DCPP VS. K.D. IN THE MATTER OF THE GUARDIANSHIP OF S.D.(FG-09-135-11, HUDSON COUNTY AND STATEWIDE, FA-12-67-12, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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-2651-14T4
A-5513-14T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.D.,
Defendant-Appellant.
___________________________________
IN THE MATTER OF THE GUARDIANSHIP OF
S.D.,
Minor.
_______________________________________________
Argued April 25, 2017 – Decided June 1, 2017
Before Judges Fisher, Vernoia and Moynihan.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Hudson
County, Docket No. FG-09-135-11 and Middlesex
County, Docket No. FA-12-67-12.
Jennifer M. Kurtz, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Ms. Kurtz, on the
brief).
Julie B. Colonna, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Ms. Colonna, on the brief).
Danielle Ruiz, Designated Counsel, argued the
cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Ms. Ruiz,
on the brief).
PER CURIAM
The procedural circumstances in these consolidated appeals
appear to present unusual legal issues. Notwithstanding, our focus
remains on the best interests of a ten-year old child whose future
this case impacts.
I
S.D., the child in question, was born on the fourth of July
in 2006.1 He was removed from the care and custody of his mother
– defendant K.D. – in 2009, because of lapses in defendant's
parenting caused by her alcoholism.2 The child was placed in the
care of his maternal grandmother, A.D. (Anna, a fictitious name).
1
The child was diagnosed with "Autism Spectrum Disorder with
combined repetitive and expressive language disorder,
developmental fine motor coordination disorder and attention
deficit hyperactivity disorder."
2
In September 2009, police reported finding the child, then three
years of age unaccompanied at a busy intersection. Following its
investigation, the Division of Protection and Permanency provided
a "24 hour homemaker" and, after reviewing the homemaker's
2 A-2651-14T4
The Division commenced a guardianship action in Hudson County
in October 2010, asserting there was no viable alternative to the
termination of parental rights. The child's father – T.D. – entered
into a voluntary surrender of his parental rights in favor of
Anna. And, in 2011, defendant also executed a voluntary surrender
of her parental rights in favor of Anna, as well as defendant's
twenty-two year old daughter, C.D. (Carolyn, a fictitious name).3
At the April 27, 2011 hearing, there was some initial confusion
about defendant's undertaking.4 But, defendant eventually
subsequent reports, determined the child was "unsafe," conducted
a Dodd removal, and placed the child with his maternal grandmother.
3
The record suggests that at some point after defendant executed
it, Carolyn's name was crossed out of the voluntary surrender
form. There is no indication – other than what might be suggested
by the hearing concerning this surrender – that defendant consented
to that alteration of the document she had signed.
4
After defendant's attorney advised the judge that defendant was
"prepared to enter an identified surrender to her mother and adult
daughter," the following took place:
[DEPUTY ATTORNEY GENERAL]: No, it's just the
mother [i.e., Anna].
[LAW GUARDIAN]: It's just the mother [Anna]
with the daughter [Carolyn] being the back up.
[DEFENSE COUNSEL]: It's just the mother?
THE COURT: Just her mother then, right?
[DEPUTY ATTORNEY GENERAL]: Yes.
3 A-2651-14T4
testified her surrender was only in favor of Anna, and, at the
conclusion of the hearing, the judge stated he was "fully confident
and convinced" that the surrender was "freely, voluntarily and
knowingly" made. That same day, a judgment was entered terminating
defendant's parental rights. That judgment, which went unappealed,
permitted Anna to adopt the child, and a judgment of adoption was
entered in Middlesex County on March 29, 2012.
On May 12, 2012, six weeks after adopting the child, Anna
died.
Carolyn, who lived in Anna's home, thereafter cared for the
child. A few months later, Carolyn advised the Division she was
unable to provide permanent care for the child and requested that
the Division find him a home, although Carolyn also expressed a
willingness to care for the child until that occurred.
In October 2012, the Division filed a complaint in Middlesex
County seeking guardianship of the child. Defendant was not named
as a party even though she was the child's natural parent, even
though the termination of her parental rights was based on a
surrender to Anna, and even though she had become, by way of the
THE COURT: That's who the father surrendered
to, the maternal grandmother, right?
[DEFENSE COUNSEL]: [Carolyn is] still going
to be the back up.
4 A-2651-14T4
judgment of adoption, the child's sibling. In defendant's absence,
and in the absence of any other person or entity that might have
had an interest in the circumstances, other than the law guardian,5
on October 1, 2012, the trial court entered a judgment terminating
Anna's parental rights.6 The judge referenced no authority that
would allow for the termination of the parental rights of a
deceased person; we doubt any exists. Other than perhaps easing
the way for the Division to control the situation, we see no
purpose in those proceedings or the October 1, 2012 order.7
The Division thereafter removed the child from Anna's home,
where defendant apparently also resided. He was placed in two
treatment homes, but only temporarily, and was finally placed in
his current treatment home in May 2013.
During this time, defendant sought to eliminate her problems
with alcohol. Evidence heard at later proceedings demonstrated she
took her last drink in September 2013. Defendant successfully
completed inpatient treatment in March 2014 and continued with an
5
No personal representative of Anna's estate was named or noticed
in these proceedings.
6
If a hearing was conducted on that occasion, the parties have
not provided this court with a transcript.
7
Indeed, the only possible impact of this order was its potential
to deprive the child of any right to inherit from Anna.
5 A-2651-14T4
intensive outpatient program, consistently testing negative for
all substances.
In light of these considerable efforts, defendant moved to
restore her relationship with the child in June 2014. Her pro se
motion, filed in Hudson County where the original guardianship
action was commenced, sought to vacate her identified surrender
of the child and to set aside the Middlesex County judgment that
memorialized Anna's adoption of the child.
In January 2015, the Hudson County judge conducted a hearing
to consider the factual basis for defendant's motion. Defendant
testified she believed her surrender was not only to her mother,
Anna, but also to her daughter, Carolyn. She also testified she
did not "totally understand" what she was doing when she
surrendered her parental rights. She claimed that she drank heavily
the night before the hearing and that she was "not fully clear
headed" and was "very confused" at the April 27, 2011 hearing.
Defendant also asserted that she was misled when she was convinced
by the Division to change her plan from kinship legal guardianship
to an identified surrender. And she testified on cross-examination
that she did not remember attending pre-surrender counseling or
even testifying at the April 27, 2011 hearing that she did attend
counseling.
6 A-2651-14T4
The motion judge did not find defendant's testimony to be
credible and denied her motion to vacate by order entered on
January 9, 2015. The judge also directed that the Division's
request to vacate Anna's adoption of the child be heard in
Middlesex County.
Defendant filed a notice of appeal, seeking our review of the
January 9, 2015 order. On February 27, 2015, while that appeal was
pending, a Middlesex County judge denied defendant's application
to vacate the judgment of adoption, and on April 13, 2015, the
judge also denied defendant's motion for reconsideration.8
Before the motion for reconsideration in the adoption matter
was denied, defendant moved in this court for supplementation of
the record on her first appeal with information concerning her
successful completion of inpatient treatment and her regular
attendance in outpatient treatment. We denied the motion to
supplement without prejudice and, instead, remanded the matter to
the trial court, while retaining jurisdiction, to provide
defendant with the opportunity to seek relief from the judgment
which memorialized her surrender based on her claim of changed
circumstances.
8
Defendant filed a separate notice of appeal, seeking our review
of these February 27 and April 13, 2015 orders.
7 A-2651-14T4
In conformity with our order, defendant moved in Hudson County
for relief pursuant to Rule 4:50. At an evidentiary hearing,
defendant presented her own testimony as well as that of a clinical
psychologist, and a drug treatment counselor; these witnesses
testified to defendant's sobriety and her ability to care for the
child. Defendant also called a Division caseworker, who testified
the Division's plan for the child was select home adoption – a
plan that had not borne fruit. The Division responded with the
testimony of a psychologist and the executive director of a drug
treatment center. The Division also called its adoption
supervisor, who testified the child's current caretaker was
unwilling to adopt but willing to continue caring for him until
an adoptive home could be located.
The motion judge – employing the two-prong test from In re
Guardianship of J.N.H., 172 N.J. 440, 474-75 (2002) — found
defendant's circumstances had indeed changed but that she had not
shown it was in the child's best interests to change his placement
or return him to defendant's care and custody.
Defendant filed an amended notice of appeal, seeking review
of the August 18, 2015 order, which denied her Rule 4:50 motion.
The pending appeals, as amended – regarding the Hudson County
guardianship action and the Middlesex County adoption action –
were consolidated.
8 A-2651-14T4
In the meantime, yet another action was commenced in Middlesex
County and remains pending. In this so-called "FC" matter,9 the
trial court has continued to monitor the situation, and has allowed
defendant to intervene for purposes of seeking visitation without
foreclosing intervention in other areas. An October 12, 2016 order,
which was included in the record on appeal, states that the
Division issued an October 11, 2016 letter that ruled defendant
out as a resource placement for the child.
The Division advised a few days prior to oral argument in
this court, pursuant to Rule 2:6-11(f), that the resource parent
has now committed to adopting the child.
II
In appealing the January 9, 2015, and August 18, 2015 orders
in the guardianship matter, and the February 27, 2015, and April
13, 2015 orders in the adoption matter, defendant presents the
following arguments for our consideration:
I. THE MOTHER'S MOTION TO VACATE THE
IDENTIFIED SURRENDER AND ADOPTION SHOULD BE
GRANTED BECAUSE SHE HAS DEMONSTRATED CHANGED
CIRCUMSTANCES, AND VACATING THE JUDGMENTS IS
IN THE CHILD'S "BEST INTEREST."
9
Docket numbers in family court matters contain a two-letter
prefix all of which start with the letter "F." For example, the
prefixes to the docket numbers of the guardianship and adoption
actions were "FG" and "FA," respectively. "FC" is used to designate
a matter that concerns a child's placement.
9 A-2651-14T4
II. DUE TO A NUMBER OF PROCEDURAL FLAWS,
INCLUDING CHANGING THE TERMS OF THE SURRENDER
AFTER THE MOTHER EXECUTED IT, THE SURRENDER
WAS NOT MADE KNOWINGLY AND VOLUNTARILY AND,
THUS, THE MOTHER'S MOTION TO VACATE THE
SURRENDER SHOULD BE GRANTED.
III. THE ADOPTION SHOULD BE VACATED AND THE
MOTHER'S PARENTAL RIGHTS SHOULD BE REINSTATED.
Having closely examined the record in light of these issues, we
reject defendant's challenges to the orders denying her post-
judgment attempts to set aside the voluntary surrender of her
parental rights in favor of Anna. In both instances, the judge
conducted an evidentiary hearing, made factual findings that
require our deference, and utilized sound discretion in
determining that the April 27, 2011 judgment should not be altered,
modified or vacated. We, thus, affirm the orders entered in the
Hudson County guardianship action that are under review.10
10
None of the parties requested oral argument in this court. We
notified the parties, however, that the court required oral
argument and asked counsel to be prepared to argue whether any
part of defendant's appeals would be moot, particularly whether –
if we were to leave undisturbed the judgment of adoption –
defendant's appeal of the orders denying relief from the
guardianship action would be rendered moot. It is arguable that
an adoption moots any subsequent attack on a judgment terminating
the natural parent's rights to the adopted child – i.e., how can
the parental rights of a birth parent be restored if the child has
been adopted and the judgment of adoption is inviolate? See N.J.
Div. of Youth & Family Servs. v. J.C., 411 N.J. Super. 508, 512
(App. Div. 2010) (recognizing that, "if not moot," an appellate
court's "ability to render effective relief" in an out-of-time
appeal following a judgment of adoption "is dubious at best"). In
10 A-2651-14T4
In the first instance – the pre-appeal motion to vacate – the
judge determined that defendant failed to demonstrate she did not
knowingly or voluntarily surrender her rights. The judge heard and
considered the testimony and made findings that militated against
granting relief; those findings require our deference. See N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008);
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293
(2007).
In the second instance – the post-appeal motion to vacate –
the judge heard a considerable amount of testimony from defendant,
other lay witnesses, and competing expert witnesses, from which
the judge determined that, although defendant had demonstrated
changed circumstances, she had not proved it was in the child's
best interests to set aside the judgment. These findings are also
entitled to deference on appeal, and we are satisfied the judge's
assessment of the evidence comported with the legal standard set
forth in J.N.H., supra, 172 N.J. at 474-75.
a similar setting, however, the Supreme Court chose not to find
moot a post-adoption appeal of an order denying Rule 4:50 relief
from the termination of parental rights, noting only that such a
circumstance "would constitute an additional heavy weight against
Rule 4:50 relief." J.N.H., supra, 172 N.J. at 475. In any event,
because we find no merit in defendant's arguments on appeal
regarding the denial of her motions to vacate, we need not
determine whether her appeal was rendered moot by the entry of a
judgment of adoption that could not be set aside in these
circumstances.
11 A-2651-14T4
We also conclude that the Middlesex judge properly denied the
motion to set aside the judgment of adoption. For the reasons just
expressed, we reject the premise upon which that motion was based:
that defendant's voluntary surrender was ineffectual to terminate
her parental rights or that it is inequitable to further enforce
the April 27, 2011 guardianship judgment. Moreover, the adopting
mother – Anna – had passed away by the time defendant applied for
relief, thereby rendering academic any challenge to the adoption
judgment.11
This brings us to the October 1, 2012 order, which
posthumously terminated Anna's parental rights. Although
defendant's appeals in the guardianship and adoptions matters do
not implicate this order, which was entered in a separate matter
not before us for review, we cannot ignore the fact that this
order suffers from the same disabilities found in defendant's
motion to vacate the judgment of adoption. There is no evidence
that notice was given to Anna's personal representative or to
defendant, who, upon Anna's adoption of the child, had become in
the eyes of the law the child's sibling. And the Division's
application sought relief the court was not empowered to give: the
11
Even if that were not so, the motion was procedurally deficient
because notice was not given to the personal representative of
Anna's estate.
12 A-2651-14T4
termination of parental rights of a deceased parent. The issue
resolved by that court had been rendered purely academic; any
debate about Anna's parental rights ended with her death.
III
This leaves us with the question the Law Guardian rightfully
emphasized at oral argument: moving forward, what is best for this
child? Our response is that this presents a highly-sensitive fact
question that must be further considered in the trial court.
As noted earlier, an "FC" action is pending in Middlesex
County. That court, we are told, permitted defendant's
intervention, albeit to a limited degree, but with the
acknowledgement that her involvement in the action could be
expanded as the matter progresses. As noted above, the record on
appeal reveals that the Division issued a letter that "ruled out"
defendant's consideration as a resource; an order entered in the
FC matter, however, also recognized that defendant had not, at
that time, been served with the letter. Whether, when, or to what
extent defendant may challenge that determination is not presently
clear.
The Division, as we observed above, also advised this court
days before oral argument that the resource parent was now
committed to adopting the child. And, at oral argument, counsel
13 A-2651-14T4
represented to this court that the judge presiding over the FC
matter is, in essence, awaiting our disposition of these appeals
before proceeding further in that matter.
Having found no merit in defendant's challenge to the orders
under review, and having thereby fixed defendant's status vis-à-
vis the child subject to what future proceedings may generate, we
believe the best approach to this unusual and troubling matter is
to simply allow the FC matter to proceed. In other words, the FC
matter should proceed on the basis that defendant's parental rights
remain terminated, but also with the understanding that Anna's
parental rights were not terminated by order but, instead, by her
death,12 leaving defendant – in the law's eyes – as a family member
of the child. We trust, in this regard, that the FC judge will now
examine what is in the best interests of the child, including
consideration of defendant's availability as a resource as a member
of the child's family or otherwise. And we offer no view of the
propriety of the so-called "rule out" letter, which is neither
contained in the record on appeal nor before us for a review of
its merits.
12
The adoption judge properly denied the motion to vacate the
judgment permitting Anna's adoption of the child. And, although
not directly before us, we conclude that the judge who entered the
October 1, 2012 order mistakenly posthumously terminated Anna's
parental rights.
14 A-2651-14T4
IV
We, thus, affirm: the January 9, 2015, and August 18, 2015
orders, which denied defendant's motions to vacate the April 27,
2011 judgment; the February 27, 2015 order, which denied
defendant's motion to vacate the judgment of adoption; and the
April 13, 2015 order, which denied defendant's motion for
reconsideration of the February 27, 2015 order.
Affirmed.
15 A-2651-14T4