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New Jersey Division of Youth and Family Services v. J.V

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 18, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.V., DEFENDANT-APPELLANT. IN THE MATTER OF THE KINSHIP LEGAL GUARDIANSHIP OF D.C., C.C., AND R.C., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-02-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, especially given the "settled expectations of these three children, their foster parents, [and] the Division."

Nothing about affirming the surrender would be "unjust, unfair or inequitable" and, in fact, an injustice would be inflicted upon the children by granting the application.

On appeal, J.V. raises the following points:

I. THE TRIAL COURT ERRED IN DENYING J.V.'S REQUEST TO VACATE THE IDENTIFIED SURRENDER PURSUANT TO RULE 4:50-1(f)

A. THE TRIAL COURT ERRED IN FINDING THAT J.V. FAILED TO MEET PRONG ONE OF THE TWO[-]PART TEST

B. THE TRIAL COURT DID NOT HAVE ENOUGH EVIDENCE TO DECIDE WHAT WAS IN THE BEST INTERESTS OF THE CHILDREN

We accord great deference to the findings of a trial court, particularly the Family Part. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). So long as supported by adequate, substantial, and credible evidence, these findings will be affirmed. Ibid. Such findings are set aside only if they result in a denial of justice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Indeed, we reverse only where the trial court's findings were "so wide of the mark that a mistake must have been made." Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation omitted). Furthermore, we deferentially review credibility determinations, as they are based not only upon the court's opportunity to see the witnesses, but the judge's "feel of the case." Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12), affirmed in part, modified in part, and remanded, 179 N.J. 264 (2004).

Here, we see nothing in the record which undermines the judge's conclusion that J.V. made a knowing, intelligent, and voluntary surrender of her parental rights on the date in question. He saw no signs of disagreement or conflict between counsel and J.V. in the many months the litigation was pending, nor on the day of the surrender. J.V.'s attorney specifically inquired about J.V.'s state of mind, and she readily asserted she was clear-headed and convinced this decision was in the children's best interest.

J.V. supplies us with no expert report indicating the drugs she was administered impaired her ability to think. If anything, that void in her proofs suggests she was in a better frame of mind on that date than on prior days. Despite other inmates allegedly asking her about being in a "zombie" state while at the jail, the truth of the matter is that J.V. was finally taking medication for conditions from which she has suffered for many years. It is conceivable that the medications enabled her to think more clearly rather than impairing her judgment. In any event, it is pure speculation to reach one conclusion or another in the absence of expert testimony, and we see no reason to disturb the motion judge's findings on this score.

Applications made pursuant to subsection (f) fall into a "catch all" category. See Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966). "No categorization can be made of the situations which would warrant redress under subsection (f) . . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." Ibid. In making that determination, however, the totality of the circumstances must be taken into account. See In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002).

In making such determinations with regard to judgments terminating parental rights, we must be particularly mindful that the interests of children are "at stake." Id. at 474. To satisfy the two-part test that J.V. must meet to prevail, she must first present evidence of changed circumstances. This she has not done. Because she presents only bald assertions, she has failed to meet the first prong of the test. See id. at 473.

Considering the best interests of the children, the second prong of the test, J.V. has again failed to present sufficient proofs. To grant her application would have a devastating effect on the children. All have since been adopted. This factor itself weighs heavily against any Rule 4:50-1(f) relief. Id. at 475. D.C. has resided most of his life with the family that has adopted him. R.C. and C.C. have resided continuously with their foster family since approximately 2007. Under these circumstances, the best interests of the children clearly weigh on the side of advancing stability and permanency. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 558-59 (1994); In re Adoption of a Child by P.S. & J.S., 315 N.J. Super. 91, 116 (App. Div. 1998). Given that neither prong of the test has been met, it is clear no error was committed by the judge in denying J.V.'s application.

Affirmed.

20110218

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