NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.T.G and A.R.B IN THE MATTER OF THE GUARDIANSHIP OF J.R.B., Minor

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5049-06T43307-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.T.G.,

Defendant-Appellant,

and

A.R.B.,

Defendant.

_____________________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

J.R.B., Minor.

______________________________________________

 

Submitted September 29, 2008 - Decided

Before Judges Carchman and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-16-07.

Adinolfi and Spevak, attorneys for appellant (Alexis M. Solomon, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor J.R.B. (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

The Division of Youth and Family Services (Division) brought this action seeking the termination of the parental rights of defendants, J.T.G. and A.R.B., to their daughter, J.R.B., born December 29, 2004. On January 30, 2008, J.T.G. and A.R.B. executed voluntary identified surrenders of their parental rights so that J.R.B. could be adopted by her maternal grandparents. Following testimony, Judge Schlosser rendered an oral decision and entered judgment in favor of the Division.

Defendant filed this appeal after the maternal grandparents denied his request for parenting time. He contends that his identified surrender should be revoked because he executed the surrender while under duress. He claims that his attorney informed him that the judge was going to arrest him and place him in jail if he did not comply with the Division's request and that he was assured that he would continue to have contact with his daughter. We affirm.

J.R.B. was born two months premature and tested positive for heroin at birth. She remained in the hospital for several weeks, suffering the effects of heroin withdrawal. The Division obtained custody of the child and placed her in her maternal grandparents' home after discharge from the hospital.

The court initially approved concurrent plans of reunification with A.R.B. or J.T.G. or kinship legal guardianship with the maternal grandparents. However, because of J.T.G.'s substantial substance abuse history, reunification with him was contingent on his successful completion of a substance abuse program and his remaining drug free. He failed at both endeavors, resulting in the filing of the guardianship complaint on January 31, 2007.

Trial began on January 30, 2008. After opening statements, A.R.B. executed a voluntary identified surrender and agreed to testify. After a recess, J.T.G. executed a voluntary identified surrender. He testified on direct examination that he intended to execute an identified surrender to J.R.B.'s maternal grandparents, that he executed the identified surrender of his own will, that his attorney fully explained the legal ramifications of the identified surrender and the termination of his parental rights, that he understood what would happen with an identified surrender, that he believed an identified surrender was in J.R.B.'s best interests and that no one coerced him into surrendering his parental rights. J.T.G. also acknowledged that he was taking two prescription medications at the time but had not consumed any alcoholic beverages. On cross-examination, J.T.G. admitted that his surrender was irrevocable and permanent and that he could not enforce any further contact with his daughter.

In response to the judge's questions, J.T.G. admitted that no one promised him anything in exchange for identified surrender, that he understood he was making an identified surrender to the maternal grandparents, that he was not under the influence of anything and that he was "absolutely" able with the medication he was taking to think clearly and to make a rational decision. J.T.G. also admitted that he spoke at length with his attorney and was satisfied with her legal advice and that he was satisfied the surrender was in his daughter's best interest. He further acknowledged that if the judge accepted his and A.R.B.'s identified surrenders, his parental rights would be terminated and his daughter would be adopted by her maternal grandparents. J.T.G. also acknowledged he had a right to a trial and waived that right by agreeing to the identified surrender.

Based upon J.T.G's testimony, Judge Schlosser found as follows:

THE COURT: Okay. [J.T.G.], I'm satisfied that you understand what you're doing. You're doing it knowingly and voluntarily. You've done it without being coerced, threatened, forced. No one's made any specific promises to you to get you to do it, so I'm satisfied it's truly voluntary. You're not under the influence of any drugs or medicine other than those prescribed to you and none of which would impact on your ability to make a good, well-reasoned decision. And, I'm pretty much repeating the answers to your questions.

And, you have discussed this issue with your attorney and I believe and [you will] correct me if I'm not right, you've discussed this with your own mother who has been in Court, and as a result you have come to the conclusion that this is the appropriate thing to do?

[J.T.G.]: Yes.

J.T.G. previously never raised the duress claim until this appeal. Ordinarily, we will "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concerns matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); R. 2:6-2. Also, we may not consider claims raised outside the record. Ibid.; R. 2:5-4. We also decline to exercise original jurisdiction where, such as here, the record does not clearly indicate that J.T.G. was under duress or that his duress claim has merit. Huster v. Huster, 64 N.J. Super. 29, 34 (App. Div. 1960).

Nevertheless, based upon our careful review of the record we conclude that J.T.G.'s duress claim lacks merit. To be sure, J.T.G. has submitted no certification from his attorney corroborating his alleged fear of being jailed or the alleged assurance of continued contact with his daughter. We are satisfied that J.T.G. knew he could not enforce future contact with J.R.B., that he gave his identified surrender freely, voluntarily, understandingly, without coercion or threats, with the advice of counsel and with clear knowledge of the consequences, Sorentino v. Family and Children Soc. of Elizabeth, 72 N.J. 127, 130-31 (1976); In re Adoption of a Child by R.D., 127 N.J. Super. 311, 314 (App. Div.), certif. denied, 65 N.J. 292 (1974), and that he knew the identified surrender was irrevocable, N.J.S.A. 9:2-16; N.J.S.A. 30:4C-23.

We acknowledge our authority to remand for a hearing or to decide this case on the merits. We choose the latter because the record demonstrates no duress.

Affirmed.

A.R.B. does not seek to revoke her surrender and does not participate in this appeal.

(continued)

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7

A-3307-07T4

RECORD IMPOUNDED

October 8, 2008