The Supreme Court of New Jersey’s recent decision in New Jersey Division of Youth and Family Services v. L.L., provides a good opportunity to review New Jersey’s Kinship Legal Guardianship Act. The Act is designed to address the needs of children and caregivers in long-term “kinship” relationships, placing those children who cannot safely reside with their parents in the care of a relative or family friend. This placement option avoids the need to terminate parental rights where adoption is either unlikely or not possible. 

The Act defines a “kinship legal guardian” as 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[.]" From a legal rights standpoint, the guardian has the same “rights, responsibilities and authority relating to the child as a birth parent,” subject to various limitations set forth in the Act. By that same token, the birth parent can consent to an adoption or name change, must continue to pay child support, and can still have parenting time with the child as determined by the Court. As parental rights are not terminated, the Act logically provides that the child does not lose rights derived from the parents, such as rights of inheritance, benefits, etc.

How does one be appointed as a kinship legal guardian? A 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 of the child;

(2) the 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 interests.

The kinship guardianship continues until the child is 18 years old or is no longer continuously enrolled in a secondary education program, whichever occurs later.  A Court, however, may vacate an Order awarding kinship legal guardianship prior to the child’s 18^th birthday in three situations:

(1) The Court finds by clear and convincing evidence that the guardian failed or is unable, unavailable or unwilling to provide proper care and custody of the child[.];

(2) The Court finds that kinship legal guardianship is no longer in the child’s best interests; or

(3) A parent makes an application for the return of the child to their care and, “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.”

It was the third situation that was at issue in L.L. In analyzing the statute, the Supreme Court held that the third situation requires clear and convincing evidence for both parts of the test – namely, (1) a change in the parent’s life that would support a finding that the parent has regained the ability to care for the child; and (2) termination of the kinship legal guardianship is in the child’s best interests. The Court found this elevated standard of proof requirement is consistent with the Act’s purpose to provide a “permanent placement option” beyond custody, without rising to a level requiring a termination of parental rights. The Court also held that the burden of proof to establish such clear and convincing evidence is on the party seeking to vacate the kinship legal guardianship Order. 

Based on this legal standard, the Court found that the parent moving to vacate the Order at issue failed to establish either prong of the test by clear and convincing evidence. As to the “best interests” prong, the Court analyzed a variety of factors established by DYFS via regulation pertaining to the child’s safety. These factors are as follows:

(1) the child’s age;

(2) the duration of DYFS’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 was 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 DYFS and their findings; and

(9) what plan is proposed for the child if the guardianship is vacated.

These factors are non-exhaustive, and may also include, if applicable, 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; and any other relevant factor bearing on the child’s best interests.

In L.L., the Court ultimately found that the child was thriving in the guardian’s care; the parent lacked sufficient resources to parent the child; and, based on an existing domestic violence restraining order, the parent still had unresolved anger issues.