Opinion
DOCKET NO. A-3019-11T3 DOCKET NO. A-3646-11T3
12-13-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. C.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.B. and A.P., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Karen Kleppe Lembo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.B. and A.P. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FL-07-0031-08 and FL-07-0211-07.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Karen Kleppe Lembo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.B. and A.P. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, defendant C.B. appeals from the denial of her motion to vacate judgments of kinship legal guardianship (KLG) entered in 2007 as to her two sons, D.B. (Darin), born in 2000 and A.P. (Adam), born in 2001. Defendant had filed a motion to vacate the judgments in 2011, asserting her parental incapacity, namely her lack of housing, had been resolved. 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.
I.
In February of 2004, the Division of Youth and Family Services (the "Division") received a referral from a Newark Police officer. Defendant had left her children with her godmother on a Friday evening and returned that Sunday morning. While in the godmother's care, a 13-year-old baby sitter abused Adam.
The Division is now known as the Division of Child Protection and Permanency. See L. 2012, c. 16, eff. June 29, 2012.
After the Division discovered defendant lacked adequate housing for her sons, the children were initially placed with her sister T.B.; then, starting in early June, the children spent approximately one month in foster care. On July 8, 2004, Darin returned to live with T.B., where he remains today. The court entered a judgment for KLG of Darin in T.B.'s favor in September 2007. On the same day, Adam went to live with his paternal aunt, L.C., and the court entered a judgment for KLG of Adam in her favor in March 2007. In 2008, Adam started living with L.C.'s sister, J.T., in Randolph, where the child has done well. The transfer of Adam's physical custody was completed on an informal basis, with no involvement of the court or the Division.
The record indicates that defendant consented to both KLG judgments. The biological father of Darin, A.G., was incarcerated in Georgia, and the whereabouts of the biological father of Adam, T.P., was unknown.
On April 18, 2011, defendant filed a motion to vacate both KLG judgments, certifying, "I have beds for my kids and I have my own apartment[.] I am able to take care of them." In response to the motion, the court ordered the Division to complete an investigation, including interviewing the children and their guardians.
In a report dated July 13, 2011, the Division stated that defendant resides in a three-bedroom apartment on the first floor of a two family home; there are separate bedrooms for Darin and Adam, each furnished with a twin bed and dresser. The report noted the home was clean and safe, had working utilities, and ample food in the refrigerator and cabinets. Defendant related that she receives a Section 8 housing allowance, which covers 100% of her $1,100 monthly rent. She also receives $200 in food stamps and $125 in municipal welfare benefits. The report further noted defendant was laid off from a bus company in May 2011, after two months of employment, and had not yet secured new employment.
The Housing and Community Development Act of 1974, codified at 42 U.S.C.A. § 1437f, established the Section 8 housing assistance program. The program was enacted "[f]or the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing[.]" 42 U.S.C.A. § 1437f(a).
The report also indicated defendant has regular visitation with Darin, but only sporadic visits with Adam; defendant expressed concern that she had not seen Adam for nearly two months. She appeared upset that her son has been living in Randolph with another paternal aunt, J.T. (L.C.'s sister), rather than with L.C., his kinship legal guardian, for the past three years.
When interviewed by the caseworker, T.B. advised that she has no problem with defendant regaining custody of Darin because "she is willing and able to assume responsibility of her children." The caseworker spoke with Darin separately; he stated that he has no problems living with his mother, that he visits her every weekend and sometimes during the week when school is in session, and enjoys the meals his mother prepares for him.
The caseworker also met with Adam and L.C. in Randolph, where Adam had been residing for the previous three years in a three-bedroom, one-family home with surrounding land. During the interview, L.C. expressed concern with defendant regaining custody of Adam. She explained that Adam is "very well adjusted to his home environment," and she questioned whether defendant "would follow through with his education and extracurricular activities." She also feared that Adam "would be neglected if the court orders him to return home," and claimed that defendant is using the children to obtain welfare benefits.
Significantly, the July 13, 2011 report fails to note that Adam was not residing with L.C., but instead lived with her sister, J.T. It is unclear if L.C. failed to mention this important fact or if the caseworker was responsible for the omission.
The caseworker interviewed Adam alone. He expressed his desire to live with his mother; however, he also indicated he enjoyed living in his current home. Adam related that he engages in activities such as lacrosse, football, wrestling, and piano lessons and would want to continue those activities if he is returned to his mother.
At a hearing on July 19, 2011, the judge heard from defendant, the Division, and the Law Guardian for the children with respect to the motion to vacate. The Law Guardian reported that "on one occasion [Adam] did indicate that he did not want to go home to his mother. However, . . . (now) he's actually excited about it." She also stated, based on the Division's home evaluation report, defendant appears to be in a position to mitigate any harm that may result from Adam's transfer from his current caretaker. The judge indicated that reunification is always favored; however, he also expressed concerns that Adam had spent approximately sixty percent of his life with a caregiver and was excelling in his current environment.
During this hearing, defendant informed the judge that Adam did not reside with his kinship legal guardian in Hillside, but instead lived in Randolph, with his guardian's sister, J.T. Because this change reduced her visitations with Adam, she requested more visitation. The judge denied defendant's request for increased visitation, indicating he was deferring to the KLG judgment, which gave the kinship legal guardian discretion regarding visitation; he did indicate that he would "allow a motion to be made that . . . provides the court with some reason why I should increase custody[.]" The court relisted the matter to allow for the Division to take a position on defendant's motion, after considering the factors set forth in N.J.A.C. 10:132A-3.6(a).
On August 3, 2011, the Division presented a letter to the court declining to take a position on defendant's motion without professional evaluations of the children and their caretakers. At a case management conference held that day, L.C. opposed defendant's motion as it pertained to Adam. The Law Guardian supported reunification of defendant with both children. The Law Guardian also expressed concern about Adam no longer residing with his kinship legal guardian, L.C. The Law Guardian requested that Darin be returned home and that the court continue litigating the motion to vacate with respect to Adam.
The judge analyzed New Jersey Division of Youth & Family Services. v. L.L., 201 N.J. 210 (2010) as requiring that the biological parent must prove more than the resolution of the incapacity that resulted in the KLG. The judge stated:
So simply saying the reason they took the child was because of this issue[,] that's not the relevant consideration now. It is a consideration . . . [b]ut the fact that she may have resolved that is not the reason that she should get the children back. The fact that she comes back and proves to this [c]ourt by clear and convincing evidence that the best interest of the child are served with her is the issue.
Defendant, joined by the Law Guardian, again argued that the best interests of Adam required increased visitation; however, the judge again refused to rule on visitation and again failed to address the fact that Adam did not reside with his kinship legal guardian. Instead, he stated the parties should work out a visitation schedule to ensure there is no interference with Adam's schedule.
On October 3, 2011, Eric Kirschner, Ph.D. issued a report of a psychological evaluation of defendant he performed for the Division. Dr. Kirschner did not perform bonding evaluations between defendant and her children due to scheduling conflicts. Therefore, Dr. Kirschner based his opinions on his clinical interview, the Division report of August 3, 2011, and three pieces of correspondence related to the case.
During the evaluation, Dr. Kirschner asked defendant about her housing and her current employment status. Defendant said she had been "on the waiting list for Section 8 housing for seven years" before moving into her current apartment. When asked if she had a plan in the event she lost her Section 8 housing, defendant responded, "I don't plan on losing it." Defendant was unemployed at the time of the evaluation; prior to her lay-off in March of 2011, she worked as a "shampoo girl" off and on for two years.
In a report to the Division, Dr. Kirschner recommended that "termination of the existing KLGs for [Darin] and [Adam] was not in their respective best interests." He also stated in the event the court determines it is in the best interest of the children to be returned to their mother, they should "maintain regular contact with their current caregivers given the length of time they have resided with them." Dr. Kirschner further recommended that defendant obtain her GED, attend parenting skills training, and receive individual counseling, as well as establish employment and independent, stable housing.
At the request of the Division, Dr. Albert R. Griffith, Ed.D. conducted a psychological evaluation of defendant as well as bonding evaluations between Adam and his mother, and Adam and his current caregiver, J.T. During her evaluation, defendant revealed that her mother died of AIDS when she was 14 years old; she attended a grief program for two years subsequent to her mother's death, but never fully addressed her trauma. She also indicated that her unexamined feelings manifested into aggressive behavior, resulting in frequent school fights during her teenage years. Defendant stated the aggression presented only in provocative situations, and that she was otherwise "a nice person, had a good heart, and was generally liked."
Due to weather-related problems and other scheduling issues, Dr. Griffth did not complete bonding evaluations for Darin.
Dr. Griffith asked defendant about her relationship with her children. She stated Darin "loves me to death," and that he is a happy, energetic boy. She described Adam as "very playful, never gets mad, smart, outgoing, can play or be friends with anybody, [and] loves sports." Defendant indicated her visitations with Adam were sporadic, "[s]ometimes every other weekend, then months without seeing him."
Based on his psychological evaluation of defendant, Dr. Griffith concluded she has a dependency conflict and unexpressed anger; nevertheless, he stated she can function as "a minimally adequate parent." Dr. Griffith recommended GED classes for defendant to prepare her for a "low-level health occupation, such as phlebotomist, which will not require more than a short period of training."
Dr. Griffith performed a bonding evaluation with Adam and defendant on October 12, 2011. Dr. Griffith asked Adam "with whom he would prefer to live. . . . Without hesitation[,] he indicated that he would prefer to remain with his aunt. . . . [H]e stated he was fearful of the gangs that infested the area where his [mother] lives." Dr. Griffith found that Adam understands the advantages he receives as a result of living in an area other than Newark, such as attending a good school. While Dr. Griffith did find that Adam looks to his mother for emotional support, he does not look to her for security or protection. Dr. Griffith recommended that Adam remain with his great aunt [J.T.] because that is his psychological home and "[r]emoval from that home is likely to cause him lasting harm."
Dr. Griffith also performed a bonding evaluation with J.T. and Adam. He observed that Adam "is attached to his aunt," who is someone he sees as "challenging, yet protective of him. He probably looks to her for direction and nurturance. She is a parenting figure to him." Because Adam does have some attachment to his birth mother, Dr. Griffith stated that continued contact with her should be allowed, but not as a prelude to reunification; instead, as an opportunity to maintain grounding with other family members, and with his mother, as a nurturing person who is important to him.
Dr. Robert Raymond, Ph.D. conducted evaluations at the Law Guardian's request on November 15, 2011. He performed psychological evaluations of defendant and Adam; a bonding assessment of Adam and defendant; a bonding assessment of Adam and his aunts and cousins; and a bonding assessment of Darin and his maternal aunt and her husband. Dr. Raymond concluded that "it is abundantly clear and incontrovertible that for [Darin] to move from his maternal aunt's home to his mother's home would be relatively smooth and relatively stress free. The same cannot be said for Adam."
Dr. Raymond found that due to Adam's secure and strong attachments to his aunts, cousins, numerous extracurricular activities and travel opportunities, "[t]o disrupt him from his home of [seven plus] years . . . and have him relocate to his mother's home without an adequate transition plan is likely to be detrimental." Dr. Raymond suggested that there should be a plan to gradually increase Adam's time with his mother through extended vacation time, extended weekend time, or through regularly scheduled day and/or night visits; he further noted that "[a] court order requiring the development and implementation of this plan is likely to be necessary. It would undoubtedly be necessary to engage defendant, [L.C.] and [J.T.] in this joint effort, and to obtain assurances of their compliance with such a plan."
On November 16, 2011, the judge held the final hearing to decide defendant's motion to vacate the KLG. The Law Guardian advised that, based on Dr. Raymond's interim report, she could not recommend reunification of defendant and Adam. The Law Guardian requested, per Dr. Raymond's recommendation, that visitations be increased between defendant and Adam. Counsel for defendant represented that he would not be submitting any professional evaluations. The Law Guardian stressed that Dr. Kirschner's report was incomplete, noting that he never met Darin nor did his report take into account his relationship with his mother.
Despite Dr. Raymond's favorable recommendations regarding the prospect of reuniting Darin with his mother, the judge found it insufficient to demonstrate that it is in the best interest of Darin to vacate his KLG. The judge also declined to delay the proceedings any longer to allow for the completion of the remaining evaluations. Instead, he noted that defendant has "provided . . . nothing except the investigation done by the Division," and then denied both motions, finding that defendant failed to prove by clear and convincing evidence that either KLG judgment should be vacated.
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 N.J.S.A. 3B:12A-4(a)(1), (2).
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. L.L., supra, 201 N.J. at 225.
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 defer to a trial court's factual findings "because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We also recognize that "[b]ecause of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Thus, if the record contains substantial credible evidence to support the trial court's findings, we will not disturb those findings. "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
III.
Defendant asserts that clear and convincing evidence of record shows she had addressed the housing issues that led to her children's removal, thus satisfying the first prong of the standard for vacating the KLG judgments for both children. N.J.S.A. 3B:12A-6(f). We agree.
The court dismissed defendant's motions because she failed to provide evidential support for her requests. Although defendant did not present evidence to support it was in the best interests of the children to vacate the KLG, the Law Guardian and Division provided evidence bearing on her claims. The trial judge's failure to consider these proofs was error.
The information submitted to the court by the Division showed defendant living in an appropriate three-bedroom apartment, with no safety or health hazards. Both the Division and the Law Guardian agreed defendant had adequate housing for herself and her children. Unlike the facts in L.L. where the movant failed to prove the first prong of the standard, the evidence before the court proved that the issue that led to the children's removal had been resolved. The court's conclusion the record was insufficient to show defendant's housing issue had been resolved is erroneous.
With regard to the second prong of N.J.S.A. 3B:12A-6(f), we address each child separately. As to Darin, the evidence before the court provided clear and convincing evidence that supported vacating his KLG judgment and returning him to the care and custody of his mother was in his best interest. In reviewing the relevant factors, we note that Darin was eleven years old and capable of voicing his opinion as to this placement. Darin and his caretaker, T.B., both strongly supported defendant's motion. The Law Guardian emphasized to the court that Darin wanted to return to his mother's care and that he already spent considerable time with her. The Division had been involved with the family for three years prior to the entry of the KLG order and Darin lived with his guardian for another four years for a total of seven years of out-of-home placement. Despite the length of time Darin has resided with T.B., he maintained a good relationship with his mother, spending weekends with her as well as additional time during the week. The record contained no evidence that vacating Darin's KLG would have any adverse impact on Darin's day-to-day life. The original harm to the child was instability due to homelessness; that issue had been addressed because defendant obtained stable housing prior to her application to vacate the KLG.
Additionally, Dr. Raymond found it "abundantly clear and incontrovertible" that moving Darin from his maternal aunt's home to his mother's home "would be relatively smooth and relatively stress free." Importantly, Dr. Raymond was the only expert to perform a bonding evaluation with both Darin and defendant, and Darin and his kinship legal guardian.
Dr. Kirschner disagreed with Dr. Raymond's conclusion, opining both children should remain with their caretakers. However, he never performed the critical bonding evaluations with the child's caretaker or defendant. We conclude the court incorrectly placed controlling weight upon the preliminary opinion of Dr. Kirschner and disregarded the opinion of Dr. Raymond, who had completed all the necessary evaluations.
Dr. Kirschner's recommendation was based solely on his psychological evaluation of defendant, a Division court report and three letters provided to him by the Division. In his comments he had actually recommended bonding evaluations be performed between the children and their respective guardians — an implicit acknowledgement that his opinions and recommendations were preliminary, not final. The judge did not consider reasonably exercising his discretion to defer his decision until Dr. Kirschner completed his bonding evaluations and offered no explanation for his reliance on Dr. Kirschner's incomplete, preliminary assessment. Nor did he explain his rejection of Dr. Raymond's recommendations and the inadequacies of other compelling evidence supporting defendant's motion to vacate Darin's KLG judgment. We conclude the court's reliance on Dr. Kirschner's recommendation to maintain the status quo, which was based on incomplete information, cannot stand.
Furthermore, while the statute is clear that the burden of proof for terminating the KLG is on the moving party, in this case there was evidence presented that addressed the factors identified in N.J.A.C. 10:132A-3.6(a), even though that evidence was not submitted by defendant. The court regularly considers the reports and evidence of other parties in reaching conclusions in guardianship proceedings. For example, Law Guardians regularly provide their own bonding evaluations and psychological evaluations that can either support or refute the Division's position in seeking termination of parental rights. Those evaluations and testimony, while not submitted by the party with the burden of proof, are often relied upon by the court in making its determination. The pertinent issue is the child's best interest.
Therefore, we conclude the court erred, not only in its evaluation of the submitted evidence but also in its application of the law, in its ruling that terminating the KLG was not in the best interests of Darin. The record contains clear and convincing evidence that Darin should be returned to his mother. Specifically, defendant has maintained a very strong relationship with Darin, who desires to be with his mother, and she has demonstrated her ability to provide for him. Additionally, the Law Guardian favored Darin's return to defendant after considering Darin's wishes, his caretaker's support for his return, and the close relationship between Darin and his mother.
While we are satisfied the record before the trial court supported vacating Darin's KLG and returning him to the custody of his mother, we decline to order such a result on remand without information regarding the current circumstances of defendant and Darin. Instead, we instruct the trial court to assess whether there has been any substantial change in circumstances that would indicate that vacating Darin's KLG is no longer in his best interests; if no such change has occurred, the court will proceed to enter an order vacating Darin's KLG and returning him to the custody of his mother.
With respect to Adam, while the record generally supports the court's findings, we nevertheless find the court erred by proceeding before all evaluations were completed. The court stated that the motion to vacate "was now seven months old" and the court had given everyone the opportunity to gather and present evidence to the court. We are not persuaded by this explanation; the record is devoid of any sound reason for not allowing additional time for the completion of all evaluations before rendering a final decision. Therefore, because all evaluations had not been completed due to weather-related problems and other scheduling issues, we remand the matter to the trial court. The trial court should allow for all evaluations to be completed, thus providing the court with a complete record of all relevant information before making its determination.
Since more than two years have passed since the previous evaluations, updated psychological and bonding evaluations may be indicated to determine the current status of the parties involved. We leave such decisions to the sound discretion of the trial court.
We note that Adam initially advised his Law Guardian that he wanted to return to his mother. Assuming that the circumstances presented on remand allow for Darin's immediate return to his mother's home, the prospect of sharing a home with his brother may cause Adam to reconsider his last-stated position to remain with J.T. If this occurs, immediate transfer of Adam to his mother's custody may not be in Adam's best interest. As Dr. Raymond cautioned, disrupting Adam's current, long-standing arrangement without a transition plan would likely be detrimental. If Adam were to be transferred to his mother's custody, Dr. Raymond recommended that it should be done gradually to mitigate any difficulties he might experience.
We also conclude several other errors occurred in the disposition of defendant's motions. Initially, the court failed to address the claim that reasonable visitation was not occurring between defendant and Adam. Defendant and the Law Guardian both requested the court's assistance to address this pressing issue. The court declined to make the decision it had the responsibility to make, but instead deferred to the discretion of the kinship legal guardian, even though she had already demonstrated her unwillingness to facilitate such visitation. Because the court was requiring various evaluations, including bonding evaluations, it was critical to immediately address the visitation issue to avoid unfair impact on the bonding evaluations. If issues regarding Adam's visitation remain unresolved, the court shall address them forthwith on remand.
The court also failed to appreciate that a consequence of its failure to address defendant's visitation issue was the denial of Darin's and Adam's rights to sibling visitation. New Jersey has long recognized the value of preserving sibling relationships. See In re C.R., 364 N.J. Super. 263, 277-78 (App. Div. 2003) (discussing New Jersey's history of emphasizing the importance of preserving sibling relationships), certif. denied, 179 N.J. 369 (2004); N.J.S.A. 9:2-7.1(a) (establishing visitation rights for grandparents and siblings); In re D.C., 203 N.J. 545, 562-67 (2010) (noting that adoptive families may be ordered to allow biological sibling visitation).
Without question, maintaining sibling relationships for children in foster placements is preferable. See Id. at 561 ("Clearly, if sibling bonds are important in healthy families, they are critical to children who experience chaotic circumstances.") See also N.J.S.A. 9:6B-4(f) (providing a child in placement the right to maintain contact with his or her siblings as provided by the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6).
Moreover, the Supreme Court has stated:
The importance of sibling relationships is well recognized by our courts and social science scholars . . . . Some mental health experts believe that the sibling relationship can be longer lasting and more influential than any other, including those with parents, spouse, or children[,] and
that [w]hen it is severed, the fallout can last a lifetime. (internal quotation marks and citation omitted).
[N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556, 560-61 (2006)]
We further conclude the court erred in failing to address that, for the three previous years, Adam had been living with J.T., a person other than his kinship legal guardian. Pursuant to N.J.S.A. 3B:12A-6(g),
[a]n order or judgment awarding kinship legal guardianship may be vacated by the court if, based upon clear and convincing evidence, the court finds that the guardian failed or is unable, unavailable or unwilling to provide proper care and custody of the child, or that the guardianship is no longer in the child's best interest.
KLG was granted to L.C. and yet, by all accounts, Adam was living with J.T. and formed a close relationship with her. The record contains no evidence the Division was ever informed of this de facto transfer of custody. The court failed to examine the situation more closely and determine whether this potential change in custody was in violation of the KLG and a sufficient reason to vacate the KLG. We note the KLG statute contains no authority for the kinship legal guardian to transfer the guardianship to another person without court approval.
Because of the paucity of information in the record, we have no ability to assess whether the current arrangement where Adam resides with J.T., his kinship legal guardian's sister, exceeds the authority granted in N.J.S.A. 3B:12A-6(e)(1).
On remand, the trial court shall assess Adam's current arrangement involving his kinship legal guardian and Adam's current caretaker, J.T., and determine whether the arrangement is consistent with the authority granted in N.J.S.A. 3B:12A-6(e)(1). If the court determines the current arrangement is not authorized, it must then determine if Adam's KLG in favor of L.C. should be terminated, and if so, whether Adam should be returned to his mother's custody or whether a formal KLG arrangement should be established with J.T. We express no opinion as to a final outcome so long as the court's final determination "is in the child's best interests." N.J.S.A. 3B:12A-6(d)(4) and (f).
In such event, formal procedures should be followed, as outlined in N.J.S.A. 3B:12A-5 and 6.
Accordingly, we remand the matter to the Family Part for further proceedings consistent with this opinion. We also conclude that on remand the matter should be heard by a Family Part judge other than the one who presided over the post-dispositional kinship hearings. See P.T. v. M.S., 325 N.J. Super. 193, 200 (App. Div. 1999) (remanding to a different judge where the original judge reached conclusions "insufficiently supported by the evidence in the record," when a necessary plenary hearing was not conducted, and when it was necessary to preserve the appearance of fair and unprejudiced hearing which require "fresh judicial examination").
Reversed 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