The New Jersey Appellate Division recently handed down an interesting decision regarding termination of parental rights and kinship legal guardianship interpreting the Kinship Legal Guardianship Act in New Jersey. In the matter of Division of Youth and Family Services v. D.H. and J.V., was a case where the Law Guardian filed an interlocutory appeal from the Division of Youth and Family Service’s (“DYFS”) Order approving a permanency plan to terminate the birth parents’ rights followed by a select-home adoption. The trial court rejected kinship legal guardianship (“KLG”), Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 et seq., as a permanent placement option, finding that “based on the child’s age, termination would be more appropriate.”

In this case, A.H., a five year old girl, lived with her maternal grandmother, K.P., for seventeen months prior to the hearing. K.P. wanted the child to live with her on a long-term basis, but did not wish to adopt her. It was clear from the evidence that neither biological parent could care for A.H. In this case, the appellate division reversed and remanded the trial court’s decision, finding that the KLG is an alternative permanency plan to severing parental rights.
KLG does not terminate parental rights. The birth parents retain the right to: (1) consent to adoption; (2) change the child’s name; and (3) visit the child. The birth parents are also obligated to pay child support, and the child is still eligible to receive inheritance, benefits, or insurance from his or her birthparents. When adoption is neither feasible nor, likely, particularly when kinship caregiver’s own child or sibling is the birth parent, an alternative to termination is desirable. A KLG will typically be a caregiver with “biological, legal, extended or committed emotional or psychological relationship with a child and who is willing to assume care of the child due to parental incapacity or inability, with the intent to raise the child to adulthood. Once the caregiver becomes a KLG, the caregiver is entitled to make all decisions relating to the care and well being of the child. KLG was enacted by the legislature to formalize the status of a relative who agrees to take on the responsibility for a child, and it can remain in place throughout the child’s minority.

In order to establish KLG is appropriate, 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, unavailable, or unwilling to perform the regular and expected functions of care and support; (2) thee parents’ inability to perform those functions is unlikely to change in the foreseeable future; (3) in cases in which [DYFS] is involved with the child … (a) [DYFS] 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 interest. N.J.S.A. 3B:12A-6d.

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