February 7, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF S.H., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-68-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2011
Before Judges Grall, C.L. Miniman, and LeWinn.
On November 6, 2009, defendant A.H., formerly known as A.P., surrendered parental rights to her son, S.H. On November 30, 2009, she filed a motion to vacate the surrender, which the judge denied on January 11, 2010. Because the judge's determination is based on findings of fact that are adequately supported by the evidence, we affirm. R. 2:11-3(e)(1)(A).
A.H. gave birth to S.H. in June 2004. At that time, a complaint filed by the Division of Youth and Family Services (DYFS) alleging A.H. abused S.H.'s half-sister was pending in the Family Part. In August 2005, DYFS amended the pending complaint to allege that S.H. was abused or neglected by A.H. and his father, F.H. On August 25, 2005, the judge placed S.H. under the care and supervision of DYFS, and DYFS placed S.H. with his paternal grandmother. N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252, 255-56 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). Between September 2005 and September 2007, there were eight compliance review hearings and on each occasion S.H. was left in the custody of DYFS and physical custody of his grandmother. Id. at 256. On September 19, 2007, a permanency hearing was held; the judge determined "that it was 'appropriate and acceptable' for DYFS to file a complaint for termination of [A.H.'s] and F.H.'s parental rights." Ibid. DYFS filed a complaint seeking termination of their parental rights under Title 30 on January 14, 2008, and on January 29, 2008, the judge dismissed the Title 9 litigation. Id. at 257. On February 22, 2008, the trial judge entered an order in the Title 30 action continuing DYFS's custody of S.H. Ibid.
A.H. filed a notice of appeal from the order dismissing the Title 9 litigation on March 19, 2008. Ibid. Although orders continuing DYFS's custody of S.H. were entered in March, June, November and December 2008, on December 22, 2008, the judge stayed the guardianship action pending this court's decision on the pending appeal. Ibid. By that time, DYFS had transferred physical custody of S.H. from his grandmother to F.H.'s cousin and her husband.
On appeal, A.H. argued that the order dismissing the Title 9 action and the commencement of a Title 30 action without a finding of abuse or neglect deprived her of due process. Id. at 257-58. We concluded that DYFS was not required to try to conclusion or prevail in a Title 9 action before filing a complaint to terminate parental rights. Id. at 258-64. Our decision was issued on July 17, 2009. Although A.H. petitioned for certification, while that petition was pending proceedings in the trial court resumed in conformity with our decision.
A trial on termination was scheduled for November 2009, but on October 30, 2009, A.H. moved to dismiss the Title 30 action. On November 6, 2009, the court denied that motion. At that motion hearing, F.H. surrendered his parental rights to his cousin and her husband. A.H., who participated by telephone, was given the opportunity to speak privately with her attorney, who was present in court. Like F.H., she decided to surrender her parental rights on the condition that S.H. be adopted by F.H.'s cousin and her husband. She said that she made that decision because it was in the best interests of S.H.
A.H.'s attorney advised her that a voluntary surrender of her parental rights could affect her pending petition for certification and her right to pursue an appeal from the Title 30 action. A.H. acknowledged that she understood and wanted to proceed with the surrender.
A.H.'s attorney and the judge conducted a thorough inquiry probing A.H.'s sobriety and her understanding of the consequences and finality of her decision to surrender. In her own words, A.H. clearly articulated the consequences of her decision to surrender her parental rights to permit adoption by F.H.'s relatives. She also explained that she wanted to surrender her parental rights to permit adoption by S.H.'s current caretakers because it was in the child's best interests. A.H. said she wanted the matter resolved and declined to take advantage of the counseling sessions DYFS offered to prepare her to make the decision. In addition, A.H. confirmed that she was satisfied with her lawyer's advice and had not been promised anything in return for her surrender. The exchanges between A.H., the judge and the attorneys were civil and matter of fact. The judge concluded that A.H. understood the consequences and was voluntarily surrendering her parental rights to permit adoption by the identified relatives.
On November 30, 2009, A.H. moved to vacate her voluntary surrender. Although A.H. did not submit a certification in support of the motion or appear on the January 11, 2010 return date, her attorney represented that she had contacted him and asserted that she was under duress at the prior hearing because her motion to dismiss the Title 30 action had been denied.
The judge found that A.H. was clear and coherent at the time of the surrender. The judge considered the assertion of duress relayed by A.H.'s attorney, but he remained convinced that A.H. understood and knew what she was doing and that her surrender was voluntary and not the product of stress inherent in the circumstances. Finding no basis for vacating the surrender, the judge denied the motion.
On appeal A.H. argues:
I. THE DENIAL OF A.H.'S MOTION TO VACATE HER IDENTIFIED SURRENDER OF S.H. SHOULD BE REVERSED, BECAUSE OF THE WOEFUL LACK OF PROPER LEGAL PROCESS IN THIS CASE.
A. VOLUNTARY SURRENDERS IN GUARDIANSHIP MATTERS BROUGHT UNDER N.J.S.A. 30:4C-15 ET SEQ. MAY BE VACATED FOR ANY GOOD CAUSE SHOWN.
B. THE COURT SHOULD HAVE VACATED A.H.'S SURRENDER OF S.H. BECAUSE OF THE PERVASIVE LACK OF DUE PROCESS, BOTH IN THE [TITLE 30] GUARDIANSHIP ACTION AND IN THE UNDERLYING [TITLE 9] CHILD ABUSE-NEGLECT ACTION CONCERNING S.H.
1. DYFS VIOLATED DUE PROCESS WHEN IT OBTAINED ITS ORDER TO SHOW CAUSE TO BEGIN FG-12--08.
2. A.H. WAS DENIED DUE PROCESS BY BEING WRONGLY DENIED CONTACT WITH HER SON.
II. A.H.['S] SURRENDER SHOULD BE VACATED BECAUSE DYFS HAS NOT MET ITS RESPONSIBILITY TO KEEP A.H. INFORMED IN REGARD TO THE CONTINUING PLAN FOR S.H.'S ADOPTION BY BOTH THE PATERNAL COUSIN AND HER HUSBAND OR TO ASSURE THAT THE COUSIN AND HER HUSBAND TELL S.H. ABOUT A.H. IF HE INQUIRES AND THAT THEY DO NOT "BAD-MOUTH" A.H. TO S.H.
III. TO THE EXTENT THAT A.H.'S TRIAL COUNSEL DID NOT ACT TO PROTECT A.H.'S DUE PROCESS RIGHTS, A.H.'S SURRENDER OF S.H. SHOULD BE VACATED BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
After reviewing the record in light of these contentions, we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). For the most part, A.H.'s claims reiterate objections raised and addressed on her prior appeal. Although A.H. was given the opportunity to have DYFS establish grounds for termination of her parental rights by clear and convincing evidence under the four-prong standard that mandates proof of parental harm and the reasonableness of DYFS's efforts to assist in eliminating that harm, A.H. opted to surrender her rights rather than proceed to trial. In so doing, she waived the process and procedures that would have required DYFS to prove that termination was in the best interests of S.H.
The trial judge, who accepted the surrender and considered the motion to vacate, found that A.H. acted with full understanding, voluntarily and in accordance with her view of her son's best interests at that time. A review of the transcript and the proofs submitted on the motion does not permit any other conclusion. There is absolutely nothing in the record that would permit us to disturb the judge's factual findings or allow us to conclude that his application of the law to the facts was wide of the mark. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007); In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Whether viewed under the standards applicable on a motion to vacate a consent judgment or the statutory standards applicable to relief from a surrender of parental rights made in a different context, the judge's decision that an order vacating the surrender was unwarranted is unassailable. R. 4:50-1; N.J.S.A. 9:3-41; Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div.), certif. denied, 137 N.J. 165 (1994).
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