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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0360-23
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
V.S.,
Defendant-Appellant,
and
J.R.,
Defendant. ____________________________
IN THE MATTER OF THE GUARDIANSHIP OF M.M-C., a minor. ____________________________
Submitted July 9, 2024 – Decided August 2, 2024
Before Judges Gilson and Natali. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-0034-16.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Nicholas Dolinsky, Deputy Attorney General, on the brief).
Jennifer Nicole Sellitti, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
In 2017, V.S. (Valerie) voluntarily surrendered her parental rights to her
daughter, M.M-C. (Maureen), a disabled child with extensive special medical
needs.1 In 2022, Valerie, for the second time, moved to open and vacate the
judgment that terminated her parental rights. The family court found that
Valerie had shown neither sufficiently changed circumstances nor that it would
be in Maureen's best interests to vacate the judgment. In support of those
findings, the court also noted that Maureen was now with a resource family that
1 We use initials and fictitious names to protect the privacy interests of the family and the confidentiality of the record. See R. 1:38-3(d)(12). A-0360-23 2 had demonstrated it could care for her special medical needs and that the family
was committed to adopting Maureen.
Valerie now appeals from the family court's orders denying her motion to
vacate the judgment under Rule 4:50-1 and denying her motion for
reconsideration. Because the family court's findings are supported by
substantial, credible evidence, and because the family court's legal conclusions
are consistent with the governing law, we affirm.
I.
Valerie gave birth to Maureen in February 2012. Maureen was born
prematurely at thirty-three weeks and has had extensive special medical needs
since birth. Maureen's biological father executed a general surrender of his
parental rights and is not a party to this appeal.
In 2013, Valerie left Maureen in the care of a person who was not able to
meet Maureen's special medical needs. As a result, Maureen was hospitalized.
Shortly thereafter, the Division of Child Protection and Permanency (the
Division) obtained custody of Maureen. Since then, Maureen has been in the
care and custody of the Division.
Following a fact-finding hearing, in January 2014, the family court found
that Valerie had abused or neglected Maureen. Valerie appealed from the order
A-0360-23 3 making that finding, but we affirmed. N.J. Div. of Child Prot. & Permanency v.
V.S., No. A-1006-14 (App. Div. Nov. 3, 2017).
From late 2013 until early 2023, Maureen resided in the long-term care
unit of the Children's Specialized Hospital in New Jersey. An October 11, 2022
report from the Children's Specialized Hospital described Maureen's conditions
and needs:
[Maureen's] medical conditions are complex and permanent. Her profound hypotonia prevents her from ambulating independently, eating by mouth, adequately clearing her tracheal secretions and maintain[ing] adequate ventilation/oxygenation at night without the support of a ventilator. [Maureen] is dependent on others for all of her activities of daily living needs. She is dependent on a wheelchair for all of her mobility and assistive device[s] for communication.
In 2016, Valerie pled guilty to second-degree robbery, N.J.S.A. 2C:15-
1(a), and was sentenced to five years in prison. Before she started her prison
term, in March 2017, Valerie executed a general surrender of her parental rights
to Maureen. In making that surrender, Valerie completed a form in which she
stated that she understood that "even if [she] change[d] [her] mind at any time
in the future," Maureen would "not be returned to [her] because the surrender
[was] irrevocable and binding." Valerie also acknowledged that at that time,
she could not care for Maureen, and she was informed that the Division's plan
A-0360-23 4 was to find an adoptive home with a family that could care for Maureen's special
medical needs. The family court then executed a judgment terminating Valerie's
parental rights and giving guardianship of Maureen to the Division.
In July 2019, Valerie moved under Rule 4:50-1 to vacate the March 2017
judgment terminating her parental rights to Maureen. In support of her motion ,
Valerie submitted a certification describing the changes in her circumstances.
She explained that she had been paroled from prison and was living at a halfway
house. Valerie also stated that she had completed in-patient and out-patient
substance abuse treatment programs. In addition, she submitted a report of a
psychological evaluation performed by Dr. Andrew Brown in July 2019. In his
report, Dr. Brown opined that Valerie had the requisite psychological and
cognitive abilities to parent Maureen and that she would not pose a danger to
the child.
The family court denied Valerie's motion to vacate the judgment without
prejudice. The court found that it was not in Maureen's best interests to restore
Valerie's rights and to delay permanency while Valerie finished her sentence,
re-established herself in the community, and tried to demonstrate that she could
remain sober and parent Maureen. The court also found that Dr. Brown's report
was not reliable because his conclusions were based on an interview of Valerie,
A-0360-23 5 and she had not been accurate in describing her background and circumstances.
Specifically, the court noted that Dr. Brown failed to address the many prior
opportunities that Valerie had for rehabilitation before she had surrendered her
parental rights. Valerie appealed from that order, but we rejected her arguments
and affirmed. N.J. Div. of Child Prot. & Permanency v. V.S., No. A-0453-19
(App. Div. July 6, 2020). Like the family court, we noted that the order was
without prejudice and, therefore, Valerie could file a new motion provided she
could satisfy the governing criteria. Id. at 4.
In 2021, the Division identified a resource family that was interested in
potentially adopting Maureen. That family resided in Illinois and had previously
adopted another child with complex medical needs from the Children's
Specialized Hospital.
In August 2022, Valerie filed a second motion to vacate the judgment
terminating her parental rights. In support of that motion, she submitted a n
updated certification explaining the changes in her circumstances, which
included her completion of substance abuse treatment programs, her complete
release from prison, that she was employed, and that she had begun attending
Passaic County Community College. Valerie also resubmitted the 2019 report
from Dr. Brown.
A-0360-23 6 After conducting a hearing, the family court denied Valerie's motion in an
order entered on October 6, 2022. The court found that Valerie had not
established that she was able to care for Maureen "in a non-institutionalized
setting." The court noted that at that time, Valerie was not yet living on her
own. The court emphasized that Maureen needed permanency and an
"opportunity to live in a home" outside institutionalized care. The court also
acknowledged that the Division was still working with the potential resource
parents it had located in Illinois to see if Maureen could live with them. The
court found that it would not be in Maureen's best interests to interfere with that
process.
Valerie moved for reconsideration. She argued that Maureen's potential
adoption by the family in Illinois was still "speculative" and that the Division
had inadequately considered the option of Valerie and Maureen living with
Valerie's mother. The court denied Valerie's motion for reconsideration in an
order entered on December 2, 2022. In its oral opinion, the court again
emphasized the lack of proof regarding whether Valerie could care for Maureen
in a home setting and the need for permanency for Maureen.
Valerie appealed the October 6, 2022 and December 2, 2022 orders.
While the appeal was pending, Valerie moved to supplement the record and
A-0360-23 7 remand the matter to the family court. On June 12, 2023, we granted that motion
and directed that on remand, the family court was to consider the supplemental
materials and then issue a new order on Valerie's motion to vacate the judgment
terminating her parental rights.
On August 29, 2023, the family court conducted a hearing, considered
those additional materials, and heard testimony. Three witnesses testified at the
hearing: Valerie; T.C. (Thomas), one of Maureen's resource parents; and Debbie
Gomez, the caseworker supervising Maureen's care.
Valerie testified that while she was incarcerated, she kept in contact with
Maureen's social worker. She explained that once she was released to a halfway
house, she began visiting Maureen once per month and more frequently after
she began living in a sober living home. She also explained that since Maureen's
placement with the resource family, she had regularly called the family and
Maureen.
Concerning her changed circumstances, she explained that following her
release from prison, she obtained a driver's license, has paid child support,
moved into an apartment, began working two jobs, and has remained sober.
Valerie acknowledged that she has not remained involved in Maureen's medical
care, but she was aware of Maureen's medical needs. She expressed a
A-0360-23 8 willingness to undertake the training that would be necessary for her to care for
Thomas testified that he and his wife met Maureen in December 2017,
when they were "in the process of adopting [their] youngest son, who was a
resident at the Children's Specialized Hospital" and who had been Maureen's
roommate at the hospital. He explained that after his family had expressed an
interest in adopting Maureen, he had arranged for a home study for Maureen.
He also explained that between July 2022 and Maureen's placement with the
family in February 2023, he and his wife had visited Maureen every couple of
weeks and had received training on how to meet her medical needs.
Concerning his family's ability to care for Maureen, Thomas detailed that
he and his wife had previously adopted a medically-complex child and that they
were prepared to learn how to meet Maureen's needs. In that regard, he stated
that the family worked with a team of nurses to meet their children's medical
needs. He then described the medical equipment Maureen used and the progress
she had made since coming to live with his family. He also explained that
Maureen had a good relationship with the other children and that she appeared
to be enjoying spending time with and playing with the other children in the
family.
A-0360-23 9 Gomez testified about the Division's efforts to consider other placements
for Maureen, including two of Valerie's relatives. She then explained that the
Division's plan for Maureen was adoption.
On September 13, 2023, the family court issued an oral decision and
written order denying Valerie's second motion to vacate the 2017 judgment
terminating her parental rights. The court explained that it found all three
witnesses to be credible. The court then addressed the two-prong test for
assessing whether a judgment terminating parental rights should be vacated. In
that regard, the court correctly noted that Valerie had to demonstrate (1) a
change of circumstances and (2) that it was in Maureen's best interests to vacate
the judgment. The court also correctly recognized that the focus was on the
effect on and the best interests of the child.
Regarding the first prong, the court commended Valerie's efforts to
change her circumstances but found that Valerie had "failed to demonstrate
exceptional circumstances to warrant vacating [the judgment] terminating her
parental rights." The court found that Valerie's certification and her testimony
focused on her change of circumstances but did not explain how she would be
able to care for Maureen's special medical needs. The court also found that
Valerie's rehabilitation was relatively "recent[]." The court noted that Valerie
A-0360-23 10 did not have a viable or concrete plan for caring for a special needs child while
working two jobs and attending college.
Concerning the second prong of the test, the court found that Maureen's
interests were "better-served by continuing a path of permanency and stability"
with her resource family, who could care for her significant medical needs. In
that regard, the court found that Maureen's "placement with a family since
February 2023 that is ready, willing, and able to adopt her creates . . . a hurdle
that is too high for [Valerie] to overcome."
The court also found that the 2019 psychological report from Dr. Brown
was outdated and did not provide any insight into Valerie's relationship with
Maureen. Finally, the court noted that Valerie's voluntary surrender of her
parental rights was made when she was fully aware that her decision was
irrevocable and binding. So, the court entered an order denying Valerie's second
motion to vacate the judgment and her motion for reconsideration.
Valerie now appeals from the family court's September 13, 2023 order.
Effectively, she is also appealing from the October 6, 2022 and December 2,
2022 orders.
A-0360-23 11 II.
On appeal, Valerie makes three arguments. First, she contends that the
family court erred because, under Rule 4:50-1(e), it is no longer equitable to
enforce the judgment terminating her parental rights. Second, she asserts that
the judgment should be vacated under Rule 4:50-1(f) because there are truly
exceptional circumstances justifying that relief. Finally, she argues that due
process and fundamental fairness require that we reverse the order denying her
motion to vacate the judgment, or, in the alternative, remand for further
proceedings. The record and law do not support any of these arguments.
A voluntary surrender of parental rights is "irrevocable except at the
discretion of the Division . . . or upon order of a court of competent jurisdiction."
N.J.S.A. 30:4C-23. A former parent seeking relief from a judgment terminating
her or his parental rights can file a motion under Rule 4:50-1. In re Guardianship
of J.N.H., 172 N.J. 440, 474 (2002); State Div. of Youth & Fam. Servs. v. T.G.,
414 N.J. Super. 423, 434 (App. Div. 2010). In evaluating a motion to vacate a
judgment terminating parental rights, courts apply a two-prong test. T.G., 414
N.J. Super. at 434. First, the motion "must be supported by evidence of changed
circumstances." Ibid. (emphasis omitted) (quoting J.N.H., 172 N.J. at 473).
Second, the best interests of the child must be considered. Id. at 435. In
A-0360-23 12 considering the second prong of the test, a court must "weigh[] . . . the effects
setting aside the judgment may have on the child's stability and permanency."
Ibid. "[T]he primary issue is . . . what effect the grant of the motion would have
on the child." Ibid. (omission in original) (quoting J.N.H., 172 N.J. at 475). In
that regard, the New Jersey Supreme Court has recognized "that the passage of
time in a parental termination case, especially where a child has successfully
adjusted to a long-term placement, is of much greater significance than it would
be in practically any other context." J.N.H., 172 N.J. at 475.
In moving to vacate the judgment that terminated her parental rights to
Maureen, Valerie relied on subsections (e) and (f) of Rule 4:50-1. Under
subsection (e), the court has the discretion "to relieve a party from a final
judgment or order if that party can show that 'it is no longer equitable that the
judgment or order should have prospective application.'" Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 285 (1994) (quoting R. 4:50-1(e)).
Accordingly, a motion under subsection (e) must be supported by evidence
demonstrating a change of circumstances and "'that events have occurred
subsequent to the entry of a judgment that, absent the relief requested, will result
in "extreme" and "unexpected" hardship.'" F.B. v. A.L.G., 176 N.J. 201, 208
(2003) (quoting Hous. Auth. of Morristown, 135 N.J. at 285).
A-0360-23 13 Rule 4:50-1(f) states that a final judgment may be vacated for "any other
reason justifying relief from the operation of the judgment or order." The Court
has explained that because of the importance "'attach[ed] to the finality of
judgments, relief under Rule 4:50-1(f) is available only when "truly exceptional
circumstances are present."'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,
484 (2012) (citation reformatted) (quoting Hous. Auth. of Morristown, 135 N.J.
at 286). The Court has also explained that "[r]egardless of the basis, vacation
of a judgment under Rule 4:50-1 should be granted sparingly." J.N.H., 172 N.J.
at 473-74 (citation reformatted).
"The decision whether to vacate a judgment on one of the six specified
grounds [delineated in Rule 4:50-1] is a determination left to the sound
discretion of the trial court, guided by principles of equity." MTAG v. Tao Invs.,
LLC, 476 N.J. Super. 324, 333 (App. Div. 2023) (quoting F.B., 176 N.J. at 207).
"On appeal, '[t]he decision granting or denying an application to open a
judgment will be left undisturbed unless it represents a clear abuse of
discretion.'" Ibid. (alteration in original) (quoting Hous. Auth. of Morristown,
135 N.J. at 283). An abuse of discretion occurs when a decision is "made
without a rational explanation, inexplicitly departed from established policies,
A-0360-23 14 or rested on an impermissible basis." Ibid. (quoting US Bank Nat'l Ass'n, 209
N.J. at 467).
A. The Changed Circumstances.
Valerie argues that the judgment terminating her parental rights to
Maureen should be vacated under Rule 4:50-1(e) because she has rehabilitated
herself and because the psychological report from Dr. Brown showed that she
was capable of parenting Maureen. The family court thoroughly considered the
evidence of Valerie's change of circumstances. The court correctly
acknowledged that Valerie's efforts were commendable, but it also correctly
focused on whether those changes demonstrated that Valerie was now capable
of parenting Maureen. On the issue of Valerie's ability to parent Maureen, the
court found that there were still several critical deficiencies. The court found
that Valerie had not demonstrated that she was in a housing situation that would
allow her to care for Maureen outside an institutional setting . The court also
found that while Valerie had demonstrated a period of sobriety, she was still
vulnerable to relapse.
Concerning the report from Dr. Brown, the family court evaluated the
report and found that it was outdated and did not provide any insight into
whether Valerie could care for Maureen. So, the family court rejected Dr.
A-0360-23 15 Brown's opinion that Valerie had the ability to care for a disabled child with
significant medical needs. Based on those findings, the family court concluded
that Valerie had not met her burden of showing a sufficient change of
circumstances to support her request to vacate the judgment.
Our review of the record establishes that the family court's factual findings
are supported by substantial, credible evidence. Moreover, we discern no abuse
of discretion in the family court's decision not to vacate the judgment
terminating Valerie's parental rights to Maureen.
B. The Best Interests of the Child.
Valerie also argues that the judgment should be vacated under Rule 4:50-
1(f) because she demonstrated a willingness to accommodate Maureen's medical
needs and because Maureen had not yet been adopted. Accordingly, Valerie
asserts that there were "truly exceptional circumstances" justifying vacation of
the judgment.
The family court found that Valerie's plan for caring for Maureen was not
sufficiently specific and that there were too many uncertainties to justify
vacating the termination of her parental rights. The court correctly focused on
Maureen's best interests. While acknowledging that Maureen had not yet been
adopted, the court found that Maureen was now with a family that could care for
A-0360-23 16 her special medical needs and hopes to adopt her. The court's findings
concerning Maureen's best interests are also supported by substantial, credible
evidence in the record. Maureen has spent most of her life in the long-term care
unit of a specialized hospital. She is now finally with a family that has the
ability and training to care for her special needs. Most importantly, as the family
court found, the resource family that is willing to adopt Maureen will provide
her with love, support, and permanency. So, we discern no abuse of discretion
in the family court's findings concerning Maureen's best interests.
C. Due Process and Fundamental Fairness.
Finally, Valerie argues that due process and fundamental fairness require
either a reversal of the order denying her motion to vacate the judgment
terminating her parental rights or, in the alternative, a remand for further
proceedings. In making this argument, Valerie relies on three contentions: (1)
both the family court and this court had previously told her she could renew her
Rule 4:50-1 motion "if she proved she had rehabilitated herself and [Maureen]
had not yet been adopted"; (2) the family court's procedures were inadequate,
particularly because the court failed to address her request for a comparative
bonding evaluation; and (3) the family court applied the incorrect standard
A-0360-23 17 because it considered Maureen's "better interests" rather than her "best
interests."
Due process generally "requires adequate notice and a fair opportunity to
be heard." N.J. Div. of Child Prot. & Permanency v. K.S., 445 N.J. Super. 384,
390 (App. Div. 2016) (quoting Div. of Youth & Fam. Servs. v. M.Y.J.P., 360
N.J. Super. 426, 464 (App. Div. 2003)). To evaluate whether a parent was
"afforded procedural due process in a termination proceeding," courts apply the
balancing test articulated by the United States Supreme Court in Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976). K.S., 445 N.J. Super. at 390-91. That
test weighs (1) the private interest affected; (2) "the risk that there will be an
erroneous deprivation of the interest through the procedures used, and the
probative value, if any, of additional or substitute procedural safeguards" ; and
(3) the governmental interests involved and the burden any additional procedural
demands would impose. Id. at 391 (quoting M.Y.J.P., 360 N.J. Super. at 465).
New Jersey courts have recognized that in termination proceedings, "'the private
interest affected is commanding'" because "a parent's private interest in
maintaining some relationship with his or her children is 'far more precious than
any property right.'" Ibid. (first quoting Santosky v. Kramer, 455 U.S. 745, 758
A-0360-23 18 (1982); and then quoting In re Adoption of a Child by J.E.V., 442 N.J. Super.
472, 481 (App. Div. 2015)).
"The doctrine of fundamental fairness 'serves to protect citizens generally
against unjust and arbitrary governmental action, and specifically against
governmental procedures that tend to operate arbitrarily.'" State v. Saavedra,
222 N.J. 39, 67 (2015) (emphasis omitted) (quoting Doe v. Poritz, 142 N.J. 1,
108 (1995)). Courts view the doctrine as part of due process. Ibid. "The
doctrine is applied 'sparingly' and only where the 'interests involved are
especially compelling'; if a [party] would be subject 'to oppression, harassment,
or egregious deprivation,' it is to be applied." Ibid. (quoting Doe, 142 N.J. at
108).
There has been no denial of due process concerning Valerie's right to
renew her motion. Indeed, Valerie was allowed to renew her motion, and the
motion was fully and fairly considered. No court previously stated or held that
Valerie's motion would be granted if renewed; rather, in denying the motion that
she made in 2019, the family court, as well as this court, gave her the opportunity
to renew the motion if there were additional changes of circumstances and if
Maureen still had not been adopted. On her second motion, Valerie was given
all the process that she was due because the motion was fully and fairly
A-0360-23 19 considered based on the facts and circumstances. In short, due process did not
require that Valerie's motion be granted; rather, it only required that she be given
a full and fair opportunity to be heard.
The family court's refusal to order a bonding evaluation was also not a
violation of due process or fundamental fairness. Bonding evaluations are
generally required in termination proceedings. See N.J. Div. of Youth & Fam.
Servs. v. R.G., 217 N.J. 527, 559 (2014) (explaining that in seeking to terminate
parental rights, the State "should" offer testimony from an expert who had the
opportunity to evaluate the child's relationship with the child's birth parents and
the child's foster parents). In this case, however, the bond between Valerie and
Maureen had been severed before she voluntarily terminated her parental rights
in 2017. Following the abuse and neglect that occurred in 2013, Maureen had
been in the care and custody of the Division. While Valerie visited Maureen
after she was released from incarceration, there was no evidence that a parental
bond existed after 2017. We also note that, to the extent that Valerie had re-
established a relationship with Maureen, it was a relationship based on periodic
visitation. The family that is now seeking to adopt Maureen is willing to allow
Valerie to continue regular communication with Maureen. Consequently, we
A-0360-23 20 discern no reversible error in the family court's failure to order a bonding
evaluation given the circumstances of this case.
Finally, we reject Valerie's contention that the family court improperly
considered Maureen's "better interests" rather than her best interests. The family
court correctly applied the two-prong test in evaluating Valerie's change of
circumstances and Maureen's best interests. Although the court stated that
Maureen's "interests are better-served by continuing a path of permanency and
stability" with the resource family, the court was clearly focused on Maureen's
best interests. The family court did not conclude that the resource family could
provide a better upbringing for Maureen than Valerie could provide for her.
Instead, properly focusing on Maureen's best interests, the court found that the
resource family was Maureen's best option for living in a loving home setting
rather than returning indefinitely to an institutional setting while Valerie tried
to obtain appropriate housing, medical training, and supervision for Maureen.
In short, the record fully supports that Maureen's best interests are served by
denying Valerie's motion to vacate the judgment and allowing Maureen to be
adopted.
Affirmed.
A-0360-23 21