On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-02-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Sabatino and Alvarez.
Defendant J.V., the biological mother of R.C., born February 16, 2005, C.C., born March 18, 2006, and D.C., born July 1, 2007, appeals the denial of her application to vacate an identified surrender of her parental rights pursuant to Rule 4:50-1(f). For the reasons that follow, we affirm.
In order to fully illuminate the reasons why the voluntary surrender should not be vacated, it is necessary to briefly describe the family's connections with plaintiff New Jersey Division of Youth of Family Services (the Division). J.V. has been an acknowledged drug user since childhood and suffers from serious mental health problems. She and the children's father, R.C., Sr., came to the Division's attention in 2006 as a result of reports of domestic violence. From that time until October 1, 2008, the date of R.C., Sr., and J.V.'s voluntary surrenders, the Division provided extensive services, including treatment for substance abuse as well as mental health and couples counseling.
The children were removed on several occasions, and were returned to J.V. under conditions with which she was unable to comply. At times, one or both of the parents would fail to appear for interim hearings. Subsequent to the final removal, supervised visitation was scheduled but sparsely attended.
Both parents were subsequently incarcerated on charges unrelated to the children's care and were in custody when they placed their voluntary surrenders on the record on October 1, 2008. At the time J.V. filed her application to set aside her voluntary surrender on September 25, 2009, she was still in custody. R.C., Sr., has not sought to vacate his October 1, 2008 voluntary surrender, which was placed on the record first.
At the hearing, J.V.'s trial attorney reviewed on the record the nature of a voluntary surrender, and her option to contest the proceedings and compel the Division to prove its case. Counsel also stated the three children were going to be adopted by their foster families and that, if the adoptions were not consummated, J.V.'s parental rights would be restored. J.V. testified she was surrendering her parental rights to the children voluntarily, free of any force or coercion, and free of any influence from alcohol, drugs, or other substances. When asked if she was "thinking clearly today," J.V. responded in the affirmative. She also indicated she had made this decision believing it to be "in the best interest of the children." In addition to that day, J.V. said she had conferred with her attorney in the prior week, and that a caseworker had visited her at the jail three times regarding the decision to surrender her parental rights. She acknowledged having been offered counseling to address the issue, but declined. J.V.'s attorney made clear that, even though the children's foster families were willing to allow photographs and letters to be exchanged with the children, this communication could be withdrawn by the families at their sole discretion. J.V. also said she was satisfied with the services rendered by her attorney.
Having heard the sworn representations of both parents, the judge found that they understood the termination was final, and that each had "a clear and sober mind today." He thanked them for making a difficult decision, which he characterized as "motivated by their belief that it is in the best interest of these three children to do so." As he put it, "[b]oth of them are obviously very emotional and appropriately so."
J.V.'s application to set aside her voluntary surrender was filed September 25, 2009. R.C. and C.C. were adopted in December 2009, by the same family, and D.C. was adopted May 2009. J.V. alleged that because she was being administered "mind and mood altering drugs" at the time of the surrender, it was not intelligently given. Although J.V. attached records from the Cape May County Jail confirming she was prescribed various drugs to address bipolar disorder and post-partum depression, no expert report was provided regarding any possible effect these drugs may have had on her ability to reason.
As to J.V.'s assertion she was unable to think clearly when she surrendered her parental rights because of her medications and post-partum depression, the court also noted that, during the hearing, her attorney asked twice if she was under the influence of any alcohol, drug, or other substance which would impair her judgment. J.V. denied this each time. The attorney also followed up on these statements, asking J.V. if she was thinking clearly that day, to which she responded in the affirmative. The judge denied her application to vacate the judgment because J.V. supplied only bald, unsubstantiated assertions, provided nearly a year after the hearing and after the children's adoptions.
The trial court rejected J.V.'s claim that her attorney coerced her into surrender. He noted that over the course of the twenty-three months in which J.V. was represented by the same individual prior to the surrender hearing, and at the hearing itself, he did not see "the slightest intimation of disharmony between" attorney and client. In his view, J.V. had not established circumstances that warranted setting aside the surrender, ...