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New Jersey Division of Youth and Family Services v. J.C.


March 18, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No.: FL-11-34-07.

Per curiam.



Submitted March 3, 2008

Before Judges Lintner and Sabatino.

After a trial, the Family Part entered an order on May 9, 2007, granting the petition of the Division of Youth and Family Services ("DYFS") to establish a kinship legal guardianship ("KLG") for Sarah C.*fn1 with her maternal grandparents. At the time of the trial Sarah was three years old. She had been living continuously with her maternal grandparents since July 2005, when she was removed from the care of J.C., her mother. J.C. now appeals that order. We affirm.

Sarah was born in January 2004. Her biological parents, J.C. and A.B., both have a history of substance abuse. When J.C. was eight months pregnant with Sarah, she tested positive for marijuana and admitted that she had been using drugs. DYFS referred J.C. to a substance abuse evaluation and drug screening, which continued for several months after Sarah's birth. Sarah's father, A.B., is an admitted long-time cocaine user, and he has been incarcerated several times for illegal drug activity.

During the first year of Sarah's life, she resided with her parents and two older half-siblings, who J.C. had given birth to in, respectively, 1995 and 1998. In February 2005, DYFS responded to a third-party report of abuse and neglect in Sarah's household. An ensuing investigation revealed that weapons, ammunition and drug paraphernalia had been kept in the residence within reach of the children. The investigation also confirmed that J.C. had been permitting A.B. to abuse drugs there in the presence of Sarah and her half-siblings.

Upon substantiating the abuse and neglect allegations, DYFS removed all three children from the household of J.C. and A.B. in July 2005. Sarah was placed with her maternal grandmother and step-grandfather, with whom she has continuously resided since that time. Her two half-siblings were placed with their own biological father, who has kept them in his care ever since.

After removing her children to live with other relatives, DYFS referred J.C. to a program known as Family Growth for substance abuse treatment, psychological therapy, parenting classes, and anger management classes. DYFS also referred A.B. to be evaluated and to receive services, although those efforts were impeded by A.B. going in and out of jail. In the meantime, DYFS arranged weekly supervised visits for J.C. with Sarah. J.C. also was ordered by the Family Part to refrain from having contact with A.B.

Initially, it was envisioned that J.C. would reunify with Sarah. However, J.C. failed in several respects to stabilize her life and to meet various requirements of DYFS and the court. Although J.C. temporarily acquired an apartment of her own, she was not able to maintain the bills and eventually was evicted. She was fired from her job. She was terminated from the Family Growth program, because she resisted the therapeutic process and her attendance was inconsistent.

Only two weeks before DYFS had projected to let J.C. take Sarah home, a DYFS case worker conducted an unannounced visit of J.C.'s premises in August 2006. The worker found A.B. present there with J.C., in violation of the outstanding court order, and despite J.C.'s claim to DYFS that she had ended the relationship. That same month, J.C. tested positive for opiates.

Meanwhile, according to the DYFS case notes, Sarah was "thriving" with her grandparents, and "developing normally, both physically and developmentally." Sarah was especially close with her step-grandfather, exhibiting a "special bond" with him. According to DYFS, the grandparents provided "everything that [was] needed for [Sarah's] health."

A psychological evaluation of J.C. performed for DYFS by Alan J. Lee, Psy.D, revealed several impediments to J.C.'s ability to function as a competent parent. Among other things, Dr. Lee noted that

[w]hile [J.C.] largely denied any kind of prominent mental health problems during the current evaluation, projective forms of assessment strongly suggested her propensity for depression and irritability and also some rather maladaptive personality traits that include her sometimes hostile and hardened ways, propensity for marginally responsible behavior, and often detached presentation. She intends on continuing the romantic relationship with [A.B.], of whom she concedes has a history of criminal and substance abuse issues.

These concerns were echoed by another psychologist, Dr. Alan Gordon, Ed.D., who conducted bonding evaluations regarding Sarah in January 2007. Although Dr. Gordon observed that J.C. had interacted appropriately with Sarah, he noted that there were "serious questions" whether J.C. "is prepared to care for a child at this time." By contrast, Dr. Gordon found that Sarah "was much more interactive and seemed more relaxed" when she was with her maternal grandparents, and that Sarah was "deriving a greater level of security from [them] than from her birth parents."

After J.C.'s positive drug test and the discovery of A.B.'s unauthorized presence in her home, DYFS amended its guardianship complaint in the Family Part to seek KLG for Sarah with her maternal grandparents. DYFS also moved to terminate A.B.'s parental rights. A.B. defaulted, and a judgment was consequently entered against him.*fn2 The matter proceeded to trial solely against J.C.

At the ensuing trial in May 2007, DYFS moved into evidence written reports from Dr. Lee and Dr. Gordon, several drug testing results, and other pertinent documents. DYFS also presented the testimony of a caseworker, who traced the agency's history of involvement with this family. The caseworker noted the past failures of both parents, and the grandparents' successful efforts to fill in the breach as Sarah's caregivers. The caseworker recommended that it would be in Sarah's best interests to remain with her grandparents, who wish to continue to care for her but have not sought to adopt her or to prevent her from having frequent contact with her mother.

J.C. testified in her own behalf. She reported that she had not tested positive for drugs since August 2006, and that she had been recently participating in therapy sessions. J.C. denied that she had seen A.B. in months, although she admitted that she had lied to DYFS about their relationship in the past. By the time of trial, J.C. had obtained employment and had secured an apartment.

J.C. also presented expert testimony from a psychologist, Jonathan Mack, Psy.D. Dr. Mack agreed that J.C. has a history of drug abuse and mental health issues that have caused her to be unable to care for Sarah. Dr. Mack felt that J.C. had made progress in addressing those problems, and he advocated that J.C. eventually be reunified with Sarah. However, Dr. Mack acknowledged that J.C. would need to complete another three to six months of therapy as a precondition of regaining custody.

Upon considering these matters, Judge B. Thomas Leahy concluded that DYFS had established the necessary elements to warrant a KLG, by clear and convincing evidence. Judge Leahy recognized the recent strides that J.C. had made towards becoming a fit parent, including her negative drug screens in the preceding nine months and her new living quarters and employment. Even so, the judge was persuaded that, in weighing all of the various considerations, Sarah's "right to permanency [was] paramount," particularly in light of the strong bond that she had developed with her grandparents who had capably raised her for nearly two full years.

With respect to J.C.'s capacity to care for Sarah, the judge made several pointed findings, including the following:

As far as [J.C. is] concerned, [she has] demonstrated an inability, not an unwillingness, and not an unavailability, but an inability to perform the expected functions and care that [her] child is entitled to under the law.

[J.C.] did enough to persuade the Division to encourage the [c]court to support reunification. And being that close to the finish line [she] still had a positive drug test and [A.B.] was found in [her] home at 8:30 in the morning in his [bare] feet . . . .

[J.C.] failed to do, [what DYFS] planned, required, and as the Court orders -- ordered [her] to do, and required [her] to do. And the thing that disturbs me the most is that [she] -- yes [she] addressed anger to some extent in [her] drug counseling and in [her] counseling with Mr. Tobalic. I think [she] addressed parenting skills to the extent that it was required, but [she] didn't and still [has not] addressed the underlying psychiatric, psychotic, whatever you want to call it, stresses in [her] personality and in [her] experiences to the point where [she] could put them at rest and put them aside and proceed without their upsetting and disturbing [her] conduct, [her] relationship with others, including [her] relationship with [her] daughter. [J.C. has] to finish that psychotherapeutic intervention.

The judge also found that DYFS had fulfilled its obligation to offer reasonable services to J.C. to aid her in attempting reunification:

I'm satisfied the Division has exercised reasonable efforts to reunify [Sarah] and [J.C.] They offered the [F]amily [G]rowth program, they provided evaluations, assessments, transportation. They even went so far as to encourage the [c]court toward unification. They didn't drop the ball, [J.C.] did. The efforts were unsuccessful because [J.C.] did not rapidly and promptly enough understand what was required of [her]. Had [J.C.] a year earlier done what [she has] done in the last six to nine months, we wouldn't be where we are today and I wouldn't have to say what I'm saying today.

The judge therefore concluded:

Awarding kinship legal guardianship is in the child's best interest because she has become bonded to [J.C.'s] mother and stepfather. There is a bond between her and [J.C.]. But [Sarah] has spent the majority of her life on this earth with them. And to take a three and a half year old and wrench [her] from the life to which [she] has become accustomed[, e]specially a three and a half year old whose first 18 months, I suspect, were a bit rocky, would be cruel and inhuman[e] on this [c]court's part. And the overwhelming basis for my decision is the best interest of [J.C.'s] daughter.

J.C. now appeals that determination, arguing that the trial judge erred in his application of the pertinent statutory factors for a KLG. In essence, J.C. contends that the judge undervalued her efforts to improve her parenting capabilities and overvalued Sarah's bonding with her grandparents and the urgency of her need to achieve permanency. Her appeal is opposed not only by DYFS, but also by the Law Guardian appointed to represent Sarah's interests.

In considering the arguments raised by J.C., we are mindful that her rights as a parent, while of constitutional dimension, see N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 109-10 (App. Div.), certif. denied, 180 N.J. 456 (2004), have not been terminated. Rather, we have before us an order granting a KLG, a distinctive custodial arrangement authorized by the Legislature in N.J.S.A. 3B:12A-1 to -7.

As the enabling statute declares, "[i]n considering kinship legal guardianship, the State is seeking to add another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely[.]" N.J.S.A. 3B:12A-1(c). "[T]he purpose of this alternative legal arrangement is to address the needs of children who cannot reside with their parents due to their parents' incapacity or inability to raise them and when adoption is neither feasible nor likely." N.J. Div. of Youth & Family Servs. v. S.F. 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004).

"Once [a] caregiver becomes a kinship legal guardian, the caregiver is entitled to make all decisions relating to the care and well-being of the child." N.J. Div. of Youth & Family Servs. v. D.H., ___ N.J. Super. ___ , ____ (App. Div. 2008) (slip op. at 11). See N.J.S.A. 3B:12A-4a(1). As this court further explained:

KLG however, does not terminate parental rights. . . . The birth parents retain the right to: (1) consent to adoption . . . (2) change the child's name . . . and (3) visit the child . . . . The birth parents also remain obligated to pay child support. . . . Additionally, children are still eligible to receive inheritance, benefits, or insurance from their birth parents.

[D.H., supra, slip op. at 11 (citing N.J.S.A. 3B:12A-4a(2)-(5)).]

Reviewing courts are to accord deference to Family Part judges who preside over trials where KLG has been sought. As we recently noted in S.F., another appeal in which the Family Part had approved a KLG application, "[w]e will not disturb the factual findings of the trial judge unless they are unsupported by adequate, substantial and credible evidence in the record." S.F., supra, 392 N.J. Super. at 210; see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (applying similar deferential review standards in the analogous DYFS context of the termination of a parent's rights). Such an approach is consistent with our general recognition that "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Bearing in mind these standards, and our limited role as a reviewing court, we are satisfied that the Family Part's approval of a KLG for Sarah in this case is fully in accordance with the statute and is amply supported by substantial credible evidence in the record. We therefore affirm the judgment of May 9, 2007, substantially for the cogent reasons articulated by Judge Leahy in his oral ruling of that same date.

We pause only to add one comment. The primary thrust of J.C.'s appeal is that Judge Leahy should have declined to enter a KLG with Sarah's grandparents, and should have given J.C. even more time to work towards potential reunification with her daughter. We will not second-guess that judgment call. Judge Leahy appropriately recognized that, after almost two full years in the loving and capable care of her grandparents, Sarah was entitled to permanency. Even the defense expert, Dr. Mack, found that it would take up to another half year of therapy for J.C. to gain the potential capability to care for her child. By that point Sarah would be nearly four years old.

The KLC granted by Judge Leahy sensibly provides an intermediate option, one that keeps this child's mother very much in her life without prolonging her state of limbo. We discern no injustice whatsoever in the judge's ruling, which took into account the mother's progress while giving priority to the child's needs. As the judge noted, the KLG does not prevent J.C. from seeking to regain her full-fledged parental status at some future time, if she continues to make progress in her stability and capabilities. See N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003) (emphasizing that a birth parent retains the right, under a KLG, "to seek termination of guardianship and a resumption of custody at a later date").


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