Opinion
DOCKET NO. A-4228-13T2
09-29-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.C., Defendant-Appellant. IN THE MATTER OF J.G. AND T.W., Minors.
T.C., appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brittany Anne Wilcox, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0280-13. T.C., appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brittany Anne Wilcox, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
In this Title Nine action, defendant T.C. (Terry) appeals from the Family Part's April 11, 2014 order denying her Rule 4:50-1 motion to vacate the court's order finding abuse and neglect, and another terminating the litigation and awarding her children's biological fathers custody. We find no merit to her argument and affirm.
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). Under Title Nine, "[t]he safety of children is the paramount concern." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); accord P.W.R., supra, 205 N.J. at 31; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999).
N.J.S.A. 9:68.21(c)(4)(b) defines a child as "abused or neglected" if the child's
physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.
We employ pseudonyms to protect the privacy of the family and for clarity. No disrespect is intended.
We discern the material facts from the motion record and that of the underlying Title Nine action. Terry is the mother of two children: T.W. (Toni), born in 2007, whose father is M.W. (Mike), and J.G. (Jenny), born in 1996, whose father is G.G. (Glen). In October 2012, plaintiff, New Jersey Division of Child Protection and Permanency (Division), received a referral about the family from Terry in which she alleged that Toni had been sexually abused by one of Mike's relatives while in Mike's house. The Division investigated, but could not confirm the child had been abused. It did develop, however, significant concerns about Toni's welfare and Terry's ability to care for her children. Its concerns were initially based upon reports from Terry that she suffered from various forms of mental illness, for which she was not receiving treatment, and from reports made by Toni during a psychological evaluation, related to her mother's allegations, that she was not being fed, did not use a toilet for defecating, and failed to practice various forms of hygiene while in her mother's care.
Authorities from Toni's school also made a referral to the Division about her welfare, raising concerns about educational neglect. School personnel were concerned because defendant refused to cooperate with having Toni participate in social service programs, Toni had significant behavioral issues, she was frequently late for school, and displayed symptoms of poor nutrition.
These reports initiated an extensive effort by the Division to diagnose and secure treatment for Terry's mental health issues and to provide a safe and clean home for her children. Those efforts, geared toward maintaining Terry's custody of her children, were thwarted by her refusal to participate in evaluations and services. As a result, the Division instituted litigation. The Family Part issued an order granting the Division care and supervision of the children, but eventually allowed the Division to remove the children from Terry's custody and awarded custody to the Division because Terry failed to follow any of the court's orders to participate in services offered by the Division.
On May 31, 2013, a Family Part judge conducted a fact finding hearing. Three witnesses testified on behalf of the Division: Toni's school's principal, a Division representative, and Mike. Terry and her sister testified on Terry's behalf. After considering the testimony and exhibits, the Family Part judge concluded that Toni was abused and neglected as defined by the statute and entered an order memorializing the court's decision.
Courts conduct a fact finding hearing to determine whether a child has been abused or neglected. N.J.S.A. 9:6-8.44; see also N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18 (2013); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011).
In August 2013, Terry filed a motion for leave to appeal the court's order. We denied that motion on September 25, 2013. See N.J. Div. of Child Prot. & Permanency v. T.C., AM-0677-12.
A different judge, Hon. Stephen J. Bernstein, later conducted a hearing on January 17, 2014. At that hearing, the court granted the Division's motion to award custody of the children to their fathers and to terminate the litigation. The court based its decision on Terry again failing to cooperate or participate in any services and its finding that it would not be safe to return the children to her care.
Terry did not file an appeal from this order.
Terry filed a motion to vacate the court's orders. In her motion, she argued that the orders should be vacated because documents she supplied to the court "demonstrate[d] that the [Division] through their various actions made what appear[s] to be fraud, willful and gross material misrepresentations, and a scheme to mislead the court on facts in connection with the complaint." As a result, she argued, the orders should be vacated "in the interest of justice." In support of her argument she alleged the Division "falsified evidence and provided perjured testimonies that [were] material to the issue" before the court, and it also "willfully concealed material facts that [were] deserving of significant weight." She also claimed her trial counsel was ineffective and her due process rights were violated. Finally, she claimed the Family Part judge was not impartial.
After considering Terry's submissions, as well as those filed in opposition, the judge held a hearing to give the parties an opportunity to present their oral arguments. However, each of the parties, including Terry who appeared as a self-represented litigant, declined the court's offer. Judge Bernstein placed on the record his reasons for not granting relief. He stated:
[T]he testimony throughout the case hinged upon the fact that [Terry] was totally uncooperative with the [c]ourt, didn't comply with any services, didn't do anything that the [c]ourt ordered in this particular area, and didn't even bother to participate in the final dispositional hearing which led to the placement of the children with their fathers on the basis that [Terry] refused numerous occasions to comply with services; that there were serious issues regarding mental health; that she failed to cooperate or to appear for any type of exam by the Division to assess that position and, based on that I find no basis at all for proceeding with the motion or granting the application by the moving party in this case.
The court entered its order the same day. This appeal followed.
On appeal Terry argues:
POINT I:
APPELLANT'S APPLICATION TO VACATE ORDERS IN THE COURT BELOW PROVIDED CLEAR AND CONVINCING EVIDENCE OF FRAUD, MISREPRESENTATIONS, AND MISCONDUCT BY OPPOSITION ENTITLING THE APPELLANT TO RELIEF PURSUANT TO RULE 4:50-1, THEREFORE, THE COURT'S FINDINGS WERE NOT GUIDED BY JUST AND EQUITABLE PRINCIPLES, THUS, DEMONSTRATING A CLEAR ABUSE OF DISCRETION WARRANTING A REVIEW AND REVERSAL TO AVOID AN UNJUST RESULT.
POINT II:
IN LIGHT OF THE TOTALITY OF CIRCUMSTANCES WHERE APPELLANT WAS DENIED FUNDAMENTAL FAIR PROCEDURES, DUE PROCESS, OPPORTUNITY TO DISPUTE, CREDIBLE EVIDENCE AT EACH STAGE OF LITIGATION THERE IS A CLEAR SHOWING THAT DETERMINATIONS AND ORDERS MADE THROUGHOUT LITIGATION, IF ALLOWED TO REMAIN WOULD BE UNJUST, OPPRESSIVE, AND INEQUITABLE WITH A MANIFEST DENIAL OF RELIEF AND REDRESS WARRANTS VACATING ALL ORDERS.
POINT III:
THE ORDERS BELOW SHOULD BE VACATED BECAUSE THE COURT EXCEEDED ITS POWER IN ENTERING THE ORDERS AND THE ORDERS WERE RENDERED IN VIOLATION OF STATE AND FEDERAL CONSTITUTIONAL PROTECTIONS, INCLUDING THE RIGHT TO AN IMPARTIAL JUDGE, THEREBY RENDERING THEM VOID WHICH VOID ORDERS CAN BE ATTACKED AT ANY TIME THEREBY IT WOULD BE PROPER TO VACATE ALL ORDERS UPON THIS CHALLENGE.
We have considered these arguments in light of our review of the record and applicable principles of law. We find Terry's arguments to be of insufficient merit to warrant an extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), because Terry failed to meet the burden of proof required to establish she was entitled to relief. We add only the following comments.
Relief under Rule 4:50-1 is "granted sparingly," and a trial court's denial of a motion to vacate is "a determination left to the sound discretion of the trial court, guided by principles of equity." F.B. v. A.L.G., 176 N.J. 201, 207 (2003). Therefore, its "judgment will be left undisturbed unless it represents a clear abuse of discretion." Ibid. (citation and internal quotation marks omitted). Suffice it to say, we conclude Terry was not deprived of any of her due process rights and, as the movant seeking to vacate the subject orders, Terry failed to meet her burden to demonstrate any "fraud . . . , misrepresentation, or other misconduct," R. 4:50-1(c), "or . . . any other reason justifying relief from the operation of the judgment or order," R. 4:50-1(f). In addition, as to the court's order changing custody, Terry failed to offer any evidence that vacating the order would be in her children's best interests. See, e.g., N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 434-35 (App. Div. 2010) (holding that when a court is considering vacating a judgment of guardianship "a moving parent must satisfy a two-part test[: the application] must be supported by evidence of changed circumstances[, which can be satisfied by a] showing of those reasons articulated under Rule 4:50-1(a) to (f)[;] . . . [and,] the best interests of the child must be considered. . . . [which] requires a weighing of the effects . . . on the child's need for stability and permanency (citation and internal quotation marks omitted)), certif. denied, 205 N.J. 214 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 2925, 179 L. Ed. 2d 1255 (2011); see also N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010).
Types of fraud sufficient to obtain relief include perjured statements or testimony, which must be demonstrated
by clear, convincing, and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. Further, a party seeking to be relieved from the judgment must show that the fact of the falsity of the testimony could not have been discovered by reasonable diligence in time to offset it at the trial or that for other good reason the failure to use diligence is in all the circumstances not a bar to relief.--------
[State by Comm'r of Transp. v. Probasco, 114 N.J. Super. 546, 549 (App. Div. 1970), aff'd o.b., 58 N.J. 372 (1971) (quoting Shammas v. Shammas, 9 N.J. 321, 330 (1952)).]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION