DIVISION OF YOUTH AND FAMILY SERVICES v. R.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4442-05T44442-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.R.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF

R.R., H.C. and B.C.

Minors.

____________________________________________________________

 

Submitted October 24, 2006 - Decided December 29, 2006

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FL-16-03-03, FL-16-04-03, FL-16-05-03.

Yvonne Smith Segars, Public Defender, attorney for appellant R.R. (William J. Sweeney, Designated Counsel, on the brief.)

Stuart Rabner, Attorney General, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Geraldine O. Livengood, Deputy Attorney General, on the brief.)

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor children, R.R., H.C. and B.C. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant R.R. appeals from an order dated March 24, 2006, denying her motion to vacate orders for kinship legal guardianship, entered on November 18, 2002, pursuant to which three of defendant's five children have been placed with their maternal grandmother, D.R. Defendant's motion to vacate the kinship legal guardianship was predicated on her assertion that (1) except in accordance with a methadone maintenance program, approved by DYFS, she has remained drug free for three years and (2) she has maintained custody of her two younger children, which demonstrates, according to defendant, that she is now also capable of caring for her three older children.

At the hearing, defendant presented the testimony of Dr. Kenneth Schulman, Ph.D., an expert in the field of psychology, whose qualifications were stipulated by the parties. Defendant also testified in her own behalf concerning the steps she had taken to overcome her prior drug problems, her success at parenting her two younger children, her relationship with her mother and with her three older children during visitation, and her desire to be reunited with those children. Defendant attested to her willingness to take advantage of support services recommended by her expert or by DYFS and her belief that she can successfully parent all five of her children.

At the conclusion of the testimony by Dr. Schulman and defendant, DYFS and the Law Guardian moved to deny and to dismiss defendant's request to vacate the kinship legal guardianship. After initially reserving decision and receiving limited testimony from DYFS's expert witness, Margaret Doherty DeLong, a licensed psychologist, the court indicated it was not relying on any evidence presented after it reserved decision. The court then granted the motion to close the hearing and to deny the motion to vacate the kinship legal guardianship. We affirm substantially for the well-stated reasons expressed by Judge Richard M. Freid on the record at the hearing. We add these brief comments.

N.J.S.A. 3B:12A-6 sets forth the statutory provision that specifies the circumstances under which an order awarding kinship legal guardianship may be vacated. The applicable portion of that statute, subparagraph f, states in pertinent part:

An order or judgment awarding kinship legal guardianship may be vacated by the court prior to the child's 18th birthday if the court finds that the kinship legal guardianship is no longer in the best interests of the child or, in cases where there is an application to return the child to the parent, based upon clear and convincing evidence, the court finds that the parental incapacity or inability to care for the child that led to the original award of kinship legal guardianship is no longer the case and termination of kinship legal guardianship is in the child's best interests.

Judge Freid recognized that a two-pronged test applied to defendant's application to vacate the kinship legal guardianship and that defendant had to satisfy both prongs by clear and convincing evidence. First, he noted that defendant was required to demonstrate that the issues which resulted in the removal of custody and the granting of the kinship legal guardianship have been adequately addressed. Second, and even if defendant satisfied the first prong, she needed to demonstrate that it is in the best interests of the child or children to disrupt their current placement with their grandmother.

The psychologist, Kenneth M. Schulman, Ph.D., who testified on behalf of defendant, expressed the opinion that, with adequate support services, "the potential for appropriate parenting [by R.R.] certainly exists, so long as she remains compliant with the substance abuse treatment and as long as she does not relapse." The expert acknowledged that defendant has areas of vulnerability and that there is a risk she could become overwhelmed. He also acknowledges the fragility of the children and the devastating effect an unsuccessful reunification would have on them. Ultimately, he could not say it would be in the best interests of the children to be reunited at this time with their mother. On the other hand, Dr. Schulman did express the opinion that it was in the children's best interests to remain with their grandmother.

All three of defendant's older children have special needs and defendant continues to display a vulnerability that could lead to her becoming overwhelmed with the care of all of her children. She continues to suffer from anxiety and low frustration tolerance, both of which could undermine her ability to care for all of the children. Based upon the evidence presented by defendant herself, and even crediting defendant's assertion that she is drug free and experiencing good success in parenting her two younger children, it was nevertheless obvious that she failed to establish by clear and convincing evidence that it would be in the best interests of the children to vacate the kinship legal guardianship. N.J.S.A. 3B:12A-6f.

Affirmed.

 

W.C. is the father of all except the oldest of R.R.'s children. G.P. is the father of that child. Though both fathers of R.R.'s children had been present in court at a February 3, 2006 proceeding when the date for the hearing on defendant's motion was fixed, neither father appeared or participated in the March 24, 2006 hearing. Defendant, R.R., the Division of Youth and Family Services (DYFS) and the three children, R.R., H.C. and B.C., through their Law Guardian were prepared and requested to proceed. The court determined that W.C. and G.P. had chosen not to avail themselves of the opportunity to appear and to participate.

(continued)

(continued)

6

A-4442-05T4

RECORD IMPOUNDED

December 29, 2006