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New Jersey Division of Youth and Family Services v. L.L.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 17, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.L., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF T.L., A MINOR-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FL-07-171-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2008

Before Judges Winkelstein, Gilroy and Chambers.

Appellant, L.L., appeals from an October 4, 2007 order denying her motion to vacate the kinship legal guardianship (KLG) of her ten-year-old daughter, T.L. L.L. argues that the trial court abused its discretion in denying her motion to vacate the KLG because the circumstances that resulted in the order of KLG no longer exist. We reject L.L.'s argument and affirm.

T.L. was born on February 26, 1998. Appellant is also the biological mother of eighteen-year-old L., and an infant who was born on August 17, 2007. L. and the infant currently reside with L.L.

On September 22, 2001, the police arrested L.L. in response to a report that she hit then twelve-year-old L. on the head with a frying pan. The Division of Youth and Family Services (the Division) removed T.L. from her mother's home and placed her with her maternal aunt, J.W, who has been caring for T.L. ever since.

The Division offered L.L. substance abuse assessment and treatment, psychological evaluations, parenting skills, and visitation with T.L. After L.L. failed to complete the drug treatment program, on December 8, 2004, the Division petitioned for KLG, requesting the court to appoint J.W. as T.L.'s guardian. On May 25, 2005, Judge Ryan granted KLG to J.W., finding clear and convincing evidence that L.L. had unresolved drug issues. The court found that L.L. was "unable, unavailable, or unwilling to perform the expected functions of care and support of [the] child." The court further found that KLG was in T.L.'s best interests. The court ordered that visitation between T.L. and L.L. would be at J.W.'s discretion.

L.L. visited T.L. at J.W.'s home approximately five days a week, spending from a few hours to the entire evening with her. J.W. gave L.L. a key to her home; L.L. let herself in, cooked and helped T.L. with her homework. That stopped, however, after a visit where L.L. and L. had a violent altercation. Although L.L. denied being involved, J.W. no longer allowed her in her home.

On January 9, 2007, L.L. filed a motion to vacate the KLG order. A hearing on the motion commenced on July 11, 2007 before Judge Hayden, and concluded, after three days of hearings, on October 4, 2007. L.L. presented the expert testimony and report of a psychologist, Dr. Gerard Figurelli. He evaluated L.L. on May 6, 2007 to determine her capacity to parent. As part of his evaluation, he administered various tests. He "identified no psychological disorders or psychopathology that prevented [L.L.] from being capable of parenting a child."

Dr. Figurelli's evaluation included a substance abuse assessment. According to his report, based on that assessment, 1. [L.L.] [did] not appear to have a history of alcohol abuse/dependence. 2. [L.L.] acknowledge[d] a history of a problem with cocaine abuse. 3. . . . [L.L.]'s cocaine abuse has, to date, been adequately treated as a result of the substance abuse treatment services she has been provided at New Directions. 4. [L.L.] could benefit from continued participation in aftercare substance abuse treatment and from participation in NA [Narcotics Anonymous] 12-Step self-help substance abuse support groups. 5. [L.L's] drug problem appears to be in remission at present. 6. The nature, type and severity of drug problem that [L.L.] has experienced is typically amenable to a positive treatment outcome in response to the type of treatment she has been provided.

Dr. Figurelli recommended that L.L. participate in counseling "to address the more underlying causes of her depression, and to address any underlying issues with anger she may experience." He ultimately concluded that "if [L.L.] remains [drug free] and participates in the services identified above, it is the opinion of this examiner that [she] has the capacity to act adequately in a parenting role."

Dr. Figurelli testified that L.L. was in full remission, which he described as twelve months of drug abstinence. He testified that completion of the services recommended in his report was not required before she could be given custody of T.L.; that non-participation in those services would not "place her child at risk for harm." On cross-examination, however, he admitted that L.L. "should participate" in the services described in his report.

L.L. testified. She had moved to a new address, located two blocks from where J.W. resides. If T.L. lived with L.L., she would not have to change schools. L.L. had been evicted from her previous apartment for non-payment of rent "because [she] didn't have any money." She obtained a Section 8 voucher and city welfare to pay for her new apartment. After paying the rent, L.L. was left with $109 to live on for the month. At the time of the hearing, she had no other source of income. L. receives Social Security benefits. To provide for T.L. and her newborn, L.L. would have to obtain welfare because she was unable to work due to a broken leg.

L.L. received a grant from Newark Emergency Services for furniture, which she intended to spend on living room furniture. She planned to reapply for a grant to buy beds for the children. At the time of the hearing, L.L. did not have a bed for T.L., a bed for L., who was already living in her home, or furniture for the newborn.

According to L.L., the last time she used cocaine was in February 2006. On July 14, 2006, she entered an outpatient drug treatment program at New Directions because the court had ordered drug screening. The judge also told her that she had to complete the program before she could get her child back, which was "the only reason why [she went]." At New Directions, L.L. received drug treatment and parenting skills. She submitted to fourteen drug screens, one of which was positive for Percocet, which a doctor had prescribed to her for a dislocated shoulder.

L.L. remained in New Directions until March 2007, but failed to complete the program due to poor attendance. In July 2007, L.L. began aftercare counseling for substance abuse and depression, and received prenatal care at the University of Medicine and Dentistry of New Jersey. She was not attending AA or NA meetings.

In February 2007, L.L. had been arrested for allegedly stabbing a man. She was found guilty of disorderly conduct and placed on probation until February 23, 2008.

L. testified that when she was living with T.L. at J.W.'s home, J.W.'s then seven-year-old son was "feeling on [T.L.'s] butt." L. told J.W., who she claims punished her son. L. also told L.L. about the incident, who told L. to call the Division.

No one contacted the police or the Division about the allegation.

Hanan Stevens, a Division intake investigator, testified that on April 25, 2007, she was instructed to conduct a court-ordered home assessment of L.L.'s apartment. When she contacted L.L. to schedule the assessment, L.L. initially became "upset and irate" and refused to allow Stevens to perform the assessment; after Stevens made several attempts to schedule an assessment, L.L. reconsidered and allowed Stevens into her home on May 25, 2007.

During the home assessment, Stevens observed a "bare" living room with no furniture; one bedroom with a bed on the floor, which L.L. said was her room; and another bedroom without a bed or dresser, where "[L.] was resting on the floor." Stevens asked L.L. her plan for T.L., to which L.L. stated that "she did not have any means to support T.L., that she was having a very high-risk pregnancy . . . and that she was having a hard enough time making ends meet."

Stevens also visited J.W.'s home. The house was "very orderly," T.L's bedroom had adequate furniture, and food was in the kitchen. T.L. "seemed happy" and "very content."

Stevens concluded that L.L. did not have the resources to support T.L. Steven's recommended leaving T.L. with J.W. because she was doing well academically and socially. Steven's did not find evidence of alcohol or substance abuse by L.L.

J.W. testified that T.L. was a good student and doing well in school. When J.W. was granted KLG, she was supportive of L.L. That changed after an incident at her home on August 13, 2007, for which J.W. obtained a domestic violence restraining order against L.L. When asked about her commitment to T.L., J.W. stated: "I'm more like a mother figure to [T.L.]. . . . That's my niece. I raised her. . . . I love her to death like if she was my own . . . . I always will be there for T.L."

At the conclusion of the testimony, Judge Hayden, in a comprehensive oral opinion, concluded that L.L. "needs a great deal of help in dealing with her unaddressed anger issues before she could be considered to be capable of taking care of [T.L.]," and that L.L. failed to prove that vacating the KLG order would be in T.L.'s best interests, especially because she is in a home where she is "flourishing." The court discredited Dr. Figurelli's testimony because it contradicted his report. Despite having testified that L.L. was in sustained full remission from drug abuse and that she could act adequately in a parenting role, in his report he hedged his opinion. The report stated that L.L. could adequately parent the child only if she remained "psychoactive substance abuse abstinent and participates in the services identified [in Dr. Figurelli's report]"; namely, that she undergo psychiatric monitoring and participate in an ongoing twelve-step drug treatment program.

The court further found that Dr. Figurelli did not take into consideration that L.L. had been arrested for stabbing a man, and was convicted of a lesser charge for which she received probation. The doctor was also unaware of the domestic violence restraining order J.W. obtained against L.L. Judge Hayden found that "[L.L.'s] major, unaddressed anger issues cannot be ignored by this [c]court," and it is not in T.L.'s best interests to be returned to her mother who has such anger issues.

Against this factual background, we address L.L.'s claim that the trial court erred by refusing to vacate the KLG order. An order of KLG may be vacated as follows:

An order or judgment awarding kinship legal guardianship may be vacated by the court prior to the child's 18th birthday . . . where there is an application to return the child to the parent, based upon clear and convincing evidence, the court finds that the parental incapacity or inability to care for the child that led to the original award of kinship legal guardianship is no longer the case and termination of kinship legal guardianship is in the child's best interests.

[N.J.S.A. 3B:12A-6(f).]

In analyzing the facts as applied to these criteria, we first examine L.L.'s argument that because she has offered expert testimony to show that she is able to parent T.L., the Division has the burden to clearly and convincingly prove the grounds for a KLG continue to exist. We disagree.

Although N.J.S.A. 3B:12A-6(f) does not indicate which party has the burden of proof to show that a KLG order should be vacated, we see no reason why that burden should not fall on the moving party. The statute requires a showing that the circumstances that led to the KLG order have changed so "that the parental incapacity or inability to care for the child that led to the original award of [KLG] is no longer the case." Ibid. In other words, a showing of changed circumstances is necessary before a KLG order can be modified. This is the same standard applied for modifying a child custody order, where the burden is on the party seeking to modify the order to demonstrate changed circumstances and that the order is no longer in the child's best interests. Abouzahr v. MateraAbouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also Lepis v. Lepis, 83 N.J. 139, 157 (1980) (party seeking modification of child support has the burden of showing "changed circumstances" and that such modification is in the child's best interests). The "changed circumstances" requirement reflects a public policy of affording a child a degree of permanence in his or her daily living environment.

These same considerations apply to a KLG order. A KLG imposes many of the same rights and responsibilities on the guardian as a custody order places on the custodial parent. Those rights and responsibilities are found in N.J.S.A. 3B:12A-4a, which states:

[the] guardian shall have the same rights, responsibilities and authority relating to the child as a birth parent, including, but not limited to: making decisions concerning the child's care and well-being; consenting to routine and emergency medical and mental health needs; arranging and consenting to educational plans for the child; . . . responsibility for activities necessary to ensure the child's safety, permanency and well-being; and ensuring the maintenance and protection of the child.

And too, like a non-custodial parent in a custody context, in a KLG framework, the birth parent retains the obligation to pay child support, N.J.S.A. 3B:12A-4a(3), and the right to visitation with the child. N.J.S.A. 3B:12A-4a(4).

Given the similarities between a custody order and a KLG order, just as the burden of proof is on the party seeking to modify a child custody order, Abouzahr, supra, 361 N.J. Super. at 152, we conclude that the burden of proof to modify a KLG order is also on the party seeking its modification.

Consequently, by clear and convincing evidence, L.L. must prove the two-pronged test under N.J.S.A. 3B:12A-6(f) to vacate the KLG order. First, she is required to show that the issues that resulted in the granting of KLG have been adequately addressed and overcome. N.J.S.A. 3B:12A-6(f). Second, even if the first prong is satisfied, she must demonstrate that vacation of the KLG order and disruption of T.L.'s current placement is in the child's best interests. Ibid. The trial court concluded that L.L. did not satisfy this test and the record supports that finding.

The court's original grant of KLG to J.W. was based on clear and convincing evidence that L.L. had unresolved drug issues preventing her from being able and willing to care for and support T.L. See N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 210-11 (App. Div.), (a parent's inability or unwillingness to perform the regular and expected functions of raising a child may be demonstrated by a longstanding addiction to drugs), certif. denied, 192 N.J. 293 (2007). Thus, to have the KLG vacated, L.L. must first provide clear and convincing evidence that her drug issues have been overcome.

Defendant asserts that she has overcome her drug addition. Nevertheless, simply presenting evidence that she is now drug- free and experiencing success in parenting her other children does not prove, by clear and convincing evidence, that it is in T.L.'s best interests to vacate the KLG order.

Although L.L. has presented evidence that she has overcome her drug abuse issues that led to the original award of KLG, she has failed to prove by clear and convincing evidence that she has taken steps to permanently overcome her addiction. Her own expert's report stated that L.L. has the capacity to act adequately in the role of parent only if she remains substance abuse abstinent and participates in an aftercare and ongoing twelve-step recovery process, and submits herself to psychiatric counseling. L.L. testified that she was not attending AA or NA meetings, and was only receiving substance abuse and depression counseling as part of her prenatal care, which presumably ended upon her child's birth. Thus, L.L. has not met the first prong of the statutory test, "that the parental incapacity or inability to care for the child that led to the original award of kinship legal guardianship is no longer the case." N.J.S.A. 3B:12A-6(f); cf. N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511-12 (2004) (upholding termination of parental rights as in child's best interests even where parents were making progress in drug treatment programs and were persisting in their rehabilitation efforts, but neither parent had completed their respective programs or vocational training, or had secured stable housing).

Nevertheless, even if we were convinced that L.L. had overcome her substance abuse issues, she failed to prove the second prong of the test to vacate a KLG order. That is, she did not prove, by clear and convincing evidence, that a termination of the KLG order was in T.L.'s best interests. Ibid. Indeed, she failed to present any evidence to satisfy that criterion. Dr. Figurelli only testified as to L.L.'s substance abuse remission and her psychological health. The purpose of his report was simply to assess L.L.'s capacity to "act adequately in the role of parent." Neither his report, nor his testimony, addressed whether returning T.L. to L.L.'s custody would be in the child's best interests.

Significantly, L.L. was on probation for a February 2007 altercation with a man who alleged she had stabbed him. And, what is more, J.W. had obtained a domestic violence restraining order against L.L. for an incident that occurred on August 13, 2007, one month after the hearings on L.L.'s motion to vacate the KLG order had begun. L.L.'s anger issues support the trial judge's finding that she is not yet capable of adequately caring for T.L.

KLG remains in a child's best interests when a parent's inability to properly parent a child is unlikely to change in the foreseeable future, and the child is in the care of a loving family member unwilling to adopt the child. S.F., supra, 392 N.J. Super. at 213. KLG is also in a child's best interests where the child is in a "very good, nurturing, solid, permanent home," and the caregiver has provided stability for the child. Ibid. Evidence that a child is "thriving" in the care of his or her caretaker satisfies the requirement that KLG is in the child's best interests. Id. at 214. The evidence here shows that T.L. is thriving under J.W.'s care and to uproot her after almost seven years of a permanent, stable home would not be in her best interests. In sum, the record supports the trial court's decision that termination of the KLG is not in T.L.'s best interests.

Next, we briefly address L.L.'s claim that the trial court relied on "stale and unauthenticated evidence" in rendering its decision. L.L. claims the court relied on a psychological report of Dr. Denise Williams-Johnson, who had been retained by the Division to evaluate L.L. in 2002. That argument lacks merit in that the court did not admit Dr. Johnson's report into evidence, nor did it rely on the report as a basis for its decision.

L.L. has raised a number of additional issues on appeal. Those issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20081017

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