Opinion
DOCKET NO. A-4705-12T3
03-03-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.A., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrington, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole T. LaFerriere, Deputy Attorney General, on the brief). Joseph Krakora, Public Defender, Law Guardian, attorney for the minor (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Rothstadt.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FN-15-252-12 and FG-15-47-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrington, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole T. LaFerriere, Deputy Attorney General, on the brief).
Joseph Krakora, Public Defender, Law Guardian, attorney for the minor (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
Defendant T.T. appeals the trial court's May 8, 2013 order denying her motion to vacate her identified surrender of parental rights to her child K.A. In her motion, T.T. argued that (1) the person to whom she surrendered her child — D.O., K.A.'s paternal grandmother - had falsely promised T.T. that she would be allowed to move in to the same household so she could be with K.A. despite the surrender, and that D.O. would not change K.A.'s name; (2) during the surrender hearing, T.T. did not understand the court's statements as to the legal consequences of those promises; and (3) T.T. was under the influence of heroin at the time of the identified surrender. The trial court ultimately determined that T.T. failed to present sufficient grounds to vacate the judgment for guardianship, and denied her motion. T.T. then filed this appeal.
Granting the motion would require that the court vacate the March 12, 2013 guardians hip judgment.
Born on November 20, 2011.
On appeal, T.T. raises the following issues:
Point IWe now reject these contentions and affirm because we are satisfied that the trial court properly exercised its discretion in denying T.T.'s motion as T.T. failed to prove her allegations of changed circumstances or of being under the influence at the time of her surrender, and she did not establish that vacating the guardianship judgment would be in K.A.'s best interest.
THE MOTION JUDGE IMPROPERLY APPLIED R. 4:50-1 WHEN DENYING APPELLANT'S MOTION TO VACATE IDENTIFIED SURRENDER.
A. EQUITY REQUIRES THAT THE IDENTIFIED SURRENDER BE VACATED BECAUSE APPELLANT HAS SHOWN CHANGED CIRCUMSTANCES AND ESTABLISHED THAT SHE WAS UNDER THE INFLUENCE AT THE TIME OF THE IDENTIFED SURRENDER.
B. VACATING APPELLANT'S IDENTIFIED SURRENDER WOULD BENEFIT THE CHILD BECAUSE THE TRIAL COURT WOULD DETERMINE HER BEST INTERESTS AND SHE WOULD BE GIVEN THE OPPORTUNITY TO RETURN TO THE CARE OF HER MOTHER.
I.
The Division of Child Protection and Permanency (the "Division") first became involved with K.A.'s family after D.O. made a referral on May 25, 2012, alleging neglect as to K.A. At that time, T.T. and K.A. lived in D.O.'s and her husband, J.O.'s home. K.A's father D.A. (D.O.'s son) also lived in the home, but was in the Ocean County jail on that day for violating probation.
D.O. called the police to her home, out of concern for T.T. As D.O. later told a Division worker, she had been home caring for K.A. throughout the day while T.T. was out. T.T. returned home that evening at approximately 9:30 p.m. and, by D.O.'s account, "did not appear to be herself." T.T. initially admitted to having a couple of drinks, but claimed to be "fine." D.O. stated that she watched K.A. all the time, and complained that T.T. "does this on a regular basis."
Upon their arrival, the police found T.T. passed out on the floor of her room, apparently under the influence of illicit drugs. After looking through her purse, they found and confiscated cocaine, heroin, and various drug paraphernalia. The police arrested T.T., and she was taken by ambulance to the hospital. At the hospital, T.T. first told the Division's worker that the only drug she was taking was methadone. However, after T.T.'s blood tested positive for benzodiazepines and opiates, T.T. ultimately admitted that she took benzodiazepine (Xanax) she had received from a friend, and that she had not been prescribed Xanax. T.T. also admitted to using heroin just three days prior. However, she stated that K.A. was not present when she used heroin, as K.A. was being looked after by D.O.
Following the incident, the Division conducted an emergent "Dodd" removal of K.A. On May 30, 2012, the Division filed a Title 9 complaint alleging abuse and neglect of K.A., and asking that K.A. remain in the custody, protection and care of the Division. Judge Madelin F. Einbinder then conducted a "Dodd" hearing at which T.T. and D.A. consented to the Division's custody and K.A.'s placement with D.O. without prejudice. At the hearing, T.T. stated that she was willing to participate in services recommended by the Division. The court found that the removal was necessary to avoid ongoing risks to the child, and that T.T.'s continued residence with K.A. was contrary to the child's interest. Accordingly, the court ordered T.T. to no longer reside with K.A., to comply with substance abuse counseling, random urine screenings, and all other recommendations. The court also ordered that T.T. was entitled to weekly visitation, supervised by the Division or a Division-approved supervisor.
Pursuant to the Dodd Act, the Division may remove a child from her parent's custody and care on an emergent basis and without a court order. N.J.S.A. 9:6-8.29 to -8.82; N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
On September 12, 2012, the court conducted a "fact-finding" hearing. After considering the evidence presented at that hearing, the court was not satisfied that T.T. neglected her child because T.T. was not in a caretaking role at the time of the May 25 incident. However, the court recognized a continued need for services, and entered an additional order, under a Title 30 care and custody action, continuing the Division's custody over K.A., and requiring T.T.'s ongoing compliance with Division-recommended services.
In compliance with the court's orders, T.T. began substance abuse treatment at the "Straight and Narrow" inpatient program. However, she later discharged herself from the program after a few days, citing concerns about the facility's safety. She never enrolled in another program.
On March 12, 2013, T.T. and D.A. entered an identified surrender of their parental rights as to K.A., with the understanding that either D.O. or J.O. or both would adopt the child. Prior to the hearing, they received a "Voluntary Surrender of Parental Rights Form" (the "form"). The form asks a series of questions designed to ensure that their decision was made voluntarily, intelligently, and knowingly, and that they were aware of the legal consequences that would follow. T.T. and D.A. both initialed each page of their respective forms, and then signed and dated those forms.
During the hearing, T.T.'s attorney and the court repeatedly and specifically questioned T.T. as to her understanding that the court would not enforce any promises made by D.O. or anyone else as to visitation or contact with K.A. T.T.'s attorney reviewed with T.T., the questions asked on the form and T.T. recited her answers to those questions:
Q. This is an important decision. Are you making it voluntarily and of your own free will?T.T. also confirmed that she initialed and signed the forms, which were given to the court.
A. Yes.
Q. Did anyone force, coerce, threaten, or pressure you into making this decision?
A. No.
Q. Did anyone offer or promise you anything to convince you to make this decision?
A. No.
Q. Are you currently under the influence of drugs, alcohol, or prescription medication which has affected your ability to make a clear decision?
A. No.
Q. Are you suffering from any mental or physical disability which could affect your judgment?
A. No.
. . . .
Q. Do you understand that the Court cannot enforce any visitation promises made by anyone?
A. Yes.
Q. Do you understand that regardless of your present relationship with the potential adoptive parent, that there's no legal redress in case she changes her mind or they
change their mind in the future? You understand that; correct?
A. Yes.
. . . .
Q. Do you understand that so long as the persons you have given up your rights to adopt the child, your surrender is final and you cannot change your mind?
A. Yes.
. . . .
Q. Okay. Did you have sufficient time to think about this important decision?
A. Yes.
Q. Do you believe that surrender of your parental rights is in your child's best interest?
A. Yes.
Q. Did I, your lawyer, answer all your questions?
A. Yes.
Q. Are you satisfied with my services as your lawyer?
A. Yes.
Q. Do you have any questions regarding this surrender?
A. No.
Afterwards, the court questioned T.T. The court molded its questions to refer to the parties specifically involved in this case:
Q. Do you understand that in spite of any promises that might have been made with regard to future contact between yourself and [K.A.], that those are not enforceable?
A. Yes.
Q. Do you understand that if I accept your surrender here today, you will have no legal or other right to any contact with [K.A.] in the future?
A. Yes.
Q. So if [D.O. and J.O.] have represented to you that they will allow you to continue to be in contact or in touch with [K.A.] and at some point in the future they change their mind, there's nothing you can do about that. Do you understand that?
A. Yes.
. . . .
Q. Do you feel that it is in [K.A.'s] best interest that she be adopted by [D.O.] and/or [J.O.]?
A. Absolutely.
Q. Now, she's been with them for a period of time; is that correct?
A. Yes.
Q. Are you familiar with the care that they have provided [K.A.] from the time they got custody of her up to the present time?
A. Yes.
Q. Are you satisfied with the quality of that care?
A. Completely.
Q. Are you confident that they will continue to provide good care in the future for [K.A]. if they are permitted to adopt her?
A. Yes.
. . . .
Q. Do you feel at the present time that [D.O. and J.O.] are in a better position to care for [K.A.] than you are?
A. Yes.
After the testimony, the court was satisfied that T.T. had made her identified surrender voluntarily, that she had not been forced, threatened or coerced, and that she was not under the influence of any substance that might impair her judgment. The court was further satisfied that T.T. was aware of the legal consequences of the judgment of guardianship that would follow. Specifically, the court stated,
[T.T.] understands that regardless of any representations that might have been made by the [D.O. and J.O.] regarding future contact between her and [K.A.], that those are not enforceable in a Court of law. She understands that if I accept the surrender, she has no legal or other right to future contact with [K.A.] if the adoption is completed. She is of sufficient intellect to be making this decision.The court then entered several orders, dismissing the Title 9 litigation; entering a judgment of guardianship accepting the defendants' identified surrenders; terminating T.T.'s child support obligations as to K.A.; and accepting the Division's permanency plan of terminating parental rights followed by adoption of K.A.
She feels that it is in the best interest of [K.A.] to be adopted by [D.O.. and/or J.O.]. . . . She feels that they are in a better position at the present time than she is to provide care for her daughter.
The court followed identical procedures when D.A. entered his own identified surrender.
On April 3, 2013, T.T. filed a motion to "vacate her identified surrender." T.T. claimed that when she agreed to an identified surrender, she relied on D.O.'s promises that T.T. could reside with the family and K.A., and that they would not change K.A.'s name. However, these alleged promises were later broken after the identified surrender when D.O. refused to let T.T. into her home. D.O. also expressed her intention to change K.A.'s name. According to T.T., when she was asked at the surrender hearing if "anyone offer[ed] or promise[d] you anything to convince you to make this decision?", she was confused "and did not believe this applied to [D.O.'s] promises." She later filed an amended motion to vacate, to include the additional claim that she had been under the influence of heroin at the time of her identified surrender.
The court denied the motion to vacate on May 8, 2013. In its oral decision, the court first detailed the procedures followed in accepting the identified surrender: completing the "Voluntary Surrender of Parental Rights" form, answering questions by the parents' counsel, and answering questions directly posed by the court. The court noted that several of the questions asked referred to the specific issues at hand — namely, whether T.T. was acting under the influence of any substance, or the inducement of an unenforceable promise.
The order was amended May 21, 2013, solely to reference both the FN-15-252-12C and FG-15-47-13E docket numbers.
The trial court stated that in order for T.T. to succeed with her motion, T.T. needed to demonstrate grounds to vacate pursuant R. 4:50-1; that circumstances had changed subsequent to the entry of judgment; and that setting aside the judgment was in the best interests of the child. Ultimately, T.T. failed to convince the court she was confused by the questions regarding her visitation rights, or that she was under the influence of any substance at the time of the identified surrender. Instead, the court articulated an alternative motive for T.T.'s application:
[I]n a post termination status report that this Court received in preparation of today's hearing there is information that after she surrendered[,] [T.T.] went missing for several days. When she resurfaced, according to the information that this Court has, the birth mother began calling the caretakers, contacting them and their adult children on the computer, and texting, and showing up at the house alone and with others, and driving by the home while under the influence. The caregiver alerted the police at that time. And that is, in the Court's mind, why [T.T.] has filed this motion because of events that she has done after the surrender that has caused [D.O. and J.O.] to not allow [K.A.] to visit with her when they perceived her to be under the influence at that time.
The court also found that it was in the child's best interest to deny the motion, in light of her age at the time of removal; the bond she had likely formed with D.O. in that time; and because "[r]emoval from their care at this time would be detrimental and disruptive to [K.A.'s] upbringing and development." The court denied the application, noting that T.T. was "merely suffering buyer's remorse." This appeal followed.
T.T. asks this court to reverse the Family Part's decision or, in the alternative, to remand the case for hearings to consider the best interests of the child.
II.
T.T. filed her motion to vacate the guardianship judgment pursuant to Rule 4:50-1, which provides,
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.Rule 4:50-1 "is applicable to consensual final judgments," N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 434 (App. Div.) certif. denied, 205 N.J. 14 (2010), cert. denied, 131 S. Ct. 2925, 179 L. Ed. 2d 1255 (2011), and is appropriate where a claimant seeks to vacate a judgment terminating parental rights. In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002). Relief under this rule is "granted sparingly." F.B. v. A.L.G., 176 N.J. 201, 207 (2003).
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." Ibid. Therefore, its "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)), meaning its 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) (quoting Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd, 78 N.J. 320 (1978)).
Our scope of review of a trial court's decision to grant or deny a motion to vacate is therefore 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). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "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).
III.
Once a parent completes an identified surrender and a guardianship judgment is entered, any request to re-establish the child's relationship with his or her parent requires a court to focus on the child's best interest because it is "the future of a child [that] is at stake." T.G., supra, 414 N.J. Super. at 434 (quoting J.N.H., supra, 172 N.J. at 474-75). For that reason, parents seeking to vacate a judgment of guardianship must establish a change in circumstances and prove that vacating the judgment would be in the child's best interest. T.G., supra, 414 N.J. Super. at 434-34. In order to establish changed circumstances, a parent must prove "that events have occurred subsequent to the entry of a judgment that, absent the relief requested, will result in 'extreme' and 'unexpected' hardship." J.N.H., supra, 172 N.J. at 473 (quoting Hous. Auth. of Morristown v. Little, supra, 135 N.J. at 285-86). Proof of any grounds set forth in Rule 4:50-1 satisfies this requirement. T.G., supra, 414 N.J. Super. at 435.
As to proof that vacating the judgment would be in the best interests of the child, ibid., such proof must be "clear and convincing." See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 225 (2010) (holding that when a parent seeks to vacate an order for kinship legal guardianship, a court must find by clear and convincing evidence that termination of the guardianship is in the child's best interests). "This prong requires a weighing of the effects setting aside the judgment may have on the child's stability and permanency." T.G., supra, 414 N.J. Super. at 435.
T.T. argues that she met this burden and that the trial court should have granted her motion to vacate, as she has shown changed circumstances and established that she was under the influence of heroin at the time of the identified surrender. We find no support for T.T.'s argument. Rather, we are satisfied that the trial court correctly found no changed circumstances existed and, even if they did, T.T. still failed to prove that vacating the guardianship judgment was in K.A.'s best interest. As a result, the court correctly found that T.T.'s surrender remained enforceable, despite her arguments.
In determining what constitutes an enforceable "surrender," we have looked to New Jersey's adoption statutes for guidance. Id. at 435-36. Under the adoption laws, a surrender is enforceable if "a parent . . . knowingly and voluntarily express[es] his or her understanding that custody of his or her child is relinquished and their parental rights are terminated in favor of the agency." Id. at 436.
The adoption laws explicitly provide the procedure for surrender to an approved agency; and, "based on the similarities between surrenders to an approved agency and those to the Division in lieu of proceeding to litigate a guardianship action," such standards may be applied to identified surrenders made pursuant to N.J.S.A. 30:4C-23. T.G., supra, 414 N.J. Super. at 436. Accordingly, any failure to comply with such standards may constitute "changed circumstances" as would support an application to vacate the surrender. Ibid.
In support of her motion, T.T. raised arguments as to her knowledge and the "voluntariness" of her surrender. Her arguments, however, are not supported by any facts in the record. Rather, those facts support the court's finding that she understood what she was doing, she surrendered voluntarily and that she was not under the influence of any drugs.
Our review of the record reveals that T.T. was asked multiple times if she understood that the court could not enforce any promises allegedly made by D.O. about T.T.'s contact with K.A. These questions appeared on her form and were presented and reinforced during questioning by her attorney and the court. Moreover, the court molded its own questions to refer to the parties specifically involved in the case:
So if [D.O. and J.O.] have represented to you that they will allow you to continue to be in contact or in touch with [K.A.] and at some point in the future they change theirSuch specific questioning undermines T.T.'s post-judgment claims that she did not understand the legal consequences of her surrender. Also, in light of the court's questioning, T.T. could not claim that she reasonably relied on D.O.'s alleged promises, as would be required to support any allegations of the use of fraud in inducing her to enter into the voluntary surrender of her parental rights.
mind, there's nothing you can do about that. Do you understand that?
As to her claim that she was under the influence of heroin at the time of the identified surrender, T.T. only cites to two moments during the hearing in which the court asks her to move her hands away from her mouth. Apparently, her behavior did not persuade Judge Einbinder to conclude that she was using heroin. In addition, T.T.'s responses to questions about whether she was under the influence were clear in their denial. "We are obliged to accord deference to the trial court's credibility determinations and its '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), aff'd in part, modified in part, 179 N.J. 264 (2004); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988).
Nothing presented by T.T. in her appeal warrants disturbing those findings. We, like Judge Einbinder, are satisfied that T.T. failed to demonstrate any "fraud . . ., misrepresentation, or other misconduct," Rule 4:50-1(c), "or . . . any other reason justifying relief from the operation of the judgment or order," Rule 4:50-1(f), as would satisfy the required showing of changed circumstances.
Even if we were not satisfied that the judge ruled correctly as to changed circumstances, we are satisfied that T.T. failed to offer any evidence that vacating the identified surrender would be in K.A.'s best interest. The "best interests of the child" is a fact-sensitive determination. M.M., supra, 189 N.J. at 280. The key determinant is not the fitness of the parent, but whether a child's interest would best be served by terminating the child's relationship with that parent. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The focus is on the impact on the child's need for stability and permanency. T.G., supra, 414 N.J. Super. at 435.
Without some showing that the vacating of the guardianship judgment was in K.A.'s best interest, there was no need for Judge Einbinder to conduct a hearing.
--------
It was T.T.'s burden to prove by clear and convincing evidence that granting her application would be in K.A.'s best interests. In support, she noted her (limited) compliance with the Division's services and recommendations during the Title 9 and Title 30 actions. Also, she relied on the fact that Judge Einbinder found during the fact-finding that T.T. did not cause K.A. to be abused or neglected. She never even stated that since her surrender she had or would comply by entering a drug treatment program as originally recommended.
Vacating the guardianship judgment in this case would not only be contrary to the court's interest in the finality of judgments, but, more importantly, it would also jeopardize its interest in the child's stability and permanency. We are therefore satisfied that Judge Einbinder correctly determined that vacating the judgment would be contrary to K.A.'s best interest, especially in light of her age at the time of removal, and the bond which she has formed with her paternal grandparents.
Finally, from a practical standpoint, even if the trial court vacated the guardianship judgment and T.T.'s surrender, it would not automatically result in T.T. being reunited with K.A. Rather, T.T. would retain her parental rights, while K.A. would remain in her grandmother's custody. The litigation would be reinstated, and T.T. would once again be required to comply with the services and programs recommended by the Division. Moreover, it would not prevent the Division from filing a Title 30 Guardianship action seeking to terminate T.T.'s parental rights. Most important, it would further delay K.A.'s ability to find the permanency in her life to which she is entitled.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION