Opinion
DOCKET NO. A-5749-10T1
03-12-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. T.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF Y.E., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent Y.E. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FG-07-116-05 and FC-07-688-04.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent Y.E. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief). PER CURIAM
In this appeal, we review a trial court order that denied defendant's Rule 4:50 motion to vacate a guardianship judgment based on defendant's voluntary surrender of her parental rights. Finding no abuse of discretion, we affirm.
Defendant gave birth to Y.E. (Yasmine, a fictitious name), the child in question, on May 11, 2000. Defendant has five other children. Her oldest child was born when defendant was seventeen years old and lives with her father. The second oldest, born two years later, lives with her maternal grandmother.
The third, Frank (a fictitious name), was born in 1998. Gary (a fictitious name) is both Frank and Yasmine's father. On October 5, 2000, the family first came to the attention of the Division of Youth and Family Services (the Division) regarding an unsubstantiated referral. A year later, the Division received another referral, also unsubstantiated. The Division offered various services to defendant and Gary.
Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.
In September 2003, when defendant and Gary could not be located, the Division obtained temporary custody and placed the children in their paternal grandmother's care; the children were removed in August 2004 and placed in foster care. Yasmine, whose behavior began to deteriorate, was placed in three different foster homes between August 2004 and October 2005. In 2006, defendant gave birth to her fifth child, Steven, who was also removed from defendant's care.
Defendant admittedly struggled with substance abuse problems. In addition, a psychological evaluation in November 2004 found defendant "depressed, fearful, isolated, and [with] limited coping skills"; she was also found "to be aggressive, assaultive and prone to temper outbursts, demonstrating a lack of self control, poor impulse control, low frustration tolerance, and sensitivity to anxiety evoking or threatening stimuli." The evaluator concluded that defendant "had not demonstrated her readiness to parent, with concerns that she also did not possess adequate housing, job training skills, and was chronically unemployed." He recommended psychotherapy, parenting classes, and "sustained treatment and abstinence from substances."
Soon thereafter, defendant and Gary surrendered their parental rights to Yasmine. A judgment of guardianship was entered on September 26, 2006.
In 2006, defendant engaged in substance abuse treatment, which has proven successful. She engaged in services provided by the Division, leased an apartment and found a job, but was then arrested on an outstanding warrant for a thirteen-year old robbery charge in New York. As a result, defendant was incarcerated in New York until released in November 2008. This caused a setback in defendant's attempts to improve her situation. Once defendant obtained housing in January 2010, reunification with Steven was approved and, in April 2010, achieved. Defendant's reunification with Frank, who had not lived with his mother for over six years, was also approved.
Desirous of reunification with Yasmine, defendant moved on August 4, 2010, pursuant to Rule 4:50, for relief from the judgment terminating her parental rights. The judge ordered evaluations. The law guardian, pursuant to Yasmine's wishes, moved for Yasmine's reunification with defendant, as well as reinstatement of visitation.
Meanwhile, defendant began a relationship with a man and became pregnant. She did not obtain prenatal care nor reveal her pregnancy to the Division out of concern for its impact on reunification with the other children. Yvette (a fictitious name) was born in September 2010, at least two months premature. Once the Division became involved, defendant advised that she wanted to put Yvette up for adoption; she expressed her recognition that, as a result of caring for two children and attempting to reunify with Yasmine, she would be unable to care for Yvette. Defendant later changed her mind and was reunified with Yvette in December 2010.
An evidentiary hearing regarding defendant's Rule 4:50 motion took place over the course of four days in January and February 2011. Judge Margaret M. Hayden rendered an oral decision on March 4, 2011, explaining her reasons for denying relief. Both defendant and the law guardian unsuccessfully moved for reconsideration.
Defendant filed this timely appeal, arguing the judge failed to apply the proper standard because, in defendant's view, the judge "did not consider whether reunification would do more harm than [the Division's] plan of uncertain prospective adoption." When the Division filed its brief on the merits, it also moved to supplement the record with copies of trial court orders entered subsequent to the judgment terminating parental rights, a certification of a Division caseworker, and Yasmine's handwritten letter expressing her desire to be adopted rather than reunified with defendant.
We entered an order temporarily remanding the matter for further development of the record. Judge Sallyanne Floria sought our clarification, and in an amended order we amplified our ruling by directing her "exploration of the circumstances surrounding [Yasmine's] letter"; we also ordered that the development of the record "should encompass the circumstances relevant to determining whether the letter is admissible, and, if so, whether it is probative of the issues" resolved by Judge Hayden when she denied defendant's Rule 4:50 motion. We added that there "should also be development of the circumstances surrounding the child's post-appeal placement and her alleged current desire to be adopted as contrasted with her prior position that she be reunified with defendant."
Defendant then sought in the trial court: permission to "retain an expert to interview [Yasmine] to determine her awareness of [defendant's] efforts . . . to reunite; the source of the information [Yasmine] used to form the basis for the positions she expressed in her letter to the [trial] [c]ourt . . .; and the basis for her desire to be adopted." Judge Floria denied the request, finding no benefit to be gained by subjecting Yasmine "to an additional evaluation" and concluding that "the best evidence" on the issues referred to in our remand order would be Yasmine's testimony.
Judge Floria thereafter conducted a four-day hearing, culminating on August 10, 2012, with the rendering of an oral opinion containing her findings. We allowed the parties to file supplemental briefs. Defendant added to her argument that Judge Hayden erred in denying the motion by arguing:
I. THE TRIAL COURT'S DENIAL OF [DEFENDANT'S] APPLICATION TO HAVE AN EXPERT EVALUATION OF [YASMINE] THWARTED THE PURPOSE OF THE REMAND PROCEEDINGS AS SET FORTH IN THE APPELLATE DIVISION'S SUPPLEMENTAL ORDER DATED JUNE 25, 2012.Before turning to the chief issue on appeal -- whether the denial of the Rule 4:50 motion constituted an abuse of discretion -- we first note that we find insufficient merit in defendant's supplemental arguments to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
II. THE STATEMENTS DOCUMENTED IN THE COURT ORDERS DATED OCTOBER 13, 2012, JANUARY 12, 2012, AND MARCH 14, 2012[,] CONSTITUTE INADMISSIBLE HEARSAY AND ARE THEREFORE NOT PROBATIVE OF THE ISSUES RAISED AT THE REMAND PROCEEDINGS.
We, thus, turn to the denial of defendant's Rule 4:50 motion. Having carefully examined the issues in light of the evidence adduced at the hearings, we affirm substantially for the reasons set forth in Judge Hayden's careful and comprehensive oral decision as further amplified by Judge Floria in the thoughtful findings of fact she rendered in compliance with our temporary remand. We add only the following brief comments.
When Rule 4:50-1 is applied to a request for relief from a judgment terminating parental rights, the focus is largely on subsections (e) and (f). The first focuses on whether "it is no longer equitable that the judgment or order should have prospective application," Rule 4:50-1(e), and the latter empowers the court to relieve a party from the operation of a judgment "any other reason," Rule 4:50-1(f). As a general matter, the former requires "'evidence of changed circumstances,'" In re Guardianship of J.N.H., 172 N.J. 440, 473 (2002) (quoting Housing Auth. v. Little, 135 N.J. 274, 285 (1994)), whereas the boundaries of the latter "'are as expansive as the need to achieve equity and justice,'" ibid. (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). Such a determination is almost always fact-sensitive. Although not dispositive of the issues on appeal, defendant's application was governed by Rule 4:50-1(e) because defendant only argued it was no longer equitable for the guardianship judgment to remain in effect in light of the subsequent changes in circumstances.
In examining these equitable principles in parental termination cases, the Supreme Court recognized that relief "should be granted sparingly," and explained that "the need to achieve equity and justice always is balanced against the state's legitimate interest in the finality of judgments." J.N.H., supra, 172 N.J. at 474. Moreover, "[w]here the future of a child is at stake," as here, the Court noted "there is an additional weight in the balance," id. at 474-75, namely:
the notion that stability and permanency for the child are paramount. Thus, in determining a Rule 4:50 motion in a parental termination case, the primary issue is not whether the movant was vigilant in attempting to vindicate his or her rights or even whether the claim is meritorious, but what effect the grant of the motion would have on the child.
[Id. at 475 (citation omitted)]
Judge Hayden applied this standard when making the very difficult decision to leave the guardianship judgment undisturbed. The judge recognized that Yasmine's "first choice" -- at that time -- "was to return to her mother." The intensity of this desire was revealed by the fact that when Yasmine learned her mother had moved to vacate the guardianship judgment, it caused a disruption in the foster parents' plan for adoption of Yasmine. Judge Hayden recognized, as the testifying experts agreed, that Yasmine "had many difficult emotional issues" and "is extremely emotionally fragile," and that she maintained "a fantasy about her mother that she . . . has never been able to let go of."
The question posed by the Rule 4:50 motion mainly focused on how best to deal with Yasmine's emotional well-being. Judge Hayden recognized that this required a determination as to which expert's opinion was entitled to greater weight. Dr. Elizabeth M. Smith testified that Yasmine's attachment issues could best be resolved "by slow and gradual reunification" with her mother, and Dr. Karen Wells opined that this was too risky because a failure of reunification "would devastate" not only Yasmine but would also detrimentally impact the other children in defendant's care. Ultimately, as fully explained in her opinion, Judge Hayden agreed with Dr. Wells's approach and denied the motion notwithstanding Yasmine's preference.
As noted, after defendant filed this appeal, Yasmine's feelings changed. She wrote the handwritten letter that, on remand, was admitted into evidence and found probative. After conducting an in camera interview, Judge Floria found Yasmine to be "a soft spoken but direct young lady," who testified that her handwritten letter "set forth her feelings" and her desire "to stop moving to different homes and . . . to remain in one home for . . . 'a long good while.'" Judge Floria reported that when Yasmine discussed adoption by her current foster parents, she "was smiling and upbeat." Yasmine also explained to Judge Floria why she had changed her mind about reunifying with her mother, taking the realistic attitude that her mother "had 11 years to make things better," and that "all [defendant] knows is that I'm her daughter," but "[s]he doesn't know who I am and she can't find that out over a couple of years."
As in any other context, the decision to grant or deny relief pursuant to Rule 4:50 "is within the trial court's sound discretion, guided by equitable principles" and will not be disturbed "'unless it represents a clear abuse of discretion.'" J.N.H., supra, 172 N.J. at 473 (quoting Housing Auth., supra, 135 N.J. at 283). In applying this standard to the judges' findings, which are amply supported by the evidence and entitled to our deference, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998), we find no abuse of discretion in the denial of defendant's Rule 4:50 motion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION