-being and requested that she be examined by a mental health physician. A few days later, the DYFS worker learned that the mother had been admitted to the psychiatric unit at Saint Mary's Hospital at her family's insistence. A.H. was left in the care of her maternal grandmother, K.P.

Subsequently, a DYFS worker interviewed A.H. The worker saw no marks or bruises on A.H. When the DYFS worker attempted to interview A.H. alone, the child clung to her grandmother and did not want her to leave. The DYFS worker concluded that A.H. was very attached to K.P. On that same day, the DYFS worker spoke with K.P., who expressed concerns about the molestation allegations and her belief that the mother was unfit to care for A.H. as a result of her religious beliefs.

In due course, a Family Part judge granted sole legal custody of A.H. to her father, who allowed A.H. to remain in the physical custody of K.P. while he arranged for childcare. K.P. was granted visitation. The mother was allowed supervised visits. Three months later, because she was not taking her prescribed medications, the judge suspended the mother's visitation.

In March 2006, the father submitted a urine sample that tested positive for cocaine and opiates. DYFS removed A.H. from her father's care and placed her with K.P. temporarily. DYFS filed a verified complaint seeking custody, care and supervision of A.H. pursuant to N.J.S.A. 9:6-8.21 to -10b and N.J.S.A. 30:4C-12. A different judge granted DYFS legal custody of A.H. DYFS placed the child with K.P.

More than a year later, on March 14, 2006, the judge held a permanency hearing, at which the birth parents were represented by counsel. K.P. was also present. DYFS indicated that its permanency plan for A.H. was termination of parental rights followed by select-home adoption. The Law Guardian agreed that both parents were either "unable or unwilling to care for [A.H.]," but urged that the court accept KLG with the maternal grandmother as the permanency plan. ...

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