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New Jersey Division of Youth and Family Services v. D.M.B.

February 15, 2005


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FG-17-16-03.

Before Judges Kestin, Lefelt and Falcone.

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


Submitted November 16, 2004

In these consolidated matters, D.M.B. and T.B.L., the mother and father, respectively, of three children, K.A.B. (born on March 10, 2001), B.K.B.L. (born on August 2, 2002), and M.A.L. (born on December 2, 2003), appeal from a judgment terminating their parental rights to all three children and awarding guardianship, care and control of the children to the Division of Youth and Family Services (DYFS). We affirm. Both appellants argue that the trial court's decision to terminate their respective parental rights was not adequately supported by clear and convincing evidence. A four-part standard embodied both in statute, N.J.S.A. 30:4C-15.1a, and in case law, see, e.g., Division of Youth & Family Serv. v. A.W., 103 N.J. 591, 604-611 (1986), establishes the grounds for terminating parental rights.

We have analyzed the record in the light of the arguments advanced by the parties and prevailing principles of law. In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and the judge's"feel of the case" based upon his or her opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). See Division of Youth and Family Serv. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001); Division of Youth & Family Serv. v. V.K., 236 N.J. Super. 243, 254 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied sub nom. Kliewer v. New Jersey, 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed. 2d 507 (1990); see also In re Guardianship of J.C., 129 N.J. 1, 17-18 (1992)(holding that record did not support a clear and convincing finding). We are not to disturb the judge's findings of fact unless they are"so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)); see also In re Guardianship of S.C., 246 N.J. Super. 414, 418 (App. Div.), certif. denied, 126 N.J. 334 (1991), appeal after remand, 260 N.J. Super. 304 (App. Div. 1992). And, the conclusions flowing logically from those findings of fact are, likewise, entitled to deferential consideration on appellate review. See Cesare, supra, 154 N.J. at 412; Rova Farms, supra, 65 N.J. at 484.

Judge Johnson's comprehensive written opinion in the matter deals analytically and reflectively with the evidence in the record as it bears separately on each appellant's parenting capacities. His findings of fact and the conclusions they generated are well supported by the evidence and are, therefore, binding on appeal. The judge's legal analyses regarding the parents' rights and his application of the four-part test to each of them are also free from error of any consequence. Given the factual record developed, we are in substantial agreement with the legal conclusions Judge Johnson reached. Accordingly, we determine that the termination judgment resulting from these findings, conclusions and legal analysis must be affirmed.

In addition to his argument regarding the four-part test, T.B.L. contends that the trial court erred in not accepting his"identified surrender of his parental rights." As the trial in the matter began, T.B.L. proffered an"identified surrender" of his parental rights so that the foster parents could adopt his children. Given the limited nature of an identified surrender, DYFS urged rejection of the proffer on the basis that it was not in the best interests of the children to restrict their availabilities for adoption.

The trial court accepted the identified surrender, but proceeded with the termination proofs. Judge Johnson explained this ruling in his written decision at the close of the case.

At the time of trial, [T.B.L.] offered to make an"identified surrender" as to the children to their current caretakers. The court notes that those caretakers are Division approved foster caregivers and their identities are unknown to [T.B.L.] The court accepted [T.B.L.'s]"identified surrender," after finding that the same was voluntary, not coerced, made without [T.B.L.] being under the influence of drugs or alcohol, and with a full understanding of what he was doing after full and open consultation and receipt of legal advice from his lawyer. The court also found that there were no promises being made to him in exchange for the surrender.

In practice, an"identified surrender" means that those exact person(s) as to whom the surrender is made shall adopt the children. If for some reason the"identified" persons are not able to adopt the child, the surrender becomes"void" and the parental rights of surrendering parent(s) are reinstated. See N.J.S.A. 9:3-38(j); N.J.S.A. 9:3-41; N.J.S.A. 30:4C-23.

Subsequent to this voluntary surrender, [T.B.L.] sought to withdraw from the termination case. He argued that the Division no longer needed to proceed against him as to the termination of his parental rights under N.J.S.A. 30:4C-15.1, because he had surrendered all of his rights as to these children by way of his"identified surrender."

The Division took the position that [it] wished to proceed against [T.B.L.] under N.J.S.A. 30:4C-15.1 regardless of his voluntary surrender.

[T.B.L.], after being advised of the fact the Division wished to continue to proceed against him under N.J.S.A. 39:4C-15.1, and the ramifications that would occur if the Division was successful against him under said statute, continued to request to withdraw from the proceeding. The court allowed [T.B.L.] to withdraw from the courtroom, but required that his legal counsel remain to defend his rights in regard to the termination action. Each day of the trial, [T.B.L.], who was ...

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