DCPP VS. G.P., IN THE KINSHIP MATTER OF G.F. (FL-09-0101-10, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

D
                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0361-19T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

G.P.,

     Defendant-Appellant.
_____________________________

IN THE KINSHIP MATTER OF
G.F., a minor.
_____________________________

                   Argued November 9, 2020 – Decided November 19, 2020

                   Before Judges Fasciale and Mayer.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FL-09-0101-10.

                   Kimberly A. Burke, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Kimberly A. Burke, on the briefs).
            Nicholas J. Dolinsky, Deputy Attorney General, argued
            the cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Sara M. Gregory, Deputy
            Attorney General, on the brief).

            Melissa R. Vance, Assistant Deputy Public Defender,
            argued the cause for minor (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Meredith Alexis
            Pollock, Deputy Public Defender, of counsel; Melissa
            R. Vance, of counsel and on the brief).

PER CURIAM

      Defendant G.P. (the mother) appeals from a September 4, 2019 order

denying her motion to vacate kinship legal guardianship (KLG) of her son G.F.

(the child) with his uncle, T.W. Judge Radames Velazquez Jr. heard testimony

from the child's family members and a Division of Child Protection and

Permanency (DCPP) investigator and conducted an in camera interview of the

child. He subsequently rendered a comprehensive oral opinion, and entered the

order denying the motion to vacate the KLG. The judge determined that the

mother did not prove by clear and convincing evidence that vacating the KLG

would be in the best interest of the child, which is well-supported by the record.

We therefore affirm.

      The child was born in 2006 and is currently thirteen years old. He tested

positive for heroin at birth and suffered from withdrawal and severe respiratory


                                                                          A-0361-19T1
                                        2
distress. After being treated, the child was placed in a facility for medically fragile

infants, and subsequently placed in the care of T.W. When the child was two years

old, the mother consented to a KLG with T.W. In approving the KLG, the KLG

court noted "[the mother's] extensive substance abuse history and lack of cooperation

with the [DCPP]" regarding her other children.

      On appeal, the mother argues:

             POINT I

             ALTHOUGH     THE    [JUDGE]   PROPERLY
             DETERMINED THAT [THE MOTHER] PROVED BY
             CLEAR AND CONVINCING EVIDENCE THAT THE
             ISSUES OF SUBSTANCE ABUSE AND HOUSING
             HAD BEEN RESOLVED, [THE JUDGE] ERRED BY
             DETERMINING THAT IT WAS IN THE BEST
             INTEREST OF [THE CHILD] THAT THE [KLG]
             ARRANGEMENT BE AFFIRMED[.]

                    A. [THE MOTHER] PROVED BY CLEAR AND
                    CONVINCING EVIDENCE THAT SHE HAS
                    RESOLVED THE INCAPACITY THAT LED
                    TO THE AWARD OF [KLG] AND,
                    THEREFORE,    [KLG]    SHOULD    BE
                    VACATED[.]

                    B. [THE MOTHER] PROVED BY CLEAR AND
                    CONVINCING EVIDENCE THAT IT IS IN
                    THE BEST INTEREST OF [THE CHILD] FOR
                    THE [KLG] TO BE VACATED, AS [T.W.]
                    WITHHOLDS VISITS WITH HIS MOTHER
                    FROM [THE CHILD], HAS STATED HE NO
                    LONGER WISHES TO BE RESPONSIBLE


                                                                               A-0361-19T1
                                          3
                    FOR [THE CHILD] AND DOES NOT HAVE
                    ADEQUATE HOUSING FOR [THE CHILD] [.]

      KLG is an alternative to termination of parental rights. N.J. Div. of Child

Prot. & Permanency v. M.M., 

459 N.J. Super. 246

, 259 (App. Div. 2019) The

Kinship Legal Guardian Act, N.J.S.A. 3B:12A-1 to -7, was enacted because "the

Legislature 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 or children." N.J. Div. of Youth & Family Servs. v. L.L.,

201 N.J. 210

, 222-23 (2010). The State "s[ought] to add another alternative,

permanent placement option, beyond custody, without rising to the level of

termination of parental rights, for caregivers in relationships where adoption is

neither feasible nor likely[.]" 

M.M., 459 N.J. Super. at 259

(second alteration in

original) (quoting N.J.S.A. 3B:12A-1(c)).

      Our review of a family judge's factual findings is limited. Cesare v. Cesare,

154 N.J. 394

, 411 (1988). This is because the family judge "ha[d] the opportunity

to make first-hand credibility judgments about the witnesses who appear on the

stand; [and] 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. E.P., 

196 N.J. 88

, 104 (2010)

(quoting N.J. Div. of Youth & Family Servs. v. M.M., 

189 N.J. 261

, 293 (2007)).

We will not disturb the family judge's findings of fact unless they are "so wide of

                                                                               A-0361-19T1
                                           4
the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs.

v. G.L., 

191 N.J. 596

, 605 (2007) (citing In re Guardianship of J.T., 

269 N.J. Super. 172

, 188-89 (App. Div. 1993)).

      KLG may be vacated if "based upon clear and convincing evidence, the

[judge] finds that the parental incapacity or inability to care for the child that led to

the original award of [KLG] is no longer the case and termination of [KLG] is in the

child's best interests." 

L.L., 201 N.J. at 224

(quoting N.J.S.A. 3B:12A-6(f)). Under

N.J.A.C. 3A:20-3.6(a) DCPP considers nine factors "related to the child's safety

when determining whether to take a position on a motion to vacate a [KLG] order[,]"

which include:

             1. The child's age;

             2. The duration of [DCPP's] involvement with the child,
             prior to the granting of [KLG];

             3. The total length of time the child was in out-of-home
             placement;

             4. The length of time the child has lived with the
             guardian, prior to and after the granting of [KLG];

             5. When [KLG] was granted;

             6. What the original harm or risk of harm to the child
             was;

             7. The parent's present fitness to care for the child;


                                                                                A-0361-19T1
                                           5
             8. Any subsequent allegations of abuse or neglect
             received by the [DCPP] and their findings; and

             9. What plan is proposed for the child if the
             guardianship is vacated.

             [N.J.A.C. 3A:20-3.6(a)(1)-(9).]

The court utilizes these factors in its analysis, but this list of factors is not

exhaustive. 

L.L., 201 N.J. at 228

. The judge should also consider

             the child's wishes; the nature and quality of the parent-
             child relationship during the [KLG]; the future
             relationship anticipated between the child and the
             guardian; the preservation of sibling relationships; the
             practical impact of vacating the [KLG] on the child's
             day-to-day life (i.e. changes in school, community and
             friends); and any other relevant factors bearing on the
             best interests of the child.

             [Ibid.]

Not all factors will be applicable to every case, but the judge "must consider an

array of relevant factors in determining whether vacating the [KLG] is in the

best interest of the child."

Ibid. Here, the judge

considered the child's age, the length of time the child has

lived with T.W., when the KLG was granted, the mother's present fitness to care

for the child, the child's wishes, and the practical impact of vacating the KLG

on the child's day-to-day life. The judge afforded significant weight to the

child's preference that he remain with T.W. The child told the judge during the

                                                                          A-0361-19T1
                                        6
in camera hearing that he "want[ed] [his] mom to understand that [he's] in a very

good environment" and that she "should know that the right place for [him] is

[with his] uncle[.]" The child also told the judge that he was "not so comfortable

with the thought of [moving] to Jersey City" because he was concerned about

that environment. And although the mother told the judge that she was planning

on moving to a "better place" within Jersey City, the judge expressed concern

because she had not yet done so.

      The judge found—consistent with DCPP's investigation—that there

existed no concerns about corporal punishment while the child was with T.W.

The judge noted that since the reported incidents leading to the child leaving

T.W.'s home, which were often as a result of being punished and not being

permitted to spend time with friends, "there's been no indication that it's been

nothing but a very stable and good placement and place for him to be. And the

child has acknowledged that." The judge also noted that although the mother

raised concerns about the child showering at T.W.'s home, the child explained

that there was never inappropriate touching involved, and T.W. was ensuring

that the child adhered to proper hygiene because the child did not like showering

or bathing.




                                                                          A-0361-19T1
                                        7
      The judge also expressed his concerns regarding some of the mother's

behaviors during the KLG. The judge considered it a "red flag" when she did

not attend a scheduled bonding evaluation, and stressed that the evaluations are

important to "getting to a place where everybody agrees, whether it's a child

going back to [the mother] at some point or whether getting the child some

therapy with [the mother.]" The judge was also concerned with the mother's

response to issues that arose while trying to coordinate transportation for the

child with T.W., where she testified that she was "not going to help somebody

that's not helping [her]." The judge found this reaction concerning because

"there is more than [the mother] involved. There's a child who wants to continue

to build a relationship with his mother[.]" And finally, the judge expressed

concern that the mother "may be in a position that [she] wants her child back so

badly that [she] may do things that jeopardize the stability and placement that

he has today."

      Affirmed.




                                                                        A-0361-19T1
                                       8

Add comment

By

Recent Posts

Recent Comments