NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.W IN THE MATTER OF T.L a minor March 12, 2014

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4411-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

K.W.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF T.L., a minor.

_______________________________

March 12, 2014

 

Submitted October 28, 2013 Decided

 

Before Judges Yannotti, St. John and Leone.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FN-07-392-09 and FL-07-167-12.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent, New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beth A. Ferlicchi, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Jeffrey R. Jablonski, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, defendant K.W. (Mother) appeals from three orders in Family Part proceedings. We affirm.

I.

Mother and Father have two daughters, A.L. born in July 1991, and T.L. born in August 1997.2 Since 1997, the Division has been involved due to allegations that Mother physically abused her two daughters. The Division has removed the children from Mother's care three times.

In June 2001, the Division filed a complaint for custody of the children, citing Mother's abusive behavior. A Family Part judge ordered the removal of the children from Mother's care. The children were reunited with Mother in January 2003.

In July 2006, Mother was arrested for beating the girls. A Family Part judge granted custody of the two girls to the Division.3 For one year, T.L. was placed with R.C. (Foster Mother), who had gotten to know T.L. at her preschool. Mother was reunited with T.L. and A.L. in about August 2007 and March 2008 respectively. The litigation was terminated.

In February 2009, the Division initiated this abuse and neglect (FN) litigation, filing a complaint for custody and an order to show cause pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. The judge granted to the Division custody of both daughters, placing them with Foster Mother.

At a fact-finding hearing held on June 26 and August 7, 2009, the judge found that defendant had abused or neglected A.L. and T.L. through excessive corporal punishment. Mother appeals from that fact-finding order.4 In the August 7 order, the judge continued T.L.'s placement with Foster Mother, and dismissed A.L. from the litigation because she had turned eighteen years old.

On December 1, 2011, the judge entered a permanency order approving the Division's plan to give Foster Mother Kinship Legal Guardianship (KLG) over T.L. Mother appeals that permanency order.

On March 20, 2012, the judge granted the motion for KLG in the "FL" docket, and terminated the FN litigation. Mother filed notices of appeal challenging not only the March 20 order, but also the June 26, 2009 and December 1, 2011 orders, which became ripe for appeal when the FN litigation terminated.

II.

Mother first challenges the Family Part judge's finding that she abused or neglected the children through excessive corporal punishment. The following evidence was presented at the fact-finding hearing.

First, the judge interviewed both T.L. and A.L. T.L. stated Mother pushed her while she was riding her bike, causing her to fall and injure her leg. T.L. showed the judge the discoloration on her leg from a scar or bruise. T.L. stated she was afraid of Mother because "she just hits me for no reason." A.L. related that she told a teacher that Mother "used to hit me and my sister."

Second, the judge considered the Division's records, and the testimony of the caseworker, Mother, and her witness. Unless otherwise indicated, the following information comes from the Division's records.

In 1997, the Division substantiated a referral that Mother hit or slapped A.L., causing scratch marks on her cheek. In February 2001, the Division received a referral that Mother hit A.L. all the time, but the Division was unable to find Mother and the children.

In May 2001, a relative saw A.L. had a bloody nose, a bruise under her eye, and a bruise and laceration on her shoulder. A.L. said Mother punched her with her fists and threw her against a dresser, and that she was beaten almost every day. T.L. said Mother had choked A.L. Mother told the relative and the police that she slapped A.L. on the face. Medical examination showed bruises and abrasions consistent with abuse. Mother was arrested, the Division substantiated the allegations, and the court removed the children from Mother's care.

Because of this inappropriate physical discipline and Mother's history of substantiated physical discipline on A.L., Mother was referred for mental evaluations. Mother told the psychologist she was arrested for beating A.L., and told the psychiatrist she was referred because "I slapped my daughter in the face." Mother described how she as a child had been slapped, punched, and beaten with a belt as a child, which she appeared to find humorous. The psychologist concluded that Mother parented in an "over-emotional manner," that she "has a tendency to be abusive" and "somewhat punitive," that A.L. was fearful of Mother for good reason, and that Mother's likelihood of responding to therapy was doubtful. The psychiatrist found Mother's judgment was "compromised by emotional features, primarily anger."

In June 2006, A.L. and T.L. ran away from home. They told police they did so because of frequent beatings by Mother. A.L. claimed that Mother had punched her in the face. Medical examination showed that both daughters had bruises on their faces and scalps. Mother was arrested, but denied the allegations of physical abuse. The judge found that Mother had physically abused both daughters, and removed them from Mother's care.

In August 2006, during a supervised visit, Mother became belligerent and screamed at Division workers in front of the children, causing the caseworker to fear for her "safety as well as the well being of the children." She had another belligerent outburst in front of the children in 2007.

In 2007, Mother received another psychological evaluation, at which she stated, "of course[,] I've hit [my daughters] before," but claimed she used only her hand. A psychologist concluded that Mother's "continued use of physical punishment," despite substantiated allegations of abuse and ongoing Division involvement, "raises concerns regarding [her] ability to modify her behavior," and that "the risk of [her] using such punishment persists."

In July 2008, the Division received a referral claiming T.L. said that Mother had pushed her down the stairs, and that her arm was hurt when it got caught in the railing. When interviewed, T.L. stated Mother pushed her and got her arm stuck in the railing, but T.L. denied being pushed down the stairs or being injured, and she had no visible injuries. Mother controverted the allegations, and A.L. disclaimed any knowledge of the incident. The Division determined that the allegations were unfounded, and Mother's witness testified to the absence of injury.

In December 2008, according to the Division's verified complaint, T.L. told her teacher she wanted to kill herself because Mother frequently hit her and A.L. T.L. said Mother threw a glass toward her, which shattered, giving T.L. a small cut on her face. When interviewed, however, T.L. said it was an accident and that Mother would not intentionally hurt her. The case worker saw no cuts on T.L.'s face. Mother denied the allegations of physical abuse, and the Division determined they were unfounded.

On February 3, 2009, T.L. told school staff that Mother had thrown a book at her, pushed her down in to a chair, and forced her to stay in her room all the time. When interviewed, T.L. stated that Mother threatens to hit her but does not. A.L. claimed that Mother often hits T.L. The Division found the allegations of physical abuse to be unfounded.

Later in February 2009, according to the Division's verified complaint, the Division received a referral that a parent said Mother punched T.L. in the stomach and tried to choke her. A.L. then ran away from home with T.L., claiming she was tired of Mother beating T.L. A.L. threatened to kill herself if returned to Mother, and was very upset that Mother might hurt T.L. Mother denied physically abusing her daughters, and said she would not let the Division tell her how to run her household. The Division conducted an emergency removal of T.L. and A.L.

Mother testified that she had a good relationship with her daughters, even though they had been removed from her care and A.L. did not want to be with her. Mother testified that she had not hit her daughters since they were returned to her.

A.

On appeal, Mother challenges the admissibility of the Division's documentary evidence. We accord "substantial deference to a trial court's evidentiary rulings." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 622 (App. Div. 2010) (citations and quotation marks omitted). "Absent a manifest denial of justice, we do not disturb a trial judge's reasoned exercise of his or her broad discretion when making relevance and admissibility determinations." Ibid.

Mother did not make objections in the fact-finding hearing asserting the grounds she now raises. Therefore, she must show plain error. R. 2:10-2. Thus, she must also show that any error "is of such a nature as to have been clearly capable of producing an unjust result." Ibid. "Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected [defendant's] substantial rights." State v. Morton, 155 N.J. 383, 421 (1998).

Mother notes that some of the Division's reports were about ten years old. For about ten years, however, Mother allegedly has been physically abusing her daughters. The Division's 2009 complaint referenced events and allegations of abuse from 1997 through 2009. Moreover, "in civil proceedings for the protection of a child, a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child," as "the risk, or pre-disposition, that a defendant may harm the children is expressly admissible in an abuse or neglect case." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573, 575-76 (App. Div. 2010); see also N.J.S.A. 9:6-8-21(c)(4) and N.J.S.A. 9:6-8.46(a)(1).

Mother, arguing the reports were not admissible, cites N.J.R.E. 404(b), which governs the admission of "other crimes, wrongs, or acts." N.J.R.E. 404(b) addresses "uncharged" conduct. State v. Rose, 206 N.J. 141, 159, 179-80 (2011). Rather, we have applied Rule 404(b) only to allegations of bad acts against other persons. I.H.C., supra, 415 N.J. Super. at 568-77 (allowing an ex-wife to testify about alleged acts of domestic violence primarily against her); N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 178-81 (App. Div. 2005) (approving the admission of a defendant's Megan's Law file showing his earlier molestation of an under-aged girl).5 No precedent allows Mother to use Rule 404(b) to exclude allegations of her abuse of her two daughters named in the Division's complaint. Thus, Mother cannot show clear and obvious error.

Mother next generally argues that the Division's documentary evidence, including the reports of experts, contains hearsay. However, under our Rules, the Division is "permitted to submit into evidence . . . reports by staff personnel or professional consultants," if they meet the requirements the business records exception to the hearsay rule, N.J.R.E. 803(c)(6) and 801(d), and the "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). Rule 5:12-4(d) "recognizes the Division's need to secure the services of a range of professionals [including treating physicians] when investigating a claim of child abuse." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 348 (2010). "'Reports of this type, prepared by the qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein.'" N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 595 n.1 (1986) (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969)).

Similarly, the Legislature has provided that "any writing . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any . . . public . . . institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event," N.J.S.A. 9:6-8.46(a)(3), "provided it meets certain admissibility requirements akin to the business records exception." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). In addition, "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). Under these provisions, "a child's hearsay statement may be admitted into evidence." P.W.R., supra, 205 N.J. at 33.

Here, the judge admitted the Division's records after receiving the caseworker's testimony that they were authentic and prepared in the normal course of business. Had Mother objected, more evidence or testimony likely would have been required to admit the experts' opinions. See N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172-75 (App. Div. 2012). By failing to raise such an objection, however, Mother "deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides." M.C. III, supra, 201 N.J. at 341. In such circumstances, we decline to find plain error.

Mother's only specific evidentiary argument on appeal challenges the admission of P-2, a Newark Police Department incident report regarding her May 2001 arrest. Because Mother did not object to P-2, she deprived the Division of the opportunity to overcome an objection by offering a foundation. Moreover, a police report can be a business record. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 375 n.1 (2010); see N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 259-60 (App. Div. 2002) (citing R. 5:12-4(d)); see also Cope, supra, 106 N.J. Super. at 344 ("the usual rules governing admissibility of hearsay evidence should apply" to police reports). Mother complains that the police report relates her statement that "she punched her nine year old daughter [A.L.] in the face." A statement by a party-opponent, however, is not excluded by the hearsay rule. N.J.R.E. 803(b)(1).

On cross-examination, Mother was shown the police report, and admitted to being arrested and being asked if she hit A.L. However, she denied punching A.L. in the face, admitting it, or being arrested for it. In evaluating Mother's credibility, the judge gave "some credence to the cross-examination by the [D.A.G.] that there had been the arrest in 2001 for hitting the child." Contrary to Mother's arguments, that fact was substantiated and relevant to contest her credibility and to show abuse.

Mother argues it was improper to admit a police report to establish that she was arrested in 2001 for hitting A.L., but that fact was clear from the Division's own records. Indeed, those records showed that Mother admitted to the police, a relative, a psychologist, and a psychiatrist that she had slapped A.L. and had been arrested for beating A.L. Given that evidence, and A.L.'s statement that Mother had punched her in the face, Mother cannot show that admission of the police report was "clearly capable of producing an unjust result." R. 2:10-2.

B.

Before reviewing the sufficiency of the evidence, we must address the effect of the Division's findings of "substantiated," "not substantiated," and "unfounded."6 Under the then-applicable regulations, "[s]ubstantiated" meant that a preponderance of the evidence indicated "that a child is an abused or neglected child as defined in N.J.A.C. 10:133-1.3 because the alleged child victim has been harmed or placed at risk of harm by a parent or guardian." N.J.A.C. 10:129A-3.3(a) (1995); N.J.A.C. 10:129-1.3 (2005). "Not substantiated" meant that the available information "provides some indication that a child was harmed or placed at risk of harm, but does not indicate that the child is an abused or neglected child as defined in N.J.A.C. 10:133-1.3." N.J.A.C. 10:129A-3.3(a) (2000). Thus, "not substantiated" did not mean that the alleged physical acts did not occur, or that consideration of those acts with additional acts or information could not support a finding of abuse or neglect. Accordingly, the judge was free to consider, and reach his own conclusions about, the events the Division denoted as substantiated or not substantiated. See N.S., supra, 412 N.J. Super. at 607 n.1 (differentiating "unsubstantiated" from "unfounded").

By contrast, "[u]nfounded" meant "[t]here is not a preponderance of evidence that the alleged child victim was harmed or placed at substantial risk of harm; or [t]here is not a preponderance of evidence indicating that a parent or guardian and child were involved." N.J.A.C. 10:129-1.3 (2005). The Supreme Court has stated that when the Division itself determined an allegation of physical abuse to be unfounded, "[t]hat should have put the matter to rest." P.W.R., supra, 205 N.J. at 36 & n.15; see In re A.I., 393 N.J. Super. 114, 124 n.3 (App. Div. 2007) ("A finding of 'unfounded' means that no child abuse existed."); see also N.J.S.A. 9:6-8.40a(a) (requiring the Division to "expunge from its records all information relating to a report, complaint, or allegation of an incident of child abuse or neglect" which it has determined to be "unfounded").

Here, the Division presented documentary evidence of several allegations of physical abuse it had determined were unfounded. The Division did not suggest that it had uncovered any information to change that conclusion. Accordingly, we do not attribute any weight to those allegations. We note that the judge did not cite any of the unfounded allegations in finding Mother had abused or neglected her daughters.

C.

In considering the sufficiency of the evidence supporting the judge's finding that she employed excessive corporal punishment against A.L. and T.L, we must hew to our standard of review. "'[W]e generally defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a "feel of the case" that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011) (citations omitted). "Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We must examine "whether there was sufficient credible evidence to support the trial court's findings." M.C. III, supra, 201 N.J. at 342. "We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citations and quotation marks omitted).

At the fact-finding hearing, the judge found the daughters testified "candidly, believably and credibly," and in an unbiased, intelligent, articulate, and honest manner. The judge found Mother less credible than her daughters. In support of that finding, the judge observed that Mother "clearly has a tendency to get angry," and that she implausibly claimed to have a good relationship with her daughters.

We recognize that A.L. and T.L. were teenagers who did not want to live with their Mother, and that many of the daughters' later allegations were determined to be unfounded. Nonetheless, the judge had the advantage of observing the witnesses and had a feel of the case after handling it for years.7 We find no basis to conclude that the judge improperly credited the daughters rather than Mother.

After hearing the evidence, the judge, citing the mental evaluations, found that Mother is overly emotional and "overreacts" in a punitive way by striking her children. The judge concluded that Mother abused her two daughters through the use of excessive corporal punishment.

The Division must prove by a preponderance of the "competent, material, and relevant evidence" that T.L. was abused or neglected. N.J.S.A. 9:6-8.44, -8.46(b). A child is abused or neglected if her

physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of [her] parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment[.]

 

[N.J.S.A. 9:6-8.21(c)(4); accord N.J.A.C. 10:129-1.3.]

 

"The very phrasing of [N.J.S.A. 9:6-8.21(c)(4)] which condemns only corporal punishment that is 'excessive,' demonstrates that other corporal punishment does not constitute abuse or neglect[.]" N.J. Div. of Youth & Family Servs. v. H.P., 424 N.J. Super. 210, 228 (App. Div. 2011). The statute thus "plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment." P.W.R., supra, 205 N.J. at 36. "'The general proposition is that a parent may inflict moderate correction such as is reasonable under the circumstances of a case.'" N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010) (citation omitted), certif. dismissed as improvidently granted, 208 N.J. 355 (2011).

What constitutes excessive corporal punishment is "fact sensitive." P.W.R., supra, 205 N.J. at 33. "[F]or example, one ought not assume that what may be 'excessive' corporal punishment for a younger child must also constitute unreasonable infliction of harm, or excessive corporal punishment in another setting involving an older child." Ibid. Thus, in P.W.R., the Supreme Court ruled that occasionally slapping "the face of a teenager as a form of discipline with no resulting bruising or marks does not constitute 'excessive corporal punishment.'" Id. at 36.

On the other hand, the Supreme Court found sufficient evidence of excessive punishment in M.C. III, where the defendant intentionally grabbed his teenaged son by the neck and arm, and caused his teenaged daughter to fall to the ground, resulting in bruises, abrasions, and swelling. M.C. III, supra, 201 N.J. at 334-36. The Court noted that the defendant "disregarded the substantial probability that injury would result from his conduct." Id. at 345. We have found excessive corporal punishment where a parent "regularly" pinched a child in a sensitive area when three years old, and twice paddled the child when five years old, causing red marks on her face, scratches, and bruises. N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 476, 479, 481 (App. Div.), reaff'd on reconsideration, 416 N.J. Super. 414, 417 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).

Here, there was sufficient evidence to show that Mother physically abused A.L. and T.L. through excessive corporal punishment. The Division submitted evidence that in 1997 Mother hit and scratched the six-year-old A.L. in the face; in 2001 choked the nine-year-old A.L., punched her in the face and threw her against a dresser causing bruises, abrasions, and a laceration; and in 2006 punched in the face both the fourteen-year-old A.L. and eight-year-old T.L., causing bruises. In 2007, Mother admitted hitting both girls. In February 2009, a parent reported that Mother punched the eleven-year-old T.L. in the stomach and tried to choke her. Finally, in June 2009 both T.L. and A.L. stated that Mother hits T.L., and T.L. added that Mother pushed her off of her bike, causing a bruise or scar.8 Although Mother denied the abuse, the judge could credit the documentary evidence, which contained medical and police observations, Mother's admissions, and the statements of A.L. and T.L., whom the judge found credible in person. See N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 57, 78-79 (App. Div. 2003) (considering documentary evidence to show that a parent inflicted beatings involving aggravating circumstances), aff d in part, modified in part, 179 N.J. 264 (2004).

"Cuts, bruises, [and] abrasions" are among "the types of injuries . . . that may be abuse." N.J.A.C. 10:129-2.2(a)(9). The injuries here resemble those in M.C. III and C.H., and distinguish this case from P.W.R. Mother's recurring "pattern of abuse," her targeting of her daughters' faces, and her hitting T.L. "for no reason," distinguishes this case from K.A. There, we found that punching a "psychologically disruptive" and otherwise uncontrollable eight-year-old child four or five times on the shoulder, causing bruises, did not inflict excessive corporal punishment where it was an "isolated incident." K.A., supra, 413 N.J. Super. at 508, 512-13. Accordingly, we agree that Mother inflicted excessive corporal punishment upon A.L. and T.L.

Furthermore, the evidence of abuse against T.L. is reinforced by, and reinforces, the evidence of abuse against A.L. "[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the responsibility of, the parent or guardian." N.J.S.A. 9:6-8.46(a)(1).

The judge's conclusion is further supported by the mental evaluations of Mother, which showed her to be over-emotional, prone to be punitive and abusive, and willing to engage in excessive corporal punishment even while under scrutiny after having her children removed twice. See C.H., supra, 414 N.J. Super. at 482 (ruling that such evidence shows "the likelihood that she would continue to expose [the child] to the [same] unjustifiable discipline" in the future). As the judge had noted in removing the children for the third time, Mother has a "terrible temper," and "this pattern [she] has of just getting so darn angry that she loses herself is continuing once more."

Mother's excessive corporal punishment was unreasonable and contrary to "a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4); see N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011). The evidence also showed that the cumulative effect of Mother's excessive corporal punishment inflicted harm and the substantial risk of harm upon her daughters, impairing and posing imminent danger of impairing their physical and especially their mental and emotional conditions. See C.H., supra, 414 N.J. Super. at 481. For all these reasons, we uphold the judge's findings that Mother abused T.L. and A.L.9

III.

After the adjudication of abuse or neglect, the Division continued its efforts to reunify T.L. with Mother. It arranged a family therapist for Mother and T.L., obtained individual therapy for T.L., and continued supervised visitation.

At the family therapist's recommendation, a Family Part judge allowed overnight home visits, and then weekend visits. Mother did not use physical punishments during the visits. The family therapy sessions with Mother and T.L. went well.

However, during individual therapy, T.L. voiced thoughts she was reluctant to say in front of Mother. T.L. was concerned Mother could not change and would revert back to her old ways and hit her if they were reunited. T.L. wanted to live with Foster Mother, did not want to live with Mother, and threatened to run away if reunification was ordered.

Despite T.L.'s desire to remain with Foster Mother, a Family Part judge ordered that reunification should occur on April 15, 2011. On and after April 15, T.L. refused to move to Mother's house, because she did not feel safe returning. Thereafter, T.L. refused to visit or have family therapy with Mother.

Mother contends the judge allowed the teenaged T.L. to dictate the outcome of the Family Court proceedings. To the contrary, the judge repeatedly stated that T.L. could not decide the outcome or manipulate the system. The judge ordered T.L. to resume visitation. With Mother's consent, the judge got T.L. to agree to reunification on the day after her graduation from eighth grade. When T.L. again refused, the judge ordered T.L. to see a court-appointed psychologist to determine whether reunification was possible. The judge ordered T.L. removed from Foster Mother's care, and only stayed that order at the urging of the Division and the Law Guardian in order to conduct a plenary hearing.

T.L. was then interviewed and evaluated by three psychologists, who issued thorough reports. Dr. Barry Katz and Dr. Alison Winston, who evaluated T.L. and Foster Mother, found that T.L. had a strong, secure, and stable attachment with Foster Mother, whom T.L. viewed as her primary nurturing figure. Dr. Katz's report concluded that if T.L. was taken from Foster Mother and returned to Mother, T.L. would be a high risk of significant and enduring problems, mental disorders, and impairment in functioning and development.

Dr. Winston found that, though the more mature T.L. no longer feared physical abuse from Mother because T.L. would fight back, T.L. now had a great deal of anger towards Mother. Dr. Winston's report concluded that removing T.L. from Foster Mother and reunifying her with Mother would cause T.L. serious and enduring emotional harm, with significant disruptions to her emotional, behavioral, academic, and overall functioning.

The court-appointed psychologist, Dr. Susan Esquilin, evaluated T.L. and Mother. Dr. Esquilin's report noted that T.L. had voiced her fear of Mother years before she was a teenager or in contact with Foster Mother, lessening the odds of manipulation. Dr. Esquilin found that T.L.'s fear of and anger towards Mother had significantly disrupted their relationship. Dr. Esquilin determined that Mother's parenting attitudes apparently had not altered, and that Mother did not appear open to change her emotionally abusive interaction with T.L. Dr. Esquilin's testing showed Mother had scores indicating continued endorsement of corporal punishment, which raised the risk of physical abuse and showed a significant need for help regarding discipline issues. Dr. Esquilin's report concluded that a successful reunification of T.L. and Mother was not feasible in the near future.

On December 1, 2011, the Division moved, with the support of the Law Guardian and Father, to amend its goal for T.L. to KLG by Foster Mother. The judge considered the expert reports and heard testimony from the caseworker and Mother. The judge noted his prior concern about manipulation, but was convinced by Dr. Esquilin's thorough analysis that reunification in the foreseeable future was not possible and would be contrary to the welfare of T.L. The judge found that despite Mother's compliance with therapy, she "has not gained sufficient insight concerning her relationship with her daughter to enable a safe and healthy reunification." The judge then found KLG was appropriate, reasonable, and in the best interests of the child, and might help repair T.L.'s relationship with Mother.10

The judge next held a four-day hearing at which he heard testimony from Dr. Esquilin and Dr. Winston, and admitted their reports. The caseworker and Foster Mother both testified, noting the improvement in T.L.'s behavior and academics since returning to Foster Mother. The judge interviewed T.L., who reiterated that she felt safe and secure with Foster Mother but not with Mother, whom she felt would not change.

The judge heard testimony from Mother, who said T.L. had lied about the abuse and had been influenced by Foster Mother and A.L. A.L. vaguely testified that she and T.L. had lied about "some of the abuse." Two of Mother's relatives testified that she was an excellent mother, and that T.L. was lying.

At the conclusion of the hearing, the judge stated that, contrary to his initial concerns about manipulation, he was now convinced that T.L. had strong underlying feelings coming from deep-seated problems.11 The judge then made findings and awarded KLG to Foster Mother.

The Legislature in 2001 passed the Kinship Act (Act), N.J.S.A. 3B:12A-1 to -7, because it "recognized that an increasing number of children who cannot safely reside with their parents are in the care of a relative or a family friend who does not wish to adopt the child." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222-23 (2010) (citing N.J.S.A. 3B:12A-1(a)-(b)). KLG is "an alternative to termination of parental rights and subsequent adoption." N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 339 (App. Div. 2008). In 2006, the Legislature broadened the Act to include not just relatives and family friends, but also "a resource family parent as defined in [N.J.S.A.] 30:4C-26.4." N.J.S.A. 3B:12A-2. Here, it is undisputed that Foster Mother is a resource family parent under N.J.S.A. 30:4C-26.4.

Under the Act, a court "shall appoint a caregiver as a kinship legal guardian if, based on 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) . . . (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.

 

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

Here, the judge made proper findings supporting all four of these requirements for KLG.

First, the judge found that Mother was unable to care for T.L. because she had thrice caused T.L.'s removal from her home, and failed to take any responsibility for the removals, causing T.L.'s justifiable concern for her safety. Mother argues that there was no showing of a serious inability to parent, or failure to change that inability, because the record does not support the finding of abuse and neglect. As set forth above, however, the record does support the finding of abuse.

Both Dr. Esquilin and Dr. Winston believed recertification would be harmful because Mother's abuse disrupted the parental relationship and caused a breach of trust that T.L. could not overcome. Reunification would be particularly damaging because Mother would end T.L.'s relationship with Foster Mother, leading either to conflict or to T.L.'s emotional "disintegration." Thus, the judge properly found that Mother had a serious incapacity preventing her from parenting T.L.

Second, the judge found that, although Mother had complied with all required services, she had not remediated the underlying potential for emotional harm referred to by Dr. Winston and Dr. Esquilin. Mother's incapacity to parent would not change in the foreseeable future even with therapy. The judge's finding was supported by both experts, who found Mother rigid, intransigent, and unlikely to change even with further therapy.

Third, the judge properly found that the Division made reasonable efforts to reunify T.L. with Mother. The Division provided extensive services from 1997 to 2012, including parenting skills classes, multiple psychiatric and psychological evaluations, extended individual and family therapy, and both supervised and unsupervised visitation.

Mother notes the Division originally believed that reunification was possible. Ultimately, however, the Division and the judge properly concluded that the reunification efforts had proven unsuccessful. "The Division's efforts on behalf of a parent are 'not measured by their success.'" N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 212 (App. Div.) (quoting In re Guardianship of DMH, 161 N.J. 365, 393 (1999)), certif. denied, 192 N.J. 293 (2007).

The judge also found that termination of parental rights was not warranted, and adoption by Foster Mother was not feasible, because T.L. had a good relationship with Father, had relationships with siblings A.L. and K.H., and may be able to salvage a relationship with Mother. "[A] kinship legal guardian may only be appointed when 'adoption of the child is neither feasible nor likely.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004) (quoting N.J.S.A. 3B:12A-6(d)(3)). It is uncontested that adoption of T.L. "is neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3)(b).12

Fourth, the judge properly found that KLG was in T.L.'s best interest because she was bonded to Foster Mother and should remain in her care. Mother argues that reunification is in T.L.'s best interest, rather than "languishing in foster care." Mother's argument is mistaken. "[K]inship legal guardianship is indeed in a child's best interests when a parent's inability to properly parent a child is unlikely to change in the foreseeable future." S.F., supra, 392 N.J. Super. at 213. Here, Dr. Esquilin and Dr. Winston testified that it was in T.L.'s best interest to remain with Foster Mother in a safe, stable, and nurturing environment, and that T.L. needed the stability and permanence represented by KLG. The judge properly relied on the experts' testimony in giving T.L. "'a permanent, safe and stable placement.'" Id. at 213; see N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 226 (App. Div. 2013).13

Here, rejection of KLG as well as reunification would leave only the option of terminating Mother's parental rights, which would be disadvantageous to Mother. "Unlike a judgment terminating parental rights, kinship legal guardianship would not cut off the legal relationship of the parent and child," including Mother's entitlement to visitation. P.P., supra, 180 N.J. at 510 (quoting N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003)); see N.J.S.A. 3B:12A-4(a)(2)-(5). Dr. Esquilin opined, and T.L. agreed, that T.L. would be more amenable to visitation and a relationship with Mother if T.L. had the security of KLG rather than the fear of reunification. The judge ordered visitation and reinstated family therapy.

Thus, the judge's findings were supported by "adequate, substantial, and credible evidence." T.M., supra, 399 N.J. Super. at 463. We defer to the judge's ability to observe the witnesses, to his feel for the case, and particularly to the expertise of the Family Part in what the judge aptly described as a difficult case. Ibid. Accordingly, we uphold the judge's orders concerning KLG.

Affirmed.

 

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families and renamed the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as the Division.

2 Father, whose initials are also T.L., was named as a party below, but had limited participation. He does not reside with Mother, was not accused of abuse, ultimately declined to take custody of his daughters, and is not a party to this appeal.

3 The judge also granted to the Division custody over K.H., a younger child of Mother with another father. K.H. was ultimately returned to Mother, who shares joint custody with K.H.'s father. K.H. is not a subject of this appeal.

4 The judge ruled in, and Mother appeals from, the June 26 order. We treat the ruling and appeal as encompassing the entire fact-finding hearing and the August 7 order.

5 The judge here properly applied Rule 404(b) in that fashion, excluding evidence of Mother's violence against adults.

6 The current definitions of "substantiated" and "unfounded" differ to some degree. N.J.A.C. 10:129-7.3(c)(1), (4). "Not substantiated" was removed as a category in 2005. 37 N.J.R. 282(a) (Jan. 18, 2005).

7 In particular, the judge had interviewed the daughters about the alleged abuse on April 8, 2009, and had heard Mother testify and speak at several court proceedings.

8 The observation that T.L.'s injury could have been a scar contravenes Mother's argument that she could not be responsible because she had not had unsupervised contact with T.L. since February.

9 Although A.L. is now an adult, whether Mother abused A.L. is not moot because the judge's finding placed Mother on the Division's Central Registry. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 262 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010); see also N.S., supra, 412 N.J. Super. at 617-21.

10 Mother has appealed from this permanency order, but addresses it separately from the order granting KLG. Despite its name, a permanency order is simply an interim review of the Division's ongoing efforts and goals. See N.J.S.A. 9:6-8.54(b)(2)-(3). Thus, we address the permanency and KLG orders together.

11 The judge properly considered T.L.'s feelings. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 112 (2008) (ruling that courts should consider the wishes of a mature child in deciding whether to terminate a parental relationship). Dr. Winston testified that T.L. was mature enough to make an informed decision about her best interests, and both Dr. Winston and Dr. Esquilin felt that her perspective should be taken into consideration.

12 We note Foster Mother told Dr. Winston she "absolutely" wanted to adopt T.L. if the judge terminated the parental rights of Mother and Father. At the subsequent hearing, however, Foster Mother testified that she was "absolutely" committed to KLG. We understand her testimony to express her informed choice to seek KLG, and her unwillingness to seek termination of the parental rights of Father and Mother. The Act makes KLG available where the caregiver is "unwilling to seek termination of the legal relationships between the birth parent[s] and the child." N.J.S.A. 3B:12A-1(b); cf. N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 129-30 (App. Div. 2011) (ruling that when a caregiver in a termination case "unequivocally asserts a desire to adopt, the finding required for a KLG that 'adoption of the child is neither feasible nor likely' cannot be met").

13 "The plain language of the Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care[.]" P.P., supra, 180 N.J. at 512; see N.J.S.A. 3B:12A-1(b), (c) (describing KLG as a "permanent and self-sustaining" arrangement, and a "permanent placement option, beyond custody").