September 11, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.E., DEFENDANT-APPELLANT, IN THE MATTER OF THE GUARDIANSHIP OF: C.B., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FG-07-143-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 5, 2007
Before Judges Cuff and Lintner.
On June 26, 2006, defendant S.E., agreed to an identified surrender of her parental rights to her biological daughter, C.B. On September 1, 2006, S.E. filed a motion to revoke her surrender.*fn1 Following oral argument, Judge Rothschild denied the motion. It is from that order that S.E. appeals.*fn2 We affirm.
S.E. and C.B. first came to the attention of the Division of Youth and Family Services (DYFS) on December 23, 2004, after C.B., then nine months old, nearly drowned during a bath when S.E. left her unattended for a brief period of time. C.B. was removed from S.E.'s custody and care on that day. Initially placed in foster care, C.B. was eventually placed with her maternal grandparents in April 2005.
On February 6, 2006, DYFS filed an Order to Show Cause and Complaint for Guardianship. On June 26, 2006, S.E. attended a mediation, following which she agreed to an identified surrender of her parental rights. The record reveals that the mediation session lasted well over an hour. The mediation session was attended by the mediator, the deputy attorney general on behalf of DYFS, the law guardian, S.E., S.E.'s attorney, the maternal grandmother, the paternal grandmother, and S.B.'s attorney. S.B. participated telephonically. After approximately fifteen minutes, the deputy attorney general and the law guardian left the room. The attorney for the father of the child described the session as follows:
I think in general [DYFS] was asked questions and everyone was kind of putting forth, as [the law guardian] said, strengths of their -- their case while -- why we were where we were.
[W]hen at one point [the deputy attorney general and the law guardian] [were] asked to leave the mediation, and everyone else who remained in the mediation was myself, [the mediator], [the father], telephonically, [the assistant deputy public defender], the mother, and the paternal grandmother, and the maternal grandmother. So, what was unique about, you know, where [the assistant deputy public defender] may speak with her client in private, and I might speak with my client in private, when we spoke to our respective clients it was all at the same time during this mediation meeting. I didn't speak to [S.B.] and ask them to leave, and vice versa.
And what I will represent is I told [S.B.], I explained the finality of an identified surrender on his part that was accepted by the Court. Meaning there would be no opportunity to come into the Court and to ask any questions or to take issue with anything that [DYFS] had decided to do with respect to the minor child, once and if his identified surrender was complete.
Meaning, you know, if he didn't like what was done, he didn't like what was going to be done, [DYFS] had put if his identified surrender was -- was accepted I told him his rights with respect to his child were in at that point. That's me speaking to [S.B.], you know, literally on the phone, but with everyone else present. So, I think that dynamic was somewhat unique, because I would have that conversation with my client in private, and I'm sure counsel would do it. So, that I can unequivocally say was done, and that was -- I guess we looked at it as a family meeting, because the maternal grandmother, the paternal grandmother were there, everyone knowing that both of them were kind of the permanent plan as counsel's already said. Any advice that I gave to Mr. -- I'm not saying everything that I said, I'm just illustrating that one particular issue, because I believe the mother did make a statement with respect to custody, and her you know, at one point believing she could try and get custody back. I spoke to [S.B.] and told him.
I believe there was a point when she wanted to address [S.B.] herself, and then the rest of us left.
No one disputed this account of the mediation.
Following the mediation, S.E. and S.B., who continued to participate telephonically, appeared before Judge Rothschild. They were placed under oath and questioned by the attorney representing DYFS regarding their decision to surrender their parental rights. S.E. and S.B. acknowledged that they had a right to a trial, that the decision was irrevocable, and that they had not been pressured in any way to surrender their parental rights.
Whether we assess the surrender of parental rights in the context of a private setting or an approved adoption agency, a court must consider whether the surrender was involuntary or a product of undue means. Sorentino v. Family and Children's Soc. of Elizabeth, 72 N.J. 127, 130-31 (1976); In re Adoption of a Child by R.D., 127 N.J. Super. 311, 314 (App. Div.), certif. denied, 65 N.J. 292 (1974). In Sorentino the Court held that the surrender could not be considered voluntary because the surrender was hasty and coerced. Sorentino, supra, 72 N.J. at 130-31. By contrast the surrender in R.D. was effective because it was preceded by lengthy deliberation with full knowledge of the mother's options and the consequences of her decision. R.D., supra, 127 N.J. Super. at 314.
To be sure, N.J.S.A. 30:4C-23, which governs surrenders and releases of custody to DYFS and consents to adoptions, does not expressly address the standard for revocation of a surrender of parental rights. Nevertheless, the statute provides that surrenders of parental rights are irrevocable, except at the discretion of DYFS or by order of a court. N.J.S.A. 9:3-41a, which approves adoption agency surrenders, expressly states that no surrender can be set aside without proof of fraud, duress or misrepresentation by the approved agency. We discern no reason to apply a different standard to surrenders to DYFS.
Measured by this standard, Judge Rothschild properly denied S.E.'s request to revoke her surrender of parental rights. There is no evidence of fraud or misrepresentation. S.E. executed an identified surrender and there has been no alteration of that plan for C.B.'s future. Moreover, there is no evidence of duress or undue means to elicit S.E.'s decision to surrender her parental rights.
Moral compulsion or psychological pressure may constitute duress, if "the subject of the pressure is overborne and he is deprived of the exercise of his free will." Rubenstein v. Rubenstein, 20 N.J. 359, 366 (1956). The inquiry is whether the person giving consent would not have done so absent the duress or undue influence. Ibid. The pressure to which the person giving consent has succumbed must be wrongful and not all pressure is wrongful. Id. at 367. A difficult choice, made under less than ideal circumstances, is not synonymous with duress. R.D., supra, 127 N.J. Super. at 314. We, therefore, affirm the October 13, 2006 order that denies S.E.'s motion to vacate her surrender of parental rights substantially for the reasons expressed by Judge Rothschild in his October 11, 2006 written opinion.