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State of New Jersey Division of Youth and Family Services v. T.G.

July 21, 2010

STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.G., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF R.V., MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-61-09.

The opinion of the court was delivered by: Lihotz, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued June 8, 2010

Before Judges Parrillo, Lihotz & Ashrafi.

Defendant T.G. appeals from a July 1, 2009 Family Part order denying her motion to set aside her voluntary surrender of parental rights in respect of her child, R.V., which resulted in a judgment awarding guardianship to plaintiff New Jersey Division of Youth and Family Services (DYFS or the Division) to secure the child's adoption. Defendant argues the court erred in denying her motion, filed pursuant to Rule 4:50-1. She maintains the judgment must be vacated as DYFS failed to comply with a material condition of the surrender agreement. Defendant additionally contends the court violated her rights of procedural due process and against self-incrimination. Following our review of these arguments in light of the record and the applicable law, we affirm.

Defendant gave birth to R.V. on May 1, 1997. R.V.'s father is R.J.V. The Division became involved with the family on May 30, 1997, as both defendant and R.J.V. suffered from alcohol dependence. R.J.V. voluntarily surrendered his parental rights on November 7, 2008, and is not a party to this appeal. We focus our review on defendant's surrender and her motion to vacate the judgment of guardianship.

After years of unsuccessful efforts to assist defendant's achievement of sobriety, the Division filed a complaint for guardianship on December 8, 2005. The complaint was amended on July 28, 2006, to seek kinship legal guardianship (KLG) in favor of R.V.'s grandmother, H.L. On September 1, 2006, defendant consented to entry of a KLG judgment. Then, on July 6, 2007, she moved to amend or vacate that judgment. Thereafter, the Division commenced a review of the family's circumstances, inquiring whether reunification was in the child's best interests.

The Division's investigation revealed defendant and R.J.V. continued their substance abuse and H.L. allowed defendant to reside in her home, ignoring the court's orders precluding defendant from unsupervised contact with the child. The Division reopened the protective services litigation and obtained an order of care and supervision of R.V.

Pending further review, the court allowed R.V. to remain with H.L. and required all contact between defendant and R.V. be supervised by the Division. Conflict between defendant and H.L. heightened, and H.L. informed DYFS she was unable to protect R.V. from defendant. On March 28, 2008, the Division exercised an emergency removal of R.V. The court vacated the KLG judgment and granted custody, care, and supervision of the child to the Division.

On August 21, 2008, the Division filed a second guardianship complaint, seeking termination of defendant's and R.J.V.'s parental rights. R.J.V. consented to a general surrender of his parental rights, while a trial to sever defendant's parental rights was scheduled for March 30 and 31, 2009.

On the first trial date, defendant, represented by counsel, appeared and agreed to voluntarily surrender her parental rights. During the ensuing hearing, defendant testified she knew the trial would begin that morning and acknowledged she had consulted with her attorney, who was prepared to proceed. Defendant stated she understood the nature of a general surrender, specifically that her decision would end her parental rights to R.V. and that all visitation would cease except as allowed at the discretion of the child's caretakers. Additionally, defendant waived her right to trial and the right to participate in three counseling sessions prior to the effectuation of her decision. She testified she had freely and voluntarily entered into her decision, was neither coerced nor threatened, and was free of the influence of drugs or alcohol. Upon cross-examination by the Division's counsel and the Law Guardian, defendant reiterated she had had enough time to think about her decision, had completely discussed the matter with her attorney, and understood the Division was ready to proceed to trial.

The court then conducted this inquiry:

[THE COURT] Do you understand everything that's going on today?

[DEFENDANT] Yes.

Q: Do you have any questions of . . . the [c]court concerning these proceedings?

A: No.

Q: Do you have any of DYFS, of the Law Guardian, or [defense counsel], or anyone from DYFS concerning the proceedings?

A: No.

Q: All right. And you understand you're entering into a general surrender of your rights to . . . the child?

A: Yes.

Q: Do you do so freely and voluntarily?

A: Yes.

Q: Are you under any duress or coercion to do so?

A: No.

Q: And you understand that after today you have no further rights to the child?

A: Yes.

Q: Okay. And you've been represented by [counsel] for ...


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