Opinion
DOCKET NO. A-1030-11T4
12-03-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. S.P., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.L.P., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Amy M. Williams, Designated Counsel, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Deirdre A. Carver, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.L.P. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-52-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Amy M. Williams, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Deirdre A. Carver, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.L.P. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.P. appeals from a September 22, 2011 Family Part order denying her motion to vacate her general voluntary surrender of parental rights in respect of her child, C.L.P., which was the basis of a judgment awarding guardianship to plaintiff the New Jersey Division of Child Protection and Permanency (the Division) to secure the child's adoption. S.P. argues the trial court erred in denying her motion, considered by the trial judge as a motion to vacate a judgment pursuant to Rule 4:50-1(f). On appeal S.P. claims her due process rights were violated by procedural errors, the surrender was not knowingly and voluntarily given, her counsel was ineffective at critical stages of the proceedings, and the use of the surrender to effectuate termination of her parental rights is not in C.L.P.'s best interests.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b).
The Division and the Law Guardian on behalf of C.L.P. disagree and argue S.P. initiated the surrender proceedings based on her recognition that she was unable to care for C.L.P. because of her fragility resulting from mental illness. The trial judge allowed S.P. the opportunity to reflect on her decision, which would result in the child being adopted by his uncle in Seattle; she was represented by competent counsel who clearly and correctly advised her of all resultant consequences; she fully recognized her rights and knowingly waived them; and the child's need for permanency and stability are paramount such that the judgment serves his best interest. Consequently, the Division and Law Guardian maintain the trial judge's denial of S.P.'s motion was not an abuse of discretion.
We have considered each of these arguments in light of the record and the applicable law. We affirm.
S.P. gave birth to C.L.P. on October 21, 2004. That day, the Division received an initial referral expressing concern regarding S.P.'s ability to parent her son due to a history of schizophrenia. A second referral was made resulting in C.L.P.'s removal from S.P.'s care on December 3, 2004. The matter was resolved on December 22, 2005, through a consent agreement providing C.L.P. would be returned to S.P.'s care under the supervision of her mother, C.P., who was awarded joint legal custody.
Between July 27, 2007, and October 19, 2009, the Division received four additional referrals regarding the family, expressing concern regarding C.L.P.'s care because C.P. was "overwhelmed in caring for [C.L.P.]," and S.P. had been hospitalized. On September 4, 2007, C.L.P. was placed in the legal physical custody of C.P., and the Division continued its care and supervision. In April 2009, the Division returned legal custody of her son to S.P., who resided in C.P.'s home. S.P. consented to the execution of a power of attorney, which granted parental decision-making authority to C.P. in the event S.P. experienced a future mental health relapse. The Division closed the case on October 19, 2009.
The current matter was initiated on February 26, 2010, when the Division received a fifth referral from Riverview Medical Center, reporting S.P. had visited the hospital emergency room accompanied by C.L.P., stating they "had been exposed to biochemical agents in their home[.]" S.P. was diagnosed as suffering from paranoid delusions and voluntarily admitted for psychiatric treatment. Her hospitalization lasted from February 27, to March 5, 2010. She was compliant with treatment, except for group therapy, and her condition improved.
C.L.P. was placed in C.P.'s care and the Division filed a complaint seeking custody, care and supervision (Docket No. FN-13-171-10B). The trial judge declined the request to remove C.L.P. from his grandmother's care, accepting the Law Guardian's position that the plan previously put in place using S.P.'s power of attorney worked appropriately for the child's welfare.
On March 26, 2010, the Division moved to reconsider C.L.P.'s custody order when C.P. "informed the Division earlier she could not control [C.L.P.] and asked for his removal[.]" Following a hearing held that day, the court granted the Division's application for custody and C.L.P. was placed in the home of a resource family. At a family team meeting held shortly thereafter, the Division explored alternative potential relative caregivers for C.L.P. S.P. suggested C.L.P. should be cared for by her brother R.K., who was living in Seattle, Washington, rather than a stranger. With R.K.'s consent, the Division commenced an assessment of his home as a potential placement for the child.
On July 1, 2010, S.P. appeared and stipulated C.L.P.'s removal resulted from her "failure to fully comply" with her psychiatric medication regimen. R.K. attended and agreed to visit with C.L.P. and represented he was willing to be considered were C.L.P. freed for adoption. The parties consented to continue the litigation pursuant to N.J.S.A. 30:4C-12.
N.J.S.A. 30:4C-12 allows the Division to obtain an order for custody of a child when a "parent . . . having custody . . . is unfit to be entrusted with the care and education of such child, or shall fail to provide such child with proper protection, maintenance and education, or shall fail to ensure the health and safety of the child, or is endangering the welfare of such child[.]" The order shall be valid for a period of six months. Ibid.
S.P. complied with services offered by the Division and maintained her medication regimen and treatment. She was responsive to her parenting mentor's organizational advice, but "resistant" to changing her strategy for addressing C.L.P.'s behavioral problems, and also was not "willing to accept guidance in terms of any budget or financial advice." The Division recommended S.P. be granted unsupervised visitation. The court scheduled a hearing to consider that recommendation, which was held on October 21, 2010. The State's witnesses testified S.P. was compliant and stable. Although the Division took issue with S.P.'s parenting style, the consensus was she was capable of resuming parenting. Following a conference between the court and counsel, the court ordered S.P. to continue to comply with her medication regimen; continue with parent mentor services; comply with individual counseling, behavioral assistance, and family support services once implemented; and commence "structured unsupervised" visitation with her child. Thereafter, S.P. began overnight, unsupervised visitation.
The Division continued to pursue parallel paths for C.L.P.'s permanency, which included possible reunification with S.P., or alternatively, permanent placement with R.K. By that time, C.L.P. had visited his uncle's home and R.K. confirmed he was willing to adopt the child. Following a best interests hearing held in April 2011, the trial judge ordered the Division to effectuate its plan for reunification, as opposed to pursuing alternative placement options. On April 14, 2011, C.L.P. was returned to the legal and physical custody of S.P. She participated in six weeks of treatment with Family Preservation Services and was referred for further therapy with the Catholic Charities Natural Family Support Program. Services were also extended to C.L.P. to assist his behavioral needs.
On June 6, 2011, less than two months after reunification, S.P. called the Division reporting C.L.P. had become violent, and requesting he be removed from her home. She reported he had been "choking her, punching her in the kidneys, and trying to bite her[,]" and although he was calm at the time of her call, she feared going to sleep because he "may jump on her[] and break her bones." During the course of the telephone conversation, S.P. insisted she wanted nothing else to do with C.L.P. and desired to surrender her parental rights. C.L.P. was removed from his mother's care for the third time, and placed with a resource family.
The following day, June 7, 2011, S.P. again requested to surrender her parental rights. The trial judge declined to proceed, adjourning the matter "to give [S.P.] an opportunity to consult with counsel and to further make what decisions she wished to make with regard to surrendering her parental rights." The next day, the Division re-filed a complaint under Docket No. FN-13-171-10B, seeking legal custody, care and supervision pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. S.P. appeared with counsel and restated her intent to surrender her parental rights; she submitted a signed "Voluntary Surrender of Parental Rights Form."
There is no transcript from this proceeding; however, the trial judge related the nature of the proceeding on the record on June 8, and September 22, 2011.
Counsel for S.P. requested her client undergo a psychiatric evaluation prior to commencing the hearing. The trial court denied the application, explaining a series of evaluations had been performed in March and April 2011, including a psychological evaluation by John Verdon, Ph.D., a psychiatric evaluation by Delfin G. Ibanez, M.D., and a psychological evaluation by Robert J. Puglia, Ph.D. The trial judge noted in each of these evaluations, the mental heath professional concluded S.P. "was fully capable of taking custody and care of her child and [as a] consequence[s] I would have to also conclude that she was fully capable of making decisions that [a]ffect that child as long as she was maintaining her regular course of treatment and maintaining her medication." The judge also considered the medical records of Joseph Vetrano, M.D., S.P.'s treating physician, noting S.P. had last received a monthly injection the week before the hearing and otherwise was taking her medication.
Defense counsel then questioned S.P., who responded as follows:
Q. Now [S.P.], you have told me you wish to voluntarily surrender your parental rights. Is that correct?
A. Yes.
Q. And we have had numerous discussions about this decision of yours, right?
A. Yes.
Q. Okay. And over my objection, you know, I have advised you that I do not believe that is the best course of action for you, but you have indicated to me it is still what you want to do. Is that right?
A. It is, once again, my -- my desire to do so.
Q. Okay. So over my objection we are going forward with your surrender of parental rights?
A. Yes.
. . . .
Q. Okay. Now I've explained to you that there were two different options for a surrender, a general surrender . . . and an identified surrender. Now as I explained it to you, you understand a general surrender is you are terminating your parental rights and . . . making your child available for adoption to any appropriate individual that the Division deems or any individual the Division deems appropriate to adopt him. An identified surrender would be surrendering your parental rights so that a specific person could adopt your child. And . . . what type of surrender did you want . . . to do today?
A. It is my understanding that my brother still wants to adopt him. Should that not take place then I suppose a general surrender will be necessary.
Q. Okay. Is it your desire to do an identified surrender to your brother or just a general surrender at this time?
A. To avoid any further delay, I would like to just proceed with a general surrender with the belief that my brother is going to adopt him.
Q. Now if your brother doesn't adopt him -- if it was an identified surrender and your brother chose not to adopt him, your parental rights would then have been reinstated and either we could find somebody else to adopt him or we would move on in the proceedings. Is it your desire to forego any of those proceedings should your brother not decide to adopt him?
A. I, myself, am already torn about giving my son up for adoption, but I don't believe with the past history that it will proceed smoothly until he reaches the age of 18.
Q. Okay. Having said that, if your brother decides not to adopt him, you do not wish to be notified prior to . . . try to get your parental rights reinstated, . . . it's still your desire to do a general surrender?
A. Would I be able to change my mind at that time if he decided not to?
Q. Not if you gave a general surrender. With an identified surrender, that would be possible.
A. No, I'll just do a general surrender today.
. . . .
Q. [Y]ou understand that even if you change your mind at any time in the future, your child will not be returned to you because the surrender is irrevocable and binding? You can't change your mind once you do this.
A. I have a question, Your Honor. . . . What if my brother . . . decides that he doesn't want [C.L.P.] after a while?
The Court: Then the Division would . . . look for the best possible placement they could find for your child.
A. Yes.
Counsel next reviewed the general surrender form S.P. had executed. She confirmed she read the form, understood its provisions, had no difficulty reading and writing English, and held a bachelor's degree. In discussing her decision, S.P. explained she was not forced, threatened, or induced by promises to act. She was not under the influence of alcohol or drugs. She further testified she was taking all prescribed medication and her illness was currently under control and asserted none of the medication clouded her ability to think clearly, reporting she "was not given to make . . . rash decision[s] such as this" as a result of her illness.
Additionally, S.P. waived pre-surrender counseling offered by the Division and her right to a full trial whereby the Division held the burden of proving termination of her parental rights was in C.L.P.'s best interests. S.P. also explained she understood the consequence of her surrender, including the termination of visitation with her child unless her brother allowed it, relinquishment of all rights as his parent, that the Division alone would make all decisions for his benefit including recommend proposed adoptive parents for C.L.P., and that the decision was irrevocable. She volunteered she realized when C.L.P. was eighteen he could decide to return to her. S.P. acknowledged she had "sufficient time to think about this important decision" but felt termination was appropriate given the constant "upheaval" in her life and C.L.P.'s recent exhibitions of violent behavior toward her, which made S.P. afraid for her safety.
The trial judge advised her the Division could extend services to her and C.L.P. to address his behavior, but S.P. declined to participate. S.P. also admitted the additional financial burden of the child was difficult for her to manage. She stated "much to my embarrassment, this has been such an ongoing ordeal for me that I am unable to cope with it any longer. The Division may very well come . . . in and out of my life for the next 12 years." She reasoned "the upheaval" of being repeatedly placed in foster care would not benefit C.L.P. Counsel's questioning of S.P. concluded with the following dialogue:
Q. [Y]ou understand that if your brother says that you cannot see or speak to your son this [c]ourt cannot enforce -- any visitation rights that you have?
A. I understand that.
Q. Okay. Are you satisfied with my services as your attorney?
A. Yes.
Q. Do you have any other questions of anybody in the courtroom, any of the attorneys or the [c]ourt?
A. Only who I should contact to remain in [the biological parent] registry.
In accepting S.P.'s surrender, the trial judge made these findings:
The question that has been before the [c]ourt, . . . is whether or not [S.P.] is of such sufficient state of mind that she can make such a decision. And I have received backup papers and I reviewed the psychological evaluations of her, I'm satisfied that she's on her medication and when she's on this medication [in] the opinion of qualified individuals she is capable of making such a determination.
But moreover, during the proceedings today I have listened to her answer the questions, [and] I've listened to the questions that she has asked and in every instance the question[s] she has asked show[ed] a particular understanding and attention to the nuances of these proceedings, and they have all been intelligently raised.
I'm satisfied she knows what she's doing. She is of sound mind and . . . I am satisfied that what she's doing is in the best interest of her child.
She understands her rights . . . [that] she can continue with the custody of her child if she wishes to and she also has a right to surrender the child. . . . And she understands that she has rights to think of alternatives concerning her child and she's thought through those and has come up with some very articulate reasons why she thinks it is in the best interest of her son to do this now rather than put her son through the likelihood of . . . the Division being in and out of her son's life until the foreseeable future.
So I am going to accept her surrender . . . and we will enter an order to that effect.
The judge ordered C.L.P. removed from S.P.'s custody pursuant to N.J.S.A. 30:4C-11.2b, because "mother wished to withdraw her role as parent." The order scheduled a goodbye visit between S.P. and C.L.P., relieved S.P. of her child support obligations, and required the Division to file a guardianship complaint within sixty days. The Division placed C.L.P. with R.K. in Seattle on June 25, 2011.
N.J.S.A. 30:4C-11.2b excuses the Division of its burden "to make reasonable efforts to prevent placement" of a child when "[e]fforts to prevent placement were not reasonable due to risk of harm to the child's health or safety."
On July 26, 2011, S.P. filed a pro se notice of motion seeking to "[c]hange [c]ustody arrangements" and requesting the court "reinstate [her] parental rights." On August 8, 2011, the Division filed a guardianship complaint, Docket No. FG-13-52-12B, and a hearing date was scheduled for August 16, 2011. S.P. was ordered to show cause "why [the] [c]ourt should not enter an order terminating [her] parental rights[.]"
Counsel appeared on S.P.'s behalf, although not formally appointed. The Division was ordered to serve S.P. with the guardianship complaint as she was not a party because of her previously issued surrender and the matter was rescheduled. On the next hearing date, the trial judge considered arguments presented on S.P.'s request to reinstate her parental rights. The judge viewed S.P.'s motion seeking relief from a judgment or order pursuant to Rule 4:50-1(f). On behalf of S.P., counsel challenged the surrender on the grounds it had been effectuated "a mere 48 hours" from the time the Division removed C.L.P. from her home. Counsel argued the policy objectives set forth in N.J.S.A. 9:3-41d -- which mandates a period of seventy-two hours must pass for "[a] surrender by the birth parent of a child" to be effective -- should apply in this matter because S.P.'s decision to surrender her parental rights, like the decision to place an newborn up for adoption, was "an emotional" one, requiring time to "consider the ramifications of [the] decision" to make a "knowing, intelligent" judgment. Furthermore, on behalf of S.P., counsel argued surrender was not and is not in the best interests of C.L.P., who had a "strong bond" with his mother.
The Division and the Law Guardian opposed S.P.'s motion, citing the child's need for stability and a permanent home. C.L.P.'s adjustment in R.K.'s home was reported as progressing well.
The trial judge rejected the factual and legal assertions proffered on behalf of S.P. He determined S.P.'s change of mind was insufficient to set aside the prior order, and further, it was not in C.L.P.'s best interests to return to the possibility of reunification. The judge denied S.P.'s motion. S.P. appealed.
The court's order recorded both the docket number from the Title 9 matter and the guardianship matter.
S.P.'s initial notice of appeal referenced Docket No. FN-13-171-10B; however, an amended notice of appeal also references the guardianship docket number, FG-13-52-12B.
The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).
"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). "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, 484 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992). Reversal is required in those circumstances when the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotations omitted).
[N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 432-33 (App. Div.) (alteration in original), certif. denied, 205 N.J. 14 (2010).]
S.P. initially claims she "was denied her due process protections throughout the pendency of the FN litigation[.]" She also characterizes the trial court's orders as "ambiguous" leading to "contradiction and confusion" in the court's rulings. Her principal objection in this regard results from the judge and counsel conferencing the matter in chambers prior to presentation on the record, "which in turn has deprived this court of the ability to conduct any meaningful appellate review." We reject these contentions.
Our Supreme Court has "repeatedly affirmed that parental rights are fundamental and constitutionally protected." N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 285-86 (2004) (citation omitted). Consequently, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures[,]" Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982), the "basic indicia" of which are "adequate notice and a meaningful opportunity to be heard." A.R.G., supra, 179 N.J. at 286 (citation omitted). While the constitutional protections surrounding family rights are "tempered by the State's parens patriae responsibility to protect the welfare of children[,]" the State must nevertheless "scrupulously adhere to procedural safeguards" when exercising its power over parental rights. Ibid. (citing N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (2002)).
The June 8, 2011 order accepted S.P.'s general surrender presumably pursuant to N.J.S.A. 30:4C-23. Ultimately, a surrender of parental rights is enforceable when the parent knowingly and voluntarily expresses his or her understanding that custody of the child will be relinquished, and parental rights will be terminated in favor of the Division for the purpose of effectuating the child's adoption. T.G., supra, 414 N.J. Super. at 435 (citing N.J.S.A. 9:3-41a).
N.J.S.A. 30:4C-23 provides:
[The Division], after due investigation and consideration, may, in cases where it would be to the permanent advantage of the child, take voluntary surrenders and releases of custody . . . . Such surrenders . . . shall be valid and binding . . . and shall be irrevocable except at the discretion of the [Division] or upon order of a court of competent jurisdiction.
In this matter, the trial court initially rejected the Division's request to remove C.L.P. from his home, despite S.P.'s hospitalization. In recognition of the fundamental rights to rear one's children, the court deferred to S.P.'s power of attorney granting her mother authority to provide for the child while she received mental health care. Once C.P. notified the Division she could no longer care for her grandson, the Division appropriately acted to seek C.L.P.'s removal.
S.P.'s inference of conspiratorial determinations conjured by counsel and the court in chambers is simply unsupported. Each of the decisions leading to the July 8, 2011 hearing resulted from either consensual agreements or were entered following the trial judge's articulation of a sufficient factual basis supporting the conclusions. In fact, it was the trial judge who ordered the Division to pursue reunification between S.P. and C.L.P., which incidentally occurred. We find no suggestion of untoward conduct or constitutional deprivation in any of these hearings.
On June 8, 2011, before commencing the surrender hearing, the court again held a conference with counsel in chambers. S.P. suggests the court considered arguments and documents not otherwise part of the record leading the judge to deny counsel's request for further psychiatric evaluation before considering S.P.'s surrender of her parental rights. On the contrary, the judge recited each of the reports he considered when denying the motion for another psychiatric evaluation and explained why the motion was denied. Moreover, the detailed colloquy with S.P., as she presented her request to surrender her parental rights, sincerely reflected an unselfish desire to aid her son's care, recognizing her inability to adequately provide for and manage the behavior of this active six-year-old while addressing her own mental health needs. She responded to each question with certainty and comprehension of the consequences. S.P. articulated an understanding of the proceeding and the effects of her stated desire to surrender; she understood her rights, the possibility she could pursue alternative courses including taking more time to consider the decision or engaging counseling to address C.L.P.'s behavior. Finally, S.P. acknowledged the realization that were her son to live with her brother, the child's best interests would be best served.
S.P. points to no credible evidence demonstrating she was incompetent, coerced, or inadequately informed of the consequences of her voluntarily general surrender. Rather, the record amply supports the trial judge's conclusion S.P. was fully advised of her rights before and during the hearing. During the June 8, 2011 surrender hearing, S.P. confirmed she was making her decision voluntarily and of her own free will, was not under the influence of drugs or alcohol that would affect her ability to make a clear decision, was not suffering from any mental or physical disability which could affect her judgment, was taking her medication as prescribed and in command of her mental illness, and was not making a rash decision. S.P. explained she had sufficient time to speak to counsel, whose advice she found satisfactory, after engaging in "numerous discussions about [her] decision[.]" She was reminded of alternatives to termination and confirmed her understanding of the results of her decision. Armed with this information, she knowingly and voluntarily elected to proceed with the surrender, freeing her son for adoption by her brother.
For the first time on appeal, S.P. suggests her mother, C.P., "effectively 'forced' adoption[.]" She cites various secondary sources to support a proposition that Korean society "ostracizes unmarried mothers" in order to encourage adoption. She advances a claim the trial judge failed to examine the voluntariness of her purported surrender because he ignored the influence imposed by CP. and Korean culture. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation [was] available[.]" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
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We also are unpersuaded by the suggestion S.P. was deprived of her constitutional right to counsel because the trial judge terminated defense counsel's representation following acceptance of S.P.'s surrender. See N.J. Div. of Youth & Family Servs. v. E.B., 137 N.J. 180, 186 (1994) ("Courts have long recognized that parents charged with abuse or neglect of their children have a constitutional right to counsel."). "Both the statutory law and the case law of this State suggest that a defendant has a right to counsel when a complaint is filed against him or her charging abuse and neglect and threatening the individual's parental rights." N.J. Div. of Youth and Family Servs. v. B.H., 391 N.J. Super. 322, 345 (App. Div.), certif. denied, 192 N.J. 296 (2007). Although the order did relieve counsel, she continued her representation and S.P. never appeared in a proceeding without an attorney. S.P.'s motion was filed pro se, but counsel nevertheless appeared, filed a brief, and marshaled the arguments underpinning S.P.'s request presented to the court.
Another procedural deprivation raised by S.P. is a claim of error resulting from the conduct of dual proceedings: the guardianship complaint was filed even though the Title 9 action had not been dismissed. This argument also lacks merit and reflects an apparent misunderstanding regarding "'the parallel but not congruent track of Title 9 and Title 30 proceedings.'" N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 560 (1994) (quoting In re Guardianship of G.S. III, 137 N.J. 168, 179 (1994)). Certainly, the Division may file multiple litigations to achieve different goals. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) (stating the Division is "not required to try [a] Title 9 action to conclusion before filing a Title 30 action for the termination of parental rights"), certif. denied, 201 N.J. 153 (2010).
Finally, we find no error in the trial judge's consideration of S.P.'s motion under Rule 4:50-1. The rule applies to direct attacks not only to final judgments but also final orders. Ibid. A surrender of parental rights is irrevocable and binding absent "'proof of fraud, duress or misrepresentation by the approved agency.'" T.G., supra, 414 N.J. Super. at 436 (quoting N.J.S.A. 9:2-16). That the Division had not formerly closed the Title 9 litigation does not frustrate the finality of the trial court's determination that S.P.'s parental rights were severed. See In re Guardianship of J.N.H. , 172 N.J. 440, 474 (2002) (affirming Rule 4:50-1 is the appropriate vehicle when seeking to vacate a judgment terminating parental rights).
The trial judge considered the application and noted no facts support S.P. was induced by fraud, duress, misrepresentation, or other outside undue influence. The judge denied her motion, noting she initiated the child's removal and the surrender of her parental rights, and further concluding her new claims did not present a change of circumstances, but merely S.P.'s change of heart. We find no abuse of discretion in the judge's denial of the motion to vacate the June 8, 2011 order.
We turn to S.P.'s argument that "trial counsel's representation at critical stages in the trial court proceedings fell below an objectively reasonable standard of performance under the circumstances, and prejudiced her so as to deprive her of the constitutional right to counsel." We disagree.
Parents named as defendants in a guardianship action affecting an individual's constitutional right to parent, must be guaranteed effective counsel. See, e.g., N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007) ("[T]he right to counsel in a termination case has constitutional as well as statutory bases. Either way, the performance of that counsel must be effective."). When examining a claim challenging trial counsel's effective performance in these matters, we consider the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). B.R., supra, 192 N.J. at 309. Accordingly, parents facing termination of their parental rights who assert ineffective assistance of trial counsel must prove counsel's performance was objectively deficient, and but for counsel's unprofessional errors, there is a reasonable probability the result of the proceeding would have been different. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. at 693.
In our review, we accept the "'strong presumption'" that counsel has rendered appropriate and sufficient professional assistance. State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, a parent must point to "specific errors[,]" rising above the level of general trial strategy, which adversely affected the ultimate result. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
Here, S.P. does not challenge counsel's performance during the June 8, 2011 hearing, rather she focuses instead on counsel's alleged conduct following that hearing and during the September 22, 2011 motion hearing. Specifically, S.P. maintains counsel failed to inform her of the right to seek reconsideration of the order accepting her surrender; failed to advise she was self-represented and needed to reapply for legal representation to seek reconsideration; failed to challenge the trial judge's consideration of the motion under Rule 4:50-1, suggesting the order of surrender was interlocutory and subject to revision under Rule 4:49-2; and failed to provide a copy of the transcript of the surrender proceedings to support S.P.'s application. We determine these claims do not support a claim of ineffective assistance.
The claims presented are solely grounded on S.P.'s supplemental certification, in which she presents general, unsupported averments. She does not attach counsel's certification stating the advice given or omitted. These bald assertions are insufficient to support a finding that counsel's conduct was deficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (finding to obtain relief based on claims of ineffective assistance of counsel a "petitioner must do more than make bald assertions"), certif. denied, 162 N.J. 199 (1999).
Assuming, nevertheless, counsel's advice is as represented in S.P.'s supplemental certification, it does not deviate from the accepted standards and no adverse result occurred from possible omissions. For example, counsel advised S.P. she needed to appeal the order of surrender rather than move for reconsideration; S.P. filed a motion herself, which the trial judge fully considered, evaluating each of her arguments. Following the review, the judge found the general surrender was knowingly and voluntarily entered. He also assessed C.L.P.'s best interest, determining the child would suffer were he subjected to further failed reunifications. C.L.P. had been removed from his mother three times in six years. Further, the judge presided over the surrender hearing and stated he recalled what occurred at the proceeding, and did not need the aid of the transcript.
S.P. also maintains the trial judge erroneously accepted her general voluntary surrender in the face of expert reports opining it was in C.L.P.'s best interests to remain with her. She argues C.L.P.'s best interests requires her surrender be vacated. We disagree.
A party seeking to vacate a general surrender must prove a change of circumstances and that setting aside the order is in the best interests of the child. T.G., supra, 414 N.J. Super. at 434-35 (citing J.N.H., supra, 172 N.J. at 473-75). See also N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010) (stating, in addition to proving changed circumstances, a parent must show clear and convincing evidence that vacating judgment is in the child's best interest). "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 (citing J.N.H., supra, 172 N.J. at 474).
Following yet another failed reunification, S.P. herself initiated C.L.P.'s removal. She had not experienced a mental health relapse, but recognized the likelihood she would remain unable to independently manage C.L.P.'s needs. S.P. also affirmed the adverse effect on her child resulting from the repeated disruption to his life caused by her own fragility. Recognizing her desires were secondary, S.P. made a reasoned voluntary choice to give C.L.P. stability and permanency, circumstances she knew were essential for his future well-being.
The Law Guardian best captured S.P.'s loving selflessness, stating surrender was "the act of a true mother who wanted something better for her child." The Law Guardian objected to vacating that decision, asserting "my client now, finally, has found himself in a safe and stable home that offers him permanency[.]"
S.P.'s after-the-fact doubt of the soundness of her very difficult decision is understandable, but it cannot serve as a basis to vacate her surrender and upend C.L.P.'s new home. The decision when made considered all issues integral to form an informed consent. We reject the notion that the order of surrender was entered after impairment of S.P.'s constitutional rights or with impediment to C.L.P.'s best interests.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION