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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1627-17T4
NEW JERSEY DIVISON OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.L.,
Defendant-Appellant,
and
B.K.,
Defendant. ____________________________
IN THE MATTER OF THE GUARDIANSHIP OF S.L.,
a Minor. ____________________________
Submitted October 23, 2018 – Decided December 4, 2018
Before Judges Yannotti and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0002-17.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Salima E. Burke, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd S. Wilson, Designated Counsel, on the brief).
PER CURIAM
A.L. appeals from an order of the Family Part dated November 15, 2017,
which denied her motion to vacate the identified surrender of her parental rights
to the minor child, S.L. We affirm.
I.
A.L. is the mother of S.L., who was born in October 2011. The Division
of Child Protection and Permanency (Division) became involved with the family
two days after S.L.'s birth, when the Division learned A.L. had tested positive
for opiates. The Division investigated the report. A.L. admitted she had taken
prescribed opiate pain medication and had a history of abusing alcohol. Upon
completion of its investigation, the Division determined that the allegations of
A-1627-17T4 2 neglect were unfounded; however, the Division kept the case open for services.
In December 2011, after a random drug screen, A.L. tested positive for opiates.
In February 2012, a paternity test established that B.K. was S.L.'s biological
father. In February 2013, the Division closed the case.
In June 2013, the Division received a report from a local police
department indicating concerns for S.L.'s safety and welfare. The report noted
that A.L. was a known alcoholic, and that A.L. left the child alone for twenty
minutes in a motel room, while she sat in a car in the parking lot with a friend.
In July 2013, the Division received a report from another local police
department, advising the Division of concerns about the child's safety and
welfare. It appears that A.L. and the child were staying with A.L.'s parents.
According to the report, the police had responded to the home because A.L.'s
grandfather was intoxicated and making homicidal threats against A.L.'s
grandmother. The report noted that A.L. had been intoxicated.
A Division worker investigated the report. A.L. told the worker she had
been sober for some time, but she had recently relapsed. The worker asked A.L.
where the child was when she was drinking. She did not reply. The worker saw
no immediate safety concerns, but implemented a temporary safety protection
plan for the child.
A-1627-17T4 3 A.L.'s grandmother agreed to supervise A.L.'s care of the child that
evening. The following day, the Division's case manager and an individual who
handles domestic violence visited the home unannounced. According to the case
manager, A.L. appeared intoxicated and became hysterical at the thought S.L.
might be removed from her care. The Division's workers suggested that A.L.'s
grandmother seek a domestic violence restraining order, but she refused.
The Division decided that it could not permit S.L. to remain in the home
due to concerns about the grandfather's alcohol abuse. A.L.'s grandmother
indicated that she could not care for S.L., and she did not want A.L. in her home.
She also did not know of any other family members who might be available to
care for S.L. At the time, B.K. was apparently homeless.
The Division conducted an emergency removal of S.L., and on July 8,
2013, filed an order to show cause and verified complaint in the Family Part
seeking care, custody, and supervision of S.L. On that date, the court granted
the Division's application. On September 18, 2013, the court conducted a fact-
finding hearing and A.L. stipulated she had abused or neglected the child. She
admitted she had ingested a substantial amount of alcohol and became highly
intoxicated while caring for S.L., who was then twenty-one months old.
A-1627-17T4 4 Thereafter, the Division provided A.L. and B.K. with an array of services.
In June 2014, the trial court conducted a hearing and approved the Division's
permanency plan, which called for reunification of S.L. and A.L. In July 2014,
the court approved the return of S.L. to A.L.'s care, and the Division closed the
case several months later.
In October 2015, the Division received a report that A.L. had been abusing
alcohol during the previous three to four weeks, and was in the hospital for
detoxification. The Division investigated the report and learned that the police
had responded to A.L.'s home in September and October 2015, because of A.L.'s
intoxication.
The Division also learned that since sometime in September 2015, S.L.
had been staying with A.L.'s maternal great aunt, and A.L. had been in hospitals
numerous times due to her alcohol abuse. On October 16, 2015, a Division
worker went with a police escort to meet A.L. at her mother's residence. A.L.
appeared to be intoxicated. Several days later, the local police reported that
A.L. had been intoxicated and had gotten in a verbal dispute with her
grandmother.
On October 23, 2015, the Division filed an order to show cause and a
verified complaint in the Family Part, seeking care, custody and supervision of
A-1627-17T4 5 S.L. The court granted the Division's application, and the Division again placed
S.L. with T.E. In November 2015, the Division found that the allegations of
abuse and neglect stemming from the October 2015 report were not
substantiated because A.L. had arranged to have her great aunt care for the child
when she was not capable of doing so.
The Division continued to provide A.L. services with the goal of
reunification. The services included random urine screens, substance abuse
evaluations, and treatment referrals. However, from November 2015 to
Feb.ruary 2016, A.L. continued to abuse alcohol. A.L. also was hospitalized
due to alcohol consumption, and she missed several scheduled visits with S.L.
On February 4, 2016, the court suspended all visitation until A.L. fully engaged
in substance abuse treatment.
In April 2016, the court conducted a hearing and approved the Division's
new permanency plan, which called for termination of A.L. and B.K.'s parental
rights to S.L., followed by adoption. On July 1, 2016, the Division filed its
guardianship complaint.
The court scheduled the matter for trial in March 2017. About two weeks
before the scheduled trial date, A.L. requested a hearing so that she could
A-1627-17T4 6 execute an identified surrender of her parental rights to S.L. so that T.E. could
adopt the child.
On February 21, 2017, A.L. completed the "Voluntary Surrender of
Parental Rights Form" and testified in court that she wanted T.E. to adopt S.L.
She stated that she believed this decision was in the child's best interests. A.L.
told the judge her decision to surrender her parental rights was voluntary, and
she had accurately answered the questions on the form.
At the hearing, the judge questioned A.L. concerning the surrender of her
parental rights. In response to the judge's questions, A.L. testified that she had
engaged in conversations with her attorney concerning the concept of surrender,
that counsel had answered all of her questions, and that she had sufficient time
to consider her decision.
A.L. also stated that she understood her surrender would be final and that
her parental rights would only be reinstated if T.E. could not adopt S.L. She
further testified that she understood any promises T.E. made indicating she
could maintain contact with S.L. would be unenforceable. A.L. told the judge
she was making her decision willingly, freely, and voluntarily, and she was not
being forced, threatened or coerced.
A-1627-17T4 7 The judge found that A.L.'s surrender of her parental rights was knowing
and voluntary. The judge later conducted a trial on the Division's complaint
seeking termination of B.K.'s parental rights to S.L. The judge found the
Division had established the four prongs of the test in N.J.S.A. 30:4C-15.1(a)
for termination of B.K.'s parental rights.
On March 20, 2017, the court entered a judgment of guardianship
terminating A.L. and B.K.'s parental rights to S.L. for purposes of adoption by
T.E. B.K. passed away sometime later. The court scheduled S.L.'s adoption for
November 16, 2017. On November 10, 2017, A.L. filed a motion to vacate her
surrender of parental rights.
On November 15, 2017, the judge conducted a hearing on the motion, and
A.L. testified under oath. A.L. stated that she was about to complete an intensive
alcohol abuse treatment program. She claimed she regularly attends meetings
of Alcoholics Anonymous, and has a sponsor and support network. She asserted
that she has spoken each week with S.L., and could not "live knowing that" T.E.
could preclude her from communicating with the child.
A.L. also stated she never gave up on having S.L. returned to her, and she
was now in a position to parent the child. She asserted that she has a full-time
job, she made a deposit for her own home, and her driver's license would soon
A-1627-17T4 8 be restored. A.L. claimed she had signed the surrender-of-parental-rights form
under duress.
A.L. stated that she had "felt intimidated" when she signed the form, and
had been coerced into doing so. She told the judge she "made a poor decision,"
and her attorney did not represent her "properly." She claimed her attorney
advised her she might never see S.L. again if she went forward with the trial.
She also claimed the Division's caseworker told her "that parents usually give
up their rights at this point," and that the caseworker would be "against" her at
trial.
A.L. stated that the caseworker stated that if she voluntarily surrendered
her parental rights, she would have her daughter "in [her] life" and she would be
able to see her whenever she wanted to. She asserted that the caseworker told
her she could call the child, take her to the movies, and have her for weekends.
According to A.L., the caseworker stated that if she went to trial, she "would
surely lose" S.L., and she might never see her daughter again.
A.L. further testified that she was under the influence of Percocet on the
day she surrendered her parental rights. She stated that when the judge had
asked her if she was under the influence of any drugs, prescription medications,
A-1627-17T4 9 or alcohol, she replied "no" because she was upset. She claimed she was focused
on avoiding alcohol, and she took medication that had been prescribed.
The judge placed his decision on the record. The judge found there was
no support in the record for A.L.'s claim that she surrendered her parental rights
to S.L. due to coercion, duress, or fraud. The judge noted that at the hearing on
the surrender, A.L. testified that she made the decision voluntarily, and under
her own will. She had denied that she executed the surrender-of-parental-rights
due to coercion, threats, pressure, force, or promises.
The judge pointed out that he had questioned A.L. to confirm that she
understood her decision, including the fact that she "would have no legal or other
right to any contact with the child in the future." The judge noted that A.L.
confirmed her understanding of the surrender. The judge also noted that he
asked A.L. if she was "under the influence of drugs, alcohol, or prescription
medication [that] has affected [her] ability to make a clear decision." She
replied, "No, I am not."
The judge added that when A.L. agreed to surrender her parental rights,
she told the court she understood what she was doing. She stated under oath
that she had spoken with her attorney before the hearing, and counsel had spent
A-1627-17T4 10 sufficient time with her, answered her questions, and provided her with
satisfactory advice. The judge found:
[A.L.] had every opportunity to tell the [c]ourt then what you're saying now, nine months later, almost three quarters of a year after you gave your surrender, on the eve of the child's adoption, a child who is entitled to permanency. You've come to the [c]ourt the day before [the adoption] to now ask that this all be erased, for information that was in your control at the time that you did not share with the [c]ourt. Why, I [do not] know, but [there is] nothing to corroborate what you're now claiming . . . was the case when you gave all of the answers that I just went through.
The judge entered an order denying the motion for reasons set forth on the
record. This appeal followed.
II.
On appeal, A.L. first argues that the trial court erred by denying her
motion for relief from the identified surrender of parental rights pursuant to Rule
4:50-1(f). We disagree.
Rule 4:50-1 permits a court to grant a party relief from a final judgment
or order for several reasons:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic),
A-1627-17T4 11 misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
A trial court's decision under Rule 4:50-1 should be given "substantial
deference," and will not be reversed unless shown to be "a clear abuse of
discretion." US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012); see
also DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009); Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 283 (1994).
Here, A.L. argues the trial court should have granted her relief under Rule
4:50-1(f). "[R]elief under subsection (f) is available only when 'truly
exceptional circumstances are present.'" In re Guardianship of J.N.H., 172 N.J.
440, 473 (2002) (quoting Little, 135 N.J. at 286). To determine whether a party
has shown exceptional circumstances for relief under Rule 4:50-1(f), the court
must consider the totality of circumstances. Id. at 474 (citing Baumann v.
Marinaro, 95 N.J. 380, 395 (1984)).
In matters involving the termination of parental rights, "[t]he judgment
under review uniquely affects the rights of the parent and also [has an impact
A-1627-17T4 12 upon] the life of the child who is the object of the guardianship." Div. of Youth
& Family Servs. v. T.G., 414 N.J. Super. 423, 434 (App. Div. 2010). To warrant
relief under Rule 4:50-1 from a judgment terminating parental rights, the movant
must show that events have occurred after the entry of the judgment, which
warrant vacating the judgment, and that relief is warranted in the best interests
of the child. Id. at 434-35 (citing J.N.H., 172 N.J. at 473).
In considering whether relief is warranted, the court must weigh "the
effects setting aside the judgment may have on the child's stability and
permanency." Id. at 435 (citing J.N.H., 172 N.J. at 474). The critical issue is
the effect that granting the motion "would have on the child." Ibid. (quoting
J.N.H., 172 N.J. at 475). This test applies to a motion to set aside a voluntary
surrender of parental rights which results in a judgment awarding guardianship
to the Division. Id. at 427, 434.
A trial court's findings of fact are binding on appeal when supported by
adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394,
411-12 (1998). Our deference to the findings of the Family Part is especially
appropriate because of that court's expertise in matters involving the family. Id.
at 412. A trial court's findings of fact "should not be disturbed unless the
findings are so wholly unsupportable as to result in a denial of justice." J.N.H.,
A-1627-17T4 13 172 N.J. at 472 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188
(App. Div. 1993)).
We are convinced there is sufficient credible evidence to support the
judge's determination that A.L. had not shown relief from the judgment
terminating her parental rights was warranted under Rule 4:50-1(f). The record
supports the judge's finding that A.L. failed to establish that relief should be
granted due to "truly exceptional circumstances." J.N.H., 172 N.J. at 473 (2002)
(citing Little, 135 N.J. at 286).
As we noted previously, the judge found that A.L. did not execute the
identified surrender of her parental rights under duress or coercion. The judge
noted that A.L.'s claim she was acting under duress was totally inconsistent with
the statements she made on the record when she surrendered her parental rights.
The judge found that A.L.'s statements at the February 21, 2017 hearing
established that A.L. had surrendered her parental rights to S.L. knowingly and
voluntarily.
The record shows that when she agreed to surrender her parental rights,
she informed the court that she had not been pressured, forced, or coerced into
making that decision. She assured the court that she had discussed the matter
with her attorney and her attorney had answered all the questions she had.
A-1627-17T4 14 Moreover, A.L. told the court her attorney had provided her with satisfactory
services. She stated she had sufficient time to consider her decision, and she
was not under the influence of any prescription medication that would affect her
judgment.
A.L. also stated that she understood she would be giving up her right to
have an ongoing relationship with S.L. The judge informed A.L. that any
promises T.E. made indicating A.L. could maintain contact with the child were
not enforceable, and T.E. could decide at any time that she was no longer willing
to allow A.L. to have contact with S.L. A.L. told the court she understood the
consequences of her decision.
A.L. claimed she was not thinking clearly when she surrendered her
parental rights because she took two Percocet tablets before the February 21,
2017 hearing. The judge found that A.L.'s claim was not credible. As noted
previously, A.L. assured the judge she was not under the influence of any
medication when she surrendered her parental rights.
We conclude the record supports the judge's finding that A.L. failed to
show she established a basis for relief under Rule 4:50-1(f). She failed to show
that she surrendered her parental rights to S.L. under duress or coercion, and did
not credibly establish she was not informed of the consequences of her decision.
A-1627-17T4 15 A.L. also failed to show that relief was warranted in the best interests of the
child. As the judge noted, the child requires permanency, and there was no basis
to delay the adoption.
In this regard, we note that at the guardianship trial, the expert testimony
established that S.L. had close bonds with her resource parent and would suffer
enduring psychological harm if removed from her care. The expert testimony
also showed that S.L. requires permanency to avoid long-term harm to her
psychological development.
III.
A.L. further argues the order denying her motion for relief from the
judgement should be reversed in the interests of due process and fundamental
fairness. A.L. contends the trial court was required to conduct a plenary hearing
on her motion. She contends the matter should be remanded for further
proceedings. Again, we disagree.
"A parent's right to raise and maintain a relationship with his or her child
is constitutionally protected." N.J. Div. of Child Prot. & Permanency v. K.S.,
445 N.J. Super. 384, 390 (App. Div. 2016) (quoting N.J. Div. of Child Prot. &
Permanency v. N.C.M., 438 N.J. Super. 356, 367 (App. Div. 2014)). It is well-
established, however, that the parent's right is not absolute and "must be
A-1627-17T4 16 balanced against 'the State's parens patriae responsibility to protect the welfare
of children.'" N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605
(2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 294-
95 (2007)).
"Due process requires adequate notice and a fair opportunity to be heard."
N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J Super. 426, 464 (App.
Div. 2003). Due process is "a flexible concept" that "calls for such procedural
protections as the particular situation demands." Ibid. In proceedings involving
the termination of parental rights, New Jersey courts employ the balancing test
enunciated in Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), to determine
whether a parent received sufficient procedural due process. K.S., 445 N.J.
Super. at 390-91 (citing M.Y.J.P., 360 N.J. Super. at 465).
The Matthews balancing test requires consideration of three factors: (1)
"the private interest that will be affected by the official action"; (2) "the risk that
there will be an erroneous deprivation of the interest through the procedures
used, and the probable value, if any, of additional or substitute procedu ral
safeguards"; and (3) "the governmental interest involved, including the added
fiscal and administrative burdens that additional or substitute procedures would
require." Id. at 391 (quoting M.Y.J.P., 360 N.J. Super. at 465).
A-1627-17T4 17 On appeal, A.L. argues that the procedure the judge employed to consider
her motion was not sufficient to protect the interests at stake. She contends the
trial court should have conducted a plenary hearing on her claim that she acted
under duress or coercion when she agreed to surrender her parental rights. A.L.
asserts that the judge rejected her assertions regarding the alleged
representations made by A.L.'s attorney without hearing the attorney's testimony
and allowing A.L. to cross-examine him. She contends the resolution of this
important factual issue was not grounded in a full and fair consideration of the
evidence.
We are not persuaded by these arguments. The procedures that the trial
court employed in considering A.L.'s motion satisfied the applicable due process
requirements. A.L. was present at the hearing on the motion and she testified
under oath. Furthermore, the judge considered the record of the statements A.L.
made when she agreed to surrender her parental rights.
A.L. has not shown that a plenary hearing was necessary to address her
claim that she acted under duress or coercion. That claim was thoroughly
refuted by the statements A.L. made at the hearing when she surrendered her
parental rights. Moreover, a plenary hearing was not required to address A.L.'s
claim regarding statements A.L.'s attorney made to her before she surrendered
A-1627-17T4 18 her parental rights. A.L.'s claims were clearly inconsistent with the statements
she made when she agreed to the surrender.
As the record shows, when A.L. surrendered her parental rights, she was
asked whether anyone had forced, coerced, threatened or pressured her into
making this decision. She stated, "No, they didn't." She also said her attorney
had advised her and answered all of her questions. She stated that her attorney
had provided her with satisfactory services.
Affirmed.
A-1627-17T4 19