DCPP v. J.K., IN THE MATTER OF THE GUARDIANSHIP OF L.B., G.B., T.K., AND D.B. (FG-15-0069-19, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3414-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.K.,
Defendant-Appellant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF L.B.,
G.B., T.K., and D.B., 1 minors.
_________________________
Argued February 3, 2022 – Decided February 16, 2022
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FG-15-0069-19.
Eric R. Foley argued the cause for appellant (Afonso
1
D.B. is not part of this appeal.
Archie & Foley, PC, attorneys; Eric R. Foley, on the
briefs).
Amy Melissa Young, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Amy Melissa
Young, on the brief).
Neha Gogate, Assistant Deputy Public Defender,
argued the cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Neha Gogate, on
the brief).
PER CURIAM
Defendant J.K. 2 appeals from a July 21, 2021 order adjudicating her
motion to vacate a judgment of guardianship following the identified surrender
of parental rights to her daughters, D.B., L.B., G.B., and T.K. to their resource
parents. The motion judge vacated the judgment regarding D.B. because her
resource parent no longer wished to adopt her but declined to vacate the
judgment related to other children. We affirm.
J.K. is the mother of all four children; each of the children's fathers are
deceased. J.K.'s involvement with the Division of Child Protection and
Permanency began in 2006, and included numerous referrals regarding her drug
abuse, mental health, criminality, and abuse and neglect of the children. Over
2
We use the parties' initials to protect their privacy. See R. 1:38-3(d)(12).
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the years, the Division provided services to J.K., including assistance with
housing, utilities, furniture, clothing, supplies for the children, and various
forms of treatment.
However, J.K.'s frequent incarcerations and psychiatric hospitalizations
forced the children into foster care and out-of-home placements for years at a
time. In January 2018, the Division filed a complaint and an order to show cause
for care and supervision, which the court granted. The court ordered J.K. to
comply with the Division's recommendations and the Division to provide
services to her and the children. J.K. did not comply; she continued to abuse
drugs and had more psychiatric hospitalizations. That April, the Division filed
an amended complaint seeking temporary custody of the children, which the
court also granted. The court ordered J.K. to comply with the Division's
recommendations and ordered services including random urine screens, an
updated substance abuse evaluation, a referral to specialized therapy, and
ongoing mental health treatment for the children.
The situation did not improve. J.K. continued to relapse and the children
remained in out-of-home placements. The eldest child, D.B., suffered from
severe behavioral problems, requiring placement in more than one treatment
home for several months before transitioning to live with L.B. in P.K.'s home.
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To afford the children permanency, the Division filed a guardianship
complaint in June 2019. By December 2019, G.B. and T.K. were placed with a
second resource parent, Li.B.; and D.B. and L.B. were with P.K. Both resource
parents wished to adopt. The court scheduled trial for January 2020.
On December 10, 2019, J.K. executed an identified surrender of her
parental rights of the children to their respective resource parents. The motion
judge questioned J.K., who confirmed she understood the proceedings, had time
to consider her options, discussed the matter with counsel and was satisfied with
his answers. J.K.'s counsel then questioned her about her surrender and
reviewed every applicable question in the voluntary surrender of parental rights
forms, which J.K. signed, and confirmed the surrender was to the two separate
resource parents.
When J.K.'s counsel reviewed the surrender forms with her regarding T.K.
and G.B. and asked if she wanted pre-surrender counseling from the Division,
she said yes. When counsel reviewed the forms for L.B. and D.B. and inquired
about pre-surrender counseling, J.K. again said yes. The judge advised the
surrender could not go forward without the counseling. However, J.K. then
waived pre-surrender counseling and stated, "I'll get my own counseling." J.K.
confirmed she understood the finality of the surrender. Specifically, the judge
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asked "[Y]ou understand that the only way that your parental rights will be
reinstated is if [Li.B.], with regard to [T.K.] and [G.B.], could not adopt them,
or if P.K. could not adopt [L.B.] or [D.B.] Do you understand that?" J.K.
answered "Yes." The judge accepted the surrenders.
In June 2021, J.K. filed a motion to vacate the judgment as to all four
children. She certified she surrendered her parental rights because she
understood all four children would be adopted quickly and by the end of 2020.
She stated she learned the adoptions had not occurred "and that P.K. does not
want to adopt [D.B.]" She claimed her surrender was contingent on all the
children being "adopted collectively instead of piecemeal" and that she would
not have otherwise surrendered her rights.
J.K. also argued the court should grant her motion because she completed
an inpatient program in March 2020 and attached a certificate as proof. She also
attended a behavioral health program from April until July 2020 and continued
intensive outpatient treatment from October 2020 to April 2021.
The Division's opposition to the motion confirmed D.B. was no longer
living with P.K. and P.K. did not wish to adopt due to the child's behavioral
issues. The Division consented to the court vacating the judgment regarding
D.B. but opposed doing so for the other children. According to the Division,
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G.B. and T.K. remained in their placement and similarly L.B.'s adoption was
also moving forward.
G.B., L.B., and T.K. also opposed the motion. G.B.'s attorney advised the
court the child "is extremely frustrated with the time it has taken to finalize the
adoption due primarily to the COVID-19 Pandemic. She has lived with her
resource mother since August 2019 . . . and simply wants to move on with her
life." L.B.'s counsel likewise informed the court the child did not want "any
contact with [J.K.] now and in the foreseeable future. She is anxious to have the
adoption finalized so that she can officially call P.K. '[m]om.' . . . There are no
circumstances which would justify severing the bond that has grown between
[L.B.] and P.K."
The motion judge vacated the judgment regarding D.B. but denied the
motion as to the remaining children. The judge stated she had accepted J.K.'s
surrender and recalled J.K. was "alert and oriented" and "understood what was
happening . . . that under no circumstances was this surrender going to be
vacated except if the children, or child, could not be adopted by the identified
caregiver." The judge noted since the surrender she held "several summary
hearings to monitor the progress of . . . the adoption[s] . . . as well as the
children[ a]nd . . . the three remaining children[] are thriving in their placements
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where they have been for a significant period of time." The judge also noted the
children's caregivers ensured the children remained in contact with one another
despite living in separate homes. The judge also found J.K. had not provided
adequate proof of her rehabilitation, having completed just one short-term
residential rehabilitation program.
The motion judge concluded as follows:
There was never any representation until now in any of
the proceedings that this was a package where all four
children had to be adopted or it was inappropriate. . . .
The only condition precedent to a vacation of a
judgment of guardianship in an identified surrender is
that the resource parents who [have] been identified
[are] no longer able to adopt the child. . . .
[T]here is no time frame required for adoption. It can
take as long as it takes. It is not having a deleterious
effect on three children that would be ready, willing and
able to be adopted by the foster parents. . . . And there
is nothing before me to suggest that anything that's
happened would render the enforcement of the earlier
judgment of guardianship inequitable.
There simply is nothing other than the subjective
suggestions by [J.K.] that she believes that it's taken too
much time and that she believes that if . . . all four [were
not] going to be adopted right away and in the fashion
anticipated then it can't be held to be proper and the
judgment of guardianship should be reopened to allow
the [c]ourt to explore new options in permanency.
There has been no lack of commitment on the part
of the resource parents with regard to the three children.
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. . . [T]here's simply no evidence offered to the [c]ourt
that would warrant the extraordinary remedy under
[Rule] 4:50-1 to allow a judgment to be vacated. . . .
This is a situation where the movant believes that she
is in a better place and is now able to take on the
responsibilities of her children. Respectfully that is not
the test for this [c]ourt.
J.K. raises the following points on appeal:
POINT I: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY [MISCONSTRUING]
THE PROVISIONS OF THE CONDITIONAL
IDENTIFIED SURRENDER AND ABUSED ITS
DISCRETION IN DENYING THE MOTION TO
VACATE THE JUDGMENT OF GUARDIANSHIP.
A. THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY FAILING TO
VACATE THE JUDGMENT OF
GUARDIANSHIP AS TO ALL FOUR
CHILDREN WHERE THE CONDITION
PRECEDENT OF THE IDENTIFIED
SURRENDER WAS NOT MET WHEN ALL OF
THE CHILDREN COULD NOT BE ADOPTED.
B. ALTERNATIVELY, THE COURT
ABUSED ITS DISCRETION BY FAILING TO
HOLD AN EVIDENTIARY HEARING WHERE
J.K. PRESENTED A PRIMA FACIE SHOWING
FOR RELIEF UNDER [RULE] 4:50-1.
POINT II: THE SURRENDERS AND JUDGMENT OF
GUARDIANSHIP SHOULD BE VACATED
BECAUSE THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN ACCEPTING THE
SURRENDERS OF J.K. WHERE THE RECORD
PLAINLY SHOWS THAT J.K. REQUESTED PRE-
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SURRENDER COUNSELING AND BECAUSE THE
SURRENDERS WERE NOT MADE IN A KNOWING
AND VOLUNTARY MANNER.
I.
The Supreme Court has sanctioned the use of Rule 4:50-1 to vacate a
judgment terminating parental rights. In re Guardianship of J.N.H., 172 N.J.
440, 473-74 (2002). The Court adopted a two-part test, namely, a parent's
motion "'must be supported by evidence of changed circumstances' as the
'moving party bears the burden of proving that events have occurred subsequent
to the entry of a judgment to justify vacating the judgment.'" N.J. Div. of Youth
& Fam. Servs. v. T.G., 414 N.J. Super. 423, 434 (App. Div. 2010) (quoting
J.N.H., 172 N.J. at 473). Secondly, "[t]he focus of a termination proceeding is
the 'best interests' of the child." J.N.H., 172 N.J. at 471; see also N.J. Div. of
Youth & Family Servs. v. L.L., 201 N.J. 210, 228 (2010). The trial court must
consider the child's best interests because it may affect the child's stability and
permanency. "[T]he primary issue is . . . what effect the grant of the motion
would have on the child." J.N.H., 172 N.J. at 475. A decision on a motion under
Rule 4:50-1 is addressed to the sound discretion of the motion judge, and we
will not disturb it absent a clear abuse of discretion. T.G., 414 N.J. Super. at
434.
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Having considered J.K.'s arguments on appeal, we affirm substantially for
the reasons expressed by the motion judge. We add the following comments.
We have held "proof of [a parent's] rehabilitation from substance abuse,
[the parent's] employment, the child's continued attachment, or [the child's]
failure to thrive in his foster home" may be circumstances warranting relief
under Rule 4:50-1(f). Id. at 438. Given J.K.'s long history of substance abuse
and mental health issues, her completing one certification did not justify
granting her motion or an evidentiary hearing.
J.K.'s motion also lacked any objective evidence meeting the second prong
of J.N.H. to show it would be in L.B., G.B., or T.K.'s best interests to vacate the
judgment and halt the adoption process. Given D.B.'s mental health history,
which unfortunately prevented her adoption, it was appropriate for the judge to
grant the motion only as to her. It was not error to deny the motion as to the
three younger children because each child has her "own rights, including the
right to a permanent, safe and stable placement." N.J. Div. of Youth & Fam.
Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004). On this record, we are
unpersuaded the younger children would be adversely impacted by allowing
their adoptions to proceed without D.B.
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II.
Lastly, we reject J.K.'s argument the judgment is invalid because it was
entered without affording her pre-surrender counseling. As a general
proposition, we do not consider arguments that were not presented to the trial
court in the first instance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973). Notwithstanding that J.K. did not raise this argument to the motion
judge, a thorough review of the record reveals she waived the right to pre-
surrender counseling by the Division in the interests of completing the identified
surrender and pursuing counseling on her own. Therefore, even under a plain
error standard, we are unconvinced there was a legal impropriety which affected
J.K.'s rights "sufficiently grievous to justify notice by the reviewing court and
to convince the court that of itself the error possessed a clear capacity to bring
about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969).
Affirmed.
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