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

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4289-04T44289-04T4

A-4290-04T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.P.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF J.P. & B.P.,

Minors.

__________________________________

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.P.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF J.P. and B.P.,

Minors.

________________________________________

 

Submitted September 26, 2005 - Decided

Before Judges Lintner, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG 09-129-02.

Yvonne Smith Segars, Public Defender, attorney for appellant, S.P. (Alan I. Smith, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant, P.P. (Alison Perrone, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors J.P. and B.P. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

P.P. and S.P., the biological mother and father, respectively, of two girls, J.P. (born February 9, 1999), and B.P. (born September 23, 2000), appeal separately from a final judgment entered on March 18, 2005, on remand from the Supreme Court, N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494 (2004), terminating their parental rights to B.P. Because we find the trial court's findings are supported by clear and convincing evidence, we affirm.

I.

The procedural history is fully set forth in the Court's decision directing the remand. Ibid. In order to put these appeals into context we restate the following brief procedural history, followed by the facts as developed on remand.

On October 4, 2000, the Division of Youth and Family Services (DYFS) filed a complaint for custody of the children because of the parents' chronic substance abuse and failure to provide a safe and stable home environment for the children. J.P. was placed in the custody of his paternal grandmother, E.P., in October 2000, and B.P. was placed in the custody of her maternal grandmother, M.B., in January 2001. On October 25, 2001, DYFS filed a complaint for termination of the parents' parental rights to the children pursuant to N.J.S.A. 30:4C-15.1a.

The termination trial was conducted before Judge Salvatore Bovino on August 2, 5, and 6, 2002. During the trial, the judge heard testimony from two psychologists, Dr. Frank Dyer and Dr. Paul Fulford. Although the experts agreed that both parents were making substantial progress in their substance abuse rehabilitation, having entered long-term in-patient rehabilitation programs, they concluded that the parents were not fit at time of trial to parent the children. As to the future, the experts "disagreed as to whether and how soon that could or would occur." P.P., supra, 180 N.J. at 512. Based on the evidence presented at trial, including expressions from the grandmothers that each desired to adopt the child in her custody, Judge Bovino concluded that DYFS had established, by clear and convincing evidence, all necessary criteria under the termination statute, including that the parents "were unable to provide a safe and stable home at that time and in the foreseeable future," and entered an order on August 19, 2002, terminating the parents' parental rights to the children. Id. at 503. The judge also found that because the grandmothers were willing to adopt the children, that guardianship pursuant to the Kinship Legal Guardianship Act (Act), N.J.S.A. 3B:12A-1 to -7, was not an alternative to termination.

On appeal, this court determined that DYFS had not established all necessary criteria under the termination statute by clear and convincing evidence and had failed to consider kinship legal guardianship as an alternative to termination. We reversed the order terminating the parental rights of the parents and remanded the matter to the trial court with the following directions:

Those proceedings should include a current evaluation of the mother and father and a comparative bonding evaluation of the children. If it is determined that either P.P. or S.P., is, or both are, presently fit to parent J.P. and B.P., the reunification steps shall begin. If present fitness is not demonstrated, however, application of the Kinship Guardianship Act shall be considered as an alternative to termination.

[N.J. Div. of Youth & Fam. Servs. v P.P. (P.P. - App. Div.), No. A-6871-01T4 and A-0154-02T4, slip op. at 22 (App. Div. May 23, 2003).]

On grant of DYFS's petition for certification, the Court held: 1) that the evidence supported the trial judge's decision that termination of the parents' parental rights was in the "best interests of [the children];" and 2) that a guardian under the Act may only be appointed when adoption of the child is "neither feasible nor likely." Id. at 508-11. Notwithstanding, because new information was brought to the Court's attention concerning the parents continuing efforts to overcome their substance abuse addiction, and E.P.'s wavering in her commitment to adopt J.P., the Court was "constrained . . . to rule substantially" as this court. Id. at 513. The Court remanded the matter to the trial court for:

[F]urther 'evaluation of the mother and father' and consideration of any change in respect [to] the grandparents' wishes vis- -vis adoption. If P.P. and S.P. are not fit now to parent their children, the trial court should not consider kinship legal guardianship unless either (or both) of the grandparents decline to adopt.

[P.P. - App. Div., slip op. at 22.]

On November 1, 2004, and March 14, 15, and 18, 2005, the remand hearing was conducted by Judge Bovino.

At the conclusion of the remand hearing, after determining that neither P.P. nor S.P. had the ability to parent either or both of their daughters at time of trial, Judge Bovino rendered a comprehensive, oral decision terminating both parents' rights to B.P. and directed DYFS to file a complaint for kinship legal guardianship as to J.P., with her paternal grandmother being appointed guardian. On March 18, 2005, an order was entered terminating the parents' parental rights to B.P. By order of May 6, 2005, the court granted E.B. kinship legal guardianship of J.P. with visitation by the parents to "continue as arranged by the parties." The parents appeal from the order of March 18, 2005. The children's law guardian supports the decision below which frees B.P. for adoption by her maternal grandparents and allows the paternal grandmother to be appointed the kinship legal guardian for J.P.

II.

The only witnesses to testify at the remand hearing were Ramanita Rivera, a DYFS caseworker for the two children; M. B., the maternal grandmother; Dr. Frank Dyer, on behalf of DYFS; Dr. Paul Fulford, on behalf of S.P.; and Dr. Gerard Figurelli, also a psychologist, on behalf of P.P.

Ramanita Rivera testified that DYFS's plan for B.P. was termination of parental rights, followed by adoption by her caretaker and maternal grandmother, M.B. Rivera testified that DYFS's plan for J.P. was for appointment of E.P. as the child's kinship legal guardian under the Act.

M.B. testified that she has had custody of B.P. since the child was three months old. M.B. testified that she is aware of the difference between a kinship legal guardianship and adoption and, although she had vacillated in her commitment to adopt a few months earlier, that she and her husband desired to adopt B.P. because they believed it is in the best interest of the child. She testified that S.P. had only come to her house to visit B.P. once in the past year but that P.P. had visited her on several occasions since Christmas, including B.P.'s birthday. M.B. further testified that she had complied with the court's prior orders concerning visitation by bringing B.P. to her uncle's and aunt's homes where S.P. and P.P. could visit with their daughter.

Dr. Dyer testified as an expert for DYFS concerning updated psychological evaluations he had conducted of the parents; of his updated bonding evaluations of the children with their parents; of J.P. with E.P.; and of B.P. with her maternal grandparents.

Dyer testified that P.P. and S.P. are no longer romantically involved as they were at the time of the original trial, but remain friendly and spend time together with their children. As to S.P., Dyer found that he has been drug free since 2001; has completed his substance abuse rehabilitation; is living in his own apartment in the Bronx, New York; is employed as a counselor providing counseling and service management to AIDS victims; and is intending to pursue a Bachelor's Degree in human services. Dyer testified that S.P. had advised him that he no longer desires to have co-custody of the children with P.P., but he wants P.P. to assume the primary custody of the children and he would visit them regularly. Dyer opined in his report that S.P.:

[W]ould be entirely adequate as a non-custodial figure in the lives of both the children, no matter what the legal status of his parental rights might ultimately be. Further, it is my opinion . . . that [S.P.] is neither interested in nor capable of being the sole custodial parent of either child. [S.P.] seems to be devoting considerable energy to the continuation of his recovery process, functioning well on his job, and pursuing further education in order to advance his employment prospects.

As to P.P., Dyer opined that she did not have "the capacity to parent either child individually or both [children] jointly," at the time of trial, nor in the "near term."

Dyer recognized that P.P., like S.P., has made great strides in her substance abuse rehabilitation to where she has remained drug free since October 2001; is employed as a counselor at a Salvation Army facility for teenage girls and young adults; and is pursuing further studies at college. However, Dyer opined that because P.P. only has transitional housing, living in the same single room in a house with several other adult women where she has lived since 2003, and only has employment providing minimal support, that P.P. is not presently able to provide proper housing and support for herself, with either one, two or all three of her children.

P.P. advised Dyer that she believed that her relationship with her mother has improved, and she spent the two preceeding weekends at her mother's house with P.P. and her third child, M.P. When Dyer inquired of P.P. as to her plans to regain custody of her children, P.P. advised that she thought that she would be able to obtain a better job and larger apartment within a few months. Dyer did not accept P.P.'s statement of intention and dismissed her plans as based "largely on a wish-fulfilling fantasy of making up for the years that she was unavailable to her children due to her drug addiction." Lastly, Dyer believed that P.P. fails to appreciate the extent of the harm that might be caused to B.P. if B.P. was removed from her grandparents' care, after having lived with them for four years.

In his March 5, 2005, bonding assessment of the parents with their daughters, Dyer stated that although both girls presented themselves as enthusiastic and playful during the session, that J.P. was more responsive and demonstrably affectionate towards her parents, than B.P. In his bonding evaluation of B.P. with her maternal grandparents, Dyer determined that the grandmother is unequivocally B.P.'s "central parental love object and identification figure" and that the child is also attached to the maternal step-grandfather as well.

In his report of March 5, 2005, Dyer expounded upon the difference in the relationship between B.P. and her parents as compared to B.P. and her grandparents:

While [B.P.] relates positively to both her birth mother and her birth father in the sense that they are easily able to engage her in play, she accepts physical affection from them well, and does not display any apprehension around them, it is my opinion . . . that she has not developed a true attachment to them. The term 'attachment' in the sense that it is employed in the psychological literature, denotes a relationship in which the attachment figure occupies a position of centrality in the child's emotional life and represents someone to whom the child can turn for comforting in times of distress and protection in times of danger. There is also the consideration that attachment relationship serves as the basis for the child's development of a sense of self via the process of identification with the attachment figure. The attachment relationship also serves as a template for the child's future intimate relationships. In my opinion, all of these processes are currently associated with [B.P.'s] relationship with her maternal grandmother and step[-]grandfather, and not with the birthparents. This is exactly the same situation as was the case during previous assessments of this child. With the passage of more than a year since the last round of assessments, [B.P.'s] attachment to her maternal grandmother and step[-]grandfather has only deepened.

Dyer also opined in his report of March 5, 2005, as to potential harm that B.P. would suffer if separated from her maternal grandparents:

[B.P.] would suffer a traumatic loss if she were removed from the care of her maternal grandmother and step[-]grandfather. The most likely consequences of such a loss would include a short-term reaction of withdrawal, aggression or some alteration between the two types of behaviors, as well as a regression in the development areas of speech, feeding skills, and social responsiveness. Given this child's current age, there is also a very substantial risk of severe long-term harm including impaired self-esteem, impaired basic trust, and an impaired capacity to form attachments to new caretakers if [B.P.] were to suffer the loss of her central parental love objects, the maternal grandmother and step[-]grandfather.

As to J.P., Dyer determined that she would be able to separate from her paternal grandmother and transition into P.P.'s care without suffering any enduring harm. Dyer found that while J.P. is primarily attached to her paternal grandmother, she is also significantly attached to her parents having lived with them for a considerable period of time in E.P.'s home prior to DYFS filing its complaint and because of the number of visitations that occurred between the parents and J.P. in the recent past. Accordingly, Dr. Dyer did not predict any particular long-term or severe effect on J.P. if she were removed from E.P.'s custody and placed with P.P.

Based on Dyer's evaluations, he recommended adoption of B.P. by the maternal grandparents in order to ensure the continued psychological wellbeing of the child, perceiving no realistic likelihood that the paternal grandparents would deny contact with the mother. Dyer testified that, even if such contact with the parents were to cease, his opinion as to the desirability of B.P. being adopted by her paternal grandparents would not change. As to J.P., Dyer recommended kinship legal guardianship as the preferred plan with E.P. serving as the guardian. However, he did not envision an immediate reunification of J.P. with her birth parents: "I am most definitely not speaking about now, nor am I speaking about the near term."

Dr. Paul Fulford testified on behalf of S.P. Fulford had evaluated S.P. in July 2002, and testified at the first trial. In preparation of the remand hearing, Fulford conducted an updated psychological assessment of S.P.; a bonding assessment of S.P. with both parents; and a bonding assessment of the maternal grandmother with both girls. Fulford did not conduct an updated assessment of P.P. or a bonding evaluation of P.P. with the two children.

Fulford characterized S.P.'s drug addiction as being in full remission and determined that S.P. has the intellectual and emotional capability to co-parent with P.P. Fulford described the parents' relationship as being cooperative - - "they work together", are "concerned about their children," there is "no blaming" the other or "comparing oneself as the better parent."

It was Fulford's opinion that S.P. is fit to co-parent with P.P. having primary custody of the children. Fulford envisioned S.P.'s relationship would be "much like a divorced father, he would visit . . . he would take them both for day trips or overnights as could be arranged, again, like a divorced father."

As to bonding, Fulford testified that although the children know that S.P. is their "daddy and they call him daddy," they also "know he's not their daily caregiver." He also determined that B.P. would look to her maternal grandparents as her primary caregivers, and that there is bonding between: S.P. and his daughters; between the children and the maternal grandparents; and the two girls themselves. Lastly, although Fulford opined that a termination of custodial relationship with the maternal grandmother would require a degree of adjustment, he was not of the opinion that it would cause permanent and irremediable harm.

Dr. Gerald Figurelli testified on behalf of P.P. Figurelli had conducted an initial evaluation of P.P. and an assessment of P.P. with her two daughters in November 2003, and updated both evaluations in February 2005. At the time of the 2005 interview, P.P. informed Figurelli that she was attending college full time and working part time as a counselor for the Salvation Army. P.P. also informed Figurelli that she had completed parenting skills training and had the support of both paternal and maternal members of her children's families. It was Figurelli's opinion that P.P. was in full remission from drug dependence; that she had "significantly increased" her employability and earning capacity because of her college education; and that she was prepared to make a "successful transition and adequate adjustment to an independent living arrangement," having resided in a transitional home for the past two years. It was Figurelli's opinion that P.P. was fit to parent her children.

As to bonding between P.P. and her two daughters, Figurelli determined in 2003 that there was a significant emotional bonded relationship between B.P. and J.P., but not between P.P. and B.P. Figurelli described the relationship between P.P. and her youngest daughter as "a significant level of emotional attachment, not yet at that point in time a fully bonded relationship." In 2005, Figurelli testified that he had determined the relationship between P.P. and J.P. was that of an "emotional bonded relationship . . . that is reciprocal in nature." With regards to B.P., Figurelli noticed that there appeared to be some development and growth in the attachment in the relationship between P.P. and B.P.

Figurelli was unable to render an opinion as to whether B.P. would suffer any harm if removed from her maternal grandmother because he had not conducted a bonding evaluation between them. However, he did expect significant attachment and a bonding relationship between the two because of the length of time that they have lived together. Lastly, it was Figurelli's opinion that P.P.'s rights to both daughters should not be terminated, and that reunification of both girls with P.P. was a "realistic and appropriate goal to pursue."

III.

Both parents argue on appeal that DYFS failed to prove by clear and convincing evidence that they were presently unfit to parent their children. We disagree.

In deciding the issue raised, we keep in mind the conclusions reached and the directions for remand given by the Court on certification. The Court had concluded that the evidence presented at the original guardianship trial supported the trial judge's decision that termination of the parents' parental rights was in the best interests of J.P. and B.P. P.P., supra, 180 N.J. at 511. It was only because new information had been brought to the Court's attention concerning the parents' continuing efforts to overcome their chronic substance abuse and that the paternal grandmother was wavering in her commitment to adopt J.P., that the court found itself constrained to order a remand on two narrowly framed issues: "'evaluation of the mother and father' and consideration of any change in respect of the grandparents' wishes vis- -vis adoption." P.P. - App. Div., slip op. at 22.

The Court further limited the scope of the remand by narrowing the time period for the evaluation of the parents: "If P.P. and S.P. are not fit now to parent their children, the trial court should not consider kinship legal guardianship unless either (or both) of the grandparents decline to adopt." Id. at 514 (emphasis added).

While recognizing that the four statutory standards found in the termination statute, N.J.S.A. 30:4C-15.1a, are not discrete and separate, but overlap and together provide a comprehensive standard for identification of the child's best interest in a termination case, In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999), we agree with the trial judge that the issues on remand primarily concerned the second and fourth prongs of the "best interest of the child" standard:

(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 would cause serious and enduring emotional or psychological harm to the child;

. . . .

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1a.]

Judge Bovino was confronted with different opinions from three psychologists concerning the parents' present ability to parent their children and potential harm to B.P. if separated from her maternal grandparents. The judge was required to evaluate the opinions and decide what weight to assign to each. As the fact finder, Judge Bovino was not required to give "controlling effect to any or all of the testimony provided by experts even in the absence of evidence to the contrary." State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff'd, 130 N.J. 484 (1993). Judge Bovino was free to "adopt so much of [each opinion] as appears sound, reject all of [them], or adopt all of [them]." Ibid. (quoting State Highway Comm'n v. Dover, 109 N.J.L. 303, 307 (E. & A. 1932)). After weighing the testimony of the three experts, Judge Bovino found the opinions rendered by Dr. Dyer were more persuasive than those of Drs. Fulford and Figurelli.

Dr. Dyer has testified that his opinion is based on a totality of the information given to him, a totality of the history of the parents, bonding evaluations, psychological testing, review of reports, and obviously his continuous evaluation, reevaluations of all parties, the children, the grandparents [S.P.], [P.P.], three times over the course of two years plus.

Having accepted the opinions of Dr. Dyer concerning the present fitness of the parents to parent their children and the harm that could befall B.P. if removed from the custody of her maternal grandparents, Judge Bovino concluded that although both parents have the ability to parent some "generic child" in the future, they do not have the ability to parent the child [B.P.] "at this time." Finding that B.P. is entitled to permanency and that the maternal grandmother desired to adopt, Judge Bovino concluded for the second time that termination of the parents' parental rights as to B.P. was in the best interest of that child.

Judicial determinations of whether DYFS has established each part of the required statutory standard to support termination of parental rights of a natural parent are fact sensitive. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005). A trial judge is required to sift through the evidence presented in the case, make judgments concerning witnesses' credibility and determine whether DYFS has established each part of the statutory criteria by clear and convincing evidence. On appeal factual findings and conclusions of the trial judge are generally given deference, especially when the evidence is "'largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (1998) (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

We have considered the arguments advanced by the parents concerning the issue of whether the record supports Judge Bovino's decision, by clear and convincing evidence, terminating their parental rights to B.P. For the reasons stated by the judge in his oral decision of March 18, 2005, we conclude that his decision was in the best interest of that child. We also conclude that since the paternal grandmother, E.P., no longer desires to adopt J.P. but is willing to accept a guardianship of the child, that the judge's consideration of kinship legal guardianship and appointment of E.P. as the legal guardian under the Act is appropriate. P.P., supra, 180 N.J. at 508.

P.P. also argues that the trial judge "erred in refusing to consider alternatives to termination." At the remand hearing, P.P. argued that DYFS and the court should consider other alternatives to termination of parental rights, such as long-term foster care. P.P. contends that the court erred in ruling that consideration of alternatives to termination was beyond the scope of the remand. We disagree.

The issue framed by this court, as adopted by the Court, was for the trial judge to determine whether or not either or both of the parents are now (presently) fit to parent their children. We purposely framed the issue narrowly because of the time that had elapsed from the placement of the children in custody of their grandmothers through the time of appeal and are concerned that a "delay in permanent placement" will further harm the child. K.H.O., supra, 161 N.J. at 352; N.J.S.A. 30:4C-15.1a(2). The remand was not for the purpose of continuing the temporary custody of the children with their grandmothers while the parents continued to rehabilitate their lives from past chronic substance abuse in anticipation that someday in the future they would be able to provide a "safe and stable home for the child." K.H.O., supra, 161 N.J. at 352; N.J.S.A. 30:4C-15.1a(2). It should also be noted that long-term foster care can no longer be considered or ordered in DYFS proceedings as the statute authorizing this form of custody, N.J.S.A. 30:4C-26.11, was repealed, effective September 1, 2005. See L. 2004, c. 130, 128. As to consideration of appointment of a guardian under the Act, the Court held that was not a valid alternative to termination when adoption is feasible or likely. P.P., supra, 180 N.J. at 508.

Lastly, S.P. argues that the decision of the trial judge should be reversed because the judge "failed to consider the issue of 'sibling rights' as it related to the fourth prong." During cross-examination of Dr. Dyer, S.P.'s counsel inquired as to how he perceived the sibling relationship between J.P. and B.P. has been maintained. In sustaining an objection to the question on the grounds of relevancy, the trial judge stated:

Well, I assume that they have a relationship, they love each other, they love being with each other, they enjoy being with each other. Obviously they have a relationship. Whether or not [B.P.] recognizes that as a sister/sister relationship or relative relationship, good friend relationship it [is] somebody that she enjoys being with. And I suspect that there would be some harm, just as Dr. Dyer said about the loss that would happen if [S.P.] and [P.P.] stopped - - [B.P.] stopped seeing them. But what's the relevance in the question of fitness of the parents to parent the child and termination?

S.P. concedes that the trial judge correctly determined that the issue of sibling rights is not relevant with regard to the issue of parental fitness. However, S.P. contends that the trial judge "abused his discretion in failing to find the issue of sibling rights to be relevant in analyzing the fourth prong of the best interest[s] test."

Assessing sibling rights is part of the evaluation required by the "best interests" of the child standard under N.J.S.A. 30:4C-15.1a. The four-part test was applied by the judge at the original trial, and the Court held "the evidence amply supports the trial court's decision that termination of parental rights is in the best interests of J.P. and B.P." P.P., supra, 180 N.J. at 511. The matter was not remanded for reconsideration of sibling rights. It was remanded solely to determine whether or not the parents are presently fit and whether the grandparents still desire to adopt the children. Therefore, we agree with Judge Bovino's ruling that the question presented to Dr. Dyer was not relevant to the issues on remand.

 
Affirmed.

We have consolidated the appeals for purpose of this decision.

B.P. is also the biological mother of a third child, M.P., who has resided with his maternal grandmother since shortly after his birth in 1993, and who is not the subject of this proceeding.

Prior to commencement of the remand hearing, E.P. had advised DYFS that she no longer desired to adopt J.P., but that she would be willing to accept a kinship legal guardianship of the child. During the trial, DYFS advised Judge Bovino that DYFS would not be requesting the termination of the parents' parental rights as to J.P. but would be filing a motion to amend the guardianship complaint to seek kinship legal guardianship of J.P. and that DYFS intended to rely on the evidence presented during the guardianship trial in support of the kinship legal guardianship application.

We note a second confirming order terminating the parental rights of the parents to B.P. was entered by the court on April 11, 2005.

The notices of appeal filed by the parents are from the order of March 18, 2005, terminating their parental rights to B.P. and not from the order of May 6, 2005, granting E.P. kinship legal guardianship of J.P. However, it is P.P.'s position that DYFS failed to prove parental unfitness and argues on appeal that the trial court erred not only in terminating her parental rights to B.P., but also in ordering DYFS to file for kinship legal guardianship as to J.P. In other words, it is P.P.'s position that she is currently fit to parent both of her children, and thus, the court should have ordered both children returned to her custody.

Under the Act, for the court to appoint a kinship legal guardian, the court must be satisfied, by clear and convincing evidence, of four criteria two of which are: "(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;" and "(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future." N.J.S.A. 3B:12A-6d(1) and (2). "Parental incapacity" is defined under the Act as "incapacity of such a serious nature as to demonstrate that the parent is unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child." N.J.S.A. 3B:12A-2.

(continued)

(continued)

24

A-4289-04T4

RECORD IMPOUNDED

October 28, 2005

 


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