NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3473-04T43473-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.P.

Defendant-Appellant.

______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.R.,

A MINOR.

________________________________________

 

Argued September 21, 2005 - Decided

Before Judges Wefing, Fuentes and Graves

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, Docket Nos. FL-14-11-04 and

FG-14-25-05.

William J. Sweeney, Designated Counsel,

argued the cause for appellant (Yvonne

Smith Segars, Public Defender, attorney;

Mr. Sweeney, on the brief).

Geraldine O. Livengood, Deputy Attorney

General, argued the cause for respondent

(Andrea M. Silkowitz, Assistant Attorney

General, of counsel; Ms. Livengood, on

the brief).

Noel Christian Devlin, Assistant Deputy

Public Defender, argued the cause for the

minor (Yvonne Smith Segars, Public Defender,

attorney; Mr. Devlin, of counsel and on the

brief).

PER CURIAM

Defendant M.P. is the mother of S.R, an eight-year-old girl born on October 26, 1996. M.P. appeals from the judgment of the Family Part awarding Kinship Legal Guardianship of S.R. to C.M., the child's maternal grandmother. N.J.S.A. 3B:12A-1 to 7. This case has a long and tortuous procedural history. In order to fully appreciate the difficulties presented by the recent turn of events, we must take the time to recite the most significant episodes in the lives of the people who make up the nucleus of the highly dysfunctional family into which this child was born.

I

The Division of Youth and Family Services (DYFS) first removed S.R. from her parent's custody when she was just six months old. On April 26, 1997, the Randolph Police Department responded to a report of domestic violence involving M.P. and K.R., the child's father. The police found M.P. battered, intoxicated, and belligerent. There were large amounts of blood on the floor, and the apartment was in disarray. Both M.P. and K.R. were arrested and charged with assault.

DYFS assumed custody of S.R. and placed her in the temporary care of a maternal cousin. Responding in part to requests from both C.M. and M.P., DYFS agreed to place S.R. in the custody of C.M., provided that she agree to supervise all visits between the child and her parents.

In May 1997, DYFS filed a formal complaint for legal custody of S.R. pursuant to N.J.S.A. 9:6-8.21 against M.P. and K.R. DYFS alleged that both parents had abused and/or neglected the six month old baby. As to M.P., the complaint focused primarily upon her severe and chronic alcoholism that served as a catalyst for most, if not all, of M.P.'s parental deficiencies. In short, M.P.'s substance abuse problems have lead to: (1) her unstable and fragile emotional state; (2) a lack of consistent adequate housing; (3) an erratic employment history; (4) continued involvement in volatile romantic relationships; and (5) alienation from other members of her immediate family.

With these concerns in mind, DYFS sought for S.R. to continue to reside with her grandmother C.M., until such time as a permanent reunification with M.P. was possible. C.M. agreed to provide a safe and stable home for S.R., and to facilitate liberal, supervised visitations with M.P. Although, historically, C.M.'s relationship with M.P. had been tumultuous and strained, C.M. emphasized that she did not want to replace her daughter as the central parental figure in S.R.'s life.

Unfortunately, C.M.'s custodial role proved to be short lived. The emotional tension created by long term unresolved personal issues between C.M. and M.P., together with M.P.'s unwillingness to meaningfully address her alcohol problem, lead DYFS to remove S.R. from her grandmother's care. In August 1997, DFYS placed ten-month-old S.R. in foster care.

For the ensuing twenty-one months, M.P. visited her daughter through her participation in the therapeutic supervised visitation program offered by Morristown Memorial Hospital's Family Enrichment Program. S.R. was three years old by the end of M.P.'s participation in this program. Once again, M.P.'s alcohol addiction proved to be the principal destructive force impeding her reunification with S.R. On July 26, 1999, DYFS filed its first petition seeking to terminate M.P.'s parental rights.

II

On July 24, 2000, M.P. gave birth to N.A., a baby boy she conceived with her then fiancée, W.A. In August of 2000, M.P. began to show signs of progress. Based, in large part, on her consistent attendance at therapy sessions, DYFS agreed to increase M.P.'s visits with S.R. M.P. also began bringing N.A. to the visits. The treating therapist viewed W.A. as a positive influence in M.P.'s life.

In light of M.P.'s steady progress in therapy, and expressly conditioned upon remaining clean and sober, the therapist recommended that DYFS should now focus on restoring custody of S.R. to M.P., with a projected reunification date of April 2001. Events moved faster than anticipated. Four-year-old S.R. was returned to her mother on December 13, 2000, four months ahead of schedule. Thus, for the first time, M.P., W.A., S.R., and N.A., were all under one roof. Sadly, just seventeen days after M.P. was reunited with S.R., the young child's opportunity to live a stable life was once again tragically cut short.

On December 30, 2000, the Randolph Police notified DYFS that N.A. had been hospitalized with a fractured skull. W.A. was the only adult present when the child was injured. Five-month-old N.A. was pronounced dead shortly after his arrival at the hospital. Neither M.P. nor S.R. were home at the time. W.A. was criminally charged with homicide in connection with N.A.'s death, and eventually pled guilty to one count of second-degree manslaughter, N.J.S.A. 2C:11-4b(1).

In the immediate aftermath of the child's death, while the homicide investigation was in progress, S.R. was again removed from M.P.'s physical custody and placed in a foster home. For purposes of our decision here, it is not necessary to setout the chain of events that lead DYFS to take this action. Suffice it to say, M.P.'s judgment came into serious question as a result of a series of decisions she made, including concealing the fact that she had decided to separate from W.A. prior to N.A.'s death, due, at least in part, to W.A.'s use of marijuana and steroids. The net affect on S.R., was yet another displacement to yet another foster home.

After enduring another two months in foster care, S.R. was returned to her mother's physical custody on February 13, 2001. M.P. obtained custody of S.R. only under the express condition that she was to have no contact with W.A., who the police still considered to be criminally responsible for the death of N.A. Despite the obvious reasons for such a restriction, DYFS confirmed that on April 22, 2001, W.A. took M.P. and S.R. on a day trip to Pennsylvania. Armed with this information, on May 8, 2001, the Family Part granted DYFS's application to remove S.R. from her mother's care. This was the third time since April 1997 that S.R. had been removed from her mother's custody.

On August 29, 2001, DYFS removed S.R. from her foster home and again placed her in the custody of her maternal grandmother, C.M. By this time, DYFS had concluded that reunification between M.P. and S.R. was no longer a viable option. Toward the goal of C.M.'s eventual adoption of S.R., DYFS filed its second guardianship complaint seeking the legal termination of M.P.'s parental rights on June 25, 2002.

III

Although DYFS had initiated the legal process to terminate M.P.'s parental rights, C.M. remained committed to the idea of preserving M.P.'s role as S.R.'s mother. Toward that end, C.M. agreed to supervise all visitations between mother and daughter, and arrange for M.P. to take S.R. on holidays and other special events. At least for the short run, this arrangement seemed to work. For a number of months, S.R. flourished in her grandmother's care while maintaining regular contacts with her mother.

In December 2002, C.M. and M.P. entered into a mediation agreement providing that C.M. would assume the role of kinship legal guardian of S.R. A psychological evaluation of M.P. dated October 22, 2002, supported this arrangement. The report cautioned, however, that due to M.P.'s "history of drinking, work and residential instability, [and] multiple relationships with men, it would seem that she should not regain custody of [S.R.] at this time."

Despite the apparent short term success achieved by this arrangement, M.P. refused to consent to the entry of an order naming C.M. as S.R.'s kinship legal guardian. This in turn triggered the requisite adversarial proceeding and the matter was scheduled for trial. In March 2004, the spirit of cooperation between M.P. and her mother ended. As a result of a number of emotional outbursts between M.P. and C.M., and between M.P. and her therapist, the supervised visits stopped. From that point, M.P. did not see S.R. for a period of four months. Based on these developments, DYFS sought and received judicial approval to reinstate the complaint to terminate M.P.'s parental rights.

At the trial before the Family Part, the court considered three separate applications: (1) DYFS's complaint for termination of parental rights; (2) the still legally viable kinship legal guardianship petition, now presented on behalf of S.R. by the Law Guardian; and (3) M.P.'s application to dismiss all proceedings against her, and for the return of her daughter to her. After five days of hearings in which the court heard testimony from ten witnesses, including C.M. and M.P., the court rejected DYFS's termination of parental rights complaint, and granted the Law Guardian's kinship legal guardianship petition. In so doing, the judge gave the following explanation in support of his ruling:

What I have determined from these numerous examples of parental misjudgment in the past as they affected [S.R.], and right down to the present, that [M.P.] has shown that she has been, and is, equally important, still unable to perform the regular and expected functions of care and support of her daughter. And I would, as I indicated, unfortunately include in the disposition this is unlikely to change in the foreseeable future.

Key to the court's analysis, was its belief that M.P. and S.R. shared a deep emotional bond. Kinship guardianship was thus an attempt to preserve that bond, while shielding S.R. from the self-destructive forces that have plagued M.P.'s life.

IV

On January 4, 2005, the court entered the kinship legal guardianship order. This appeal followed. In the meantime, the relationship between M.P. and C.M. continued to deteriorate. On September 7, 2005, nine months from the trial court's entry of the kinship legal guardianship order, and just two weeks before this case was scheduled for oral arguments before us, C.M. notified DYFS that she was unwilling to continue to serve as S.R.'s legal guardian. We need not address the reasons that lead C.M. to this decision. It seems to us, however, this custodial arrangement was, from its inception, fatally flawed, because its success was inextricably tied to a spirit of cooperation between M.P. and C.M., two adults with a long history of unresolved personal issues.

In response to the crisis created by C.M.'s departure from S.R.'s life, DYFS immediately sought and obtained an order from the Family Part, placing S.R., once again, in a temporary foster home. The custody order, entered on September 8, 2005, also provided for S.R. to have weekly visits with M.P., including weekend visitation. In the course of reviewing DYFS's application, the court also questioned C.M. to confirm she understood the legal and practical ramifications of her decision.

Q. And with the - the Court provided you on January 4, 2005 with a judgment for kinship legal guardianship of [S.R.], who is your granddaughter. We have just spent an hour or more discussing some recent incidents and problems that have occurred.

A. Right.

Q. What is you[r] intentions today and what do you wish the Court to do with regards to the judgment?

A. Take her out of my custody.

Q. Do you wish the court to -

A. And place her back with DYFS.

Q. All right. Do you wish the Court to dismiss at date, as early as possible, the judgment awarding kinship legal guardianship to you?

A. Yes, I do.

Q. And do you recognize that in doing so, any rights that you may have been entitled to would go away?

A. That's fine.

Q. That may mean that you would not [sic] longer have your standing to seek visitation at some point.

A. I'm not seeking anything, your Honor.

Q. You could come under a statute entitled grandparent visitation, but basically any rights that may have been accorded to you under that judgment would be vacated.

A. That's fine.

We cannot but be saddened by the straightforward, dispassionate manner in which C.M. delivered her granddaughter into the hands of DYFS. We do not, of course, minimize or in any way discount the effort involved in raising a young child, especially one who has experienced the type of turmoil and emotional upheaval that S.R. has endured. Nor do we question the legitimacy of any allegations of custodial interference and harassment leveled by C.M. against M.P. These matters are simply not before us as issues to be addressed in this appeal. We merely observe that each of the adults charged with providing emotional support and nurture to S. R. have, at various times and for various reasons, failed to do so. S.R. is a little girl who has, in her short life, tragically experienced more pain and disruption than most adults do in a lifetime.

V

We finally come to the current procedural status of this case. On September 16, 2005, DYFS filed a motion before us seeking a remand of this case to the Family Part judge who entered the kinship legal guardianship order, "for further proceedings to establish a permanent plan for S.R.'s care." M.P. filed a cross-motion seeking leave to appeal the entry of the latest order placing S.R. in foster care. M.P. also, of course, seeks an immediate return of S.R. to her care and custody, and for the dismissal of any DYFS-initiated proceedings against her.

We will first address the status of this appeal. We are satisfied that C.M.'s renunciation of her role as S.R.'s kinship legal guardian has effectively vacated the judgment entered by the Family Part that is the subject of this appeal. N.J.S.A. 3B:12A-6g provides that:

An order or judgment awarding kinship legal guardianship may be vacated by the court if, based upon clear and convincing evidence, the court finds that the guardian failed or is unable, unavailable or unwilling to provide proper care and custody of the child, or that the guardianship is no longer in the child's best interests. (Emphasis added).

The previously cited colloquy between the Family Part judge and C.M. also establishes, by clear and convincing evidence, that this arrangement is no longer in S.R.'s best interest. DYFS' motion for remand is moot and the appeal is dismissed.

The only other matter left to decide is M.P.'s motion for leave to appeal the Family Part's temporary custody order. After a careful review of the issues, we grant M.P.'s motion for leave to appeal, and summarily remand the matter to the Family Part judge who presided over the termination/kinship legal guardianship trial. That judge's familiarity with the facts and issues of this case should serve to expedite the handling of this latest petition for permanency. The custody order entered on September 8, 2005, remains in full force and effect until further order of the trial court.

We emphasize to the trial court the need to proceed to finality on this matter with all deliberate speed. We thus expect that, absent extraordinary circumstances, the case should be heard through continuous hearing dates, leading to a final permanency determination within sixty days.

 
Appeal dismissed. Defendant M.P.'s motion for leave to appeal the Family Part order entered on September 8, 2005, under Docket No. FN-14-46-06, is granted. That matter is summarily remanded to the trial court for further proceedings in accordance with this opinion.

The complaint also sought to terminate the parental rights of S.R.'s father, K.R. On December 22, 1999, K.R. executed an identified surrender of his parental rights to S.R.

On November 14, 2000, the Family Part dismissed the guardianship complaint filed by DYFS on July 26, 1999, seeking to terminate M.P.'s parental rights over S.R. The Family Part also ordered that S.R. remain a ward of the Court, under DYFS's care and supervision, and directed DYFS to file a Title 9 protective services complaint pending the child's reunification with her mother.

The judge who entered this order was not the same judge who presided over the hearings that lead to the judgment for kinship legal guardianship.

(continued)

(continued)

2

A-3473-04T4

RECORD IMPOUNDED

October 6, 2005