DCPP VS. A.L. AND B.K., IN THE MATTER OF THE GUARDIANSHIP OF S.L. (FG-15-0002-17, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1627-17T4

NEW JERSEY DIVISON OF
CHILD PROTECTION AND
PERMANENCY,

Plaintiff-Respondent,

v.

A.L.,

Defendant-Appellant,

and

B.K.,

Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF S.L.,

a Minor.
____________________________

Submitted October 23, 2018 – Decided December 4, 2018

Before Judges Yannotti and Gilson.
 On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FG-15-0002-17.

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

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Salima E. Burke, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Todd S. Wilson, Designated
Counsel, on the brief).

PER CURIAM

A.L. appeals from an order of the Family Part dated November 15, 2017,

which denied her motion to vacate the identified surrender of her parental rights

to the minor child, S.L. We affirm.

I.

A.L. is the mother of S.L., who was born in October 2011. The Division

of Child Protection and Permanency (Division) became involved with the family

two days after S.L.'s birth, when the Division learned A.L. had tested positive

for opiates. The Division investigated the report. A.L. admitted she had taken

prescribed opiate pain medication and had a history of abusing alcohol. Upon

completion of its investigation, the Division determined that the allegations of

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2
neglect were unfounded; however, the Division kept the case open for services.

In December 2011, after a random drug screen, A.L. tested positive for opiates.

In February 2012, a paternity test established that B.K. was S.L.'s biological

father. In February 2013, the Division closed the case.

In June 2013, the Division received a report from a local police

department indicating concerns for S.L.'s safety and welfare. The report noted

that A.L. was a known alcoholic, and that A.L. left the child alone for twenty

minutes in a motel room, while she sat in a car in the parking lot with a friend.

In July 2013, the Division received a report from another local police

department, advising the Division of concerns about the child's safety and

welfare. It appears that A.L. and the child were staying with A.L.'s parents.

According to the report, the police had responded to the home because A.L.'s

grandfather was intoxicated and making homicidal threats against A.L.'s

grandmother. The report noted that A.L. had been intoxicated.

A Division worker investigated the report. A.L. told the worker she had

been sober for some time, but she had recently relapsed. The worker asked A.L.

where the child was when she was drinking. She did not reply. The worker saw

no immediate safety concerns, but implemented a temporary safety protection

plan for the child.

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 A.L.'s grandmother agreed to supervise A.L.'s care of the child that

evening. The following day, the Division's case manager and an individual who

handles domestic violence visited the home unannounced. According to the case

manager, A.L. appeared intoxicated and became hysterical at the thought S.L.

might be removed from her care. The Division's workers suggested that A.L.'s

grandmother seek a domestic violence restraining order, but she refused.

The Division decided that it could not permit S.L. to remain in the home

due to concerns about the grandfather's alcohol abuse. A.L.'s grandmother

indicated that she could not care for S.L., and she did not want A.L. in her home.

She also did not know of any other family members who might be available to

care for S.L. At the time, B.K. was apparently homeless.

The Division conducted an emergency removal of S.L., and on July 8,

2013, filed an order to show cause and verified complaint in the Family Part

seeking care, custody, and supervision of S.L. On that date, the court granted

the Division's application. On September 18, 2013, the court conducted a fact-

finding hearing and A.L. stipulated she had abused or neglected the child. She

admitted she had ingested a substantial amount of alcohol and became highly

intoxicated while caring for S.L., who was then twenty-one months old.

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 Thereafter, the Division provided A.L. and B.K. with an array of services.

In June 2014, the trial court conducted a hearing and approved the Division's

permanency plan, which called for reunification of S.L. and A.L. In July 2014,

the court approved the return of S.L. to A.L.'s care, and the Division closed the

case several months later.

In October 2015, the Division received a report that A.L. had been abusing

alcohol during the previous three to four weeks, and was in the hospital for

detoxification. The Division investigated the report and learned that the police

had responded to A.L.'s home in September and October 2015, because of A.L.'s

intoxication.

The Division also learned that since sometime in September 2015, S.L.

had been staying with A.L.'s maternal great aunt, and A.L. had been in hospitals

numerous times due to her alcohol abuse. On October 16, 2015, a Division

worker went with a police escort to meet A.L. at her mother's residence. A.L.

appeared to be intoxicated. Several days later, the local police reported that

A.L. had been intoxicated and had gotten in a verbal dispute with her

grandmother.

On October 23, 2015, the Division filed an order to show cause and a

verified complaint in the Family Part, seeking care, custody and supervision of

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S.L. The court granted the Division's application, and the Division again placed

S.L. with T.E. In November 2015, the Division found that the allegations of

abuse and neglect stemming from the October 2015 report were not

substantiated because A.L. had arranged to have her great aunt care for the child

when she was not capable of doing so.

The Division continued to provide A.L. services with the goal of

reunification. The services included random urine screens, substance abuse

evaluations, and treatment referrals. However, from November 2015 to

Feb.ruary 2016, A.L. continued to abuse alcohol. A.L. also was hospitalized

due to alcohol consumption, and she missed several scheduled visits with S.L.

On February 4, 2016, the court suspended all visitation until A.L. fully engaged

in substance abuse treatment.

In April 2016, the court conducted a hearing and approved the Division's

new permanency plan, which called for termination of A.L. and B.K.'s parental

rights to S.L., followed by adoption. On July 1, 2016, the Division filed its

guardianship complaint.

The court scheduled the matter for trial in March 2017. About two weeks

before the scheduled trial date, A.L. requested a hearing so that she could

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execute an identified surrender of her parental rights to S.L. so that T.E. could

adopt the child.

On February 21, 2017, A.L. completed the "Voluntary Surrender of

Parental Rights Form" and testified in court that she wanted T.E. to adopt S.L.

She stated that she believed this decision was in the child's best interests. A.L.

told the judge her decision to surrender her parental rights was voluntary, and

she had accurately answered the questions on the form.

At the hearing, the judge questioned A.L. concerning the surrender of her

parental rights. In response to the judge's questions, A.L. testified that she had

engaged in conversations with her attorney concerning the concept of surrender,

that counsel had answered all of her questions, and that she had sufficient time

to consider her decision.

A.L. also stated that she understood her surrender would be final and that

her parental rights would only be reinstated if T.E. could not adopt S.L. She

further testified that she understood any promises T.E. made indicating she

could maintain contact with S.L. would be unenforceable. A.L. told the judge

she was making her decision willingly, freely, and voluntarily, and she was not

being forced, threatened or coerced.

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 The judge found that A.L.'s surrender of her parental rights was knowing

and voluntary. The judge later conducted a trial on the Division's complaint

seeking termination of B.K.'s parental rights to S.L. The judge found the

Division had established the four prongs of the test in N.J.S.A. 30:4C-15.1(a)

for termination of B.K.'s parental rights.

On March 20, 2017, the court entered a judgment of guardianship

terminating A.L. and B.K.'s parental rights to S.L. for purposes of adoption by

T.E. B.K. passed away sometime later. The court scheduled S.L.'s adoption for

November 16, 2017. On November 10, 2017, A.L. filed a motion to vacate her

surrender of parental rights.

On November 15, 2017, the judge conducted a hearing on the motion, and

A.L. testified under oath. A.L. stated that she was about to complete an intensive

alcohol abuse treatment program. She claimed she regularly attends meetings

of Alcoholics Anonymous, and has a sponsor and support network. She asserted

that she has spoken each week with S.L., and could not "live knowing that" T.E.

could preclude her from communicating with the child.

A.L. also stated she never gave up on having S.L. returned to her, and she

was now in a position to parent the child. She asserted that she has a full-time

job, she made a deposit for her own home, and her driver's license would soon

A-1627-17T4
8
be restored. A.L. claimed she had signed the surrender-of-parental-rights form

under duress.

A.L. stated that she had "felt intimidated" when she signed the form, and

had been coerced into doing so. She told the judge she "made a poor decision,"

and her attorney did not represent her "properly." She claimed her attorney

advised her she might never see S.L. again if she went forward with the trial.

She also claimed the Division's caseworker told her "that parents usually give

up their rights at this point," and that the caseworker would be "against" her at

trial.

A.L. stated that the caseworker stated that if she voluntarily surrendered

her parental rights, she would have her daughter "in [her] life" and she would be

able to see her whenever she wanted to. She asserted that the caseworker told

her she could call the child, take her to the movies, and have her for weekends.

According to A.L., the caseworker stated that if she went to trial, she "would

surely lose" S.L., and she might never see her daughter again.

A.L. further testified that she was under the influence of Percocet on the

day she surrendered her parental rights. She stated that when the judge had

asked her if she was under the influence of any drugs, prescription medications,

A-1627-17T4
9
or alcohol, she replied "no" because she was upset. She claimed she was focused

on avoiding alcohol, and she took medication that had been prescribed.

The judge placed his decision on the record. The judge found there was

no support in the record for A.L.'s claim that she surrendered her parental rights

to S.L. due to coercion, duress, or fraud. The judge noted that at the hearing on

the surrender, A.L. testified that she made the decision voluntarily, and under

her own will. She had denied that she executed the surrender-of-parental-rights

due to coercion, threats, pressure, force, or promises.

The judge pointed out that he had questioned A.L. to confirm that she

understood her decision, including the fact that she "would have no legal or other

right to any contact with the child in the future." The judge noted that A.L.

confirmed her understanding of the surrender. The judge also noted that he

asked A.L. if she was "under the influence of drugs, alcohol, or prescription

medication [that] has affected [her] ability to make a clear decision." She

replied, "No, I am not."

The judge added that when A.L. agreed to surrender her parental rights,

she told the court she understood what she was doing. She stated under oath

that she had spoken with her attorney before the hearing, and counsel had spent

A-1627-17T4
10
sufficient time with her, answered her questions, and provided her with

satisfactory advice. The judge found:

[A.L.] had every opportunity to tell the [c]ourt then
what you're saying now, nine months later, almost three
quarters of a year after you gave your surrender, on the
eve of the child's adoption, a child who is entitled to
permanency. You've come to the [c]ourt the day before
[the adoption] to now ask that this all be erased, for
information that was in your control at the time that you
did not share with the [c]ourt. Why, I [do not] know,
but [there is] nothing to corroborate what you're now
claiming . . . was the case when you gave all of the
answers that I just went through.

The judge entered an order denying the motion for reasons set forth on the

record. This appeal followed.

II.

On appeal, A.L. first argues that the trial court erred by denying her

motion for relief from the identified surrender of parental rights pursuant to Rule

4:50-1(f). We disagree.

Rule 4:50-1 permits a court to grant a party relief from a final judgment

or order for several reasons:

(a) mistake, inadvertence, surprise, or excusable
neglect; (b) newly discovered evidence which would
probably alter the judgment or order and which by due
diligence could not have been discovered in time to
move for a new trial under [Rule] 4:49; (c) fraud
(whether heretofore denominated intrinsic or extrinsic),

A-1627-17T4
11
 misrepresentation, or other misconduct of an adverse
party; (d) the judgment or order is void; (e) the
judgment or order has been satisfied, released or
discharged, or a prior judgment or order upon which it
is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment or order should
have prospective application; or (f) any other reason
justifying relief from the operation of the judgment or
order.

A trial court's decision under Rule 4:50-1 should be given "substantial

deference," and will not be reversed unless shown to be "a clear abuse of

discretion." US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012); see

also DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009); Hous. Auth. of

Morristown v. Little, 135 N.J. 274, 283 (1994).

Here, A.L. argues the trial court should have granted her relief under Rule

4:50-1(f). "[R]elief under subsection (f) is available only when 'truly

exceptional circumstances are present.'" In re Guardianship of J.N.H., 172 N.J.

440, 473 (2002) (quoting Little, 135 N.J. at 286). To determine whether a party

has shown exceptional circumstances for relief under Rule 4:50-1(f), the court

must consider the totality of circumstances. Id. at 474 (citing Baumann v.

Marinaro, 95 N.J. 380, 395 (1984)).

In matters involving the termination of parental rights, "[t]he judgment

under review uniquely affects the rights of the parent and also [has an impact

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12
upon] the life of the child who is the object of the guardianship." Div. of Youth

& Family Servs. v. T.G., 414 N.J. Super. 423, 434 (App. Div. 2010). To warrant

relief under Rule 4:50-1 from a judgment terminating parental rights, the movant

must show that events have occurred after the entry of the judgment, which

warrant vacating the judgment, and that relief is warranted in the best interests

of the child. Id. at 434-35 (citing J.N.H., 172 N.J. at 473).

In considering whether relief is warranted, the court must weigh "the

effects setting aside the judgment may have on the child's stability and

permanency." Id. at 435 (citing J.N.H., 172 N.J. at 474). The critical issue is

the effect that granting the motion "would have on the child." Ibid. (quoting

J.N.H., 172 N.J. at 475). This test applies to a motion to set aside a voluntary

surrender of parental rights which results in a judgment awarding guardianship

to the Division. Id. at 427, 434.

A trial court's findings of fact are binding on appeal when supported by

adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394,

411-12 (1998). Our deference to the findings of the Family Part is especially

appropriate because of that court's expertise in matters involving the family. Id.

at 412. A trial court's findings of fact "should not be disturbed unless the

findings are so wholly unsupportable as to result in a denial of justice." J.N.H.,

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172 N.J. at 472 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188

(App. Div. 1993)).

We are convinced there is sufficient credible evidence to support the

judge's determination that A.L. had not shown relief from the judgment

terminating her parental rights was warranted under Rule 4:50-1(f). The record

supports the judge's finding that A.L. failed to establish that relief should be

granted due to "truly exceptional circumstances." J.N.H., 172 N.J. at 473 (2002)

(citing Little, 135 N.J. at 286).

As we noted previously, the judge found that A.L. did not execute the

identified surrender of her parental rights under duress or coercion. The judge

noted that A.L.'s claim she was acting under duress was totally inconsistent with

the statements she made on the record when she surrendered her parental rights.

The judge found that A.L.'s statements at the February 21, 2017 hearing

established that A.L. had surrendered her parental rights to S.L. knowingly and

voluntarily.

The record shows that when she agreed to surrender her parental rights,

she informed the court that she had not been pressured, forced, or coerced into

making that decision. She assured the court that she had discussed the matter

with her attorney and her attorney had answered all the questions she had.

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Moreover, A.L. told the court her attorney had provided her with satisfactory

services. She stated she had sufficient time to consider her decision, and she

was not under the influence of any prescription medication that would affect her

judgment.

A.L. also stated that she understood she would be giving up her right to

have an ongoing relationship with S.L. The judge informed A.L. that any

promises T.E. made indicating A.L. could maintain contact with the child were

not enforceable, and T.E. could decide at any time that she was no longer willing

to allow A.L. to have contact with S.L. A.L. told the court she understood the

consequences of her decision.

A.L. claimed she was not thinking clearly when she surrendered her

parental rights because she took two Percocet tablets before the February 21,

2017 hearing. The judge found that A.L.'s claim was not credible. As noted

previously, A.L. assured the judge she was not under the influence of any

medication when she surrendered her parental rights.

We conclude the record supports the judge's finding that A.L. failed to

show she established a basis for relief under Rule 4:50-1(f). She failed to show

that she surrendered her parental rights to S.L. under duress or coercion, and did

not credibly establish she was not informed of the consequences of her decision.

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A.L. also failed to show that relief was warranted in the best interests of the

child. As the judge noted, the child requires permanency, and there was no basis

to delay the adoption.

In this regard, we note that at the guardianship trial, the expert testimony

established that S.L. had close bonds with her resource parent and would suffer

enduring psychological harm if removed from her care. The expert testimony

also showed that S.L. requires permanency to avoid long-term harm to her

psychological development.

III.

A.L. further argues the order denying her motion for relief from the

judgement should be reversed in the interests of due process and fundamental

fairness. A.L. contends the trial court was required to conduct a plenary hearing

on her motion. She contends the matter should be remanded for further

proceedings. Again, we disagree.

"A parent's right to raise and maintain a relationship with his or her child

is constitutionally protected." N.J. Div. of Child Prot. & Permanency v. K.S.,

445 N.J. Super. 384, 390 (App. Div. 2016) (quoting N.J. Div. of Child Prot. &

Permanency v. N.C.M., 438 N.J. Super. 356, 367 (App. Div. 2014)). It is well-

established, however, that the parent's right is not absolute and "must be

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balanced against 'the State's parens patriae responsibility to protect the welfare

of children.'" N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 294-

95 (2007)).

"Due process requires adequate notice and a fair opportunity to be heard."

N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J Super. 426, 464 (App.

Div. 2003). Due process is "a flexible concept" that "calls for such procedural

protections as the particular situation demands." Ibid. In proceedings involving

the termination of parental rights, New Jersey courts employ the balancing test

enunciated in Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), to determine

whether a parent received sufficient procedural due process. K.S., 445 N.J.

Super. at 390-91 (citing M.Y.J.P., 360 N.J. Super. at 465).

The Matthews balancing test requires consideration of three factors: (1)

"the private interest that will be affected by the official action"; (2) "the risk that

there will be an erroneous deprivation of the interest through the procedures

used, and the probable value, if any, of additional or substitute procedu ral

safeguards"; and (3) "the governmental interest involved, including the added

fiscal and administrative burdens that additional or substitute procedures would

require." Id. at 391 (quoting M.Y.J.P., 360 N.J. Super. at 465).

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 On appeal, A.L. argues that the procedure the judge employed to consider

her motion was not sufficient to protect the interests at stake. She contends the

trial court should have conducted a plenary hearing on her claim that she acted

under duress or coercion when she agreed to surrender her parental rights. A.L.

asserts that the judge rejected her assertions regarding the alleged

representations made by A.L.'s attorney without hearing the attorney's testimony

and allowing A.L. to cross-examine him. She contends the resolution of this

important factual issue was not grounded in a full and fair consideration of the

evidence.

We are not persuaded by these arguments. The procedures that the trial

court employed in considering A.L.'s motion satisfied the applicable due process

requirements. A.L. was present at the hearing on the motion and she testified

under oath. Furthermore, the judge considered the record of the statements A.L.

made when she agreed to surrender her parental rights.

A.L. has not shown that a plenary hearing was necessary to address her

claim that she acted under duress or coercion. That claim was thoroughly

refuted by the statements A.L. made at the hearing when she surrendered her

parental rights. Moreover, a plenary hearing was not required to address A.L.'s

claim regarding statements A.L.'s attorney made to her before she surrendered

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her parental rights. A.L.'s claims were clearly inconsistent with the statements

she made when she agreed to the surrender.

As the record shows, when A.L. surrendered her parental rights, she was

asked whether anyone had forced, coerced, threatened or pressured her into

making this decision. She stated, "No, they didn't." She also said her attorney

had advised her and answered all of her questions. She stated that her attorney

had provided her with satisfactory services.

Affirmed.

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