DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.M.

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NOT FOR PUBLICATION WITHOUT THE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-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.M.,

Defendant-Appellant,

and

G.R.,

Defendant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

M.R.M., a Minor.

November 22, 2016

Submitted October 6, 2016 Decided

Before Judges Fuentes, Carroll and Gooden Brown.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-103-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.R.M. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant J.M. is the biological mother of M.R.M., a five-year-old boy. On June 19, 2014, the Division of Child Protection and Permanency (hereinafter "the Division") filed a guardianship complaint and order to show cause against defendant and M.R.M.'s biological father, G.R., seeking to terminate their parental rights. On July 28, 2014, G.R. voluntarily surrendered his parental rights over M.R.M. to the boy's paternal grandmother. The Family Part conducted a total of four pre-trial case management conferences from October 15, 2014, to May 6, 2015.

The guardianship trial began before Judge Jane Gallina-Mecca on May 18, 2015. Over the next two days, the Division presented testimony from two Division caseworkers, who testified concerning the Division's involvement with defendant since 2012. Defendant has a history of domestic violence with the child's biological father. She reported experiencing depression at a very young age, and hospitalization following a suicide attempt at age sixteen. She was prescribed psychiatric medication, but has instead opted to self-medicate with marijuana on a regular basis.

On November 21, 2012, the Division filed a verified complaint alleging defendant had abused and neglected her then two-year-old son. On that same date, the Family Part granted legal custody of M.R.M. to the Division, and placed the child under the care and supervision of his paternal grandmother. Because M.R.M. had been exposed to domestic violence and recurrent substance abuse, the court found it necessary to remove him from defendant's custody to avoid imminent danger to his life, safety, or health. On November 22, 2012, the day after the court's custody order, defendant was again hospitalized after she threatened to commit suicide. She also tested positive for THC.

Defendant was discharged from the hospital on November 26, 2012, and she was referred for a psychological evaluation. The record shows that defendant failed to take advantage of the substance abuse services and psychological counseling the Division offered her. At the guardianship trial, Dr. Elizabeth Smith testified as an expert witness on the Division's behalf. Dr. Smith conducted psychological evaluations of defendant on September 5, 2014, and September 15, 2014.1 Dr. Smith concluded defendant is incapable of safely parenting her son. Dr. Smith also opined that M.R.M. has bonded with his paternal grandmother. By contrast, Dr. Smith found that reunification of M.R.M. with defendant would place the child at a high risk for abuse and neglect.

When the guardianship trial resumed on June 10, 2015, defendant informed Judge Gallina-Mecca that she had decided to enter an identified surrender of her parental rights over M.R.M. to the child's paternal grandmother. After defendant was sworn in, the record shows defense counsel questioned her directly to ensure she was aware of the legal consequences of her decision and to confirm she understood the rights she was agreeing to waive. Defense counsel reviewed each page of the agreement she signed. At the end of this lengthy and comprehensive process, Judge Gallina-Mecca made the following finding

Based upon the testimony of the defendant, [J.M.], I find that the defendant has given a voluntary, knowing, identified surrender of parental rights to the child, [M.R.M.], so that he may be adopted by [M.C.], with the understanding that if [M.C.] does not adopt, the surrender is void.

On June 10, 2015, the Family Part entered a Judgment of Guardianship allowing M.C. to adopt M.R.M.

On October 26, 2015, more than four months later, defendant, represented by different counsel, filed a Rule 4:50-1(f) motion seeking to: (1) vacate the June 10, 2015 judgment of guardianship; (2) set a date to continue the guardianship trial; (3) schedule parenting time with M.R.M.; and (4) stay any adoption application filed by M.C. Judge Gallina-Mecca heard oral argument on December 4, 2015, and denied defendant's motion in its entirety. Judge Gallina-Mecca concluded that defendant's assertions in her certification were not supported by the record developed on June 10, 2015.

In particular, in paragraph 8 of her certification, defendant averred: "At the time I gave the surrender, I thought I would be able to have a relationship with and see my son through the paternal grandmother." However, defendant gave a completely different response when she was questioned about this particular concern on June 10, 2015

LAW GUARDIAN: The . . . issue as it pertains to seeing her son, [M.R.M], is entirely up to [M.C.]. Should [M.C.] decide that [defendant] can have that contact, it would be allowed. If [M.C.] decides she can't, that's the outcome.

DEFENDANT: Right. I understand that. But we already have had conversations and she said that she has never closed the door. She said she would never close the door between me and my son. So I'm hoping that that will continue in that vein and that's one of the reasons I want to stay in New Jersey for the long haul.

LAW GUARDIAN: Okay. Thank you.

DEFENSE COUNSEL: If I could just follow up? [J.M.], you fully understand that if [M.C] turned around and changed her mind and did not want . . . to allow you to see [M.R.M.], that you can't do anything about that[?]

DEFENDANT: Yes. I understand that, but I'm willing to take that risk.

Relying on our decision in Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 436 (App. Div.), certif. denied, 205 N.J. 14 (2010), Judge Gallina-Mecca rejected defendant's application and found defendant had made a valid, binding, and irrevocable surrender of her parental rights. The judge also noted that defendant had not produced any evidence showing fraud, duress or misrepresentation by the Division. Again relying on T.G., the court held defendant failed to present any evidence showing changed circumstances or that vacating the judgment of guardianship would be in M.R.M.'s best interest. Id. at 434.

Defendant now appeals arguing that the trial judge should have conducted a plenary hearing before denying the motion tovacate. We disagree and affirm substantially for the reasons expressed by Judge Gallina-Mecca. "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). At the time the Family Part accepted defendant's identified surrender of her parental rights, the trial judge made detailed factual findings which are clearly supported by the record. This court is bound to respect and accept those findings. We are satisfied that Judge Gallina-Mecca correctly applied our holding in T.G. to the salient, undisputed facts.

Affirmed.

1 Defendant is deaf. She was provided with certified sign language interpreters at all times she interacted with the Division and the court. Defendant does not claim any miscommunication related to her deafness as a basis for this appeal.