APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5075-03T4
A-5361-03T4
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
Plaintiff-Respondent,
v.
D.M.B. and T.B.L.,
Defendants-Appellants.
___________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF K.A.B., B.K.B.L., and M.A.L.
____________________________________
Submitted November 16, 2004 - Decided February 15, 2005
Before Judges Kestin, Lefelt and Falcone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part,
Salem County, FG-17-16-03.
Yvonne Smith Segars, Public Defender, attorney for appellant D.M.B. in A-5075-03 (Mark Tabakman,
Designated Counsel, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for appellant T.B.L. in A-5361-03T4 (Adubato &
Jaffe, attorneys; Michele A. Adubato, Designated Counsel, on the brief).
Peter C. Harvey, Attorney General, attorney for respondent Division of Youth and Family
Services (Michael J. Haas, Assistant Attorney General, of counsel; Mara Spiegeland, Deputy Attorney
General, on the brief).
Yvonne Smith Segars, Public Defender, law guardian for K.A.B., B.K.B.L. and M.A.L. (Lisa
C. Castaneda, Assistant Public Defender, on the brief).
The opinion of the court was delivered by
KESTIN, P.J.A.D.
In these consolidated matters, D.M.B. and T.B.L., the mother and father, respectively, of
three children, K.A.B. (born on March 10, 2001), B.K.B.L. (born on August 2,
2002), and M.A.L. (born on December 2, 2003), appeal from a judgment terminating
their parental rights to all three children and awarding guardianship, care and control
of the children to the Division of Youth and Family Services (DYFS). We
affirm.
Both appellants argue that the trial court's decision to terminate their respective parental
rights was not adequately supported by clear and convincing evidence. A four-part standard
embodied both in statute, N.J.S.A. 30:4C-15.1a, and in case law, see, e.g., Division
of Youth & Family Servs. v. A.W.,
103 N.J. 591, 604-611 (1986), establishes
the grounds for terminating parental rights.
We have analyzed the record in the light of the arguments advanced by
the parties and prevailing principles of law. In reviewing the factual findings and
conclusions of a trial judge, we are obliged to accord deference to the
trial court's credibility determinations and the judge's "feel of the case" based upon
his or her opportunity to see and hear the witnesses. Cesare v. Cesare,
154 N.J. 394, 411-13 (1998). See Division of Youth and Family Servs. v.
A.G.,
344 N.J. Super. 418, 442-43 (App. Div. 2001); Division of Youth &
Family Servs. v. V.K.,
236 N.J. Super. 243, 254 (App. Div. 1989), certif.
denied,
121 N.J. 614, cert. denied sub nom. Kliewer v. New Jersey,
495 U.S. 934,
110 S. Ct. 2178,
109 L. Ed.2d 507 (1990); see
also In re Guardianship of J.C.,
129 N.J. 1, 17-18 (1992)(holding that record
did not support a clear and convincing finding). We are not to disturb
the judge's findings of fact unless they are "so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to offend the
interests of justice." Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort,
Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974)); see also In
re Guardianship of S.C.,
246 N.J. Super. 414, 418 (App. Div.), certif. denied,
126 N.J. 334 (1991), appeal after remand,
260 N.J. Super. 304 (App. Div.
1992). And, the conclusions flowing logically from those findings of fact are, likewise,
entitled to deferential consideration on appellate review. See Cesare, supra, 154 N.J. at
412; Rova Farms, supra, 65 N.J. at 484.
Judge Johnson's comprehensive written opinion in the matter deals analytically and reflectively with
the evidence in the record as it bears separately on each appellant's parenting
capacities. His findings of fact and the conclusions they generated are well supported
by the evidence and are, therefore, binding on appeal. The judge's legal analyses
regarding the parents' rights and his application of the four-part test to each
of them are also free from error of any consequence. Given the factual
record developed, we are in substantial agreement with the legal conclusions Judge Johnson
reached. Accordingly, we determine that the termination judgment resulting from these findings, conclusions
and legal analysis must be affirmed.
In addition to his argument regarding the four-part test, T.B.L. contends that the
trial court erred in not accepting his "identified surrender of his parental rights."
As the trial in the matter began, T.B.L. proffered an "identified surrender" of
his parental rights so that the foster parents could adopt his children. Given
the limited nature of an identified surrender, DYFS urged rejection of the proffer
on the basis that it was not in the best interests of the
children to restrict their availabilities for adoption.
The trial court accepted the identified surrender, but proceeded with the termination proofs.
Judge Johnson explained this ruling in his written decision at the close of
the case.
At the time of trial, [T.B.L.] offered to make an "identified surrender" as
to the children to their current caretakers. The court notes that those caretakers
are Division approved foster caregivers and their identities are unknown to [T.B.L.] The
court accepted [T.B.L.'s] "identified surrender," after finding that the same was voluntary, not
coerced, made without [T.B.L.] being under the influence of drugs or alcohol, and
with a full understanding of what he was doing after full and open
consultation and receipt of legal advice from his lawyer. The court also found
that there were no promises being made to him in exchange for the
surrender.
In practice, an "identified surrender" means that those exact person(s) as to whom
the surrender is made shall adopt the children. If for some reason the
"identified" persons are not able to adopt the child, the surrender becomes "void"
and the parental rights of surrendering parent(s) are reinstated. See N.J.S.A. 9:3-38(j); N.J.S.A.
9:3-41; N.J.S.A. 30:4C-23.
Subsequent to this voluntary surrender, [T.B.L.] sought to withdraw from the termination case.
He argued that the Division no longer needed to proceed against him as
to the termination of his parental rights under N.J.S.A. 30:4C-15.1, because he had
surrendered all of his rights as to these children by way of his
"identified surrender."
The Division took the position that [it] wished to proceed against [T.B.L.] under
N.J.S.A. 30:4C-15.1 regardless of his voluntary surrender.
[T.B.L.], after being advised of the fact the Division wished to continue to
proceed against him under N.J.S.A. 39:4C-15.1, and the ramifications that would occur if
the Division was successful against him under said statute, continued to request to
withdraw from the proceeding. The court allowed [T.B.L.] to withdraw from the courtroom,
but required that his legal counsel remain to defend his rights in regard
to the termination action. Each day of the trial, [T.B.L.], who was incarcerated,
was brought to the court and offered the opportunity to remain and participate
in the proceeding, but he declined to do so.
This court must determine if it was appropriate for the Division to proceed
against [T.B.L.] despite the fact that he had agreed to an identified surrender.
If, faced with a termination of [] parental rights by action under N.J.S.A.
30:4C-15.1(a), a parent volunteers and the court accepts an "identified surrender" from [him
or her], does that make the termination case moot?
N.J.S.A. 9:3-38(j) defines "surrender" in this context. It reads that "Surrender means a
voluntary relinquishment of all parental rights by a birth parent, previous adoptive parent,
or other person or agency authorized to exercise these rights by law, court
order or otherwise, for the purposes of allowing a child to be adopted."
N.J.S.A. 9:3-41 authorizes an "identified surrender" stating that "At the request of a
parent of a child, an approved agency authorized to receive surrenders, may receive
that parent's surrender of his child for purposes of having the child adopted
by a person specified by the surrendering parent." The New Jersey Division of
Youth and Family Services, as a division of the New Jersey Department of
Human Services, is such an approved agency. See N.J.S.A. 9:3-38(a).
N.J.S.A. 30:4C-23 also deals with voluntary surrenders, releases of custody and consents to
adoption. This statute allows that the Division, after due investigation and consideration, may,
in cases where it would be to the permanent advantage of the child,
take voluntary surrenders, releases of custody and consents to adoption from the parent,
parents, guardians or other persons or agencies having the right or authority to
give such surrenders, releases or consents. See N.J.S.A. 30:4C-23. A surrender under this
statute is stated to be valid and binding regardless of the age of
the person giving the same and shall be irrevocable except at the discretion
of the Division or a court of competent jurisdiction.
The court notes that a termination of parental rights as per N.J.S.A. 30:4C-15.1
does create certain significant ramifications that would not exist if the Division was
required to accept a voluntary "identified surrender" of a child.
First, a termination creates finality to the action not present with a voluntary
identified surrender. If the Division is successful, the parent's rights as to the
child are absolutely terminated forever. In an identified surrender, the parent's rights could
be automatically reinstated if an event occurs that causes the person(s) to whom
the surrender was made to be unable to complete the adoption. Many scenarios
exist that could stop or otherwise prevent an adoption from occurring. A criminal
event could disqualify a prospective adoptive parent, an unexpected or untimely death or
accident could occur to the identified adoptive parent(s), or a simple change of
heart or mind could cause an adoption to not occur. This would reinstate
the parental rights of a surrendering parent.
Secondly, if the Division successfully terminates the rights of a parent, future ramifications
arise from the same. N.J.S.A. 30:4C-11.3(c) states that the Division shall not be
required to provide reasonable efforts to reunify a removed child with a parent
if a court of competent jurisdiction has determined that "the rights of the
parent to another of the parent's children have been involuntarily terminated."
N.J.S.A. 30:4C-11.1 requires that in a case where children have been removed from
a parent, the Division must provide reasonable efforts to reunify the child with
[its] parent(s). Also, a significant part of the four-part termination of parental rights
requirements of N.J.S.A. 30:4C-15.1 is that the Division must show that [it has]
"made reasonable efforts to provide services to help the parent correct the circumstances
which led to the child's placement outside of the home. . . ."
See N.J.S.A. 30:4C-15.1(a)(3). Thereafter, the statute relates back to N.J.S.A. 30:4C-11.3 and states
that reasonable efforts are not required to be exercised by the Division if
there has been a prior termination of parental rights as to the parents.
See N.J.S.A. 30:4C-15.1(d).
Accordingly, requiring the Division to accept the "identified surrender" and to not proceed
as to the termination case would prevent the "finality" of a termination and
would have possible future ramifications, by eliminating the Division's opportunity to obtain the
ability to not offer reunification services to a parent in the future. In
theory, a hopelessly inappropriate or dangerous parent could continually avoid the statutory ramifications
of a termination by doing a "voluntary surrender" in each instance, and thereafter
seek services from the Division as to any additional children, regardless of the
number of children. . . .
The court does not believe that to be the intention of the statute.
The court turns to the New Jersey Legislature's choice of one word in
the statutes to support this conclusion. Both N.J.S.A. 9:3-41(d) and N.J.S.A. 30:4C-23 state
that under the circumstances stated therein, the Division "may" receive the parent's or
guardian's surrender of the child(ren) for purposes stated in the statute ([emphasis] added).
The court notes that the word "may" provides discretion as opposed to "shall,"
which requires an action be done. See N.J.S.A. 1:1-1; See also Seiple v.
Borough of Elizabeth,
27 N.J.L. 407 (Sup. Ct. 1859); Evans v. Prudential Property
and Casualty Ins. Co.,
233 N.J. Super. 652 (Law Div. 1989); Atlantic City
v. Board of Comm'rs of Atlantic City,
138 N.J. Super. 595 (Law Div.
1976).
The Division has the option to accept the "identified surrender" should [it] choose to do so, but [it] also [has] the right to proceed as to the termination case. N.J.S.A. 30:4C-15.1 states that the Division "shall initiate a petition to terminate parental rights on the grounds of best interests of the child" as per N.J.S.A. 30:4C-15 if the four-part test of N.J.S.A. 30:4C-15.1 can be met. Here, the Division has determined to proceed to terminate the parental rights as to [T.B.L.] regardless of the "identified surrender" he has offered. The court finds it would not be appropriate to require that the Division accept this surrender as an end to this case if [it wishes] to proceed on the termination. The request by [T.B.L.] to not allow the Division to proceed against him as to termination because of his "identified surrender" as to his children is denied.
We endorse the procedures Judge Johnson employed in dealing with T.B.L.'s identified surrender. We are, also, substantially in agreement with his capably considered, well-reasoned, and finely articulated rationale regarding the rights of the parties where an identified surrender has occurred. The determination whether or not to proceed with plenary consideration of a parental termination case after an identified surrender has been made is, as a matter of law, discretionary with the trial court. T.B.L. has provided us with no factual basis from which we might discern that that discretionary authority was misapplied here.
Affirmed.