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New Jersey Division of Youth and Family Services v. E.D.

July 23, 2009

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



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, No. FG-09-282-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 27, 2009

Before Judges Wefing, Yannotti and LeWinn.

E.D. is the mother of J.J., a boy now five and one-half years of age. The New Jersey Division of Youth and Family Services ("DYFS") began proceedings to terminate her parental rights with respect to the boy, and on May 18, 2007, the trial court entered a judgment to that effect. E.D. appealed to this court, and we reversed and remanded for further proceedings. Division of Youth and Family Services v. E.D., No. A-5822-06 (App. Div. May 7, 2008). Although we were satisfied that DYFS had established the first two prongs of the statutory four-prong test for termination of parental rights, id. at 10, we remanded for further proceedings with respect to the third and fourth prongs. Ibid.

Our concerns sprang, in part, from the fact that J.J., who had been in multiple placements, had spent an extended period of time with his maternal grandparents. We were not satisfied that the record established by clear and convincing evidence that DYFS had considered alternatives to termination of E.D.'s parental rights, specifically, the possibility of J.J.'s kinship legal guardian placement with his maternal grandparents. Id. at 11. We retained jurisdiction and directed the trial judge to determine on the remand proceedings whether the adoption of J.J. by his foster parents is feasible or likely. If not, the trial judge shall determine whether appointment of the child's maternal grandparents as kinship legal guardians is warranted . . . . [Id. at 16.]

We left it to the trial judge to make his determinations either upon the existing record or "such additional evidence as the parties may submit . . . ." Ibid.

In conjunction with the remand proceedings, the trial judge heard extensive additional testimony from J.J.'s foster parents, neither of whom had testified at the termination trial, Frank J. Dyer, Ph.D., who testified as an expert on behalf of DYFS, Antonio W. Burr, Ph.D., who testified as an expert on behalf of the law guardian, and Richard S. Klein, Ed.D., who testified as an expert on behalf of E.D. At the conclusion of the remand proceedings, the trial judge again concluded that E.D.'s parental rights should be terminated and entered judgment. The remand proceedings having been completed, the parties have returned to this court. E.D. presents the following contentions for our consideration:

POINT ONE

THE TRIAL COURT'S ADMISSION OF THE UNVERIFIED INDICTMENT AND POLICE REPORTS W[AS] REVERSIBLE ERROR.

POINT TWO

DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT J.J. WILL NOT BENEFIT FROM BEING PLACED WITH HIS OWN GRANDPARENTS THROUGH KINSHIP LEGAL GUARDIANSHIP.

We do not find it necessary in this opinion to set forth at length the underlying factual background which led to DYFS's decision to seek to terminate E.D.'s parental rights with respect to J.J. We have already set that forth in our earlier opinion, id. ...


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