NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.B.

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1896-09T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.B.,

Defendant-Appellant.

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.L.,

Minor.

________________________________________________________________

October 26, 2010

 

Submitted October 5, 2010 - Decided

 

Before Judges Yannotti and Espinosa.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FL-14-02-06.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia O'Dowd, Deputy Attorney General, on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor M.L. (Jeffrey R. Jablonski, Designated Counsel, on the brief).

 

PER CURIAM

Defendant A.B. appeals from the denial of her motion to vacate a judgment of kinship legal guardianship (KLG) as to one of her three sons. We affirm.

The salient facts relevant to this appeal can be summarized as follows. A.B. is the mother of three sons: M.L., Jr., born July 20, 1992, M.L., born October 29, 1995, and A.R., born May 7, 2002. Only M.L. is involved in this appeal.1

This case stems from a referral received by the Division of Youth and Family Services (DYFS) on March 13, 2001 alleging that A.B. physically abused M.L., Jr. and took him and M.L. to motels where "she met different men and drank alcohol with them." After DYFS investigated this referral and filed a complaint for protective services, A.B. consented to the temporary placement of the children with relatives. M.L. has been in the physical custody of A.B.'s sister, S.B., since April 24, 2001.

In the guardianship complaints filed thereafter,2 DYFS made additional assertions regarding A.B. that included the following. In June 2000, A.B. admitted that M.L., Jr. had been spanked by all the adults in the household during the previous weekend. Also in 2000, M.L., Jr. was not registered for school until the week of October 5. He stated that he had not gone to school until then because he "had to go to work" with his mother. He reported that his mother frequently left him and his brother, M.L., in the care of a babysitter until approximately midnight while she went to a bar. M.L., Jr. described a drinking game called "Pass out" that his mother played with her friends.

As to the March 2001 referral, DYFS reported that M.L., Jr. confirmed allegations of abuse by his mother. He stated that when his mother and her friend, Donna, visited the motel room, he and his brother slept on the floor "with the roaches and mice," that "Rodney is on mom's body and Razied is on Donna's body." He demonstrated a humping motion and stated that they were "doing the nasty." He indicated that his mother also slept with "Vincent" and that they were so loud they kept waking up him and his brother. In addition to confirming these accounts of his mother's sexual activities, M.L. stated that his mother "gets tired of hitting my brother and says, 'Please don't let me kill my son.'"

A.B. agreed to submit to psychological and substance abuse evaluations and permitted her children to undergo psychological evaluations as well. She "agreed to cooperate with [DYFS] with all the recommendations following the evaluations." The conclusion reached by DYFS was that A.B. neglected her children and DYFS kept the case open for supervision.

Evaluations of M.L. and his older brother were conducted through the Family Enrichment Program (FEP). It was reported that M.L.'s teacher expressed concern regarding M.L.'s hygiene and dress, stating that he often wore the same clothes for up to five days; that his body odor permeated the room at times; and that he engaged in inappropriate behavior in class such as simulating smoking marijuana. A.B. rebuffed the teacher's efforts to discuss these issues with her. When the teacher explained to M.L. that she needed to speak with his mother, he begged her not to contact his mother because he was afraid that she would "beat him when he got home." Although M.L. was approximately six years old at the time of the evaluation, the evaluator also described conduct by M.L. that manifested a familiarity with sexual intercourse and oral sex. In describing discipline, M.L. stated that his mother hit him with her hand or a belt to the point of bruising. According to the complaint, the report described M.L. "as an aggressive and sexually reactive boy who had been neglected by his mother, and negatively impacted by alleged physical abuse and exposure to adult sexual behaviors[.]"

The report of the psychological evaluation of A.B. conducted in April 2001, stated that, although A.B. has "the foundation to be a nurturing parent with empathy for the needs of her children[,]" she lacks insight "into the impact of her abusive behavior towards her children" and has poor judgment when it comes to decisions regarding her children. The report recommended that A.B. attend individual therapy and participate in parenting classes and "therapeutic supervised visitation with her children."

A.B. was terminated from the Therapeutic Supervised Visitation Program (TSVP) in August 2001 for lack of attendance. She missed scheduled visitations in October, November and December 2001. In November 2001, the court ordered A.B. to attend counseling and substance abuse treatment and cooperate with parenting skills. Her failure to comply with that order was duly noted in April 2002, when the court approved DYFS's plan for M.L. and his brother to be adopted by S.B. In June 2002, A.B. was referred again to TSVP but she was suspended in February 2003 because of repeated absences. She was reinstated one month later and showed progress in attending visits and therapy sessions on a consistent basis. However, she was terminated from TSVP in February 2004 for her failure to comply with the program's requirements and rudeness to the staff at FEP.

In March 2004, DYFS filed the second guardianship complaint, seeking the termination of A.B.'s parental rights as to all three children.

In October 2004, the court approved the permanency plan of KLG for M.L. and A.R. In addition, the court approved A.B.'s "identified surrender of her parental rights with regard to" M.L., Jr. On November 30, 2005, the trial court entered a judgment for KLG and appointed S.B. as the kinship legal guardian for M.L. with A.B. continuing to have visitation rights.

In April 2008, A.B. filed a motion to dissolve the KLG. In support of that motion, she filed a certification stating her belief that M.L.'s best interest would be served by dissolving the KLG and returning him to her custody. She complained about conditions at S.B.'s residence and that S.B. interfered with her ability to spend time with M.L. She represented that she could provide a safe and stable home for M.L., noting that she was residing in an apartment with Section 8 housing assistance,3 was employed as a cab driver, working four days a week, and was enrolled in online college level courses with the hope of obtaining an associate's degree in crime scene investigations. The motion was denied without prejudice.

A.B. filed another motion to vacate the KLG in July 2009. She submitted a certification repeating many of the statements contained in her earlier certification regarding M.L.'s best interest and desire to return to her custody, complaints about S.B.'s care of him and interference with her visitation. She stated that she was now employed, apparently as a telemarketer for various charitable organizations, in a job that afforded her a great deal of flexibility to attend to any emergency involving M.L. A.B. also stated that she had been evaluated by Dr. Doreen Sperber-Weiss, Ph.D., and provided the following letter from Dr. Sperber-Weiss in support of her application:

I have recently intensively re-interviewed [A.B.] to assess her progress and determine her prognosis for parenting her children, specifically [M.L.] Several positive changes have occurred in [A.B.'s] life. She has maintained her own apartment for over a year. She has also kept herself consistently employed, though not at the same job.

 

[A.B.] has maintained consistent contact with her children as much as possible. She has been the children's caretaker when family emergencies have occurred. She has thought out [M.L.'s] needs for schooling and care, and appears ready to handle this responsibility. From her report, [M.L.] is eager to live with her.

 

I believe it is in the best interest of [M.L.] to assess [M.L.'s] current relationship with [A.B.] and the appropriateness of her regaining custody of him.

In opposition, DYFS described deficiencies in Dr. Sperber-Weiss's letter, noting that the letter "does not conclude that [M.L.] should be returned to [A.B.'s] custody [but] merely states that 'the appropriateness of her regaining custody of him' should be assessed." DYFS argued further that A.B. had failed to make the requisite showing of clear and convincing evidence that the circumstances that led to the placement no longer exist and that M.L.'s best interests required a change in placement.

By order dated August 2, 2009, the court denied A.B.'s motion without prejudice, noting that the court needed more information, including an interview of M.L. by the Law Guardian. A.B.'s counsel then wrote a letter to the court, in which she asked the court to personally interview M.L. because A.B. feared that DYFS and the Law Guardian were biased in favor of preserving the KLG with S.B.

By order dated October 15, 2009, the court denied A.B.'s motion to vacate the KLG without prejudice. In a written statement of reasons, the court noted that the judge who had denied the earlier motion to vacate the KLG had directed A.B. to make a new application "once she ha[d] obtained documentation of a SUBSTANTIAL change in her life circumstances." The court reviewed the information in A.B.'s certification and in Dr. Sperber Weiss's letter and stated:

Based on the foregoing, the Court does not find clear and convincing evidence that Plaintiff's incapacity or inability to care for [M.L.] is no longer the case. The simple fact that Dr. Weiss can attest that Movant has maintained an apartment, kept consistently employed, and continued contact with [M.L.] is not a sufficient showing that all the issues leading to the Kinship Legal Guardianship have been remedied. The paucity of the record precludes this Court from finding that termination of Kinship Legal Guardianship is in [M.L.'s] best interest.

 

A.B. appeals from the October 15, 2009 order. We granted A.B.'s motion to supplement the appellate record with a news article relating to a shooting at S.B.'s home on December 6, 2009.

In this appeal, A.B. presents the following issues for our consideration:

POINT I

 

THE TRIAL COURT'S FAILURE TO ORDER AN EXPERT EVALUATION AND RESULTANT FAILURE TO RENDER ADEQUATE FACTUAL FINDINGS DID NOT COMPORT WITH STATUTORY REQUIREMENTS AND VIOLATED THE PRINCIPLES SET FORTH IN L.L.

 

A. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A.B.'S REQUEST TO PRESENT A QUALIFIED EXPERT WHO HAD THE FULL OPPORTUNITY TO MAKE A COMPREHENSIVE, OBJECTIVE, AND INFORMED EVALUATION OF WHETHER A.B. HAD OVERCOME THE CIRCUMSTANCES LEADING TO THE KLG AND WHETHER IT WAS IN M.L.'S BEST INTEREST TO VACATE THE KLG.

 

B. THE TRIAL COURT FAILED TO SUFFICIENTLY ANALYZE THE "BEST INTERESTS" PRONG AS REQUIRED BY THE COURT IN L.L.

 

1. THE TRIAL JUDGE ERRED IN FAILING TO CONSIDER FOURTEEN YEAR OLD M.L.'S WISHES, AS REQUIRED BY L.L., OR TO CONDUCT AN IN CAMERA INTERVIEW OF M.L.

 

2. THE TRIAL COURT ERRED IN FINDING THAT M.L.'S CURRENT PLACEMENT WAS SAFE.

 

C. THE TRIAL COURT ERRED IN FINDING THAT A.B. HAD NOT MADE A SUFFICIENT SHOWING THAT ALL ISSUES LEADING TO THE KLG HAD BEEN REMEDIED.

POINT II

 

THE TRIAL COURT'S DENIAL OF A.B.'S REQUEST FOR AN EXPERT EVALUATION AND THE INFORMALITY OF THE TRIAL PROCEEDINGS VIOLATED A.B.'S DUE PROCESS RIGHTS.

After carefully considering the record and briefs, we are satisfied that A.B.'s arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the limited comments that follow.

The grounds upon which the relief sought by A.B. may be granted are set forth in N.J.S.A. 3B:12A-6(f). Specifically addressing the circumstances here, the statute provides that where there is an application to return a child to the parent, a KLG may be vacated if, "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." (Emphasis added). It was A.B.'s burden to provide clear and convincing evidence that satisfied each of these two prongs. New Jersey Div. of Youth and Family Serv. v. L.L., 201 N.J. 210, 225 (2010); New Jersey Div. of Youth & Family Serv. v. T.G., 414 N.J. Super. 423, 434-435 (App. Div. 2010).

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," New Jersey Div. of Youth and Family Serv. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." New Jersey Div. of Youth and Family Serv. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104.

We are satisfied that the trial court properly found that A.B. failed to present the requisite clear and convincing evidence to warrant the relief she sought. Further, because A.B.'s proofs were insufficient on their face, the trial court did not abuse its discretion in denying her requests for expert evaluations and an in camera interview of M.L.

As previously stated, we granted A.B.'s motion to supplement the record with a copy of a news article dated December 6, 2009 that reported that gunshots had been fired at the front door of S.B.'s home. A.B. argues that the article contradicts the trial court's finding that it was in the best interests of M.L. to remain in his current placement in the KLG with his aunt, S.B. However, the news account does not constitute evidence or provide a basis for inferring that conditions inside S.B.'s home are detrimental to M.L.'s interest.

A

ffirmed.

1 M.L., Jr. was adopted by his maternal aunt, S.B., in October 2004 after A.B. made a voluntary identified surrender of her parental rights with regard to this child. A.R. resides with his maternal grandmother pursuant to a KLG.

2 The initial guardianship complaint, filed on May 29, 2002, sought the termination of A.B.'s parental rights with respect to M.L., Jr. and M.L., but did not include A.R., who was then only three weeks old. The second guardianship complaint, filed on March 8, 2004, sought the termination of parental rights as to all three children.

3 42 U.S.C.A. 1437f.