DCPP VS. M.M., V.B., AND E.N., IN THE MATTER OF THE GUARDIANSHIP OF K.M.N., Z.B., ZA.B., L.B., ZAR.B., AND Z.U.B. (FG-09-0206-18, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3597-17T2
A-3598-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.M. and V.B.,
Defendants-Appellants,
and
E.N.,
Defendant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF K.M.N.,
Z.B., ZA.B., L.B., ZAR.B., and
Z.U.B.,
Minors.
______________________________
Argued March 11, 2019 – Decided April 2, 2019
Before Judges Sabatino, Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0206-18.
Andrew R. Burroughs, Designated Counsel, argued the
cause for appellant M.M. (Joseph E. Krakora, Public
Defender, attorney; Andrew R. Burroughs, on the
briefs).
James D. O'Kelly, Designated Counsel, argued the
cause for appellant V.B. (Joseph E. Krakora, Public
Defender, attorney; James D. O'Kelly, on the briefs).
Peter D. Alvino, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Sara M. Gregory, Deputy
Attorney General, on the brief).
Nancy P. Fratz, Assistant Deputy Public Defender,
argued the cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Nancy P. Fratz, on
the brief).
PER CURIAM
In these consolidated appeals, the mother and father of several children
seek reversal of the trial court's decision terminating their parental rights after a
four-day guardianship trial. The children were removed from the parents
because of allegations of abuse or neglect. Three of the children in question
A-3597-17T2
2
presently live with their maternal grandmother and the other three children have
been placed with a maternal great aunt.
The court-approved plan of the Division of Child Protection and
Permanency ("the Division") is for the maternal grandmother to adopt the three
children who are in her care, and for the maternal great aunt to likewise adopt
the other three children. The Law Guardian for the children supports that plan,
and joins with the Division in urging that we affirm the trial court 's decision.
For the reasons that follow, we affirm the trial court's determination that
the Division met its burden of proof at trial with respect to the first two prongs
of the termination statute, N.J.S.A. 30:4C-15.1(a), as to both parents. However,
we remand this case with respect to prongs three and four of the statute
specifically to: (1) develop the trial record with more clarity as to whether each
resource parent unequivocally, unambiguously, and unconditionally wishes to
adopt the children in her care, regardless of the potential alternative of Kinship
Legal Guardianship ("KLG"); and (2) obtain explicit findings by the trial court
addressing KLG as it relates to the feasibility of adoption and the unequivocal
consent of the resource parents to adoption. In all other respects, we uphold the
trial court's otherwise well-founded and well-reasoned decision.
A-3597-17T2
3
I.
Although the record in this case is extensive, we need not detail it
exhaustively here. We summarize only the salient facts pertinent to our
discussion.
Defendant M.M. 1 ("the mother") is the biological mother of seven
children: X.M. ("Xander"), born in October 2008; K.M.N. ("Kevin"), born in
October 2009; Z.B. ("Zarah"), born in September 2011; Za.B. ("Zena"), born in
August 2013; L.B. ("Larry"), born in April 2015; Zar.B. ("Zadie"), born in July
2016; and Z.U.B. ("Zelda"), born in September 2017.
Xander was placed in the custody of his father, D.B. The court dismissed
Xander from this litigation in January 2017.
Defendant E.N. is the father of Kevin. The trial court terminated E.N.'s
parental rights after the guardianship trial, which he did not attend. E.N. has not
appealed the court's decision respecting him and Kevin.
Defendant V.B. ("the father") is the husband of the mother. He is the
father of the mother's youngest five children, i.e., Zarah, Zena, Larry, Zadie, and
Zelda.
1
We use initials and pseudonyms to protect the identity of the children. See R.
1:38-3(d)(12).
A-3597-17T2
4
As of the time of the guardianship trial in 2018, the Division had been
involved with the mother and her children for about eight years, and with the
father for approximately six years. The Division initially removed Xander and
Kevin from the mother's care in February 2010 after receiving reports that she
left Kevin on his paternal relatives' porch unattended. Those two sons were
temporarily returned to the mother's custody in October 2015. Meanwhile,
Zarah, Zena, and Larry were born, and defendants married.
In December 2015, the Division learned that Larry, who was then about
seven months old, had fallen off a bed and was burned by a radiator while in the
father's care. The incident was investigated and established as to the father's
neglect, but the Division did not remove the children at that time.
In July 2016, the Division removed all of the children from defendants'
care because the mother had tested positive for marijuana upon Zadie 's birth,
and because caseworker interviews with the children had raised concerns about
physical abuse. Kevin and Larry were placed with the maternal grandmother.
Zarah, Zena, and Zadie were placed with the maternal great aunt.
The Division filed a complaint of guardianship in the Family Part in
September 2017. That same month the youngest child, Zelda, was born. The
A-3597-17T2
5
Division removed Zelda from defendants' care and placed her with the maternal
grandmother, adding Zelda to its amended guardianship complaint.
The evidence at the four-day trial reflected that defendants have struggled
to be capable as parents. The evidence is replete with repeated marijuana use
by both parents, an inability of the parents to provide their own stable home,
unemployment, and indicia of failures to supervise the children, including the
radiator incident in which Larry sustained second-degree burns. Both parents
have psychological difficulties, for which they have received some counseling.
The Division made numerous attempts over the years to provide the
parents with services and to reunify them with their children. The Division 's
key testifying witness at trial, Karen D. Wells, Psy.D., initially in 2011 had
"cautiously supported" the gradual reunification of the children with the mother.
Dr. Wells later issued an expert report in 2013, again recommending a path
towards reunification. However, as time passed, Dr. Wells changed her opinion
and ultimately concluded that the children are better off if they are kept with and
adopted by their respective resource parents.
The father presented testimony from a psychiatrist, Barry A. Katz, Ph.D.,
to rebut the expert opinions of Dr. Wells. After performing bonding evaluations
of the children and a psychological evaluation of the father, Dr. Katz concluded
A-3597-17T2
6
that it would do more harm than good to sever the father's parental rights. He
predicted that such a termination would place the children at risk for conduct
and emotional problems, and difficulties at school. Dr. Katz recommended an
additional four-to-six month period to reassess the circumstances.
The record at trial showed the Division has provided substantial services
to both parents. Among other things, those services included substance abuse
treatment, domestic violence and anger-management counseling, homemaker
services, temporary rental assistance, and other programs. In addition, up
through the time of trial, the Division supported visitation between the parents
and the children residing with the resource parents. The mother in particular
visited frequently with the children, with the acquiescence of her own mother
and the children's maternal great aunt. The father likewise had contact with the
children during the litigation, albeit seemingly with less frequency.
Although there have been lapses, both parents have substantially taken
advantage of the services provided to them. Nevertheless, the mother continued
to smoke marijuana and repeatedly tested positive for such drug use up through
at least February 2017. The mother contends that there is no proof that she has
ever harmed or neglected the children when she was under the influence of
marijuana or any other drug. The father, meanwhile, has had repeated relapses,
A-3597-17T2
7
although he tested negatively for marijuana for approximately a year before the
trial.
As of the time of trial, the parents were both employed. They had an
apartment, but one not large enough to accommodate all six children. They were
hoping to save money eventually to rent a larger apartment.
After considering this and much more extensive evidence, the trial judge
concluded the Division had proven all four prongs of the termination statute by
the level of clear and convincing evidence required by N.J.S.A. 30:4C-15.1(a).
In particular, the judge found the expert opinions of the Division's expert, Dr.
Wells, more persuasive than those of the competing defense expert, Dr. Katz.
The judge found significant the Division's eight years of efforts to try to stabilize
the family, and to provide services, all of which were unsuccessful in reunifying
the children with their parents.
The judge noted the close bonds between the maternal grandmother and
maternal great aunt and the children in their respective homes, and she found
that both resource parents wish to adopt the children presently in their care. The
judge found the termination of the parents' rights to enable such adoption
consistent with the children's best interests.
A-3597-17T2
8
II.
A.
We begin our discussion by acknowledging that the termination of a
parent's rights to his or her children raises issues of a constitutional dimension.
See, e.g., In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In re
Guardianship of J.C., 129 N.J. 1, 9-10 (1992). The Legislature has recognized
the importance of this constitutionally protected relationship between a parent
and a child by imposing a high burden upon the Division to terminate those
rights in a guardianship case. That burden requires the Division to prove, by
clear and convincing evidence, the following four prongs under N.J.S.A. 30:4C-
15.1(a):
(1) The child's safety, health or development has been
or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;
(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
A-3597-17T2
9
outside the home and the court has considered
alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
[N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth &
Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986)
(reciting the four controlling standards later codified in
Title 30).]
On appeal, the mother challenges the trial court's adverse findings as to
all four prongs. The father concedes the sufficiency of the evidence against him
as to prong one, but he contests the trial court's analysis as to prongs two, three,
and four. Both parents include in their various arguments a contention that the
trial court did not sufficiently consider the option of KLG with the resource
parents as a possible alternative to adoption.
In considering these arguments on appeal, we must give substantial
deference to the trial judge as the fact-finder who presided over this multi-day
guardianship trial. Our scope of review on appeals from orders terminating
parental rights is limited. In such cases, the trial court's findings generally
should be upheld so long as they are supported by "adequate, substantial, and
credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,
552 (2014). A decision in such cases should only be reversed or altered on
appeal if the trial court's findings were "so wholly unsupportable as to result in
A-3597-17T2
10
a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494,
511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).
We must take into account the trial judge's opportunity to have observed
the trial witnesses first hand and to evaluate their credibility. R.G., 217 N.J. at
552. We also must recognize the considerable expertise of the Family Part,
which repeatedly adjudicates cases brought by the Division under Title 9 and
Title 30 involving the alleged abuse or neglect of children. See, e.g., N.J. Div.
of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); N.J. Div. of Youth
& Family Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div. 2012).
B.
Having applied these standards to the record and the trial court's findings
in light of the applicable substantive law, we affirm the trial court's decision
with respect to prongs one and two of the statute. We do so substantially for the
reasons articulated in the trial judge's extensive written decision dated March
29, 2018.
Although we agree with much of the trial court's analysis with regard to
prongs three and four of the statute, we presently are unable to affirm the final
judgment as to those prongs. That is because the factual record, which is based
upon a series of somewhat inconsistent and conditional hearsay statements, is
A-3597-17T2
11
insufficiently clear with respect to issues concerning adoption and the potential
alternative of KLG. Moreover, the trial court did not mention KLG in the course
of its written analysis even though it was a facet of the parties' closing
arguments. Before we address these thorny adoption and KLG issues, we briefly
comment on the other aspects of the case.
1.
The mother's appeal as to prong one is unpersuasive. There is ample
credible factual evidence and expert opinion in the record to support the trial
judge's finding that the mother's conduct has endangered the children in their
safety, health, and development. We appreciate the mother's argument that a
parent's marijuana use does not necessarily translate, per se, into child abuse or
neglect. See N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super.
462, 464 (App. Div. 2014). We also recognize, as the mother argues, that a
parent's poverty is insufficient to support a finding of child abuse or neglect. In
re Guardianship of J.C., 129 N.J. at 20-21.
The trial judge was appropriately mindful of these principles in
nevertheless concluding from the evidence that the mother has endangered the
children by repeatedly failing to provide a stable home environment for them.
The mother has failed to take sufficient advantage of the services offered to her,
A-3597-17T2
12
including substance abuse treatment, has persisted in her drug use, and has been
unable to provide secure housing for the children. See N.J. Div. of Youth &
Family Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013) (noting that
"[w]hen the condition or behavior of a parent causes a risk of harm, such as
impermanence of the child's home and living conditions, and the parent is
unwilling or incapable of obtaining appropriate treatment for that condition,"
prong one of the statute is proven). The findings of Dr. Wells, who the trial
judge found to be credible, addressing this prong and the risks to the children,
further support the judge's conclusions.
2.
As to prong two, we are likewise satisfied the trial judge had sufficient
evidential support to conclude under the statute that the mother has been
"unwilling or unable to eliminate the harm facing the child[ren] or is unable or
unwilling to provide a safe and stable home for the child[ren] and the delay of
permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). As the
judge's opinion rightly notes, the Division has worked with this family for over
eight years. Despite the efforts made to date, the mother still has been unable
to eliminate the harm and provide a safe and stable home.
A-3597-17T2
13
We recognize the father's compliance with various services, but, as the
judge's opinion notes, the father has yet to demonstrate that he can "provide a
safe, secure, and stable environment." Dr. Wells' expert opinion that the father
does not have the capacity to care for the children, either independently or as a
co-parent with the mother, supports this conclusion.
As the statute instructs under prong two, "[s]uch harm may include
evidence that separating the child[ren] from [their] resource family parents
would cause serious and enduring emotional or psychological harm to the
child[ren]." Ibid. That is precisely what the credible expert opinions of Dr.
Wells underscored. There is more than ample proof that removing the children
from, respectively, the maternal grandmother and the maternal great aunt, would
cause the children major emotional and other harm.
Moreover, the "delay of a permanent placement" is particularly salient in
a family, such as this one, which has been involved with the Division for nearly
a decade. "Children must not languish indefinitely in foster care while a birth
parent attempts to correct the conditions that resulted in an out-of-home
placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201,
209-10 (App. Div. 2007); see also N.J. Div. of Child Prot. & Permanency v.
R.L.M., 236 N.J. 123, 146-47 (2018) (emphasizing the importance of prompt
A-3597-17T2
14
judicial determinations of issues in cases involving children awaiting
permanency). We affirm the trial court as to this prong as well.
3.
Turning to prong three, we are satisfied that the record readily supports
the trial judge's finding that the Division has made "reasonable efforts" to
provide appropriate services to both parents. As we have noted, the parents have
made use of many of these services, albeit inconsistently at times. We pause,
however, with regard to the last clause of prong three set forth in N.J.S.A. 30:4C-
15.1(a)(3) regarding the adequacy of the trial court's consideration of
"alternatives to termination of parental rights," and defer our discussion on that
point to the KLG portion of this opinion in Part II(C).
4.
Lastly, subject to the KLG caveat, the trial judge provided a reasonable
basis for her conclusion on prong four that the termination of both parents' rights
will not do the children more harm than good under N.J.S.A. 30:4C-15.1(a)(4).
As the finder of fact, the trial judge had the prerogative to evaluate the credibility
of the testimony of the competing experts, and to find the opinions of Dr. Wells
about the children's best interests more persuasive than those of Dr. Katz. City
of Long Branch v. Liu, 203 N.J. 464, 491 (2010) (explaining the fact finder has
A-3597-17T2
15
the role of assessing the credibility and weight to be given to expert testimony);
Angel v. Rand Express Lines Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961)
(same).
The present case concerns a distinctive situation in which both resource
parents happen to be close relatives of one parent (the mother's mother and the
mother's aunt). The children have enjoyed visits from the parents with
considerable frequency. 2 The record also suggests that the children, the resource
parents, and defendants at time have spent holidays together and attended
religious services. The children have been capably raised by their grandmother
and great aunt for many years. They have bonded with them and have been
cared for well. Subject to the KLG concerns we will address, infra, the
Division's goal of adoption by the resource parents, with the expectation and
2
The trial court initially permitted visitation between the children and the
parents while the appeal was pending. However, we were advised in a pre -
argument status update that we requested from counsel that, as the result of an
incident in the summer of 2018, the trial court has since disallowed such
visitation as to the children staying with the maternal grandmother in an order
issued in the "FC" docket. The Division and the Law Guardian do not rely on
such post-trial developments to support their arguments for affirmance. We will
accordingly ignore this post-judgment information and do not rely upon it to
defendants' disadvantage, either. We do appreciate counsel's assistance in
providing the update information, and recognize it was not required to b e
supplied under Rule 2:6-11(f) (regarding updates of changes of a child's
"placement status" while an appeal is pending) before we inquired.
A-3597-17T2
16
hope they would continue voluntarily to nurture the children's relationships with
their mother and father, appears from the trial proofs to have several advantages.
C.
1.
This brings us to the issue of the potential alternative of KLG to the
termination of defendants' parental rights. The Kinship Legal Guardianship Act,
N.J.S.A. 3B:12A-1 to -7, which authorizes KLG, 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).
As the statute creating KLG declares, "[i]n considering kinship legal
guardianship, the State is seeking 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[.]" N.J.S.A. 3B:12A-1(c). "[T]he purpose of this alternative legal
arrangement 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
A-3597-17T2
17
adoption is neither feasible nor likely." S.F., 392 N.J. Super. at 209; see also
P.P., 180 N.J. at 508.
Typically, KLG guardians will be caregivers who have a "biological,
legal, extended or committed emotional or psychological relationship with a
child[.]" P.P., 180 N.J. at 508 (quoting S. Budget and Appropriations Comm.
Statement to S. 1813 (June 25, 2001), reprinted in N.J.S.A. 3B:12A-1). They
must be "willing to assume care of the child due to parental incapacity or
inability, with the intent to raise the child to adulthood." Ibid. (quoting S.
Budget and Appropriations Comm. Statement to S. 1813 (June 25, 2001),
reprinted in N.J.S.A. 3B:12A-1).
"Once [a] caregiver becomes a kinship legal guardian, the caregiver is
entitled to make all decisions relating to the care and well-being of the child."
N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 340 (App.
Div. 2008) (citing N.J.S.A. 3B:12A-4(a)(1)). As this court has further
explained:
KLG, however, does not terminate parental
rights. . . . The birth parents retain the right to: (1)
consent to adoption . . . (2) change the child's name . . .
and (3) visit the child . . . . The birth parents also remain
obligated to pay child support. . . . Additionally,
children are still eligible to receive inheritance,
benefits, or insurance from their birth parents.
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[Id. at 341 (citations omitted) (citing N.J.S.A. 3B:12A-
4a(2)-(5)).]
In order to conclude that a KLG arrangement is appropriate, the court
must find 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 [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 kinship legal guardianship is in the child's
best interests.
[N.J.S.A. 3B:12A-6(d) (emphasis added).]
The decision of a resource parent to choose adoption over KLG must be
an informed one. See H.R., 431 N.J. Super. at 232-33. In deciding whether or
not to appoint a caregiver as a KLG, the judge must decide if KLG is in the
child's best interests and – when the Division is involved with the parents – if
the Division has made reasonable efforts at reunification and if the adoption of
the child "is neither feasible nor likely." N.J.S.A. 3B:12A-6(d).
A-3597-17T2
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The Legislature has made it clear that relative caretakers who might be
candidates for KLG must be adequately informed of the nature of such
arrangements and the financial and other services for which they may be
eligible. To achieve that objective, the Legislature enacted in 2005 the Kinship
Legal Guardianship Notification Act ("Notification Act"), N.J.S.A. 30:4C-89 to
-92. In the Act, the Legislature imposed a responsibility upon the State "to
ensure that individuals who may be eligible to become kinship legal guardians
are aware of the eligibility requirements for, and the responsibilities of, kinship
legal guardianship and . . . [also] the services available to kinship legal guardians
in the State." N.J.S.A. 30:4C-90(e).
To implement this notification mandate:
The Department of Children and Families [3] shall,
in easily understandable language:
a. inform individuals, of whom the department is
aware, who may be eligible to become kinship legal
guardians of:
(1) the eligibility requirements for, and the
responsibilities of, kinship legal guardianship; and
3
The statute was amended in 2012 to substitute the Department of Children and
Families for the Department of Human Services. See L. 2012, c. 16, § 112 (eff.
June 29, 2012).
A-3597-17T2
20
(2) the full-range of services for which kinship
legal guardians may be eligible and the eligibility
requirements for those services; and
b. inform current kinship legal guardians of the
full-range of services for which kinship legal guardians
may be eligible and the eligibility requirements for
those services.
[N.J.S.A. 30:4C-91].
The statute further directs that the Commissioner of the Department "shall adopt
rules and regulations . . . to effectuate the purposes of [the statute]." N.J.S.A.
30:4C-92.4 No published cases to date have interpreted the notification statute.
The Division has asserted that the KLG statutory scheme must be
construed with a focus upon the requirement in N.J.S.A. 3B:12A-6(d)(3)(b) that,
in cases such as the present one in which the Division has been involved with
the child, KLG is appropriate only if "adoption of the child is neither feasible
nor likely." In a number of published opinions involving arguments by
terminated parents advocating KLG, our courts have enforced this requirement
that adoption must not be feasible or likely. See, e.g., P.P., 180 N.J. at 513; N.J.
Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div.
2011).
4
Our research has not found any such adopted regulations, and none have been
cited in the parties' briefs.
A-3597-17T2
21
The Division argues that the statutory scheme must be construed to treat
the caregiver's role as simply deciding whether he or she is willing to adopt the
child in question. According to the Division, a caregiver's preference of KLG
versus adoption is inconsequential. The Division argues that giving credence to
caregiver's preference would result, in effect, in placing the caregiver in an
inappropriate position of rendering non-expert opinions concerning the child's
best interests, a question reserved for the Family Part judge. Moreover, the
Division expresses concerns that asking a caretaker who is willing to adopt a
child whether he or she would prefer instead a lesser role through a KLG
arrangement inappropriately clouds the legal analysis and injects an
unwarranted comparison of adoption-versus-KLG into the analysis.
Although we appreciate these concerns and agree that the caregiver should
not be placed in the role of functioning as the ultimate "decision-maker" as to a
child's fate, we do not regard the preferences, if any, of the caregiver to be
categorically irrelevant. A logical implication of the Notification Act is that the
caregiver must be fully informed of the potential benefits and burdens of KLG
before deciding whether he or she wishes to adopt. Once he or she is provided
with that comparative information, the caretaker's preference between the two
alternatives should matter.
A-3597-17T2
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The paradigm is somewhat akin to the principle of informed consent, and
its corollary principle of informed refusal, in health care. A physician may not
proceed with a medical procedure that had been fully described to an informed
patient if the patient states that he or she would prefer to pursue less drastic
measures (such as medication or physical therapy) before undergoing a more
drastic option (such as surgery). 5 In such a comparative situation, the patient
may be amenable to the more drastic alternative but would rather attempt the
less drastic one, as between those two alternatives.
To take a more everyday and less monumental example, suppose a
teenager asks her parent if she can drive the family car to a party. The parent
may respond, "Yes, but only if none of the other parents can drive you." In this
5
Analogous case law in medical negligence matters describes informed consent
as a concept in which a person supplied with adequate knowledge chooses
among the alternative options presented to him or her. See, e.g., Jarrell v. Kaul,
223 N.J. 294, 311 (2015) (explaining informed consent as a concept "predicated
on the duty of a physician to disclose to a patient such information as will enable
the patient to make an evaluation of the nature of the treatment and of any
attendant substantial risks, as well as of available options in the form of
alternative therapies.") (emphasis added) (quoting Largey v. Rotham, 110 N.J.
204, 208 (1988)); Matthies v. Mastromonaco, 160 N.J. 26, 28-29 (1999)
(holding "to obtain a patient's informed consent to one of several alternative
courses of treatment, the physician should explain medically reasonable invasive
and noninvasive alternatives, including the risks and likely outcomes of those
alternatives, even when the chosen course is noninvasive.") (emphasis added).
A-3597-17T2
23
situation, the parent would prefer to have someone else drive the child, and her
informed consent is only conditional on such other options being unavailable.
Although these analogies may not be completely on point, they are
somewhat instructive. Indeed, a leading New Jersey treatise on child custody
and child protection issues describes the caretaker's "decision to choose"
adoption over KLG as a choice, which "must be an informed one." Fall &
Romanowski, Current N.J. Family Law, Child Custody, Protection & Support §
18:3-4(c) (2018).
Moreover, the KLG statute requires the court to consider the "wishes" of
the child's parents and, if the child is over the age of twelve, the "wishes" of the
child. N.J.S.A. 3B:12A-6(a)(6) and (7). Logically, the "wishes" of the caregiver
also should bear upon the analysis. In addition, the KLG statute requires the
court to consider "the commitment of the kinship caregiver and the caregiver 's
family to raise the child to adulthood." N.J.S.A. 3B:12A-6(a)(10). A fair
judicial assessment of that "commitment" reasonably includes consideration of
whether the caregiver's position is qualified or diluted by a preference for an
alternative option, or is predicated upon some other conditions or expectations
being fulfilled.
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24
In sum, we construe the KLG statute and the Notification Act to make a
caregiver's preference, if any, of KLG over adoption a relevant but not
dispositive consideration. The caregiver's consent to adopt should be not only
informed, but also unconditional, unambiguous, and unqualified.
We are mindful that, as the Supreme Court stated in P.P., 180 N.J. at 513,
a case decided before the 2005 passage of the Notification Act, "when the
permanency provided by adoption is available, kinship legal guardianship
cannot be used as a defense to termination of parental rights . . . ." We are also
cognizant that the Court made clear in P.P. that if the defendants were not fit to
parent their children, "the trial court should not consider [KLG] unless . . . [the
resource parents] decline[d] to adopt." Id. at 514. In faithfully adhering to those
admonitions, however, it is also vital that the evidence before the trial court
regarding the caregivers' intentions has sufficient clarity and evidential
reliability.
As this court observed in T.I., 423 N.J. Super. at 130, following the
enactment of the Notification Act, "when a caregiver in a case brought by the
Division . . . unequivocally asserts a desire to adopt, the finding required for a
KLG that 'adoption of a child is neither feasible nor likely' cannot be met."
(Emphasis added). Such unequivocal evidence was presented in a "compelling"
A-3597-17T2
25
manner in T.I., in which the child's paternal grandfather testified at the
guardianship trial and stated "unequivocally" that he and his wife wanted to
adopt the child. Id. at 136. The adoptive grandfather attested that the Division
had explained the difference between adoption and KLG, that he had "given the
matter careful consideration," and that he believed KLG would "threaten the
stability" the child enjoyed in his family. Ibid. The grandfather also testified
that "there was no event or circumstance he could envision that would change
his mind." Ibid.
Given this unequivocal testimony in T.I., we rejected the parent's
argument that the trial court should have considered KLG as an altern ative to
termination. The grandfather's testimony "show[ed] that he clearly understood
the alternatives and that his reasons for rejecting a KLG were consistent with
the Legislature's stated goals." Id. at 137. "[T]he trial court did not abdicate its
obligation in accepting [the grandfather's] testimony, which clearly defeated any
finding that adoption was not feasible or likely." Ibid. (emphasis added).
Hence, there was no need in T.I. "to determine whether KLG was in the best
interest" of the child. Ibid.
By contrast, the record in this case is muddy. The documents in the record
and the testimony of the lay and expert witnesses in this case refer in various
A-3597-17T2
26
places to KLG. To be sure, that evidence reflects, and it is undisputed, that there
were repeated discussions by Division staff with, respectively, the maternal
grandmother and the maternal great aunt concerning KLG. In addition, the
father's expert, Dr. Katz, discussed KLG with at least the maternal great aunt.
Dr. Katz addressed KLG in his pretrial expert report and, over objection, in his
trial testimony. Dr. Wells, the Division's expert, did not explicitly discuss KLG
in her trial testimony or in the analytical portion of her report. However, she
did opine that adoption was feasible for both resource parents and she
recommended termination to enable such adoption.
Unlike in T.I., neither of the resource parents in this case testified.
Consequently, the communications by and with them concerning adoption and
KLG are all hearsay statements, a circumstance which we recognize is not
unusual in guardianship litigation. The mother's trial attorney objected to
hearsay contained in the Division's contact sheets. The trial judge ruled as
follows:
[THE COURT]: And then, again, your final
[objection] is all the hearsay contained in the evidence
packet, especially P-313. You may make objections as
we go along. Absolutely. And any hearsay that there's
no exception for is not admissible.
A-3597-17T2
27
The father's trial attorney later objected on hearsay grounds to the supervisor's
testimony regarding her discussions of KLG with the resource parents. The
judge sustained that objection and did not permit the supervisor to elaborate on
the hearsay discussion.
2.
Noting these evidentiary rulings, we now proceed to discuss, in roughly
chronological form, the evidence respecting each of the resource parents on this
subject.
First, a Division caseworker's entry in a contact sheet reflects that in
September 2012, the maternal grandmother stated she wanted to adopt her
grandsons Xander and Kevin. This statement is of only partial relevance
concerning Kevin, since the placement of Xander is not challenged and he is not
one of the six children at issue in this case.
The Division again discussed adoption and KLG with the maternal
grandmother in 2013. The contact sheets from that time period reflect that the
maternal grandmother again was willing to adopt Xander and Kevin, and she
apparently filled out adoption "paperwork."
According to a later contact sheet on August 7, 2015, the maternal
grandmother told a caseworker, in conditional words, that she would "consider
A-3597-17T2
28
obtaining sole custody of [Xander and Kevin] if she will be able to obtain public
assistance for them." (Emphasis added). The maternal grandmother further
ambiguously stated to the caseworker "she is also willing to adopt or get KLG
for [Kevin and Xander]." (Emphasis added).
On October 2, 2015, a caseworker met with the maternal grandmother,
who informed the caseworker she believed the Division was planning to return
Xander and Kevin to their mother. According to the contact sheet, the maternal
grandmother at that time "mentioned that she does not want to adopt [the two
boys] because she does not believe [the mother] is such a bad parent that
deserves her parental rights to be terminated." (Emphasis added). Additionally,
the entry states that the maternal grandmother "indicated that she has been
reading about KLG in the Division's web page and she is considering doing KLG
for [Xander and Kevin]." (Emphasis added). The caseworker advised the
maternal grandmother to "talk with the local [Division] office worker and
supervisor to discuss the matter." Later that month, the court ordered the
children to be immediately reunited with the mother.
The Division removed the children from the mother and father once again
in July 2016 following the mother's positive drug test at Zadie's birth. The
A-3597-17T2
29
children were thereafter placed respectively with the maternal grandmother and
the maternal great aunt.
On September 22, 2016, a caseworker spoke with the parents about the
possibility of entering into a KLG for Kevin with the maternal grandmother.
The parents stated they wanted to be reunified with all of their children. The
mother expressed concerns that KLG would "build a wedge" between her and
the maternal grandmother.
A few months later, on December 13, 2016, the maternal great aunt
reportedly told a caseworker that, with respect to the children in her care, she
was "willing to adopt or do kinship legal guardianship as long as she receive[d]
financial assistance." (Emphasis added).
Further discussions with the resource parents concerning adoption and
KLG occurred in 2017. On March 21 of that year, the maternal grandmother
reportedly told a caseworker that she had "researched" KLG and adoption, and
that she "underst[ood]" the difference between them. The contact sheet indicates
the maternal grandmother "did not want to discuss KLG and adoption because
[she felt] her opinion on the matter was not acknowledged last time." In
particular, the maternal grandmother reportedly stated that she had "wanted
KLG with [Kevin and Xander] and the children were [nonetheless] reunified"
A-3597-17T2
30
with their mother. 6 The maternal grandmother articulated frustration that she
had "addressed the judge and expressed her stance [but] reunification still
proceeded." Reportedly, the maternal grandmother further stated she did not
think the mother and father were ready to parent "because they did not have the
proper resources," and that "she did not want the children to be moved" from
her own care.
That same day, March 21, 2017, the caseworker separately met with the
maternal great aunt, and reviewed with her the differences between adoption and
KLG. According to the contact sheet, the maternal great aunt reportedly stated
at that time "she is willing to adopt," and she signed an acknowledgment
"receipt" confirming that. 7
On April 5, 2017, a caseworker met with the maternal grandmother and
again reportedly discussed with her the differences between adoption and KLG.
This contact sheet contains a somewhat confusing entry, indicating that the
maternal grandmother "felt more comfortable with proceeding with a plan for
6
This is confusing, because the maternal grandmother had seemingly expressed
a previous desire to adopt, not to have KLG. The trial testimony does not
enlighten us as to whether this was a misperception of the maternal
grandmother's actual comment or whether the grandmother may have been
confused.
7
The "receipt" does not appear to be in the trial record.
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31
permanency." The comment does not clarify what the maternal grandmother
meant by this, since both adoption and KLG involve permanent future
relationships. Apparently, the maternal grandmother reportedly did state that
she "understood it was the court that authorized KLG or adoption," rather than
the Division. The contact sheet also stated that the maternal grandmother was
"committed to the children long term, via adoption, if the courts approve
termination of parental rights." (Emphasis added).
Later, the maternal grandmother reportedly told the caseworker on August
17, 2017, in response to a question about her "stance on adoption," that she was
"committed to her grandchildren and will adhere by [sic] whatever the court
decides." (Emphasis added). The contact sheet and the trial testimony do not
make clearer what this meant.
Meanwhile, another contact sheet reflects on July 11, 2017, the maternal
great aunt reportedly told the caseworker that she had read a "fact sheet"
concerning adoption and KLG. According to the contact sheet, this review by
the maternal great aunt "satisfied her concerns," and that she was willing to
adopt Zarah, Zena, and Zadie.
Following Zelda's birth in September 2017, the newborn child was placed
in the maternal grandmother's care with Kevin and Larry. The caseworker met
A-3597-17T2
32
with the maternal grandmother on September 12, who reportedly stated that she
"wanted to adopt the three children" and that she was "committed to caring for
them long term."
Another contact sheet states that on December 21, 2017 the maternal
grandmother told the caseworker that she hopes to move to another state after
the adoption of the children in her care. According to the contact sheet, the
maternal grandmother stated that the area in which she lived had become unsafe
and she wanted to move the children to a safer neighborhood. This contact sheet
also reflects that the maternal grandmother spoke with the caseworker about how
she became interested in adopting the children in her care.
After the Division's expert, Dr. Wells, performed bonding evaluations on
December 14, 2017, with the children and the maternal great aunt, Dr. Wells
issued a report on January 28, 2018. The report states that the maternal gre at
aunt "has committed to adoption" of Zarah, Zena, and Zadie, and that she is
"committed to permanency via adoption." Dr. Wells's analysis does not refer to
KLG, apart from mentioning it in the factual background. Dr. Wells also
submitted an expert report that same day summarizing her bonding evaluation
of the maternal grandmother. The report similarly states the maternal
grandmother "has indicated that she is committed to adoption of [Kevin, Larry,
A-3597-17T2
33
and Zelda], if they become legally free." Again, the expert report does not
expressly mention KLG beyond the factual background.
Dr. Wells's trial testimony did not illuminate any further the resource
parents' desires with respect to adoption versus KLG. Her testimony did not
mention KLG, and none of the attorneys asked her about the subject.
In his own expert report dated February 2, 2018, Dr. Katz indicated that
the maternal grandmother had stated to him that "she had tried adoption before
with the 2 older children [i.e., Xander and Kevin], and that is when the judge
had given them back to the biological parents." According to Dr. Katz, the
maternal grandmother told him "she is seeking adoption this time." Dr. Katz 's
report is inconsistent, however, with regard to the maternal great aunt's
intentions:
[The maternal great aunt] said she will adopted [sic] the
children if the case goes that way. [The maternal great
aunt] said she prefers KLG over adoption. [The
maternal great aunt] said she feels adoption will be
more stable for the children.
[The maternal great aunt] said the parents have open
visitation at her home. [The maternal great aunt] said
the parents come to visit the children about 2 or 3 times
a month. [The maternal great aunt] denied that there
have been any problems with the visits. [The maternal
great aunt] said she would continue to have open visits,
even if the children were adopted.
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34
[(Emphasis added).]
At trial, Dr. Katz testified, after an overruled hearsay objection by the Division's
attorney, that the maternal great aunt had told him that "she preferred KLG over
adoption."
The two Division staff members who testified at trial provided only
limited information on these critical subjects. The caseworker who testified had
not been assigned to this case until October 2017. The other Division witness,
a supervisor, had been the supervisor on the case between October 2015 and
about July 2017, and previously had been involved with the family in 2011 or
2012.
The caseworker for the Division provided incomplete testimony on the
subject of the resource parents' intentions. On cross-examination by the father's
trial attorney, the caseworker testified as follows:
Q Starting first with the maternal great aunt,
did you take any steps to discuss KLG versus adoption
with her?
A With --
Q With -- with -- with the aunt.
A [The maternal great aunt] or --
Q Yes. Yes.
A-3597-17T2
35
A Did I take any steps?
Q Right.
A Yes. When I first met her [the maternal great
aunt], we talked about my role, and I said that I would
be an adoption worker, and she talked about that she
was just at court and that they did discuss KLG versus
adoption, and she was saying that -- how she wanted to
adopt the children, and it was the goal that she wanted.
Q And your conversation with -- with [the
maternal grandmother], did you discuss with her the
differences between KLG and adoption?
A Yes. Well, again, they were also -- we saw them
the same day, and they were at court. And the
conversation was at mediation, so they were just telling
me about what I had heard at court.
Q And did --
A And we did discuss that.8
Q Did you discuss that subject with them
together?
A No. Different -- they live in different houses.
[The father's trial attorney]: I have no further questions,
Your Honor. Thank you.
[(Emphasis added).]
8
The testimony did not go further to convey the desires of the maternal
grandmother.
A-3597-17T2
36
On cross-examination by the mother's trial attorney, the following limited
testimony was elicited about the maternal grandmother's intentions, before the
Deputy Attorney General objected:
Q You said you did discuss KLG and
adoption with regards to the maternal grandmother,
correct?
A Yes. We did talk about that.
Q Now from your case records, the Division
had discussed those things which happened in the past.
Is that correct?
A Many times. Yes.
Q Isn't it correct that, in fact, she did tell the
Division that she will adopt to avoid the children being
placed outside of her home?
[The Division's trial attorney]: Objection. Hearsay.
THE COURT: It's hearsay.
[(Emphasis added).]
The supervisor explained in her testimony that she had met with the
maternal grandmother and maternal great aunt after a proceeding. 9 According
to the supervisor, she at that time "explained the differences between KLG and
9
The record is murky as to the exact nature of that proceeding and when it
occurred.
A-3597-17T2
37
adoption" to the two resource parents, and had them "give the information back
to [her] to make sure they were very clear in their understanding." The
supervisor began to relate that the maternal great aunt was "very adamant that
she felt like the children needed a chance, that they needed permanency." At
that point, defense counsel interposed a hearsay objection, which the court
sustained. On cross-examination, the supervisor did acknowledge that the term
"permanency" can apply to either adoption or KLG.
In counsel's summations at the close of the trial, they discussed KLG.
Defendants advocated KLG, and Kevin's law guardian and the Division opposed
it.
3.
In the analytic portion of her written opinion following the trial, the judge
did not discuss KLG. The opinion does, however, contain this finding, without
elaboration concerning the resource parents' intentions:
The Court has considered alternatives to
[t]ermination and there are no viable alternatives. The
children are placed with relatives who want to adopt
them.
The Court therefore finds that the Division has
met this prong by clear and convincing evidence that
reasonable efforts were offered to the parents. There
are no alternatives to termination of parental rights as
the foster parents want to adopt.
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38
While this appeal was pending, the Law Guardian moved for this court to
supplement the record by tendering signed post-trial certifications dated
November 10 and 14, 2018, from both the maternal grandmother and the
maternal great aunt, in which they attested that they are each committed to
adopting the children in their care. Defense counsel opposed that motion,
because the certifications were not part of the record presented to the trial judge
and defense counsel did not have the opportunity to contest or rebut such proof
at trial.10 Another panel of this court denied that motion.
Even if these post-trial evidentiary proffers are considered, the maternal
great aunt does not address or explain the discrepancy between the proffer and
her alleged statement to Dr. Katz that she wanted KLG. Nor does the
certification from the maternal grandmother make clear why her position has
vacillated in the past, and whether her willingness to adopt is unconditional and
unqualified.
4.
Viewing all of these bits of hearsay in their totality, we cannot determine
with confidence from the present record whether the resource parents – by a
level of clear and convincing evidence – are committed unambiguously,
10
The Attorney General took no position on the motion.
A-3597-17T2
39
unequivocally, and unconditionally to adoption, regardless of the possible
alternative of KLG. Both resource parents have made equivocal and ambiguous
hearsay statements about this subject at various points in time. For example, the
entry in Dr. Katz's report – and his attempted trial testimony attesting that – the
maternal great aunt told him that she wanted KLG over adoption is, to say the
least, concerning.
The maternal grandmother's hearsay statements seem somewhat more
definitive, but they, too, leave reason to doubt whether she ostensibly favors
adoption based upon a mistaken premise that adoption is the only "permanency"
option, and not KLG. This may not be merely a situation of "initial reluctance,"
about adoption, see Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76,
81, 87-88 (App. Div. 2003), but rather one in which one or both resource parents
may be under a mistaken premise. See, e.g., H.R., 431 N.J. Super. at 232-33 (in
which we remanded a final judgment of guardianship because the caretaker
mistakenly thought that KLG was unavailable for children under the age of
twelve). Here, the possible mistaken premise, which the court did not allow
defense counsel to explore on cross-examination, is whether the maternal
grandmother is willing to adopt because she mistakenly believes that the
children would be removed from her if she stated she favored KLG.
A-3597-17T2
40
The omission of any discussion of KLG within the analytic portion of the
trial court's otherwise thorough opinion also gives us pause. The KLG subject
was directly addressed by counsel in their competing arguments during
summations. To be sure, the court's unelaborated finding that adoption is
feasible could be interpreted as an implicit finding that KLG has no bearing or
role in this case. But that finding is based upon a rather confusing ambiguous
record of a series of hearsay assertions by the two resource parents. We cannot
"reverse engineer" the judge's unwritten thought process on the subject. The
judge did not explain or reconcile the vacillating and ambiguous statements
attributed in hearsay from the maternal great aunt and grandmother.
We by no means wish to prolong this litigation for hyper-technical
reasons. We certainly recognize the well-established objective of achieving the
children's permanency. Nevertheless, given the important constitutional rights
that are at stake, and the stringent clear-and-convincing standards of proof, this
record needs to be more definitive on this vital subject.
We are mindful this is an extended family situation. For many years there
has been frequent and loving contact between the children, their maternal
grandmother, their maternal great aunt, their mother, and their father. The
family setting has many characteristics that would seem to make KLG a
A-3597-17T2
41
potentially feasible alternative to adoption. Of course, if both of the resource
parents truly want to adopt – unequivocally, unambiguously, and
unconditionally and irrespective of KLG – and termination of parental rights
and adoption is clearly in the children's best interests, the final judgment to that
effect should be reaffirmed. For the moment, however, the proofs that were
presented at trial are simply too cloudy to support affirmance on this one limited,
but vitally important, issue.
5.
The matter is therefore remanded for further proceedings to develop the
record more definitively on the adoption/KLG issue and for the rendering of
explicit associated findings of fact and conclusions of law.
We defer to the trial court's discretion as to what forms of proof would be
appropriate at the remand hearing. Subject to potential timely objection, we do
not require, per se, the testimony of either resource parent, as we appreciate that
presenting such testimony and withstanding the rigors of cross-examination by
defense counsel may be stressful for the resource parents and possibly
disharmonious to the whole extended family.
Of course, if one or both of the maternal grandmother or maternal great
aunt are willing to testify nonetheless, we presume the trial court would
A-3597-17T2
42
welcome such evidence. We also defer to the trial court as to whether any
supplemental expert reports and testimony are appropriate to address these
subjects, given the passage of time and interim events.
We need not resolve here whether it was appropriate for the trial court to
admit or consider certain hearsay statements attributed to the resource parents
about their views concerning adoption and KLG. For one thing, counsel did not
consistently oppose the admission of such hearsay, depending on whether the
particular statement supported or undermined the client's trial strategy. For
example, the Division's counsel presented the contact sheets and testimony from
its witnesses conveying various hearsay statements made by the resource
parents, but objected on hearsay grounds when defense counsel comparably
presented testimony from Dr. Katz relating that the maternal great aunt had told
him she preferred KLG. Reciprocally, defense counsel objected to testimony by
the caseworker and supervisor conveying the out-of-court statements of the
resource parents but presented such hearsay through Dr. Katz.
"[H]earsay subject to a well-founded objection is generally evidential if
no objection is made." N.J. Div. of Child Prot. & Permanency v. J.D., 447 N.J.
Super. 337, 348-49 (App. Div. 2016). "When objectionable hearsay is admitted
in a bench trial without objection, we presume that the fact-finder appreciates
A-3597-17T2
43
the potential weakness of such proofs, and takes that into account in weighing
the evidence." Id. at 349. A problem with the present record is that the resource
parents' hearsay was treated in an inconsistent pattern: some it was objected to
and excluded, and some of it was allowed. On remand, we trust the hearsay will
be handled with consistency. We suggest that a case management conference
be conducted to address these evidential issues in limine in light of Rule 5:12-
4(d) and case law excluding improper embedded hearsay statements by third
parties.
III.
Affirmed in part and remanded in part. The remand shall be completed
within ninety days, unless that deadline is reasonably extended further by the
trial court upon the consent of all counsel. We do not retain jurisdiction. Any
party may pursue a new appeal from the outcome of the remand. Any issues of
interim visitation or contact are reserved for the trial court.
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44