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New Jersey Division of Youth and Family Services v. D.V.

April 9, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.V. DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF D.V., E.W. AND S.V., MINORS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-259-05 and FG-07-225-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 4, 2008

Before Judges Coburn, Fuentes and Chambers.

Defendant D.S.V.*fn1 appeals from two orders of January 9, 2007,*fn2 denying her motion to vacate her voluntary identified surrender of her parental rights to her three children. Her identified surrender was placed on the court record on March 17, 2007. The next day she notified her attorney that she wanted to set aside the identified surrender. After a plenary hearing, the trial court found that the identified surrender was knowingly and voluntarily given, and denied her application to vacate it. This appeal followed.

On appeal, D.S.V. contends that the trial court erred in upholding the identified surrender of the children. She maintains that she was misled to believe that if she did not surrender the children, they would be separated, and she contends that a representative of the New Jersey Division of Youth and Family Services (DYFS) led her to believe that she would lose at trial. Defendant also maintains that her due process rights were violated due to various procedural matters regarding earlier proceedings.

We reject these arguments and affirm. After reviewing the record, we are satisfied that the evidence supports the trial court's ruling that the identified surrender of the children was given knowingly and voluntarily and that D.S.V. was not subjected to any fraud, duress or misrepresentation when doing so.

A surrender is defined as "a voluntary relinquishment of all parental rights by a birth parent . . . for purposes of allowing a child to be adopted." N.J.S.A. 9:3-38(j). An identified surrender is a surrender for the purpose of having the child adopted by a specific person. N.J.S.A. 9:3-41(d). Surrenders, provided they are voluntary, are 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." N.J.S.A. 9:2-16; N.J.S.A. 9:3-41(a). Thus, in order for D.S.V.'s identified surrender to be binding, it must have been knowingly and voluntarily given, without any fraud, duress or misrepresentation.

Defendant is the mother of three children. D.V., born on July 16, 2001, and E.W., born on September 20, 2002, were removed from D.S.V.'s care on December 10, 2002, and have remained in foster care since then. S.V., born on February 2, 2005, was placed in foster care shortly after birth. All three children are in the same foster home, and the foster parent, T.G., seeks to adopt them.

The trial on the termination of D.S.V.'s parental rights to the two oldest children was scheduled for Monday, March 20, 2006. On the preceding Thursday, March 16, 2006, a mediation session was conducted, involving DYFS, D.S.V., T.G., and counsel for both DYFS and D.S.V. During this mediation, D.S.V. met with T.G. separately, with T.G. and the mediator together, and at some point her attorney also joined the discussion. D.S.V.'s sister was also present in court with D.S.V. that day. Although the third child, S.V., was subject to a separate legal proceeding, apparently, the discussions at the mediation also included the surrender of that child as well. After the mediation session, D.S.V. took the night to consider the identified surrender. She later testified that she discussed the identified surrender with her husband, her sister, and her attorney, as well as a Ms. Simon from Babyland.

On the following day, Friday March 17, 2006, the parties appeared in court and D.S.V.'s identified surrender of all three children was placed on the record. At that hearing, D.S.V. was placed under oath and questioned extensively. D.S.V. acknowledged that she was giving up her parental rights "forever," so that the foster mother T.G. and only T.G. could adopt them. D.S.V. indicated that she understood that she could continue to have contact with the children if permitted by T.G. D.S.V. waived her right to three counseling sessions under N.J.S.A. 9:3-39.1(b) and N.J.A.C. 10:121A-5.4(c)(1). D.S.V. testified that no promises or threats had been made to her to cause her to give up her rights to the children.

On cross-examination, D.S.V. expressly acknowledged that she understood that the surrender was permanent and that she could not change her mind and come back to court.

The trial judge further questioned D.S.V. to make clear that she understood that she would have no legally enforceable right to compel T.G. to allow her to see the children and that any future contact she had with the children would be totally up to T.G. D.S.V. confirmed to the court that no one had forced or threatened her, that she had had enough time to discuss the matter with her attorney, and that she understood that she had a right to go to trial. She acknowledged that it was in the best interests of the children for them to remain with T.G. Just prior to accepting the surrender, the trial judge asked D.S.V. once again if she needed more time to think about the decision. She said no, and the trial court then accepted the identified surrender. The transcript ...


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