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New Jersey Division of Youth and Family Services v. H.R.

Superior Court of New Jersey, Appellate Division

October 25, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, [1] Plaintiff-Respondent,
v.
H.R. and N.B., Defendants-Appellants IN THE MATTER OF THE GUARDIANSHIP OF E.B., a minor

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 6, 2013, Remanded June 10, 2013, Resubmitted September 27, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-70-11.

Joseph E. Krakora, Public Defender, attorney for appellant H.R. (Richard Sparaco, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant N.B. (Thomas Hand, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth S. Sherwood, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Katherine J. Bierwas, Designated Counsel, on the brief).

Before Judges Ashrafi, Espinosa and Guadagno.

PER CURIAM

In this termination of parental rights appeal, we previously remanded to the Family Part for correction of an error that occurred during trial, namely, the failure of the prospective adoptive parents to receive correct information and advice about the potential alternative of kinship legal guardianship of the child rather than adoption. N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J.Super. 212, 233 (App. Div. 2013). We now affirm the Family Part's judgment of guardianship dated November 17, 2011, terminating the parental rights of both biological parents so that the now seven-year-old child can be adopted by her maternal aunt and uncle.

In our prior opinion, we reviewed the Family Part's decision as to the criteria set forth in N.J.S.A. 30:4C-15.1(a). We held under the appropriate appellate standard of review, H.R., supra, 431 N.J.Super. at 220-21, that the Family Part had not erred in its conclusion that the statutory criteria for termination of parental rights had been proven by DYFS, id. at 222, 225, 228, except that incorrect information had been given to the maternal aunt about the possibility of accepting a kinship legal guardianship arrangement in accordance with N.J.S.A. 3B:12A-1 to -7, H.R., supra, 431 N.J.Super. at 228-32. We held that prospective adoptive parents are entitled to receive accurate information about alternatives that may be available to adoption of the child, including the potential for a kinship legal guardianship. Id. at 233.

On remand, the Family Part held an evidentiary hearing at which a DYFS caseworker and the maternal aunt testified. The DYFS caseworker testified that information about kinship legal guardianship was provided to the prospective adoptive parents, as we had directed. The maternal aunt testified that she understood the differences between kinship legal guardianship and adoption. Because of her close relationship with the biological parents, she did not wish to choose between adoption and kinship legal guardianship, trusting the court to decide what was best for the child. She was unequivocal, however, in maintaining that she has consistently been ready and willing to adopt the child. Her resolve in that respect has remained steadfast from the time that the child was placed in her custody in May 2010.

When DYFS is involved in the care and custody of a child, as in this case, kinship legal guardianship should be considered when "adoption of the child is neither feasible nor likely, " N.J.S.A. 3B:12A-6(d)(3). When the relative caregiver is willing and able to adopt the child and has expressed that position in unequivocal terms, adoption is feasible and likely. N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J.Super. 127, 136-37 (App. Div. 2011).

As we stated in our prior opinion, the child's need for permanency is an important consideration in determining whether her best interests are met by terminating her biological parents' rights. H.R., supra, 431 N.J.Super. at 227 (citing N.J. Div. of Youth & Family Services v. M.M., 189 N.J. 261, 281 (2007)). Here, the Family Part had originally concluded the child's need for permanency supported termination of both defendants' parental rights and adoption of the child by her loving maternal aunt and uncle. Any potential misunderstanding of the adoptive parents regarding other options has now been corrected. We have no further hesitation in affirming the trial court's judgment.

Affirmed.


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