DCPP VS. R.P., S.M., AND C.P., IN THE MATTER OF THE KINSHIP LEGAL GUARDIANSHIP OF K.M. AND B.P. (FL-14-0008-18 AND FL-14-0009-18, MORRIS COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE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-4452-17T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
R.P.,
Defendant-Appellant,
and
S.M. and C.P.,
Defendants.
_____________________________
IN THE KINSHIP MATTER OF
K.M. and B.P.,
Minors.
_____________________________
Submitted November 12, 2019 – Decided November 27, 2019
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket Nos. FL-14-0008-18 and FL-14-0009-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Phuong Vinh Dao, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Ashley L. Kolata-Guzik, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor B.P. (Rachel E. Seidman, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
Defendant R.P. (Robert) appeals from a May 14, 2018 order granting
Kinship Legal Guardianship (KLG) of his then six-year-old daughter, B.P.
(Becky), to her maternal great uncle, C.M.1 We affirm.
I.
We summarize the pertinent facts from the record. Defendant S.M.
(Susan) is the biological mother of Becky, born in February 2012, and K.M.
(Kelly), born in July 2006 (collectively, the girls). Robert is the biological father
1
We identify the parties and children by initials and pseudonyms to protect
their privacy pursuant to Rule 1:38-3(d)(12) and N.J.S.A. 9:6-8.10.
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of Becky. C.P. (Charlie) is the biological father of Kelly. Both girls were solely
parented by Susan until removed by the Division of Child Protection and
Permanency (the Division) and placed with resource parents, the children's
maternal great grandmother and maternal great uncle, C.M (the M's). Susan
lived with the girls in the residence of the resource parents until March 2016.
Susan voluntarily stipulated to KLG with C.M. on the first day of trial.
The trial took place on April 30, 2018. Charlie did not appear for trial but
was represented by counsel. Neither Susan nor Charlie appeal from the trial
court's orders. We therefore limit our discussion to Becky.
We summarize the trial court's findings of fact. Permanency caseworker
Leena George provided the following testimony on behalf of the Division. She
was assigned to this family in 2016 and testified as custodian of the Division's
records. The trial court found her testimony credible.
Susan became involved with the Division in 2007 due to her mental health
and substance abuse issues. Robert had minimal involvement with his daughter
and the Division throughout that time period.
In February 2016, the Division received a referral regarding Susan as a
result of her arrest for distribution of heroin. The Division interviewed Robert,
who offered to care for Becky and Kelly. "At that time, Robert's visits with
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3
Becky were sporadic." He reported "his plan was to leave Becky in the primary
care of her great grandmother and great uncle," while making himself available
"'on a daily basis' as necessary until he developed a stronger bond with her."
The Division experienced difficulty maintaining contact with Robert because he
did not return phone calls or respond to correspondence. At one point, Robert
did not visit Becky for over a month. "When his visitation with Becky was
liberal and unsupervised, he visited with her randomly and sporadically."
The Division obtained psychological and psychiatric evaluations of
Robert and referred him to parenting classes. It also provided medication and
individual therapy. Robert frequently failed to comply with those services, did
not attend monthly meetings with the caseworker, and failed to make weekly
calls to the caseworker.
Robert falsely reported the results of Becky's dental examination to the
Division, claiming she was fine and needed no additional treatment, when she
actually needed significant follow up treatment.
Susan was provided with substance abuse evaluations and treatment,
visitation, assessments, and family team meetings.
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George reported the resource parents had a strong preference for KLG and
did not wish to adopt. Both indicated they would allow visitation between
Robert and Becky.
In June 2016, the Center for Evaluation and Counseling (CEC) met with
the family members and conducted a forensic clinical evaluation. Charlie told
the evaluator that Susan "popped pills," attended a methadone clinic, and had
overdosed more than once.
During his interview, Robert reported he was on disability from the
military and attended Sussex County Community School. He admitted being
aware of Susan's drug use and voiced concerns for Becky while in Susan's care.
He acknowledged he did not advise the Division of these concerns and did not
initially seek custody of Becky. Robert told CEC he wanted full custody of
Becky because the Veteran's Administration would give him $2100 per month
for food and clothing for Becky. "He stated he believe[d] Becky was too young
to have been impacted by his lack of involvement in her life prior to age three."
Robert reported he was never deployed while in the military, "but spoke
of traumatic incidents as if he experienced combat." He told CEC "he
experienced blackouts, flashbacks and nightmares." He stated he was bitten by
a brown recluse spider and suffered "a coma and brain damage that caused tics,
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convulsions, and memory deficits." He also reported experiencing paranoid
symptoms and was prescribed psychotropic medication, which he did not take
because "it makes him feel like a 'zombie.'" Robert acknowledged engaging in
a physical altercation with his then girlfriend. He subsequently married a
different woman.
Finally, George testified that when the Division became involved as a
result of the altercation incident, Robert reported a history of post-traumatic
stress disorder (PTSD) and bipolar disorder. "The Division offered him
psychological and psychiatric evaluations, individual therapy, medication
monitoring and three Family Team Meetings, of which he attended one." Robert
was allowed weekly supervised visits with Becky due to his disclosures about
his behavior.
Dr. Jack Yoeman testified on behalf of the Division. He was qualified as
an expert in the fields of psychology, risk assessment, bonding, and parenting.
"The court found him generally credible" but noted his heavy reliance on his
report for details about the case. Dr. Yoeman interviewed Robert and his wife,
conducted a bonding evaluation between Robert and Becky, and a bonding
evaluation between the resource parents, Becky, and Kelly.
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"Dr. Yoeman concluded Robert has a fairly extensive history of mental
health issues, including [PTSD], short-term memory loss, anxiety, depression,
and a historical diagnosis of bipolar disorder." Robert reported he does not need
treatment but is willing to take medication, although he does not believe he
needs any. Dr. Yoeman found Robert minimizes his mental health history.
Dr. Yoeman opined Robert is unable to provide a safe and stable home for
Becky in the foreseeable future because of his inconsistent participation in
mental health treatment and his lack of insight regarding his mental illness,
which in turn impacts his parenting ability. Dr. Yoeman expressed concern that
Robert would be unable to cooperate with Becky's treatment providers and
educators, and would not be protective of her. He found Robert's wife also failed
to appreciate the extent of Robert's mental illness.
The trial court noted that unlike in termination cases, a bonding analysis
is not a component in KLG matters. Even so, Dr. Yoeman testified about the
lack of bonding between Robert and Becky. In contrast, he found a "strong,
psychological, healthy bond between Becky and her resource parents." He
opined Becky would experience no harm if KLG were granted but substantial
harm would occur if Becky were removed from her resource parents. Dr.
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Yoeman further opined that Robert would be unable to mitigate the "harm
caused by removal because of his lack of insight into his own mental health."
Robert did not testify during the trial or present any expert testimony. The
trial court noted he "appears sincere in his desire to parent Becky but does
demonstrate a lack of insight into his basic functioning and his own needs."
Based on those findings, the trial court reasoned:
It is evident to the court Robert loves Becky very
much and desires to parent her. However, Robert,
although available and willing, is not capable of
providing for Becky's basic needs. The uncontroverted
expert testimony, as well as the Division's exhaustive
record, amply demonstrates by clear and convincing
evidence Robert's lack of insight into his mental illness,
his refusal to take medication consistently, and the
impact of his mental illness on his parenting render him
unable to perform the regular and expected functions of
care and support. The court has given considerable
weight to Dr. Yoeman's psychological observations of
Robert and his opinions regarding Robert's mental
health, which were not challenged by any other expert.
Robert has never parented Becky or any other
child. Through no fault of his own, he was unable to
parent her initially because he was serving our country
until he was discharged from the service when Becky
was three years old. However, thereafter, he left Becky
in the care of Susan, willfully, and knowing of Susan's
drug use and neglect of Becky. He took no steps to
assume care of Becky. Throughout the Division's
involvement, he was non-compliant with therapy and
medication monitoring, and inconsistent with visitation
and communication with the Division. He has had two
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8
years to address his mental illness but demonstrates a
significant lack of insight into the severity of his mental
health issues, despite occasional treatment, and
demonstrates clearly and convincingly his inability to
perform basic parenting functions is unlikely to change
in the foreseeable future. The court has relied mostly
on his own statements made to the Division and CEC in
determining he lacks sufficient insight into his mental
illness and exhibits poor judgement. Defense counsel's
argument, that the Division's services did not meet
ADA accommodations, is without merit. Robert was
being treated at a VA hospital but refused to follow its
recommendations and take medication. The Division
provided reasonable services, which Robert refused. A
parent's refusal to comply with mental health services
provides a poor prognosis for future change because a
recognition there is a mental illness is necessary for
interventions to work.
....
Becky and Kelly have lived with the M's their
entire life. They have been primarily parented by the
M's even when Susan lived with them, a fact
acknowledged by Robert in his interview with CEC.
The Division's plan is for both girls to live together
where they have always lived, and be cared for by the
people who have cared for them since their births. The
Division has proven the kinship legal guardians have no
desire to adopt.
The trial court concluded: (1) the Division exercised reasonable efforts
to reunify Becky with her birth parents; (2) the reunification efforts were
unsuccessful; and (3) adoption is neither feasible nor likely. The court found
there was clear and convincing evidence that KLG was in the best interests of
A-4452-17T3
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both children and granted KLG of Becky to C.M. The court also ordered that
visitation of Becky by Robert "shall be at the discretion of the kinship legal
guardian." This appeal followed.
The Law Guardian urges this court to affirm the trial court's order granting
KLG.
Robert raises the following points on appeal:
(1) THE TRIAL COURT ERRED IN FINDING THAT
DCPP PROVED BY CLEAR AND CONVINCING
EVIDENCE THAT ROBERT WAS UNABLE OR
UNWILLING TO PROVIDE FOR BECKY'S BASIC
NEEDS.
(2) THE TRIAL COURT ERRED IN FINDING THAT
DCPP PROVED BY CLEAR AND CONVINCING
EVIDENCE THAT ROBERT'S INABILITY TO
CHANGE IN THE FORESEEABLE FUTURE.
(3) THE TRIAL COURT ERRED IN FINDING THAT
DCPP PROVED BY CLEAR AND CONVINCING
EVIDENCE THAT IT PROVIDED REASONABLE
EFFORTS TO REUNIFY BECKY WITH ROBERT.
(4) KINSHIP LEGAL GUARDIANSHIP WITH THE
MATERNAL FAMILY IS NOT IN BECKY'S
INTEREST.
II.
Appellate "[r]eview of a trial court's grant of guardianship is limited."
N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 210 (App. Div.
A-4452-17T3
10
2007) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278
(2007)). "We will not disturb the factual findings of the trial judge unless they
are unsupported by adequate, substantial and credible evidence in the record."
Ibid. (citing M.M., 189 N.J. at 279). "'Deference is especially appropriate when
the evidence is largely testimonial and involves questions of credibility' because
the trial court has the benefit of seeing and hearing the witnesses and
determining whether they are believable." Ibid. (quoting N.J. Div. of Youth &
Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div. 2004)); see also Cesare
v. Cesare, 154 N.J. 394, 411-12 (1998) ("The general rule is that findings by the
trial court are binding on appeal when supported by adequate, substantial,
credible evidence." (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65
N.J. 474, 484 (1974))).
Parents enjoy a constitutionally protected right to the care, custody and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re
Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and
to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and
'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S.
645, 651 (1972) (alteration in original) (citations omitted). "[T]he preservation
and strengthening of family life is a matter of public concern as being in the
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interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., 161 N.J.
at 347 (discussing N.J.S.A. 30:4C-1(a)). The constitutional right to the parental
relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v.
R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 599 (1986).
KLG is an alternative to termination of parental rights. N.J. Div. of Child
Prot. & Permanency v. M.M., 459 N.J. Super. 246, 259 (App. Div. 2019). The
Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, was enacted because
"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) (citing N.J.S.A. 3B:12A-1(a) to (b)). KLG was established "as
an alternative permanent placement option without the need for termination of
parental rights and 'where adoption is neither feasible nor likely .'" Id. at 223(quoting N.J.S.A. 3B:12A-1(c)). The child's parents "retain the right to
visitation or parenting time with the child, as determined by the court." N.J.S.A.
3B:12A-4(a)(4).
To grant KLG, the court must find by clear and convincing evidence that:
(1) each parent's incapacity is of such a serious nature
as to demonstrate that the parents are unable,
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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
(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).]
III.
Defendant argues the trial court erred by finding the Division satisfied its
burden under each of the four prongs of N.J.S.A. 3B:12A-6(d). Defendant
contends the evidence was insufficient to support the court's conclusion that the
Division clearly and convincingly established those prongs under the statutory
standard. We disagree and affirm substantially for the reasons expressed by
Judge Maritza Berdote Byrne in her cogent written opinion. We add the
following comments.
The record fully supports the trial court's findings that the evidence clearly
and convincingly established: (1) Robert's incapacity is of such a serious nature
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as to demonstrate he is unable, unavailable, or unwilling to perform the regular
and expected functions of care and support of Becky; (2) Robert's inability to
perform those functions is unlikely to change in the foreseeable future; (3) the
Division made reasonable efforts to reunify Becky with Susan and Robert; and
(4) KLG was in Becky's best interest because she was bonded to C.M. and should
remain in his care.
In sum, we are convinced that the trial court’s findings under all four
prongs of N.J.S.A. 3B:12A-6(d) are supported by adequate, substantial evidence
that the court found credible. We therefore uphold the court's order awarding
KLG of Becky to C.M.
Affirmed.
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