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NOT FOR PUBLICATION WITHOUT THE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-1323-16T3
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
L.B.S.,
Defendant-Appellant,
and
R.L.G.,
Defendant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF I.D.A.L.G.,
Minor.e
______________________________
Submitted September 18, 2017 – Decided October 13, 2017
Before Judges Sabatino and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0136-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Catherine Reid, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Mary
L. Harpster, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa M. Black,
Designated Counsel, on the brief).
PER CURIAM
Defendant L.B.S., the mother of I.D.A.L.G. (Ivan1), appealed
the Family Part's June 16, 2015, final judgment terminating her
parental rights after a guardianship trial. On October 19, 2016,
we affirmed the trial court as to prongs one and two of N.J.S.A.
30:4C-15.1(a)(1) and (2), but remanded for further proceedings as
to prongs three and four, N.J.S.A. 30:4C-15.1(a)(3) and (4), in
light of Ivan's February 2016, removal from the resource home
where he resided at the time of trial and his placement with his
paternal grandmother. N.J. Div. of Child Protection & Permanency
v. L.B.S. & R.L.G., No. A-4845-14T2 and A-4846-14T2 (App. Div.
Oct. 19, 2016). We have outlined the relevant facts in our earlier
opinion and need not repeat them here.
1
We use a pseudonym to protect the child's identity and for ease
of reference.
2 A-1323-16T3
We briefly discuss the facts applicable to the present appeal.
Ivan was initially placed with his paternal grandmother, while
defendant sought treatment for substance abuse. In January 2014,
the Division of Child Protection and Permanency (the Division)
removed Ivan from the grandmother's home because she had been
substantiated for abuse and neglect in 1987. Ivan was then placed
in a resource home, where he stayed throughout the trial. In
September 2014, the Division ruled out the grandmother as a
relative placement for Ivan because of her prior substantiation,
but she successfully administratively appealed the substantiation.
However, at the time of trial, the grandmother had not yet
completed the parenting classes required to be licensed as a
qualified foster home, so Ivan remained in the resource home.
At the June 2015, termination hearing, the trial judge found
it in Ivan's best interest to remain with the resource home that
committed to adopting him. During defendant's appeal, we learned
Ivan was removed from the resource home in February 2016 and placed
with the grandmother, where he remains.
At defendant's initial appeal, the record was incomplete as
to whether the grandmother wanted to adopt Ivan or maintain a
Kinship Legal Guardianship (KLG) arrangement with one or both
parents. We therefore affirmed the trial court's findings with
respect to prongs one and two, but vacated without prejudice as
3 A-1323-16T3
to prongs three and four and remanded for further proceedings on
those questions. We were not convinced the record supported the
assertion that the grandmother was adequately informed of the
difference between KLG and adoption. We also expressed concern
the trial judge had misapplied the law in his determination that
KLG was an unavailable option because Ivan was adoptable. One
option does not necessarily foreclose the other, therefore, we
asked the trial judge on remand to explore the KLG option with the
grandmother.
The Family Part conducted a hearing on November 15, 2016, and
considered testimony from the Division and the grandmother. The
judge ultimately determined the grandmother was fully committed
to adoption, and according to the Division, Ivan was adoptable.
Therefore, KLG was not "appropriate, reasonable [or] available."
This appeal followed.
On appeal, defendant argues the trial court did not carry out
the mandate of the remand order because it failed to insure the
grandmother's options were fully explained and examined, and it
again misapplied the standard for consideration of KLG. We
disagree.
"It is beyond dispute that a trial judge has the
responsibility to comply with pronouncements of an appellate
court." Tomaino v. Burman, 364 N.J. Super. 224, 232 (App. Div.
4 A-1323-16T3
2003), certif. denied, 179 N.J. 310 (2004). While the trial court
may disagree with our decision, it must still comply. Id. at 233.
Having reviewed the transcript, we are satisfied the trial
judge complied with our prior opinion. In it, we directed the
trial court to explain, on the record, the options available to
the grandmother with respect to adoption of Ivan or a KLG
arrangement, and to explore these options with counsel present.
The differences between adoption and KLG were read to the
grandmother on the record, and we are satisfied she understood the
differences. The grandmother unequivocally stated she wished to
adopt Ivan. She also said she was never coerced by the Division
into agreeing to adopt Ivan, she spoke to the Division regarding
the differences between adoption and KLG, and she signed a form
stating she wished to adopt Ivan. The grandmother testified she
would like her son to regain his parental rights, however, she
also testified she would have allowed both defendant and Ivan's
father to visit but both needed to get their lives together.
At the conclusion of the hearing, the judge found the
grandmother "clearly indicated that she is committed to adoption
and that is what she is willing to do." Additionally, the judge
noted that the present case was not one where KLG was "appropriate,
reasonable, [or] available." We defer to the trial court's factual
findings as the judge "has the opportunity to make first-hand
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credibility judgments about the witnesses who appear on the stand."
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008). Based upon the record before us, we are satisfied the
trial judge followed our remand instructions. The Division's
attorney discussed the differences between adoption and KLG on the
record, and counsel for the parties was able to question the
grandmother's understanding. The judge asked the appropriate
follow-up questions, and the grandmother unequivocally stated her
wishes to adopt Ivan. The grandmother's statements, coupled with
the trial judge's findings, demonstrate the grandmother
sufficiently understood the differences between adoption and KLG
to satisfy our remand instruction.
Defendant argues the record does not support a finding that
the grandmother made an unequivocal commitment to adoption and the
trial judge erred in terminating parental rights because KLG was
not "available" or "appropriate." We disagree.
Where adoption of a child is "neither feasible nor likely[,]"
the Division should consider KLG, which does not require the
termination of parental rights. N.J.S.A. 3B:12A-1(b). The birth
parent would retain the right to consent to adoption, change the
child's name, visit the child, and be obligated to pay child
support. N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J.
6 A-1323-16T3
Super. 333, 341 (App. Div. 2008). To appoint a Kinship Legal
Guardian, the court must find by clear and convincing evidence:
(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 [D]ivision is
involved with the child . . . (a) the
[D]ivision 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 [KLG] is in the child's best
interests.
[N.J.S.A. 3B:12A-6(d).]
In addition, our Court has recognized that KLG is "not meant
to be a substitute for the permanency of adoption but, rather, to
provide as much permanency as possible when adoption is not
feasible or likely and a relative is willing to care for the
child." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494,
510 (2004). If a child is adoptable, "KLG cannot be used to defend
against termination of parental rights." D.H., supra, 398 N.J.
Super. at 341. Additionally, "[w]hen a caretaker 'unequivocally'
asserts a desire to adopt, the statutory requirement that adoption
7 A-1323-16T3
is neither feasible nor likely is not satisfied." N.J. Div. of
Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 231 (App. Div.
2013) (citation omitted). "There is no statutory authority that
establishes any burden a caregiver who wants to adopt must meet
in rejecting KLG." N.J. Div. of Youth & Family Servs. v. T.I.,
423 N.J. Super. 127, 137 (App. Div. 2011). Where adoption is
feasible or likely, there is "no need to determine whether KLG was
in the best interest of" the child. Ibid.
We have found adoption appropriate, rather than KLG, where
the child has been in the custody of the caretaker for quite some
time, the caretaker is committed to adoption, and the differences
between KLG and adoption have been explained. See T.I., supra,
423 N.J. Super. at 136. However, we have reversed permanency
orders terminating parental rights where a caretaker was
misinformed a child was ineligible for KLG because of the child's
age, see H.R., supra, 431 N.J. Super. at 232-33, or where the
trial judge incorrectly found KLG to be unavailable as a permanency
plan. See D.H., supra, 398 N.J. Super. at 335, 342.
Here, the grandmother was committed to the adoption of Ivan.
Based upon our review of the record, the grandmother understood
the differences between adoption and KLG.
8 A-1323-16T3
Defendant also argues the trial court's finding that
termination will not do more harm than good is unsupported by
substantial credible evidence in the record. We disagree.
To satisfy the fourth prong, the Division must prove by clear
and convincing evidence that "[t]ermination of parental rights
will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The
court must determine "whether a child's interest will be best
served by completely terminating the child's relationship with
that parent." E.P., supra, 196 N.J. at 108. "The crux of the
fourth statutory subpart is the child's need for a permanent and
stable home, along with a defined parent-child relationship."
H.R., supra, 431 N.J. Super. at 226 (citation omitted). Where the
child is living with foster parents, the court balances the
relationship of the child with both the biological and foster
parents. In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999).
The question is not whether the child will suffer any harm; rather,
it is whether "the child will suffer a greater harm from the
termination of ties with her natural parents than from the
permanent disruption of her relationship with her foster parents."
Ibid. The answer to that question requires expert inquiry as to
the strength of each relationship. Ibid.
Based upon a review of the record of the remand hearing,
there was sufficient credible evidence that termination will not
9 A-1323-16T3
do more harm than good. The grandmother has been caring for Ivan,
confirmed her wish to adopt him, and recognized defendant and the
grandmother's son had no capacity to properly care for Ivan. The
child needs stability, which he would receive through adoption by
the grandmother. Moreover, the grandmother testified neither
parent had visited Ivan since the time of the initial appeal.
Therefore, the Division has satisfied its burden of establishing
termination will not do more harm than good.
Affirmed.
10 A-1323-16T3