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New Jersey Division of Youth and Family Services v. R.G.

September 25, 2002

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.G., DEFENDANT-MOVANT, IN THE MATTER OF THE GUARDIANSHIP OF G.I.M., J.M.M., AND J.C.M., MINORS.



On motion for leave to appeal nunc pro tunc from an order of guardianship entered on August 16, 2001 in the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Number FG-20-55-00.

Before Judges Kestin, Eichen and Fall.

The opinion of the court was delivered by: Fall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 4, 2002

In this guardianship case R.G., natural mother of G.I.M., J.M.M. and J.C.M., moves for leave to file a notice of appeal nunc pro tunc from an order entered in the Family Part on August 16, 2001, terminating her parental rights to these three children. R.G.'s motion raises significant issues and concerns of both a procedural and substantive nature.

The following history is relevant to our resolution of this motion. G.I.M. was born on April 6, 1997; J.M.M. on June 1, 1998; and J.C.M. on September 11, 1999. R.G. is the natural mother of the three children, and G.M. is the natural father. The two parents never married and lived intermittently with each other for several years up until G.M.'s incarceration some time in 1999. They have not resided together since that time and, subsequent to his release from prison on parole some time in 2000, G.M. formed another relationship and married that person.

R.G. has been diagnosed as suffering from a chronic paranoid schizophrenic disorder that has caused her to be hospitalized on three occasions. Based on that psychiatric history, various domestic violence issues between the parties, housing instability, and G.M.'s incarceration, the New Jersey Division of Youth and Family Services filed a child abuse and neglect complaint in the Family Part against both parents on or about September 11, 1998 under docket number FN-20-21-99W, seeking custody of the children. An order was entered in that action vesting custody of the children with DYFS; G.I.M. and J.M.M. were placed into foster care. When J.C.M. was born, she was also placed into foster care. To this date, all three children continue in separate foster homes, and their foster parents have signified their desire to adopt the children.

After failed attempts to provide services to the parents, DYFS filed a guardianship complaint in the Family Part against R.G. and G.M. on March 27, 2000, under docket number FG-20-55- 00, seeking an order terminating their parental rights as to all three children. Both parents participated in that case and were represented by counsel designated by the Office of the Public Defender.

The issues in the guardianship complaint were tried in the Family Part between August 1 and 7, 2001. On August 9, 2001, the trial judge placed her factual findings and conclusions on the record, ruling DYFS had established by clear and convincing evidence each part of the four-prong test enumerated in N.J.S.A. 30:4C-15.1(a), and that the termination of the parental rights of R.G. and G.M. was in the best interests of the children. See also New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 602-12 (1986). After the judge had rendered her oral decision, the transcript of that hearing discloses significant colloquy between the court and all counsel making clear the intent of both parents to appeal the court's decision. The formal order for guardianship, embodying a judgment terminating their respective parental rights, was entered on August 16, 2001.

On September 13, 2001, R.G. executed a form provided by the Office of the Public Defender, entitled "Notice of Right to Appeal - DYFS Cases." R.G.'s signature on the form was witnessed by her trial counsel. By execution of the form, R.G. acknowledged her right to appeal the order of termination within forty-five days. She specifically signified her desire to appeal from the August 16, 2001 order and requested representation thereon from the Office of the Public Defender.

A notice of appeal was filed on behalf of G.M., represented by counsel designated by the Office of the Public Defender. That appeal was perfected, the issues were briefed, and the matter was submitted to this court for decision on February 6, 2002. On March 5, 2002, we filed a written opinion, affirming that portion of the August 16, 2001 order terminating G.M.'s parental rights as to all three children. DYFS v. G.M., A-0083- 01T4 (Mar. 5, 2002). G.M.'s petition for certification was denied by the Supreme Court on June 4, 2002.

R.G.'s motion for leave to file a notice of appeal nunc pro tunc was filed on August 13, 2002, nearly a full year after entry of the August 16, 2001 order terminating her parental rights. Assistant Public Defender Gillian A. Swanson, employed in the Parental Representation Unit of the Public Defender's Office, submitted a certification in support of R.G.'s motion.

In her certification, Ms. Swanson explained that on or about July 15, 2002, her Unit received a telephone call from R.G., inquiring about the status of her appeal. A review of the Unit's case management system disclosed that no appeal had been filed on behalf of R.G. A further investigation led to retrieval of R.G.'s trial case file from storage, and "[a] review of the attorney's ...


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