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State, Division of Youth and Family Services v. T.B.


March 25, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-38-06.

Per curiam.



Submitted March 10, 2008

Before Judges Collester and C.S. Fisher.

In this appeal, defendant T.B., the birth mother of M.B., argues that the trial judge erred in denying her motion to vacate her surrender of parental rights. After careful review, we conclude that the judge was correct in determining that defendant had made a free, knowing and voluntary decision and that, in seeking relief from the surrender, demonstrated only in that she was emotional at the time of the surrender. Accordingly, the order denying the motion to vacate must be affirmed.

M.B. was born on November 8, 2002. Defendant is her biological mother. R.S. is the child's biological father.*fn1 At the time of the child's birth, a hospital hold was placed on M.B. because she tested positive for PCP and marijuana. On May 19, 2004, defendant surrendered her rights to the child, but the identified person was tragically shot and killed before adoption could occur. As a result, on March 8, 2006, the Division of Youth and Family Services filed a complaint seeking the termination of defendant's parental rights to M.B., pursuant to N.J.S.A. 30:4C-15.1(a).

A trial was commenced. However, after two days, defendant decided to surrender her parental rights in order to allow the adoption of M.B. by her foster parents. At that time, defendant was thoroughly questioned about her decision. Although the transcript of these proceedings reveals that defendant was emotional, it also demonstrates that defendant acknowledged that she made her decision freely and voluntarily:

Q: And it's your intention today to do an identified surrender, is that correct?

A: Yes.

Q: In fact, you want to surrender your parental rights only on the condition that the current care givers wind up adopting this child, is that correct?

A: Yes.

Q: You're doing this freely, . . . knowingly and voluntarily, is that correct?

A: Um-hm.

Q: Is anyone forcing you today to make this decision?

A: No (crying).

Q: Are you under the influence of any medication or drugs that would influence your thinking today?

A: No.

Q: Now you understand that you have a right to a trial in this case, is that correct?

A: Yes.

Q: And you understand at this trial, you'd be able to present evidence on your own behalf and challenge the evidence that's presented against you, is that correct?

A: Yes.

Q: And you're waiving this right, is that correct?

A: Yes.

Q: And you understand that what you're doing today is a final action, is that correct?

A: Yes.

Q: . . . Only on the condition that [the identified foster parents] -- for any reason . . . do not wind up adopting, then your rights, as a parent, [will] be reinstated, is that correct?

A: Yes.

Q: . . . Other than that, this is an unconditional surrender?

A: Yes.

Q: Okay. Do you have any questions for me, the [c]court or anyone else with respect to this matter?

A: No.

Q: And you feel . . . it's in the best interest of [M.B.] to be adopted by these parents?

A: Yes.

Based on this testimony, on November 15, 2006, the trial judge entered a judgment, which memorialized his determination that defendant made a "knowing and voluntary identified surrender of [her] parental rights [to the child]."

Defendant did not appeal the judgment but instead, on March 5, 2007, moved to vacate her surrender, asserting that she "was not thinking clearly" because she "was very emotional at the time." The judge heard oral argument and then denied the motion by way of an order entered on August 8, 2007. In his oral decision, the judge made the following observations about the earlier surrender hearing and the sufficiency of defendant's moving papers:

[T]he [c]court is satisfied that there is absolutely no . . . legitimate reason to vacate the judgment. It does not meet the criteria set forth in [R.] 4:50-1, nor does it meet the criteria set forth in [In re Guardianship of J.N.H., 172 N.J. 440 (2002)].

Clearly, this is a case where the [c]court is satisfied that at the time that she entered the surrender that [defendant] clearly knew what she was doing, what was at stake.

Clearly, obviously, it is an emotional thing, but that is not the basis for vacating a judgment. It is fraud, mistake, inadvertence, surprise, excusable neglect, et cetera, none of which [defendant] has met.

And [the deputy attorney general] does have a point. This would be the second time she had given a surrender.

And the fact of the matter is, is that [defendant], after extensive discussion with the [c]court, as well as the extensive voir dire conducted by [defense counsel], the law guardian, as well as the [d]eputy [a]attorney [g]eneral involved in this case, she clearly knew what she was doing and had considerable time to consider whether or not the surrender was in the best interest of her daughter which she did.

Defendant appealed the August 8, 2007 order, arguing that the trial judge abused his discretion and deprived defendant of her constitutionally protected parental rights by failing to vacate her identified surrender of her parental rights. Defendant argues (1) that, under the totality of the circumstances, she established sufficient evidence of coercion, duress and mistake, and (2) in the absence of vacation, the child would be deprived of her "sibling rights" under the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6. We find insufficient merit in the second part of defendant's argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).*fn2

We reject the remainder of defendant's arguments for the following reasons.

Defendant made an identified surrender of the child pursuant to N.J.S.A. 9:2-16, meaning that she voluntarily relinquished her parental rights "for the purposes of allowing a child to be adopted." N.J.S.A. 9:3-38(j). To be effective, such a surrender must be given freely, voluntarily and understandingly. Sees v. Baber, 74 N.J. 201 (1977); Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127 (1976); In re Adoption of a Child by J.B., 63 N.J. Super. 98 (App. Div. 1960); In re Guardianship of C.M., 158 N.J. Super. 585, 590-91 (J. & D.R. Ct. 1978). N.J.S.A. 9:2-16 declares that the surrender "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" (emphasis added).

This standard is not easily overcome. For example, a surrendering parent's mistake "is not of such nature as will vitiate an otherwise valid consent" for adoption. In re Adoption of a Child by P., 114 N.J. Super. 584, 592 (App. Div. 1971). A more substantial basis must be provided, such as where a surrendering parent did not have the opportunity to consult with counsel, C.M., supra, 158 N.J. Super. at 593-94, or where an agency exerts pressure that involves "threats of harassment and litigation" or where the "failure to inform [the parent] of options for the care of the child other than an immediate choice . . . of irrevocable surrender," Sorentino, supra, 72 N.J. at 129, 132-33. But, "'normal emotional distress of a surrendering parent or the inherent pressures of a situation involving the giving up of her child . . .' [are] not sufficient to impugn the surrender of a child otherwise made without coercion or duress." Sees, supra, 74 N.J. at 214 (citing In re Adoption of a Child by R.D., 127 N.J. Super. 311, 319 (App. Div.), certif. denied, 65 N.J. 292 (1974)).

We agree with the trial judge's determination that the record demonstrates only that defendant was emotional at the time of the surrender. In her moving papers, defendant failed to make a showing of fraud, duress, or misrepresentation, or the existence of other equitable or constitutional concerns, that would warrant a vacation of her surrender.


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