Recent Decisions of the New Jersey Appellate Courts
from 2018-08-07 to 2018-08-21

Supreme Court Decisions


Docket No.: a_9_17
Decided: 2018-08-15
Caption: Josh Willner v. Vertical Reality, Inc.
Summary:
FERNANDEZ-VINA, J., writing for the Court. In this products liability case, the Court reviews both a trial judge’s jury instruction related to evidence of a defendant manufacturer’s conduct and the New Jersey rule governing offers of judgment in cases in which a single plaintiff pursues joint and several liability against multiple defendants.

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Docket No.: a_43_16
Decided: 2018-08-14
Caption: State of New Jersey v. Quaker Valley Farms, LLC
Summary:
Albin, J., writing for the Court. Quaker Valley Farms, LLC (Quaker Valley) owns approximately 120 acres of deed- restricted farmland in Hunterdon County. As part of New Jersey’s Farmland Preservation Program, the State purchased an easement on the property that prohibits any activity on the property that is detrimental to soil conservation, but permits the construction of new buildings for agricultural purposes. Quaker Valley excavated and leveled twenty acres of the farm -- previously used for the production of crops -- to erect hoop houses (temporary greenhouses) in which it would grow flowers. In the process, Quaker Valley destroyed the land’s prime quality soil. The Court considers whether Quaker Valley’s excavation activities violated its deed of easement and the Agriculture Retention and Development Act (ARDA), N.J.S.A. 4:1C-11 to -48.

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Docket No.: a_43_44_45_4
Decided: 2018-08-14
Caption: State of New Jersey v. Quaker Valley Farms, LLC
Summary:
Albin, J., writing for the Court. Quaker Valley Farms, LLC (Quaker Valley) owns approximately 120 acres of deed- restricted farmland in Hunterdon County. As part of New Jersey’s Farmland Preservation Program, the State purchased an easement on the property that prohibits any activity on the property that is detrimental to soil conservation, but permits the construction of new buildings for agricultural purposes. Quaker Valley excavated and leveled twenty acres of the farm -- previously used for the production of crops -- to erect hoop houses (temporary greenhouses) in which it would grow flowers. In the process, Quaker Valley destroyed the land’s prime quality soil. The Court considers whether Quaker Valley’s excavation activities violated its deed of easement and the Agriculture Retention and Development Act (ARDA), N.J.S.A. 4:1C-11 to -48.

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Docket No.: a_17_16
Decided: 2018-08-13
Caption: John Paff v. Ocean County Prosecutors Office
Summary:
ATTERSON, J., writing for the Court. In this appeal, the Court applies the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, to recordings made by mobile video recorders (MVRs) in police vehicles in compliance with a municipal police chief’s general order.

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Docket No.: a_4_17
Decided: 2018-08-09
Caption: State v. Danyell Fuqua
Summary:
TIMPONE, J., writing for the Court. In this case, the Court considers whether the State must prove actual harm to a child to convict a defendant under N.J.S.A. 2C:24-4(a), endangering the welfare of children.

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Docket No.: a_47_16
Decided: 2018-08-08
Caption: Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission
Summary:
PATTERSON, J., writing for the Court. The Court considers the Legislature’s first exercise of its constitutional authority under the Legislative Review Clause and the threshold question of whether and under what standard a court can review concurrent resolutions as to agency rules and regulations.

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Docket No.: a_68_16
Decided: 2018-08-07
Caption: RSI Bank v. The Providence Mutual Fire Insurance Company
Summary:
PATTERSON, J., writing for the Court. This appeal arises from the trial court’s reliance on an indemnification obligation, designated as a condition of pretrial intervention (PTI), as evidence in a civil dispute.

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Appellate Division PUBLISHED Decisions


Appellate Division UNPUBLISHED Decisions


Docket No.: a2858-16
Decided: 2018-08-07
Caption: STATEOF NEW JERSEY v. ROGER A. ALBARRACIN
Status: unpublished
Summary:
PER CURIAM After the Law Division denied his suppression motion, defendant Roger Albarracin pled guilty to conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2(a)(2) and N.J.S.A. 2C:35-5(b)(3), and received a three-year probationary term. Defendant now appeals, arguing the motion court should have suppressed his statements and physical evidence because the police initiated an unconstitutional de facto arrest without probable cause and failed to provide timely Miranda1 warnings. We disagree and affirm. We discern the following facts from the motion record. On September 25, 2015, Sergeant Delatorre2 and Detective Soto, in plain clothes, stopped their unmarked police car at the corner of Bergenline Avenue and an intersecting street, where they observed two individuals — defendant and Hector Rivera — interacting; Sergeant Delatorre described Rivera as "a known user." While standing twenty feet away, the officers witnessed an apparent drug transaction when they observed Rivera give defendant "U.S. currency" in exchange for an "unknown item." The officers followed the two men, who began walking west on the intersecting street. Detective Soto stopped and stayed with Rivera while Sergeant Delatorre followed defendant, who met with a female accompanied by children. Sergeant Delatorre tapped 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Sergeant Delatorre was the only witness at the suppression hearing. 2 A-2858-16T4 defendant on the shoulder and identified himself as a Union City Police Officer. He then told defendant, "[C]ome with me, [S]ir, I do not want to make a scene in front of your children." Defendant complied, and they walked to a public parking lot about ten to fifteen feet away. There, Sergeant Delatorre told defendant he believed defendant had just completed a drug transaction. He then asked defendant if he had any additional contraband, without advising defendant of his Miranda rights. Defendant responded, "[Y]es, I do," and then showed Sergeant Delatorre "two more bags" of heroin. At that point, Sergeant Delatorre placed defendant under arrest and discovered "128 wax folds of heroin" during a search incident to that arrest. The motion court denied defendant's motion to suppress defendant's statements and the physical evidence seized from him, concluding Sergeant Delatorre's initial interaction with defendant constituted a proper investigatory stop. The court reasoned, "The stop was brief in nature and it did not curtail [d]efendant's freedom to a degree associated with a formal arrest. Miranda warnings were therefore not necessary because [d]efendant was not in custody." Defendant raises the following points on appeal: 3 A-2858-16T4 POINT I BY ISOLATING ALBARRACIN, MOVING HIM TO A NEARBY PARKING LOT, AND ACCUSING HIM OF CRIMINAL ACTIVITY, THE OFFICER DID NOT MERELY CONDUCT AN INVESTIGATORY STOP, BUT RATHER, SUBJECTED ALBARRACIN TO A DE FACTO ARREST. GIVEN THAT THE OFFICER LACKED THE REQUISITE PROBABLE CAUSE TO SUBJECT HIM TO THIS TYPE OF ENCOUNTER, THE FRUITS OF THE SEIZURE MUST BE SUPPRESSED. POINT II THE OFFICER FAILED TO APPRISE ALBARRACIN OF HIS MIRANDA RIGHTS PRIOR TO SUBJECTING HIM TO A CUSTODIAL INTERROGATION, THUS REQUIRING SUPPRESSION OF ALBARRACIN’S VERBAL AND NONVERBAL RESPONSES TO THE OFFICER’S POINTED INQUIRY REGARDING HIS INVOLVEMENT IN DRUG ACTIVITY. I In reviewing a motion to suppress, we "must uphold the factual findings underlying the [judge's] decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art I, ¶ 7. Generally, law enforcement officers must obtain a warrant based on probable cause to initiate a constitutionally permissible search or seizure, unless the 4 A-2858-16T4 search or seizure was "justified by one of the well-delineated exceptions to the warrant requirement." State v. Shaw, 213 N.J. 398, 409 (2012) (internal quotation marks and citation omitted); see also State v. Maryland, 167 N.J. 471, 482 (2001). An investigatory stop is an exception to the warrant requirement. Terry v. Ohio, 392 U.S. 1, 30-31 (1968). "An investigatory stop, sometimes referred to as a Terry stop, is permissible 'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Shaw, 213 N.J. at 410 (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). The State bears the burden of showing "by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." State v. Amelio, 197 N.J. 207, 211 (2008) (citation omitted). "Reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002) (citing State v. Citarella, 154 N.J. 272, 279 (1998)). To meet the reasonable suspicion standard, an officer must have "some minimal level of objective justification for making the stop" that is "more than an inchoate and unparticularized suspicion or hunch." United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation 5 A-2858-16T4 marks and citations omitted). In determining whether reasonable suspicion exists, a court should consider "the totality of the circumstances . . . ." State v. Gamble, 218 N.J. 412, 431-32 (2014) (quoting United States v. Cortez, 449 U.S. 411, 471 (1981)). "An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." Pineiro, 181 N.J. at 22 (citing State v. Davis, 104 N.J. 490, 504 (1986)). Defendant argues Sergeant Delatorre made an unlawful de facto arrest, without probable cause, and then failed to provide Miranda warnings. We disagree. The record supports the motion judge's determination that Sergeant Delatorre's brief conversation with defendant constituted a legal investigatory stop. Sergeant Delatorre observed defendant receive currency from a known drug user in exchange for an item. The exchange constituted specific and articulable facts that provided Sergeant Delatorre with a reasonable suspicion that a drug transaction had occurred. The transaction, coupled with Sergeant Delatorre’s fifteen years of training and experience, supported his suspicion of defendant's specific criminal conduct. Based on the totality of the circumstances, Sergeant Delatorre had a reasonable suspicion to conduct an investigatory stop of defendant. 6 A-2858-16T4 Defendant further argues that Sergeant Delatorre was "undoubtedly intimidating" and lacked the requisite suspicion to isolate defendant from the children and female with whom he was standing. While an investigatory stop becomes a de facto arrest when it is more than "minimally intrusive," State v. Dickey, 152 N.J. 468, 478 (1998), that did not occur here. We discern nothing improper regarding Sergeant Delatorre's decision to speak with defendant away from the children, whom he thought were defendant's children. The exchange with defendant took place in a public parking lot, several feet from defendant's original location, and lasted less than a minute. We do not find Sergeant Delatorre's behavior intimidating or coercive, nor did defendant object to the questioning. We conclude the interaction constituted a lawful investigatory stop and the motion court correctly denied defendant's motion to suppress. II Defendant further argues that because he did not receive Miranda warnings, the court should suppress his statements and physical evidence. We disagree. Miranda warnings attach only when there is custodial interrogation, which is when law enforcement initiates questioning after taking a person into custody or otherwise depriving that person of freedom of action in a significant way. See Miranda, 7 A-2858-16T4 384 U.S. at 444; State v. Smith, 307 N.J. Super. 1, 8-9 (App. Div. 1997). The rights provided in Miranda are "not implicated when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation." State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988). "[W]hether a suspect is in custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." State v. O’Neal, 190 N.J. 601, 615 (2007). Factors to consider in evaluating whether the suspect was subject to custodial interrogation include: "the time, place[,] and duration of the detention; the physical surroundings; the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect." State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005). In addition, "[t]he determinative consideration is whether a reasonable innocent person in such circumstances would conclude that after brief questioning[,] he or she would or would not be free to leave." Pierson, 223 N.J. Super. at 67 (citation omitted). Here, the record supports the court's finding that defendant was not in custody when Sergeant Delatorre approached defendant, requested defendant step away from the children, and asked defendant if he had any additional contraband. The interaction 8 A-2858-16T4 between Sergeant Delatorre and defendant lasted less than one minute and involved one question. Although Sergeant Delatorre testified defendant was not free to leave during the questioning, Sergeant Delatorre did not disclose that to defendant. An officer’s subjective intent is only relevant if disclosed to the suspect, in which case it would likely affect a reasonable person's belief they were free to leave. State v. Brown, 352 N.J. Super. 338, 352-53 (App. Div. 2002). The record shows Sergeant Delatorre conducted a brief investigatory stop that did not curtail defendant's freedom to the degree associated with a formal arrest. Therefore, it was permissible for Sergeant Delatorre to question defendant about the suspected drug transaction without administering Miranda warnings. Furthermore, a voluntary statement by a defendant is admissible at trial. State v. Miller, 76 N.J. 392, 402 (1978). In determining the issue of voluntariness, "a court should assess the totality of all the surrounding circumstances." Ibid. "[R]elevant factors [to consider] include the suspect’s age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Ibid. 9 A-2858-16T4 Here, defendant voluntarily accompanied Sergeant Delatorre without objection. Sergeant Delatorre asked defendant only one question, which did not involve any physical or psychological coercion. Although defendant gave an incriminating response and produced two additional bags of drugs from his person, Sergeant Delattore neither coerced defendant into making that statement nor was defendant in custody. Accordingly, the motion court correctly determined the challenged statements and physical evidence were admissible and established probable cause to arrest defendant. Affirmed. 10 A-2858-16T4

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Docket No.: a2907-17
Decided: 2018-08-07
Caption: INTHE MATTER OF THE ADOPTION OF A CHILD BY R.C.W. and S.M.W
Status: unpublished
Summary:
PER CURIAM This appeal involves the Adoption Act, N.J.S.A. 9:3-37 to – 56. A birth mother brought this action seeking to set aside her surrender of her newborn to an approved adoption agency and compel the adopting parents to return her child. Few cases have so much potential for calamity. The adopting parents could lose their only child, the child they have nurtured since birth, and in consequence suffer a lifetime of emotional pain and heartbreak. The birth mother could see her decision to surrender her child upheld, have her parental rights terminated, and in consequence suffer a lifetime of regret and sorrow. The child could be abruptly removed from the only parents and only home it has ever known, placed in the hands of a virtual stranger, and in consequence suffer permanent emotional damage. In this case, following a hearing, and without considering the child's best interests, the trial court nullified the birth mother's surrender and ordered the adopting parents to return the child. The court found the approved adoption agency's non- compliance with administrative regulations concerning counseling of birth mothers amounted to misrepresentation, a statutory exception to the irrevocability of the birth mother's surrender. We conclude as a matter of law the judge erred in so finding. Hence we reverse. I. A. The parties' legal proceedings began in August 2017, when the out-of-state adopting parents, Stephen and Stephanie, filed a complaint for adoption of Baby J, whose mother had surrendered the 2 A-2907-17T3 child for adoption after its birth the previous month.1 In October 2017, two months after Stephen and Stephanie filed the adoption complaint, the birth mother, Mya, a New Jersey resident, filed a verified complaint in the Chancery Division, Family Part, seeking a declaration that her surrender of Baby J to A Loving Choice Adoption Associates ("Loving Choice"), an adoption agency licensed in New Jersey, was invalid. She also sought an order returning custody of Baby J to her. The trial court afforded the parties expedited discovery and then conducted a plenary hearing in January 2018. Following the hearing, the court delivered an oral opinion in which it concluded Mya's surrender of Baby J was invalid. The court ordered that Baby J — then seven months old — be transferred within fourteen days from Stephen and Stephanie to Mya. Stephen and Stephanie filed an application for a stay pending appeal. The trial court denied the stay. We granted it and accelerated the adopting parents' appeal. B. During the hearing on Mya's action, the parties presented the following evidence. Nineteen-year-old Mya was shocked, confused, and scared when she learned in December 2016 she was pregnant. 1 We use pseudonyms for the family members, relatives, and friends for purposes of confidentiality and ease of reference. 3 A-2907-17T3 She was shocked and confused because after terminating two previous pregnancies she "had an IUD put in." According to Mya, her gynecologist told her "there was no chance of . . . getting pregnant with it in." She was scared because even though she had a full-time job, a part-time job, and attended college, she feared she would lose her mother's support. Mya had lived with her mother her entire life. During the next several months, Mya went back and forth on whether to keep the baby. She decided to surrender it for adoption. Two events cemented her decision. The first occurred when Mya and her mother were packing to return home from their annual trip to South America. Mya had intended to disclose the pregnancy to her mother during the flight back to the States. The morning they packed to return home, Mya's mother said she dreamed she kicked Mya out of the house after learning Mya was pregnant. The dream scared Mya. She did not disclose her pregnancy. The second event occurred two months later. In April 2017, Mya, her mother, and her grandmother were evicted from the apartment they rented in Union, during a foreclosure action against the owner. No relative had room for the three of them, so Mya's mother and grandmother moved in with Mya's aunt and Mya moved in with her oldest sister, Mariah. Mariah was married with two children. There, from April through October, before she and two 4 A-2907-17T3 others bought their own home, Mya lived in her nephew's playroom. She had little privacy. She wondered how she could bring a crib into the playroom, and though Mya was managing her finances, her mother was not there to help. Besides, her mother was having financial problems. Mya also could not count on Baby J's father for financial support. He "made it seem" like he had no interest in helping her. After moving in with her sister, Mya began to research adoption agencies on the Internet. She submitted an online questionnaire to Lifetime Adoption ("Lifetime"), an out-of-state agency. Approximately two weeks after submitting the application, she received a packet from Lifetime with more questions. Mya testified at the hearing that when she completed the packet of questions she was not committed to the adoption "a hundred percent," but "was probably, like [eighty] percent, not even." She then said it was more like fifty percent. Nonetheless, she completed and returned the packet. In response to questions in the packet, Mya said her family did not know about her pregnancy, she did not plan to tell them, and they would not support her in an adoption plan. Mya also said her friends did not know about her pregnancy, she did not plan to tell them, and they would not support her in an adoption plan. 5 A-2907-17T3 One section of the packet included questions about her adoption plan. In response to these questions, Mya wrote that the adopting parents and her best friend were allowed in the delivery room. She wrote she would like the adopting parents to spend time with her while she was in the hospital. She did not want to see or hold the baby, but wrote as a special request concerning seeing and holding the baby, "if day I give birth & change my mind they will allow me to." Mya also wanted the adopting parents to send her letters and photos after the adoption, on special occasions, but did not want them to email her often. She requested visits "whenever parents tell child about me." A question inquired about Mya's reason for placing the baby for adoption. The question was, "What thinking went into your decision to place this child for adoption?" Mya responded, "I wouldn't be able to give the child a good life, I'm too young and I need to finish school." The questionnaire also inquired about counseling. One inquiry read: "Lifetime offers free peer counseling and confidential licensed counseling from independent providers. Would you like us to schedule counseling at a time that is convenient for you?" Mya checked the circle next to "No." Mya signed the questionnaire on May 30, 2017. Shortly after she returned it, she received a telephone call from a Lifetime 6 A-2907-17T3 representative and they spoke for approximately fifteen minutes. A couple days later, Mya received from Lifetime a package containing a "portfolio of parents." A note attached to Stephen and Stephanie's profile said they had been waiting longest. Mya selected them. After speaking to the Lifetime representative again, Mya got a phone number for Stephen and Stephanie and telephoned them. Wishing to adopt a child, Stephen and Stephanie had contracted with Lifetime in 2014. On June 12, 2017, a Lifetime representative notified Stephanie that a birth mother would telephone them later that evening to discuss a possible adoption. That evening, Mya called and spoke with Stephen and Stephanie. The three exchanged information about themselves, discussed the birth father, and discussed Mya's support system. Mya mentioned Stephen and Stephanie appeared to have good health insurance and had adorable dogs. She told them nobody in her family knew about her pregnancy, but she had told her new boyfriend and a gym teacher, whom she considered a mentor. Mya told Stephen and Stephanie the date of her next medical appointment and gave Stephanie her cellular phone number. According to Stephanie, she and Stephen asked Mya "if she wanted to move forward with the match, because that was the point of the phone call, . . . to decide if we would match with each 7 A-2907-17T3 other. And she said that she had told Lifetime, and she would tell us that she was 100 percent not changing her mind." Consistent with the questionnaire she had completed, Mya also told Stephen and Stephanie she did not want to hold or see the baby when it was born. During the five weeks between that first telephone conversation and Baby J's birth, Mya and Stephanie exchanged numerous emails. Mya expressed no reservation about the adoption. To the contrary, her emails confirmed she wanted the adoption to proceed without her family knowing about the baby. During the week before Baby J was born, Mya and Stephanie discussed the amount of contact Mya would like to have with Baby J after the adoption. Mya texted: Far as contact I wouldn't want a lot of contact with the baby idk if you guys are [going to] tell him/her it was adopted when he/she is older so I wouldn't want to get involved as much I mean I would like to see it before you guys head back . . . when it's born but other th[a]n that I won't want regular contact with it maybe just a picture on holidays and its birthdays. I want to respect your feeling as well as if you guys choose not [to] have it know it was adopted until much older but can always contact me if anything. Less than a week before Baby J's birth, Mya also texted Stephanie that she, Mya, didn't want to be a ghost to the baby, so if the child ever asked to meet her and it was okay with them, 8 A-2907-17T3 she would have no problem with such a meeting. Mya said Stephen and Stephanie could put their names on the birth certificate. Meanwhile, sometime after Mya, Stephanie, and Stephen spoke on June 12, 2017, the Lifetime representative telephoned the Administrative Director of Loving Choice (the "Director"). From that point, Loving Choice provided adoption services to Stephen, Stephanie, and Mya. The Director provided services to Stephen and Stephanie. Loving Choice's Birth Parent Counselor (the "Counselor") provided services to Mya. Keeping their roles separate avoided any possible conflict of interest. The Director, a co-founder of Loving Choice, completed all required documents for the adoption of Baby J, including documents required under the Interstate Compact on the Placement of Children ("ICPC"). During that process, the Director wrote to the agency involved in Stephen and Stephanie's home state on the day after Baby J was born. The Director informed her counterpart of the birth and said, "[w]e are currently working toward birthmom relinquishing her parental rights." She requested her counterpart have the ICPC agreement signed. The next day, the Director wrote a "To Whom it May Concern" letter stating Stephen and Stephanie were "in legal custody" of Baby J, so they were entitled to have the baby covered under their insurance. Each state approved Baby J's placement with Stephen and Stephanie. 9 A-2907-17T3 The Loving Choice Counselor, also a co-founder, had been with the organization for fifteen years and provided counseling services to birth mothers for thirteen of those years. In 2011, the Congressional Coalition on Adoption Initiatives honored her with its Angel of Adoption award. Her responsibilities as a Birth Parent Counselor included meeting with pregnant clients considering adoption and counseling them. Birthparent counseling included "options" counseling. Counseling also included anything troubling a client. The Counselor would inquire about the birth father and what role, if any, he would play in the adoption. She would discuss what would take place in the hospital and file the birth mother's hospital plan. She would oversee the birth mother's transfer of custody of the newborn and offer post-placement counseling. Loving Choice's Counselor intended to have at least three counseling sessions with Mya. Three sessions was the standard, and she customarily conducted more than three, but the timing and number of sessions varied with each case. Obviously, if a client came to the agency soon after learning she was pregnant, there would be time for more pre-birth counseling sessions than if the client first appeared toward the end of the pregnancy. Post- placement counseling could be one session or fifty sessions over many years. 10 A-2907-17T3 The Counselor was unable to contact Mya when Loving Choice first became involved, so she left several messages in Mya's voicemail. Mya had taken a vacation to Aruba with her other sister, Miriam. She returned on June 25, 2017, less than a month before Baby J was born. She telephoned the Counselor the next day and they agreed to meet the following Saturday, July 1. They met then and on two other occasions. They gave conflicting testimony about their first telephone conversation as well as what occurred at their meetings. During their initial telephone call, Mya and the Counselor decided to meet at a Starbuck's near where Mya worked. Mya testified: "And then she asked me if I would be able to meet with her because of the fact that I had to get counseling for the adoption. So I told her okay. And she asked me if we could meet somewhere close to me, at like the Starbucks would be fine." They arranged to meet at Starbucks on July 1, 2017. The Counselor testified she asked if Mya wanted to come into Loving Choice's office, or if there was somewhere closer to her where Mya would be more comfortable. Mya commented about traffic being heavy and asked if they could meet at a Starbucks near Mya. The Counselor did not know where the Starbucks was. She googled the location. She did not discuss the issue further with Mya, because she was always willing to accommodate any birth mother as 11 A-2907-17T3 to the location for meetings. She agreed to meet Mya at the Starbucks. They met at Starbucks on July 1 in the morning. Mya said the meeting lasted approximately thirty minutes. The Counselor said it lasted one hour and fifteen minutes. According to Mya, there was a radio on and blenders and espresso machines were operating. People were coming and going, some were talking, others were video chatting while they waited in line for their coffee, and a little girl was "running around a little bit." Mya said the Counselor wrote notes on a little black pad as they spoke. They discussed Mya's personal interests. The Counselor asked why Mya was considering adoption. Mya explained that she, her mother, and grandmother had been evicted from their home. She felt she was unable to raise a little baby on her own. Mya said the Counselor related her own experience about adopting. After the Counselor adopted a child, she sent the birth mother photographs on a monthly basis, but the birth mother told her to stop "because it was hurting her, affecting her life." During the meeting, the Counselor gave Mya papers to sign for the release of medical records. According to Mya, after exchanging personal information, the Counselor relating her adoption experience, and Mya signing papers, the meeting ended. 12 A-2907-17T3 During Mya's trial testimony, in a series of single-word "no" responses to her attorney's questions about this first meeting, Mya said the Counselor did not mention any of the following: foster care, WIC, the Division of Child Placement and Permanency, SNAP, Workfirst New Jersey, Cares for Kids, New Jersey Family Leave Insurance Program, Temporary Assistance for Needy Families, TANF, housing assistance, Section 8, Universal Service Fund, the Housing Choice Voucher Program, or the New Jersey Department of Labor and Workforce Development Housing Assistance program. Mya also testified the only discussion about adoption alternatives concerned her friend and mentor. She said the Counselor "mentioned something about if I did decide to keep [the baby] to leave [the baby] with my friend, . . . but I told her that [my friend] already had a kid, and I don't think she would be able to do it, so then she just changed the subject." Mya said that was the only alternative the Counselor discussed. The Counselor recalled things differently. She testified she had Mya confirm the information on the Lifetime questionnaire. After Mya did so, the Counselor inquired about Mya's income and that of her mother, since Mya said she lived with her mother. Mya refused to identify the birth father. The two then talked about "everything." Mya was proud she was the first person in her family to go to college. They discussed 13 A-2907-17T3 Mya's interests, which included fashion, makeup, and hair. They discussed the two previous pregnancies that Mya had terminated "at her mother's behest." Mya said she could tell no one she was pregnant. Mya's "mother had been adamant with all three of her daughters, that they were not to be single parents as she had been." Mya was afraid of her mother. In fact, when they discussed Mya's hospital plan, Mya asked if she could deliver the baby anonymously. She wanted to make sure no one could find out she was in the hospital. To accomplish that, she wanted to be moved off the maternity ward and into another part of the hospital. During the meeting, they discussed different types of adoptions, including traditional, semi-open, and open. They also discussed post-placement contact. The Loving Choice Counselor testified she talked to Mya about alternatives to adoption. She said: [W]e talked about her options[,] which . . . were placing the baby in foster care, parenting the baby, placing the baby with a friend or relative. And she . . . dismissed all of them out of hand. She said that she could not place the baby - - well, I explained to her what a - - I explained to her that placing - - that as far as I knew, the only type of foster care would be through DCP&P, and they're our child protective services agency. 14 A-2907-17T3 The Counselor believed some level of abuse or neglect had to be present in order for the Division of Child Protection and Permanency ("DCPP") to become involved. She also told Mya most parents did not consider placing a child with DCPP as an option, "because once the baby went into the system, there you had no choice as to who the baby went with. And you did not know if . . . you would have to do whatever they told you in order to get the baby back." The two discussed an ongoing concern about Mya seeing a specialist about a problem that could affect the baby's health. The Counselor said she could have an escrow account set up to pay any deductible. According to the Counselor, when the meeting ended, Mya remained absolutely committed to adoption. The day after the meeting at Starbucks, Stephanie texted Mya: "Hey! Hope your meeting went well yesterday. I wanted you to know we set up an account with Christine to help cover the cost of the specialist! Hope it helps!" Mya responded in a text: "Yes everything went well[.] [W]e discussed if I wanted to be in the picture or not and I believe we [are] meeting again next week to discuss my hospital plans. But yes she called me again yesterday to tell me about it and it does[.] [T]hank you I'm really grateful." At trial, Mya testified that following her first meeting with the Counselor, she remained unsure about the adoption. She "kind 15 A-2907-17T3 of wanted to go through with it, but at the same time . . . was thinking maybe not." Mya had begun to feel the baby kick and move, and she felt a connection with the child, but "wasn't really certain." She thought based on what the Counselor had told her, adoption would be the right thing to do. Mya and the Counselor met a second time at 5:30 on the afternoon of July 11, 2017. Mya said they met at Starbuck's at the Counselor's suggestion and the meeting lasted approximately thirty minutes. She testified the Starbucks was a bit more crowded than before. When Mya and the Counselor spoke, a woman sitting at a nearby table leaned over and tried to listen to them. Mya recalled the Counselor handed her the birth plan, asked her to fill it out, and said if she had any questions she should ask. As she completed the form, Mya had questions about whether the adopting parents would be observers and about the room where she would deliver. The Counselor explained Mya would be admitted to a non-maternity room because no one knew about the pregnancy, so if someone came to the hospital, none of the information would be available as to why she was there. Mya took approximately ten minutes to complete the form. When she finished, she and the Counselor discussed some issues concerning her pregnancy and the fact she still was not "showing." The Counselor told her some personal stories and Mya speculated 16 A-2907-17T3 "she was just trying to make conversation with me." According to Mya, they discussed nothing else at the July 11 meeting. Asked by her attorney where she was in terms of the 50/50 balance or her thought process, Mya responded that she really wasn't thinking about it in those terms. She was just going with the flow. She was scared because she knew she would be going into labor soon. The Counselor testified they met at Starbucks on July 11 at Mya's request. The meeting lasted approximately one hour. During the meeting, the Counselor explained she had thoroughly reviewed the information Mya had completed for Lifetime, including Mya's identification of the birth father. The Counselor explained that the birth father would either have to participate in the adoption or be notified about the adoption. Mya said he was a loser, he had not told his family, and she had not spoken with him in months. The Counselor asked if she had reconsidered parenting and whether the birth father would be able to provide child support. Mya dismissed the suggestion out of hand. According to the Counselor, they again discussed options to adoption. The Counselor asked if Mya had given any more thought to foster care. Mya's answer was no. The Counselor asked if Mya had given any more thought to telling her mother or her sisters. Mya again said no. The Counselor asked if, considering the baby 17 A-2907-17T3 was Mya's mother's grandchild, her mother might soften up. Mya again said no. Mya gave the Counselor details about her relationship with her sister Miriam and her mother's feelings about Miriam and about her. Mya got emotional when talking about the relationships among her, her mother, and Miriam. The Counselor again inquired if Mya had given any thought to the birth father, a friend, or a family member parenting the baby. Mya "was again, completely dismissive of every other option." Rather, Mya appeared to be very excited about the identified adoption plan and about meeting Stephen and Stephanie. The Counselor and Mya reviewed the hospital plan. Mya wanted to make sure the baby had the adoptive parents' last name, because she did not want any documentation with her last name on the birth certificate. Between the second meeting and the day Mya gave birth, the Counselor texted Mya to see how she was doing and to set up another session. Although the two scheduled another session, it did not take place as scheduled, because Mya went into labor. The day Baby J was born, Mya left work at noon. She gave birth mid-afternoon. The only non-staff person present was Mya's co-worker. When the baby was born, a nurse took the baby to another location. Mya presumed it was the neo-natal intensive care unit. Later, the nurse returned and asked if Mya wanted to 18 A-2907-17T3 hold the baby. She did. Mya held the baby for approximately fifteen minutes, but then the baby started to cry and the nurse realized Mya did not know what to do. The nurse calmed the baby and placed the baby in its bed, which was in Mya's room. Between the delivery of the baby and 8:00 that evening, the child's father, his sister, and a friend of Mya visited her. Earlier that day, a friend of Mya texted Stephanie that Mya was in labor. Stephanie arranged to fly to New Jersey and drive to the hospital. When she arrived, the baby's father, his sister, the sister's girlfriend, and Mya's co-worker were in the room. They appeared to be enjoying themselves. Mya was holding the baby. According to Stephanie, Mya "asked if I wanted to meet my [child], and she handed [the baby] to me." Stephanie held the baby from that moment until Mya was discharged that evening. Immediately before her discharge, Mya held the baby one more time then returned it to Stephanie. Approximately one-half hour before Mya was discharged, Mya handed Stephanie her wrist band. Stephanie thought Mya should stay overnight. When she asked why Mya was leaving, Mya said she had missed dinner with her mother, who was "blowing up" her cell phone trying to locate her. Mya also wanted to sleep in her own bed that night. 19 A-2907-17T3 Between nine and ten o'clock that night, Stephanie and Mya exchanged text messages. Mya wished Stephanie a good night with the baby. Mya said: "I'm so happy for you guys!" Mya also thanked Stephanie for some small gifts she and Stephen gave to her. The next evening, Mya met the Loving Choice Counselor in the hospital lobby to sign papers authorizing the baby's discharge to Loving Choice. Mya signed a document entitled "TRANSFER OF CUSTODY, CONSENT TO ADOPTION, AUTHORIZATION FOR MEDICAL CARE." According to Mya, during the meeting, the Counselor did not discuss options to adoption, government programs, or foster care. She did not encourage Mya to speak with her mother. The meeting took only approximately ten minutes. After accompanying Mya to the hospital's information desk to find out where Mya had to go to sign papers concerning the birth certificate, the Counselor left. Like the first two meetings, the Loving Choice Counselor recalled things differently. She had spoken with Mya the previous day after the baby's birth. She told Mya she did not think it was a good idea for Mya to be discharged from the hospital four to six hours after the delivery. Mya said she didn't want to raise any suspicions at home, she wanted to sleep in her own bed, and she had to go to work first thing in the morning. The next day, when the two met in the hospital lobby, the Counselor reviewed the custody forms with Mya. According to the 20 A-2907-17T3 Counselor, she once again talked to Mya about options. The Counselor said to Mya, "now that [the baby's] here, and . . . exists, and you've held [the baby], and spent time with [the baby], and [the birth father] has held [baby] and spent time with [the baby], have you given any more thought of telling your mother?" Mya said "no." The Counselor explained that upon the baby's discharge, legal custody of the baby would be transferred to Loving Choice, which would in turn transfer physical custody to Stephen and Stephanie. The Counselor specifically informed Mya the transfers would not be a termination of her parental rights. Mya had no questions about the documents she signed or the transfer process. She was in a hurry to "get upstairs to do what she needed to do, and she had dinner plans with her mother that she said she could not cancel." The Counselor asked if Mya intended to go up and see the baby and Stephen and Stephanie. Mya said she did not. The meeting, which had lasted approximately forty minutes, then ended. The Loving Choice Counselor took handwritten notes of each meeting with Mya and placed them in Mya's file, a practice she had followed, without exception, with every birth mother she had counseled. In this case, however, she shredded the notes before testifying at the hearing. She claimed her notes were illegible, so she typed them and maintained the typewritten version in Mya's 21 A-2907-17T3 file. She acknowledged during her testimony this was the only time she had ever shredded her handwritten notes. Mya next spoke to the Counselor on July 25. The Counselor texted her in the morning, approximately 8:30 or 9:00, and said she would find an attorney near Mya's home so that Mya and the attorney could discuss the surrender papers. Later that afternoon, at approximately two o'clock, the Counselor texted Mya and asked if Mya would drive to the Loving Choice office because the only attorney available that day was not from Mya's area. Mya agreed and arrived at Loving Choice at approximately six o'clock that evening. She met the Counselor, who gave her an "Affidavit of Birthmother Regarding Birthfather," which Mya read to herself. The Counselor also presented her with a copy of an "Affidavit in Support of Surrender of Custody and Consent for Adoption." The Counselor discussed some of this document with Mya, but they were interrupted when the attorney arrived. Mya met privately with the attorney, who Loving Choice had contacted many times in the past to counsel birth mothers. Loving Choice paid the attorney's fee. According to Mya, her meeting with the attorney lasted approximately twenty to twenty-five minutes. The attorney explained she was there to make sure Mya understood what a "surrender" meant and to make sure she was given the correct 22 A-2907-17T3 information about the documents she would sign. No one explained to Mya the relationship between the attorney and the agency. No one informed Mya that she could hire her own attorney. Mya said the attorney told her that if she had any expenses throughout her pregnancy, such as maternity clothes, the attorney could have the agency billed. The attorney handed Mya a paper to sign, and Mya signed it. Next, the attorney reviewed the surrender document Mya had started to review with the Counselor when they were interrupted. Mya's attorney testified she became involved with Mya after Loving Choice's Director requested she come to the agency and counsel Mya. The attorney met with Mya once, on July 25, 2017, at Loving Choice. Mya did not sign a retainer agreement. The attorney said Loving Choice had retained her to represent Mya. The agency paid the fee, and the attorney understood it came from the fee the agency charged the adopting parents. When the attorney met with Mya at Loving Choice, she confirmed Mya had reviewed some documents with the Loving Choice Counselor. Mya did not want to review the documents again. The attorney explained that a birth parent could not sign any documents until at least seventy-two hours had passed since the baby's birth. In Mya's case, this requirement had now been met. Next, the attorney explained that once Mya signed the surrender, her signature would 23 A-2907-17T3 be irrevocable, that is, the surrender of the baby is permanent "so that if they call the next day to say they changed their mind, it would be too late." The attorney also explained the procedure by which the adopting parents' names would be placed on the birth certificate; that any agreements with the adopting parents for ongoing contact with the child are unenforceable in New Jersey after the adoption; how agencies investigate adopting parents; and the concepts of physical and legal custody. The attorney explained the concepts of coercion and duress. She explained to Mya no one could force her to sign the documents. She asked Mya if anyone was forcing her to do so. Last, the attorney asked Mya, "[a]re you ready, then, to go downstairs at this time and sign the papers?" Mya was ready. Mya and the attorney went to a room and sat with the Loving Choice Counselor and Director. They sat at a table and circulated documents that Mya signed. Mya testified that as she was signing the documents, she felt she "was kind of being rushed, and like hovered on." The other three adults were telling her where to sign, and to pass each signed document along. No one read anything to her. The other three denied anyone rushed Mya. 24 A-2907-17T3 Mya saw the baby twice after it was discharged from the hospital, both times in Stephen and Stephanie's hotel room. After the second visit, Stephen, Stephanie and the baby returned to their home state. Between the end of July when Stephen and Stephanie returned to their home state with the baby, and September 1, Stephanie and Mya exchanged text messages about the baby. Mya expressed no regrets about the adoption. Rather, she commented that Stephen and Stephanie and the baby made a beautiful family. That changed. Mya testified that during the third week in August she went to Mariah's home after taking Mariah's daughter to Starbucks. Her mother was at Mariah's house with Mariah's son. Mya began to cry. Her mother and sister asked what was wrong, and Mya told them about the baby and the adoption. A couple days later, Miriam was visiting with Mariah when she saw a medical bill for services to Mya. She asked Mariah about the bill and Mariah told her about the baby. On September 1, at nine o'clock in the morning, Mya texted Stephanie and asked how the baby was doing. Stephanie responded. That afternoon, Mya's sister, Miriam, texted Stephanie. In her text to Stephanie, Miriam informed Stephanie that Mya wanted the baby back. Stephanie replied to Miriam. Later that day, Stephanie received the following email from Mya: 25 A-2907-17T3 I am so sorry [Stephanie] I really am but it's really killing me not having [the baby] in my life. I really thought it would be fine and I would be able to go through with it but I can't[.] I miss [the baby] so much everyday and cry for [the baby] every night. I hate to do this to you and [Stephen] but I want [the baby] back and I am willing to repay you guys everything you spent . . . and more[.] I just really want [the baby] back. The same day, September 1, Mya also wrote a letter to Loving Choice. She said she wished to revoke the adoption. She explained why: I was under the impression that I would have no family support and I did not think I would be able to do it alone. Since the day [the baby] was born, I felt a complete emptiness inside. I know that I did the biggest mistake in my life giving [the baby] up for adoption & and I regret it so much. The guilt was eating me alive that I ended up telling my family what I did. It was not the easiest discussion but I realized then that I did have the support of my family. Mya also explained her regret about her decision: "I realize that once I signed those papers there was no turning back and it was irrevocable, but I wish to get [the baby] back. I was not a hundred percent sure about adoption. I just felt like it was the right thing to do at the time." After repeating her regret about the "choice I made," Mya said she did not need the counseling that had been offered to her, but rather needed the baby back in her life. She apologized for 26 A-2907-17T3 putting everyone through the "whole adoption process" but insisted that the baby be returned. Mya testified at trial she would not have surrendered the child for adoption and would have discussed the pregnancy with her mother, had the Loving Choice Counselor informed her about the availability of services, counseled her about foster care, and encouraged her to tell her mother about the pregnancy. Stephen and Mya's sister, Mariah, also testified at the hearing. Their testimony added nothing to the testimony of the other witnesses. C. The trial court determined Mya had demonstrated the voluntary surrender should be set aside. In its February 21, 2018 oral opinion, the court concluded Loving Choice had failed to satisfy its regulatory obligations concerning counseling of Mya, and the failure constituted misrepresentation, a statutory ground for setting aside a surrender. The court also found Loving Choice did not substantially comply with the statutory requirement that it offer counseling prior to execution of the surrender. The court based its decision mostly on its resolution of Mya's and the Loving Choice Counselor's conflicting testimony about what they discussed during their two pre-birth meetings and one post-birth meeting. The court found Mya credible and the 27 A-2907-17T3 Counselor not worthy of belief, primarily because the Counselor shredded the handwritten notes she made during each of her meetings with Mya. Although the Counselor testified the typewritten notes were verbatim reproductions of her handwritten notes, the court rejected that testimony. In view of the non-existence of the Counselor's handwritten notes, the trial court found "[e]ither there are no notes or those notes are fake." The court emphasized, "that really had a substantial impact on credibility." The court also cited the Loving Choice Administrator's letters to her out-of-state counterpart and "To Whom it May Concern." The court considered the letters as evidence "it [was] already a foregone conclusion there's been a third counseling session and surrenders are being prepared." The court reviewed regulations adopted by the Department of Children and Families. The regulations are included in a handbook approved agencies are required to follow. The court found Loving Choice complied with its statutory requirement to inform Mya her surrender was "a surrender of parental rights . . . and means the permanent end of the relationship and all contact between the parent and child." N.J.S.A. 9:3-41. The court also found Loving Choice informed Mya the surrender would constitute a relinquishment of her parental rights in Baby J. 28 A-2907-17T3 In contrast, the court found Loving Choice did not comply with certain regulations. Most important, the court found these instances of non-compliance. First, Loving Choice did not provide Mya with three face-to-face counseling sessions conducted in a private and professional setting; Starbucks is not a private and professional setting. Next, the court found Loving Choice did not explore with Mya alternatives to adoption, including temporary foster care, daycare, and care by relatives. The court determined the limited discussion about Mya's friend possibly providing daycare was insufficient. In addition, the court found the only information the Counselor discussed with Mya about foster care was that Mya "was not a candidate for two reasons": DCPP usually acted only in instances of abuse or neglect; and, parents give up control over the child and the person with whom the child will be placed. The court found this information to be inaccurate and misleading. Last, the court found Loving Choice did not inform Mya about possible assistance. The court noted Mya was left "uninformed about the opportunities that she might have to receive certain public assistance programs for which she may have qualified." The court found that without exploration of her options, Mya "was presented with false facts related to her options." 29 A-2907-17T3 Concluding the regulatory violations constituted misrepresentation, a statutory ground for voiding a surrender, the court nullified Mya's surrender and ordered Baby J be returned to her. II. On appeal, the adopting parents contend the trial court's decision is internally inconsistent and its credibility findings are contrary to the overwhelming weight of the evidence, much of which the court overlooked when it rendered its decision. They also contend the court relied heavily on the Loving Choice Counselor's failure to inform Mya about various public assistance programs, even though there is no "public assistance" requirement in regulations concerning adoption agencies. The adopting parents assert the regulatory violations cited by the trial court do not constitute a statutory misrepresentation sufficient to nullify Mya's otherwise knowing and voluntary surrender. Last, the adopting parents argue Mya did not prove she qualified for any assistance programs or foster care. Mya responds the trial court's factual determinations are amply supported by sufficient credible evidence on the record as a whole. She asserts the court correctly determined the Loving Choice Counselor's erroneous advice and omissions concerning topics addressed in administrative regulations constitute a 30 A-2907-17T3 misrepresentation, which is a statutory ground to nullify a surrender. Responding to the argument she did not prove she qualified for any social programs or foster care, Mya contends the adopting parents in the first instance were required to produce evidence she did not qualify for such programs. III. A. It is important for the parties to understand the limitations on appellate review of a trial court's decision. An appellate court reviews a Family Part judge's findings of fact and legal conclusions under different criteria. Generally, the judge's findings of fact are binding on appeal if "supported by adequate, substantial, credible evidence." Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 411- 12 (1998)). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). That is so because the trial judge who "hears the case, sees and observes the witnesses, [and] hears them testify, . . . has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (first alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). For these reasons, appellate courts 31 A-2907-17T3 will not reverse a Family Part 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." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). In contrast, a trial judge "is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. V. R.W., 212 N.J. 232, 245 (2012). Hence we review questions of law anew. Gere v. Louis, 209 N.J. 486, 499 (2012). A Family Part judge's legal conclusions are entitled to no special deference. In re Forfeiture of Pers. Weapons and Firearms Identification Card belonging to F.M., 225 N.J. 487, 506 (2016) (citing Gere, 209 N.J. at 499). B. The Adoption Act establishes the process for adopting children in New Jersey. In its first section, N.J.S.A. 9:3-37, the Legislature has declared "[t]he act shall be liberally construed to the end that the best interests of children . . . be of paramount concern." This section also requires that "[d]ue regard . . . be given to the rights of all persons affected by an adoption." Ibid. Importantly, "[a] completed adoption establishes 'the same relationship[ ] . . . between the child and the adopting parent 32 A-2907-17T3 as if the child were born to the adopting parent.'" In re Adoption of J.E.V., 226 N.J. 90, 100 (2016) (second alteration in original) (quoting N.J.S.A. 9:3-50(b)). As part of this process, the birth parents' rights must be terminated. Ibid. (citing N.J.S.A. 9:3- 50(c)(1)). That can occur voluntarily: "A parent may . . . surrender a child to a state-approved agency for adoption." Ibid. (citing N.J.S.A. 9:3-41(a)). The Adoption Act defines the term "surrender" as "a voluntary relinquishment of all parental rights by a birth parent . . . for purposes of allowing a child to be adopted." N.J.S.A. 9:3-38(j). A surrender must be in writing and properly acknowledged. N.J.S.A. 9:3-41(a). Before a birth parent signs a surrender, the approved agency must "inform the [parent] the instrument is a surrender of parental rights . . . and means the permanent end of the relationship and all contact between the parent and child"; "advise the parent that the surrender shall constitute relinquishment of the person’s parental rights in or guardianship or custody of the child named therein and consent by the person to adoption of the child"; and "offer counseling to the parent." Ibid. With two exceptions, parental surrenders are irrevocable: The surrender shall be valid and binding without regard to the age of the person executing the surrender and shall be irrevocable except at the discretion of the approved agency taking such surrender or upon 33 A-2907-17T3 order or judgment of a court of competent jurisdiction setting aside such surrender upon proof of fraud, duress or misrepresentation by the approved agency. [Ibid.] Although the terms "fraud, duress, and misrepresentation" are not defined in the Adoption Act, they are well-defined in the law. "Legal fraud or misrepresentation consists of a material representation of a presently existing or past fact, made with knowledge of its falsity, with the intention that the other party rely thereon, and he does so rely to his damage." Foont- Freedenfeld Corp. v. Electro Protective Corp., 126 N.J. Super. 254, 257 (1973) (citing Louis Schlesinger Co. v. Wilson, 22 N.J. 576, 585-86 (1956)). "In equitable fraud, the second element (knowledge) is not necessary, but the other four are essential." Ibid. (citing Dover Shopping Ctr. Inc. v. Cushman's Sons, Inc., 63 N.J. Super. 384, 391 (App. Div. 1960)). A plaintiff seeking equitable relief such as rescission may rely upon equitable fraud. Ibid. (citing Gherardi v. Trenton Bd. of Educ., 53 N.J. Super. 349, 366 (App. Div. 1958)). A misrepresentation must be material and reliance on a misrepresentation must be reasonable. Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). Duress consists of moral compulsion, psychological pressure, or unlawful threats that "overcome the will of the person 34 A-2907-17T3 threatened, and induce him to do an act which he would not otherwise have done, and which he was not bound to do." Rubenstein v. Rubenstein, 20 N.J. 359, 366-67 (1956). "The age, sex, capacity, relation of the parties and all the attendant circumstances must be considered." Ibid. A parent attempting to rescind the surrender of a child to an approved agency for purposes of adoption must prove one of the statutory grounds by a preponderance of the credible evidence. Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127, 133 (1976). Consistent with the Legislative directive that the Adoption Act be liberally construed to promote the best interests of children, when "confronted with the potentiality of serious psychological injury to the child," a court must consider such potentiality at the hearing concerning rescission of a voluntary surrender. Id. at 131-32. Parents who seek to change the status quo and to dislodge the child from the only real home [the child] has known, will have the burden of proving by a preponderance of the credible evidence that the potentiality for serious psychological harm accompanying or resulting from such a move will not become a reality. [Id. at 133.] The trial court may, in its discretion, "call an impartial expert witness to testify at the hearing." Ibid. 35 A-2907-17T3 The current Adoption Act, when enacted in 1977, directed the Commissioner of Children and Families to "promulgate rules and regulations relating to the qualification of agencies for approval to make placements for adoption in New Jersey." N.J.S.A. 9:3-40. The statute provides: The rules and regulations shall include, but shall not be limited to, standard of professional training and experience of staff, requirements relating to responsibilities and the character of trustees, officers or other persons supervising or conducting the placement for adoption program, adequacy of facilities, maintenance and confidentiality of casework records and furnishing of reports. [Ibid.] The implementing regulations are found in the New Jersey Administrative Code, Title 3A, Chapter 50. Chapter 50 is entitled "Manual of Requirements for Adoption Agencies" ("Chapter 50"). The purpose of Chapter 50 is to prevent the exploitation and to protect the health and well-being of children being served by adoption agencies, as well as to protect the legal rights of children and birth and adoptive parents by establishing standards of agency organization and administration, professional training, experience, practices and requirements relating to the responsibility of agencies providing adoption services in New Jersey. [N.J.A.C. 3A:50-1.1(a)]. The Chapter 36 A-2907-17T3 constitutes minimum baseline requirements to ensure that the basic programmatic and administrative needs of adoption agencies and the social service needs of the families and children they serve are met. Compliance with this chapter is necessary if an adoption agency is to open or operate, and no adoption agency is permitted to operate below the level of requirements specified in this chapter. This chapter is in no way intended to prohibit or prevent adoption agencies from going the minimum requirements contained in these rules. The decision whether to exceed these requirements rest with the agencies. [N.J.A.C. 3A:50-1.1(b)]. Chapter 50 "constitutes comprehensive rules governing the certification of adoption agencies pursuant to N.J.S.A. 9:3-7 et seq." N.J.A.C. 3A:50-1.2 Chapter 50 requires an approved agency to "provide the birth parents and adoptive applicants with a written statement or pamphlet indicating certain parental and agency rights and responsibilities." N.J.A.C. 3A:50-3.4(a). The rights and responsibilities are set forth in N.J.A.C. 3A:50-3.4(b). An approved adoption agency is required to "maintain on file and make available to its clients information on known resources in the community which may be of use to adoptive parents, birth parents, children and adult adoptees." N.J.A.C. 3A:50-5.2(a). Concerning birth parents, "[t]he agency shall document in the case record all contacts with the birth parents, birth family 37 A-2907-17T3 members, or their legal representative that directly pertain to the adoption. All entries shall be signed by the individual and include the date of entry." N.J.A.C. 3A:50-5.4(a). Before taking a surrender, the agency is required to document that birth parents were: 1. Provided at least three face-to-face counseling sessions conducted in a private and professional setting as specified in N.J.A.C. 3A:50-3.7(a), or at the birth parents' home, by qualified social work staff on separate days and that the birth parents were: i. Offered counseling that fully: (1) Explores alternatives to adoption; (2) Addresses any presented emotional problems; (3) Includes referrals to mental health agencies when such emotional problems interfere with the birth parents' decision-making regarding adoption; and (4) Explores alternative plans for the child, including, but not limited to, temporary foster care, day care and care by relatives; ii. Informed that only legal parents or legal guardians have the right to custody and control of their child and to surrender their child for adoption; iii. Prepared, along with the child, for surrender and separation; 38 A-2907-17T3 iv. Referred to other community resources when the agency cannot provide needed services; v. Informed that the agency may contact them in the future if the adult adoptee or adoptive family or emancipated minor requests information or wishes to meet the birth parents; vi. Advised that they may sign a written agreement at any time indicating their willingness to be contacted and/or to provide information if requested by the adoptee or adoptive family; vii. Asked to update and submit to the agency their address(es) and/or any significant medical information required on the Medical Information Form, so that the medical information could be shared with the adoptive family and/or the adult adoptee; and viii. Requested to provide an itemized statement for all adoption-related costs, if any, paid by the prospective adoptive parents prior to agency involvement in the adoption or an affidavit that no money was expended; 2. Requested to sign a statement that indicates either: i. The agency explained the information in (c)1 above to them; or ii. They refuse to participate in the counseling sessions; and 3. Asked to sign a statement that indicates the agency explained the 39 A-2907-17T3 provisions of N.J.S.A. 26:8-40.33 and 40.34, which: i. Allow each adoptee and other approved individuals access to original birth certificates; ii. Allow each birth parent to submit a document of contact preference to the State Registrar; and iii. Require each birth parent who submits a document of contact preference to submit a family history form; and 4. Advised how to obtain additional information from the Department of Health. [N.J.A.C. 3A:50-5.4(c).] The case before us turns on whether the trial court's rejection of the Counselor's testimony, and the court's consequent finding that Loving Choice did not comply with N.J.A.C. 3A:50- 5.4(c)(i) and (iv), constituted a misrepresentation sufficient to nullify the surrender. IV. A. The Adoption Act begins with the mandate it "be liberally construed to the end that the best interests of children be promoted and that the safety of children be of paramount concern." 40 A-2907-17T3 N.J.S.A. 9:3-37. We thus begin with the best interests of Baby J. The trial court did not consider them. In Sorrentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127, 132-33, (1976), a case involving a parental surrender and the birth mother's action to nullify it, the Court directed the trial court to conduct a hearing as to the child's best interests. The Court emphasized, "[t]he possibility of serious psychological harm to the child in the case transcends all other considerations." Id. at 132. In the case before us, the court and counsel apparently concluded the potential for serious psychological harm to Baby J did not exist. They did so without relying on expert testimony. Rather, they relied on the Supreme Court's pronouncement in Sees v. Baber, 74 N.J. 201 (1977). In Sees, following a hearing, the trial court issued an opinion and order for judgment when the child whom the mother had given up for adoption was still less than two months old. Id. at 204-05. The child was a year old when the Supreme Court reversed the trial court's decision in favor of the adoptive parents. Id. at 201, 204, 226. The Court in Sees noted the child in Sorrentino was almost three years old. Sees, 74 N.J. at 221. Referring to the three-year-old in Sorrentino, the Court in Sees said: It comports with common, human experience that a child of that age over such a long p

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Docket No.: a3112-16
Decided: 2018-08-07
Caption: STATEOF NEW JERSEY v. JUAN J. FIGUEROA
Status: unpublished
Summary:
PER CURIAM Pro se defendant Juan J. Figueroa appeals from the February 15, 2017 Law Division judgment finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50; DWI in a school zone, N.J.S.A. 39:4-50(g); possessing an open container of alcohol in a motor vehicle, N.J.S.A. 39:4-51b; careless driving, N.J.S.A. 39:4-97; and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant contends the State violated his right to a speedy trial and his right to due process by failing to preserve evidence. Finding no violation, we affirm. I We previously remanded this case to the Law Division to address defendant's appeal on the merits. The factual background is discussed at length in our prior opinion. State v. Figueroa, No. A-3265-14 (App. Div. Jan. 24, 2017) (slip op. at 2-5). A brief summary will suffice here. On June 28, 2013, police observed defendant driving erratically, pulled him over, and detected a strong odor of alcohol. Defendant failed multiple field sobriety tests and refused to submit to a breath test. Police also found an open bottle of alcohol in defendant's car. Eight months after his arrest, defendant made a discovery request for electronically- stored information. The State sent defendant computer aided dispatch (CAD) reports and further responded that any other electronic data had been deleted before defendant's request as part of routine maintenance. Defendant sent the court letters requesting a dismissal for "lack of speedy trial" and "lost or 2 A-3112-16T2 destroyed evidence." Defendant orally argued the motion regarding lost evidence, which the court denied. Defendant failed to raise the motion regarding a speedy trial even after the judge asked if there were any other motions. After the municipal court found defendant guilty of all charges, defendant filed a de novo appeal to the Law Division. On January 8, 2015, the Law Division judge dismissed the appeal because defendant was not in the courtroom when the judge called his case. However, defendant actually arrived early for the hearing and waited outside the courtroom for his case to come up. Because the record contained no indication of anyone checking the hallway outside the courtroom to see if defendant was present before the court dismissed his appeal, we vacated the dismissal order and remanded the matter to the Law Division for trial. Id. at 8. On February 15, 2017, the Law Division conducted a trial de novo. After hearing oral argument from defendant and the prosecutor, the judge made substantially similar findings to the findings the municipal court judge made and found defendant guilty of all charges. Specifically, the judge found: I find that Officer Van Gough was justified in stopping defendant's motor vehicle. He observed defendant driving at approximately [forty-five] and [fifty] miles per hour in a [twenty-five] mile per hour speed zone. 3 A-3112-16T2 When turning onto Broad Street, approximately one half of defendant's vehicle crossed over a double yellow line. Consequently, [Officer Van Gough] observed violations of the motor vehicle act. He had an articulable and reasonable suspicion that the defendant had violated motor vehicle laws. Although defendant refused to submit to a[n] [Alcotest], so that his blood alcohol concentration could be measured, I find that [t]he State has proven beyond a reasonable doubt that defendant was under the influence of alcohol . . . and that his mental faculties were so impaired that it was unsafe for him to operate a motor vehicle. The judge based his conclusion on defendant's erratic driving, his bloodshot and watery eyes and strong odor of alcohol, his poor performance on all three field sobriety tests, and the professional opinions of both Officer Van Gough and Sergeant Brodie "that defendant was under the influence of alcohol, to the extent that it was improper or wrong for him to drive." The judge further found Officer Van Gough and Sergeant Brodie "credible in their testimony. Each were knowledgeable about the events which took place and gave clear testimony." The judge found Officer Van Gough had probable cause to request defendant to submit to the Alcotest, "based upon defendant's driving, smell of alcohol and poor performance on the 4 A-3112-16T2 field sobriety tests." When the officer requested defendant submit to the test, defendant responded, "I refuse." The judge also found defendant guilty of driving while intoxicated in a school zone based on a school zone map in evidence. The judge found defendant guilty of the open container charge based on Officer Van Gough's observation of an open bottle of alcohol with some liquid missing. Finally, the judge found defendant guilty of careless driving based on his excessive speed and his vehicle crossing over a double yellow line. After merging the careless driving charge and the DWI in a school zone charge, the Law Division judge imposed the same sentence as the municipal court judge, ordering: suspension of defendant's driver's license for four years; forty-eight hours at an Intoxicated Driver Resource Center; installation of an ignition interlock device during the license suspension period and two years after; one day jail time with credit for one day already served; a $1250 fine; and mandatory penalties and assessments. This appeal followed. Defendant's brief contained the following point heading: I JUAN FIGUEROA BELIEVE THAT I AM INTITLED TO EXCULPATORY EVIDENCE. AFTER SIX CERTIFIED MOTION AND THE PROSECUTION DELAY CAUSED EROSION OF DUE PROCESS. THE 14TH AMENDMENT PROVIDE FOR THE AVAILABILITY OF EVIDENCE. THE PROSECUTION CANNOT EVADE BRADY REQUIREMENTS BY KEEPING ITSELF IGNORANT OF INFORMATION. I 5 A-3112-16T2 ALSO BELIEVE MY RIGHTS TO A SPEEDY TRIAL WERE VIOLATED WHEN THE JUDGE SKIP MY CERTIFIED MAIL MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL WHICH VIOLATES MY 6TH AMENDMENT AND MY RIGHTS TO DUE PROCESS. I ALSO BELIEVE MY RIGHTS TO DUE PROCESS WERE VIOLATED FOR THE SECOND TIME FOR DISQUALIFICATION UNDER 28 U.S.C § 47 PROVIDES THAT "NO JUDGE SHALL HEAR OR DETERMINE AN APPEAL FROM THE DECISION OF A CASE OR ISSUE TRIED BY HIM[.]" II The United States and New Jersey Constitutions guarantee a defendant the right to a speedy trial. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. To determine if a speedy trial violation exists, we must consider four factors: "[l]ength of delay, the reason for the delay, the defendants assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530 (1972). No single factor under this four-part test is dispositive; rather, they are related and must be considered together, along with any "such other circumstances as may be relevant." State v. Szima, 70 N.J. 196, 201 (1976). "[N]o set length of time . . . fixes the point at which delay is excessive." State v. Tsetsekas, 411 N.J. Super. 1, 11 (App. Div. 2009). The remedy for a violation of the right to a speedy trial is dismissal of the indictment. Barker, 407 U.S. at 522. However, a trial judge's factual determination on a speedy trial issue "should not be overturned 6 A-3112-16T2 unless clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Parties must timely raise issues so that the trial court can rule on them in a timely manner. See State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 19 (2009)). "For sound jurisprudential reasons, with few exceptions, our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available." Ibid. (quoting Robinson, 200 N.J. at 20). Ordinarily, we "decline to consider issues not presented to the trial court unless they 'go to the jurisdiction of the trial court or concern matters of great public interest.'" Kvaerner Process, Inc. v. Barham-McBride Joint Venture, 368 N.J. Super. 190, 196 (App. Div. 2004) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). On appeal, defendant asserts that he was not given a trial date until nine months after his arrest, and over the course of eighteen court appearances. However, defendant failed to provide any transcripts of hearings that occurred during the delay. Defendant further argues the prosecutor's "unpreparedness and 7 A-3112-16T2 procrastination" caused the delay, yet he failed to provide any factual support for his bald assertion. Officer Van Gough arrested defendant on June 28, 2013. On April 2, 2014, defendant submitted a letter titled "MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL" to the municipal court. Defendant then appeared pro se for trial on August 29, 2014; however, defendant failed to pursue this motion. Just before the start of trial court, defendant argued his motion regarding electronically-stored data, which the court denied. The court then asked if there were "[a]ny other pretrial motions?" Defendant remained silent and the trial transcript contains no mention of defendant's speedy trial motion. Accordingly, the Law Division judge found that defendant failed to raise the speedy trial issue in municipal court, "where it should have been addressed when [the judge] asked if there were any further motions." Regardless, the judge did not "see any impairment to the defense because of the delay here." Defendant's failure to raise the speedy trial issue deprived the municipal court and the Law Division of the opportunity to consider any available evidence and analyze the Barker factors, and denied the prosecutor the opportunity to refute the assertion that he was partially responsible for the delay. Additionally, defendant admitted he "fired" his attorney, but 8 A-3112-16T2 failed to provide any evidence that his decision to discharge his attorney did not contribute to the delay. Regarding prejudice, defendant failed to provide any evidence that the alleged delay impaired his ability to defend the case. Like the Law Division judge, we do not "see any impairment to the defense because of the delay here." Because defendant did not pursue the speedy trial issue in the municipal court and the record otherwise lacks evidence to support his contention, we conclude the Law Division did not err in rejecting defendant's claim that his right to a speedy trial was violated. III Defendant further contends the prosecutor violated his due process rights by failing to preserve evidence of "electronically-stored" information from the police officer's laptop computer. We disagree. Due process requires the State disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963). A Brady violation occurs when the prosecution suppresses evidence that is material and favorable to the defense. State v. Martini, 160 N.J. 248, 268 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95 (1972)). "Evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" State v. Robertson, 438 9 A-3112-16T2 N.J. Super. 47, 67 (App. Div. 2014) (quoting State v. Knight, 145 N.J. 233, 246 (1996)) (internal quotation marks and citation omitted). "When the evidence withheld is no longer available, to establish a due process violation a defendant may show that the evidence had 'an exculpatory value that was apparent before [it] was destroyed' and that 'the defendant would be unable to obtain comparable evidence by other reasonably available means.'" State v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009) (alteration in original) (quoting California v. Trombetta, 467 U.S. 479, 489 (1984)). However, a different standard applies to evidence that is only potentially useful. "Without bad faith on the part of the State, 'failure to preserve potentially useful evidence does not constitute a denial of due process of law.'" George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988)). When evidence has been destroyed, the court must focus on "(1) whether there was bad faith or connivance on the part of the government, (2) whether the evidence . . . was sufficiently material to the defense, [and] (3) whether [the] defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App. Div. 1985) (citations omitted). 10 A-3112-16T2 Defendant contends his "motion regarding the electronically- stored data" referred to the "times of the events" stored in police computers. He submitted his first request for electronic discovery about seven months after his arrest. The State searched for the requested information, but found it was no longer available due to routine purging of computer records. Because defendant requested the information seven months after the arrest, we find it was not unreasonable for the State to have deleted it. We conclude the State made reasonable efforts to provide discovery and did not act in bad faith. Furthermore, defendant failed to establish that the police computer records would have contained any relevant or exculpatory evidence. Defendant argues the computer records are material to his defense because Officer Van Gough testified he stopped defendant at 2:32 a.m. but the CAD report indicated a 2:38 a.m. time of stop. However, the record supports the municipal court and the Law Division's conclusion that the discrepancy between the CAD report and the officer's testimony regarding the time of the motor vehicle stop did not alter Officer Van Gough's credibility or affect the guilty verdict. Moreover, defendant failed to present evidence that the destroyed computer records impaired his ability to defend the case; therefore, we find no resulting prejudice to defendant. 11 A-3112-16T2 Finally, defendant appears to suggest, in his brief's argument point, that the Law Division judge who initially dismissed his appeal, and then presided at his trial de novo on remand, should have been disqualified. However, defendant's brief failed to address this issue. As a result, we deem the issue waived. See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48 n.1 (App. Div. 1989) (noting that an issue not briefed is waived). Regardless, defendant's argument clearly lacks substantive merit as the Law Division judge who presided at the trial de novo did not "determine an appeal" from a case tried by him. When the matter first came before him, the Law Division judge dismissed the case, based upon his mistaken belief that defendant failed to appear; he did not conduct a trial de novo. Affirmed. 12 A-3112-16T2

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Docket No.: a3895-15
Decided: 2018-08-07
Caption: LIZAATAMY v. BOARD OF REVIEW and PATERSON CHARTER SCHOOL FOR SCIENCE AND TECHNOLOGY
Status: unpublished
Summary:
PER CURIAM Liza Atamy appeals from a final agency decision of the Board of Review deeming her ineligible for unemployment benefits from October 13, 2013 through December 7, 2013. We reverse and remand for corrective action. Atamy, a former employee of the Paterson Charter School for Science and Technology, applied for unemployment benefits. Atamy collected unemployment benefits for a few weeks until a deputy with the Department of Labor and Workforce Development disqualified her upon concluding she had voluntarily left work without good cause attributable to the work. N.J.S.A. 43:21-5(a). Atamy appealed administratively and the Appeal Tribunal initially reversed the deputy's determination. The employer then appealed to the Board and a second hearing was held by the Tribunal. After the second hearing, on July 21, 2014, the Appeal Tribunal disqualified appellant from receipt of benefits for an eight week period for what it deemed to be "work-related" misconduct. N.J.S.A. 43:21-5(b). After the disqualification period expired, Atamy would have been eligible for unemployment benefits, had she contacted the agency to report her weekly benefits, for the time period of 2 A-3895-15T3 October 26, 2013 to December 7, 2013.1 Atamy mistakenly believed she was ineligible to receive unemployment benefits while she was awaiting her second appeal hearing before the Tribunal and therefore did not report her ongoing employment status during that time. Atamy sought to retroactively claim her unemployment benefits for October 13, 2013 to December 7, 2013. A Department of Labor and Workforce Development deputy held Atamy was ineligible for benefits during this time period because she had failed to report. Atamy appealed and the Appeal Tribunal held a telephonic hearing. Atamy, who was then self-represented, testified she did not receive the Department of Labor and Workforce Development's unemployment handbook, which is customarily provided to claimants at the outset of an unemployment claim. Atamy further stated she did not know she was supposed to claim benefits during the pendency of her appeal. Atamy explained she never had claimed unemployment benefits previously and was unfamiliar with the process. Atamy also testified she did not recall receiving the Notice of Receipt of Appeal, a document which instructs claimants to continue claiming benefits while awaiting an appeal hearing. 1 On December 5, 2013, Atamy took a new job, therefore ending her period of potential eligibility. 3 A-3895-15T3 Significantly, the appeal examiner never confirmed proof of the date the Notice of Receipt of Appeal was supposedly mailed to Atamy.2 The Appeal Tribunal agreed with the deputy's determination, finding that the Notice of Receipt of Appeal, which it presumed had been timely sent, provided sufficient notice of Atamy's obligation to continue claiming benefits during the pendency of her appeal. The Tribunal held Atamy was ineligible for unemployment benefits from October 13, 2013 to December 7, 2013. Atamy appealed the Appeal Tribunal's determination to the Board. The Board summarily affirmed that ruling. Atamy sought to reopen the Board's decision because she had not received at least two of the three documents ordinarily provided by the Department of Labor and Workforce Development explaining the procedure for claiming unemployment benefits while awaiting an appeal hearing.3 The Board nonetheless denied Atamy's request to reopen the matter. 2 Atamy subsequently retained counsel and learned the Notice of Receipt of Appeal actually was not sent by the agency until December 27, 2013, well after the expiration of her unemployment claim period. 3 There are three documents that are supposed to be provided to individuals who file for unemployment benefits: the unemployment handbook, posted on the Department of Labor and Workforce Development's website; the Notice of Receipt of Appeal; and the Notice of Determination. 4 A-3895-15T3 Atamy filed an appeal with this court. She also filed a motion to remand the matter to the Board to address inaccuracies in the Board's decision. On October 13, 2016, we granted Atamy's unopposed motion for a remand to the Board to consider the additional submissions. The Board remanded the case to the Appeal Tribunal to conduct another hearing on Atamy's retroactive unemployment benefits claim. Atamy reiterated her prior testimony that she did not receive the unemployment handbook and did not recall receiving the Notice of Receipt of Appeal. Because the appeal examiner was unable to confirm on remand the date the Notice of Receipt of Appeal was mailed to Atamy, the Appeal Tribunal instead focused its denial of unemployment benefits on the Notice of Determination sent to Atamy on October 21, 2013. Atamy testified that she did receive the Notice of Determination but did not recall reviewing the instructions on the reverse side of that notice. The Tribunal consequently held that Atamy was ineligible for unemployment benefits from October 13, 2013 to December 7, 2013 because she failed to claim her benefits without good cause. The Board summarily affirmed the Appeal Tribunal's decision. On appeal, Atamy argues she had good cause for not claiming unemployment benefits because she did not receive adequate notice 5 A-3895-15T3 of her obligation to continue claiming entitlement to benefits while her appeal was pending. She does not contest the denial of benefits for the earlier period of September 1, 2013 to October 26, 2013 founded on work-related misconduct. Our review of an administrative agency's final decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We reverse an agency's determination only if it is arbitrary, capricious, unreasonable, or unsupported by substantial credible evidence. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). "[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We acknowledge that we owe considerable deference to the Board in administering our state's unemployment compensation laws. Ibid. Nevertheless, based on the discrete chronology of this case, we conclude the agency misapplied the relevant legal standards and acted arbitrarily, capriciously, and unreasonably in rejecting appellant's claim with respect to her eligibility for the limited period of October 26, 2013 to December 7, 2013. 6 A-3895-15T3 The primary issue on appeal is the adequacy of the agency's notice to Atamy that she needed to report her unemployment status, while her appeal was pending, to be eligible for continuing benefits. Atamy testified, without contradiction, that she never received the unemployment handbook and did not timely receive the Notice of Receipt of Appeal and therefore was unaware of the obligation to continue to report. The unemployment handbook from the agency provides an overview of the unemployment benefits process and procedure. At the time Atamy was eligible for unemployment benefits, the handbook was no longer being mailed to claimants. Instead, claimants are now directed to download the handbook from the agency's website.4 The online handbook, in a stand-alone text box, expressly and conspicuously instructs claimants to continue claiming benefits during the pendency of an appeal. Nor did Atamy timely receive the Notice of Receipt of Appeal. The Notice of Receipt of Appeal typically is sent to claimants one to two weeks after filing an appeal with the Appeal Tribunal. This document explicitly instructs claimants to continue claiming 4 We express here some misgivings regarding the effectiveness of the Department of Labor and Workforce Development's "web notification," directing claimants to download the handbook instead of mailing the document to claimants, without some mechanism for verifying that the claimant received the handbook. 7 A-3895-15T3 benefits while awaiting an appeal hearing. The Notice of Receipt of Appeal states: Claiming Benefits: While you are waiting for your appeal, and as long as you are unemployed, you must continue to claim your continued weeks of unemployment benefits every two weeks. If you do not claim every two weeks, you may lose your benefits even if the Appeal Tribunal decides in your favor. The Board does not dispute Atamy's contention on appeal that the Notice of Receipt of Appeal, which should have been mailed in early November, was not mailed until December 27, 2013, after her unemployment claim period expired. The late Notice of Receipt of Appeal rendered the notice ineffective as to Atamy's benefits claim. While Atamy received the Notice of Determination, that document fails to prominently explain the procedure for claiming benefits while awaiting an appeal hearing. Unlike the Notice of Receipt of Appeal, the Notice of Determination does not contain bolded or highlighted information regarding a claimant's obligation to continue claiming benefits while awaiting an appeal hearing. Significantly, the Notice of Determination contains information concerning a claimant's obligations only on the reverse side of the document and it is not prominently delineated. An individual is unlikely to review the back of the Notice of Determination because the front of the document advises that the 8 A-3895-15T3 claimant is disqualified from receipt of benefits and provides information as to when and where a claimant must file an appeal. N.J.A.C. 12:17-4.1(b) governs the processing of claims for receipt of unemployment benefits. In accordance with this regulation: An individual who fails to report as directed will be ineligible for benefits unless, pursuant to a fact-finding hearing, it is determined that there is "good cause" for failing to comply. For the purposes of this subchapter, "good cause" means any situation which was substantial and prevented the claimant from reporting as required by the Division. [N.J.A.C. 12:17-4.1(b).] Having reviewed the record under the particular circumstances in this case, we find Atamy met the good cause standard for failing to report because she did not receive the unemployment handbook and did not timely receive the Notice of Receipt of Appeal. If the Notice of Determination alone were sufficient to inform a claimant of his or her continuing obligation to claim unemployment benefits while awaiting an appeal hearing, the agency would not need to direct claimants to review the unemployment handbook and convey an explicit and bolded instruction in the Notice of Receipt of Appeal. Based on the foregoing, the Board's decision was arbitrary and capricious, warranting reversal of the Board's denial of 9 A-3895-15T3 Atamy's unemployment benefits from October 26, 2013 to December 7, 2013. The Board shall pay to Atamy her unemployment benefits for October 26, 2013 to December 7, 2013, less the $2,754 sum Atamy received in benefits from September 1, 2013 to October 26, 2013, when she was disqualified from receipt of unemployment benefits. Reversed and remanded for the entry of relief consistent with this opinion. We do not retain jurisdiction. 10 A-3895-15T3

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Docket No.: a4137-16
Decided: 2018-08-07
Caption: DEANACYNAR v. LOUIS CEREFICE
Status: unpublished
Summary:
PER CURIAM Defendant Louis Cerefice appeals from two orders of the Family Part dated February 22 and April 28, 2017, and plaintiff Deana Cynar cross-appeals from the April 28, 2017 order. For the reasons that follow, we affirm the trial court's decision. We discern the following facts from the record on appeal. The parties were married in 2005 and divorced on April 17, 2015, after entering into a marital settlement agreement (MSA) incorporated into a Dual Final Judgment of Divorce. Under the MSA, defendant was obligated to pay plaintiff limited duration alimony of $30,000 per year, payable in $1250 bi-monthly installments, for five years. The alimony was based on plaintiff earning approximately $88,000 per year and defendant earning approximately $200,000 per year. In May 2016, defendant learned his employment would be terminated effective May 31, 2016. The employer agreed to pay severance of $185,525 through November 2016. He also received a payment of $28,255.67 for unpaid bonuses and was eligible for another lump sum payment for unused vacation days. On October 25, 2016, defendant moved to suspend his alimony obligation because he was unemployed. On December 1, 2016, plaintiff cross-moved asking the court to deny defendant's motion in its entirety, enforce the MSA, and for attorney's fees. She also advised the court that she recently lost her job. 2 A-4137-16T1 While his motion was pending, defendant made no alimony payment for December 2016. For January and February 2017, defendant, on his own initiative, paid a reduced alimony of $833 per month. However, by December 9, 2016, defendant had obtained new employment with a salary of $108,000 and bonus potential. He did not notify the court or submit an updated certification. Rather, plaintiff's counsel informed the court by letter dated February 7, 2017. The letter also advised the court that plaintiff found new employment with a $75,000 salary. The trial court denied defendant's motion to suspend his alimony obligation and awarded plaintiff $1000 in partial attorney's fees on February 22, 2017. The court explained defendant did not show changed circumstances warranting a suspension of his alimony obligation, noting his severance only recently ran out in November 2016. The court further noted defendant obtained a new job between filing his motion and oral arguments, but he did not inform the court. On March 6, 2017, defendant moved for reconsideration or alternatively, to stay the February 22 order. Plaintiff cross- moved for, among other things, attorney's fees. Defendant filed a reply certification, wherein he advised the court he accepted another new job with a base salary of $172,000. 3 A-4137-16T1 On April 28, 2017, the court denied defendant's motion and awarded plaintiff an additional $2500 in attorney's fees. The judge determined defendant did not satisfy his burden for reconsideration pursuant to Rule 4:49-2. The court also further explained its reasoning for denying defendant's initial motion to suspend his alimony obligation, stating the motion was premature because although defendant's job ended in May 2016, he received severance equal to his full salary through November 2016. The court found defendant's employment circumstances were only temporary and did not warrant modification. Defendant failed to present significant evidence of his job search efforts and did not provide the court with information regarding his newly obtained job. The court granted plaintiff's request for additional attorney's fees because defendant's motion was premature and defendant violated litigant's rights by engaging in self-help and failing to pay the appropriate alimony. This appeal followed. Our scope of review of Family Part orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Due to "the special jurisdiction and expertise of the family court," we defer to factual determinations made by the trial court as long as they are "supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Cesare, 154 N.J. at 413). 4 A-4137-16T1 We will not disturb the fact-findings of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 151 (App. Div. 2003) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "[D]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare, 154 N.J. at 412). Absent compelling circumstances, we may not substitute our judgment for that of the trial court, which has become familiar with the case. Schwartz v. Schwartz, 68 N.J. Super. 223, 232 (App. Div. 1961). I. Defendant argues now that on the initial return date of his motion, his annual income had substantially decreased to mere unemployment benefits, which impaired his ability to support himself. He contends he was unemployed for over six months since he was terminated in May 2016 and did not obtain a new job until December 2016. Defendant contends the motion judge erred by declining to hold a plenary hearing because there was prima face proof of changed circumstances. We disagree. 5 A-4137-16T1 Under the MSA, defendant agreed to pay plaintiff limited duration alimony in the sum of $30,000 per year, payable in $1250 bi-monthly installments, for five years. It further provided the alimony obligation "shall be subject to modification or suspension . . . as permitted by New Jersey statutory or case law." Accordingly, the onus was on defendant to demonstrate changed circumstances in order to suspend his alimony obligation. J.B. v. W.B., 215 N.J. 305, 327 (2013) (citing Lepis v. Lepis, 83 N.J. 139, 146-48 (1980)) ("When a party to a comprehensive negotiated [MSA] seeks to modify any support obligation, that party must meet the threshold standard of changed circumstances."). Changed circumstances that justify an increase or decrease of support include an increase in the cost of living, an increase or decrease in the income of the supporting or supported spouse, cohabitation of the dependent spouse, illness or disability arising after the entry of the judgment, and changes in federal tax law. Lepis, 83 N.J. at 151. Temporary circumstances are an insufficient basis for modification. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). The decision to modify or suspend an alimony obligation "based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citations omitted). "There is, of course, 6 A-4137-16T1 no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation." Id. at 23. Rather, "such matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented, which we do not disturb absent an abuse of discretion." Ibid. The threshold issue in determining whether to hold a plenary hearing is if "the movant has made a prima facie showing that a plenary hearing is necessary." Hand v. Hand, 391 N.J. Super. 102, 106 (App. Div. 2007). The trial court's determination defendant failed to illustrate a prima facie case of changed circumstances warranting a plenary hearing is supported by competent evidence in the record. The record reveals defendant continued to receive substantially the same income as contemplated in the MSA. As such, he has not shown an inability to pay and the judge's sound decision to deny him a plenary hearing was not an abuse of discretion. II. We further reject defendant's assertion that the motion judge abused her discretion in awarding plaintiff partial attorney's fees. The record demonstrates his bad faith. However, we also reject plaintiff's cross-appeal, arguing the motion judge should have awarded her full attorney's fees because defendant's motion 7 A-4137-16T1 for reconsideration was baseless, defective, and filed in bad faith. Plaintiff argues defendant earns significantly more money than her, and while he had a period of unemployment, he continued to receive severance equal to his previous salary. She contends that he improperly engaged in self-help in modifying alimony, twice failed to inform the court of new employment, purposely omitted relevant information from his applications to the court, filed a motion for changed circumstances while still receiving his base salary in the form of severance, and filed a motion for reconsideration without any basis. "An award of counsel fees is only disturbed upon a clear abuse of discretion." J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012) (quoting City of Englewood v. Exxon Mobile Corp., 406 N.J. Super. 110, 123 (App. Div. 2009)). We "will disturb a trial court's determination on counsel fees only on the 'rarest occasions, and then only because of a clear abuse of discretion.'" Ibid. (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Rule 4:42-9(a)(1) states "[n]o fee for legal services shall be allowed . . . except [i]n a family action . . . pursuant to Rule 5:3- 5(c)." Here, plaintiff requested an award of $5881.25 in counsel fees and costs for defendant's motion for reconsideration. The motion judge awarded plaintiff $1000 in partial attorney's fees 8 A-4137-16T1 for defendant's initial motion and an additional $2500 for the motion for reconsideration. Plaintiff has not demonstrated the motion judge abused her discretion in awarding partial attorney's fees. Affirmed. 9 A-4137-16T1

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Docket No.: a4342-16
Decided: 2018-08-07
Caption: STATEOF NEW JERSEY v. WENDELL FLEETWOOD
Status: unpublished
Summary:
PER CURIAM Defendant Wendell Fleetwood appeals from the May 8, 2017 Law Division order denying his petition for post-conviction relief (PCR), including his application to withdraw his guilty pleas, without an evidentiary hearing. We affirm because defendant’s petition is time barred under Rule 3:22-12(a)(1), and otherwise lacks merit. On August 10, 2005, defendant sold an undercover officer two bags of heroin for twenty dollars. After a short foot pursuit, officers arrested defendant; a search incident to his arrest revealed no other contraband. A grand jury indicted defendant for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1)/2C:35-5(b)(3); third- degree possession of CDS with intent to distribute within 1000 feet from a school, N.J.S.A. 2C:35-7; and second-degree certain locations, N.J.S.A. 2C:357.1/2C:35-5. His trial ended in a mistrial, and the court ultimately dismissed the indictment pursuant to a later plea agreement. In a separate incident on February 17, 2006, an undercover officer witnessed defendant and another individual twice sell CDS. Officers arrested both men and discovered thirty-three zip lock bags containing heroin under a piece of wood where they had previously witnessed defendant retrieve several items. A grand jury indicted defendant on the same offenses as the previous indictment, and also on fourth-degree resisting arrest, N.J.S.A. 2 A-4342-16T3 2C:29-2(a); and third-degree conspiracy/distribution of CDS N.J.S.A. 2C:5-2/2C:35-5(a)(1). Lastly, on September 13, 2006, undercover officers witnessed several drug transactions and arrested defendant for allegedly directing buyers to the seller. An accusation charged defendant with third-degree possession with intent to distribute, N.J.S.A. 2C:35-5. In October 2006, pursuant to a plea agreement, defendant pled guilty to two counts of third-degree possession of CDS with intent to distribute. In return, the State dismissed all remaining charges. At his plea hearing, defendant informed the court he understood his rights, entered his pleas voluntarily without threat or coercion, truthfully answered the plea form questions, and was satisfied with his plea counsel. In December 2006, the court sentenced defendant to concurrent three-year prison terms on both counts pursuant to his plea agreement. Defendant did not file a direct appeal. In October 2016, nearly ten years after his sentencing, defendant filed a petition for PCR and a motion to vacate his guilty pleas, alleging ineffective assistance of counsel. The court denied his petition without an evidentiary hearing on May 8, 2017, finding the petition procedurally barred and otherwise 3 A-4342-16T3 without merit. The court also denied defendant's motion to withdraw his guilty plea. Defendant now appeals, raising the following arguments: POINT ONE THE PCR COURT ERRED BY DENYING MR. FLEETWOOD'S MOTION TO WITHDRAW HIS PLEA. POINT TWO MR. FLEETWOOD IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. POINT THREE THE PCR COURT ERRONEOUSLY RULED THAT MR. FLEETWOOD'S PETITION WAS TIME BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND THERE IS A REASONABLE PROBABILITY THAT IF THE DEFENDANT'S FACTUAL ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE. I Rule 3:22-12(a)(1) precludes PCR petitions filed more than five years after entry of a judgment of conviction unless the delay was "due to defendant's excusable neglect and . . . there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice . . . ." R. 3:22-12(a)(1)(A). To establish “excusable neglect,” a defendant must demonstrate "more than simply . . . a plausible explanation for a failure to 4 A-4342-16T3 file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Under Rule 1:1-2(a), a court may disregard the time bar when the defendant demonstrates an injustice by a preponderance of the credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992) (citation omitted). However, courts only relax the time bar in extraordinary or exceptional circumstances, considering "the extent and cause of the delay, the prejudice to the State, and the importance of the [defendant’s] claim in determining whether there has been an ‘injustice’ sufficient to relax the time limits." Id. at 580. "Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay." Ibid. Defendant contends he demonstrated excusable neglect, and rigid enforcement of the time bar will result in a fundamental injustice. Specifically, he claims the trial court and plea counsel failed to advise him he could file a motion to withdraw his guilty plea or that he could file a PCR petition within five years of his conviction. In the present case, defendant’s sentencing hearing occurred in December 2006. He did not file his PCR petition until October 2016, almost ten years later, and well beyond the time bar. Moreover, the court and plea counsel had no obligation to advise 5 A-4342-16T3 defendant of the PCR time limitations in 2006 or the ability to file a PCR petition or to withdraw a guilty plea. Defendant’s ignorance of the law does not constitute excusable neglect. State v. Murray 162 N.J. 240, 246 (2000). Therefore, defendant failed to show his delay was due to excusable neglect. II To establish a claim of ineffective assistance of counsel, defendants must satisfy a two-part test: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Similarly, when a defendant claims ineffective assistance in connection with a guilty plea, he or she must show: "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and . . . 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nuñéz-Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant 6 A-4342-16T3 material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012). When a defendant raises a claim for ineffective assistance of counsel in support of PCR, the judge should grant an evidentiary hearing "if [the] defendant has presented a prima facie claim in support of [PCR]." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim, "defendant must allege specific facts and evidence supporting his allegations," and "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Porter, 216 N.J. 343, 355 (2013); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The defendant must also “demonstrate the reasonable likelihood of succeeding under" the two-prong Strickland test. Preciose, 129 N.J. at 463. Applying these standards, we conclude defendant failed to demonstrate a prima facie showing of ineffective assistance of plea counsel. Defendant asserts his counsel failed to investigate his case adequately and pressured him to plead guilty; however, defendant fails to identify any exculpatory evidence his counsel could have uncovered upon further investigation. Defendant also argues he pled guilty due to the short retrial date, the prosecutor’s bail motion, and the imminent birth of his child. Defendant provides no basis for attributing those reasons to his 7 A-4342-16T3 counsel. In addition, if counsel did advise defendant to plead guilty, defendant failed to indicate that advice was outside the broad range of counsel’s discretion. Moreover, defendant failed to show that but for counsel’s errors, if any, he would not have pled guilty. Therefore, we affirm the PCR court’s denial of defendant’s PCR petition without an evidentiary hearing because defendant failed to make a prima facie showing of ineffective assistance of plea counsel. III In deciding defendant's motion to withdraw his guilty pleas, the PCR court addressed the four Slater factors: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009). Because post-sentence motions to withdraw a plea must demonstrate that a "manifest injustice" occurred, "efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons." Id. at 158, 160 (citing R. 3:2-1). "Following sentencing, if a defendant seeks to withdraw a guilty plea, the court weighs more heavily the State's interest in finality and applies a more 8 A-4342-16T3 stringent standard." Norman, 405 N.J. Super. at 160 (citing State v. McQuaid, 147 N.J. 464, 487 (1997)). In the present case, the record supports the PCR court's finding that defendant failed to satisfy the Slater factors. The judge properly evaluated the relevant facts to find no basis for a colorable claim of innocence, including defendant’s voluntary guilty plea and defendant's failure to provide any evidence of innocence beyond his own statements. Defendant also failed to present a compelling reason for withdrawal. Further, defendant entered into a generous plea bargain for two counts of possession with intent to distribute in the face of eleven charges spanning two indictments and an accusation. Withdrawal of defendant's guilty plea would result in unfair prejudice to the State given the significant length of time between defendant's plea and his request. Evidence in the case was largely testimonial and memories of witnesses most likely have faded. Accordingly, we affirm the PCR court's determination that defendant failed to meet the high burden of manifest injustice regarding his request to withdraw his guilty plea. Affirmed. 9 A-4342-16T3

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Docket No.: a5488-15
Decided: 2018-08-07
Caption: OFCHILD PROTECTION AND PERMANENCY v. N.M and W.F IN THE MATTER OF S.F., a Minor
Status: unpublished
Summary:
PER CURIAM Following a fact-finding hearing in this Title Nine action initiated by the Division of Child Protection and Permanency, the court found defendant W.F. (father) had physically abused his six-week old daughter (baby or child). After the hearing, the court entered an order of protection, see N.J.S.A. 9:6-8.55, restraining the father from having contact with the child until she turns age eighteen. However, the order also provides: [I]f [the father] seeks to modify the order of protection to allow for parenting time, [the father] shall show that he complied with all of the recommendations contained in the risk assessment completed by Dr. Alan Gordon and that there is a change in circumstances. The father appeals from this order. After reviewing the record and the applicable legal principles, we affirm in part and reverse in part. During the fact-finding hearing, the uncontroverted testimony provided by one of the baby's treating pediatricians 2 A-5488-15T1 was that, while under the father's care, the baby sustained a transverse, displaced fracture to her right femur; significant bruising to her buttocks and about her face and eyes; and intracranial bleeding. The doctor stated the injuries were not caused accidentally but by a "physical assault on the child multiple times." The father did not testify or offer any evidence. As stated, the court found the father physically abused his daughter. Specifically, the court found the father committed an act of abuse in violation of N.J.S.A. 9:6- 8.21(c)(4)(b). The father does not challenge that finding. He appeals from only the order of protection. Before the fact-finding hearing, psychologist Alan Gordon, Ed.D., examined the father and discovered he had been diagnosed with bipolar disorder, manic type, with schizophrenic tendencies, for which he was taking medication. Gordon concluded that if the father did not take his medication for these afflictions "the risk toward children would be high." Gordon recommended the father take medication, engage in psychotherapy, and complete parenting skills classes. It is not disputed these recommendations are those to which the order of protection refers. On appeal, the father contends the order of protection effectively terminates his parental rights to his daughter 3 A-5488-15T1 without due process, because he cannot have any contact with her until she turns eighteen years of age, unless he meets the conditions set forth in the order. He also argues the order interferes with his constitutional right to have parenting time. In general, parents have a constitutionally protected right to enjoy a relationship with their children and to raise them without State interference. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). However, this right is not absolute, as it is limited by the "State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). Yet, notwithstanding the State's responsibility to protect children, a party's parental rights cannot be eliminated unless, following a trial and the implementation of other procedural protections, the State proves the four factors in N.J.S.A. 30:4C-15.1 by clear and convincing evidence.1 1 These four factors are: (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship; (continued) 4 A-5488-15T1 Here, by entering an order prohibiting the father from having any contact with his daughter until she turns eighteen, the court effectively terminated the father's parental rights, and did so without affording him the due process protections to which he is entitled. Before a parent's rights to his or her child can be terminated by the court, among other things, a parent is required to be served with a petition to terminate his or her parental rights and to be provided with counsel, if the parent is eligible. A trial must be conducted, during which the State bears the burden of proving all of the factors in N.J.S.A. 30:4C-15.1 by clear and convincing evidence. In this matter, (continued) (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. 5 A-5488-15T1 none of these measures was implemented. Defendant did not receive the benefit of the "comprehensive . . . judicial and legislative mechanisms . . . in place to gauge whether a parent's right to his child should be severed permanently . . . ." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010). The subject order does provide that if the father meets certain conditions, he may be able to see the child before she turns eighteen. However, unless the father prevails on a motion to obtain parenting time, he may not have any contact with her. Thus, the provision prohibiting the father from contacting the child is tantamount to terminating his parental rights and, for the reasons stated, such provision is impermissible under the law. We recognize that, during his daughter's childhood, the father may not make an effort to or cannot overcome his mental health challenges to the extent he would not place his daughter at risk were he to see her, even in a supervised setting. In that case, as a practical matter he would not be able to see his daughter until she were an adult. But he may not be prohibited from ever seeing his daughter on the basis of his conduct, despite how reprehensible it was, unless his parental rights are terminated in accordance with the law. Accordingly, we reverse 6 A-5488-15T1 and vacate the provision in the order that bars him from seeing his daughter until she turns eighteen. The father next argues the paragraph in the order that requires he comply with Dr. Gordon's recommendations and show a change in circumstances before he may have parenting time unduly interferes with his right to see his child. In general, parenting time between a child and parent is "the presumptive rule." V.C. v. M.J.B., 163 N.J. 200, 228 (2000). However, parenting time may be denied if a parent poses a risk of harm to the child. See Wilke v. Culp, 196 N.J. Super. 487, 503 (App. Div. 1984). Given the father's egregious behavior toward the child, this matter is one of those cases. The father brutally beat and inflicted significant injuries upon his six-week old daughter, and suffers from very serious mental health problems. Under these particular facts, the court did not violate the father's due process rights because it conditioned the father's eligibility for parenting time upon adhering to Dr. Gordon's recommendations. The fundamental purpose of Title Nine is to protect a child's safety, see N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 21 (App. Div. 2010), and N.J.S.A. 9:6-8.55 specifically authorizes the court to impose protections for the benefit of a child, including ordering that a parent have no contact with a 7 A-5488-15T1 particular child. N.J.S.A. 9:6-8.55(a). In sum, we discern no basis to disturb this provision of the court's order conditioning the father's parenting time. Affirmed in part and reversed in part. We do not retain jurisdiction. 8 A-5488-15T1

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Tax Court Cases

Docket No.: 015784-2014
Decided: 2018-08-07
Caption: MIKVAH ASSOC. V. TOWNSHIP OF TEANECK
Summary:
Because the subject property is reasonably necessary for the proper and efficient operation of the mikvah, defendant's motion for summary judgment is denied and plaintiff's motion for summary judgment is granted.

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Docket No.: 015784-2014o
Decided: 2018-08-07
Caption: Mikvah Association v. Township of Teaneck
Summary:
Because the subject property is reasonably necessary for the proper and efficient operation of the mikvah, Defendant’s motion for summary judgment is DENIED and Plaintiff’s motion for summary judgment is GRANTED. An order consistent with this opinion shall be entered in the record.

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Docket No.: 015784-2014o
Decided: 2018-08-07
Caption:
Summary:

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