                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4666-18T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

R.M.,

          Defendant,

and

M.F.,

   Defendant-Appellant.
—————————————

IN THE MATTER OF THE
GUARDIANSHIP OF E.M.,

   a Minor.
—————————————

                    Submitted February 5, 2020 - Decided February 21, 2020

                    Before Judges Koblitz, Gooden Brown and Mawla.
              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Camden County,
              Docket No. FG-04-0106-19.

              Jeffrey E. Krakora, Public Defender, attorney for
              appellant (Robyn A. Veasey, Deputy Public Defender,
              of counsel; Mark Edward Kleiman, Designated
              Counsel, on the briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Melissa H. Raksa, Assistant Attorney
              General, of counsel; Juliana L. Stiles, Deputy Attorney
              General, on the brief).

              Jeffrey E. Krakora, Public Defender, Law Guardian,
              attorney for minor (Meredith Alexis Pollock, Deputy
              Public Defender, of counsel; Linda Vele Alexander,
              Designated Counsel, on the brief).

PER CURIAM

        Defendant M.F.1 appeals from a June 11, 2019 order denying her motion

to vacate an identified surrender of parental rights of her daughter E.M. to the

child's paternal grandmother. We affirm.

        The Division of Child Protection and Permanency (Division) received its

first referral in this case at E.M.'s birth in 2016, stating M.F.'s urine tested

positive for marijuana and opiates, and E.M. was diagnosed with Neonatal

Abstinence Syndrome and suffering from withdrawal symptoms. The Division



1
    We use initials to protect the child's privacy. R. 1:38-3(d)(12).
                                                                        A-4666-18T1
                                          2
removed E.M. due to concerns M.F. and R.M., the child's father, were abusing

drugs.

      The Division offered the family reunification services beginning in 2016

through July 2018. However, M.F. was non-compliant with services and R.M.

was incarcerated, so the trial court approved the Division's permanency plan of

termination of parental rights followed by adoption by the paternal grandmother.

      The Division placed the child with her grandmother in August 2018,

where she has remained. The Division filed its guardianship complaint the same

month, alleging the parents' substance abuse, incarceration, and failure to

comply with services and to maintain a relationship with E.M. harmed the child.

      Beginning October 2018, and continuing until February 2019, the trial

court held a series of compliance reviews.      During this time, the Division

continued to work with the parents to remediate the reasons for E.M.'s removal,

however, both remained non-compliant, failed to maintain contact with the

Division, and were periodically incarcerated.

      The parties agreed to mediation one week before the guardianship trial.

At the time, M.F. had been incarcerated for more than a year for violation of

probation. Following several hours of mediation, R.M. and M.F. executed

identified surrenders to allow the paternal grandmother to adopt E.M.


                                                                        A-4666-18T1
                                       3
      R.M.'s surrender hearing occurred first. Afterwards, M.F.'s counsel began

her voir dire. She testified to the following: (1) she had the opportunity to

discuss the matter at length with counsel; (2) her decision to execute an

identified surrender was a mediated result; (3) she reviewed, initialed , and

signed the forms acknowledging she waived her right to a trial, at which the

Division would have the burden of proof; (4) the surrender was made of her own

free will and no one pressured, coerced, or threatened her, or promised her

anything in exchange for the surrender; (5) she was not under the influence of

any drugs, alcohol, or prescription medication that would affect her judgment;

(6) she did not suffer from any mental or physical disabilities that would affect

her decision; (7) she had enough time to consider her decision; (8) she believed

the surrender was in E.M.'s best interest; (9) her counsel had answered all of her

questions; and (10) she was satisfied with counsel's services and had no

questions.

      The trial judge also questioned M.F., who confirmed her answers would

be the same if the judge asked her the same questions as her counsel on voir

dire. She confirmed she was awaiting sentencing on a violation of probation.

She testified she understood there was no guarantee of contact between her and

E.M. once she executed the identified surrender and the adoption occurred. The


                                                                          A-4666-18T1
                                        4
judge asked M.F. if she had "any questions at all about the procedure, anything

that you don't understand?" M.F. responded "No."

      The judge accepted the parties' surrenders. She found

            both [parents] to be articulate.        They've been
            represented by very able counsel. They understand the
            matter was scheduled for a trial [in a week.] They
            understand that the Division had the burden of proof by
            clear and convincing evidence, [and] that they had no
            burden of proof.

                  They participated in mediation with the paternal
            grandmother . . . and as a result of that they have
            executed the identified surrenders. I'm satisfied that
            they understand the ramifications. . . .

                   I'm satisfied that they have voluntarily executed
            identified surrenders of their parental right[s] so that
            the paternal grandmother . . . can adopt [E.M. and] . . .
            that they waived their right to a trial in this matter.

      In May 2019, just before E.M.'s paternal grandmother adopted the child,

M.F. filed a motion pursuant to Rule 4:50-1 to vacate her identified surrender.

She argued she was denied due process and her surrender was not voluntary

because she was "prescribed new medication that impacted her ability to fully

understand the proceedings since it did not have a chance to stabilize her ." She

claimed her trial counsel pressured her to make the identified surrender by

telling her "[t]he State would drag her through the mud and take her daughter

and every other child she would ever have."

                                                                         A-4666-18T1
                                       5
       At the oral argument of the motion, M.F.'s appointed counsel repeated

these arguments and added that M.F. completed additional treatment programs

during her incarceration. Counsel argued the motion was based on a change in

circumstances.

       M.F.'s counsel also argued vacating the identified surrender served E.M.'s

best interests because she was in a relative placement and the transition back to

M.F.'s care would be "smooth." Counsel argued the matter was suited for

kinship legal guardianship (KLG).

       The trial judge, who was the same judge who took the surrender, denied

the motion. In her oral decision, the judge found no basis for relief pursuant to

Rule 4:50-1. The judge recounted that E.M. was in placement from the outset

of the case due to both parent's incarceration and M.F.'s failure to comply with

substance abuse services. The judge noted the Division had provided each

parent with "a myriad of services . . . with the hope of reunification." The judge

stated KLG was explored with the paternal grandmother, but she wished to adopt

E.M.

       The judge found no evidence M.F. involuntarily surrendered her rights or

was coerced to do so.      The judge noted the mediation occurred after "all

discovery had been exchanged. The Division had provided all of its documents


                                                                          A-4666-18T1
                                        6
to all counsel." The judge found "[i]t was a lengthy, lengthy mediation. . . .

There were moving pieces. Counsel were all in with the parties. Counsel left

. . . . The parties were in separately with the mediator."

      Regarding the surrender itself, the judge noted R.M.

             went first, so [M.F.] got to sit here and listen to [him]
             give a lengthy recitation of every single question on the
             three-page identified surrender questionnaire. . . .

                    She then gave a lengthy response, very
             articulately to every single question.

                   ....

                   The court then asked numerous questions. . . .
             There's no indication on the record that [M.F.] spoke
             up.

      As to M.F.'s claims that a new medication affected her decision making,

the trial judge stated:

             [T]here was no indication whatsoever on the record in
             facial expressions, in voice, in statements or otherwise
             that [M.F.] did not execute a voluntary surrender of her
             parental rights. There was no indication on the record
             that she was suffering from any problems with
             medication or otherwise. And even to this day the
             ambiguous statement that well I was on some kind of
             medication, no reference to anything, no statement of
             her medication, no medical report, no expert testimony,
             no anything, just a medication.




                                                                         A-4666-18T1
                                        7
      The judge also rejected M.F.'s claim of coercion by her attorney. Citing

M.F.'s answers to the identified surrender forms, the judge noted M.F. stated her

attorney answered all of her questions, she was satisfied with his services, and

had no questions regarding the surrender. The judge stated:

                  There was no indication whatsoever that [M.F.]
            had any trepidation about what [she] was doing, that
            [she] was pressured in any way by [her] attorney with
            respect to this decision. . . .

                  There was no indication that [M.F.'s] attorney
            forced [her,] coerced [her,] or put any pressure on [her]
            other than . . . [M.F.] having a conversation with him
            and him explaining to [her] what the evidence was that
            he had been presented by the Division. . . .

                  If, in fact, [M.F.'s] attorney explained to [her] the
            legal nuance between having a [j]udgment of
            [g]uardianship entered against [her] as opposed to a
            surrender and what effect that would have if [M.F.] had
            other children, that's a legal ramification. That's not
            pressure.

      The judge concluded:

                   The fact that [M.F.] . . . changed [her] mind
            afterwards is not a legal basis to vacate an identified
            surrender under the law. And the fact that [she is]
            participating in additional programs . . . is not a
            changed circumstance under [Rule] 4:50 or . . . in any
            way, shape or form as a basis to set aside the finality of
            an identified surrender.




                                                                          A-4666-18T1
                                        8
      The trial judge also found M.F. did not prove it was in E.M.'s best interests

to vacate the identified surrender stating:

                  [E.M.] had been in the Division's care, custody[,]
            and supervision in placement since her birth. She has
            never lived with [M.F.] [M.F.] has been noncompliant
            with services from the outset. [She was] given a
            multitude of chances. . . . [E.M.] is entitled to
            permanency and finality and to go on with her life.

                                        I.

      Appellate review of a trial court's denial of a motion to vacate a judgment

pursuant to Rule 4:50-1 is limited. In re Guardianship of J.N.H., 172 N.J. 440,

472 (2002) (citation omitted). "It is within the trial court's sound discretion,

guided by equitable principles, to decide whether relief should be granted

pursuant to Rule 4:50-1. . . . That decision 'will be left undisturbed unless it

represents a clear abuse of discretion.'" Id. at 473 (internal citations omitted)

(citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). Such

motions should be "granted sparingly." F.B. v. A.L.G., 176 N.J. 201, 207 (2003)

(quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 4:50-1

(2003)).

      On appeal, M.F. argues she demonstrated exceptional circumstances

under Rule 4:50-1(f) to warrant relief from the judgment. She asserts due

process and fundamental fairness require we reverse the trial judge's order

                                                                           A-4666-18T1
                                        9
because the judge should have held a plenary hearing and the lack of one

deprived her of the ability to adduce testimony from her trial counsel regarding

coercion and duress.

                                         A.

      A parent seeking to vacate a guardianship judgment may utilize Rule 4:50-

1 as a vehicle to do so. See J.N.H., 172 N.J. at474. A parent must satisfy a two-

prong test in order to vacate a voluntary surrender of her parental rights. Ibid.

First, the parent must satisfy the requirements of Rule 4:50-1. Ibid. Second, he

or she must demonstrate vacating the identified surrender is in the child's best

interest. Id. at 474-75.

      In pertinent part, Rule 4:50-1 states: "On motion, . . . the court may relieve

a party . . . from a final judgment or order for . . . (f) any other reason justifying

relief from the operation of the judgment or order."             "[B]ecause of the

importance in the finality of judgments, relief under subsection (f) is available

only when 'truly exceptional circumstances are present.'" J.N.H., 172 N.J. at

473 (quoting Hous. Auth., 135 N.J. at 286). Exceptional circumstances are

"determined on a case by case basis according to the specific facts presented"

and must always be "balanced against the state's legitimate interest in the finality

of judgments." Id. at 474 (citations omitted). Moreover, the moving party


                                                                              A-4666-18T1
                                         10
"bears the burden of proving that events have occurred subsequent to the entry

of a judgment that, absent the relief requested, will result in 'extreme' and

'unexpected hardship.'" Id. at 473 (citation omitted).

      Under prong two of J.N.H.,

            where the future of a child is at stake, there is an
            additional weight in the balance: the notion of 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 an attempt to vindicate . . . her
            rights or even whether the claim is meritorious, but
            what effect the grant of the motion would have on the
            child.

            [Id. at 474-75 (internal citation omitted).]

      In this case, we agree with the trial judge there were no exceptional

circumstances, let alone new circumstances present to warrant vacating the

judgment. M.F.'s after-the-fact attempts at compliance with services did not

constitute exceptional circumstances because her struggle with substance abuse

and her attendant incarceration existed since the beginning of the Division's

involvement in the case through the identified surrender.

      M.F.'s claim that new medication affected the voluntary nature of her

surrender also does not demonstrate exceptional circumstances because the

record lacks any objective indicia of the supposed deleterious effects the


                                                                        A-4666-18T1
                                       11
medicine had on her during the identified surrender negotiations and

proceedings. As the judge noted, M.F. offered no evidence, aside from a self-

authored, certified letter claiming she was under the influence. Considering the

substantial evidence in the record relating to M.F.'s testimony and the trial

judge's observation of the identified surrender showing M.F. participated in a

lengthy voir dire and cogently answered questions, M.F.'s unsupported letter

was insufficient to disturb the finality of the guardianship judgment . For these

same reasons, we also concur with the trial judge's assessment that the record

does not support M.F.'s claim of attorney coercion.

      We also agree M.F. did not show it was in E.M.'s best interests to vacate

the judgment. M.F.'s belated attempts to comply with services did not negate

the harm the child suffered at birth from drug withdrawal symptoms. Moreover,

M.F. did not establish that it was in E.M.'s best interests to be removed from the

paternal grandmother, who was willing to adopt and with whom she resided for

several years.

      M.F. met neither prong of J.N.H. The trial judge's denial of the motion

was not an abuse of discretion.




                                                                          A-4666-18T1
                                       12
                                          B.

      Determining whether a parent was afforded due process in a termination

proceeding requires the court to evaluate the procedures used under the

balancing test enunciated in Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976).

N.J. Div. of Child Prot. & Permanency v. K.S., 445 N.J. Super. 384, 390-91

(2016); see also Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super.

426, 465 (App. Div. 2003) (adopting the Mathews test). The court must balance

three factors: (1) "the private interest that will be affected by the official action";

(2) "the risk that there will be an erroneous deprivation of the interest through

the procedures used, and the probable value, if any, of additional or substitute

procedural safeguards"; and (3) "the governmental interests involved, including

the added fiscal and administrative burdens that additional or substitute

procedures would require[]." K.S., 445 N.J. Super. at 391 (quoting Mathews,

424 U.S. at 334-35).

      In addition to the parents' interest, the court must consider the child's

interest in permanency and stability. See In re Guardianship of J.C., 129 N.J. 1,

26 (1992). "Whenever practicable, however, the parents' and the children's

rights should both be accommodated." K.S., 445 N.J. Super. at 391.




                                                                               A-4666-18T1
                                         13
      M.F. argues the denial of her motion to vacate the judgment and conduct

a guardianship trial violated her due process rights.      We discern no such

violation.

      The record readily demonstrates the litigation, mediation, and ultimately

the identified surrender processes were lengthy and afforded M.F., who had the

advice of counsel throughout, every opportunity to decide whether to voluntarily

surrender her rights. In addition to the lack of procedural impropriety, there is

no basis to disturb E.M.'s right to permanency and stability, compel the Division

to undertake a guardianship trial, and forestall E.M.'s adoption.

      The denial of M.F.'s motion did not constitute a deprivation of due process

or denial of the principles of fundamental fairness. No plenary hearing was

required to resolve the issues presented in her motion.

      Affirmed.




                                                                         A-4666-18T1
                                      14
