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

September 13, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.D., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.D., A.D. AND A.D. MINORS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-59-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 31, 2010

Before Judges Payne and Messano.

Defendant, M.D., the father of sons A.J.D., born March 17, 1993, M.A.D., born November 26, 1996, and A.I.D., born May 4, 1998, appeals from the denial on December 11, 2009 of his motion, pursuant to Rule 4:50-1, to vacate an identified surrender of his parental rights over the three boys, entered in open court on May 20, 2009. On appeal, M.D. argues that the motion judge improperly applied Rule 4:50-1 when denying his motion and that the judge failed to adhere to appropriate procedural safeguards when accepting the surrender, thereby violating M.D.'s due process rights. We affirm.

I.

The record in this matter establishes that, on June 16, 2004, a Title 9 action was filed by the Division of Youth and Family Services (DYFS) against M.D. arising from his alleged corporal punishment of A.J.D. and the child's alleged month-long confinement to the residence's bathroom. On September 30, 2004, M.D. pled guilty to one count of second-degree endangering the welfare of A.J.D., as amended to a crime of the third degree, N.J.S.A. 2C:24-4a. M.D. was sentenced to two years of probation in a judgment of conviction that also contained a no contact provision applicable to all three children. At the time, A.J.D. was eleven years of age; M.A.D. was almost eight; and A.I.D. was six.

On September 19, 2005, the Title 9 action was dismissed in connection with the filing of a Title 30 guardianship complaint. Following a psychological evaluation of M.D., on November 21, 2005, the Title 9 action was reinstated. However, a permanency hearing was conducted in the period between May 15, 2006 and August 24, 2007, on which date the judge set a permanency goal of termination of parental rights.

On September 5, 2007, a second guardianship complaint was filed. Upon completion of his probationary period, M.D. petitioned for and, on April 17, 2008, was granted supervised visitation with his children, whom he had not seen since June 2004, although A.J.D. was not required to attend visitation unless he wished to do so. Supervised visitation occurred for six months from April 2008 until September 17, 2008. However, M.D. did not attend supervised visitation from that date to May 20, 2009, despite the fact that time for such visitation was kept open by DYFS.

A guardianship trial commenced on October 20, 2008 and continued on January 7, 2009, February 23 and 25, 2009, May 19, 2009 and May 20, 2009. M.D. attended trial by telephone on October 20 and in person on January 7 and May 20. He was absent on the three remaining days of trial.

On May 20, following extended conferences between M.D. and his attorney and the prospective adoptive parent, M.D.'s sister, M.D. made a voluntary surrender of his parental rights to the three boys in favor of his sister, B.D. A judgment of guardianship was entered that day. Thereafter, on September 15, 2009, M.D. notified the trial court that he wished to file a motion to stay the adoption of the boys by B.D. and to vacate his surrender and resume the termination trial. A hearing was held on September 22, 2009, and at that time, a stay was denied by the judge, who held that M.D. had failed to meet the factors of Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982), having failed to present a credible record in support of his informal request. The judge then established a schedule for briefing and a hearing on M.D.'s Rule 4:50-1 motion.

At that hearing, which occurred on December 11, 2009, M.D. argued that at the time he agreed to the identified surrender, the boys were hostile to their father. However, after the surrender, he had been offered the opportunity to visit with the two younger children under the supervision of their aunt, and he had done so on approximately four or five days in July 2009.

After that, supervised telephone contact with all three boys had occurred, and as a result, the relationship between M.D. and the boys had "dramatically improved." M.D. claimed that if DYFS had "employed reasonable efforts in contact and counseling with my sons prior to my surrendering my parental rights, my relationship with my sons would have been very different and substantially more positive." M.D. further certified that it had taken very little time to achieve a break-through in the relationships, and "[i]f ...


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