STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES v. G.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1709-05T41709-05T4

STATE OF NEW JERSEY, DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

G.H.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF K.H.,

A Minor.

___________________________________

 

Submitted August 8, 2006 - Decided August 21, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey,

Chancery Division, Ocean County, Docket No.

FN-15-62-02.

Yvonne Smith Segars, Public Defender, attorney for appellant, G.H. (Christine B. Mowry, Designated

Counsel, on the brief).

Zulima V. Farber, Attorney General of New Jersey,

attorney for respondent, State of New Jersey, Division of Youth and Family Services (Patrick DeAlmeida, Assistant Attorney General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian attorney for minor child, K.H. (Noel C. Devlin,

Assistant Deputy Public Defender, on the brief).

PER CURIAM

Appellant, G.H., appeals from a June 22, 2005 final order of the Family Part awarding kinship legal guardianship of her daughter, K.H., born July 8, 1999, to C.M. and D.M., the child's maternal aunt and uncle, with whom she has been living since April 2002. We affirm.

The Division of Youth and Family Services (DYFS) removed K.H. from G.H.'s care and custody on April 3, 2002, following her arrest for drug possession while in the minor's presence, and after her husband, Ga.H., obtained a temporary restraining order against her. As a result of her drug arrest, an order stipulating G.H.'s neglect of K.H., pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 9:6-8.44, was entered on September 17, 2002. Upon her removal from G.H.'s care, and after it was determined that Ga.H. was on Megan's Law perpetrator list as a result of his sexual assault convictions in 1991 involving a minor, K.H. was placed in the custody of her maternal aunt, C.M., and her husband, D.M., with whom she has remained ever since. After a period of supervised visitation, by consent order of October 23, 2002, G.H. was eventually permitted unsupervised visits with K.H. for two hours every Saturday and Sunday in public places.

In the meantime, on May 2, 2002, G.H. underwent substance abuse evaluation and thereafter was required to complete intensive outpatient treatment, psychiatric evaluations, an after-care program, and frequent urine screens. Although on June 26, 2002, G.H. completed a program at Paul Kimball Shoreline Behavioral Services, where she was treated for depression, anxiety and heroin dependence, she failed to complete a substance abuse after-care program at Counseling and Referral Services of Ocean, from which she was discharged on June 17, 2003 for non-compliance because of two absences.

Although in March 2003, the court extended the time in which reunification was the goal in order to allow G.H. another opportunity to complete substance abuse aftercare and obtain a stable home for K.H., on June 13, 2003, on DYFS' recommendation, the court entered an order directing that the permanency plan for K.H. was kinship legal guardianship. Orders of February 10, 2004, May 10, 2004, and June 16, 2004 required G.H. to obtain certain services, including domestic violence and anger management counseling. Moreover, G.H. was referred for psychological evaluation, which was performed by Dr. Alan Lee on March 26, 2004. As a result, Dr. Lee recommended ongoing individual psychotherapy, a domestic violence victim program, anger management classes, a parenting education program, an updated substance abuse evaluation and frequent urine monitoring. By order of June 16, 2004, the permanency goal changed from kinship legal guardianship back to reunification and G.H. was directed to follow the recommendations and requirements of previous court orders and professional evaluations, maintain weekly contact with DYFS, and sustain a stable living environment.

Although G.H. completed parenting education classes on January 13, 2003, she once again failed to attend another substance abuse after-care program scheduled in August 2004. She also failed to complete an anger management program until the commencement of the instant trial. In addition, there were occasions when G.H. missed random urine monitoring tests. For instance, she failed to give a urine test after a request from a DYFS caseworker in April 2003 and refused to submit to a urine test when the caseworker came to her job on June 5, 2003. On February 9, 2005, G.H. did not remain to give a urine sample after completing a substance abuse evaluation. Subsequently, on May 23, 2005, G.H. did not provide the requested urine sample because, she claimed, she did not have a ride to the testing center.

G.H. has also failed to maintain weekly contact with DYFS presumably because she has not maintained the same residence throughout the period of DYFS' involvement. In this regard, during part of 2004 and 2005, G.H. indicated that she was living with her father, but it appears that she was actually living intermittently with Ga.H., for whom no address had been given. This arrangement was of heightened concern to DYFS, N.J.S.A. 9:2-4(a), in light of Ga.H.'s 1991 conviction of sexual assault against his minor stepdaughter from a previous marriage, and his subsequent failure to attend sex-offender specific therapy that had been recommended by Dr. Lee. Although DYFS ultimately found G.H.'s present residence suitable for raising K.H., the agency remained concerned with whether G.H. can maintain a stable living environment. At time of trial, G.H. was not employed and had not worked for about seven months. According to G.H., her unemployment is attributed to her lack of transportation.

On November 8, 2004, DYFS amended its complaint to again request kinship legal guardianship. A trial was held on June 15, 2005, at which time C.M. testified that she and her husband were willing to serve as K.H.'s guardians and that they understood the requirements and restrictions of serving in that capacity.

After conclusion of the evidence, the Family Part judge granted DYFS' petition for kinship legal guardianship. She reasoned:

This is a [kinship legal guardianship] application where the Court is being asked to keep a child in a circumstance that I cannot believe under any concept of child rearing is healthy or appropriate. There is nothing in this file to show this Court that [C.M.]'s belief that her sister has stabilized is in any way correct. G.H. testified in this Court before me. She was evasive, she was unable to focus on any answer that she gave. She was at various times during the Court day either laughing or crying. I understand this is an emotional situation, but her emotional reactions were not in any way in keeping with the testimony that was ongoing. It was of sufficient concern to the Court that I asked her to go for an urine analysis, and I'm happy to say that those results came back negative and they were within acceptable limits on all levels.

. . . .

The continuing concern that the Court has is the best interests of this child. And again I reiterate that I am extremely concerned about her emotional state. I believe that this back and forth of attempts at reunification or change in plan has done nothing to assist this child, nothing. This is a clear case of where delay in permanency impacts and affects the child's life. In order to give the defendants every opportunity to comply, I believe the Courts have put this child in a terrific emotional bind and that she has probably suffered great emotional harm by this case dragging on for three years.

The information regarding [G.H.]'s testimony, I think I've already stated. I remind her that she denied in this courtroom that she ever purchased drugs while [K.H.] was in the car. And on April of '02 she stipulated that she drove with another woman with her daughter in the car to purchase drugs -- and this is verbatim from the tape. After the purchase she was driving back, was stopped by the police, and was arrested, and her daughter was present during the entire incident and was taken out of her custody when she was taken to jail. So for her to deny that in this courtroom after she testified to that before Judge Foster, I find that to be another clear indication that there is very little respect for Court Orders, for what it means to take an oath, and for what her obligations are to her daughter.

The Court has before it a situation that is very similar to where it was back when Judge Foster was involved. [Ga.H.] still has not met the burden to present evidence under the Statute. He pled guilty to three Counts of second degree sexual contact and again we do not have any evidence for which he can come forward to show what's in the best interests of the child for custody or visitation.

So based upon all of those factors, the Court is not in a position to restore custody to [Ga.H. and G.H.]. And despite the Court's concerns in connection with the [C.M. and D.M.], the Court will move forward for that KLG and end this today.

. . . .

I am convinced firmly and clearly that the parents in this case are unwilling to perform and cooperate and demonstrate that they can meet the functions of parenting, and care and support of the child. There has been consistent instability and refusals by [G.H.] to cooperate with urine screens and, [Ga.H.], I've already made my statements to you. I cannot fathom why you took the position that you did. But you did, and I cannot make a finding that you do not present a risk to this child because you have failed to present that evidence.

After three years I am convinced that there will be no change in the foreseeable future so that this inability will be vitiated. I have referenced in my opinion the reasonable efforts that have been presented by the Division, and I find that they were appropriate and that the Division and the Court gave a number of opportunities to these parents to move forward toward reunification, and every effort was unsuccessful.

. . . .

[C.M.] is committed to this child in her testimony, and I believe that adoption is not feasible or likely or appropriate in this case based upon [C.M.]'s continuation. However, if this child needs separation from this family, this may have to be addressed by the Law Guardian.

On appeal, G.H. raises the following issues for our consideration:

I. THE DIVISION DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THE ELEMENTS REQUIRED FOR KINSHIP LEGAL GUARDIANSHIP, N.J.S.A. 3B:12A-6d.

II. THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE FOR THE TRIAL COURT TO CONCLUDE THAT REUNIFICATION IS NOT IN THE BEST INTERESTS OF THE CHILD AS REQUIRED BY N.J.S.A. 3B:12A-6d(4).

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that neither of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) & (E). We affirm substantially for the reasons expressed by the trial judge in her oral opinion of June 22, 2005. We add only the following comments.

Kinship legal guardianship does not terminate parental rights. Rather, the purpose of this alternative permanent legal arrangement is to address the needs of children who cannot reside with their parents due to their parents' incapacity or inability, when adoption is neither feasible nor likely. New Jersey Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 508 (2004). As stated by the Senate Budget and Appropriations Committee when it reported Senate Bill No. 1813 out of committee, "[k]inship legal guardians are caregivers who have a biological, legal, extended or committed emotional or psychological relationship with a child and who are willing to assume care of the child due to parental incapacity or inability, with the intent to raise the child to adulthood." Senate Budget and Appropriations Committee, Statement to Senate Bill No. 1813 (June 25, 2001), reprinted in N.J.S.A. 3B:12A-1.

Thus, the kinship legal guardian is "responsible for the care and protection of the child and for providing for the child's health, education, and maintenance," N.J.S.A. 3B:12A-2, until "the child reaches 18 years of age or . . . is no longer continuously enrolled in a secondary education program whichever event occurs later." N.J.S.A. 3B:12A-4(a)6. However, unlike a judgment terminating parental rights, in a kinship legal guardianship, the child's parents remain obligated to pay child support, N.J.S.A. 3B:12A-4a(3), and retain the right to visitation, N.J.S.A. 3B:12A-4a(4), and "to consent to adoption of the child or a name change for the child," N.J.S.A. 3B:12A-4a(2). Moreover, the parent also has the right to seek termination of the guardianship and a resumption of custody if at a later date she is able to provide a safe and secure home for the child. See New Jersey Div. of Youth and Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003).

The standards for the appointment of a kinship legal guardian are set forth in N.J.S.A. 3B:12A-6d:

d. The court shall appoint the caregiver as a kinship legal guardian if, based upon clear and convincing evidence, the court finds that:

(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;

(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;

(3) in cases in which DYFS is involved with the child . . . (a) [DYFS] exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither foreseeable nor likely; and

(4) awarding kinship legal guardianship is in the child's best interests.

[N.J.S.A. 3B:12A-6d.]

We are satisfied that the court's findings as to each of these factors are supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 412 (1998); Rova Farms Resort, Inc. v. Inv. Ins. Co. of Am., 65 N.J. 474, 484 (1974). Suffice it to say, the court's findings as to G.H.'s incapacity to parent were based not only on her long record of instability and non-compliance with court orders and professional recommendations, but as well on the inappropriateness of her emotional demeanor, evasiveness and misrepresentations during trial. Equally convincing was proof of DYFS' reasonable efforts at reunification and the unlikelihood that, despite these efforts, G.H.'s inability to parent on her own would change in the foreseeable future. Given the bond between C.M. and K.H., and the maternal aunt's reliability, stability, consistency and willingness to care for K.H., it was proper for the trial judge to find that kinship legal guardianship was in the child's best interests as providing as much permanency for K.H. as possible when adoption was not feasible.

We part company only with the trial judge's comments concerning the future relationship between K.H. and G.H. As noted, kinship legal guardianship does not terminate parental rights or parental visitation. Given the seemingly strong bond between mother and child, G.H.'s promising recent progress in rehabilitation, and the kinship legal guardian's amenability to fostering the biological relationship, we discern no sound basis in this record for the trial judge's intimation that visitation between K.H. and G.H. should be curtailed. Accordingly, we do not subscribe to the trial judge's remarks in this limited regard, but do not foreclose appropriate orders concerning visitation if circumstances require.

Affirmed.

 

The child's biological father, Ga.H., has not filed an appeal.

Actually, DYFS' involvement with G.H. dates back to December 2001 when the agency investigated a report that G.H. was missing and was allegedly abusing drugs. Although G.H. later agreed to comply with random urine monitoring, her first urine analysis on December 6, 2001 was dilute and subsequent attempts to contact her from December 28, 2001 to January 7, 2002 proved unsuccessful. Eventually, G.H. contacted DYFS on January 10, 2002. After a negative urine test on January 23, 2002, DYFS closed its investigation, concluding that there was no present risk to K.H.

A final evaluation in February 2005 recommended more urine monitoring and another psychiatric evaluation.

At time of trial, G.H. was enrolled in the Drug and Alcohol Substance Abuse after-care program and by then had attended eleven sessions in the sixteen week program.

(continued)

(continued)

13

A-1709-05T4

RECORD IMPOUNDED

 

August 21, 2006