On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-70-07.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Simonelli and Hayden.
Defendant V.M. (fictitiously, Vince) the father of girls S.M. (fictitiously, Sandy) and J.A. (fictitiously, Jaleesa), appeals from orders dated July 7, 2010 appointing N.C. (fictitiously, Nancy) to be the kinship legal guardian of the two girls. On appeal, Vince argues that the judge erred in granting kinship legal guardianship (KLG) because there was no evidence that Vince abused or neglected his children or put them at risk of abuse or neglect; KLG should not have been awarded to Nancy and her husband, R.C. (fictitiously, Ron), because the Division of Youth and Family Services (DYFS) had not recommenced an investigation in 2009 as to whether a paternal great aunt in Maryland was willing and able to assume the care of the children; and that the judge erred in allowing visitation at the discretion of Ron and Nancy, who failed to cooperate with Vince in providing the opportunity for such visitation. We affirm.
The facts of the matter are as follows: Sandy was born prematurely on July 3, 2006 at thirty weeks gestation. Because of concerns regarding her parents' fitness, DYFS sought an order granting it care and supervision of Sandy. An order to show cause was issued on July 31, 2006, which temporarily granted the relief that DYFS sought but permitted Sandy to reside with her mother, C.A. (fictitiously, Connie) upon release from the hospital. On August 10, 2006, the return date of the order to show cause, Sandy was continued under the care and supervision of DYFS, legal and physical custody was granted to Connie, and both Connie and Vince were ordered to obtain psychological evaluations, submit to random urine screenings, and attend domestic violence counseling. At the time, Connie was nineteen years of age and was residing in a battered women's shelter. Because Connie reported that she had been issued a temporary restraining order against Sandy's father as the result of domestic violence, the August order permitted him only to have weekly supervised visitation with his child.
Vince was seventeen years of age at the time of Sandy's birth. He had two other children by other women, who had custody of those children. Vince was expelled from school at the age of sixteen with an eighth-grade education. When Sandy was born, he was unemployed. The report of a mental health evaluation, conducted by psychologist Michael J. Fiore, Ph.D. and social worker Margaret Pittalunga, M.S.W., at the request of DYFS in late August 2006, disclosed that, on July 20, 2006, Vince had punched Connie on the arm, causing a bruise. The incident was reported to the police. He admitted "smacking her in the face" while she was pregnant. Vince also had pending charges as the result of swinging an aluminum baseball bat at a male that he perceived as a rival for Connie's affections, he had pled guilty to sexual assault on a twelve-year-old girl and was awaiting sentencing, and he had three arrests for disorderly conduct (fighting). He had also been charged with robbery and aggravated assault. He was first placed on probation at the age of twelve or thirteen. Based on an interview and test results, the evaluators concluded that [Vince] is a high risk parent for child physical abuse, neglect, and domestic violence. He is immature, impulsive, angry, narcissistic, schizoid, and antisocial. . . . It is recommended that [Vince] continue to be restrained from contact with [Connie] and their child. His visits with [Sandy] should be supervised. Of concern is [Connie's] potential to violate the restraining order due to her desire for a future with [Vince].
Later that year, Vince pled guilty to a charge of third-degree witness tampering, having told a young woman whom he had sexually assaulted that he was a member of the Crips, and that he would "handle" her and her family if she told anyone what had happened. On October 11, 2006, Vince received a sentence of two years of probation on that charge.
An October 13, 2006 letter from DYFS to Vince indicated that he had not attended weekly supervised visitation with Sandy in the period between August 18, 2006 and October 13, 2006. Later, he missed visitation scheduled for October 20 and 27 and for November 3, 2006. Additionally, Vince failed to attend the first session of a parenting skills program that he had been directed to attend, scheduled for October 10, and he had failed to appear at two scheduled substance abuse evaluations.
After thirteen months, during which time Connie had custody of Sandy, on August 1, 2007, Sandy was placed in foster care with Ron and Nancy as the result of repeated violations of the court's order barring unsupervised contact between Vince and Sandy. In October 2007, DYFS investigated placement of Sandy with her maternal aunt in Georgia. However, Georgia officials closed their file in the matter upon being informed by the aunt that the child was being returned to her mother, and that placement was no longer needed.
Between May and October 2007, DYFS's records show nine visits between Vince and Sandy. DYFS had referred Vince to outpatient drug counseling after he told the agency that he had smoked marijuana within the last thirty days. It also referred him to domestic violence counseling, parenting skills classes, and individual counseling. However, Vince was uncooperative, and he did not participate in services. He failed to contact the entity providing domestic violence counseling, never completed the parenting skills program, and never completed an anger management program to which he also had been referred.
On several occasions, Vince threatened or swore at DYFS staff and others. On March 8, 2007, while at the Bergen County Court House, he was requested to give a urine sample by a DYFS worker, and he replied "that he wasn't going to do that shit." When the judge made the same request, Vince told the judge to go "fuck himself." He was ordered to leave the courtroom, and while outside, he told a DYFS worker to get her brother because the next time he saw her he was going to "fuck [her] up." In September, Vince attempted to arrange an unscheduled visitation with Sandy, and when his request was refused, he called DYFS's employees "stupid mother fuckers" and threatened that if he did not see his daughter within twenty-four hours, there was "gonna be a problem for the worker tomorrow." In October, he failed to confirm a visit with Sandy, but nonetheless showed up at the DYFS office. When informed that Sandy was not there because the visit had not been confirmed, Vince told the worker to "go fuck yourself," "jump off a bridge and die" and "suck my dick."
In July 2007, he was arrested, and from November 7, 2007 to December 26, 2007 he was jailed on charges of assault and disorderly conduct. He was arrested again on January 14, 2008 for threatening to kill a stranger.
In May 2008, Vince was jailed on a charge of child endangerment, having locked his two nephews in a closet with an electric heater turned on. On June 5, 2008, he was found to have violated his probation and was sentenced to three years in prison. While in custody, he was disciplined for refusing a housing assignment, fighting, and refusing to obey an order. As of November 16, 2009, he remained in custody and was serving administrative segregation time as the result of his latest disciplinary charge. Vince received visits from Sandy on three occasions while he was imprisoned.
While Vince was in custody, on May 5, 2008, Connie gave birth to another girl, J.A. (fictitiously, Jaleesa). Seeking to keep the child, Connie falsely informed DYFS that the baby had died. However, when DYFS ascertained the truth and that Connie was still regularly seeing Vince, on May 21, 2008, it placed the baby with her sister Sandy in foster care with Ron and Nancy.
In May 2008, DYFS contacted Connie's maternal grandmother in Georgia to determine whether she would adopt the two girls. Although she initially expressed interest in doing so, after discussing the matter with her husband, she declined, citing her age. On June 4, 2008 DYFS met with Connie and two sisters of Vince to discuss custodial arrangements for Sandy and Jaleesa. However, one sister, a North Carolina resident, declined to pursue the necessary license from the state and was ruled out as a possible caretaker. In October 2006, DYFS also considered placing the girls with Vince's great aunt in Maryland. An interstate placement study was initiated on October 30, 2008. However, the aunt withdrew from the process without starting the required pre-service training or completing necessary paperwork. She claimed that Connie was "slated to get her children back."
Vince's other sister, a resident of New Jersey, completed the licensing requirements to qualify her home as an appropriate place for Sandy and Jaleesa. The girls were placed in her custody on May 21, 2009 after two visits with her. However, after four weeks, the sister requested that DYFS take the children back, stating that they were too much for her to handle along with her ...