Opinion
DOCKET NO. A-0442-12T2 DOCKET NO. A-0467-12T2 DOCKET NO. A-0477-12T2
12-17-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. P.W., Defendant-Appellant. IN THE KINSHIP MATTER OF R.H., JR., J.M.H. AND D.J.H, minors.
Joseph E. Krakora, Public Defender, attorney for appellant P.W. (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.M.H. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.J.H. (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FL-02-51-08, FL-02-52-08, and FL-02-53-08. Joseph E. Krakora, Public Defender, attorney for appellant P.W. (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.M.H. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.J.H. (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, defendant P.W. appeals from the denial of her motion to vacate judgments of kinship legal guardianship (KLG) entered on September 27, 2007 as to her daughter, J.M.H. (Jane), born in 1997, and son, D.J.H. (Dan), born in 2000. Three previous motions filed by defendant seeking this relief were either denied or withdrawn. Defendant's fourth motion, which is the subject of this appeal, asserted that circumstances had changed due to the death of one of the guardians, and that she had taken the necessary steps to cure her parental incapacity. For the reasons that follow, we reverse and remand for further proceedings.
We use fictitious names for the children for ease of reference and to protect their privacy.
Defendant's motion also sought to vacate the judgment of KLG with respect to her son R.H., Jr. (Rick), who has since reached the age of majority and is not involved in this appeal.
I.
The Division of Youth and Family Services (the Division) first became involved with the family in late 2002, when it began receiving referrals regarding P.W.'s alcoholism and her neglect of the children. In 2004, the Division also received referrals that P.W. was being physically abusive towards the children. Allegations of P.W.'s alcoholism persisted, and in 2005, a substance abuse evaluation recommended that she attend an intensive outpatient treatment program. However, P.W. denied having a problem, and when she failed to obtain the recommended treatment, the Division filed a complaint seeking the care, custody, and control of the children in March 2006. P.W.'s mother, V.K., was initially granted physical custody of the children, with the Division retaining legal custody.
The Division is now known as the Division of Child Protection and Permanency. See L. 2012, c. 16, eff. June 29, 2012.
The complaint also included defendant's oldest son, T.M., who turned eighteen during the pendency of the protective services litigation. Accordingly, T.M. was dismissed from the litigation prior to entry of the KLG judgments.
On April 10, 2006, P.W. stipulated that she had "a substance abuse issue (alcohol) and failed to seek treatment, placing the minors at risk of harm." In early 2007, P.W. moved to Kentucky, where she was ordered to "attend individual counseling . . . if the [p]rogram [there] will take her before she completes substance abuse [treatment]." Ultimately, on September 27, 2007, P.W., represented by counsel and appearing telephonically from Kentucky, consented to the entry of judgments for KLG. The judgments designated V.K. and S.K., P.W.'s mother and sister, as guardians for the children. P.W. retained the right to supervised visitation, as mutually arranged with the guardians. During the hearing, P.W. acknowledged that she also retained the right to move to vacate the KLG judgments upon a showing of changed circumstances and that the best interests of the children would be promoted thereby, although such standard would be difficult to satisfy.
Approximately four months later, P.W. moved to vacate the KLG judgments. The March 25, 2008 order denying the motion explained that P.W. had "failed to provide any documentation demonstrating a change in circumstances to warrant a vacation of the KLG."
One year later, P.W. again moved to vacate the KLG judgments. The judge interviewed Rick, Jane, and Dan, each of whom indicated they did not wish to live with P.W. but wanted to visit her. The judge also heard from the children's father, R.H., Sr., who indicated that they were "doing absolutely wonderful" under V.K.'s care.
P.W., appearing telephonically at the hearing, stated that the basis of her motion was that she had completed all her court-ordered services. P.W. now lived in a three-bedroom townhome in Kentucky with her new husband and fourteen-month-old daughter. She stated that it was in the children's best interests to return to her because she could provide for them, had completed all services required of her, and that she had maintained her sobriety and no longer felt the need to drink. She had also requested an interstate homestudy, but was told that this needed to be requested by the court.
P.W. last saw her children before she moved to Kentucky, approximately two years earlier. She explained that she could not visit the children because of her "high-risk pregnancy," and that every other time she wanted to visit she was told that the children had plans with their father. However, she called the children several times each week, although she did not always reach them because "[t]hey're busy with their sports." She had spoken to the children about living with her in Kentucky, but was unaware that they did not wish to live with her, and claimed that Dan previously conveyed his desire to do so. She kept aware of the children's progress in school as she received their report cards and "often" spoke to the schools. She conceded that V.K. was doing a good job of raising her children. P.W. stated that although she sought to vacate the KLG, she would not force the children to live with her if they did not want to.
The Division questioned P.W. about the services she completed. When asked whether she had completed a treatment program for domestic violence, she responded that she had not. She was also asked whether she had followed up with substance abuse treatment aftercare, such as attending a "12-step program." P.W. answered that she had attended some of those classes when she was in New Jersey, but had not continued with them because she did not "feel that [she] need[ed] to."
V.K. testified that P.W. had only asked her "once about coming to visit," and that her statement that she "repeatedly" asked to come was false. She agreed that P.W. called the children several times a week, but they were busy and did not return her calls. When asked, the children informed V.K. that they did not want to live with their mother in Kentucky, although they did wish to see her.
In denying the motion, the judge stated that he would be guided by the children's best interests. He found that P.W. had not provided any new documentation since the denial of her first motion. Though P.W. had completed parenting classes, they alone were not enough. P.W.'s therapist's reports were based on her self-reporting, and there was no independent review of her need for substance abuse services. The court credited the testimony of V.K., R.H., Sr., and the children. The judge also noted that although P.W. had completed some services, she had not completed all the steps of the "12[-]step program" or enrolled in any domestic violence classes. The judge also agreed with the Law Guardian that P.W's discussions with the children about moving to Kentucky caused them "undue pressure." Consequently the February 24, 2009 memorializing order also restrained P.W. from "discussing a move to Kentucky with the children."
On August 25, 2009, P.W. filed her third motion to vacate the KLG orders. To complete its evaluation of P.W., her therapy provider in Kentucky required the release of reports and documents from her service providers in New Jersey. On October 29, 2009, the court ordered the release of the documents, and relisted the case pending their release. It was also agreed that an interstate homestudy could be completed once P.W. made a showing of changed circumstances to warrant a vacatur of the KLG. On the January 21, 2010 relist date, P.W. withdrew her motion. The accompanying order provided:
The Motion to Amend or Vacate KLG is hereby dismissed for [the] following reasons: mother is withdrawing the motion at this time as she has not made a prima faci[e] showing that there is a change in her circumstances.
IT IS FURTHER ORDERED: If mother files another motion to vacate, written documentation that she has successfully completed individual therapy, substance abuse treatment, random urine screens &
domestic violence counseling must be attached to her initial motion papers. If this documentation is not attached[,] the motion shall be dismissed by the [c]ourt. Division [is] to assist the mother and caretaker with arranging a specific visitation schedule in New Jersey.
On January 26, 2012, P.W. filed her fourth motion to vacate the KLG judgments. As grounds, she averred that she had completed all required services. Also, V.K. had passed away in July 2011, and since her mother's death she did not believe the children were being "properly cared for financially and emotionally." At oral argument on the initial January 26, 2012 return date, P.W.'s counsel informed the court of a recent incident in the home where the uncle, S.M., threw eleven-year-old Dan down the stairs. As a result, the police were called, and Dan was taken to the hospital for his injuries.
Unlike earlier applications, P.W.'s latest motion was supported with documentation from her mental health service providers, including Bluegrass Transition Center, a mental health service provider located in Lexington, Kentucky. A letter from the Bluegrass program director, dated February 4, 2010, stated that P.W. completed a diagnostic interview, history, and a Substance Abuse Subtle Screening Inventory on February 3, 2010. According to the director, P.W "at this time does not appear to have any significant alcohol or drug problems." The letter noted that "[i]t is relevant also that this is now the third evaluation she has had in the last two months (two from a separate interviewer) that essentially repeat the same findings." The director concluded that "further[,] [he] cannot recommend any mental health or related counseling, (i.e. domestic violence counseling), unless there is a present need or salient treatment goal." He stated that if the court still wished to monitor P.W.'s alcohol or drug use, he would recommend a weekly random urine screen through an outside independent agency.
Another letter from the Bluegrass director, dated March 4, 2010, clarified that he had reviewed P.W.'s available court and treatment records, which included the documents and certifications from programs she had completed in New Jersey and Kentucky. Again the director concluded "[P.W.] does not appear to require present mental health or substance abuse services. There is not an issue presently of domestic violence and [P.W.] does not endorse any victimization issues." The letter noted the director's assessment skills were based on "[twenty-six] years, post-graduate experience within the field of mental health and substance abuse." Additionally, a July 12, 2010 letter from a Kentucky-certified domestic violence counselor found that P.W. did not require treatment. The letter noted that although P.W. "was a victim during her last marriage, she did not remain in the marriage and is currently married ([five] years) in what appears to be a healthy relationship."
On the initial return date, P.W. requested that the court order the Division to provide copies of all police reports and medical records pertaining to the stairway incident during which Dan was allegedly injured. P.W. also requested the opportunity to conduct psychological and bonding evaluations. Also, the Law Guardian advised the court that the two older children, Rick and Jane, wished to remain in New Jersey, but that Dan, the youngest, "has entertained going to visit his mom, perhaps residing there." The Law Guardian cited a need for more information before KLG could be vacated. The court agreed, and the matter was thereafter relisted and adjourned twice to allow the parties' additional time to complete their expert evaluations. On July 19, 2012, while her expert evaluation was still pending, P.W. requested that the children be permitted to visit her in Kentucky. The judge denied this request, but allowed her to "visit with the children in New Jersey[,] supervised at the Division office (at the discretion of the minors)."
The Division's expert, Mark Singer, Ed. D., conducted a psychological evaluation of P.W. and bonding evaluation of P.W. with the children. In his combined report, Dr. Singer concluded that vacating the KLG arrangement and moving the children into P.W.'s household would be contrary to their best interests. However, reunification could become possible if P.W. complied with the following recommendations:
1. In order to have a more complete picture of the potential impact upon the children should they move into [P.W.'s] care, a comparative bonding evaluation with their current caregiver [S.K.] should occur.
2. [The Division] must insure that [P.W.'s husband] is appropriate for these children.
3. [P.W.] must maintain appropriate housing and should maintain appropriate employment.
4. [P.W.] must continue to remain sober.
5. [P.W.'s] use of pain medication must be monitored by a qualified physician.
6. [The Division] should obtain the [three] psychological evaluations that [P.W.] reportedly completed in Kentucky. . . .
7. [P.W.] should participate in individual therapy in order to address her secrecy, defensiveness, and her personality features that limit her ability to respond effectively and flexibly to the demands involved in parenting.
8. [P.W.] and these [three] children should participate in family therapy in order to restructure the dysfunctional family dynamics which were evident during the bonding evaluation. [P.W.'s husband] should also participate in this therapy.
9. . . . both family therapy and consistent visits between the children and their mother, as well as visits including [P.W.'s husband] and the [two] younger children, are imperative as a means of integrating the older children into an already existing family system. . . . [A]nd with the support of the treating professionals, visitation may be expanded to include the children having "vacation time" with their mother in Kentucky.
P.W.'s expert, Kenneth M. Schulman, Ph.D., conducted psychological and bonding evaluations on her behalf. During his interview with the children, they characterized their current living situation with their aunt, S.K., as positive, and indicated that S.K. treated them as if they were her own children. Dr. Schulman indicated that Jane was "not certain as to what she wants and [Dan] was very definite about wanting to live with his mother."
Dr. Schulman concluded that P.W.'s continuing denial of any substance abuse issues was "consistent with her characteristic approach to addressing unpleasant emotional material." Nevertheless, there was no evidence of a relapse. Combined with her maintaining a stable relationship, this "suggest[ed] that the impediments that resulted in the loss of custody of her children have remitted." P.W.'s functioning, Dr. Schulman opined, was consistent with alcohol abuse in remission.
Dr. Schulman's report also noted that P.W. was experiencing "psychological difficulties of mild-to-moderate intensity associated with obsessive-compulsive, histrionic and narcissistic features." However, with "continued sobriety and interpersonal stability," P.W. was capable of adequate parenting. Dr. Schulman recommended individual counseling and "ongoing involvement with AA."
The report also noted "positive attachments" between the children and their mother, and that it was unlikely that P.W. would engage in behavior that would place them at risk. However, the "issue [was] complicated by the uncertainty the children have about a significant change in their lives." Dr. Schulman "strongly recommended" family therapy to address that uncertainty, and to determine which arrangement would be in the children's best interests, including a determination of their feelings about a possible separation from each other.
Upon completion of the reports, the court entertained oral argument and concluded that P.W. had failed to make a prima facie showing that the KLG judgments should be vacated. Thus, no evidentiary hearing was ordered. In denying the motion the judge reasoned:
[A]long the lines . . . found in [the] January 21, 2010 [order], this mother needs to make a demonstration to this [c]ourt that, one, the concerns which led to the KLG
have been adequately addressed, and I've not seen any evidence of that, and, two, that the vacating of KLG is in the best interest of the children. And I have a report from Dr. Singer indicating clearly that it is not in the best interest of the children at this time to . . . be placed with their mother.Regarding visitation, the memorializing order provided:
I understand the financial constraints that may be involved in this case, but I believe that it would behoove [P.W.] to arrange to come up to New Jersey and to have frequent or periodic visits with her children. It would also behoove her to engage in individual therapy as has been recommended, and to demonstrate to this [c]ourt, one, that she's completed a substance abuse program, and, two, that she continues substance abuse monitoring with AA or another appropriate substance abuse treatment aftercare program.
Mother can visit with the children in New Jersey supervised at the Division office (at the discretion of the minors)[.] Division to speak to the mother and see if they can assist her to come to NJ for visits.This appeal followed.
II.
The Legislature established KLG as an alternative to terminating parental rights where a child cannot reside with his or her parents and is in the care of a relative or a family friend who does not wish to adopt the child. N.J.S.A. 3B:12A-1(a), (b). KLG permits a caretaker to become the legal guardian of a child until the age of majority without the biological parent permanently losing his or her parental rights. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004). It is well suited to circumstances where the biological parent may yet become fit to care for the child and the caretaker is willing to abide that time while taking full responsibility for care of the child.
A kinship legal guardian is "a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court[.]" N.J.S.A. 3B:12A-2. The kinship legal guardian receives the same rights, authority, and responsibilities as the birth parent; however, the birth parent retains visitation rights, the right to consent to adoption, and the right to consent to a name change of the child. N.J.S.A. 3B:12A-4(a)(1), (2). A kinship legal guardian does not have the same assurances of permanent control over the child's well-being as does an adoptive parent. See generally id.
N.J.S.A. 3B:12A-6(f) provides that a KLG may be vacated if, "based upon clear and convincing evidence, the court finds that the parental incapacity or inability to care for the child that led to the original award of kinship legal guardianship is no longer the case and termination of kinship legal guardianship is in the child's best interests." The moving party has the burden to provide clear and convincing evidence that satisfies each of these two prongs. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 225 (2010).
N.J.A.C. 10:132A-3.6 lists nine factors the Division shall consider when determining whether to take a position on a motion to vacate a KLG order:
1. The child's age;
2. The duration of the Division's involvement with the child, prior to the granting of kinship legal guardianship;
3. The total length of time the child was in out-of-home placement;
4. The length of time the child has lived with the guardian, prior to and after the granting of kinship legal guardianship;
5. When kinship legal guardianship was granted;
6. What the original harm or risk of harm to the child was;
7. The parent's present fitness to care for the child;
8. Any subsequent allegations of abuse or neglect received by the Division and their findings; and
9. What plan is proposed for the child if the guardianship is vacated.
In addition to these factors, the Court in L.L. identified additional factors for consideration, including:
the child's wishes; the nature and quality of the parent-child relationship during the kinship legal guardianship; the future relationship anticipated between the child and the guardian; the preservation of sibling relationships; the practical impact of vacating the kinship legal guardianship on the child's day-to-day life (i.e. changes in school, community and friends); and any other relevant factor bearing on the best interests of the child.
[L.L., supra, 201 N.J. at 228.]
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). While we respect the Family Court's special expertise, we may exercise more extensive review of trial court findings that do not involve a testimonial hearing or assessments of witness credibility. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made").
III.
Summarizing P.W.'s arguments on appeal, she contends that the court abused its discretion in not holding a plenary hearing. She maintains that she established a prima facie case of her capacity to parent, and that it is in the children's best interests to vacate the KLG arrangement, or at the very least to order expanded visitation. Dan's Law Guardian supports P.W.'s request for a plenary hearing so that the trial court can consider his wishes and allow P.W. the opportunity to demonstrate that she has remediated her parental incapacity and that termination of KLG is in Dan's best interests. Jane's Law Guardian asks that we affirm the denial of vacatur, but remand for consideration of future visitation. Having reviewed the record, we agree that a remand is warranted.
The children were initially removed from P.W.'s care because of her substance abuse issues, and in 2007 she consented to the KLG placement of her children after she failed to seek the necessary treatment. But unlike the mother in L.L., whose drug and anger issues continued unabated, P.W. adduced proofs that she has now addressed the issues that resulted in the KLG arrangement. The Bluegrass program director reported that three separate evaluations each determined that P.W. had no significant alcohol or drug problems. Additional Bluegrass reports concluded that P.W. did not require present mental health or substance abuse services or domestic violence counseling. P.W. has moved to a different state, remarried, maintained steady employment and sobriety, and has completed parenting skills classes.
P.W. also took the affirmative step of seeking the release of all records and agency reports from New Jersey, and then submitted them to her service provider in Kentucky. In her brief decision, the judge failed to address this documentation that supported a showing that no further services were required. P.W. also requested an interstate homestudy of her new home, and a background check of her new husband, but the court declined to address both requests.
The court also gave short shrift to Dr. Schulman's expert report, characterizing his recommendations for vacating the KLG to be "lukewarm." The judge also noted the recommendations of the Division's expert, Dr. Singer, but failed to make findings that P.W. did, in fact, meet, or was willing to meet, most of his recommendations. For instance, Dr. Singer recommended that P.W. maintain adequate housing and stable employment, and that the Division check to see whether her new husband was appropriate for the children. However, the judge does not appear to have considered that P.W. was employed, was living in a stable and appropriate home, and that she had requested both an interstate homestudy and a background check of her new husband. She had also agreed to take her children for counseling if they were returned to her, which was a recommendation made by both experts.
With respect to the opinions of qualified experts, a trial court is free to accept or reject the testimony of any party's expert, in full or in part. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002); see also Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961). This principle flows out of the well-known proposition that jurors, or a judge in a bench trial, have the best "opportunity to hear and see the witnesses and to get a feel for the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (citation and internal quotation marks omitted), certif. denied, 171 N.J. 443 (2002). Here, in the absence of a testimonial hearing, the judge did not enjoy this advantage. Nor can we conclude that Dr. Schulman's report was so facially deficient as to warrant a blanket rejection in favor of Dr. Singer's conflicting opinion and recommendations.
As noted, P.W. is also required to show that vacating the KLG is in each child's best interests. Here, the judge did not make any findings regarding each child's best interests. Dan, who is now fourteen years old, had unequivocally expressed his desire to live with his mother to both the evaluators and to his Law Guardian. During his interview with the Division's expert, Dan stated that though he had lived with his aunt for six years, it was a "bad environment. There is alcohol everywhere and everyone smokes. That's why [he] would rather live with [his] mom."
The court also failed to consider the death of V.K., the KLG co-caregiver, or S.K.'s ability to care for the children in V.K.'s absence. Of related concern is the court's failure to address the allegations of abuse at the KLG home, including the report that Dan had been thrown down the stairs by his uncle, S.M., as a result of which the police were called and Dan was taken to the hospital. This issue takes on increased significance since both the Division and the court had notice that this was not the first instance that S.M. had posed a risk of harm to the children. In July 2009, R.H., Sr., the children's father, had moved to vacate the KLG on similar grounds. He alleged that S.M., who lived in the same house as the children and their KLG caregivers, physically and emotionally abused the three children. R.H., Sr. noted that during the guardianship proceedings S.M. was not allowed to live in the house because of his past history of abuse, but since then he had returned and made physical threats to the children. Though his motion was later withdrawn, given S.M.'s past history, consideration should have been given to P.W.'s allegation of abuse, especially in determining Dan's best interests.
In sum, P.W. attempted to establish her present capacity to parent. However, the judge gave her supporting documentation little or no weight. Rather, the court dismissed P.W.'s application on the basis of her failure to comply with services that were needed at the time of the KLG judgment but that arguably were no longer required. The court, without conducting an evidentiary hearing, clearly favored the opinions and recommendations of the Division's expert over the conflicting opinions and recommendations of P.W.'s expert. Moreover, the judge did not determine the best interests of each child, particularly Dan, especially in light of his express wishes to live with his mother and his allegations of abuse at the KLG home.
Our decision should not be viewed as suggesting any particular outcome on P.W.'s application. We hold only that P.W. has presented a prima facie case that entitles her to the opportunity to prove what she has asserted at a plenary hearing. See Conforti v. Guliadis, 128 N.J. 318, 322-23 (1992) (requiring plenary hearings to resolve factual disputes). Accordingly, we remand for a plenary hearing at which the trial court shall determine whether P.W. has sufficiently addressed the issues that led to her children's removal. The judge should also consider whether returning the children, especially Dan, to the care and custody of P.W. is in their best interests. Dan is fourteen years old and capable of voicing his opinion as to this placement. The court should also consider Jane's expressed desire for expanded visitation going forward, taking into account any more recent developments. We therefore vacate the order denying the motion and remand for a plenary hearing.
Although not part of the record, the Law Guardians have advised the court that since entry of the order under appeal, P.W. exercised a three-week period of visitation with Jane and Dan.
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Vacated and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION