DCPP VS. J.F. AND G.S.IN THE MATTER OF THE GUARDIANSHIP OF J.F.(FG-03-34-15, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-3628-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.F.,

Defendant-Appellant,

and

G.S.,

Defendant.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF J.F., a minor.
_________________________________

Submitted May 4, 2017 – Decided June 14, 2017

Before Judges Lihotz and Mawla.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FG-03-34-15.

Kenneth Rosellini, attorney for appellant.
 Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton-
Schaffer, Assistant Attorney General, of
counsel; Jennifer A. Lochel, Deputy Attorney
General, on the brief).

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

PER CURIAM

Defendant J.F. (Judith) appeals from a March 17, 2016 Family

Part order denying her application to vacate an identified

surrender of parental rights of her daughter J.F. (Jane)1 to allow

defendant's aunt to adopt Jane. Judith asserts she was coerced

into the identified surrender upon a threat Jane would be placed

in a non-relative foster home. Judith also claims her

constitutional rights were not explained to her before she executed

the surrender. We affirm.

The following facts are taken from the record. Judith is the

biological mother of Jane. Jane suffers from several medical

conditions and developmental delays. A few months after Jane's

birth, the Division of Child Protection and Permanency (Division)

filed a complaint for care, custody and supervision of Jane, which

the trial court granted. The Division alleged the relationship

between Judith and Jane's biological father G.S. (Gary) was fraught

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

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with severe domestic violence and neither parent was able to care

for Jane because Judith suffered from bi-polar disorder and Gary

from substance abuse. Services provided by the Division to aid

the family were unsuccessful.

After nearly two years of litigation, the Division filed a

guardianship complaint on January 22, 2015. The guardianship

trial was scheduled for September 9, 2015. On the day of trial,

Judith spent substantial time conferring with her counsel, then

completed the voluntary surrender of parental rights form and

confirmed her understanding of it in sworn testimony. The trial

judge concluded Judith's answers during the voir dire demonstrated

she understood her rights and the trial process; specifically, it

would be the Division's burden, not Judith's, to prove a

termination of parental rights. Judith confirmed she understood

the consequences of the surrender and had not been forced or

coerced into making it, but had entered the decision with the

advice of counsel. The trial judge made her findings accepting

the identified surrender.

Then, the following colloquy occurred between the judge and

Judith:

JUDGE: [Judith], good luck to you in the
future. I hope everything works out for you.
Thank you very much. I relieve Mr. Gladden
as attorney for [Judith]. Thank you.

. . . .

3 A-3628-15T2
[JUDITH]: I just wish things would have been
different.

THE COURT: I wish things had been different,
too, for you, ma'am.

[JUDITH]: And I wish that I could have had
the opportunity to like, you know, to take
care of [Jane] and people watch. Like I said,
I know it would be hard for you because you
don't know me, but if they went ahead like
nurses to watch, you know, while I take care
of her, I think that would have helped a lot,
but I didn't get that opportunity and that's
what I feel more sad about, but I know that
what I'm doing now because I probably, with
the psychological, you really don't have any
choice but to terminate me.

MR. GLADDEN: Well --

THE COURT: No, ma'am. That's not true, that
I'm sure Mr. Gladden has explained this to you
before, is that I listen to everything, okay?
And I make the determination on the entire
case and everything that I hear. I do not
allow and never have allowed an expert to tell
me what to do, okay? They give me their
opinion and I take their opinion into
consideration along with everything else that
I hear in the courtroom, everything, including
everything you say, okay? And I make my
determination based on all of this, the
history of what's happened, the physical needs
of your child, your abilities, the child's
father's ability, everything, okay? But I do
not base my decision on what the doctors say.
We have doctors come in and sometimes they say
-- all say the same thing, sometimes they say
different things, one says one thing, somebody
says something different. It's part of what
I consider, but they do not and I never have
allowed them to make my decision for me.

[JUDITH]: Well, you sound like a fair judge.

4 A-3628-15T2
THE COURT: I try to be. Yes, ma'am.

[JUDITH]: It's just that I, I'm just too
scared that, you know, if you find to
terminate, I'm just afraid what would happen
to [Jane].

THE COURT: Okay.

[JUDITH]: And I don't want that to happen to
her.

THE COURT: When you make this decision,
ma'am, you should take into consideration
everything, okay, including what you think is
the best interest of your daughter. Have you
done that, taken into consideration
everything?

[JUDITH]: I have, yeah. I mean we talked
about everything. I mean, all the stuff that
I have, you know, it's just hard to fight it,
you know what I mean, and he gave me his
opinion and, you know, and a lot of people
have given the same opinion that I probably
would have lost so, you know.

[COURT]: Okay. That's their opinion but you
should never think that because somebody
thinks that or that there's that possibility
that's what's going to happen, okay? I want
you to know that, you know, every time the
Division brings a guardianship doesn't
necessarily mean, just because they bring this
kind of case, that I'm going to agree with
them. I don't always agree with them.

[JUDITH]: No, I know that.

THE COURT: Okay? Sometimes, I disagree with
them and they're unhappy.

[JUDITH]: Actually, I want to thank you,
actually the one time when they were taking
her, you were the one that kept her with my

5 A-3628-15T2
sister instead of putting her somewhere else
so, yeah, I know you don't.

THE COURT: I do, I mean, you know, I think,
you know, my job is to protect the child and
be fair to everybody. You need to be doing
this, if you think this is the best for your
daughter. Is that what had [sic] you think?

[JUDITH]: I do, yeah. I think it's the best
for her because I'm not a risk taker, you know.

THE COURT: Okay.

[JUDITH]: and I don't want to play with her
life, you know, and if I lose I won't see her
for two years and I don't want to play with
her life. I don't want [the Division] to come
in, she doesn't talk and I don't want them to
come in and give her to another family.

THE COURT: Okay.

[JUDITH]: So . . .

THE COURT: Well, and you understand that if
for some reason your sister or her husband
cannot adopt your daughter, that you will be
brought right back into the case, okay?

[JUDITH]: I do.

THE COURT: All right. You'll be brought right
back, you'll be notified right away and you'll
be brought right back into the case, okay?

[JUDITH]: Okay.

THE COURT: All right. Well, good luck to
you, ma'am.

[JUDITH]: Thank you again. Like I said, if
I was going to have any chance I was glad that
it was going to be with you. I think I would
have had a chance, you know, if I would have
had anything but like I said, I'm too afraid.

6 A-3628-15T2
You know, there's a lot of overwhelming
evidence and I'm just afraid of the risk to
[Jane].

THE COURT: Ma'am, that's a decision you have
to make and like you, sometimes people do --
I've had other parents who had done the same
thing and said I'd rather know that my
daughter's going to be with the person that
she or he is with right now than take that
chance. And so that does happen and I
understand that, ma'am.

[JUDITH]: But I would have loved to have had
the opportunity, though, to have been able to
take care of her just to show so that, you
know, like I said, I know like in your
position, you know, I would say if I was a
judge it would be hard because you don't know
me, you know, so you wouldn't know what I could
do, but then I would have, you know, said,
well, let's see, we'll put somebody in her
house and we'll see how things, you know,
would go and [Jane] wouldn't be in any danger
because if I went to feed her then, you know,
I would have been -- you know what I mean?
They would have said, well, you're doing good
or you're not, just like when I vented her,
they wrote down I did a good job, you know,
so I would have been putting her at risk and
yet everyone would have felt comfortable and
because, like I said, I do fully understand
that, you know, you've made decisions and I
know mothers have done stuff so it's very, you
know, you want to make sure you're doing the
right thing and you want to make sure the
child's protected and I would too. I
wouldn't, I wouldn't just leave a child, say,
okay, mom, you know, you can take her.

THE COURT: Yeah.

[JUDITH]: You know what I mean? I would want
to see and make sure you did okay before I
backed out.

7 A-3628-15T2
 THE COURT: Well, I can't tell you what I
would have done and we can't guess at what I
would have done at some time in the past and
I certainly can't tell you what I would have
done at the end of this trial because I don't
know because I haven't heard the evidence,
okay? If you have a seat, ma'am, out in the
hallway, we're going to bring you all the
forms and the orders, okay?

[JUDITH]: Thank you.

MR. GLADDEN: Thank you, Judge.

THE COURT: Thank you. Good luck again, ma'am.
Thank you, Mr. Gladden.

Over two months later, Judith filed a motion to vacate the

identified surrender alleging the surrender was neither voluntary

nor knowing. The trial judge denied the application finding no

evidence of coercion or duress and no evidence vacating the

surrender would serve Jane's best interests.

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)). Reversal is required in those circumstances when the

trial court's findings were "so wide of the mark that a mistake

8 A-3628-15T2
must have been made." Div. of Youth & Family Servs. v. M.M., 189

N.J. 261, 279 (2007) (quotations omitted).

A motion under [Rule] 4:50-1 is addressed to
the sound discretion of the trial court, which
should be guided by equitable principles in
determining whether relief should be granted
or denied. The decision granting or denying
an application to open a judgment will be left
undisturbed unless it represents a clear abuse
of discretion.

[Housing Authority of Town of Morristown v.
Little, 135 N.J. 274, 283 (1994) (citations
omitted).]

On appeal, Judith asserts the trial judge erred by failing

to grant her motion to vacate the surrender pursuant to Rule 4:50-

1(a), (c) and (f). She asserts she satisfied the requisites of

Rule 4:50-1 because the facts demonstrate coercion, duress and

exceptional circumstances warranting a reversal. Specifically,

she argues her identified surrender was the product of duress by

the Division because it threatened to place Jane with a non-

relative foster family. Judith also asserts her identified

surrender was "unconstitutional" because it was not made

"knowingly and intelligently." She argues "there was no judicial

finding that she was, clearly and convincingly apprised of her

rights as a parent so as to constitute a knowing and intelligent

waiver of those rights." Judith claims when she "expressed her

concern to the trial court at the [i]dentified [s]urrender hearing

that [the Division] would improperly place her child with a

9 A-3628-15T2
stranger foster family, because court intervention was previously

required to stop the Division from doing just that, the [t]rial

[c]ourt failed to apprise [Judith] of her rights."

Judith also urges reversal because there were no findings or

allegations of abuse or neglect. Therefore, she asserts the

Division lacked "jurisdiction to pursue the termination of

parental rights at the time of the surrender."

Rule 4:50-1 states:

[T]he court may relieve a party or the party's
legal representative from a final judgment or
order for the following 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 R. 4:49; (c) fraud (whether heretofore
denominated intrinsic or extrinsic), mis-
representation, 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.

Relief may be granted under "subsection (f) only where such reason

is not one included among those specified in subsections (a), (b)

and (c) and there is also a showing of extreme hardship and the

equities clearly run in favor of the party applying for relief

10 A-3628-15T2
from judgment." Doyle v. Chase Manhattan Bank, 80 N.J. Super.

105, 125 (App. Div. 1963).

The Supreme Court has sanctioned the use of Rule 4:50-1 as a

means to vacate a judgment terminating parental rights. In re

Guardianship of J.N.H., 172 N.J. 440, 474 (2002). The Court

adopted a two part test, namely, a parent's motion "must be

supported by evidence of changed circumstances as the moving party

bears the burden of proving that events have occurred subsequent

to the entry of a judgment to justify vacating the judgment." Div.

of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 434 (App.

Div. 2010) (quotations omitted); see also J.N.H., supra, 172 N.J.

at 473. Secondly, in a "termination case[,] the best interests

of the child must be considered." T.G., supra, 414 N.J. Super.

at 435 (alteration in original); see also Div. of Youth & Family

Servs. v. L.L., 201 N.J. 210, 228 (2010). The trial court must

consider the child's best interest when asked to set aside the

judgment because it may affect the child's stability and

permanency. Thus, "the primary issue is . . . what effect the

grant of the motion would have on the child." J.N.H., supra, 142

N.J. at 475.

In T.G., we applied the J.N.H. two prong test to Rule 4:50-1

applications to vacate a voluntary surrender of parental rights.

We stated:

11 A-3628-15T2
 In order for a surrender pursuant to N.J.S.A.
9:3-41(a) to be enforceable, 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. A statutory
surrender made under this provision "shall be
valid and binding . . . and shall be
irrevocable except at the discretion of the
approved agency taking such surrender or upon
order or judgment of a court of competent
jurisdiction setting aside such surrender upon
proof of fraud, duress or misrepresentation
by the approved agency." N.J.S.A. 9:3-41(a).
Based on the similarities between surrenders
to an approved agency under Title 9 and those
to the Division in lieu of proceeding to
litigate a guardianship action, we discern no
impediment to applying the requisites
delineated in N.J.S.A. 9:3-41(a) to this
proceeding governed by N.J.S.A. 30:4C-23.
Accordingly, the safeguards of N.J.S.A. 9:3-
41, as well as the standards set forth to set
aside such a surrender, are applicable to the
matter under review. We also conclude that
DYFS's failure to comply with these
protections could supply the necessary changed
circumstances mandated by the first part of
the J.N.H. test. J.N.H., supra, 172 N.J. at
473.

[T.G., supra, 414 N.J. Super. at 436.]

Similar to here, the mother in T.G. made a voluntary surrender

of her parental rights on the first day of the guardianship trial.

Id. at 429. She then sought to vacate the surrender under Rule

4:50-1, arguing the Division had not fulfilled a condition of the

surrender, namely, not to reveal any details about her file. Id.

at 431. After the surrender, the Division disclosed the mother's

12 A-3628-15T2
alcohol relapse and subsequent discharge from a substance abuse

program to her probation officer. Ibid. The mother argued

confidentiality was specifically bargained for in return for her

surrender, and the Division's failure to uphold its obligations

was grounds to vacate the surrender under Rule 4:50-1 (a), (b) and

(f). Ibid.

We affirmed the trial court's denial of the mother's

application, finding she made no such agreement with the Division.

Id. at 437. More importantly, regarding her claims of coercion

and duress, we found she made a knowing and voluntary surrender

of her parental rights. Id. at 438. Specifically, we stated:

We find no procedural flaws in the surrender
proceeding and conclude the court, in
accepting defendant's surrender, complied
with all necessary due process. Defendant was
afforded numerous opportunities to express any
pressures, concerns or duress. Instead,
defendant repeatedly stated she had ample time
to consult with her attorney, understood her
attorney's advice, waived her right to trial,
was aware of the effect of surrendering her
parental rights, declined counseling, and
asserted her actions were voluntary. Defendant
was also given the opportunity to ask
questions of the court, DYFS, and the Law
Guardian. She had every chance to express any
important concern or issue that was unclear.

[Id. at 438-39.]

Here, Judith's arguments mirror the mother's in T.G. and are

similarly dispelled by the record. Like T.G., there is no evidence

in the record of the Division threatening to place Jane with a

13 A-3628-15T2
non-relative foster family. The evidence points to the contrary

as Jane had been residing in her relative placement throughout the

litigation.

Judith argues "there was no judicial finding that she was,

clearly and convincingly apprised of her rights as a parent so as

to constitute a knowing and intelligent waiver of those rights."

Again, the record demonstrates the opposite. The trial judge made

specific findings after Judith's voir dire:

THE COURT: All right. I've listened to the
testimony of [Judith]. I find that she has
entered into the identified surrender of her
child [Jane] freely and voluntarily, that she
has done so knowingly having had the advice
of counsel and had ample opportunity to speak
to him today and previously about this
surrender.

I further find that she has testified she is
not under the influence of any substance which
affects her ability to understand what she is
doing and those medications that she has taken
today do not affect her understanding of what
she is doing. Therefore, I will accept her
surrender, enter an order to that effect.

Lastly, Judith argues before the Division can institute

guardianship proceedings, there must first be a finding of abuse

or neglect. This argument misreads Title 30.

The Division may commence a guardianship litigation at any

juncture and a finding of abuse or neglect is not a condition

precedent to its ability to file a guardianship proceeding.

N.J.S.A. 30:4C-15 grants the Division exclusive authority whether

14 A-3628-15T2
to file a guardianship under Title 30. See N.J. Div. & Servs. v.

A.P., 408 N.J. Super. 252, 262-63 (App. Div. 2009), certif. denied,

201 N.J. 153 (2010). In New Jersey Division of Youth and Family

Services v. K.M., 136 N.J. 546, 556 (1994), the Supreme Court

stated: "termination proceedings, which are brought pursuant to

N.J.S.A. 30:4C-15, do not require a prior determination of abuse

or neglect." Therefore, we reject Judith's claims relating to the

Division's alleged "lack of jurisdiction" as having no basis law.

There is no basis to revisit the trial judge's decision under

Rule 4:50-1(a), (c) or (f). As the trial judge noted, Judith's

"claims [of coercion and duress by the Division] are vague and

unsubstantiated." As noted above, Judith's claims regarding the

lack of jurisdiction are likewise without merit. Thus, the first

prong of J.N.H. has not been met.

As to the second prong of J.N.H., Judith has not demonstrated

vacating the judgment is in Jane's best interests. Her brief is

silent on the subject beyond the claims we have addressed. And

the trial judge noted Judith provided her with no information to

conclude it was in Jane's best interests to vacate the judgment.

The trial judge said:

[Jane has] lived with her maternal aunt her
entire life. No one disputes that the aunt
has provided excellent care for [Jane]. It
would be highly disruptive to this child's
life to remove her from the only home she has

15 A-3628-15T2
 known. [Jane] has been stable in this home
for two years.

We have no basis to disagree with the trial judge's reasoning.

Affirmed.

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