Dcpp v. K.W. and R.G., in the Kinship Matter of Z.G. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2931-21
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
K.W.,
Defendant-Appellant,
and
R.G.,
Defendant.
IN THE KINSHIP MATTER OF
Z.G., a Minor.
Submitted December 11, 2023 – Decided January 4, 2024
Before Judges Sabatino and Marczyk.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FL-18-0103-22.
Joseph E. Krakora, Public Defender, attorney for
appellant K.W. (Victor E. Ramos, Assistant Deputy
Public Defender, of counsel and on the briefs; Richard
A. Foster, Deputy Public Defender, on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent New Jersey Division of Child Protection
and Permanency (Melissa H. Raksa, Assistant Attorney
General, of counsel; Meaghan M. Goulding, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor Z.G. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; David Ben
Valentin, Assistant Deputy Public Defender, of counsel
and on the brief).
PER CURIAM
K.W. ("Kim"), the biological mother 1 of Z.G. ("Zaid"), appeals from the
May 9, 2022 Family Part judgment awarding C.G. ("Carol") and P.G. ("Paul")
Kinship Legal Guardianship ("KLG") of Zaid.2 The court entered KLG in favor
1
R.G. ("Rob"), Zaid's biological father, consented to the entry of a KLG with
Zaid's current resource parents, Carol and Paul. He is not a party to this appeal.
2
We refer to the parties, the child involved in this case, and defendant's other
children using either initials or pseudonyms to protect their privacy and the
confidentiality of these proceedings. R. 1:38-3(d)(12).
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2
of Carol and Paul over Kim's sister, A.C. ("Ava"), and her husband, D.C.
("Dylan"). Following our review of the record and the applicable legal
principles, we affirm.
On appeal, Kim only challenges the judge's findings on prong four under
N.J.S.A. 3B:12A-6(d). A central theme of Kim's arguments is that Ava and
Dylan are allegedly more capable of addressing intangible racial and cultural
issues essential to Zaid's upbringing.3
I.
Because we write primarily for the parties, who are familiar with the
extensive record in this case, we primarily address the underlying facts and
procedural history most relevant to the KLG ruling and only summarize the facts
concerning the history leading to Zaid's ultimate removal from Kim.
Zaid is currently seventeen years old and will turn eighteen in December
2024. Zaid has been involved with the Division of Child Protection and
Permanency ("Division") since he was two years old, with his first removal from
Kim taking place at the age of six. Since then, he has been in and out of
placement. Over the years, the Division made several attempts to reunify Zaid
3
Kim, Zaid, Ava, and Dylan are Black. Carol, Paul, and their children are
White.
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3
with Kim. Those efforts were unsuccessful due to Kim's serious alcohol and
mental health issues, repeated encounters with law enforcement, and neglectful
care of Zaid.4
Between 2013 and 2016, Zaid resided in four different foster homes until
he was placed with his maternal grandmother, Y.H. ("Yanni"), in August 2014.5
By August 2015, when Zaid was eight years old, Yanni was no longer able to
care for Zaid and requested the Division assess Zaid's maternal aunt, Ava, who
at the time resided in Virginia with Dylan. In October 2015, Ava expressed
interest in being a long-term option for Zaid if there were no other options
available. However, in November 2015, she withdrew herself as a placement
option.
4
None of the experts at the KLG trial opined that Kim should be reunified with
Zaid.
5
On the following occasions, Zaid was removed from Kim's care and was
placed in other homes: March 1, 2013 through August 23, 2016 (in four non-
related licensed resource homes and one placement with Yanni for two years
beginning August 1, 2014); March 30, 2017 through February 12, 2018 (in a
non-related licensed resource home); September 5, 2018 to present (returned to
a previous unrelated resource home then placed with Carol and Paul on
November 8, 2018).
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After complying temporarily with treatment services, Kim reunified with
Zaid in August 2016. Between 2016 and 2018, there were a series of removals
and reunifications culminating with the final removal in August 2018.6
In October 2018, Carol and Paul agreed to become licensed resource
parents to provide Zaid with a stable home. In November 2018, the Division
placed Zaid in the home of Paul and Carol and their children, J.G. ("Jack") and
S.G. ("Sara"), where Zaid has continued to reside. Paul had been Zaid's football
coach. Zaid and Jack were friends before Zaid was placed in the home. Paul is
an institutional consultant for an asset management firm, and Carol is an
attorney. Carol and Paul reside in a suburb close to Kim's residence.
In November 2018, Ava, who was then residing in England and earlier
learned of Zaid's removal, expressed interest in caring for him. However, Ava
later advised the Division she was not able at that time to have Zaid placed with
her. Consequently, the Division ruled Ava and Dylan out as a potential
placement.
6
On August 31, 2018, when Zaid was eleven years old, the Division received
the most recent referral that Kim was arrested for allegedly driving while
intoxicated with Zaid in the back seat. Zaid had called his friend from the
vehicle because he was scared, and his friend called the police. Kim ultimately
pled guilty to second-degree endangering the welfare of a child. She was
sentenced to five years of special probation in Recovery Court.
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5
In December 2018, the Division filed for guardianship of Zaid under FG-
18-106-19. During the subsequent trial in 2019, Kim's expert, Dr. Susan Cohen
Esquilin, testified concerning racial and cultural issues involving Zaid. She
noted he had not embraced his racial identity and concluded that any
permanency plan deemed appropriate by the court must consider Zaid's need to
continue a relationship with his biological family because it is necessary for his
"positive racial identity development, in the long run." Additionally, Dr.
Esquilin recommended Zaid be exposed to Black male role models and
suggested group therapy. She also recommended that Carol and Paul consult a
therapist familiar with racial identity issues.
In October 2019, following the trial, the court concluded the Division
failed to establish clear and convincing evidence that termination of Kim's
parental rights to Zaid was appropriate. While the court found the Division had
proven prongs one and two, it failed to prove the third and fourth prong because
the Division had not sufficiently presented alternative permanency options to
Ava, and Zaid remained bonded to Kim and would experience harm if her rights
were terminated. The court further found Kim had not demonstrated that Zaid
should be reunified with her, dismissed the guardianship litigation, and
reinstated the protective services litigation.
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6
Thereafter, the Division continued to provide Kim with services,
including visitation, transportation, and assistance to address her mental health
issues and alcohol abuse, but the efforts were not successful.7 In February 2020,
the Division again proposed termination of parental rights followed by adoption
with a concurrent plan of KLG because of the length of time Zaid had been in
placement.
At a permanency hearing in February 2022, the court approved the
Division's permanency plan of KLG with Carol and Paul or with Ava and
Dylan.8 In March 2022, the Division amended its complaint to pursue KLG.
7
To address Kim's and Dr. Esquilin's concerns over Zaid's racial and cultural
identity issues, the Division arranged for a Black mentor—who had himself been
placed with White resource caregivers—to meet with Zaid. Zaid and the mentor
spoke on the phone once and then, according to the Division caseworker, it "fell
apart with the pandemic." Another solution to address racial concerns was for
Carol and Paul to foster a relationship between Zaid and Paul's cousin's spouse
who could mentor Zaid. Another possible option to address racial issues was
for Zaid to receive therapy with a Black therapist. Zaid showed modest interest
in attending therapy, and the therapist did not respond to the Division's inquiries,
and Zaid remained on the waitlist. The Division attempted to explore other
therapists, but Zaid did not want to engage in counseling. Additionally, the
Division facilitated contact between Carol and Paul with other resource parents
who had adopted a Black child.
8
By 2019, Ava and her family had relocated to Texas, and she offered herself
as a placement resource for Zaid. The Division initiated an Interstate Compact
on the Placement of Children (ICPC) request and arranged for Zaid to visit in
February 2020, while the ICPC request was pending. Ava's home was approved
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7
Kim sought, as an alternative to reunification, that KLG of Zaid be
awarded to her sister, Ava. Ava is a military veteran who retired from twenty-
four years of service in the Air Force in late 2019 after an assignment in the
United Kingdom. Dylan is also in the military.
The trial court interviewed Zaid in camera on August 31, 2020, and again
on March 11, 2022. Zaid maintained his desire to remain with Carol and Paul
and opposed moving to Texas. Zaid referred to Jack and Sara as his siblings.
He described Ava as "nice" but reported that he really did not know her or her
family and did not keep in touch with them. Zaid did not want additional visits
with Ava and repeatedly and unequivocally stated he did not want to move to
Texas with her. Zaid described how when he needed a place to go, Ava was not
there for him and now is available only because it is "convenient" for her.
The KLG trial was subsequently conducted over twelve days between
March and May 2022. Dr. Kinya Swanson, an expert in psychology, parental
fitness, best interest, and permanency, testified on behalf of the Division. She
in June 2020. Zaid occasionally visited Ava. After a 2021 visit, Zaid expressed
that he enjoyed the visit and would like to visit again but did not want to live
there. Because of subsequent COVID-19 restrictions and Zaid's overall lack of
interest in visiting, the Division did not schedule another visit in Texas. At
Zaid's request, the Division offered to facilitate and pay for a visit in New Jersey.
Ava declined.
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conducted a psychological evaluation of Kim, comparative bonding evaluations
in 2020, and an updated best-interest evaluation in 2021. In October 2020, Dr.
Swanson conducted a bonding evaluation between Zaid and the resource family
members. She interviewed Zaid, who expressed he did not want to be reunified
with Kim but wanted to remain with Carol and Paul. He was, however,
agreeable to ongoing visitations with Kim. Dr. Swanson observed that Zaid
appeared integrated into Carol and Paul's family. Carol and Paul were involved
with each child's education and extracurricular activities. Dr. Swanson
described the household as a "cohesive family unit" and concluded Zaid had
established a secure bond with them. She also concluded that if Zaid were
removed from Carol and Paul's home, he would be at risk of severe and enduring
harm.9 She recommended the Division explore KLG with Carol and Paul.
Dr. Swanson conducted updated interviews with Carol, Paul, Zaid, Jack,
and Sara in June 2021. Carol and Paul remained committed to adopting Zaid.
Carol and Paul also expressed that they would not place any barriers in the way
9
Dr. Swanson concluded that Kim was not a viable parenting option because of
her psychological functioning and ongoing concerns over her sobriety. She
concluded that Zaid and Kim shared a significant bond after conducting a
bonding evaluation. Because Zaid and Kim shared a significant bond, Dr.
Swanson did not support termination of her parental rights.
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9
of Kim and Zaid's ongoing visitation. Dr. Swanson described Zaid as "fully
integrated" into the family.
Dr. Swanson spoke with Zaid in June and September 2021. Both times,
Zaid clearly expressed that he wanted to be adopted by Carol and Paul. Zaid
remained opposed to relocating to Texas, even after returning from his visit there
in July 2021.
Regarding cultural issues, Dr. Swanson acknowledged that Carol and Paul
could foster additional Black role models for Zaid, but noted they were open and
willing to discuss race and appeared willing to seek resources for Zaid. She also
noted there were steps they could take to ensure Zaid had appropriate role
models to provide him cultural insights he would need to know. While they had
some discussions about race, specifically regarding George Floyd, they had not
included the whole family in the conversations. Dr. Swanson stated she did not
perceive any barriers for Carol and Paul in continuing to engage in these
conversations. Dr. Swanson agreed the resource parents were willing to promote
cultural awareness and teach Zaid about personal safety, with the help of Paul's
cousin's spouse, who is of African ancestry. She confirmed that Paul considered
his cousin's spouse to be someone to whom he turned to talk to Zaid about issues
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such as his experience about being stopped by police multiple times in his own
neighborhood.
Dr. Swanson also spoke with Ava in August 2021, but Dylan was at work
and did not respond to attempts to interview him. Dr. Swanson testified that
Ava presented as a suitable and appropriate caregiver and added that aside from
Zaid's preference not to relocate, she did not discern anything else to detract
from that opinion. She indicated she did not have any reason to believe if Zaid
were ordered to relocate to Texas that he could not flourish there. Dr. Swanson
also opined, regarding relocation, that Ava's family support system, their
understanding of Zaid's emotional and cultural needs, and their commitment to
ensuring he receives needed services would help mitigate any potential harm
resulting from relocating from his caregivers' family.
However, Dr. Swanson indicated that "undue distress" could result from
relocating him because he was fully integrated with his caregivers and wanted
to remain there. She added that Zaid was content at school with his football
team and had developed sibling relationships with Jack and Sara.
Ultimately, when balancing both placements, Dr. Swanson testified:
I think in this case it's important to note that on the
surface of things you're really deciding between two
capable families that are both suitable with regard to
best interests. I think what the actual issue is here is
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[Zaid]'s history. Because [Zaid] has had so many
placements, he's had so much instability in his young
life I think, again, it's better for him to stay with [Carol
and Paul's] family despite the cultural difference. I
think that's what makes a difference if this case, if it
was just about who could raise him and teach him how
to be a [B]lack man [then], of course, his maternal
relatives would be the best placement, but I think this
case is about more than that.
Ultimately, because of Zaid's need for permanency and stability, Dr. Swanson
supported KLG with Carol and Paul.
Dr. Karen Wells testified on behalf of the Law Guardian as an expert in
psychology, parental fitness, bonding, and psychopathologies. She testified on
March 17, 2022.10 Dr. Wells noted that Ava and Dylan expressed a desire for
Zaid to live with them and be part of their family. They wanted him to "grow
up to be a responsible human being." They recognized they would likely need
some expert help but were open to getting him whatever help he needed.
Dr. Wells indicated that despite having relocated in the past due to their
military careers, Ava was set on remaining in Texas. Dr. Wells indicated that
Ava is committed to Zaid long term and showed no reluctance to assume his
10
Dr. Wells diagnosed Kim with an alcohol use disorder, bipolar disorder, and
possible borderline personality disorder. Because of Kim's ongoing mental
health instability, ongoing alcohol abuse, and ongoing denial of such problems,
Dr. Wells did not find reunification a viable option now or in foreseeable future.
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care. Dr. Wells testified that Ava and Dylan were on the "same page," and she
had no concern with their ability to provide Zaid with stability. Regarding race
and culture, Dr. Wells indicated that Dylan, a long-term career military person
and father, would be a positive Black role model.
Dr. Wells also noted Zaid wanted to reside with Carol and Paul and be
adopted by them because their home was safe and stable. She further testified
that Zaid wanted to remain in contact and have visitation with Kim, but he did
not trust her for day-to-day care. Dr. Wells addressed her November 5, 2020
bonding evaluations of Zaid with the resource family where she described their
interactions as very natural, spontaneous, and akin to a family dynamic between
parents and children. 11
Dr. Wells confirmed that she reviewed evaluations prepared by the
defense psychologist, Dr. Esquilin, from the prior guardianship trial. She agreed
Ava and Dylan could teach Zaid about family traditions, expose him to cultural
and ethnic matters, and educate him regarding racial issues. She also noted they
could provide a stable home. However, that would require Zaid to leave his
11
Dr. Wells opined that adoption was in Zaid's best interest—contrary to others
recommending KLG—because she had "come to believe [it] is the only safe
option for him for stability, permanency, security and protection."
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current resource family, with whom he has lived for over three years, and cut
off his involvement with sports teams, friends, routines, and the place he calls
home. She noted:
Finally settled after a host of placements and multiple
reunifications and removals from his mother, [Zaid] is
yet once again being confronted with the idea that he
will leave his home and be placed elsewhere. And yes,
while it is not dismissed that this home is not "family,"
for [Zaid], [Carol and Paul] have become family.
Dr. Wells further concluded that although race and biology are important
in child welfare cases, the child's stability, permanency, and feeling of being
protected are also factors that required consideration. Dr. Wells also considered
it critical that Zaid's wishes be considered, given his unstable childhood and his
desire for stability and certainty with his caregivers.
Dr. Esquilin, who testified on behalf of Kim as an expert in parental
fitness, bonding, permanency, child abuse and trauma, and child and general
psychology, recommended in May 2019 that Zaid be exposed to adult Black role
models, as she considered exposure to various people from that community and
development of relationships important. She made the recommendation because
Zaid lacked historical or cultural self-awareness.
For purposes of the KLG trial, Dr. Esquilin prepared an updated report on
February 18, 2022, which addressed recommendations she made in a set of
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psychological and bonding evaluations from April 2019, that had been submitted
for the prior guardianship trial. Dr. Esquilin had not conducted any updated
evaluations or interviews since her evaluations in 2019, and the report was based
on Drs. Wells' and Swanson's reports and six contact sheets. After reviewing
the material, Dr. Esquilin testified that Carol and Paul still had not fully engaged
Zaid and the family in conversations about race nor had they consistently
exposed him to his race and culture.
Dr. Esquilin noted there was some attempt to address her 2019
recommendations regarding race and culture, though they had not been fully
addressed. She considered it unlikely that Paul's cousin's spouse would have the
same set of experiences of Blacks and added that it was also "virtually
impossible" for any one person to give a child the full cultural experience. 12 She
indicated that beyond responding to the George Floyd incident, there was no
exposure to cultural events or consultation with the sort of therapist she had
recommended.
Regarding the reasons it was important for Zaid to develop his racial
identity, Dr. Esquilin commented on literature which suggested that Black
children who have a positive and salient racial identity generally do better
12
Paul's cousin's spouse was born in Africa.
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overall academically and in life than those who do not. Ultimately, Dr. Esquilin
opined that if Zaid remained with the resource family, his racial identity would
not be fostered, and his contact with his biological relatives would also diminish.
As discussed more fully below, the court awarded KLG to Carol and Paul,
noting the Division satisfied all four prongs of N.J.S.A. 3B:12A-6(d) by clear
and convincing evidence. The biological father, Rob, consented to KLG with
Carol and Paul, in line with Zaid's wishes.
II.
Kim raises the following issues on appeal:
THE TRIAL COURT INCORRECTLY
DETERMINED THAT [THE DIVISION] HAD
PROVEN BY CLEAR AND CONVINCING
EVIDENCE THAT AN AWARD OF KLG TO
RESOURCE CAREGIVERS, RATHER THAN KIM'S
SISTER AVA AND HER SPOUSE, WAS IN ZAID'S
BEST INTEREST UNDER PRONG FOUR OF
N.J.S.A. 3B:12A-6(d).
A. The Court Erroneously Held that KLG
With [Carol and Paul] Over KLG with . . .
Ava Was in Zaid's Best Interest Where
Intangible Aspects of Biological Relative
Family Relationships Address Important
Aspects of Race and Culture, Recognized
In Current Law and Where Ava's Family
Was Deemed Equally Capable of Caring
For Zaid and Would Be Able to Address
Any Distress From Being Placed In Their
Care.
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More particularly, Kim contends the court erred in determining an award
of KLG to Carol and Paul was in Zaid's best interest. Principally, Kim argues—
given Carol and Paul are White and Zaid is Black—the court erred in affording
little weight to the racial and cultural concerns raised by the experts which
ultimately resulted in awarding KLG to Carol and Paul as Zaid's permanent
caregivers. Kim further asserts the trial court did not properly consider the July
2021 amendments to the KLG Act, N.J.S.A. 3B:12A-1 to -7, and that Ava and
Dylan were better able to provide Zaid a stable and loving home, coupled with
better insight and understanding regarding intangible ethnic and cultural issues
involving young Black men. We are unpersuaded by these arguments—which
both the Division and the Law Guardian oppose.
Our review of the Family Part judge's decision is limited. Cesare v.
Cesare, 154 N.J. 394, 413 (1998). We are bound by the judge's factual findings
so long as the findings are supported by sufficient credible evidence. N.J. Div.
of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re
Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "[W]e [also]
rely on the trial court's acceptance of the credibility of the expert's testimony
and the court's fact-findings based thereon, noting that the trial court is better
positioned to evaluate the witness' credibility, qualifications, and the weight to
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be accorded [his or] her testimony." In re Guardianship of D.M.H., 161 N.J.
365, 382 (1999) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607
(1989)). Deference is also accorded to the trial court's findings of fact because
the Family Part "possess[es] special expertise in the field of domestic relations."
Cesare, 154 N.J. at 412-13. The trial court 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 & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting
M.M., 189 N.J. at 293). No deference is given to the trial court's interpretation
of the law, which is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46
(2012).
KLG allows a person to become a child's legal guardian and care for that
child until adulthood, without terminating the rights of the biological parents.
N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 508 (2004). 13 KLG is
designed "to address the needs of children who cannot reside with their parents
due to their parents' incapacity or inability to raise them . . . ." N.J. Div. of
Youth & Fam. Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div. 2007). A
13
Birth parents retain the authority to consent to adoption or name changes and
are also obligated to pay child support and retain the right to visitation or
parenting time as determined by the court. N.J.S.A. 3B:12A-6(e)(2) to (5).
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kinship legal guardian has the same rights and responsibilities as the parent and
is "entitled to make all decisions relating to the care and well-being of the child."
N.J. Div. of Youth & Fam. Servs. v. D.H., 398 N.J. Super. 333, 340 (App. Div.
2008).
Under the KLG Act, N.J.S.A. 3B:12A-1 to -7, the Division must satisfy
the factors under N.J.S.A. 3B:12A-6(d) for appointment of a kinship legal
guardian. The court shall appoint a kinship legal guardian if it finds the Division
has proven the following prongs 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 as provided in [N.J.S.A. 30:4C-85(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
(4) awarding kinship legal guardianship is in the child's
best interests. 14
14
In determining the child's best interests, the court shall not award KLG of the
child solely because of a parent's incapacity. N.J.S.A. 3B:12A-6(c). In
evaluating whether to appoint a specific caregiver as a kinship legal guardian,
the Family Part judge must consider the following factors:
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[N.J.S.A. 3B:12A-6(d).]
A "kinship legal guardian" is defined as "a caregiver who is willing to
assume care of a child due to parental incapacity, with the intent to raise the
child to adulthood, and who is appointed the kinship legal guardian of the child
(1) if proper notice was provided to the child's parents;
(2) the best interests of the child;
(3) the kinship caregiver assessment;
(4) in cases [of Division involvement,] the
recommendation of the [D]ivision, including any
parenting time or visitation restrictions;
(5) the potential kinship legal guardian's ability to
provide a safe and permanent home for the child;
(6) the wishes of the child's parents, if known to the
court;
(7) the wishes of the child if the child is [twelve] years
of age or older, unless unique circumstances exist that
make the child's age irrelevant;
(8) the suitability of the kinship caregiver and the
caregiver's family to raise the child;
(9) the ability of the kinship caregiver to assume full
legal responsibility for the child;
(10) the commitment of the kinship caregiver and the
caregiver's family to raise the child to adulthood;
(11) the results from the child abuse record check
conducted pursuant to [N.J.S.A. 30:4C-86]; and
(12) the results from the criminal history record
background check and domestic violence check
conducted pursuant to [N.J.S.A. 30:4C-86].
[N.J.S.A. 3B:12A-6(a)].
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by the court pursuant to [N.J.S.A. 3B:12A-1 to -7]." N.J.S.A. 3B:12A-2; see
also N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 223 (2010). The
term "caregiver" refers specifically to a person "who has a kinship relationship
with the child and has been providing care and support for the child, while the
child has been residing in the caregiver's home, for either the last six consecutive
months or nine of the last [fifteen] months . . . [and] includes a resource family
parent as defined in [N.J.S.A. 30:4C-26.4]." N.J.S.A. 3B:12A-2. N.J.S.A.
30:4C-26.4 defines "resource family parent" as "any person with whom a child
in the care, custody, or guardianship of the [Division] is placed by the
[Division], or with its approval, for care . . . ." The Legislature defined a
"kinship relationship" for purposes of KLG to include "a family friend or a
person with a biological or legal relationship with the child." N.J.S.A. 3B:12A-
2.
The New Jersey Legislature recently amended the KLG Act, L. 2021, c.
154, (N.J.S.A. 3B:12A-1 to -7), and the amendments became effective July 2,
2021. In amending the Act, the Legislature, in their findings and declarations
preamble, determined that "[k]inship care is the preferred resource for children
who must be removed from their birth parents because use of kinship care
maintains children's connections with their families," and "there are many
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benefits to placing children with relatives or other kinship caregivers, such as
increased stability and safety as well as the ability to maintain family
connections and cultural traditions." L. 2021, c. 154 § l(b).
On May 9, 2022, the trial court issued a thorough and comprehensive
sixty-three-page written decision finding that the Division had proven by clear
and convincing evidence all four prongs of N.J.S.A. 3B:12A-6(d) and awarded
KLG to Carol and Paul.15
Initially, we note the court expressed concerns concerning the testimony
of Dr. Esquilin. The trial court noted she "relied on broad assumpti ons about
[Carol, Paul, and Ava]" and her "global concerns about systemic racism were
15
As to the first prong, the court found that Kim's chronic alcohol use and
unstable mental health rendered her unable to provide parental care and support
to Zaid. Although she had progressed in her recovery, Kim's history
demonstrated her inability to maintain sobriety for long periods of time. She
was unable to recognize how her behaviors impacted Zaid, and Zaid does not
wish to reunify with her. Regarding the second prong, the court also found that
Kim was unwilling or unable to provide parental care and support to Zaid in the
foreseeable future. Although there were times when Kim addressed her alcohol
use and mental health issues, she was unable to maintain her sobriety.
Moreover, none of the experts—including Dr. Esquilin—supported
reunification. As to the third prong, the court found the Division made
reasonable efforts towards reunification to no avail. For over eight years, the
Division provided numerous services to Kim, including substance abuse
evaluations, psychological evaluations, urine and hair testing, mental health
services, payment for prescription medication, rental assistance, and in-home
counseling.
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out of place in this case." The court observed that Dr. Esquilin had not
conducted an interview with Ava or her family, which was a major "flaw"
"undermin[ing]" her credibility. Instead, Dr. Esquilin "assumed" that because
Ava was Black she would be able to better educate Zaid about race than Carol
and Paul. The court noted Dr. Esquilin's lack of updated evaluations, coupled
with her reliance on only Drs. Swanson's and Wells' reports and not on their raw
data, further impacted her credibility.
In addressing the fourth prong, the court found that after considerable
instability in his life, Zaid had finally found stability with Carol and Paul. The
judge commented:
How [Zaid] began residing with the resource
parents and became woven into their family is not in
dispute. [Kim] is an alcoholic who could not maintain
her mental health, and she was chronically engaged in
criminal activity. [Zaid] has been repeatedly removed
from [Kim's] care because of her inability to take care
of herself. [Zaid] was reunified and removed from
[Kim's] custody four times between 2013 and 2018.
She last resided with [Zaid] on August 31, 2018.
[Zaid's father] essentially abandoned [Zaid]. Extended
family was unable to provide long-term care for [Zaid],
despite their love for him. [Zaid's maternal
grandmother, Yanni] asked for [Zaid]'s removal, and
[Ava] was unable to care for [Zaid] in 2018 and 2019
because of her commitment to her family's military
career and deployment obligations. [Carol and Paul]
were the only people willing and able to care for [Zaid]
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in 2018, and that is where he stayed year after year
while litigation churned.
With respect to bonds between Zaid, Carol, Paul, Jack, and Sara, the court
noted:
[Zaid] became integrated into the resource
family, so much so that he refers to the resource parents'
children as his brother and sister. [Zaid] does not
consider himself a foster child—only [Kim] constantly
reminds him of that fact. To [Zaid], he is home. He
craves stability and he wants to be adopted by [Carol
and Paul]. If he cannot be adopted as a minor, the
resource parents and [Zaid] intend to initiate an adult
adoption after he turns eighteen years old. That vow
speaks to the strength of [Zaid]'s bond with his resource
family. [Carol and Paul] are committed to care for
[Zaid] until adulthood, in whatever legal form it takes
to provide him with the stability he deserves.
[Zaid] does not want to leave, and nobody else
wants him to, except [Kim]. She would rather uproot
[Zaid] from the only family he has known during his
tumultuous childhood and force him to re-establish his
social network and sports relationships in Texas at the
age of fifteen. If [Zaid] were required to move to Texas
against his wishes, he would not only lose the only
stability he has had in his life, but he would become
disconnected with [Kim], who he enjoys in a limited
capacity under controlled circumstances. Why would
[Kim] advocate this outcome? Because she irrationally
fears the resource parents will cut her off from [Zaid].
There was no evidence adduced at trial to substantiate
that fear. [Kim], [Carol, and Paul] reside[] in the same
neighborhood, approximately five minutes from each
other. If [Zaid] were to be placed with [Ava] in Texas,
[Kim] could not maintain the weekly physical contact
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she has with [Zaid]. It is certainly not in [Zaid]'s best
interests to move to Texas, so far from his mother.
The court proceeded to address the cultural issues raised by Kim and the
importance of stability to Zaid. The court stated:
[Kim] made a great deal about the cultural
differences between [Zaid] . . . and the resource family
. . . . [That] is not a barrier to [Zaid]'s health,
happiness, or safety.
....
[Kim] tried to make a case that [Zaid] will be
better off living with his [Black] aunt in Texas rather
than the [White] resource family that [Zaid] has bonded
with for the past three years. [Zaid] did not agree.
During the court's interview with [Zaid], he was
unequivocal in his preference. This is a case about
stability. [Zaid] has been living with [Carol and Paul]
for over three and a half years, and he is fully integrated
into their family system. [Jack] and [Sara] are [Zaid]'s
siblings and [Zaid] is part of the . . . family. [Ava],
although loving and fun, is a distant aunt who [Zaid]
does not feel a strong connection. Had [Ava] presented
herself as a kinship placement option in August 2018,
when [Zaid] needed a place to live, a KLG could have
been entertained and granted. The window for KLG
with [Ava] is now closed. [Zaid] is fifteen and will be
entering high school with his friends in the Fall of 2022.
He has an established social network of friends, a
family who loves him and wants to provide him with
stability, and a relationship with his mother that he
enjoys. [KLG] with [Ava] in Texas would wipe out all
the stability [Zaid] has achieved in the last three years
and create undue distress.
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For these reasons, the court finds it is in the best
interest of [Zaid] to continue to reside with [Carol and
Paul] under a [KLG]. . . .
The court further referenced Dr. Swanson's testimony where she noted it
was better for Zaid to remain with Carol and Paul, notwithstanding their cultural
differences. Although Carol and Paul could take steps to better understanding
the Black experience in America, Dr. Swanson concluded they had an open
attitude about race and the Black culture, and exposure to Black role models
could assist in addressing these issues with Zaid. The court found Dr. Swanson's
opinions to be "reasonable, practical and sound."
Following our review of this matter, we are satisfied there was ample
evidence in the record to support the court's conclusion, and we affirm
substantially for the reasons set forth in the court's in-depth and detailed
decision. We add the following.
The Division presented clear and convincing evidence to satisfy all four
prongs. After much disorder and disruption in his life as a result of Kim's
various issues, Zaid found safety, stability, and a secure bond with Paul, Carol,
and their children, where he resided for over three years at the time of the KLG
trial. They willingly took on this significant responsibility at a time when other
family members were unable to care for Zaid. The court's determination that it
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would not be in Zaid's best interest to uproot him from his current family at this
juncture is well supported by the record.
The court appropriately considered the importance of cultural issues in the
context of this case and the expert testimony on this issue. Ultimately, the court
determined this issue alone was not dispositive in awarding KLG to Carol and
Paul. Although the experts generally agreed that Ava and Dylan were capable
caregivers and had the present desire and ability to serve as KLGs, the court
determined this alternative was not in Zaid's best interest. This is by no means
a negative reflection on Ava and Dylan. Rather, under the totality of the
circumstances, the court found: the stability provided to Zaid by Carol and Paul
over the past several years; Zaid's steadfast desire to remain with the only stable
family he has known; his integration into Carol and Paul's family, Zaid viewing
Jack and Sara as his siblings; his connection with local schools, friends, and his
involvement in athletics; and his attenuated relationship with Ava and steadfast
reluctance to be placed with Ava or relocate to Texas at this point in his life 16—
which all strongly support the court's conclusions in this matter. We agree there
was sufficient credible evidence in the record to support these findings and
discern no reason to disturb the court's decision.
16
We note Zaid reaches the age of majority in December 2024.
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Finally, to the extent we have not otherwise addressed any of defendant's
other arguments, we determine they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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