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New Jersey Division of Youth and Family Services v. T.I

November 28, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.I., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF S.L.M., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-96-09.

The opinion of the court was delivered by: Espinosa, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued telephonically November 2, 2011 --

Before Judges Yannotti, Espinosa and Kennedy.

The opinion of the court was delivered by ESPINOSA, J.A.D.

In T.I.'s appeal from an order that terminated her parental rights to her daughter, S.L.M., we are asked to consider the definition of "feasible" under the Kinship Legal Guardianship (KLG) statute, N.J.S.A. 3B:12A-1 to -7. We conclude that, when a caregiver in a case brought by the Division of Youth and Family Services (DYFS) unequivocally asserts a desire to adopt, the finding required for a KLG that "adoption of the child is neither feasible nor likely" cannot be met. For the reasons that follow, we affirm.

I S.L.M. was born to T.I. and M.M., Jr., on July 17, 2006. DYFS had an extensive prior history with T.I. that included the surrender of her parental rights to three older daughters, born between 1996 and 2002.*fn1 When T.I. was eight months pregnant with S.L.M., DYFS received an anonymous complaint that she was consuming alcohol and using drugs. An in-home plan was developed, following an investigation, that permitted S.L.M. to be discharged into T.I.'s care after she was born. Pursuant to the plan, T.I. submitted to a substance abuse evaluation and treatment, met periodically with DYFS caseworkers for several months, and sporadically attended parenting classes and received therapy.

In December 2006, when S.L.M. was approximately six months old, T.I. admitted to feeling depressed and having a history of mental health problems. DYFS arranged for a psychological evaluation and additional counseling sessions. T.I. successfully completed one round of parenting classes and began attending additional classes.

A DYFS caseworker met with T.I. following an anonymous report in April 2007. The caseworker observed extensive burns on S.L.M.'s feet, legs and buttocks. T.I. claimed she did not know how S.L.M. was burned but believed it was a result of hot bath water. She admitted she did not seek medical care because she feared S.L.M. would be removed from her care. An emergency removal was effected under N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30. S.L.M. was treated at a hospital and discharged to the care of her paternal grandfather, M.M., and his wife (collectively, the paternal grandparents), who later expressed their desire to adopt S.L.M.

DYFS filed a verified complaint and order to show cause alleging that T.I. inflicted harm on S.L.M. DYFS was granted custody and supervision of S.L.M. based on a finding that S.L.M. was at risk of imminent harm. A complaint for guardianship of S.L.M. was filed in June 2009, seeking the termination of T.I.'s parental rights.*fn2 After a trial, the trial court entered a judgment terminating T.I.'s parental rights and ordering a summary hearing as to the status of the adoption.

This appeal followed.

II A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record[,]" the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

N.J.S.A. 30:4C-15.1(a) governs the termination of parental rights in the "best interests of the child." Before parental rights may be terminated, DYFS must satisfy the following four criteria by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents ...


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