NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.D IN THE MATTER OF THE GUARDIANSHIP OF M.D., A.D. and A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2491-09T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.D.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

M.D., A.D. and A.D.

Minors.

_________________________________________________

September 13, 2010

Submitted August 31, 2010 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth

County, FG-13-59-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney

for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Deirdre C. Fichter, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor children,

Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, M.D., the father of sons A.J.D., born March 17, 1993, M.A.D., born November 26, 1996, and A.I.D., born May 4, 1998, appeals from the denial on December 11, 2009 of his motion, pursuant to Rule 4:50-1, to vacate an identified surrender of his parental rights over the three boys, entered in open court on May 20, 2009. On appeal, M.D. argues that the motion judge improperly applied Rule 4:50-1 when denying his motion and that the judge failed to adhere to appropriate procedural safeguards when accepting the surrender, thereby violating M.D.'s due process rights. We affirm.

I.

The record in this matter establishes that, on June 16, 2004, a Title 9 action was filed by the Division of Youth and Family Services (DYFS) against M.D. arising from his alleged corporal punishment of A.J.D. and the child's alleged month-long confinement to the residence's bathroom. On September 30, 2004, M.D. pled guilty to one count of second-degree endangering the welfare of A.J.D., as amended to a crime of the third degree, N.J.S.A. 2C:24-4a. M.D. was sentenced to two years of probation in a judgment of conviction that also contained a no contact provision applicable to all three children. At the time, A.J.D. was eleven years of age; M.A.D. was almost eight; and A.I.D. was six.

On September 19, 2005, the Title 9 action was dismissed in connection with the filing of a Title 30 guardianship complaint. Following a psychological evaluation of M.D., on November 21, 2005, the Title 9 action was reinstated. However, a permanency hearing was conducted in the period between May 15, 2006 and August 24, 2007, on which date the judge set a permanency goal of termination of parental rights.

On September 5, 2007, a second guardianship complaint was filed. Upon completion of his probationary period, M.D. petitioned for and, on April 17, 2008, was granted supervised visitation with his children, whom he had not seen since June 2004, although A.J.D. was not required to attend visitation unless he wished to do so. Supervised visitation occurred for six months from April 2008 until September 17, 2008. However, M.D. did not attend supervised visitation from that date to May 20, 2009, despite the fact that time for such visitation was kept open by DYFS.

A guardianship trial commenced on October 20, 2008 and continued on January 7, 2009, February 23 and 25, 2009, May 19, 2009 and May 20, 2009. M.D. attended trial by telephone on October 20 and in person on January 7 and May 20. He was absent on the three remaining days of trial.

On May 20, following extended conferences between M.D. and his attorney and the prospective adoptive parent, M.D.'s sister, M.D. made a voluntary surrender of his parental rights to the three boys in favor of his sister, B.D. A judgment of guardianship was entered that day. Thereafter, on September 15, 2009, M.D. notified the trial court that he wished to file a motion to stay the adoption of the boys by B.D. and to vacate his surrender and resume the termination trial. A hearing was held on September 22, 2009, and at that time, a stay was denied by the judge, who held that M.D. had failed to meet the factors of Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982), having failed to present a credible record in support of his informal request. The judge then established a schedule for briefing and a hearing on M.D.'s Rule 4:50-1 motion.

At that hearing, which occurred on December 11, 2009, M.D. argued that at the time he agreed to the identified surrender, the boys were hostile to their father. However, after the surrender, he had been offered the opportunity to visit with the two younger children under the supervision of their aunt, and he had done so on approximately four or five days in July 2009. After that, supervised telephone contact with all three boys had occurred, and as a result, the relationship between M.D. and the boys had "dramatically improved." M.D. claimed that if DYFS had "employed reasonable efforts in contact and counseling with my sons prior to my surrendering my parental rights, my relationship with my sons would have been very different and substantially more positive." M.D. further certified that it had taken very little time to achieve a break-through in the relationships, and "[i]f such a break-through had been made prior to my surrendering, I would not have entered into the voluntary surrendering on May 20, 2009."

The attorney for the children opposed the motion, expressing the children's position that they wished to be adopted by their aunt, who had afforded them the stability and permanency that they had been seeking for five years. Counsel also sought to counter M.D.'s argument regarding the efforts of DYFS by noting that M.D. had failed to attend supervised visitation with his sons in the eight months before his identified surrender took place. Counsel for DYFS argued similarly, stressing that at this point, the permanency of adoption was in the children's best interest. The Court Appointed Special Advocate for the children acknowledged that, because of the security and stability provided to the children by their aunt, the children were open to sporadic communication with their father. However, the boys had not expressed their desire to anyone that the permanency plan should be changed and that they were, in their minds, "home for good."

Following argument, the judge determined that M.D. had failed to demonstrate grounds for relief pursuant to Rule 4:50-1. In doing so, the judge focused on Rule 4:50-1(f) as providing the only potential grounds for the relief that M.D. sought. In rejecting M.D.'s position, the judge stated:

What is proffered as the reason, for me, is not a reason at all. It is what I would call a ripple in a pond. There is no basis, whether you look on it legally, whether you look upon it equitably, for the Court to set aside the identified surrender. it was a freely arrived at choice. And it was a choice that clearly spoke to a decision that had implicit in it, either being offered by [M.D.] and validated by the court, that it was in . . . each of these three boys' interest that it occur. I will not set it aside.

On December 22, 2009, the boys were adopted by their aunt. This appeal followed on January 27, 2010.

II.

On appeal, M.D. for the first time raises the argument that his decision to surrender his parental rights was premised on a mistake of fact regarding the existence of an irreparable breach in his relationship with his boys and, upon determining to the contrary that the breach could be mended, M.D. was entitled to relief pursuant to Rule 4:50-1(a), providing relief on grounds of "mistake, inadvertence, surprise, or excusable neglect," or pursuant to Rule 4:50-1(b), providing relief on the grounds of "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been [previously] discovered . . . ." We find these provisions inapplicable. The Court has held that the "mistake" contemplated by subsection (a) is one "'that a party could not have protected against.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 263 (2009) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996) (citing Thompson v. Kerr-McGee Ref. Corp., 660 F.2d 1380, 1384-85 (10th Cir. 1981), cert. denied, 455 U.S. 1019, 102 S. Ct. 1716, 72 L. Ed. 2d 137 (1982)). Here, the "mistake" resulted in large measure from M.D.'s own conduct in failing to attend visitation. Grounds for relief under subsection (b) is likewise unavailable, because evidence of a thawing of M.D.'s relationship with his sons could have been obtained prior to the termination of the guardianship proceeding if contact with the boys had been maintained. Id. at 264.

We thus address Rule 4:50-1(f), which permits a judgment to be vacated for "any other reason justifying relief from the operation of the judgment or order." In the similar context of a motion to vacate an order terminating parental rights, the Court has observed:

In applying subsection (f) we have stated that "[t]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." [Housing Auth. v. Little, 135 N.J. 274, 286 (1994)] (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)) . . . . Similar to subsection (e), because of the importance in the finality of judgments, relief under subsection (f) is available only when "truly exceptional circumstances are present." Housing Auth., supra, 135 N.J. at 286 (citing Baumann v. Marinaro, 95 N.J. 380, 395 (1984) (emphasis added). Regardless of the basis, vacation of a judgment under Rule 4:50-1 should be granted sparingly. Pressler, Current N.J. Court Rules, comment 1.1 on R. 4:50-1 (2001).

[In re Guardianship of J.N.H. 172 N.J. 440, 473-74 (2002).]

The Court noted that in deciding a Rule 4:50-1 motion, "the need to achieve equity and justice always is balanced against the state's legitimate interest in the finality of judgments." Id. at 474 (citing Manning Eng'g, Inc. v. Hudson County Park Comm'n, 74 N.J. 113, 120 (1977) and C.R. v. J.G., 306 N.J. Super. 214, 242 (Ch. Div. 1997)). Most significantly, the Court further held: "Where the future of a child is at stake, there is an additional weight in the balance: the notion that stability and permanency for the child are paramount." Id. at 474-45 (citing In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999)). The Court continued: "Thus, in determining a Rule 4:50 motion in a parental termination case, the primary issue is not whether the movant was vigilant in attempting to vindicate his or her rights, or even whether the claim is meritorious, but what effect the grant of the motion would have on the child." Id. at 475.

In discussing the passage of time before the filing of a Rule 4:50-1 motion, the Court stated:

[W]e recognize 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. It goes without saying that a completed adoption would constitute an additional heavy weight against Rule 4:50 relief.

[Ibid.]

See also New Jersey Div. of Youth & Family Serv's v. T.G., ___ N.J. Super. ____ , 2010 N.J. Super. LEXIS 137 (App. Div. 2010) (applying J.N.H. in an appeal from the denial of a motion to vacate a voluntary surrender of parental rights and judgment of guardianship).

Applying the principles established by the Supreme Court to the present matter, we affirm the order of the motion judge denying M.D.'s Rule 4:50-1 motion. Although M.D. may have reconciled with his children, there is no evidence in the record that the children wish to return to him permanently or that it is in their best interest to do so. The children now range in age from twelve to seventeen. Each expressed a preference to the judge to be adopted by B.D. The motion judge was required to consider such preferences in making his determination. Cf. N.J.S.A. 9:2-4c (in making an award of custody, the judge should consider "the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision"); Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984) (when a judge must determine which parent will have full-time supervision of a child, the desires of the child must be taken into account and given due weight if the child is of sufficient age to reason), certif. denied, 99 N.J. 243 (1985); S.M. v. S.J., 143 N.J. Super. 379, 385-86 (Ch. Div. 1976) (a twelve-year-old child was old enough to express a rational judgment as to her custodial preference that the judge would consider).

Moreover, both the attorney for the children and the Special Advocate recommended denial of M.D.'s motion and completion of the adoption proceedings as a means of furthering the children's best interest by finally achieving permanency a primary goal in prolonged cases such as this. See New Jersey Div. of Youth & Family Serv's v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (noting, as a result of federal legislation and amendments to N.J.S.A. 30:4C-15, that the focus of the best interests test has shifted "from protracted efforts for reunification with the birth parent to an expeditious, permanent placement to promote the child's well-being."), certif. denied, 180 N.J. 456 (2004); N.J.S.A. 30:4C-53.1 (expressing legislative goal of permanency). We agree that, in denying M.D.'s motion, the judge acted properly to further the boys' best interests. M.D. failed to demonstrate the exceptional circumstances required for a contrary ruling.

III.

In this matter, M.D. surrendered his parental rights to his three sons as authorized by N.J.S.A. 30:4C-23. On appeal, he challenges that surrender, claiming that the motion judge failed to adhere to appropriate procedural safeguards when accepting it. In support of his argument, M.D. claims only that "[a]ll of the questions put to M.D. at the surrender hearing were the usual ones asked to protect the record. To each of these mechanical questions, appellant mechanically answered 'yes.'"1

We reject M.D.'s argument. Our review of the record in this matter satisfies us that due process was afforded to him by the motion judge. The record reflects that, prior to entering into the surrender, M.D. had discussed the matter with both his counsel and his sister. Under the judge's questioning, M.D. disclosed that he had college, trade school and technical school education, and that he was employed in the field of telecommunications. He stated that he was not under the influence of drugs, alcohol or prescribed medications and was capable of making a rational and clear-thinking decision. M.D. stated that he recognized that he had a right to allow the termination trial to continue, and if the surrender were accepted, the trial would end. He confirmed that no one had placed him under physical mental, emotional or undue financial pressure to make his decision. He identified the person to whom the identified surrender was being made. He stated that he was satisfied that the decision to surrender the children was in their best interests and he stated to the judge that he had no questions regarding the proceeding that was taking place. M.D. also confirmed that he understood that, once the surrender was entered, his sister had sole control over his access to the children.

When questioned by his attorney, M.D. further confirmed that any agreement between M.D. and his sister with respect to visitation was not legally enforceable. Additionally, he confirmed that he understood that an elevated clear and convincing standard applied to the termination proceeding that would end prematurely as the result of his surrender. After M.D. also expressed his understanding that his surrender was revocable if his sister did not adopt the children, the judge ruled, stating that evidence clearly and convincingly demonstrated that M.D. had made a voluntary and knowing decision to enter into an identified surrender.

At the December hearing on M.D.'s motion to vacate the surrender, his counsel stated without contradiction that M.D. was not claiming inadequate representation by counsel or that he "didn't really understand what he was doing." Additionally, M.D. does not claim fraud, duress, or misrepresentation by DYFS. Cf. N.J.S.A. 9:3-41a (governing surrenders pursuant to Title 9 and grounds for vacation).

In the circumstances we have outlined, we find no evidence that M.D.'s due process rights were violated. Div. of Youth & Family Serv's v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2002), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004); T.G., supra, ___ N.J. Super. at ___, 2010 N.J. Super. LEXIS at *20-21.

1 M.D.'s remaining arguments in this section of his brief pertain to the merits of the judge's decision, which we have previously discussed.