July 14, 2009
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE KINSHIP LEGAL GUARDIANSHIP OF R.S. AND B.E.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-211-06; FL-15-22-08 and FL-15-23-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 23, 2009
Before Judges Cuff and Fuentes.
C.S. is the biological mother of B.E., a girl born in February 2004, and R.S., a boy born in July 2005. The children have been living with their maternal grandparents, K.S. and E.S., since May 16, 2006, when they were placed there by the Division of Youth and Family Services (DYFS). After receiving evidence over a non-consecutive six-day trial that commenced on December 18, 2007, and ended on May 15, 2008, the Family Part judge granted the petition filed by DYFS to award Kinship Legal Guardianship of the children to the maternal grandparents pursuant to N.J.S.A. 3B:12A-1 to -7.*fn1
In this appeal, C.S. does not dispute that she was incapable of caring for the children at the time DYFS filed an abuse and neglect complaint to obtain temporary custody of them. C.S. further concedes that, to date, she remains incapable of caring for the children. The sole issue raised by C.S. in this appeal concerns her parents' fitness, and in particular her mother's fitness to assume the role of Kinship Legal Guardian for her children.
After carefully reviewing the record developed before the Family Part, and in light of prevailing legal standards, we affirm substantially for the reasons expressed by Judge Blaney in his memorandum of opinion dated June 2, 2008. We add only the following brief comments.
The record shows that the younger boy, R.S., has been diagnosed as autistic; he suffers from severe developmental delays, including a gross lack of language skills, deep emotional instability, and difficulty in following directions. By contrast, the older girl, B.E., has experienced normal development. Both children have been well-cared for since they began living with their maternal grandparents in 2006. In fact, the grandmother has shown special sensitivity to her grandson's developmental needs.
The only evidence of the alleged unfitness of the maternal grandparents came from the testimony of C.S.; she testified that her mother physically and emotionally abused her when she was a child. DYFS records confirm that the Division was notified of incidents of alleged abuse involving C.S. (as a child) by her mother K.S. These same records also show, however, that C.S. was an extremely rebellious youth, confrontational and defiant of parental authority.
K.S. testified denying her daughter's accusations. Her testimony is corroborated by DYFS records of interviews with other family members conducted at the time. In fact, according to her brother, C.S. was the main reason why the family experienced difficulty during those times.
Against this record, and having seen both C.S. and her mother testify in open court, the trial judge rejected C.S.'s allegations of abuse at the hands of her parents as a matter of credibility, finding more credible K.S.'s account of events. The court found that, as a youth, C.S. was "needy and melodramatic."
On the question of what was in the best interest of R.S. and B.E., the trial judge relied heavily on the uncontradicted testimony of two experts in the field of psychology, who opined that the children were properly cared for while in the custody of their maternal grandparents. These experts especially focused on the care that R.S. had received by his maternal grandmother.
The judge also rejected C.S.'s request to place her children in the custody of their paternal grandmother who resides in the State of Maryland. While noting her to be "a responsible and loving grandmother," the judge found that her significant job responsibilities and her unawareness of the severity of R.S.'s condition ruled her out as a viable alternative.
In adopting the statute authorizing Kinship Legal Guardianships, the Legislature intended to create an alternative to termination of parental rights in those cases where the parents were incapable of caring for the children, but there were also family resources available to care for them. N.J.S.A. 3B:12A-1. The Legislature thus declared that, in these situations, "it is in the public interest" of this State to create Kinship Legal Guardianship. N.J.S.A. 3B:12A-1(d).
In New Jersey Division of Youth & Family Services v. P.P., the Supreme Court held that a trial court shall appoint the caregiver as a kinship legal guardian if, based upon clear and convincing evidence, the court finds that:
(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;
(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;
(3) in cases in which DYFS is involved with the child . . . (a) [DYFS] exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and
(4) awarding kinship legal guardianship is in the child's best interests.
[180 N.J. 494, 509 (2004) (quoting N.J.S.A. 3B:12A-6(d)).]
In this appeal, prongs (1), (2) and (3) are not disputed. The only issue in contention is prong (4), namely, whether awarding Kinship Legal Guardianship to the maternal grandparents is in the best interest of these two children. We are satisfied that the record before us amply supports Judge Blaney's decision awarding Kinship Legal Guardianship of R.S. and B.E. to their maternal grandparents K.S. and E.S. The children have bonded with their grandparents during the three years they have been in their care. DYFS utilized reasonable efforts to assist C.S. in performing her role as mother to these children to no avail. Finally, and perhaps most importantly, C.S. remains incapable of caring for the children for the foreseeable future.*fn2