On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-51-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2011
Before Judges Waugh and St. John.
Defendant, R.O'B. (Rose),*fn1 appeals the November 16, 2010 denial of her Rule 4:50-1 motion to vacate an order of identified surrender of her parental rights over her eleven-year-old son, O.O'B. (Ollie), entered on September 9, 2009.*fn2
On appeal, Rose argues that the motion judge improperly applied Rule 4:50-1 when denying her motion and that the judge failed to adhere to appropriate procedural safeguards when accepting the surrender, thereby violating Rose's due process rights. We disagree and affirm.
The Division of Youth and Family Services (DYFS) first became involved with Rose on May 11, 2001, when it received a referral from Holy Name Hospital alleging that eleven-month-old Ollie had missed four doctor's appointments and was behind in receiving his immunizations. Although neglect was subsequently unsubstantiated, DYFS temporarily opened a case to ensure that Ollie received medical care. A subsequent referral raised concerns about Rose's financial ability to maintain housing and provide food for Ollie. On April 1, 2002, DYFS filed an amended verified complaint seeking care and supervision of Ollie. DYFS effectuated a Dodd*fn3 removal of Ollie and filed for custody on April 16, 2002. Ollie was placed in a foster home. On the return date of the order to show cause, the court placed Ollie under the care and supervision of DYFS, with physical custody continued with DYFS, and ordered Rose to attend substance abuse evaluation/treatment, psychological evaluation, counseling, and parenting skills classes. Rose was also restrained from unsupervised visits with Ollie.
Rose completed a substance abuse program on December 10, 2002, and she continued counseling thereafter. On February 24, 2003, Ollie was reunited with Rose. On October 8, 2003, the matter was dismissed, and Rose was ordered to continue individual and family counseling. DYFS closed the case on July 20, 2005. However, nineteen days later, Rose appeared at the DYFS office to report that she was homeless. DYFS placed her and Ollie in housing for three weeks, and Rose then moved into an apartment at which time DYFS closed the case again.
In January 2008, DYFS learned from Rose's adult daughter, Mary, that Rose was to be evicted from her apartment for non-payment of rent. DYFS provided Rose with a list of shelters and advised her to contact the Housing Coalition. Rose voluntarily placed Ollie with Mary until her housing situation was resolved. On March 11, 2008, DYFS again closed its case, as Ollie was safe with Mary. However, a short time later, Rose insisted that Ollie be returned to her care even though her eviction was imminent and she possessed no food for her family. DYFS purchased food for the family and contacted shelters and family members for temporary housing for Ollie and Rose. It was at that time that representatives of DYFS noticed Rose engaging in abhorrent behavior. On March 25, 2008, Rose tested positive for cocaine.
Due to her use of cocaine and her history of unstable housing, DYFS filed a complaint and a motion for an order to show cause seeking care, custody, and supervision of Ollie on April 1, 2008. The court granted DYFS's request for temporary custody, and Ollie was placed in the physical custody of his sister, Mary. The court further ordered that Rose participate in substance abuse and psychological evaluation and treatment, obtain and maintain stable housing, and stay away from Mary's home. The court held periodic case management conferences to monitor Mary's compliance with its orders, during which time Ollie continued in DYFS's custody and in the physical custody of Mary. Rose appeared at each hearing and was represented throughout by counsel. A psychological evaluation, dated September 26, 2008, recommended that Rose complete substance abuse treatment and be referred for psychotherapy and psychiatric evaluation. At the permanency hearing on March 10, 2009, DYFS recommended a plan of reunification with Rose after a three month extension. That plan was accepted by the court so that Rose would have additional time to continue therapy and address her mental health issues.
Rose attended psychotherapy at Children's House. According to the reports of Children's House, Rose exhibited inappropriate behavior during visitations with Ollie. Ollie also told his therapist that he wanted to remain with Mary. Children's House recommended that Rose's visits with Ollie be suspended and that Rose attend a partial-care mental health program. The next day, at an emergent hearing, the court temporarily suspended Rose's visitations with Ollie.
A second permanency hearing was held on May 5, 2009, at which the court accepted DYFS's revised permanency goal of termination of parental rights followed by adoption. DYFS asserted that the return of Ollie to Rose's care in the foreseeable future would not be safe because, although Rose had been compliant with services, her behavior had deteriorated and she failed to demonstrate the ability to provide a risk-free environment for Ollie.
A guardianship complaint was filed by DYFS on July 1, 2009, seeking to terminate Rose and Charlie's parental rights to Ollie. On August 5, 2009, the return date of the order to show cause, Rose appeared in court without counsel. She attempted to voluntarily surrender her parental rights and waive her right to a trial, informing the court that she did not need counsel and was prepared to proceed. The court adjourned the matter to September 9, in order to give Rose time to consult with an attorney. On September 9, 2009, both Rose and Charlie appeared in court in order to undertake a voluntary identified surrender of their parental rights to Ollie so that he could be adopted by his sister, Mary.
The same attorney who represented Rose throughout her prior protective service litigation represented her at this hearing. With Rose's consent, Mary was present in the courtroom. After being sworn, Rose was asked a series of questions to insure that she understood the purpose and effect of an identified surrender. She was advised of her right to a trial and the four prongs DYFS would have to prove for a termination of parental rights. See N.J.S.A. 30:4C-15.1(a). Initially, Rose stated that she was consenting to the surrender not voluntarily or willingly, but because it was in Ollie's best interest. Rose also asserted that she was coerced by DYFS into agreeing to the surrender. The court then appropriately questioned Rose whether she was "doing it under coercion and duress," to which she replied, "No. No." Notwithstanding Rose's answer, the court recessed the proceeding, allowing Rose to confer with her attorney.
While Rose was conferring with her attorney, the court conducted Charlie's identified surrender. Upon Rose's return, her attorney stated she had explained an identified surrender, had gone over all the appropriate questions with her, Rose understood ...