NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.D.

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NOT FOR PUBLICATION WITHOUT THE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-1394-15T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.D.,

Defendant-Appellant,

and

A.H.,

Defendant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.D., a minor.

___________________________________

November 22, 2016

Submitted October 11, 2016 Decided

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-55-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.D. (Karen Ann Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Two months before trial on a complaint to terminate her parental rights, defendant C.D. (Cathy)1 voluntarily surrendered her rights with respect to her son, K.D. (Karl). It was an identified surrender to T.B. and G.B. (Tina and Gary), Karl's foster parents. Cathy was then almost eighteen, and Karl was two years and three months old. Following her surrender, the court entered judgment awarding guardianship to the Division of Child Protection and Permanency (Division) in anticipation of adoption by Tina and Gary.

Seven months later, Cathy changed her mind. She claimed that pressure from various sources and her attorney's ineffectiveness prompted her decision to surrender her parental rights. She also claimed she was now better prepared to parent than when she surrendered her child. Represented by new counsel, she sought to undo her surrender and vacate the guardianship judgment. After a plenary hearing on her motion, the court found that Cathy failed to show (1) her surrender was not voluntary or knowing; and (2) vacating the surrender would serve Karl's best interests. Cathy appeals from the court's November 17, 2015 order. She contends the court abused its discretion, and misapplied the law. The Division and the Law Guardian oppose the appeal. Having considered Cathy's arguments in light of the record and applicable principles of law, we affirm.

I.

When Cathy surrendered her rights in January 2015, she faced the prospect of a March 2015 trial to terminate her parental rights. The Division's July 22, 2014 guardianship complaint is before us, but given the procedural posture of the case, the record includes little competent evidence to support or rebut the Division's allegations.2 Nonetheless, many essential facts are undisputed.

In October 2012, when she was fifteen and living in foster care, Cathy gave birth to Karl.3 Cathy and her baby were placed together. However, she was a troubled teenager. She abused marijuana and ran away from placements. In July 2013, after the Division received a report that Cathy absconded from her foster home, leaving Karl behind, the Division effectuated an emergency removal of Karl. The next month, Karl was placed with Tina and Gary, where he has remained through entry of the order on appeal.4 Tina is the daughter of B.H. (Bertha), Cathy's former foster mother.

After Karl's removal, Cathy continued to engage in difficult behaviors and exercised poor judgment. She cycled through several homes and programs. In her words, she was unstable and immature. She returned to her father's home in mid-2014 for a period of months, but then left after difficulties arose between them. At a court conference in September 2014, her attorney conceded that she was ejected from a group home where she had lived since June 2014 after an altercation with another resident. However, around the same time, she was also attempting to earn her G.E.D. and attending parenting classes, which she ultimately completed that month.

Cathy also claimed that she suffered from post-partum depression. She was prescribed Zoloft in late 2014, but she admitted that, in the weeks before the surrender, she did not consistently comply with the prescription. She claimed the drug made her sleepy and did not help.

The nature of Cathy's relationship with Karl is unclear from the record. The complaint alleged that Cathy was awarded monthly supervised visits in January 2014, but that she did not attend all visits. Cathy's visitation with Karl was the subject of disputes among counsel during court sessions in the months prior to the surrender. Cathy's counsel contended that transportation issues and the Division's lack of cooperation affected her ability to see Karl. The Division's counsel disputed those assertions.

Charles offered himself as a potential caretaker of Karl, as did Charles's mother. But, the Division ruled out both in July 2014, the same month it filed the complaint.

The possibility of an identified surrender was raised at a case management conference on January 5, 2015. By that time, a defense bonding evaluation had been completed in anticipation of trial. Cathy's counsel acknowledged on the record that Cathy was considering surrender. Not confident that Cathy understood the implications, her attorney proposed that the court schedule mediation. In the meantime, counsel would consult with Cathy.

At the same conference, Cathy's counsel and the deputy attorney general (DAG) representing the Division offered competing pictures of Cathy's progress. The DAG asserted that Cathy had absconded from a program in late December and was referred to a new one. Cathy's counsel contended that Cathy was upset over her inability to be with her family over the holidays. Counsel reported that Cathy completed her parenting classes, she was involved in therapy, and was visiting Karl on a bi-weekly basis. The court scheduled a mediation session for January 23, 2015.

After the scheduled mediation, Cathy surrendered her parental rights in the presence of Tina and Bertha. Through yes and no responses to a series of leading questions,5 she testified that she signed the surrender form; she was acting voluntarily and of her own free will; no one forced, coerced, threatened or pressured her, or made promises to her, to induce her decision; she was not under the influence of drugs, alcohol, or prescription medication that could affect her ability to make a clear decision; and she was satisfied with her counsel's representation. She declined her right to pre-surrender counseling, and acknowledged that she was waiving her right to a trial. She also stated she understood that she was surrendering her parental rights to Tina and Gary, and "as long as [Tina and Gary] . . . adopt[ed] him," she could not change her mind and the surrender would be final. Cathy agreed that the surrender was in Karl's best interests. No other testimony or evidence was offered. The judge found the surrender was voluntary and knowing, and entered a judgment of guardianship, so that Tina and Gary could adopt Karl.

In August 2015, Cathy contacted the Office of the Public Defender for help in undoing her surrender. The next month, she filed a motion to vacate the surrender and to proceed to trial on the Division's guardianship complaint. She filed two certifications, which were admitted into evidence at the November 17, 2015 plenary hearing. She also testified, as did her former counsel and father. Although the court declined to stay the adoption pending the hearing, the adoption was delayed nonetheless because, according to the DAG, there were outstanding issues involving licensing the foster home. The DAG predicted the delay would not be lengthy.

In support of her motion, Cathy asserted she felt pressure to surrender from her father and sister. They lacked confidence in her ability to parent Karl, and alternated between offering and withholding support. Cathy baldly claimed her attorney was ineffective. She asserted that Tina and Bertha, intent upon securing Karl for adoption, manipulated her. They told her she was unfit to parent, and Karl's best interests would be served by surrender. She also claimed she did not understand that her surrender was final.

Cathy asserted that her anti-depression medication and mental health played a role in her surrender. Notwithstanding her earlier assurance on the record that she was not taking any prescription medication that could affect her judgment, she stated in her certification that the Zoloft "may have affected [her] judgment." At the hearing, she first said she was "off of the Zoloft," and then, shortly afterwards, stated she was on the medicine. She said it did not work because she did not take it consistently; when her dosage was increased, it helped. Cathy also stated that she was no longer taking the medicine at all.

Cathy contended she was better able to assume parenting responsibilities than when she surrendered her rights. She claimed to have achieved a level of stability and maturity that she previously lacked. Since her surrender, she had earned her G.E.D., had completed parenting classes, had been attending group therapy sessions, and had been accepted to college (although the record includes only an initial application to county college). She also had forged a healthier relationship with her father, who now supported her goal to parent Karl. She proposed to live with Karl at her grandmother's house, along with Charles and her sister, who would both assist her in parenting.

Charles testified that he acquired stable employment, which enabled him to assist Cathy monetarily. He spoke of Cathy's progress. He admitted that his relationship with his daughter had been tumultuous in the past.

Cathy's prior counsel testified that she believed Cathy knew the consequences of her actions in surrender. She stated that she and Cathy had multiple consultations. She also asserted that Cathy had a "familial and comfortable relationship" with Tina and Gary. Counsel stated Cathy had requested Tina's and Bertha's presence in the courtroom during the surrender.

The court denied Cathy's motion, before hearing witnesses from the Division. Citing N.J. Division of Youth & Family Services v. T.G., 414 N.J. Super. 423 (App. Div.), certif. denied, 205 N.J. 14 (2010), cert. denied, 563 U.S. 1013, 131 S. Ct. 2925, 179 L. Ed. 2d 1255 (2011), the court held that Cathy had to satisfy a two-part test. First, Cathy was required to establish a basis for relief under Rule 4:50-1. Second, she needed to establish by clear and convincing evidence that vacating the surrender was in Karl's best interests. Although the judge applauded Cathy's personal growth and progress, he found that Cathy failed to satisfy either part of the test. He concluded that the record did not support Cathy's claim that her surrender was not knowing and voluntary. He referred to Cathy's prior counsel's requests for a delay, so she could confer in greater depth with Cathy. He also relied upon Cathy's testimony at the surrender hearing, in which she stated that she was acting freely and understood her actions. The court also referred to "various Division records that were submitted in connection with the briefs which the Court finds to be highly reliable." The court rejected the suggestion that Cathy's youth rendered her surrender invalid.

The court also found that Cathy failed to show by clear and convincing evidence that it was in Karl's best interests to vacate the surrender. The court acknowledged that Cathy presented a plan to parent Karl, but that it rested in large part on Cathy's hopes. He noted that despite Charles's expression of confidence in his daughter, he lacked "professional credentials" to opine persuasively about his daughter's fitness.

II.

We defer to the Family Part judge's factual findings, which are rooted in his familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Furthermore, a decision whether to vacate a judgment is "a determination left to the sound discretion of the trial court, guided by principles of equity." F.B. v. A.L.G., 176 N.J. 201, 207 (2003) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). Relief under Rule 4:50-1 is "granted sparingly," and a decision to deny relief "will be left undisturbed 'unless it represents a clear abuse of discretion.'" Ibid. (quoting Little, supra, 135 N.J. at 283). However, we are not bound by the trial court's legal conclusions. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Rather than invoke Rule 4:50-1, Cathy contends that her motion to vacate her surrender is governed by N.J.S.A. 9:3-41(a), which states that a surrender may be set aside "upon proof of fraud, duress or misrepresentation by the approved agency." Furthermore, under N.J.S.A. 9:3-41(a), "a parent must knowingly and voluntarily express his or her understanding that custody of his or her child is relinquished and their parental rights are terminated in favor of the agency, which will effectuate the child's adoption." T.G., supra, 414 N.J. Super. at 436.

Although this provision expressly applies to surrenders to an adoption agency, we concluded in T.G. that it should apply with equal force to surrenders to the Division under Title 30, which are governed by N.J.S.A. 30:4C-23. Ibid. We concluded that failure to comply with these standards could constitute "changed circumstances." Ibid. However, relying on In re Guardianship of J.N.H., 172 N.J. 440 (2002), we determined that a showing of changed circumstances is not enough; "in a 'termination case[,] the best interests of the child must be considered.'" Id. at 435 (quoting J.N.H., supra, 172 N.J. at 473). The T.G. panel also cited N.J. Division of Youth & Family Services v. L.L., 201 N.J. 210, 228 (2010), noting, parenthetically, that "a parent must show clear and convincing evidence that vacating judgment of a [kinship legal guardianship] is in [a] child's best interest." Ibid.

Contrary to the trial court's understanding, we do not read T.G. to establish a two-part test in which any party seeking to vacate a surrender, regardless of the grounds, must affirmatively prove by clear and convincing evidence that doing so would further the child's best interests. L.L. involved an explicit provision of the Kinship Legal Guardianship Act that outlined the showings a parent must make to vacate an order awarding kinship legal guardianship (KLG). See L.L., supra, 201 N.J. at 224. In particular, the Court in L.L. noted that KLG may be vacated if "'based upon clear and convincing evidence, the court finds that the parental incapacity or inability to care for the child that led to the original award of [KLG] is no longer the case and termination of [KLG] is in the child's best interest.'" Ibid. (quoting N.J.S.A. 3B:12A-6(f)). No comparable provision in Title 30 applies to motions to vacate a surrender based on involuntariness, lack of knowledge, fraud, duress, or misrepresentation. Furthermore, in L.L., KLG was granted after a plenary trial at which the parent was found unfit. See id. at 219.

In J.N.H., the Court addressed a motion to vacate a judgment of guardianship, terminating parental rights. See J.N.H., supra, 172 N.J. at 446. As in L.L., the motion followed a plenary trial. The parent sought to vacate the judgment based upon a showing of changed circumstances, that is, she had overcome historic and chronic addiction, and was now fit to parent. See id. at 469-70. She relied on Rule 4:50-1(e) ("it is no longer equitable that the judgment or order should have prospective application"), and Rule 4:50-1(f) ("any other reason justifying relief"). See id. at 469. In remanding, the Court held that the relief under Rule 4:50-1 may be available, but "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.

However, there is a distinction between (1) a motion to vacate a judgment after a plenary trial, based on the parent's post-trial rehabilitation; and (2) a motion to vacate a judgment after a surrender, based on the parent's pre-surrender involuntariness or lack of knowledge, or because of fraud, duress or misrepresentation. In the latter case, the claim is addressed to the initial underpinnings of the judgment.6

In Sorentino v. Family & Children's Society of Elizabeth, 72 N.J. 127 (1976) (Sorentino I) the Court concluded that a juvenile-mother's surrender of her child to an adoption agency under N.J.S.A. 9:3-19.1 was "a legal nullity," id. at 131, and a "void formal surrender," id. at 132, because the surrender was the product of an adoption agency's coercion.7 See id. at 130. Under such circumstances, the mother's rights could not be lost "merely because it might be determined that the best interests of the child, in the ordinary sense, would be promoted by the adoption rather than by returning the child to the natural parents." Id. at 131. Nonetheless, the welfare of the child was still a substantial consideration. Ibid. As a result of delays caused by the parents' own inaction they waited over a year to commence suit and the delays arising from the litigation itself, the child was then two-and-a-half years old, and had been living with the proposed adoptive parents for virtually all of that time. See id. at 129-31. "The possibility of serious psychological harm to the child in this case transcends all other considerations." Id. at 132. Therefore, the Court remanded for the parents to establish by a preponderance of the credible evidence that the "potentiality for serious psychological harm . . . will not become a reality" if the child were returned to them. Id. at 133.

Based on these authorities, we reject Cathy's argument that there is no second inquiry if a parent can show that his or her surrender was not voluntary or knowing, or the product of undue pressure. We conclude that a court must still consider how vacating the judgment will affect the child's welfare, regardless of whether the application for relief is made under Rule 4:50-1, or pursuant to N.J.S.A. 9:3-41(a). Where the surrender is void ab initio, as in Sorentino I, the parent is not required to satisfy an ordinary "best interests of the child" analysis. Nonetheless, the parent must show, by a preponderance of the evidence, that "serious psychological harm" would not result from rescinding the surrender.

In addition to considerations of the child's welfare, the court may consider the parents' post-surrender actions in determining whether to terminate parental rights. After the remand ordered in Sorentino I, the trial court found that the child would suffer severe psychological harm if removed from her current placement. See Sorentino v. Family & Children's Soc. of Elizabeth, 74 N.J. 313, 319 (1977) (Sorentino II). The Court affirmed in Sorentino II, but remanded again for the trial court to determine whether the natural parents' rights should be terminated, considering among other factors, the parents' delay. See id. at 326-27.

The Court addressed how delays in adoption proceedings may affect the welfare of the child

A foreseeable result from that delay was that the child would become firmly established in her adoptive home. Such equivocation and indecision on the part of the natural parents, with predictable consequences, are harmful to the well-being of the child and are relevant in the consideration of the issue of abandonment and termination.

[Sorentino II, supra, 74 N.J. at 324.8]

See also J.N.H., supra, 172 N.J. at 474 (noting that under Rule 4:50, a court may look to such factors as the reasons for the delay in making the application for relief).9

Applying the aforementioned standards to the facts in this case, we need not assess the impact of a vacatur on Karl's welfare. We discern no error in the trial court's determination that Cathy's surrender was knowing and voluntary, and free of fraud, duress, or misrepresentation. The trial judge concluded that counsel advised Cathy of the consequences of surrender, based on the testimony of Cathy's counsel, and the record of counsel's request for delay. We shall not disturb the judge's finding that Cathy understood the form, based on his assessment of her evidence.

What Cathy characterized as undue pressure was the apparently honest expression of opinions of her father, sister, and others that she was not then fit to care for a child. Cathy readily admitted that she had been unstable and immature. Although she showed some positive signs, such as completing parenting classes, she also had a history of absconding from her own placements and programs. She admitted illicit drug use. Even assuming for argument's sake that Tina and Bertha had their own interests at heart in urging Cathy to surrender her rights, that did not render her decision involuntary.

We recognize that her youth and instability were appropriate factors to consider in determining whether her surrender was knowing and voluntary, since a court must consider the totality of circumstances. Cf. State ex rel Q.N., 179 N.J. 165, 172 (2004) (court must consider totality of circumstances in determining whether a juvenile's will was overborne during a police interrogation). However, the record evidence, which lacks any expert opinions or medical records, simply does not support Cathy's argument that her mental health prevented her from thinking rationally. Cathy highlights the Division's dual role: she was still in the Division's custody, while the Division sought to terminate her rights to Karl, who also was in the Division's custody. But, that should not affect the result here. Cathy was surely aware that the Division's goal was to terminate her parental rights no later than when it filed the complaint in July 2014. Cathy had her own appointed counsel to advise her and to advocate for her.

Cathy also challenges the trial court's determination because the judge relied upon documents not entered into evidence during the hearing. The judge stated that he also relied on "various Division records that were submitted in connection with the briefs which the Court finds to be highly reliable." We cannot assess whether Cathy suffered any prejudice, as she has not included in the appendix on appeal the Division's brief or the records submitted "in connection" with them. See State v. Cordero, 438 N.J. Super. 472, 489 (App. Div. 2014) (citing R. 2:6-1(a)), certif. denied, 221 N.J. 287 (2015).

To the extent not addressed, Cathy's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We utilize pseudonyms to protect the parties' privacy.

2 We note that the complaint also named A.H., who Cathy identified as Karl's father. He never appeared for a paternity test and failed to answer the complaint. His parental rights were later terminated by default.

3 The complaint alleged that Cathy went into foster care during her pregnancy after Cathy's father, C.D. (Charles) and Cathy's twenty-two-year-old boyfriend physically abused her. Charles allegedly did not want Cathy to have the baby. Cathy admitted she went into foster care because her father "wouldn't allow [her] to come home."

4 The record does not disclose events subsequent to entry of the order.

5 We note that it is preferable, absent extenuating circumstances, to avoid the reflexive resort to leading questions in a voir dire designed to establish a knowing and voluntary waiver of substantial rights. See State v. Smullen, 118 N.J. 408, 415 (1990) (noting the particular nature of the crime warranted the use of leading questions to establish a factual basis for a guilty plea).

6 Analogously, a settlement agreement obtained by fraud may be rescinded. See Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). In the context of a defendant's waiver of his or her panoply of rights attendant to a guilty plea, we review a motion to withdraw grounded on lack of factual basis, or lack of voluntariness under Rule 3:9-2, differently from motions to withdraw based on a post-plea claim of innocence. See State v. Tate, 220 N.J. 393, 404-05 (2015).

7 N.J.S.A. 9:3-19.1 was repealed by L. 1977, c. 367, 20, and replaced by N.J.S.A. 9:3-41, upon which Cathy relies. Notably, although both N.J.S.A. 9:3-19.1 and N.J.S.A. 9:3-41(a) provided that a surrender by a juvenile shall be valid and binding without regard to the surrendering parent's age, the prior law did not expressly provide for setting aside the surrender "upon proof of fraud, duress or misrepresentation by the approved agency."

8 After the second remand, the trial court entered judgment terminating the parents' rights, which the Supreme Court summarily affirmed. Sorentino v. Family & Children's Soc. of Elizabeth, 77 N.J. 483 (1978) (Sorentino III).

9 In considering the effect of a delay, we consider not only the length in time, but also the underlying reason or excuse for the delay. Here, we note that Cathy provided no explanation for why she waited almost eight months, until late August, to undo an allegedly involuntary decision.