NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.S IN THE MATTER OF THE GUARDIANSHIP OF E.S

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5966-08T25966-08T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.S.,

Defendant-Appellant,

________________________

IN THE MATTER OF THE

GUARDIANSHIP OF:

E.S.,

A Minor.

_________________________________________________

 

Argued April 21, 2010 - Decided

Before Judges Payne, Miniman and Waugh.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Somerset

County, Docket No. FG-18-111-07.

Michael C. Wroblewski, Designated Counsel,

argued the cause for appellant (Yvonne

Smith Segars, Public Defender, attorney; Mr.

Wroblewski, on the brief).

Delia A. DeLisi, Deputy Attorney General,

argued the cause for respondent (Paula T.

Dow, Attorney General, attorney; Andrea

M. Silkowitz, Assistant Attorney General,

of counsel; Ms. DeLisi, on the brief).

Suzanne Lustig, Assistant Deputy Public

Defender, argued the cause for minor

child (Yvonne Smith Segars, Public Defender,

Law Guardian, attorney; Ms. Lustig, on

the brief).

PER CURIAM

T.S. (fictionally, Theresa) the mother of E.S. (fictionally, Edward), born in the Fall of 1998, appeals from an order granting kinship legal guardianship (KLG) to her son's caregivers in South Carolina, S.H. and W.N. (the grandparents) with liberal visitation by the parents.

I.

The grandparents are teachers. Edward first met them during a visit in South Carolina in the summer of 2002. He returned to them for three weeks during the Christmas holidays of that year. In January 2003, Theresa and her husband A.S. (fictionally, Arthur) requested that the grandparents take care of Edward, and he remained with them for twenty months, returning to New Jersey in August 2004. The reason given for this arrangement was that it would permit Theresa to complete job training. However, she never did. After his return to New Jersey, Edward visited with his grandparents during the 2004 Christmas holidays and during Easter week of 2005. Edward was returned to his grandparents' care at the end of the 2004-2005 school year and, except for a four-day period in June 2006, has remained with them. Edward has expressed to caseworkers and the trial court a strong preference to continue living with his grandparents. Although he suffers from attention deficit hyperactivity disorder (ADHD) and requires medication, he is thriving academically under his grandparents' care, ranking in the top five percent of students in South Carolina. At the time of trial, Edward had been accepted into a Duke University summer program for high performing fourth and fifth graders.

Throughout this litigation, Theresa has been married to Arthur, who was initially thought by the Division of Youth and Family Services (DYFS) to be Edward's father. However, paternity testing conducted in April 2007 has disclosed Edward's father to be C.J. (fictionally, Charles). Charles has worked to establish a relationship with his son. Nonetheless, he has given his consent to KLG as being in the child's best interest. At one point, Theresa filed for divorce from Arthur. However, the action was dismissed. Although the two appear to be separated, evidence that they were in contact in 2008 was produced at trial. Additionally, a letter from Theresa to Arthur in 2007 expressed her desire for reconciliation.

The family first came to the attention of DYFS on April 22, 2005, when the agency was notified, it appears incorrectly, that Edward was being left home alone. At the time, it appeared that domestic violence was taking place and that Arthur was abusing drugs. However, Arthur refused to take a drug test, informing DYFS that it would have to take the matter to court. DYFS did so, and as the result of evidence of lack of parental cooperation, it was granted an Order for Investigation. That subsequent investigation confirmed that Arthur was a substance abuser, testing positive for marijuana, cocaine and amphetamines, and neglect by him was substantiated on that basis. Investigation by DYFS disclosed a history of domestic violence by both Theresa and Arthur leading to the entry of an active final restraining order against Arthur and to Theresa's arrest for simple assault and, on two occasions, for criminal mischief. Additionally, investigation revealed that Arthur had been charged with possession of cocaine and was initially admitted to pretrial intervention. However, he was terminated from that program in March 2005 and, on April 7, 2005, he pled guilty to drug possession and served some time in jail as a result. On June 4, 2005, Theresa was arrested for possession of marijuana, receiving a conditional discharge after pleading guilty to the charge.

On July 15, 2005, DYFS concluded its assessment and determined there was a need for further services. It therefore kept the case open for supervision. On July 21, 2005, Arthur was injured in what he claimed to have been an attack by three black males occurring just outside and within his apartment. As a result, blood spatters were found in every room. Arthur was treated for head wounds. However, neither he nor Theresa were willing to cooperate with the police in their investigation of the incident, and the police file was therefore closed.

On August 9, 2005, DYFS instituted Title 9 litigation against Theresa and Arthur while Edward remained in South Carolina with his grandparents where he had been voluntarily placed by Theresa and Arthur at the commencement of DYFS's involvement with the family. Custody of Edward was granted to DYFS, and he was ordered to remain in South Carolina with his caregivers. On November 16, 2005, the court entered a finding of neglect against both Theresa and Arthur, basing its decision on Theresa's arrest for marijuana possession and Arthur's positive drug tests. Edward was ordered to remain in his grandparents' physical custody.

On April 26, 2006, the court ordered that Edward be returned to Theresa's care one week after the conclusion of the school year. However, because Arthur had failed to comply with substance abuse treatment, he was barred from Edward's home and school and was permitted only to have supervised visitation with the child. On June 12, 2006, Edward was returned to Theresa's care but, as the result of reports that Arthur was living in the home, after a hearing, he was returned to his grandparents' custody four days later.

In July or August 2006, Theresa moved to Connecticut. In October 2006, DYFS requested an interstate evaluation of Theresa to determine whether it was suitable to place Edward with her. The evaluation was completed on January 31, 2007 and did not recommend placement. The evaluator stated:

The Department of Children and Families does not recommend [Edward] to be returned to his mother's care at this time. Mother has court ordered specific steps which ha[ve] not been completed. She is required to participate in individual therapy and has only attended therapy for a month. The clinician is not able to provide any feed back regarding progress towards meeting identified treatment goals as mother has not had any significant time in therapy. Mother has not engaged in Parenting Classes, therefore the Department is not able to assess her ability to parent her child. Mother acknowledges that she is not willing to apply for any benefits offered through the Department of Social Services; yet she has limited income and is not currently employed. The Department of Children and Families is not able to determine that mother has successfully addressed the issues that were identified at the time of child's removal from home.

In August 2006, the court had found DYFS's plan to terminate Theresa's parental rights to Edward, followed by his adoption, to be "inappropriate and unacceptable." However, in January 2007, the court authorized that course of action, and on January 8, 2007, DYFS filed a complaint to terminate the parental rights of Theresa and Arthur to Edward. As a consequence, the Title 9 litigation was dismissed. However, in March 2007, DYFS learned that Arthur was not Edward's biological father, and it subsequently determined his father to be Charles. Arthur was therefore dismissed from the litigation. Additionally, during the litigation, the goal was changed to kinship legal guardianship, because a bond had developed between Edward and his biological father, Charles, and it was believed that the child would benefit from continued visits with him. A complaint seeking that remedy was filed in March 2008.

In October 2007, Theresa moved back to New Jersey and has remained in this State since that time. An order expunging her record of arrests and convictions was entered on December 29, 2008. A trial of this matter took place commencing on August 20, 2008. A written opinion was issued by the court on June 11, 2009. In it, the court found that, although given the opportunity to do so, Theresa "has failed to establish a bond with [Edward] and essentially has emotionally abandoned [Edward] to [his grandparents]." An order for kinship legal guardianship was entered on June 19, 2009. This appeal followed.

II.

The court's authority to appoint caregivers as kinship legal guardians is governed by N.J.S.A. 3B:12A-6d, which provides:

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 the division is involved with the child as provided in subsection a of [N.J.S.A. 30:4C-85), (a) the division 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 feasible nor likely; and

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

These elements mirror the best interests standard for termination of parental rights set forth at N.J.S.A. 30:4C-15.1. New Jersey Div. of Youth and Family Serv's v. P.P., 180 N.J. 494, 509 (2004). We have held as a result that "it is reasonable to apply the decisional law applicable to N.J.S.A. 30:4C-15.1 to KLG cases as well." New Jersey Div. of Youth and Family Serv's v. S.F., 392 N.J. Super. 201, 212 n.5 (App. Div.), certif. denied, 192 N.J. 293 (2007).

Kinship legal guardianship does not terminate parental rights. "Instead, the purpose of this alternative legal arrangement is to address the needs of children who cannot reside with their parents due to their parents' incapacity or inability to raise them and when adoption is neither feasible nor likely." S.F., supra, 392 N.J. Super. at 209 (citing P.P., supra, 180 N.J. at 508). "Although the kinship legal guardian is responsible for the care and protection of the child and must provide for the child's health, education and maintenance until the child reaches eighteen or becomes emancipated, whichever occurs later, N.J.S.A. 3B:12A-4(a)(6), the child's parents remain obligated to pay child support, N.J.S.A. 3B:12A-4(a)(3) and retain the right to visitation, N.J.S.A. 3B:12A-4(a)(4). Ibid. (citing P.P., supra, 180 N.J. at 508).

In KLG matters, as in actions terminating parental rights, we accord deference to the factual findings of the trial court and will not disturb them unless they are so unsupportable as to result in a denial of justice and will uphold them when supported by adequate, substantial and credible evidence. New Jersey Div. of Youth and Family Serv's v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). In that connection, we recognize that great deference must be accorded to the trial court's credibility determinations. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We apply these principles when evaluating Theresa's arguments on appeal.

The first prong of the KLG standard requires a showing by clear and convincing evidence that Theresa's incapacity is of a sufficiently serious nature as to demonstrate that she is unwilling or unable to perform the regular functions of raising a child. We agree with the trial court that this standard has been met as the result of Theresa's emotional abandonment of her child.

Commencing in 2003 when Edward was five, the grandparents have been the child's primary caregivers. He has returned to Theresa's care only for the period from August 2004 to June 2005, and then for a four-day period in 2006. During the early part of their custody, the grandparents undertook to pay for one year of extensive dental work on Edward, required because his teeth had been allowed to become rotten. Additionally, on three occasions when in New Jersey picking up Edward, it was the grandparents, with Theresa's consent, who consulted with Edward's teachers regarding his school performance. After moving into his grandparents' home, Edward was visited by his mother in South Carolina on only one occasion, despite the fact that DYFS would have paid for or reimbursed Theresa for her travel expenses. That visit to South Carolina, occurring in December 2007, fulfilled the dual purposes of seeing Edward and attending a family wedding. A log prepared by Edward's grandmother revealed that Theresa had not sent Edward a card on his seventh birthday. When Theresa determined, out of pique at the actions of DYFS, to leave New Jersey, she did not move to South Carolina where she had relatives, but instead moved farther away from her son to Connecticut.

At trial, Edward's grandmother testified that Theresa had maintained telephone contact with her son. By court order, such calls were monitored as the result of Theresa's false statement to her son that he was coming home early a statement that upset the child, causing his behavior to regress markedly. According to the grandmother, Edward is reluctant to speak on the telephone with his mother, and their conversations have none of the usual give-and-take, whereas the child's calls with his father, Charles, are more natural.

Psychological evaluations of Theresa were performed on behalf of the State by Dr. Alan Gordon and on behalf of the defense by Dr. Donald Franklin. In addition, both performed evaluations of the bond between Edward and his mother and grandparents.

Dr. Gordon performed his first evaluation of Theresa on September 7, 2005. At its conclusion, the doctor recommended that Theresa should live apart from Arthur if Edward were to be returned; that she should be involved in individual psychotherapy to resolve issues of trust and difficulties with relationships and self esteem; she should complete parenting skills and anger management classes; and she should learn to understand her child's ADHD, of which she did not take a sufficiently serious view. The doctor was of the opinion that Arthur should not be considered a parental candidate for Edward. Additionally, the doctor noted Edward's statement to a caseworker who visited him in South Carolina that he wished to remain with his grandparents.

An additional evaluation of Theresa was performed by Dr. Gordon on April 12, 2007. At the time of the evaluation, Theresa had received counseling in New Jersey at the Richard Hall Community Center from January 2006 to July 2006, and had received four months of counseling in Connecticut commencing in December 2006. Dr. Gordon found as the result of testing that Theresa was experiencing paranoid ideation, that she was narcissistic, and that she was mildly depressed. Additionally, the doctor noted that she was very angry at DYFS and at the grandparents. Two scores on the child abuse potential inventory were elevated, one measuring rigidity and another measuring the validity of the responses. Following an evaluation of the bonding between Theresa and her son, Dr. Gordon noted that the child "never made contact" with his mother, and he determined that no secure bond between the two existed. The doctor noted that Theresa wished to move back to New Jersey from Connecticut, and he characterized her status as in "transition." He recommended that, if Theresa were to move back to this State, she would need to establish a place of residence, secure employment, and demonstrate stability in her life. Additionally, she needed to complete parenting skills classes and to gain a better understanding of Edward's ADHD.

An evaluation of the bonding between Edward and his grandparents, conducted on July 2, 2007, was positive. According to Dr. Gordon, Edward engaged in the same building activity in which he had involved himself when the bond between him and his mother was evaluated. However, Edward interacted with his grandparents, whereas he had not interacted with his mother. As a consequence of the doctor's observations, together with his interviews with the child and his grandparents, Dr. Gordon determined that disrupting the relationship between them would be destructive to Edward. The child again expressed a desire to remain with his grandparents.

Dr. Gordon conducted a third evaluation of Theresa on July 14, 2008. At the time, Theresa was working, and she was living with her aunt. The doctor found her to be suffering from a moderately severe mental disorder. He testified:

She . . . indicated that she's alone most of the time and prefers it that way. She still was having difficulty trusting. She was defensive. And she did state . . . that what few feelings she has she rarely shows the outside world.

According to the doctor, problems with rigidity remained, and Theresa still felt that people expected too much of her, that "children should never be bad and you can't depend on others."

When the subject of harm to Edward arising from his separation from his grandparents was raised, Dr. Gordon testified that Theresa recognized the fact that "it would be very difficult for [Edward]." Nonetheless, she had no specific plan to cope with his problems.

In a further evaluation of the bond between mother and child, Dr. Gordon observed that Edward wanted to leave the room, and that he refused to interact with his mother. The doctor was of the opinion that the child was very fearful of leaving South Carolina, and he therefore overreacted to his mother's presence in bonding evaluations. The doctor thought that the relationship between the two would improve if Edward knew that his grandparents' custody was secure.

In contrast to the absence of any interaction between mother and son, Dr. Gordon found that Edward "was a different child" when in the company of his grandparents, and that a secure bond with them existed. The doctor opined that removing Edward from his grandparents would be "very detrimental" to him, and that the harm could not be ameliorated. He testified:

See, I don't know how we could ameliorate the fact that [Edward's] been living [with his grandparents] for such a long period of time, has established a life there and has developed relationships with both [of his grandparents], as well as friendships. [Edward] is going to be a fish out of water. He's going to feel very angry about the fact that the life he has known is being . . . ended and that he's going to have to start a new life with his mother, who he has readily stated he doesn't want to live with.

So I don't know what can be done to ameliorate it. We can give him psychotherapy. We can try and offer him support. But you can expect a good deal of acting out behavior.

Theresa was interviewed by defense psychologist Dr. Donald Franklin on April 10 and 24, 2007. A Minnesota Multiphasic Personality Inventory -2 was administered at the time. Following the interview, testing and a bonding study, the doctor found Theresa to be somewhat socially detached, and he additionally found that she did not clearly take responsibility for the situation that confronted her. Although the doctor found that she did have the capacity to function as a parent, she did not presently have a significant bond with her son, and was unlikely to develop one while the two remained so geographically separated. In this connection, Dr. Franklin noted Theresa's minimal efforts to visit with her son in South Carolina.

A July 2007 evaluation of the bonding between Edward and his grandparents by Dr. Franklin was positive. According to the doctor, Edward "is comfortable in his placement, and regards his foster parents as his grandparents. It is likely to be harmful to [Edward] to disrupt his relationship with his foster parents at this time."

After a second evaluation conducted on July 7, 2008, Dr. Franklin found Theresa's psychological condition to have significantly improved since 2007. However, her bond with her son had not, despite the fact that she had been seeing Edward on a daily basis for five days prior to the evaluation. As a consequence, although the doctor concluded that Theresa was capable of parenting, Dr. Franklin recommended KLG placement that allowed Theresa to have regular unsupervised visits with Edward, stating that it would provide the most stability for him at present and might allow the relationship between mother and child to improve.

In summary, the evidence demonstrates that Theresa and Arthur voluntarily placed Edward with his grandparents in South Carolina for twenty months, commencing in January 2003. Thereafter, in June 2005, at the time of DYFS's initial involvement with the family, Theresa and Arthur again voluntarily placed Edward with his grandparents and, after DYFS obtained custody of Edward, that arrangement was preserved. Although in June 2006 Edward was returned to Theresa, her unwillingness to comply with a court order barring Arthur from the home resulted in Edward's return to South Carolina, where he has remained except for short periods of supervised visitation with his mother in New Jersey. During Edward's time in South Carolina, Theresa has only visited him on one occasion, and even then, her primary reason for traveling to the state was to attend a relative's wedding. She drove there and back. At trial, she was unable to explain why she had not ever done so again. Theresa has provided no meaningful financial or other support for her son.

Not unexpectedly, Theresa's lengthy absence from Edward's life has resulted in a diminishment of any bond that existed between them, and at present both State and defense experts concur that no appreciable bond exists. In the meantime, the bond between Edward and his grandparents has strengthened, and he has expressed a strong desire to remain with them. Theresa has offered no plan to ameliorate the harm to Edward that even she acknowledges would occur should the child be returned to her. Theresa's expert is of the opinion that a KLG arrangement is in Edward's best interest.

"A parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of [a] child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing In re Guardianship of K.H.O., 161 N.J. 337, 348-49 (1999)). In a KLG context, we have held in S.F. that a mother's lack of involvement in her children's lives together with her drug addiction satisfied the first prong of the KLG standard. S.F., supra, 392 N.J. Super. at 211. Here, there is no evidence of drug addiction. However, the absence of meaningful involvement with Edward is manifest.

The Court has recognized that "[t]he bond between parent and child remains society's most fundamental relationship." Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403 (1999) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925)). But it has also recognized that "[p]arents who forsake their children run the risk that others may take their place. The abdication of parental responsibilities can lead to the loss of parental rights and to the adoption of a child." Id. at 404. While KLG, not adoption will be the outcome in this case, the principle remains the same.

Turning to the second prong, we are satisfied that the evidence clearly and convincingly establishes that Theresa's inability or unwillingness to perform the functions of a parent is unlikely to change in the foreseeable future. In this regard, it is noteworthy that neither expert recommends immediate reunification between Edward and his mother. And, as Dr. Franklin has recognized, unless Theresa moves to South Carolina so as to be in close proximity to her son, there is no meaningful chance that the bond between the two will strengthen. Theresa has shown no interest in such a move. Her avoidance of any meaningful contact with that state and her son is telling.

In reaching the conclusion that the second prong has been met, we recognize that Theresa has complied with most of the recommendations of DYFS that she engage in counseling and in parenting skills classes. Although her compliance has not been entirely timely, it has occurred. Moreover, the reports of Doctors Franklin and Gordon suggest an improvement in Theresa's psychological condition. Nonetheless, there is no evidence that Theresa's present personal gains are sufficient to overcome her past neglect of her parental functions, or that there is any reasonable prospect that the parental bond can be reestablished.

Moreover, such gains as Theresa has made have, in large measure, come too late.

Both the Federal and the New Jersey statutes reflect reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child. The emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. N.J.S.A. 30:4C-11.1; D.M.H., supra, 161 N.J. at 385; K.H.O., supra, 161 N.J. at 357-59. A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement.

[New Jersey Div. of Youth and Family Serv's v. C.S., 367 N.J. Super. 76, 111 (App. Div.) certif. denied, 180 N.J. 456 (2004).]

Edward is now eleven years old. He has been with his grandparents continuously since he was six years of age. He needs to be assured that his lengthy placement with caregivers with whom he has bonded will remain secure.

In connection with the third prong, the trial court found:

The Division offered a variety of services to [Theresa] such as visitation, psychological and bonding evaluations and counseling. Each time [Edward] was brought to New Jersey for a visit the Division compensated [the grandparents] for transporting him or the Division brought [Edward] to New Jersey. The Division provided financial assistance for [Charles] to visit [Edward] in South Carolina, and offered the same to [Theresa] pursuant to court order.

On appeal, Theresa argues that the Division's efforts to foster reunification between her and her son were inadequate, because the Division permitted and indeed facilitated Edward's placement in South Carolina, thereby making reunification difficult if not impossible. Instead, according to Theresa, DYFS should have placed Edward with an aunt, M.B. (fictionally, Marie), in New Jersey after Marie contacted DYFS in 2006 and informed it that she was willing to be Edward's caretaker.

The record suggests that Marie contacted DYFS shortly after Edward's reunification with his mother in June 2006 and his return to his grandparents four days later. Upon learning of Marie, the court solicited recommendations from Edward's law guardian as to whether she should become Edward's caregiver. The law guardian advised against that move, stating:

On June 30, 2006, I had the opportunity to talk with [Marie]. Although she was not sure of when the last time she saw [Edward], [Marie] thought that it was more than one year ago. [Marie] said that [Edward] would be able to stay with her on a temporary basis. Additionally, [Edward] was asked whether he knew [Marie] and he said he did not and had no memory of being at her home.

* * *

Based on the above, I am recommending that [Edward] remain in South Carolina with his "psychological grandparents" who he is very comfortable with and loves very much. As a result of [Edward] being removed so quickly after being returned to New Jersey, it would be both disruptive and detrimental to [Edward] to be moved again to a care taker that he is unfamiliar with. Since being placed back in South Carolina, [Edward] has regressed to wetting his bed and is afraid of being left alone.

On September 29, 2006, Marie was informed by DYFS that [Edward] "cannot be placed in your home because of your inability or unwillingness to provide him with a permanent home." A right of review from this decision was offered. However, it does not appear that Marie contested DYFS's decision at the time.

A DYFS contact sheet dated April 4, 2007 indicates further contact between DYFS and Marie to determine whether she and her home would be suitable for supervised visitation when Edward was brought to New Jersey by his grandparents. The note states that Marie "would like to be considered as a permanent placement for [Edward] should TPR be granted. She states that when she was first approached by DYFS she expressed this, however the DYFS record reports differently." At trial, Marie acknowledged that she had told DYFS that she "was willing to start taking care of him immediately temporarily in hopes that [Theresa would] be able to get her son back." However, Marie also testified that, if she wasn't, she was willing to be a kinship legal guardian and she subsequently underwent foster parent training. However, KLG was not the goal of DYFS at the time, but rather, adoption. The goal changed only after Charles was identified as Edward's father and he demonstrated an ability and desire to establish a relationship with his son.

In the circumstances, we do not regard DYFS's determination to maintain and preserve a living arrangement that had been instituted initially by Theresa and her husband to have been an unreasonable one, particularly since Marie's response in 2006 regarding her willingness to care for Edward appears to have been equivocal at best. No evidence suggests that, at a later date, removal of Edward from his grandparents and transfer of his custody to Marie would have been in the child's best interest. The first condition of the third prong has thus been met.

The second condition is that there be clear and convincing proof that adoption is neither feasible nor likely. We find that condition to have been met as well. As the trial court noted, DYFS offered no basis to terminate the parental rights of Charles, who has shown an interest in Edward and worked to establish a relationship with him, visiting him in South Carolina with greater regularity than has Edward's mother. As a consequence, adoption by the grandparents is not a feasible alternative. Thus we concur with the trial court's finding that the third prong of the KLG standard was met by clear and convincing evidence.

The fourth prong requires that awarding KLG be in the child's best interests. Even Dr. Franklin, the defense's expert, concurs in this conclusion. The evidence at trial suggests that Edward is thriving in his present environment, having performed extremely well in school, made friends in the community, and established a strong and healthy relationship with his caregivers. It is doubtlessly true that he would suffer greatly if he were removed from the care of his grandparents. Edward himself has expressed his desire to remain with them, while not severing all connection with his biological parents. Preservation of the status quo is clearly best for the child. Thus, we affirm the trial court's conclusion that KLG is in Edward's best interest.

Affirmed.

 

S.H. and W.N. took in T.S.'s husband, A.S. as a troubled teenager. They are not related by blood to him.

Edward denied being left alone at that time. However, evidence suggests that he was left alone on other occasions.

A trial, Theresa admitted on cross-examination that she did not complete anger management and, despite her domestic violence, she did not know why she would need it.

An inspection of Marie's home was scheduled in April 2007, and thereafter, that home served as the site of supervised visitation.

(continued)

(continued)

25

A-5966-08T2

RECORD IMPOUNDED

May 17, 2010