### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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NEW JERSEY DIVISON OF CHILD PROTECTION AND PERMANENCY, Plaintiff

- Respondent,

v. A.L., Defendant

- Appellant , and B.K., Defendant.

______________ ______________ IN THE MATTER OF THE GUARDIANSHIP OF S.L.,

a Minor.

_______________ _____________

Submitted October 23, 2018

– Decided Before Judges Yannotti and Gilson.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

December 4, 20182 A

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- 17T4 On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG

- 15

- 0002

- 17. Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs). Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Salima E. Burke, Deputy Atto rney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd S. Wilson, Designated Counsel, on the brief).
PER CURIAM A.L. appeals from an order of the Family Part dated November 15, 2017, which denied her mot ion to vacate the identified surrender of her parental r ights to the minor child, S.L. We affirm.
I.
A.L. is the mother of S.L., who was born in October 2 011

. The Division of Child Protection and Permanency (Division) became involved with the family
two days after S.L. 's birth, when the Division learned A.L. had test ed positive for opiates. The Division investigated the report. A.L. admitted she had taken
pr escri bed opiate pain medication and had a history of abusing alcohol. Upon completi o n of its investigation, the Division determined that the allegations of3 A

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neglect were unfounded ; however, the Division kept the case open for services

. In December 2011, after a random drug screen, A.L. tested positive for opiates. In February 2012, a paternit y test established that B.K. was S. L .'s biological father. In February 2013, the Division closed the case. In June 2013, the Division received a re port from a local police department indicating concerns for S.L.'s safety and welfare

. The report noted th at A.L. was a known alcoholic , and that A.L. left the child alone for twenty minutes in a motel room, while she sat in a car in the parking lot with a friend. In July 2013, the Division received a report from another local police department, advising the Division of con cerns about the child's safety and welfare. It appears that A.L. and the child were staying with A.L.'s parents

. According to the report, the police had responded to the home because A.L.'s grandfather was intoxicated and making homicidal threats against A.L.'s grandmother. The report noted that A.L. had been intoxicated. A Division worker investigated the report. A.L. told the worker she had been sober for some time, but she had recently relapsed

. The worker asked A.L. where the child was when she was drinking. She did not reply. The worker saw no immediate safety concerns, but implemented a temporary safety protection plan for the c hild.4 A

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A.L.'s grandmother agreed to supervise A.L. 's c are of the chil d that evening. The following day, the Division's case manager and a n individual who
handles domestic violence visited the home unannounced

. According to the case
manager, A.L. appeared intoxicated and became hysterical at the thought S.L. might be remov ed from her care. The Division's workers suggested that A.L.'s grandmother seek a domestic violence restraining order , but she refused. The Division de cided that it could not permit S.L. to remain in the home due to concerns about th e grandfather's alc ohol abuse. A.L.'s grandmother indicated that she could not care for S.L. , and she did not want A.L. in her home. She also did not know of any other family members who might be available to care for S.L. A t the time, B.K. was apparently homeless. The Division conduc ted an emergency removal of S.L

. , and o n July 8, 2013, filed an order to show cause and verified complaint in the Family Part seeking care, custody, and supervision of S.L

. On that date , the court granted the Division's application

. On Sep tember 18, 2013, the court conducted a fact

finding hearing and A.L. stipulated she had abused or neglected the child. She admitted she had ingested a substantial amount of alcohol and became highly intoxicated while caring for S .L. , who was then twenty

- one months old.5 A

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Thereafter, the Division provided A.L. and B.K. with a n array of services. In June 2014, the trial court conducted a hearing and approved the Division's
permanen cy plan , which called for reunification of S.L. and A.L. In July 2014 , th e court approved the return of S.L. to A .L.'s care , and t he Division closed the

case several months later

. In October 2015, the Division received a report that A .L. had been abusing alcohol during the previous three to four weeks, and was in the hospital for detoxification. The Division investigated the report and learned that the police had responded to A .L.'s home in September and October 2015, because of A.L.'s
intoxicat ion

. The Division also learned that since sometime in September 2015, S .L. had be en staying with A.L.'s maternal great aunt , and A.L. had been in hospitals

numerous times due to her alcohol abuse. On October 16, 2015, a Division worker went with a police escort to meet A.L. at her mother's residence. A.L. appeared to be intoxicated. Several days later, the local police reported that A.L. had been intoxicated and had gotten in a verbal dispute with her grandmother. On October 23, 2015, the Division filed an order to show cause and a verified complaint in the Family Part, seeking ca re, custody and supervision of6 A

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S.L. T he court granted the Division 's application , and t he Division again placed
S .L. with T.E. In November 2015, the Division found that the allegations of abuse and neglect stemming from the October 2015 report were not substantia ted because A.L. had arranged to have her great aunt care for the child when she was not capable of doing so. The Division continued to provide A.L. s ervices with the goal of reunification

. The services included random urine screens, substanc e abuse evaluations, and treatment referrals. However, f rom November 2015 to Feb

. ruary 2016, A .L

. continued to abuse alcohol

. A.L. also wa s hospitalized due to alcohol consumption , and she missed several scheduled visit s with S.L. On February 4, 2016, t he court suspended all visitation until A.L. fully engaged in substance abuse treatment. In April 2016, the court conducted a hearing and approved the Division's

new permanency plan, which called for termination of A.L. an d B.K.'s parental right s to S.L. , followed by adoption

. On July 1, 2016, the Division filed its guardianship complaint. The court scheduled the matter for trial in March 2017. About two weeks before the scheduled trial date, A.L. requested a hearing so that she could7 A

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execute an identified surrender of her parental rights to S.L. so that T.E. could adopt the child. On February 21, 2017, A .L. completed the "Voluntary Surrender of Parental Rights Form" and testified in court that she wanted T.E. to adopt S .L. She state d that she believed this decision was in the child's best interests. A.L. told the judge her decision to surrender her parental rights was voluntary , and she had accurately answered the questions on the form. At the hearing, the judge questioned A.L. conc erning the surrender of her parental rights. In response to the judge's question s , A .L. testified that she had engaged in conversations with her attorney concerning the concept of surrender, that counsel had answered all of her questions, and that she had sufficient time to consider her decision.
A.L. also s tated that she understood her surrender would be final and that her parental rights would only be reinstated if T .E. could not adopt S.L. She further testified that she understood any promises T .E. m ade indicating she
could maintain contact with S.L. would be unenforceable. A.L. told the judge she was making her decision willingly, freely, and voluntarily, and she was not being forced, threatened or coerced.8 A

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The judge found that A.L.'s surrender of her parental rights w as knowing and voluntary. The judge later conducted a trial on the Division's complaint seeking termination of B.K.'s parental rights to S.L. The judge found the Division had established the four prongs of the test in N.J.S.A. 30:4C

- 15.1(a) for termination of B.K.'s parental rights. On March 20, 2017, the court entered a judgment of guardianship terminating A.L. and B.K.'s parental rights to S.L. for purposes of adoption by
T.E. B.K. passed away sometime later. The court schedule d S.L.'s adoption for November 16, 2017. On November 10, 2017, A.L. filed a motion to vacate her surrender of parental rights

. On November 15, 2017, the judge conducted a hearing on the motion , and
A.L

. testified under oath. A.L. stated that she was ab out to complete an intensive alcohol abuse treatment program. She claimed she regularly attend s meetings of Alcoholics Anonymous, and ha s a sponsor and support network. She asserted that she h as spoken each week with S.L., and could not "live knowing that" T.E.
could preclude her from communicating with the child. A.L. also stated she never gave up on having S.L. returned to her, and she

was now in a position to parent the child. She asserted that she ha s a full

- time job, she made a deposit for her own home, and her driver's license would soon9 A

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be restored. A.L. claimed she had signed the surrender

- of

- parental

- rights form under duress.
A.L. stated that she had "felt intimidated" when she signed the form, and had been coerced into doing so. She told the judge she "made a poor decision," and her attorney did not represent her "properly." She claimed her attorney advised her she might never see S.L. again if she went forward with the trial. She also claimed the Division's caseworker told her "that parents usually give up their rights at this point," and that the caseworker would be "against" her at trial.
A.L. stated that the caseworker stated that if she voluntarily surrendere d her parental rights, she would have her daughter "in [her] life" and she would be able to s ee her whenever she wanted to. She asserted that the caseworker told her she could call the child, take her to the movies, and have her for weekends. According to A.L., the caseworker stated that if she went to trial, she "would surely lose" S.L. , and she might n ever see her daughter again. A.L. further testified that she was under the influence of Percocet on the day she surrendered her parental rights. She st ated that when the judge had asked her if she was under the influence of any drugs, prescription medications,10 A

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or alcohol, she replied "no" because she was upset. She claimed she was focused on avoiding alcohol, and she took medication that had been prescr ibed. The judge placed his decision on the record. The judge found there was no support in the record for A.L.'s claim that she surrendered her parental rights
to S.L. due to coercion, duress, or fraud. The judge noted that at the hearing on the surrender, A.L. testified that she made the decision voluntarily, and under her own will. She had denied that she executed the surrender

- of

- parental

- rights due to coercion, threats, pressure, force, or promises. The judge pointed out that he had questioned A.L. to confirm that she understood her decision, including the fact that she "would have no legal or other right to any contact with the child in the future." The judge noted that A.L. confirmed her understan ding of the surrender. The judge also noted that he
asked A.L. if she was "under the influence of drugs, alcohol, or prescription medication [ that ] has affected [her] ability to make a clear decision." She replied, "N o , I am not ." The judge added that w hen A.L. agreed to surrender her parental rights, she told the court she understood what she was doing. She stated under oath that she had spoken with her attorney before the hearing, and counsel had spent11 A

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sufficient time with her, answered her questions, and provided her with satisfactory advice. The judge found :

[A.L.] had every opportunity to tell the [c]ourt then what you're saying now, nine months later, almost three quarters of a year after you gave your surrender, on the eve of the child's adoption , a child who is entitled to permanency. You've come to the [c]ourt the day before [the adoption] to now ask that this all be erased, for information that was in your control at the time that you did not share with the [c]ourt. Why, I [do not] know , but [there is] nothing to corroborate what you're now claiming

. . . was the case when you gave all of the answers that I just went through. The judge entered an order denying the motion for reasons set forth on the record. This appeal followed.
II. On ap peal, A.L. first argues that the trial court erred by denying her motion for relief from the identified surrender of parental rights pursuant to Rule
4:50

- 1(f)

. We disagree. Rule 4:50

- 1 permits a court to grant a party relief from a final judgment or order for several reasons :

(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due d iligence could not have been discovered in time to move for a new trial under [ Rule ] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic),12 A

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A trial court's decision under Rule 4:50

- 1 should be given "substantial deference , " and will not be reversed unless shown to be "a clear abuse of discretion." US Bank Nat. Ass'n v. Guillaume , 209 N.J. 449, 467 (2012) ; see also DEG , LLC v. Twp. of Fairfield , 198 N.J. 242, 261 (2009); Hous. Auth. of Morristown v. Little , 135 N.J. 274, 283 (1994)

. Here, A.L. argues the trial court should have granted her relief under Rule
4:50

- 1(f) . "[R] elief under subsection (f) is available only when 'truly exceptional circumstances are present.'" In re Guardianship of J.N.H. , 172 N.J. 440, 473 (2002) (quoting Little , 135 N.J. at 28 6 ). To determine whether a party has shown exceptional circumstances for relief under Rule 4:50

- 1(f), the court
must consider the totality of circumstances. Id. at 474 (citing Baumann v. Marinaro , 95 N.J. 380, 395 (1984))

. In matters involving the termination of parental rights, "[t]he judgment

u nder review uniquely affects the rights of the parent and also [has an impact13 A

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upon] the life of the child who is the object of the guardianship." Div. of Youth & Family Servs. v. T.G. , 414 N.J. Super. 423, 43 4 (App. Div. 2010)

. To warrant relief under Ru le 4:50

- 1 from a judgment terminating parental rights, the movant must show that events have occurred after the entry o f the judgment, which
warrant vacating the judgment, and that relief is warranted in the best interests
of the child. Id. at 434

- 35 (cit ing J.N.H. , 172 N.J. at 473). In considering whether relief is warranted, the court must weigh "the effects setting aside the judgment may have on the child's stability and permanency." Id. at 435 (citing J.N.H. , 172 N.J. at 474). The critical issue is the effect that granting the motion "would have on the child." Ibid. (quoting
J.N.H. , 172 N.J. at 475). This test applies to a motion to set aside a voluntary surrender of parental rights which results in a judgment awarding guardia nship to the Division. Id. at 427 , 434

. A trial court's findings of fact are binding on appeal when supported by adequate, substantial, and credible evidence. Cesare v. Cesare , 154 N.J. 394,
411

- 12 (1998). Our deference to the findings of the Family Pa rt is especially appropriate because of that court's expertise in matters involving the family. Id.
at 412. A trial court's findings of fact " should not be disturbed unless the findings are so wholly unsupportable as to result in a denial of justice." J.N.H. ,14 A

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172 N.J. at 472 ( quoting In re Guardianship of J.T. , 269 N.J. Super. 172, 188 (App. Div. 1993) ). We are convinced there is sufficient credible evidence to support the judge's determination that A.L. had not shown relief from the judgment terminati ng her parental rights was warranted under Rule 4:50

- 1(f). The record supports the judge's finding that A.L. failed to establish that relief should be granted due to "truly exceptional circumstances ." J.N.H. , 172 N.J. at 473 (2002) (citing Little , 135 N.J. at 286).
As we noted previously, the judge found that A.L. did not execute the
identified surrender of her parental rights under duress or coercion. The judge noted that A.L.'s claim she was acting under duress w as totally inconsistent with
t he statements she made on the record when she surrendered her parental rights. The judge found that A.L.'s statements at the February 21, 2017 hearing established that A.L. had surrendered her parental rights to S.L. knowingly and voluntarily

. The record shows that when she agreed to surrender her parental rights , she informed the court that she had not been pressured, forced, or coerced into making that decision. She assured the court that she had discussed the matter with her attorney and her attorney h ad answered all the questions she had.15 A

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Moreover, A.L. told the court her attorney had provided her with satisfactory services. She stated she had sufficient time to consider her decision, and she was not under the influence of any prescription medication that would affect her judgment.
A.L. also stated that she understood she would be giving up her right to have an ongoing relationship with S.L. The judge informed A.L. that any promises T.E. made indicating A.L. could maintain contact with the child were not enf orceable, and T. E

. c ould decide at any time that she was no longer willing to allow A.L. to have contact with S.L. A.L. told the court she understood the consequences of her decision

. A.L. claimed she was not thinking clearly when she surren dered her parental rights because she took two Percocet tablets before the February 21,
2017 hearing

. T he judge found that A.L.'s claim was not credible. As noted previously, A.L. assured the judge she was not under the influence of any medication when s he surrendered her parental rights. We conclude the record supports the judge's finding that A.L. failed to show she establish ed a basis for relief under Rule 4:50

- 1(f). She failed to show that she surrendered her parental rights to S.L. under duress or coercion, and did not credibly establish s he was not informed of the consequences of her decision.16 A

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A.L. also failed to show that relief was warranted in the best interests of the child. As the judge noted, the child require s pe rmanency, and there was no basis to delay the adoption. In this regard, w e note that at the guardianship trial, the expert testimony established that S.L. had close bonds with her resource parent and would suffer enduring psychological harm if removed from her care . The expert te stimony also showed that S.L. requires permanency to avoid long

- term harm to her psychological development.
III.
A .L. further argues the order denying her motion for relief from the judgement should be reversed in the interest s of due process and fundamental fairness. A.L. contends the trial court was required to conduct a plenary hearing
on her motion

. She contends the matter should be remanded for further proceedings. Again, we disagree. "A parent's right to raise and main tain a relationship with his or her child is constitutionally protected." N.J. Div. of Child Prot. & Permanency v. K.S. , 445 N.J. Super. 384, 390 (App. Div. 2016) (quoting N.J. Div. of Child Prot. & Permanency v. N.C.M. , 438 N.J. Super. 356, 367 (App. Div . 2014)). It is well

established, however, that the parent's right is not absolute and "must be17 A

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balanced against ' the State's parens patriae responsibility to protect the welfare of children. ' " N.J. Div. of Youth & Family Servs. v. G.L

. , 191 N.J. 596, 60 5 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M. , 189 N.J. 261, 294

- 95 (2007) ). "Due process requires adequate notice and a fair opportunity to be heard." N.J. Div. of Youth & Family Servs. v. M.Y.J.P. , 360 N.J Super. 426, 464 (App

. Div. 2003) . Due process is "a flexible concept" that "calls for such procedural protections as the particular situation demands." I bid. In proceedings involving the termination of parental rights, New Jersey courts employ the balancing test
enunciated in Ma t hews v. Eldridge , 424 U.S. 319 , 334

- 35 (1976), to determine whether a parent received sufficient procedural due process. K.S. , 445 N.J. Super. at 390

- 91 (citing M.Y.J.P. , 360 N.J. Super. at 465). The Matthews balancing test requires consideration of thr ee 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 procedu ral safeguards"; and (3) "the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require." I d. at 391 (quoting M.Y.J.P. , 360 N.J. Super. at 465).18 A

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On appeal , A.L. argues that the procedure the judge employed to consider her motion was not sufficient to protect the interests at stake. S he contends the trial court should have conducted a plenary hearing on her claim that she acted under duress or coercion when she agreed to sur render her parental rights. A.L. asserts that the judge rejected her assertions regarding the alleged representations made by A.L.'s attorney without hearing the attorney 's testimony and allowing A.L. to cross

- examine him. She contends the resolution of this important factual issue was not grounded in a full and fair consideration of the evidence. We are not persuaded by these arguments. The procedures that the trial court employed in considering A.L.'s motion satisfied the applicable due process require ments. A.L. was present at the hearing on the motion and she testified
under oath

. Furthermore , the judge considered the record of the statements A.L. made when she agreed to surrender her parental rights.
A.L. has not show n that a plenary hearing was necessary to address her
claim that she a cted under duress or coercion. That claim was thoroughly refuted by the statements A.L. made at the hearing when she surrendered her parental rights. Moreover, a plenary hearing was not required to address A.L.'s claim regarding statements A.L.'s attorney made to her before she surrendered19 A

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her parental rights . A.L.'s claims were clearly inconsistent with the statements she made when she agreed to the surrender.
As the record shows, when A.L. surrendered her parental rights, she was asked whether anyone had forced, coerced, threatened or pressured her into making this decision. She stated, "No, they didn't." She also said her attorney had advised her and answered all of her questio ns. She stated that her attorney had provided her with satisfactory services. Affirmed.