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New Jersey Division of Youth and Family Services v. S.A.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 29, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.A., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF M.R., A MINOR.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.S., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF M.R., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-15-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2008

Before Judges S. L. Reisner and Gilroy.

S.A., the biological mother of M.R., a girl born January 2, 2002, and C.S., M.R.'s biological father, appeal from the April 27, 2007, order of the Family Part, terminating their parental rights to their daughter.*fn1 Both parents also appeal from the May 30, 2007, order, which denied their motion, seeking an order "directing the [New Jersey] Division of Youth and Family Services [(DYFS)] to change the Permanency Plan from termination of parental rights to kinship legal guardianship [(KLG)]."*fn2 We affirm.

At the time of M.R.'s birth, both parents were incarcerated. Although S.A. was released from jail following M.R.'s birth, C.S. remained incarcerated. S.A. continues to suffer from a chronic substance abuse addiction to heroin. On August 23, 2002, S.A. married D.A.

DYFS's first involvement with S.A. occurred in January 2002, when it received a referral advising that S.A. had given birth to M.R. while incarcerated. S.A. indicated to DYFS that she desired her parents to have custody of M.R. because they already had legal custody of her oldest daughter, K.C.; accordingly, DYFS did not become involved with the family at that time. Subsequently, as a result of a custody hearing following S.A.'s request for the return of her children, K.C. remained in the care and custody of her maternal grandparents, while M.R. was returned to the care and custody of S.A.

On February 3, 2005, DYFS received a referral from the West Orange Police Department, advising that D.A. had been arrested for purchasing heroin, after leaving C.A. in the backseat of a motor vehicle within reach of a handgun. While in police custody, D.A. contacted S.A., requesting her to come to the police station to pick up C.A. On arrival, S.A. admitted to the police that she had used heroin as recently as three weeks prior. Fresh needle track marks were noted on S.A.'s arm. A DYFS special unit response worker responded to the request of the police station and interviewed S.A. S.A. again not only admitted to using drugs, but also stated that heroin was the drug of her choice. Following background checks into both parents, DYFS removed M.R. and C.A. from S.A.'s and D.A.'s custody.

On the same day, DYFS completed an internet search on C.S.'s whereabouts, and determined that he was incarcerated at the Garden State Youth Correctional Facility, Yardville. On February 7, 2005, DYFS was granted the care, custody, and supervision of both M.R. and C.A.

In June 2005, DYFS received a letter from C.S., requesting that M.R. be placed with B.R. and R.R., his daughter's maternal grandparents. On August 8, 2005, DYFS received a phone call from B.R., stating that S.A. had been in the Sussex County Jail since August 5, 2005, for violating probation and that she was unaware when her daughter would be released. On August 24, 2005, DYFS placed both children with their maternal grandparents as caregivers.

On November 14, 2005, S.A. pled guilty to violation of probation, and was sent to the Epiphany House, Long Branch, a transitional recovery home for chemically-addicted women. The program lasts from six to twelve months. On January 27, 2006, following a negotiated plea agreement with the Essex County Prosecutor, D.A. was sentenced to three years of probation on drug and weapon convictions.

On January 27, 2006, DYFS presented a permanency plan to the trial court stating that its goal was to proceed to a guardianship proceeding against S.A., D.A., and C.S. On the same day, the trial court accepted the permanency plan and dismissed the initial protective services complaint. Lastly, on that day, DYFS filed a complaint for guardianship with respect to M.R. and C.A. On June 14, 2006, the parties engaged in mediation, agreeing that joint legal and physical custody of C.A. was to be returned to S.A. and D.A., effective July 7, 2006. S.A., who was in the Epiphany House, was granted physical and legal custody of M.R. A confirming order was entered the same day, which dismissed the guardianship complaint and reopened the protective services complaint.

On August 10, 2006, DYFS received a referral, advising that S.A. had missed an appointment at the Epiphany House on August 8, 2006. The report stated that a program representative had gone to S.A.'s home, and that S.A. had refused to provide the representative with a urine sample. On August 11, 2006, the trial court reviewed the matter and determined that S.A. had relapsed into drug abuse and had left the substance abuse program. At that time, C.S. remained incarcerated. On November 6, 2006, the trial judge entered a dispositional order, which:

1) transferred sole legal and physical custody of C.A. to D.A.;

2) returned M.R. to the legal custody of DYFS; 3) terminated the abuse and neglect litigation arising from the emergency removal of M.R. and C.A. in 2005; and 4) authorized the filing of a guardianship complaint. DYFS, in turn, placed M.R. in the physical custody of her maternal grandparents. On the same day, DYFS filed a complaint for guardianship of M.R. against S.A. and C.S., with the trial scheduled for April 23, 2007.

On April 18, 2007, S.A. and C.S. filed a joint motion seeking to compel DYFS to change its permanency plan for M.R. from termination of parental rights to that of KLG with the maternal grandparents. On April 23, 2007, Judge Gannon denied the motion, determining that KLG was not a viable alternate plan because the maternal grandparents desired to adopt M.R. Immediately following the denial of the motion, both parents, after extensive questioning by counsel, executed voluntary identified surrenders of their parental rights in favor of the maternal grandparents. A confirming order terminating the parental rights of S.A. and C.S. was entered that day. A confirming order, denying the motion, was entered on May 30, 2007.

On August 8, 2008, S.A. and C.S. filed untimely notices of appeal, but did not seek a stay of the adoption of M.R. by the maternal grandparents. On September 12, 2007, a judgment of adoption was entered in the Family Part in favor of the maternal grandparents. On appeal, S.A. and C.S. argue: 1) the trial judge erred in denying their motion for KLG; 2) the trial judge erred in determining that the surrender of their parental rights was freely and voluntarily given; and 3) the parents were denied effective assistance of trial counsel.

We have considered each of the arguments presented in light of the record, the applicable law, and the arguments of counsel. We are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

S.A. and C.S. argue that the trial judge erred in denying their joint motion seeking to compel DYFS to change its permanency plan from termination of parental rights to that of KLG with the maternal grandparents. Judge Gannon correctly denied the motion, determining that the maternal grandparents desired to adopt M.R. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004) ("[A] kinship legal guardian may only be appointed when 'adoption of the child is neither feasible nor likely.'") (quoting N.J.S.A. 3B:12A-6d(3)(b)).

S.A. and C.S. argue next that they did not voluntarily surrender their parental rights to M.R. in favor of the maternal grandparents. S.A. contends that the surrender was involuntary because she was pregnant at the time of the April 23, 2007, court proceeding. S.A. asserts that she surrendered her rights because if she had litigated the complaint for involuntary termination of her parental rights to M.R. and had lost, it would have put at risk the services that she might have needed to protect her unborn child in the future, citing N.J.S.A. 30:4C-11.3c. These arguments have no basis in fact.

We have reviewed the record of the proceedings at which each parent executed the identified surrenders. Each parent was questioned, not only by his or her own counsel, but also by counsel for DYFS. Among other matters, the parents acknowledged that they were surrendering their parental rights to M.R. voluntarily; they understood the parameters of an identified surrender; they were not under the influence of any drugs or alcohol; and they were executing the identified surrenders because each believed it to be in the best interests of M.R. The trial judge, having had the opportunity to assess each parent's responses to the questions proposed by counsel, found that each parent's surrender had been freely and voluntarily made. We agree.

Additionally, the record is devoid of any indication that S.A. had concern as to what effect, if any, an adverse adjudication in the guardianship proceeding would have had on a future request for services for her unborn child. Nor was the record ever supplemented on appeal to include a certification or affidavit from S.A. stating that she had such concern at the time that she executed her identified surrender. Because the argument of inducement is not supported by any evidence that S.A. had concern over the possible need for the future services of her unborn child, the argument is rejected.

Lastly, we address the parents' challenge to the procedural aspect of the trial court's proceedings, resulting in the execution of their identified surrenders. Following the denial of the parents' motion seeking to compel DYFS to change its permanency plan to KLG, the parents could have contested the involuntary termination proceedings, requiring DYFS to prove the four prongs of the "best interests of the child" standard. N.J.S.A. 30:4C-15.1a. However, both parents chose to execute voluntary identified surrenders in favor of the maternal grandparents. N.J.S.A. 9:3-41. We are satisfied that, having chosen to execute the voluntary identified surrenders, rather than contest the involuntary proceeding and then appeal, the parents waived their rights to challenge the denial of the motion. We find the issue moot, especially considering the effect of the subsequent order of adoption.

Affirmed.


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