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

February 24, 2010

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 certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether, under the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, a parent who moves to vacate a kinship legal guardianship must prove by clear and convincing evidence, or by the lesser standard of preponderance of the evidence, that it is in the child's best interest to vacate the guardianship.

Loren Lilly (a fictitious name) is the mother of four children. Her daughter Terry is the subject of this appeal. In 2001, Loren was arrested for hitting her twelve-year-old daughter, Louis, with a frying pan. The New Jersey Division of Youth and Family Services (Division) removed the children and temporarily placed them with the current caretaker, Loren's sister, Judy Williams. The Division referred Loren for outpatient substance abuse treatment and offered other services, including psychological counseling and parenting skills classes. After reunification efforts were unsuccessful, the Division filed a petition for kinship legal guardianship. Following an evidentiary hearing in May 2005, the trial court found by clear and convincing evidence that Loren had unresolved drug and anger problems, and that her inability to perform parenting functions was unlikely to change in the foreseeable future. The court concluded it was in the best interest of Terry to award kinship legal guardianship to her Aunt Judy. The court also ordered that visitation between Loren and Terry occur at Judy's discretion.

Judy was hopeful that Loren would overcome her problems and eventually be able to care for her children. Judy allowed Loren to visit Terry whenever she wanted and even gave Loren a key to her apartment. Loren visited Terry almost daily. In July 2006, Loren enrolled in a drug treatment program. At one point, she tested positive for barbiturates, and in March 2007, she was discharged for lack of attendance. Meanwhile, in January 2007, Loren moved to vacate the kinship legal guardianship. Later, her relationship with Judy soured. Judy claimed that Loren disrespected her home and was increasingly violent during the visits. As a result, Judy discontinued visitation and changed the locks to her apartment.

After it held an evidentiary hearing, the trial court denied Loren's motion. The court found contradictions between the testimony and report of the psychologist, Dr. Gerald Figurelli. He opined that Loren had the potential to adequately parent, yet his report recommended services that she needed to meet that potential, including participating in parenting skills programs and addressing her underlying anger issues. The court also noted that Loren failed to reveal to Dr. Figurelli that she recently had been arrested for stabbing someone, and that subsequent to his evaluation, Judy had obtained a domestic violence restraining order against Loren. The trial court found that Loren's major anger programs had not been resolved. The court concluded that the evidence was clear and convincing that it would not be in Terry's best interest to be removed from Judy's home where she is flourishing.

Loren appealed. The Appellate Division affirmed, holding that the trial court properly placed the burden of proof on the parent seeking to terminate the kinship legal guardianship. The panel found sufficient credible evidence to support the trial court's finding that Loren failed to prove by clear and convincing evidence that the circumstances leading to the original order, namely Loren's drug addiction and anger issues, were adequately overcome, and that it was in Terry's best interest to terminate the guardianship.

The Court granted Loren's petition for certification. 197 N.J. 476 (2009). The Court also granted amicus curiae status to the Public Advocate, the Association for Children of New Jersey, and Legal Services of New Jersey.

HELD: Pursuant to N.J.S.A. 3B:12A-6(f), the parent seeking to terminate the kinship legal guardianship has the burden of proving by clear and convincing evidence both that the parent has overcome the incapacity or inability to care for the child that led to the original guardianship proceedings, and that termination of kinship legal guardianship is in the best interest of the child.

1. The primary rule of statutory construction is to ascertain the intent of the Legislature by looking at the plain words used in the statute. Courts should ascribe to those words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole. (p. 13)

2. The Act established a new type of legal guardianship that addresses the needs of children and caregivers in long-term kinship relations. When adoption is not feasible or likely, kinship legal guardianship provides an alternative permanent placement option without the need for termination of parental rights. Prior to appointing a kinship legal guardian, the court must find certain factors by clear and convincing evidence, including that: the parent's incapacity is of such a serious nature as to demonstrate that the parent is unable or unwilling to care and support for the child; the inability to perform those functions is unlikely to change in the foreseeable future; and awarding kinship legal guardianship is in the child's best interests. (pp. 14-16)

3. The Act provides three circumstances in which the court may vacate an order awarding kinship legal guardianship. The circumstance relevant here is when a parent makes an application for the return of the child to his or her custody and, "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). (pp. 16-18)

4. The plain words of the statute require that when a parent seeks to vacate an order for kinship legal guardianship, the court must find by clear and convincing evidence that the parent has regained the ability to care for the child and termination of the guardianship is in the child's best interests. N.J.S.A. 3B:12A-6(f) requires a clear and convincing evidence standard for both prongs of the test. That standard is consistent with the legislative purpose to provide a "permanent placement option, beyond custody, without rising to the level of termination of parental rights."

N.J.S.A. 3B:12A-1(c). Moreover, the moving party has the burden of proof, which is consistent with the conclusion reached in In re Guardianship of J.N.H., 172 N.J. 440 (2002), in which the Court held that a parent seeking to vacate a judgment terminating parental rights bears the burden of proof. (pp. 18-20).

5. In reviewing whether Loren met her burden of proof, the Court defers to the trial court's factual findings supported by substantial credible evidence in the record. Regarding whether Loren had regained her ability to care for her daughter, the trial court rejected Dr. Figurelli's testimony and relied on his report that recommended numerous services as necessary to sustain Loren's remission and address her anger issues. Also, Dr. Figurelli was not made aware that Loren had recently been arrested for stabbing someone and that the kinship legal guardian had obtained a domestic violence restraining order against Loren. Based on the record, the Court is satisfied that there was sufficient credible evidence for the trial court to find that Dr. Figurelli's testimony was contradictory and unpersuasive and that Loren failed to satisfy the first prong of the test. (pp. 20-22)

6. The second prong of the test requires the moving party to prove by clear and convincing evidence that vacating an order of kinship legal guardianship is in the child's best interests. The paramount concern is the safety of the child. The court will be aided by considering the list of factors contained in N.J.A.C. 10:132A-3.6(a), including the child's age; the length of time the child has lived with the guardian; what the risk of harm to the child was; and the parent's present fitness to care for the child. Additional factors may be considered, including the child's wishes; the nature and quality of the parent-child relationship during the kinship legal guardianship; the future relationship anticipated between the child and the guardian; preserving sibling relationships; the impact of vacating the guardianship on the child's day-to-day life; and any other relevant factors bearing on the best interests of the child. (pp. 22-24)

7. Here, the trial court accepted Judy's testimony that Terry was thriving in her care; found that Loren did not have sufficient resources to parent Terry; and found that, based on the domestic violence restraining order proceedings, Loren still had an untreated and unaddressed and out-of-control anger problem. Loren's anger problem was not a new factor considered for the first time. There was sufficient credible evidence to conclude that Loren failed to adduce by clear and convincing evidence that it was in Terry's best interest to vacate the kinship legal guardianship. (pp. 24-25)

The judgment of the Superior Court is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued September 30, 2009

Based on Loren Lilly's*fn1 inability to overcome her drug and anger problems and to provide a safe home for her children, the New Jersey Division of Youth and Family Services (Division) sought and obtained custody of two of her children. The Division subsequently filed a complaint for kinship legal guardianship. As a result, in May 2005, Loren's sister, Judy Williams, was granted kinship legal guardianship of then four-year old Terry Lilly.

In January 2007, Loren filed a motion to vacate the kinship legal guardianship. Following a hearing, the trial court denied the motion and the Appellate Division affirmed. We now affirm. We hold that pursuant to N.J.S.A. 3B:12A-6(f), prior to the vacation of a kinship legal guardianship judgment, the court must find by clear and convincing evidence both that the parent has overcome the incapacity or inability to care for the child that led to the original guardianship proceedings, and that termination of kinship legal guardianship is in the best interest of the child. We additionally hold that the party seeking to terminate the kinship legal guardianship has the burden to prove by clear and convincing evidence each of those two criteria.

I.

Loren is the mother of four children. At the time the Division first became involved, in 2001, she had three children. Only one of these children, Terry, is the subject of this appeal. In September 2001, the police responded to a report that Loren hit her twelve-year old daughter, Lois, with a frying pan. Loren was arrested and the children came under the care and custody of the Division. Initially, the Division placed the children with Loren's mother and later, with the current caretaker, Loren's sister, Judy Williams.

Following the removal of the children and their temporary placement with Judy, the Division referred Loren for outpatient substance abuse treatment at Renaissance House. However, she stopped treatment after attending the program for approximately three months. The Division next referred Loren to the New Hope Program, another outpatient program. However, after approximately two months, Loren was discharged from the program. In its efforts to reunite Loren with her children, the Division also offered Loren other services, including psychological evaluations, parenting skills classes, and visitation.

After reunification efforts were unsuccessful, the Division filed a petition for kinship legal guardianship under N.J.S.A. 30:4C-87(a). Following an evidentiary hearing in May 2005, the trial court found by clear and convincing evidence that Loren had unresolved drug and anger issues, and that her inability to perform parenting functions was unlikely to change in the foreseeable future. The court concluded it was in the best interest of Terry to award kinship legal guardianship to her Aunt Judy. The trial court also ordered that visitation between Loren and Terry occur at the discretion of Judy.

Following the entry of the order, Judy was hopeful that Loren would overcome her problems and eventually be able to care for her children. She allowed Loren to visit Terry whenever she wanted. Judy even gave Loren a key to her apartment to facilitate visits. Subsequently, Loren visited Terry almost daily with the duration of visits ranging from a couple of hours to the entire day.

On July 15, 2006, Loren enrolled in New Directions, a drug treatment program. At one point, she tested positive for barbiturates. Ultimately, on March 9, 2007, Loren was discharged from the program for lack of attendance.

Meanwhile, in January 2007, twenty-one months following the entry of the order creating the kinship legal guardianship, Loren filed a motion to vacate the kinship legal guardianship to regain custody of Terry. She later obtained counsel. Sometime after Loren filed the motion, the relationship between Loren and Judy soured. Judy claimed that Loren disrespected her home and was increasingly violent during the visits. ...


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