NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1250-11T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

S.D.,

Defendant-Appellant.

____________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF G.F., JR.,

Minor.

____________________________________________

November 20, 2012

Submitted October 2, 2012 - Decided

Before Judges Alvarez and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-55-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Marc D. Pereira, Designated Counsel, on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant S.D. (Sara)2 appeals from an order denying her motion to vacate her identified surrender, which terminated her parental rights to G.F., Jr. (Junior). We affirm.

I.

On appeal, the record discloses the following facts and procedural history.

Sara and Junior's father, G.F., Sr. (Grant), became involved with the Division of Youth and Family Services (DYFS) soon after the birth of Junior. DYFS attempted to work with them but they were continuously uncommunicative and unresponsive to DFYS efforts. Sara and Grant had substance abuse problems and histories with the criminal justice system.

Prior to Junior's first birthday, the court granted DYFS custody of Junior and he was placed with his paternal aunt, Sue. A permanency hearing was held, and the court determined that termination of parental rights followed by adoption was an appropriate plan. On November 30, 2010, and December 14, 2010, case management conferences were held. At the November hearing, Sara's attorney indicated that Sara was incarcerated and serving a sentence of five years. Sara told the court, "I want what's best for [Junior]. . . . Where he's at right now, I couldn't think of a better person to take care of my son right now." She further stated, "[Sue] is an amazing person. She is all my son knows right now. My son is calling her mom. . . . She's been taking care of him for so long."

At the pretrial conference on April 4, 2011, the court was advised that Sara intended to surrender her parental rights. She requested pre-surrender counseling, a good-bye visit with Junior, and to be present at trial. On April 27, 2011, Sara had her pre-surrender conference via telephone with a counselor. The counselor had trouble meeting with Sara before this date because of Sara's incarceration at the Edna Mahan facility.

At the hearing on April 27, 2011, Sara indicated that she wanted to go through with her voluntary identified surrender. The judge asked Sara if she was sure and if she would like more time to speak with her attorney. Sara declined saying she was "okay." Sara was then questioned under oath by her attorney. Sara made it clear that she was certain of her decision to surrender her parental rights, that she understood the consequences, and that she was making the decision voluntarily of her own free will. She denied that anyone forced, coerced, threatened, or pressured her into making the decision. She acknowledged her right to a trial and that DYFS had the burden of proving, by clear and convincing evidence, the termination of her parental rights. Sara said she did not need another pre-surrender counseling session but would like post-surrender counseling. When asked if she thought surrendering her parental rights was in the best interest of Junior, she said "absolutely."

Grant did not voluntarily surrender his parental rights to Junior, instead electing to go to trial. This trial took place on April 28, May 16, May 17, and May 18, 2011, and culminated in the termination of Grant's parental rights on June 28, 2011.

Several months later, on July 20, 2011, Sara filed a motion to vacate her surrender. Both DYFS and the Law Guardian opposed Sara's motion on the basis that she did not meet her burden of proving that there was fraud, duress, or misrepresentation consistent with the requirements of Rule 4:50-1. Both also argued that granting Sara's motion was not in Junior's best interest.

A hearing was held on September 22, 2011, before Judge Madelin F. Einbinder. Sara presented two reasons why the surrender should be vacated. First, she alleged that "she has been a target by DYFS." Second, she argued she "felt pressured on the day of the surrender to surrender her parental rights

. . . . [I]t was not freely and voluntarily done. She felt that DYFS misrepresented to her that she had no choice but to surrender."

The motion judge determined that Sara had "not set forth any proof of fraud, duress or misrepresentation." Therefore, Sara did not meet the burden required to grant a motion to vacate. The judge further stated that "although [Sara] has made allegation[s] of being pressured into submitting the identified surrender, no specific evidence of the same has been provided with her affidavit, nor has she referred to any specific instances or conversations that would lead to such circumstances." The motion judge therefore denied Sara's motion. The judge found that Sara's surrender was voluntarily and knowingly done.

Finally, the judge took into account the best interests of Junior, determining that "a child of such tender age would make formidable bonds with his current caregiver. And removal from her care upon [Sara's] release from prison would be detrimental and disruptive to his upbringing and development."

On appeal, Sara raises the following issues for our consideration:

I. S.D.'S IDENTIFIED SURRENDER SHOULD BE VACATED BECAUSE S.D. HAS CLEARLY DEMONSRATED CHANGED CIRCUMSTANCES AS SET FORTH IN R. 4:50-1(A)-(F) AND IT IS IN G.R.F. JR.'S BEST INTEREST TO BE REUNITED WITH HIS NATURAL BIRTH MOTHER.

A. S.D. has shown changed circumstances and equity requires that S.D.'s identified surrender be vacated because there was misunderstanding regarding the length of S.D.'s sentencing, because S.D. was harassed and pressured by DYFS to surrender her parental rights, and because S.D. has made great strides in reforming her life.

B. Vacating S.D.'s identified surrender would benefit G.R.F., J[r]. because the trial court would determine his best interests and he would be given the opportunity to return to the care of his mother.

II.

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); see also Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992). Reversal is required only in those circumstances when the trial court's findings were "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations omitted).

In our review, "we are obliged to accord deference to the trial court's credibility determinations and its 'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (quoting Cesare, supra, 154 N.J. at 411-12), aff'd in part, modified in part, 179 N.J. 264 (2004); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)); see also Cesare, supra, 154 N.J. at 412 (holding that appellate courts defer to a trial court's assessment of a witness's testimony). Accordingly, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

Rule 4:50-1 is applicable to consensual final judgments. DEG, L.L.C. v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). Generally, a motion for relief from judgment based upon the grounds specified in Rule 4:50-1 should be "granted sparingly." F.B. v. A.L.G., 176 N.J. 201, 207 (2003) (citing Pressler, Current N.J. Court Rules, comment 1.1 on R. 4:50-1 (2003)). An aggrieved party's right to relief examines the totality of the circumstances and "[t]he decision whether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity." Ibid. A "judgment will be left undisturbed 'unless it represents a clear abuse of discretion.'" Ibid. (quoting Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)).

III.

In analyzing the challenges to the judgment under review, we are guided by our opinion in N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423 (App. Div.), certif. denied, 205 N.J. 14 (2010), cert. denied, __ U.S. __, 131 S. Ct. 2925, 179 L. Ed. 2d 1255 (2011), which addressed an order denying a mother's motion to set aside her voluntary surrender of parental rights to her child. In T.G., we determined:

[t]he judgment under review uniquely affects the rights of the parent and also impacts the life of the child who is the object of the guardianship. Although the Supreme Court has affirmed that Rule 4:50-1 is the appropriate vehicle when seeking to vacate a judgment terminating parental rights, In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002), the Court specifically noted that when vacating a judgment of guardianship "the future of a child is at stake." Therefore, to succeed in attacking the judgment, a moving parent must satisfy a two-part test.

[Supra, 414 N.J. Super. at 434.]

Applying T.G., "[Sara's] motion 'must be supported by evidence of changed circumstances' as [she] 'bears the burden of proving that events have occurred subsequent to the entry of [the] judgment to justify vacating [it].'" Ibid. (quoting J.N.H., supra, 172 N.J. at 473) (internal citations omitted). "A showing of those reasons articulated under Rule 4:50-1(a) to (f) satisfies this provision." Id. at 435. Furthermore, we conclude that if DYFS failed to comply with Sara's due process protections then that could supply the necessary changed circumstances mandated by the first part of the J.N.H. test, as we articulated in T.G. Id. at 436. However, Sara must also satisfy the second part of the test in a termination case, addressing the best interest of Junior. See id. at 435. "This prong requires a weighing of the effects setting aside the judgment may have on [Junior's] stability and permanency." Ibid.

In order for Sara's surrender to be enforceable, absent proof of fraud, duress or misrepresentation, she must have knowingly and voluntarily expressed her understanding that custody of Junior would be relinquished and her parental rights terminated. In support of her argument to vacate the order, Sara claims that she felt pressured on the day of the surrender to surrender her parental rights and therefore it was not freely and voluntarily done. She also contends that she felt that DYFS misrepresented to her that she had no choice but to surrender.

We find no procedural flaws in the surrender proceeding and conclude the trial judge, in accepting Sara's surrender, complied with all necessary due process. At the surrender proceeding, Sara consulted with her attorney who was present, and thereafter stated she reviewed the voluntary surrender of parental rights form with her attorney, understood the form, and signed it. She acknowledged that she could read, write, and understand English, and that her attorney also read the form to her. She was aware of the effect of surrendering her parental rights, did not receive inducements or deals, was not under any duress or coercion, and asserted her actions were voluntary. Sara was also given the opportunity to ask questions of the court, which she declined. She had every chance to express any important concern or issue that was unclear. Accordingly, the trial judge's conclusion that Sara's surrender was knowingly and voluntarily made is supported by credible evidence in the record.

The motion judge, in her decision denying Sara's motion to vacate, found that Sara "ha[d] not set forth any proof of fraud, duress or misrepresentation" and consequently "ha[d] not met the burden required to grant a motion to vacate." Additionally, although Sara contended that she was pressured into agreeing to the surrender, the motion judge determined that "no specific evidence of same has been provided with her affidavit, nor has she referred to any specific instances or conversations that would lead to such circumstances."

It is within the motion judge's sound discretion, guided by equitable principles, to decide whether relief should be granted pursuant to Rule 4:50-1. Little, supra, 135 N.J. at 283. That decision "will be left undisturbed unless it represents a clear abuse of discretion." Ibid. The trial judge properly conducted the proceeding at which Sara voluntarily surrendered her parental rights. Consequently, we see no abuse of discretion in the motion judge's denial of Sara's motion to vacate the judgment of surrender.

Sara's arguments that her surrender is no longer equitable and relief is justified because of the alleged reformations she has made in her life is meritless. Sara argues that she has done everything in her power to become a positive role model for Junior and in light of this, "the [motion] judge clearly failed to exhibit sound reasoning by denying [her] motion to vacate her . . . surrender." Despite Sara's contentions, the alleged positive reforms she has made in her life do not warrant the vacating of her voluntary identified surrender. See R. 4:50-1.

Sara also argues that her surrender should be vacated because Rule 4:50-1(a), mistake, applies because all of the parties were acting under the presumption that she would be incarcerated for a longer period of time than turned out to be the case. This contention was not raised below and is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Based on our conclusions, "we need not examine any resultant effect upon . . . [Junior] by setting aside the judgment." T.G., supra, 414 N.J. Super. at 440. Nevertheless, we note that at the time of the motion to vacate, Junior was three years old and had been living with Sue since the age of approximately ten months. The certification from the DYFS caseworker stated that Junior is thriving, he views Sue as his mother, and he "is taken good care of." The certification also stated that Sue "works full time as a cognitive therapist. She's in the process of completing her Master's Degree in Child Psychology. She is certainly well-qualified to act as a parent to this child." Consequently, we conclude the motion to vacate the order was properly denied.

A

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 We use fictitious names in order to maintain the anonymity of the family.