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New Jersey Division of Youth and Family Services v. R.O'b.


January 9, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-51-10.

Per curiam.



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 everything, and Rose was prepared to proceed with the surrender.

The court then conducted this inquiry:

The Court: [D]id she explain to you what an identified surrender is?

Defendant: Yes.

The Court: Do you understand what an identified surrender is?

Defendant: Yes.

The Court: Can you tell me what it is? Defendant: Well I'm just surrendering my rights directly and only, and only to my daughter.

The Court: . . . Okay. Now when you say you're surrendering your rights you understand that means your parental rights. Defendant: Yes.

The Court: So you won't be able to direct which school he goes to, what sports he plays, what he eats, what he wears, where he goes. Do you understand that?

Defendant: Yes, I understand that.

The Court: Do you understand, so your parental rights will be terminated? You have no right to direct anything that the boy does. Do you understand that?

Defendant: Yes.

The Court: Now has anyone threatened you to surrender your rights as a parent?

Defendant: No.

The Court: Has anyone promised you any deals or offered you any inducements to surrender your rights as a parent?

Defendant: No.

The Court: Are you under any duress or coercion to surrender your rights?

Defendant: No.

The Court: Do you do so freely and voluntarily?

Defendant: Yes.

The Court: And you understand, as I said, once you surrender these rights you will have no more authority to direct anything with the child?

That your parental rights are terminated?

Defendant: Yes.

The judge then confirmed with Rose that she was satisfied with her attorney's advice, was not under the influence of any substance, and had no questions of her attorney, the Law Guardian, the Deputy Attorney General, DYFS, or the court concerning the proceedings. The judge made factual findings that Rose freely and voluntarily surrendered her parental rights, and did so without any duress, coercion, threats or force. He found that Rose was satisfied with her attorney's advice, who explained to her the nature of the proceedings. The judge also determined that Rose understood that her parental rights are terminated and that Mary will have complete control over Ollie, including any interaction between Rose and Ollie. The judge entered an order terminating Rose's parental rights on September 9, 2009. Rose never appealed that order. Mary and her husband adopted Ollie by final judgment entered on February 17, 2010.

On April 26, 2010, Rose moved to set aside the judgment of guardianship. In a comprehensive written opinion, Judge John A. Conte denied the motion. The judge stated that the judgment under review uniquely affects the rights of Rose and also impacts the life of Ollie who is the object of the guardianship. The judge noted that although the Supreme Court has affirmed that Rule 4:50-1 is the appropriate vehicle when seeking to vacate a judgment terminating parental rights, citing In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002), the judge specifically noted that when vacating a judgment of guardianship "the welfare of a child is to be taken into account; therefore, a two-part test must be satisfied by the moving party."

On appeal, Rose asserts that her identified surrender should be vacated because she was threatened by DYFS and coerced by the trial judge to surrender her parental rights, and it is in Ollie's best interests to be reunited with his mother, rather than to remain with Mary.


The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). See also Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992). Reversal is required only in those circumstances when the trial court's findings were "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations omitted).

In our review, "we are obliged to accord deference to the trial judge's credibility determinations and the judge's 'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (quoting Cesare, supra, 154 N.J. at 411-12. See also Pascale v. Pascale, 113 N.J. 20, 33 (1988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). See also Cesare, supra, 154 N.J. at 412 (holding that appellate courts defer to a trial court's assessment of a witness's testimony). Accordingly, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

Rule 4:50-1(f) is applicable to consensual final judgments. DEG, L.L.C. v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). Generally, a motion for relief from judgment based upon the grounds specified in Rule 4:50-1 should be "granted sparingly." F.B. v. A.L.G., 176 N.J. 201, 207 (2003) (citing Pressler, Current N.J. Court Rules, comment 1.1 on R. 4:50-1 (2003)). An aggrieved party's right to relief examines the totality of the circumstances and "[t]he decision whether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity." Ibid. A "judgment will be left undisturbed 'unless it represents a clear abuse of discretion.'" Ibid. (quoting Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)).


In analyzing the challenges to the judgment under review, we are guided by our opinion in State Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423 (App. Div.), certif. denied, 205 N.J. 14 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 2925, 179 L. Ed. 2d 1255 (2011), which addressed an order denying a mother's motion to set aside her voluntary surrender of parental rights to her child.

In T.G., supra, we determined: [t]he judgment under review uniquely affects the rights of the parent and also impacts the life of the child who is the object of the guardianship. Although the Supreme Court has affirmed that Rule 4:50-1 is the appropriate vehicle when seeking to vacate a judgment terminating parental rights, In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002), the Court specifically noted that when vacating a judgment of guardianship "the future of a child is at stake." Therefore, to succeed in attacking the judgment, a moving parent must satisfy a two-part test.

[414 N.J. Super. at 434.]

Applying T.G., Rose's motion must be supported by evidence of changed circumstances, as she bears the burden of proving that events have occurred subsequent to the entry of the judgment to justify vacating it. Ibid. (citing J.N.H., supra, 172 N.J. at 473). A showing of those reasons articulated under Rule 4:50-1(a) to (f) satisfies this provision. Id. at 435. We conclude that if DYFS failed to comply with Rose's due process protections then that could supply the necessary changed circumstances mandated by the first part of the J.N.H. test, as we articulated in T.G. Id. at 436. However, she must also satisfy the second part of the test in a termination case, the best interests of Ollie must be considered. See id. at 435. "This prong requires a weighing of the effects setting aside the judgment may have on [Ollie's] stability and permanency." Ibid.

In order for Rose's surrender to be enforceable, absent proof of fraud, duress or misrepresentation, she must knowingly and voluntarily express her understanding that custody of Ollie is relinquished and her parental rights are terminated, and that Mary will adopt Ollie. Essentially, in support of her argument to vacate the order, Rose claims that DYFS threatened her and that the court coerced her to surrender her parental rights.

We find no procedural flaws in the surrender proceeding and conclude the judge, in accepting Rose's surrender, complied with all necessary due process. Rose attempted at the penultimate proceeding to undertake a voluntary identified surrender and waive her right to trial, which the judge would not accept, suggesting she consult with counsel.

At the actual surrender proceeding, after initially expressing concerns, Rose consulted with her attorney who was present, and thereafter stated she understood her attorney's advice, was aware of the effect of surrendering her parental rights, did not receive inducements or deals, was not under any duress or coercion, and asserted her actions were voluntary. Rose was also given the opportunity to ask questions of the court, DYFS, the Deputy Attorney General, and the Law Guardian. She had every chance to express any important concern or issue that was unclear. Accordingly, the trial judge's conclusion that Rose's surrender was knowingly and voluntarily made is supported by credible evidence in the record.

It is within the trial court's sound discretion, guided by equitable principles, to decide whether relief should be granted pursuant to Rule 4:50-1. Little, supra, 135 N.J. at 283. That decision "will be left undisturbed unless it represents a clear abuse of discretion." Ibid. Judge Conte properly conducted the proceeding at which Rose voluntarily surrendered her parental rights. Consequently, we see no abuse of discretion in the denial of Rose's motion to vacate the judgment of surrender. Ibid.

Based on our conclusions, "we need not examine any resultant effect upon . . . [Ollie] by setting aside the judgment." T.G., supra, 414 N.J. Super. at 440. Nevertheless, we note that Rose did not seek to vacate the surrender order until two months after Ollie had been adopted by Mary and her husband. Consequently, we conclude the motion to vacate the order was properly denied.


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