On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FG-15-3-11J and FL-15-20-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
In this appeal, the New Jersey Division of Youth and Family Services (Division) challenges a trial court decision approving an agreement among the birth parents, S.M. and B.S., the foster parents, K.M. and C.M., and the law guardian awarding kinship legal guardianship (KLG) of Randy to the foster parents over the objection of the Division.*fn2 The Division contends that the trial court erred in granting KLG as Randy's adoption by the foster parents was both feasible and likely. Because we find that the Division acquiesced in the decision of the foster parents to forgo adoption in favor of KLG in this instance, instead of proceeding to trial on the guardianship complaint as was its right, we affirm.
The facts relevant to our decision are easily summarized. Randy was born to S.M. and B.S. suffering from kidney failure and testing positive for opiates and cannabinoids. He was discharged from the hospital to the care of the foster parents, who had already adopted Randy's half-brother, Donald. When Randy was just over a year old, the Division filed a complaint for guardianship alleging that S.M., whose parental rights as to Donald had already been terminated, and B.S. had extensive criminal and illicit drug use histories and were both active drug-users at the time of Randy's birth, and that despite the Division's efforts to assist both parents in addressing their substance abuse problems, neither had done so.
Sometime after the filing of the guardianship complaint, S.M. consented to an identified surrender of Randy to the foster parents. The guardianship litigation proceeded as to B.S. By the time trial was to begin, however, B.S. had taken significant steps to address his drug problem, having successfully completed ten months of drug rehabilitation under the auspices of the drug court, and the parties had begun discussing the possibility of KLG with counsel.
On the day appointed for trial, counsel made a joint request for the court to first address B.S. and the foster parents separately in order to address their questions about KLG. The foster parents advised the court that they wished to adopt Randy but were willing to consider KLG because of the risk that the Division would not prevail at the termination trial against B.S.. They had significant concerns, however, that KLG would not protect them from raising Randy free of S.M. In K.M.'s words:
[W]e had some questions we wanted to bring up and address. [W]ell obviously, our first desire, of course, was to adopt [Randy], and . . . our desire is to keep him part of our family. That is our main focus. We do not want to lose him. We got him two years ago and he's been a delight. So we are considering the issue of KLG because we want to keep him at all costs.
But one of our serious concerns is that if we do not adopt him the surrender by his mother is vacated, as we understand it, since it was an identified surrender, and we do not want her coming back into play into this situation.
The judge responded by advising the foster parents of the risks of proceeding to trial and the lengthy appellate process likely to ensue even were the Division to prevail. He also stated that he believed that he could fashion a KLG to meet their concerns by obtaining an agreement from S.M. that she would be permanently prohibited from having any contact with Randy and from petitioning to vacate the KLG. In response to concerns the foster parents expressed as to the possibility of unsupervised visitation by B.S., the judge assured the foster parents that they would control visitation, and "with reasonable, legitimate reasons" would have the "unilateral right to stop visitation." K.M. ended their exchange saying
We love [Randy] and, you know, I'm not going to lie to you, this is not our first choice, but we don't ...