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NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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;
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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
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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.
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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.
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DCPP VS. G.P., IN THE KINSHIP MATTER OF G.F. (FL-09-0101-10, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion