DCPP VS. M.J., IN THE MATTER OF THE GUARDIANSHIP OF D.J. (FG-03-0038-19, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3689-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.J.,
Defendant-Appellant.
_______________________
IN THE MATTER OF THE
GUARDIANSHIP OF D.J.,
a minor.
_______________________
Submitted March 16, 2021 – Decided April 22, 2021
Before Judges Fisher, Gilson, and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FG-03-0038-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven Edward Miklosey, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Meaghan Goulding, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; David B. Valentin,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
The trial judge heard testimony during a four-day trial in the Division of
Child Protection and Permanency's action for guardianship of D.J. (Danny)
against his mother, defendant M.J. (Mandy), and his father, J.C. 1 On the last
day of trial, the judge began delivering her oral decision. After comprehensively
setting forth her findings of facts and the pertinent law, the judge concluded the
Division had met its burden to prove each of the four prongs set out in N.J.S.A.
30:4C-15.1(a),2 and "the best interest[s] of the child demand[ed] the termination
1
The pseudonyms were used by defendant in her merits brief. We copy them
and use initials to protect Danny's and the litigants' privacy interests. See R.
1:38-3(d)(12).
2
Under N.J.S.A. 30:4C-15.1(a),
The [D]ivision shall initiate a petition to terminate
parental rights on the grounds of the "best interests of
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2
of parental rights of both [Mandy and J.C.] and transfer of guardianship to the
Division . . . so that [Danny] may be free[d] for adoption."
The judge then related the evidence she found that supported her
conclusion that the Division had met the first two prongs. She had started her
findings as to the third prong when defendant's counsel interrupted and, at
sidebar, informed the judge defendant "want[ed] to ask the [c]ourt if she could
the child" pursuant to [N.J.S.A. 30:4C-15(c)] if the
following standards are met:
(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;
(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
outside the home and the court has considered
alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
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offer a surrender[.]" Defendant and her counsel retired to a conference room to
review the Voluntary Surrender of Parental Rights Form;3 the judge said she
would recess until they had completed their review and then would finish
rendering her oral decision. Defendant made clear she did not want to hear the
balance of the judge's decision.
After the recess, the judge confirmed Mandy: reviewed, initialed and
signed the Form; recognized the importance of her decision; waived the rights
to which she was entitled; and was surrendering her parental rights knowingly
and voluntarily, having had ample time to review her rights with counsel.
Mandy also confirmed the identified surrender was in Danny's best interests.
The judge entered the order that day, January 10, 2020. 4
Danny remained in the care of resource parents, his paternal aunt and
uncle, under the terms of the identified surrender. He had been living with them
since September 2017.
3
Though this form was admitted into evidence, as the Division notes in its
merits brief, it is not included in Mandy's appendix and "the Division's efforts
to obtain [the Form] directly from the [trial] court have been unsuccessful."
4
The judge completed her decision and entered an order that day terminating
J.C.'s rights and awarding guardianship to the Division. J.C. has not appealed
from that order.
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A few months later, Mandy moved to vacate the identified surrender
alleging Danny's resource parents did not allow her post-surrender contact with
her son. She appeals from the judge's May 8, 2020 order denying the motion
following a hearing arguing:
POINT I
THE TRIAL COURT'S DENIAL OF MANDY'S
MOTION TO VACATE THE IDENTIFIED
SURRENDER MUST BE REVERSED PURSUANT
TO [RULE] 4:50-1(f), WHEREAS EXPERT [TRIAL]
TESTIMONY PROFFERED BY BOTH MANDY
AND [THE DIVISION] CLEARLY STATED THAT A
CONTINUED RELATIONSHIP BETWEEN MANDY
AND [DANNY] WAS IN [DANNY'S] BEST
INTEREST[S].
We recognize a decision denying a motion to vacate an order—even a
consensual one—lies within the trial judge's sound discretion, and we will not
disturb the order absent a clear abuse of that discretion. N.J. Div. of Youth &
Fam. Servs. v. T.G., 414 N.J. Super. 423, 434 (App. Div. 2010). Under our
limited scope of review, we will not disturb a trial judge's findings if they are
"supported by adequate, substantial, credible evidence" in the record, Cesare v.
Cesare, 154 N.J. 394, 412 (1998); see also T.G., 414 N.J. Super. at 432-33, and
are not "so wholly insupportable as to result in a denial of justice," Rova Farms
Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); see also T.G.,
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414 N.J. Super. at 432-33. Under that lens, and deferring to the trial judge's
"special expertise in matters related to the family," N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420, 448 (2012), we conclude the record evidence
supports the trial judge's denial and affirm.
Mandy moved to vacate the surrender under Rule 4:50-1(f), which allows
relief from a final judgment or order for any "reason justifying relief from the
operation of the judgment or order." Because such a motion involves "the future
of a child," our Supreme Court adopted a two-prong test a moving parent must
satisfy for relief to be granted. T.G., 414 N.J. Super. at 434 (quoting In re
Guardianship of J.N.H., 172 N.J. 440, 474 (2002)). The movant must show both
"evidence of changed circumstances" and establish that vacating the judgment
would be in the child's "best interests." Id. at 434-35 (quoting J.N.H., 172 N.J.
at 471, 473).
Mandy does not contend her surrender was not knowing and voluntary or
that the surrender is unenforceable because of "fraud, duress or
misrepresentation." See N.J.S.A. 9:3-41(a); T.G., 414 N.J. Super. at 436. She
argues the judge erred in holding she did not satisfy either of the required prongs.
In deciding the motion, the judge recalled the evidence adduced at the trial
over which she presided and observed the proceedings had been "ongoing since
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September of 2017[,]" during which Danny—for almost three years—was in the
Division's custody. She also reviewed with defendant a question on the
Voluntary Surrender Form, asking if defendant understood the trial court could
not enforce promises to allow her visitation with Danny, which defendant
answered affirmatively; defendant confirmed her understanding to the judge on
the record. The judge then echoed defendant's acknowledgment that the motion
to vacate was not premised upon promised visitation, but upon a claim that there
was "a change of circumstances at an issue of the best interest[s] of the child[.]"
The judge found Mandy had not shown changed circumstances because
"[t]he circumstances [were] the same, that the [c]ourt could not enforce any
promises made by the [resource] parents for [Mandy] to see [Danny]. That was
the case at the time of the surrender; that [was] still the case at [that] time." The
judge also found Mandy had not established that vacating the surrender was in
Danny's best interests as he had been "thriving" in the resource parents' care for
almost three years, and it was in Danny's best interests for the resource parents'
planned adoption to go forward. The judge determined if the surrender was
vacated, the "additional delays, significant delays" were "unnecessary and
clearly not in [the] child's best interest[s]."
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In her merits brief, Mandy reiterates her motion "is not a matter of an
unenforceable promise to continue visitation, but a clear and exceptional
concern that Danny's [resource] parents were not acting in his best interest [s]"
by precluding contact with Mandy. In support of her premise, she points to
testimony given by experts at trial: The Division's expert in forensic
psychology, Dr. Brian Eig, and her expert in clinical and forensic psychology,
Dr. Gerard Figurelli.
Dr. Eig found Mandy exhibited Cannabis-use Disorder, unspecified
Bipolar Disorder, Generalized Anxiety Disorder, and antisocial personality
traits such as "the persistent involvement in behaviors that are grounds for arrest,
irresponsibility, impulsivity, [and] aggressiveness sometimes," and lacked the
parenting skills to independently care for Danny. He nevertheless found a
"positive and strong relationship" existed between Danny and his mother,
although he could not definitively conclude whether Danny's attachment to her
was secure. Mandy's counsel asked Dr. Eig on cross-examination if, "given that
the child is eight [years old] and has a good, positive, [and] strong relationship"
with Mandy, "wouldn't that continued contact [with his mother] be in [Danny's]
best interest[s]?" The doctor responded: "I think it would, I haven't given it a
lot of thought[,] but I think it would."
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Dr. Figurelli found Mandy experienced "clinically, significant symptoms
of depression, anxiety, and struggl[ed] with stability of mood." He understood
she had not been taking her prescribed medications and was not "in a position
to be able to parent in a consistently safe and stable manner, until she
participated in and benefitted from the services that she needed." Dr. Figurelli,
nevertheless, found a "significant" attachment existed between mother and son
based on his observations during their bonding evaluation. The doctor noted his
concerns about the potentially unpleasant relationship between Mandy and
Danny's resource parents and opined it would be important for Danny to
continue to have contact with defendant as long as the contact was "appropriate."
Mandy argues the doctors' testimony "confirmed that continued contact
between Danny and Mandy was in Danny's best interest[s][,]" and that "[t]he
denial of that contact constitutes a truly exceptional circumstance that is
detrimental to Danny's best interest[s]."
Mandy's arguments do not really address—much less establish—that there
were changed circumstances. As the trial judge observed, Danny has been in
the care of his resource parents, who are blood relatives, for years. Mandy's
concession that her motion was not based upon a "promise to continue
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visitation" merely admits the trial court's determination that she fully recognized
at the time of surrender that any promise of future visitation was unenforceable.
Moreover, there are other circumstances that have not changed and also
demonstrate that granting the motion to vacate was not in Danny's best interests.
Mandy's use of Dr. Figurelli's parsed testimony does not fully disclose the
doctor's caveat to her continued contact with Danny. On cross-examination, he
explained the "appropriate contact" that would be in Danny's best interests was
conditioned on Mandy addressing both her mental health and substance abuse
issues. He explicated "appropriate contact" would require that "she's no longer
engaging in any substance abuse[,] [t]hat she is addressing her mental health
issues, and that there are evidences of stability in her life."
Not only has Mandy failed to demonstrate a change of circumstances—
that she has addressed either of those issues and demonstrated stability—her
failure to address those issues belies her assertion that her contact with Danny
would be in his best interests. As we reasoned in T.G.:
Relief from the judgment under subsection (f) requires
a showing of exceptional circumstances that
demonstrate redress is necessary, and that enforcement
of the order or judgment would be unjust, oppressive or
inequitable. [The] [d]efendant offers no facts
establishing the current circumstances warrant relief
from the judgment terminating parental rights. Such
facts could include proof of her rehabilitation from
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substance abuse, her employment, the child's continued
attachment, or [the child's] failure to thrive in his foster
home.
[414 N.J. Super. at 438 (citations omitted).]
Likewise, Mandy has not established those exceptional circumstances.
Furthermore, close scrutiny of Dr. Eig's testimony reveals the portion
selected by Mandy to buttress her argument was not the doctor's final opinion
after he stated on cross-examination, admittedly without "a lot of thought," that
continued contact with Mandy would be in Danny's best interests. The trial
judge specifically inquired if the doctor's recommendation that Danny should
remain in the resource parents' care—an alternative permanency plan that did
not include parental reunification—would change if continued contact between
Danny and Mandy ceased. The doctor replied:
It is something that I certainly consider and think about.
In this case, I don't—in this case, if the resource parents
told me, and they didn't, if they told me that if there was
termination of parental rights and they adopted
[Danny], that they would not allow contact with
[Mandy], that wouldn't change my opinion, in this case.
Upon further questioning by the judge, the doctor admitted "[i]n this case, to be
honest, [he was] really not sure how much [continued contact] would help or
hinder[,]" so he wasn't sure if his opinion would change. The full content and
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context of Dr. Eig's testimony does not provide an adequate bulwark for Mandy's
motion.
We perceive no error in the trial judge's application of her found facts to
the dual J.N.H. prongs. Mandy established neither changed circumstances nor
that granting the motion to vacate the identified surrender would be in Danny's
best interests. Inasmuch as vacating a judgment or order under any Rule 4:50-
1 subsection should be done "sparingly," J.N.H., 172 N.J. at 474, and a movant
who relies solely on subsection (f) must show that "truly exceptional
circumstances are present," Hous. Auth. of Morristown v. Little, 135 N.J. 274,
283 (1994); Baumann v. Marinaro, 95 N.J. 380, 395 (1984), Mandy failed to
"demonstrate [that] redress is necessary . . . and that enforcement of the order or
judgment would be unjust, oppressive or inequitable," see T.G., 414 N.J. Super.
at 438 (citations omitted).
Affirmed.
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