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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1808-11T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Appellant,

v.

S.M. and B.S.,

Defendants-Respondents.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.S., a minor.

_________________________________

January 11, 2013

Argued October 24, 2012 - Decided

Before Judges Simonelli and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FG-15-3-11J and FL-15-20-12.

Erin O'Leary, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. O'Leary, on the briefs).

Deric Wu, Assistant Deputy Public Defender, argued the cause for respondent, S.M. (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, on the brief).

Adrienne Kalosieh, Assistant Deputy Public Defender, argued the cause for respondent, B.S. (Joseph E. Krakora, Public Defender, attorney; Beatrix W. Shear, Deputy Public Defender, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor-respondent, R.S. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

PER CURIAM

In this appeal, the New Jersey Division of Youth and Family Services (Division) challenges a trial court decision approving an agreement among the birth parents, S.M. and B.S., the foster parents, K.M. and C.M., and the law guardian awarding kinship legal guardianship (KLG) of Randy to the foster parents over the objection of the Division.2 The Division contends that the trial court erred in granting KLG as Randy's adoption by the foster parents was both feasible and likely. Because we find that the Division acquiesced in the decision of the foster parents to forgo adoption in favor of KLG in this instance, instead of proceeding to trial on the guardianship complaint as was its right, we affirm.

The facts relevant to our decision are easily summarized. Randy was born to S.M. and B.S. suffering from kidney failure and testing positive for opiates and cannabinoids. He was discharged from the hospital to the care of the foster parents, who had already adopted Randy's half-brother, Donald. When Randy was just over a year old, the Division filed a complaint for guardianship alleging that S.M., whose parental rights as to Donald had already been terminated, and B.S. had extensive criminal and illicit drug use histories and were both active drug-users at the time of Randy's birth, and that despite the Division's efforts to assist both parents in addressing their substance abuse problems, neither had done so.

Sometime after the filing of the guardianship complaint, S.M. consented to an identified surrender of Randy to the foster parents. The guardianship litigation proceeded as to B.S. By the time trial was to begin, however, B.S. had taken significant steps to address his drug problem, having successfully completed ten months of drug rehabilitation under the auspices of the drug court, and the parties had begun discussing the possibility of KLG with counsel.

On the day appointed for trial, counsel made a joint request for the court to first address B.S. and the foster parents separately in order to address their questions about KLG. The foster parents advised the court that they wished to adopt Randy but were willing to consider KLG because of the risk that the Division would not prevail at the termination trial against B.S.. They had significant concerns, however, that KLG would not protect them from raising Randy free of S.M. In K.M.'s words:

[W]e had some questions we wanted to bring up and address. [W]ell obviously, our first desire, of course, was to adopt [Randy], and . . . our desire is to keep him part of our family. That is our main focus. We do not want to lose him. We got him two years ago and he's been a delight. So we are considering the issue of KLG because we want to keep him at all costs.

. . . .

But one of our serious concerns is that if we do not adopt him the surrender by his mother is vacated, as we understand it, since it was an identified surrender, and we do not want her coming back into play into this situation.

The judge responded by advising the foster parents of the risks of proceeding to trial and the lengthy appellate process likely to ensue even were the Division to prevail. He also stated that he believed that he could fashion a KLG to meet their concerns by obtaining an agreement from S.M. that she would be permanently prohibited from having any contact with Randy and from petitioning to vacate the KLG. In response to concerns the foster parents expressed as to the possibility of unsupervised visitation by B.S., the judge assured the foster parents that they would control visitation, and "with reasonable, legitimate reasons" would have the "unilateral right to stop visitation." K.M. ended their exchange saying

We love [Randy] and, you know, I'm not going to lie to you, this is not our first choice, but we don't want to lose him. We love him.

. . . .

And I have his brother and the two, we just want them together. We want them together.

B.S.'s counsel then spoke and advised the foster parents of his client's desire to be "as [big a part of Randy's life] as possible," acknowledging that the foster parents would have to weigh B.S.'s wish in deciding to agree to KLG. The court responded by advising counsel that if B.S. was unwilling to agree to the restrictions the foster parents wished to impose, then the matter would proceed to trial. The judge then asked the foster parents to confirm his understanding that with restrictions on B.S.'s visitation and S.M.'s agreement that she would be prohibited from any contact with Randy or petitioning to vacate the KLG, that they were "not against the KLG." K.M. responded

No, we're willing to do KLG. It's not what I want. I want to adopt him, but we're considering all eventualities and our first eventuality is that we do not want to lose him. So it's not option one, but I'm willing to consider the KLG, but I, I don't want to be into a situation where I'm dictated on visitation. I'm uncomfortable with overnights. I'm not comfortable with unsupervised.

B.S. then joined the foster parents in the courtroom and the judge suggested that counsel meet with the parties and attempt to agree on the terms of a KLG arrangement with the express understanding that if the parties could not agree, the court would start the guardianship trial. All counsel agreed to proceed as the court suggested, including counsel for the Division.

The foster parents, B.S. and his counsel, the Law Guardian, and representatives of the Division and its counsel met for the remainder of that day and the following day, with the foster parents and B.S. finally agreeing to the terms of a KLG, including provisions for visitation, both before and after finalization of the KLG, the changing of Randy's last name, and that B.S. would not petition to modify visitation or vacate the KLG for one year, unless the foster parents terminated his visitation sooner. The court directed the Division to prepare the KLG packet within sixty days and to write to counsel for S.M. within one week asking whether she would be willing to vacate her identified surrender and agree to the KLG with the restrictions that she be permanently prohibited from having any contact with Randy and from petitioning to vacate the KLG.

The deputy objected, noting that while the Division would be willing to agree to an order in which S.M. would agree to no contact with Randy absent further order of the court, the Division's position was that S.M. could not waive her rights to petition the court to vacate the KLG. The deputy attempted to explain that the Division objected to writing to S.M.'s counsel with terms not of the Division's making, and to which the Division objected, asserting that the Division's position was obviously termination of parental rights. The deputy also expressed her unease about any appearance that she was representing the foster parents or advocating their position.

[I]'m being careful and I just want to finish. So when I've been dealing with the [foster parents] today, I've told them that I don't represent them and that I have to be careful because I only represent the Division. They tell me what their position is. They have told me they want KLG, KLG only. If they say that and they put that on the record in the future and even today, then that is how the Division will proceed because we've been told by the caregivers they want KLG, KLG only. They are the ones who set the conditions. They have told me in the hallway that their position is essentially they want no contact with the birth mother. So it's not the Division setting the [terms].

The court directed the deputy to write the letter over her objection, allowing that she could make clear that the Division was taking no position on the terms but merely acting as a conduit between the foster parents and S.M., and obtained from the foster parents, under oath on the record, their understanding that the deputy was not representing their interests.

Several weeks later, the parties again appeared in court and S.M. requested that the court vacate her surrender, and formally assented on the record to KLG, understanding that she would be permanently prohibited from having any contact with Randy and from petitioning to vacate the KLG. The deputy again put the Division's position on the record, in the presence of S.M. and the foster parents, that S.M. "is unable to waive her rights" to petition the court to modify or terminate the KLG pursuant to the KLG statute.

The court asked the foster parents to confirm on the record their agreement to KLG with the restrictions the parties had negotiated, which they did. The court concluded the hearing by directing the parties to proceed to finalize the KLG and entered a permanency order stating:

The Division s permanent plan for the child is termination of parental rights followed by adoption. The court, having reviewed the reports submitted by the Division and having considered the parties arguments, finds by a preponderance of the evidence that the Divisions permanent plan for the child is:

inappropriate and unacceptable to the court because: the foster parents have testified in court on 8/24/11 & 9/19/11 that they want the court to change the plan to KLG and that the foster parents are fully aware of the differences between KLG and adoption. Therefore the court hereby changes the permanency plan to KLG, subject to conditions stated on the record.

When the parties reconvened for a final hearing a month later, the deputy again noted the Division's objection to the entry of the KLG "in its current form" and asked to be allowed to have the foster parents confirm on the record that they had wished to adopt Randy and that they had previously adopted his half-brother Donald. The deputy also asked to introduce the reports of the Division's experts who had conducted bonding evaluations of the parties and a psychological evaluation of B.S. Those requests were denied. The court acknowledged the Division's on-going objection to the terms of the KLG, and that the court had directed the Division to submit the KLG packet over the Division's objection in order to be assured that there were no facts of which the court was unaware that would make KLG inappropriate.

Following the hearing, the court entered a KLG multi-purpose order finding by clear and convincing evidence that S.M. and B.S. were unable or unwilling to care and support Randy because of their extensive criminal and substance abuse histories and B.S.'s repeated relapses when not in a structured substance abuse program; that their inability to perform parental functions was unlikely to change in the foreseeable future because they were unable to provide for Randy and had consented to KLG; that KLG was in Randy's best interest because Randy had been placed with K.M. and C.M., and his brother Donald, for an extended period and was in need of permanency; that the Division had exercised reasonable efforts to reunify the family but was not successful because S.M. was not compliant with services and B.S. was not in a position to care for Randy today; and that adoption was neither feasible nor likely because "[b]oth parents and the foster parents consented to the KLG." Judgment for KLG was entered the same day.

The standards that guide a court in the appointment of a KLG are similar to those for the termination of parental rights set forth in N.J.S.A. 30:4C-15.1. Prior to the appointment of a KLG, the court must find by clear and convincing evidence 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 [D]ivision is involved with the child . . . (a) the [D]ivision 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.

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

Although these standards echo the best interests standards for termination of parental rights, a KLG appointment requires a finding that adoption is "neither feasible nor likely." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004).

The Division contends that the trial judge's entry of KLG here was in contravention of the law because the foster parents expressed their clear desire to adopt Randy, thus foreclosing a finding that adoption was neither feasible nor likely. The Division also argues that the court wrongly denied it the opportunity to try its termination case against B.S. by accepting a "settlement" to which the Division objected. B.S., S.M., and the Law Guardian counter that the Division was an active participant in the negotiations culminating in the KLG and either consented to the arrangement or should be equitably estopped from seeking its undoing.

This appeal underscores how enormously difficult these cases can be, both for the parties and their counsel. We reject the notion that the Division consented to this KLG, that its concerns were misplaced, or that it should be estopped from seeking to overturn the KLG on appeal. We think the facts clear that the foster parents appeared for the guardianship trial wanting to adopt Randy and anxious about the prospect of B.S. gaining custody of the two year-old they had cared for since birth, half-brother to the child they had already adopted. Faced with the risk of losing Randy, and mindful of the significant progress B.S. had made in addressing his drug addiction, the foster parents were willing to discuss KLG. The Division apparently agreed that the option should be explored.

Also clear from the record, however, is the Division's increasing concern for the manner in which the court proposed to limit S.M.'s rights to petition to modify or vacate the KLG, which the Division asserts are provided to birth parents in the KLG statute. See N.J.S.A. 3B:12A-6f; see also N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003), quoted with approval in P.P., supra, 180 N.J. at 510. The deputy repeatedly expressed the Division's position that S.M.'s rights could not be so limited and offered the alternative of no contact pending further order of the court. When one considers that the foster parents' willingness to entertain KLG appeared in large part dependent on their ability to prohibit S.M. from having any contact with Randy, the Division's concern about the reliability of the information upon which the foster parents were basing their decision to forgo adoption and that they understand that the deputy was not there to represent their interests, becomes readily apparent.

The parties agree, however, that the questions as to S.M.'s rights and the enforceability of the provisions that prevent her from petitioning the court to modify or vacate the KLG are not before us. We are reviewing whether there is sufficient credible evidence in the record to support the court's finding that the foster parents' adoption of Randy was neither feasible nor likely at the time of the entry of the judgment. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We appreciate the Division's concern that the lines between termination of parental rights and KLG may have been blurred for the foster parents here, through no fault of the Division. Our view of the record, however, is that at the time the judgment was entered, the foster parents had determined, based on information they had been provided by the court, that they would prefer KLG, under the conditions they had negotiated, to adoption.

We are of the further view that the Division, in this instance, acquiesced in the foster parents' choice to forgo the risk of a termination trial against B.S. in favor of their pursuit of KLG. While we have stated previously that "it is the inability or unwillingness of a caregiver to adopt that renders adoption 'neither feasible nor likely,'" N.J. Div. of Youth and Family Servs. v. T.I., 423 N.J. Super. 127, 135 (App. Div. 2011), we do not understand by those words that the Division lacks any choice in the matter, Cf. N.J. Div. of Youth and Family Servs. v. D.M.B., 375 N.J. Super. 141, 145, 148 (App. Div.) (addressing the Division's unwillingness to accept an identified surrender), certif. denied, 183 N.J. 586 (2005). We agree with the Division's position expressed in its brief that it had the right to refuse to agree to the KLG and instead choose to move forward with a termination of parental rights.

But the record does not reveal that the Division insisted on doing so here. Instead of starting trial on the day appointed, all parties agreed to explore resolution by way of KLG. The parties continued on that path for two months. While the Division expressed its concerns about the terms of the proposed KLG as to S.M. on several occasions, it never advised the court that it considered KLG not in Randy's best interest and that it intended to proceed to trial on its guardianship complaint. We do not consider the Division's attempt to introduce the reports of its experts before entry of judgment as indication to the court that the Division intended to press its guardianship complaint.

Accordingly, because we find that the Division acquiesced in the decision of the foster parents to forgo adoption in favor of KLG in this instance, instead of proceeding to trial on the guardianship complaint as was its right, and that there is sufficient credible evidence to support the court's finding that adoption was neither feasible nor likely as the parties had agreed to KLG, we affirm.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which

reorganizes the Department of Children and Families. The

reorganization includes the renaming of the New Jersey Division

of Youth and Family Services as the Division of Child Protection

and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 The names of the children in this opinion are fictitious.