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NOT FOR PUBLICATION WITHOUT THE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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5

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

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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.

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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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