NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
C.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.B. and A.P., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FL-07-0031-08 and FL-07-0211-07.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Karen Kleppe Lembo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.B. and A.P. (Lisa M. Black, Designated Counsel, on the brief).
Before Judges Lihotz and Hoffman.
In these consolidated appeals, defendant C.B. appeals from the denial of her motion to vacate judgments of kinship legal guardianship (KLG) entered in 2007 as to her two sons, D.B. (Darin), born in 2000 and A.P. (Adam), born in 2001. Defendant had filed a motion to vacate the judgments in 2011, asserting her parental incapacity, namely her lack of housing, had been resolved. For the reasons that follow, we reverse and remand for further proceedings.
In February of 2004, the Division of Youth and Family Services (the "Division") received a referral from a Newark Police officer. Defendant had left her children with her godmother on a Friday evening and returned that Sunday morning. While in the godmother's care, a 13-year-old baby sitter abused Adam.
After the Division discovered defendant lacked adequate housing for her sons, the children were initially placed with her sister T.B.; then, starting in early June, the children spent approximately one month in foster care. On July 8, 2004, Darin returned to live with T.B., where he remains today. The court entered a judgment for KLG of Darin in T.B.'s favor in September 2007. On the same day, Adam went to live with his paternal aunt, L.C., and the court entered a judgment for KLG of Adam in her favor in March 2007. In 2008, Adam started living with L.C.'s sister, J.T., in Randolph, where the child has done well. The transfer of Adam's physical custody was completed on an informal basis, with no involvement of the court or the Division.
On April 18, 2011, defendant filed a motion to vacate both KLG judgments, certifying, "I have beds for my kids and I have my own apartment[.] I am able to take care of them." In response to the motion, the court ordered the Division to complete an investigation, including interviewing the children and their guardians.
In a report dated July 13, 2011, the Division stated that defendant resides in a three-bedroom apartment on the first floor of a two family home; there are separate bedrooms for Darin and Adam, each furnished with a twin bed and dresser. The report noted the home was clean and safe, had working utilities, and ample food in the refrigerator and cabinets. Defendant related that she receives a Section 8 housing allowance, which covers 100% of her $1, 100 monthly rent. She also receives $200 in food stamps and $125 in municipal welfare benefits. The report further noted defendant was laid off from a bus company in May 2011, after two months of employment, and had not yet secured new employment.
The report also indicated defendant has regular visitation with Darin, but only sporadic visits with Adam; defendant expressed concern that she had not seen Adam for nearly two months. She appeared upset that her son has been living in Randolph with another paternal aunt, J.T. (L.C.'s sister), rather than with L.C., his kinship legal guardian, for the past three years.
When interviewed by the caseworker, T.B. advised that she has no problem with defendant regaining custody of Darin because "she is willing and able to assume responsibility of her children." The caseworker spoke with Darin separately; he stated that he has no problems living with his mother, that he visits her every weekend and sometimes during the week when school is in session, and enjoys the meals his mother prepares for him.
The caseworker also met with Adam and L.C. in Randolph, where Adam had been residing for the previous three years in a three-bedroom, one-family home with surrounding land. During the interview, L.C. expressed concern with defendant regaining custody of Adam. She explained that Adam is "very well adjusted to his home environment, " and she questioned whether defendant "would follow through with his education and extracurricular activities." She also feared that Adam "would be neglected if the court orders him to return home, " and claimed that defendant is using the children to obtain welfare benefits.
The caseworker interviewed Adam alone. He expressed his desire to live with his mother; however, he also indicated he enjoyed living in his current home. Adam related that he engages in activities such as lacrosse, football, wrestling, and piano lessons and would want to continue those activities if he is returned to his mother.
At a hearing on July 19, 2011, the judge heard from defendant, the Division, and the Law Guardian for the children with respect to the motion to vacate. The Law Guardian reported that "on one occasion [Adam] did indicate that he did not want to go home to his mother. However, . . . (now) he's actually excited about it." She also stated, based on the Division's home evaluation report, defendant appears to be in a position to mitigate any harm that may result from Adam's transfer from his current caretaker. The judge indicated that reunification is always favored; however, he also expressed concerns that Adam had spent approximately sixty percent of his life with a caregiver and was excelling in his current environment.
During this hearing, defendant informed the judge that Adam did not reside with his kinship legal guardian in Hillside, but instead lived in Randolph, with his guardian's sister, J.T. Because this change reduced her visitations with Adam, she requested more visitation. The judge denied defendant's request for increased visitation, indicating he was deferring to the KLG judgment, which gave the kinship legal guardian discretion regarding visitation; he did indicate that he would "allow a motion to be made that . . . provides the court with some reason why I should increase custody[.]" The court relisted the matter to allow for the Division to take a position on defendant's motion, after considering the factors set forth in N.J.A.C. 10:132A-3.6(a).
On August 3, 2011, the Division presented a letter to the court declining to take a position on defendant's motion without professional evaluations of the children and their caretakers. At a case management conference held that day, L.C. opposed defendant's motion as it pertained to Adam. The Law Guardian supported reunification of defendant with both children. The Law Guardian also expressed concern about Adam no longer residing with his kinship legal guardian, L.C. The Law Guardian requested that Darin be returned home and that the court continue litigating the motion to vacate with respect to Adam.
The judge analyzed New Jersey Division of Youth & Family Services. v. L.L., 201 N.J. 210 (2010) as requiring that the biological parent must prove more than the resolution of the incapacity that resulted in the KLG. The judge stated:
So simply saying the reason they took the child was because of this issue[, ] that's not the relevant consideration now. It is a consideration . . . [b]ut the fact that she may have resolved that is not the reason that she should get the children back. The fact that she comes back and proves to this [c]ourt by clear and ...