NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5058-10T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.M.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.A.M.,

Minor.

____________________________________

January 29, 2013

Submitted January 9, 2013 - Decided

Before Judges Axelrad and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-115-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter Neely Milligan, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; MeredithG. Blackman,Deputy AttorneyGeneral, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant M.M. appeals from the February 1, 2012 Family Part order that denied his motion to vacate an April 4, 2011 guardianship order, which accepted the identified surrender of his parental rights to his then four-year-old son, Marty.1 Defendant argues his trial counsel, who arranged for neither psychological nor bonding evaluations, was ineffective; and the trial court erred when it denied defendant's motion to vacate the identified surrender. Having considered defendant's arguments in light of the record and applicable law, we affirm.

The Division of Youth and Family Services (the Division)2 became involved with defendant, Marty, and Marty's mother, Maureen, in October 2007, after police responded to Maureen's home, found her "out of it," and became concerned that eleven-month-old Marty may have ingested Maureen's anti-anxiety medication. After further investigation, the Division learned that defendant and Maureen had a history of domestic violence, and that defendant had completed substance abuse treatment and had twice been arrested for narcotics related charges. The Division implemented a safety protection plan requiring Marty's paternal grandmother to supervise all contact between Marty and his parents.

Three months later, in January 2008, when a Division caseworker went to the family's home to discuss a positive drug screen with Maureen, the worker found Marty unsupervised with his parents, in violation of the safety protection plan. As a result, the Division instituted an emergency removal and had Marty placed with family friends, Albert and Doris, where he has since remained, with the exception of a three-month-period when he was returned to his mother. The Division also filed a verified complaint seeking custody, care, and supervision of Marty.

Following Marty's removal, defendant underwent a psychological evaluation on February 8, 2008. The psychologist diagnosed several disorders which, in his opinion, interfered with defendant's ability to effectively parent his child and posed a significant risk of harm to the child, if left untreated.

In July 2008, when Marty was twenty months old, defendant fled to avoid a pending arrest. More than a year later, in August 2009, defendant was arrested and incarcerated. Two months earlier, in June 2009, the court had ordered that physical custody of Marty be returned to Maureen, as she had completed an inpatient substance abuse program as well as other court-ordered services. In August, however, she violated a court order prohibiting contact between defendant and Marty by staying with defendant and Marty at a motel room before defendant was arrested. When a Division caseworker learned Maureen had violated the court order, the Division filed a verified complaint under an FN docket number seeking the care and custody of Marty pursuant to Titles Nine and Thirty. As a result, Marty was returned to the care of his foster parents, Albert and Doris.

Following a disposition review hearing at which defendant and Maureen stipulated that Maureen had violated a court order prohibiting contact between defendant and Marty, and that Marty had not been provided proper supervision, the court ordered that a bonding evaluation be conducted between Marty and his foster parents. The psychologist who conducted the evaluation concluded that Marty was "strongly attached to the foster father and will suffer serious and enduring harm if not allowed to have a continued relationship with [his foster parents]."

The court also conducted a series of compliance review hearings which culminated in Maureen's identified surrender of her parental rights to Marty to his foster parents. On November 19, 2010, the Division filed a guardianship complaint seeking the termination of defendant's parental rights. The Division alleged, among other things, that defendant had failed to provide a safe, stable, and appropriate home for his son, had a history of substance abuse and criminal activity, had been diagnosed with multiple psychopathological disorders, and posed a significant risk to the child. The Division further alleged that defendant had failed to remedy any of these risk factors, and that he was facing a lengthy period of incarceration. Lastly, the Division alleged defendant had abandoned his son.

On January 14, 2011, the court simultaneously conducted a compliance review hearing in the FN matter and a pretrial conference in the guardianship action. Defendant, though still incarcerated, was present.

During the hearing, the Deputy Attorney General requested that the court dismiss the FN action, order defendant to undergo a psychological evaluation, and schedule a pretrial and trial date for the guardianship complaint. The Law Guardian questioned whether it would be appropriate to have Marty attend a bonding evaluation with his father at the jail where defendant was incarcerated. In response, defense counsel informed the court that "[g]iven the circumstances and the history I do not anticipate that I will be seeking a bonding evaluation with my client[.]" Defendant's counsel further represented that he "anticipate[d] doing a psychological evaluation on [defendant]." The attorney also agreed that the FN matter could be dismissed. The court scheduled the guardianship trial for April 1, 2011.

The parties returned to court on April 4, 2011, at which time defendant appeared with his attorney and presented to the court a "Voluntary Surrender of Parental Rights Form," which he had signed. The court verified that defendant, forty-nine years old, had received an Associates degree and understood English. The court questioned defendant and satisfied itself that defendant had voluntarily executed the surrender of his parental rights.

In response to the court's questions, defendant confirmed that he had the opportunity to discuss the surrender with his attorney, the Law Guardian, and the Deputy Attorney General, and that "everybody pretty much was pretty good and they answered everything I had to ask." Defendant acknowledged that he had the right to "pre-surrender counseling from [the Division]." He declined any further counseling and indicated that he was waiving his right to such counseling. Defendant also said he understood that when the foster parents adopted Marty, he, defendant, would not be able to change his mind about surrendering his parental rights. Defendant specifically informed the court that he was satisfied with his attorney, who had answered all of his questions.

Significantly, the court asked defendant, "[d]o you understand that the Court cannot enforce any promise of visitation made by anyone?" Defendant responded, "[y]es, I do."

After the court had satisfied itself that defendant's surrender was voluntary, defendant's attorney questioned defendant. The attorney had defendant acknowledge that Marty's foster father, Albert, had made certain promises to defendant about visiting his son. The attorney said: "You understand that anything that was promised by [Albert] as the current caretaker is unenforceable here. Do you understand that?" Defendant replied that he understood. Defense counsel continued: "It's unenforceable in a court of law. So whatever [Albert] told you he'll do or he won't do, you can't come back before [the court] or any other Superior Court judge and ask that those promises be enforced at any point in time after this surrender." Defendant responded, "I realize that."

Following the hearing, the court entered an order accepting defendant's surrender and terminating his parental rights to Marty.

Five months later, in September 2011, we granted defendant leave to file a notice of appeal as within time. Thereafter, in November 2011, we granted defendant's application for a limited remand to the trial court to consider defendant's motion to vacate his voluntary surrender of parental rights. That hearing was conducted on February 1, 2012.

At the hearing, defendant testified that he intended to go to trial in the guardianship action because it was the last possibility of holding onto his son. He also testified that while he was waiting in a holding cell for the guardianship trial to begin, his attorney visited him and said the foster parents were willing to let him see his son, which defendant found shocking. When defendant was brought into the courtroom, his attorney handed him forms for surrendering his parental rights. According to defendant, his attorney urged that he consider exchanging the identified surrender for some kind of visitation and contact with his child. Based upon the recommendation from his attorney, defendant decided to sign the identified surrender.

Defendant further testified that when he signed the identified surrender, he recalled telling the judge there were no "side promises." Defendant explained that he was crying through the entire process, that he knew if he lost the trial he would never see his son again, but the agreement gave him hope that he might be able to contact his son.

Defendant later tried to contact his son four times. As soon as he returned to the county jail after surrendering his parental rights, he wrote a simple letter to his son. He also wrote a letter to his son's foster parents. During the ensuing five weeks, he wrote three more letters. Shortly before his appeal deadline, he wrote a fifth letter to his son's foster parents.

Defendant explained that he felt duress and pressure when he signed the identified surrender papers. In fact, he "was beyond pressure." He "was in a place where [he] had never been before, emotionally."

Defendant admitted on cross-examination that his attorney explained an identified surrender, and that it was a final and binding decision. Defendant also admitted telling the court, when he signed the identified surrender, that he did so voluntarily, and that no one had promised him anything in exchange for making the surrender. Additionally, defendant acknowledged telling the court that he knew he was waiving his right to go to trial and that he had had ample time to make his decision. Significantly, he acknowledged telling the court and his attorney that he knew the court could not enforce any promise, by anyone, concerning contact or visitation with his son.

Defendant's trial counsel testified he made clear to defendant, not only on the day defendant signed the identified surrender, but also on "prior occasions," that any promise made by Marty's foster father would be unenforceable. Counsel said he had discussed the matter with defendant on "multiple occasions . . . going back as far as the FN stage[.]" According to counsel, defendant sought to have the foster parents send him photos and some progress reports about his son. Counsel explained to defendant, quite clearly, that any promise the foster father made would be unenforceable once the matter was concluded and the surrender accepted by the court.

After defendant and his attorney testified, the court denied defendant's motion to vacate the identified surrender. The court did not "accept [defendant] as credible when he says he was induced, that there was a fraud in the inducement. He went into this understanding that he was surrendering his parental rights, that there would be no enforceable agreement, if there was such a representation." On the other hand, the court found defendant's counsel to be a credible witness and "experienced in this area." The court found that defendant's statements on the day he entered into the identified surrender demonstrated "a knowing, intelligent, voluntary surrender of his child."

The court concluded there was "no fraud, . . . no mistake, . . . no ground for this motion to upset the earlier order accepting the surrender of the parental rights." Reiterating that defendant was an intelligent, well-educated, articulate man, the court found no other basis for relief. For those reasons, the court denied the motion. This appeal followed.

In this appeal, defendant makes the following arguments:

I. M.M.'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.

II. THE TRIAL COURT ERRED IN DENYING THE MOTION TO VACATE THE IDENTIFIED SURRENDER.

In his first argument, defendant asserts that his trial counsel was ineffective because counsel did not prepare for trial by scheduling defendant for a psychological evaluation or a bonding evaluation with Marty. To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). When a defendant appeals from an adverse determination in a guardianship action, and alleges ineffective-assistance-of-counsel as a ground for reversing the guardianship judgment, the defendant must

provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.

[N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007).]

Defendant has not provided certifications from experts regarding the substance of the allegedly omitted evidence, and consequently cannot argue why the result would have been different had counsel obtained the evaluations. This is particularly fatal to defendant's argument because he had undergone a psychological evaluation that disclosed significant psychological concerns, and the bonding evaluation between the foster father and Marty demonstrated that Marty would have been significantly harmed had his relationship with his foster parents been severed. Defendant has failed to meet the Strickland two-part test.

In his second argument, defendant contends the trial court erred by denying his motion to vacate the identified surrender. Defendant asserts the trial court "wholly ignored the overwhelming evidence that there had been promises made by [Albert] that were tossed aside immediately after the surrender and relied on something else unstated to make a finding." Defendant also asserts that the court's findings of fact and conclusions of law were inadequate. We disagree and affirm substantially for the reasons explained by the trial court in its oral decision. We add only the following comments.

The findings of the trial court are binding on appeal if they are supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such "[d]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

Central to defendant's motion was his claim that he entered into the voluntary surrender of his parental rights due to emotional duress and because his trial counsel recommended that he surrender those rights in exchange for the foster father's promises. The court did not find defendant's testimony credible. Defendant's testimony was contradicted by his own sworn representations to the court during the hearing at which he entered into the identified surrender; and by his attorney's testimony that he and defendant repeatedly discussed the unenforceability of such promises, on occasions that pre-dated the hearing at which defendant surrendered his parental rights, on the day of the hearing before it started, and during the hearing. The court's credibility determination involved evidence that was almost entirely testimonial. The court's determination was supported by adequate, substantial credible evidence.

A

1 We use pseudonyms to protect the parties' privacy and for ease of reference.

2 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.