DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.R.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE KINSHIP LEGAL

GUARDIANSHIP OF J.R., JR.,

Minor.

_______________________________________________________

December 21, 2016

Submitted December 13, 2016 Decided

Before Judges Fisher, Leone and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FL-16-64-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashton L. DiDonato, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this appeal, defendant J.R., Sr., appeals from a judgment granting kinship legal guardianship (KLG) of his four-year-old son, J.R., Jr., to the child's maternal great aunt and great uncle; the child's mother consented to KLG. In deferring to the trial judge's findings of fact, which are well-supported by the evidence the judge found credible, we affirm.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). And KLG does not terminate parental rights. N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 208-09 (App. Div.), certif. denied, 192 N.J. 293 (2007). KLG's purpose 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." Id. at 209; see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004).

To grant KLG, a court must be satisfied 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 [Division of Child Protection and Permanency] is involved with the child,

(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).]

The trial judge presided over a two-day trial, during which he heard testimony from a Division caseworker and the Division's expert; defendant did not testify, nor did he call any witnesses. The judge rendered an oral decision during which he made numerous findings of fact. Among other things, the judge found KLG was in the child's best interests. He found that the child had lived with his maternal great aunt and uncle in Massachusetts nearly since birth1 and that it would be damaging to the child to remove him from their care at this time, particularly when defendant -- for many reasons -- was in no way ready to presently parent the child. Yet, as the judge emphasized, defendant had the potential to take on the parental role in the future and KLG, as opposed to parental termination, would preserve that possibility even though, as the judge emphasized, the credible expert testimony clearly and convincingly demonstrated defendant would not be able to overcome his deficiencies in the immediate or foreseeable future. Based on these and other findings, the judge entered a judgment awarding KLG.

Defendant appeals, arguing

I. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION PROVED BY CLEAR AND CONVINCING EVIDENCE THAT [DEFENDANT] HAD AN "INCAPACITY OF SUCH SERIOUS NATURE AS TO DEMONSTRATE THAT HE WAS UNABLE, UNAVAILABLE, OR UNWILLING TO PERFORM THE REGULAR AND EXPECTED FUNCTIONS OF CARE AND SUPPORT OF THE CHILD," N.J.S.A. 3B:12A-6(d)(1).

II. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION PROVED BY CLEAR AND CONVINCING EVIDENCE THAT "THE PARENT'S INABILITY IS UNLIKELY TO CHANGE IN THE FORESEEABLE FUTURE," N.J.S.A. 3B:12A-6(d)(2).

III. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION PROVED BY CLEAR AND CONVINCING EVIDENCE THAT IT FULFILLED ITS OBLIGATION TO MAKE "REASONABLE EFFORTS TO REUNIFY THE CHILD WITH THE BIRTH PARENTS AND THESE REUNIFICATION EFFORTS HAVE PROVEN UNSUCCESSFUL OR UNNECESSARY," N.J.S.A. 3B:12A-6[(d)](3)(a).

IV. KINSHIP GUARDIANSHIP IN MASSACHUSETTS IS NOT IN [THE CHILD]'S BEST LONG-TERM INTERESTS AS THE DISTANCE FROM HIS FATHER'S HOME CREATES A SERIOUS IMPEDIMENT TO THEIR EVER HAVING A PARENT-CHILD RELATIONSHIP.

We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth by Judge Joseph A. Portelli in his oral decision.

1 The child was born in 2012.