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New Jersey Division of Youth and Family Services v. L.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 10, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.R., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF H.G., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-22-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2011

Before Judges Yannotti, Espinosa and Kennedy.

L.R. appeals from an order entered by the Family Part on March 3, 2011, denying L.R.'s motion to vacate her identified surrender of parental rights to the minor child, H.G. For the reasons that follow, we affirm.

I.

L.R. is H.G.'s biological mother and D.G. is the child's biological father. L.R. is also the biological mother of R.G., T.R. and A.G. On January 13, 2009, the Monroe Township police officer reported to the Division of Youth and Family Services (the Division) that officers from the department had pursued a vehicle registered to L.R. in a five-mile, high-speed chase.

The officer reported that, at the end of the chase, the vehicle flipped over when it attempted to enter the New Jersey Turnpike. L.R. was a passenger in the car, along with H.G., who was then one-month old. L.R. and H.G. were injured in the accident. It appears that the child's car seat had not been properly secured. L.R. and H.G. were transported to a hospital in New Brunswick.

The hospital reported to the Division that L.R. may have been under the influence of alcohol or drugs. The hospital additionally reported that the child was unkempt and unclean.

L.R. told the police that she had not been driving the car at the time of the accident. After investigating the matter, the police apparently came to believe that L.R. had been driving the car.

A.R., the child's maternal grandmother, also contacted the Division. She said that L.R., who has a history of paranoid schizophrenia, was taken off her medications two months prior to H.G.'s birth. According to A.R., L.R. was supposed to renew her medications after the child was born, but L.R. refused to do so. A.R. told the Division that she was taking care of two of L.R.'s children, R.G. and T.R. She said that H.G.'s paternal grandmother was going to care of H.G.

On February 5, 2009, the Division filed a complaint in the trial court seeking custody, care and supervision of H.G., R.G. and T.R. The court entered an order dated February 5, 2009, placing H.G. in the Division's custody, care and supervision. The court granted A.R. custody of R.G. and T.R., although the Division continued to have responsibility for their custody, care and supervision.

The trial court entered an order dated June 3, 2009, which stated that L.R. had waived her right to a fact-finding hearing on the issue of whether H.G. was an abused or neglected child.

The order stated that L.R. had admitted that she had intentionally not taken prescribed medication, which resulted in a lapse of judgment that created a risk of harm to H.G.

The court entered another order dated June 3, 2009, which continued the three children in the Division's custody, care and supervision. The order provided that A.R. would continue to have custody of R.G. and T.R., and that H.G.'s placement in a Division-approved resource home would continue. The order further provided that L.R. and D.G. would have supervised visitation with the children.

On September 9, 2009, the court entered an order stating that H.G. would continue in the Division's custody, care and supervision. A.R. was awarded legal and physical custody of the other two children, and they were dismissed from the litigation. The order additionally provided, among other things, that L.R. would comply with a treatment program; L.R. and D.G. would continue to attend parenting skills classes; L.R., D.G. and the children would attend family therapy; and L.R. and D.G. would have supervised visits with the children.

The court entered another order on December 9, 2009, transferring physical custody of H.G. to A.R. The order provided that L.R. would continue her drug-treatment program. The order noted that L.R. and D.G. had completed parenting skills classes.

The court conducted a permanency hearing on January 29, 2010, and entered an order on that date stating that the Division's plan was reunification of H.G. with her biological parents. H.G. remained in the Division's care, custody and supervision, although A.R. had custody of the child. The order stated that L.R. and D.G. would continue to have supervised visits with the child. Among other things, the order provided that L.R. would complete her psychotherapy treatment and comply with any treatment recommendations.

The court entered another order on January 29, 2010. The order stated that L.R.'s concentration and cognitive abilities were "mostly impaired by her relentless and always active psychotic process." It noted that both L.R. and D.G. had completed parenting skills classes, and D.G. had complied with the requests that had been made of him. However, the order noted that the Division was awaiting a psychological evaluation of D.G. to determine whether additional services were required.

Another compliance review took place on April 28, 2010, after which the court entered an order continuing H.G.'s placement with A.R. The order stated that L.R. would continue to comply with and complete her treatment; D.G. would comply with individual counseling at the Family Services Bureau (FSB); and D.G. would submit to an updated psychological evaluation.

The court conducted a second permanency hearing on June 23, 2010, and entered an order on that date stating that the Division's plan regarding H.G. had changed and it would seek termination of L.R.'s and D.G.'s parental rights to H.G., followed by adoption. Among other things, the June 23, 2010 order stated that L.R.'s psychiatric evaluation indicated that she would not be a suitable caretaker for H.G. now or in the foreseeable future due to her psychiatric condition.

The June 23, 2010 order also stated that the Division had discussed L.R.'s evaluation with her and D.G., and had also told D.G. that he must "present himself independent[ly]" of L.R. in order to continue working towards reunification. However, D.G. advised the Division he was unwilling to separate himself from

L.R. at the time.

The June 23, 2010 order additionally stated that the

Division had made reasonable efforts to finalize its permanency plan, and termination of L.R.'s and D.G.'s parental rights was appropriate. The Division was directed to file a guardianship complaint by August 4, 2010.

The Division filed its complaint on August 3, 2010. L.R. and D.G. appeared in court on September 7, 2010, as required, and they were represented by counsel. The court ordered L.R. to continue with her treatment, and directed D.G. to continue with his counseling at the FSB.

The court conducted a compliance review on October 28, 2010. L.R. and D.G. appeared in court. The Division advised the court that its evaluations were complete, and the court scheduled mediation for December 3, 2010. On November 3 and 12, 2010, Dr. Barry Katz (Dr. Katz) performed a psychological evaluation of L.R. and bonding evaluations of L.R., A.R. and H.G. Prior to the mediation, Dr. Katz provided L.R.'s attorney with a verbal report.

II.

On December 3, 2010, the parties participated in mediation. Thereafter, L.R. and D.G. appeared in court with counsel. D.G. agreed to the identified surrender to A.R. of his parental rights to the child. In addition, L.R. agreed to the identified surrender to A.R. of her parental rights. L.R. completed the "Voluntary Surrender of Parental Rights Form" which stated, among other things, that she was acting "voluntarily" and "of [her] own free will[.]"

At the December 3, 2010 proceeding, the court questioned

L.R. and D.G. on the record concerning their decisions to make identified surrenders of their parental rights. L.R. also testified as follows, in response to questions of her attorney:

Q. Now, we're not making a general surrender. We're making an identified surrender to [A.R.], your mother. Is that correct?

A. Yes. * * *

Q. Okay. Now, this is a very important decision. Are you making it voluntarily and of your own free will?

A. Yes.

Q. Now, you're not happy, but it is a voluntary decision. Is that correct?

A. Yes.

Q. Okay. Did anyone force you to make this?

A. No. * * *

Q. All right. So no one forced you to make this decision, right?

A. No.

Q. Okay. And no one coerced you?

A. No.

Q. No one pressured you into making this decision?

A. No. * * *

Q. Okay. Now, we discussed that you're entitled to three pre-surrender counseling sessions with [the Division]. Do you want that counseling?

A. No.

Q. Okay. Did you initial the bottom of this page?

A. Yes.

Q. All right. So you're going to give up your right to counseling. Is that correct?

A. Yes.

Q. Now, do you understand that you have the right to a trial in this case, to call witnesses and cross-examine [the Division's] witnesses and present evidence?

A. Yes.

Q. And do you understand [that] at trial, [the Division] would have to prove by clear and convincing evidence that you cannot parent [H.G.] at this time?

A. Yes.

Q. If you surrender, you're giving up your right to trial. Are you giving up [your] right to trial of your own free will?

A. Yes. * * *

Q. Have you had enough time to think about this important decision?

A. Yes.

Q. Do you believe surrendering your parental rights is in [H.G.'s] best interests?

A. Yes.

Q. Have I answered all your questions?

A. Yes.

Q. Are you satisfied with my services?

A. Yes.

Q. Do you have any questions about the surrender?

A. No.

The court accepted L.R.'s and D.G.'s identified surrenders of their parental rights to A.R., and found that the surrenders had been made "freely, voluntarily, with the understanding and advice of [c]counsel and with the understanding that [L.R. and D.G. believed the surrenders were] in the best interests of their daughter." The court entered an order dated December 3, 2010, terminating L.G.'s and D.G.'s parental rights to H.G. so that A.R. could adopt the child.

III.

On February 8, 2011, L.R. filed a motion in the trial court seeking an order vacating her identified surrender of parental rights. In a certification submitted with her motion, L.R. stated that, while her attorney and the court had explained that the identified surrender was final and could not be appealed, she "did not fully understand." She stated that she had come to realize "what a grave error" she made. L.R. asserted that she wanted to vacate the surrender and proceed to trial.

The trial court considered L.R.'s motion on March 3, 2011.

L.R.'s counsel argued that her surrender of parental rights should be vacated because, at the time she made the surrender, counsel did not have Dr. Katz's written report. L.R.'s counsel conceded that the attorney who represented L.R. at the surrender hearing had a "verbal evaluation" from Dr. Katz at the time, which was favorable to L.R.

The trial court placed its decision on the record. The court noted that to obtain an order vacating an identified surrender of parental rights, a parent must show that vacation of the surrender is warranted due to a change in circumstances. The parent must also show that vacation is in the best interests of the child. The court found that L.R. had not satisfied either requirement.

The court observed that the post-surrender production of Dr. Katz's written report was not a change of circumstances because, prior to the surrender, L.R.'s attorney had been informed verbally of the results of Dr. Katz's evaluation. The court also stated that it had reviewed with L.R. all of the questions on the surrender-of-rights form and "could [not] have been more clear as to the effect of an [identified] surrender[.]"

The court noted that H.G. had been in her placement for two years. The court found that L.R. had ample time to consider and discuss with her attorney the identified surrender of her parental rights. The court also noted that A.R. already had custody of two of L.R.'s other children and this was "not an unusual situation."

The court concluded that L.R. had failed to meet the required criteria for vacation of her identified surrender of parental rights, and that the surrender was in the child's best interests. The court entered an order dated March 3, 2011, denying L.R.'s motion. This appeal followed.

IV.

L.R. argues that her identified surrender of parental rights must be set aside because she was denied the effective assistance of counsel. We disagree.

In N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2007), the Court held that the parents in an action to terminate parental rights have a right to the effective assistance of counsel. Id. at 306-07. The Court stated that, whether a parent has received such assistance is measured under the two-part test established under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). B.R., supra, 192 N.J. at 308-09.

The Strickland test requires the parent to establish that his or her counsel's performance was objectively deficient, which requires a showing that counsel's performance fell "outside the broad range of professionally acceptable performance[.]" Id. at 307 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. 2068, 80 L. Ed. 2d at 697). In addition, the parent must establish that counsel's deficient performance prejudiced the defense, which requires a showing that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. 2068, 80 L. Ed. 2d at 697).

L.R. maintains that she was denied the effective assistance of counsel because her attorney failed to obtain and review Dr. Katz's written report before she made the identified surrender of her parental rights. L.R. asserts that, without Dr. Katz's written report, her attorney could not properly advise her concerning the decision to surrender her parental rights. L.R. additionally asserts that there was a lack of communication with her attorney and, as a consequence, she "did not know what she was giving up when she waived her right to a trial[.]"

We disagree with these contentions. As we have explained,

L.R.'s attorney received a verbal report of Dr. Katz's findings before the proceeding in which she agreed to surrender her parental rights. Thus, L.R.'s attorney was aware of Dr. Katz's findings and knew that they were favorable to L.R.'s position in certain respects. L.R. has not established that her attorney's performance was objectively deficient because his advice was based on Dr. Katz's verbal report, rather than the written report.

Moreover, L.R. has not established that she did not understand the significance of her decision to waive her right to trial in the Division's guardianship complaint. As we stated previously, L.R. was questioned on the record when she entered the identified surrender of her parental rights. L.R. stated that she understood that she had a right to a trial in the matter and the Division has the burden of proving by clear and convincing evidence that her parental rights should be terminated. L.R. agreed to waive the right to a trial. L.R. also stated that her attorney had answered all the questions she had and she was satisfied with the services he had provided. The court found that L.R. surrendered her parental rights freely, voluntarily and with the advice of counsel. The record supports that finding.

Therefore, L.R. has not shown that her attorney's performance was objectively deficient. She also has not shown that she was prejudiced by her attorney's alleged deficient performance. L.R. has not established that the result here would have been different if her attorney had obtained and reviewed Dr. Katz's written report before L.R. agreed to the identified surrender of her parental rights.

V.

L.R. also argues that the trial court erred by denying her motion to vacate the identified surrender of her parental rights to the child. Again, we disagree.

Rule 4:50-1(e) provides that a judgment or order may be vacated if it is "no longer equitable that the judgment or order should have prospective application[.]" A motion to vacate a judgment or order on this basis "'must be supported by evidence of changed circumstances.'" In re Guardianship of J.N.H., 172 N.J. 440, 472-73 (2002) (quoting Housing Auth. v. Little, 135 N.J. 274, 285 (1994). The movant must show that the circumstances have changed after entry of the judgment or order and that "'extreme'" and "'unexpected'" hardship will result if the relief sought is not granted. Id. at 473 (quoting Little, supra, 135 N.J. at 285).

Rule 4:50 permits relief from a judgment entered terminating parental rights. Id. at 474. In considering such a motion, the court must balance "the need to achieve equity" against the State's "legitimate interest in the finality of judgments." Ibid. (citing Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977); C.R. v. J.G., 306 N.J. Super. 214, 242 (Ch. Div. 1997)). The court also must consider the effect that granting the motion will have on the child, since the child's need for "stability and permanency" is paramount. Id. at 474-75 (citing In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999)).

Here, the trial court found that L.R. failed to establish changed circumstances requiring relief from the identified surrender of her parental rights. L.R. maintained that the circumstances present when she surrendered her parental rights changed significantly when Dr. Katz produced his written report. In that report, Dr. Katz recommended against termination of

L.R.'s parental rights "at this time" and suggested that "steps be taken" towards reunification so long as L.R. continued "to be stable" and showed that she was capable of parenting the child.

However, as we have indicated, L.R.'s attorney was informed of Dr. Katz's findings verbally prior to the December 3, 2010 proceeding during which L.R. agreed to surrender her parental rights. The trial court found that the subsequent receipt of Dr. Katz's written report cannot be considered a significant change in circumstances. We agree.

Furthermore, vacation of the order would undermine the State's strong interest in the finality of judgments rendered by its courts, particularly those involving surrenders of parental rights. Moreover, L.R. has not shown that vacation of the surrender of parental rights would be in H.G.'s best interests.

L.R. contends that H.G. would benefit from vacating the surrender because the child would have the opportunity to return to her care. She also contends that H.G. would not be harmed if the relief she sought was granted because the child would remain with A.R. for the time being.

L.R.'s contentions fail, however, to address the child's present need for permanency and security, which is paramount. J.N.H., supra, 172 N.J. at 474-75. H.G. has been in placement since she was one month old. She was placed with A.R. in December 2009, and A.R. also has legal and physical custody of two of H.G.'s siblings. A.R. is willing to adopt H.G.

There is no evidence that L.R. is presently capable of providing H.G. with a safe and stable home, or evidence that she could do so in the foreseeable future. Under the circumstances, the trial court correctly determined that vacating the surrender of parental rights and delaying the adoption of the child pending the uncertain results of a guardianship trial would not be in the child's best interest.

Affirmed.

20120110

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