On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FG-18-111-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Miniman and Waugh.
T.S. (fictionally, Theresa) the mother of E.S. (fictionally, Edward), born in the Fall of 1998, appeals from an order granting kinship legal guardianship (KLG) to her son's caregivers in South Carolina, S.H. and W.N. (the grandparents*fn1 with liberal visitation by the parents.
The grandparents are teachers. Edward first met them during a visit in South Carolina in the summer of 2002. He returned to them for three weeks during the Christmas holidays of that year. In January 2003, Theresa and her husband A.S. (fictionally, Arthur) requested that the grandparents take care of Edward, and he remained with them for twenty months, returning to New Jersey in August 2004. The reason given for this arrangement was that it would permit Theresa to complete job training. However, she never did. After his return to New Jersey, Edward visited with his grandparents during the 2004 Christmas holidays and during Easter week of 2005. Edward was returned to his grandparents' care at the end of the 2004-2005 school year and, except for a four-day period in June 2006, has remained with them. Edward has expressed to caseworkers and the trial court a strong preference to continue living with his grandparents. Although he suffers from attention deficit hyperactivity disorder (ADHD) and requires medication, he is thriving academically under his grandparents' care, ranking in the top five percent of students in South Carolina. At the time of trial, Edward had been accepted into a Duke University summer program for high performing fourth and fifth graders.
Throughout this litigation, Theresa has been married to Arthur, who was initially thought by the Division of Youth and Family Services (DYFS) to be Edward's father. However, paternity testing conducted in April 2007 has disclosed Edward's father to be C.J. (fictionally, Charles). Charles has worked to establish a relationship with his son. Nonetheless, he has given his consent to KLG as being in the child's best interest. At one point, Theresa filed for divorce from Arthur. However, the action was dismissed. Although the two appear to be separated, evidence that they were in contact in 2008 was produced at trial. Additionally, a letter from Theresa to Arthur in 2007 expressed her desire for reconciliation.
The family first came to the attention of DYFS on April 22, 2005, when the agency was notified, it appears incorrectly, that Edward was being left home alone.*fn2 At the time, it appeared that domestic violence was taking place and that Arthur was abusing drugs. However, Arthur refused to take a drug test, informing DYFS that it would have to take the matter to court. DYFS did so, and as the result of evidence of lack of parental cooperation, it was granted an Order for Investigation. That subsequent investigation confirmed that Arthur was a substance abuser, testing positive for marijuana, cocaine and amphetamines, and neglect by him was substantiated on that basis. Investigation by DYFS disclosed a history of domestic violence by both Theresa and Arthur leading to the entry of an active final restraining order against Arthur and to Theresa's arrest for simple assault and, on two occasions, for criminal mischief. Additionally, investigation revealed that Arthur had been charged with possession of cocaine and was initially admitted to pretrial intervention. However, he was terminated from that program in March 2005 and, on April 7, 2005, he pled guilty to drug possession and served some time in jail as a result. On June 4, 2005, Theresa was arrested for possession of marijuana, receiving a conditional discharge after pleading guilty to the charge.
On July 15, 2005, DYFS concluded its assessment and determined there was a need for further services. It therefore kept the case open for supervision. On July 21, 2005, Arthur was injured in what he claimed to have been an attack by three black males occurring just outside and within his apartment. As a result, blood spatters were found in every room. Arthur was treated for head wounds. However, neither he nor Theresa were willing to cooperate with the police in their investigation of the incident, and the police file was therefore closed.
On August 9, 2005, DYFS instituted Title 9 litigation against Theresa and Arthur while Edward remained in South Carolina with his grandparents where he had been voluntarily placed by Theresa and Arthur at the commencement of DYFS's involvement with the family. Custody of Edward was granted to DYFS, and he was ordered to remain in South Carolina with his caregivers. On November 16, 2005, the court entered a finding of neglect against both Theresa and Arthur, basing its decision on Theresa's arrest for marijuana possession and Arthur's positive drug tests. Edward was ordered to remain in his grandparents' physical custody.
On April 26, 2006, the court ordered that Edward be returned to Theresa's care one week after the conclusion of the school year. However, because Arthur had failed to comply with substance abuse treatment, he was barred from Edward's home and school and was permitted only to have supervised visitation with the child. On June 12, 2006, Edward was returned to Theresa's care but, as the result of reports that Arthur was living in the home, after a hearing, he was returned to his grandparents' custody four days later.
In July or August 2006, Theresa moved to Connecticut. In October 2006, DYFS requested an interstate evaluation of Theresa to determine whether it was suitable to place Edward with her. The evaluation was completed on January 31, 2007 and did not recommend placement. The evaluator stated:
The Department of Children and Families does not recommend [Edward] to be returned to his mother's care at this time. Mother has court ordered specific steps which ha[ve] not been completed. She is required to participate in individual therapy and has only attended therapy for a month. The clinician is not able to provide any feed back regarding progress towards meeting identified treatment goals as mother has not had any significant time in therapy. Mother has not engaged in Parenting Classes, therefore the Department is not able to assess her ability to parent her child.
Mother acknowledges that she is not willing to apply for any benefits offered through the Department of Social Services; yet she has limited income and is not currently employed. The Department of Children and Families is not able to determine that mother has successfully addressed the issues that were identified at the time of child's removal from home.
In August 2006, the court had found DYFS's plan to terminate Theresa's parental rights to Edward, followed by his adoption, to be "inappropriate and unacceptable." However, in January 2007, the court authorized that course of action, and on January 8, 2007, DYFS filed a complaint to terminate the parental rights of Theresa and Arthur to Edward. As a consequence, the Title 9 litigation was dismissed. However, in March 2007, DYFS learned that Arthur was not Edward's biological father, and it subsequently determined his father to be Charles. Arthur was therefore dismissed from the litigation. Additionally, during the litigation, the goal was changed to kinship legal guardianship, because a bond had developed between Edward and his biological father, Charles, and it was believed that the child would benefit from continued visits with him. A complaint seeking that remedy was filed in March 2008.
In October 2007, Theresa moved back to New Jersey and has remained in this State since that time. An order expunging her record of arrests and convictions was entered on December 29, 2008. A trial of this matter took place commencing on August 20, 2008. A written opinion was issued by the court on June 11, 2009. In it, the court found that, although given the opportunity to do so, Theresa "has failed to establish a bond with [Edward] and essentially has emotionally abandoned [Edward] to [his grandparents]." An order for kinship legal guardianship was entered on June 19, 2009. This appeal followed.
The court's authority to appoint caregivers as kinship legal guardians is governed by N.J.S.A. ...