On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-52-12.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2012 -
Before Judges Messano, Lihotz and Ostrer.
Defendant S.P. appeals from a September 22, 2011 Family Part order denying her motion to vacate her general voluntary surrender of parental rights in respect of her child, C.L.P., which was the basis of a judgment awarding guardianship to plaintiff the New Jersey Division of Child Protection and Permanency*fn1 (the Division) to secure the child's adoption. S.P. argues the trial court erred in denying her motion, considered by the trial judge as a motion to vacate a judgment pursuant to Rule 4:50-1(f). On appeal S.P. claims her due process rights were violated by procedural errors, the surrender was not knowingly and voluntarily given, her counsel was ineffective at critical stages of the proceedings, and the use of the surrender to effectuate termination of her parental rights is not in C.L.P.'s best interests.
The Division and the Law Guardian on behalf of C.L.P. disagree and argue S.P. initiated the surrender proceedings based on her recognition that she was unable to care for C.L.P. because of her fragility resulting from mental illness. The trial judge allowed S.P. the opportunity to reflect on her decision, which would result in the child being adopted by his uncle in Seattle; she was represented by competent counsel who clearly and correctly advised her of all resultant consequences; she fully recognized her rights and knowingly waived them; and the child's need for permanency and stability are paramount such that the judgment serves his best interest. Consequently, the Division and Law Guardian maintain the trial judge's denial of S.P.'s motion was not an abuse of discretion.
We have considered each of these arguments in light of the record and the applicable law. We affirm.
S.P. gave birth to C.L.P. on October 21, 2004. That day, the Division received an initial referral expressing concern regarding S.P.'s ability to parent her son due to a history of schizophrenia. A second referral was made resulting in C.L.P.'s removal from S.P.'s care on December 3, 2004. The matter was resolved on December 22, 2005, through a consent agreement providing C.L.P. would be returned to S.P.'s care under the supervision of her mother, C.P., who was awarded joint legal custody.
Between July 27, 2007, and October 19, 2009, the Division received four additional referrals regarding the family, expressing concern regarding C.L.P.'s care because C.P. was "overwhelmed in caring for [C.L.P.]," and S.P. had been hospitalized. On September 4, 2007, C.L.P. was placed in the legal physical custody of C.P., and the Division continued its care and supervision. In April 2009, the Division returned legal custody of her son to S.P., who resided in C.P.'s home. S.P. consented to the execution of a power of attorney, which granted parental decision-making authority to C.P. in the event S.P. experienced a future mental health relapse. The Division closed the case on October 19, 2009.
The current matter was initiated on February 26, 2010, when the Division received a fifth referral from Riverview Medical Center, reporting S.P. had visited the hospital emergency room accompanied by C.L.P., stating they "had been exposed to biochemical agents in their home[.]" S.P. was diagnosed as suffering from paranoid delusions and voluntarily admitted for psychiatric treatment. Her hospitalization lasted from February 27, to March 5, 2010. She was compliant with treatment, except for group therapy, and her condition improved.
C.L.P. was placed in C.P.'s care and the Division filed a complaint seeking custody, care and supervision (Docket No. FN-13-171-10B). The trial judge declined the request to remove C.L.P. from his grandmother's care, accepting the Law Guardian's position that the plan previously put in place using S.P.'s power of attorney worked appropriately for the child's welfare.
On March 26, 2010, the Division moved to reconsider C.L.P.'s custody order when C.P. "informed the Division earlier she could not control [C.L.P.] and asked for his removal[.]" Following a hearing held that day, the court granted the Division's application for custody and C.L.P. was placed in the home of a resource family. At a family team meeting held shortly thereafter, the Division explored alternative potential relative caregivers for C.L.P. S.P. suggested C.L.P. should be cared for by her brother R.K., who was living in Seattle, Washington, rather than a stranger. With R.K.'s consent, the Division commenced an assessment of his home as a potential placement for the child.
On July 1, 2010, S.P. appeared and stipulated C.L.P.'s removal resulted from her "failure to fully comply" with her psychiatric medication regimen. R.K. attended and agreed to visit with C.L.P. and represented he was willing to be considered were C.L.P. freed for adoption. The parties consented to continue the litigation pursuant to N.J.S.A. 30:4C-12.*fn2
S.P. complied with services offered by the Division and maintained her medication regimen and treatment. She was responsive to her parenting mentor's organizational advice, but "resistant" to changing her strategy for addressing C.L.P.'s behavioral problems, and also was not "willing to accept guidance in terms of any budget or financial advice." The Division recommended S.P. be granted unsupervised visitation. The court scheduled a hearing to consider that recommendation, which was held on October 21, 2010. The State's witnesses testified S.P. was compliant and stable. Although the Division took issue with S.P.'s parenting style, the consensus was she was capable of resuming parenting. Following a conference between the court and counsel, the court ordered S.P. to continue to comply with her medication regimen; continue with parent mentor services; comply with individual counseling, behavioral assistance, and family support services once implemented; and commence "structured unsupervised" visitation with her child. Thereafter, S.P. began overnight, unsupervised visitation.
The Division continued to pursue parallel paths for C.L.P.'s permanency, which included possible reunification with S.P., or alternatively, permanent placement with R.K. By that time, C.L.P. had visited his uncle's home and R.K. confirmed he was willing to adopt the child. Following a best interests hearing held in April 2011, the trial judge ordered the Division to effectuate its plan for reunification, as opposed to pursuing alternative placement options. On April 14, 2011, C.L.P. was returned to the legal and physical custody of S.P. She participated in six weeks of treatment with Family Preservation Services and was referred for further therapy with the Catholic Charities Natural Family Support Program. Services were also extended to C.L.P. to assist his behavioral needs.
On June 6, 2011, less than two months after reunification, S.P. called the Division reporting C.L.P. had become violent, and requesting he be removed from her home. She reported he had been "choking her, punching her in the kidneys, and trying to bite her[,]" and although he was calm at the time of her call, she feared going to sleep because he "may jump on her and break her bones." During the course of the telephone conversation, S.P. insisted she wanted nothing else to do with C.L.P. and desired to surrender her parental rights. C.L.P. was removed from his mother's care for the third time, and placed with a resource family.
The following day, June 7, 2011, S.P. again requested to surrender her parental rights.*fn3 The trial judge declined to proceed, adjourning the matter "to give [S.P.] an opportunity to consult with counsel and to further make what decisions she wished to make with regard to surrendering her parental rights." The next day, the Division re-filed a complaint under Docket No. FN-13-171-10B, seeking legal custody, care and supervision pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. S.P. appeared with counsel and restated her intent to surrender her parental rights; she submitted a signed "Voluntary Surrender of Parental Rights Form."
Counsel for S.P. requested her client undergo a psychiatric evaluation prior to commencing the hearing. The trial court denied the application, explaining a series of evaluations had been performed in March and April 2011, including a psychological evaluation by John Verdon, Ph.D., a psychiatric evaluation by Delfin G. Ibanez, M.D., and a psychological evaluation by Robert J. Puglia, Ph.D. The trial judge noted in each of these evaluations, the mental heath professional concluded S.P. "was fully capable of taking custody and care of her child and [as a] consequence[s] I would have to also conclude that she was fully capable of making decisions that [a]ffect that child as long as she was maintaining her regular course of treatment and maintaining her medication." The judge also considered the medical records of Joseph Vetrano, M.D., S.P.'s treating physician, noting S.P. had last received a monthly injection the week before the hearing and otherwise was taking her medication.
Defense counsel then questioned S.P., who responded as follows:
Q. Now [S.P.], you have told me you wish to voluntarily surrender your parental rights. Is that correct?
Q. And we have had numerous discussions about this decision of yours, right?
Q. Okay. And over my objection, you know, I have advised you that I do not believe that is the best course of action for you, but you have indicated to me it is still what you want to do. Is that right?
A. It is, once again, my -- my desire to do so.
Q. Okay. So over my objection we are going forward with your surrender ...