On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FL-07-171-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...