April 9, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 of this hearing thus reflects a knowing and voluntary identified surrender with no suggestion that D.S.V. was acting under duress or a misunderstanding about the nature of the identified surrender.
On Saturday, March 18, 2006, the day after the identified surrender was placed on the record, D.S.V. called her attorney and left a voice mail message that she wanted to take back the surrender. The attorney advised the court of the call on Tuesday, March 21, 2006. Thereafter, D.S.V. made a formal motion to vacate the surrender.
Eventually, a plenary hearing was held on January 9, 2007, before the same trial judge who had taken the surrender. D.S.V. explained that she changed her mind about the surrender because "I do not want my kids to grow up hating me." She testified that she had not understood what "identified surrender" meant. She also stated that she had felt pressured to give up her rights to the children because she thought that if she did not do so, the children would be separated. She said that both DYFS and the mediator told her this. She stated that Beverly
Thompson, a DYFS supervisor, told her that if she did not give up her rights, she would lose at trial.
In her testimony to the court, Thompson denied telling D.S.V. that the children would be separated, and she denied pressuring or threatening D.S.V. into surrendering her parental rights. Thompson did acknowledge that she had discussed with D.S.V. the DYFS evaluations indicating that D.S.V. could not safely parent the children, and that she had discussed options with D.S.V.
The trial court denied D.S.V.'s application to vacate the identified surrender, finding that it had been knowingly and voluntarily given. The Law Guardian for the children has taken the position before the trial court and on appeal that the identified surrender was knowingly and voluntarily given.
We will not disturb the findings of the trial court that are supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Deference to the trial court is particularly appropriate when the evidence below is largely testimonial, given the trial court's opportunity to see and hear the witnesses and evaluate their credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). The trial judge, as the trier of fact whose job was to weigh credibility, was free to reject D.S.V.'s testimony that she had been subjected to misrepresentations and improper duress. The record contains adequate credible evidence to support the trial court's finding that D.S.V. knowingly and voluntarily surrendered her parental rights, and that she was not subjected to any improper duress, misrepresentation or fraud by anyone. We find no basis to overturn that decision.
We note D.S.V.'s contention at oral argument and in her reply brief that under the identified surrender, the children could be separated if the adoption did not go through for all of them. In other words, under D.S.V.'s interpretation, if the adoption by T.G. went through for only one or two of the children, then the surrender would be effective for those children only and not the remaining child or children. If that happened, D.S.V. observes that the siblings could be separated. D.S.V. argues that this result is contrary to her understanding of the surrender and that the surrender should be set aside for this reason as well.
We find that this construction of the identified surrender is contrary to the record. At the March 17, 2006, hearing when D.S.V.'s surrender was placed on the record, it was explicitly established that she was giving up her parental rights so that the three children could remain together and that the foster mother T.G. could adopt them.*fn3 As a result, if T.G. fails to adopt all three children, then the surrender of each of the three children would be invalid.
The due process arguments raised by D.S.V. involving the procedural history of the case are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).