DIVISION OF YOUTH AND FAMILY SERVICES v. D.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0081-05T40081-05T4

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.L.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF D.D.L., A MINOR.

________________________________________________________________

 

Submitted February 14, 2006 - Decided March 16, 2006

Before Judges Lintner and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-36-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gladys Moriarty, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Wilbur Van Houten, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor child (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, D.L., appeals from the Family Part's July 26, 2005 order denying his motion to vacate the March 28, 2005 default order of guardianship terminating his parental rights to his six-year-old son, D.D.L., and placing D.D.L. in the guardianship of the New Jersey Division of Youth and Family Services (DYFS). We affirm.

D.D.L. was born to A.C. and D.L. on December 11, 1999 at University Hospital in Newark. D.D.L. remained hospitalized due to testing positive for methadone and benzodiazepine. A.C. tested positive for methadone at the time of D.D.L.'s birth, and admitted to taking both heroin and cocaine during her pregnancy.

On August 25, 2003, DYFS filed a verified complaint in Essex County for an order granting it care, custody and supervision of D.D.L. At that time, D.D.L.'s maternal grandmother, B.C., had physical custody and D.L. had legal custody of D.D.L.

On September 4, 2003, the judge issued an Order to Show Cause for the appointment of a Law Guardian and for temporary custody of D.D.L., due to A.C.'s drug use and both A.C. and D.L.'s involvement in a "drug culture." In addition, the judge ordered both parents to submit to psychological evaluations, substance abuse evaluations and treatment and parenting skills training.

On July 23, 2004, DYFS filed a complaint for guardianship of D.D.L. At the time, D.D.L. was living with his paternal great aunt, G.R., and had been there since September 10, 2003. D.L. was transient at this time.

On October 18, 2004, D.L. was ordered to submit to a psychological evaluation the following day and return to court on October 25, 2004, for a case management conference. D.L. did not appear for the psychological evaluation. Case management conferences were held on October 25, 2004, December 13, 2004, and January 3, 2005. D.L. failed to attend any of these conferences.

On January 24, 2005, default was entered against D.L. and a proof hearing was scheduled for February 9, 2005. On February 9, 2005, D.L. appeared and was ordered again to attend a psychological evaluation, submit to a drug screen, and return on March 28, 2005, when the proof hearing would be held. D.L. was also informed by the judge that he needed to file a formal motion to vacate the default against him so that he could appear and defend against the guardianship action.

D. L. never filed a formal motion to vacate the default and he also failed to appear at the March 28, 2005 proof hearing. At the March 28, 2005 proof hearing, Judge Craig R. Harris heard testimony from DYFS caseworker Evelyn Gillon, and considered the sixty-eight exhibits admitted into evidence, including the psychological evaluation of D.L. performed on March 15, 2005 by Dr. Eric Kirschner, a licensed psychologist. The judge found that DYFS had proved by clear and convincing evidence the four prong "best interests of the child" test required by N.J.S.A. 30:4C-15.1a and entered an order on March 28, 2005, terminating D.L.'s parental rights and granting guardianship of D.D.L. to DYFS.

On June 29, 2005, D.L. filed a notice of motion pursuant to Rule 4:50-1 to vacate the default judgment terminating his parental rights. The notice of motion signed by D.L.'s attorney and D.L.'s affidavit in support of the notice of motion stated that D.L. was unable to attend the March 28, 2005 proof hearing because of the many changes in his recovery program. D.L. asserted that between October 2004 and June 29, 2005 he had "been in a series of programs including a methadone maintenance program, the Salvation Army and the Ready, Willing and Able program."

On July 26, 2005, the judge denied D.L.'s motion to vacate default judgment. D.L.'s notice of appeal of the July 26, 2005 order was filed September 2, 2005. D.L. presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING D.L.'S MOTION TO VACATE THE DEFAULT JUDGMENT TERMINATING PARENTAL RIGHTS.

POINT II

THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE SUPPORTING THE COURT'S FINDING THAT THE FIRST, SECOND, THIRD AND FOURTH RPONGS OF THE BEST INTERESTS TEST WERE PROVEN BY THE STATE.

After D.D.L.'s birth on December 11, 1999, D.L. was screened for drug use and tested positive for methadone. DYFS recommended D.L. undergo a drug assessment to determine his treatment needs. D.L. was again screened for drugs on February 9, 2000, at which time the results were negative.

On February 9, 2000, both D.L. and B.C. signed a case plan establishing B.C. as the primary caretaker for D.D.L., pending further drug screen results for D.L. On February 11, 2000, D.D.L. was released from the hospital and into the custody of D.L.

DYFS received an incident report on December 21, 2000 from staff at a YMCA shelter, where D.D.L. and D.L. had been residing, stating that D.L. had left D.D.L. alone in his room at the YMCA. D.L. admitted to using poor judgment on that night. DYFS received another incident report on February 8, 2002, from the manager of the Riviera Hotel, where D.L. and D.D.L. were then residing stating that "the father has gone out for the last two nights until 6:30 a.m. and has left the child alone in the room. Last night the child was crying and knocking on the room door. The situation was reported to hotel security who opened the door and got the child out." After that incident, DYFS requested that D.L. submit to a drug screen. As a result of D.L.'s failure to comply, DYFS recommended that the placement of D.D.L. with D.L. be re-assessed.

On March 20, 2002, DYFS received a report from the Division of Welfare that D.L. had been staying with D.D.L. in several shelters and had been evicted because of disruptive behavior. Thereafter, D.L. was instructed to come to the DYFS office to complete a drug screen and establish a case plan. D.L. failed to appear at the DYFS office for two scheduled appointments.

On August 1, 2002, D.L. signed a case plan in which he agreed to provide proper care, food and clothing for D.D.L. and to secure a new residence because he was still residing in the Riviera Hotel. DYFS attempted to provide services to D.L. but he refused assistance.

D.L. continued to reside at the Riviera Hotel until November 1, 2002, when he moved out without leaving a forwarding address. D.L. was located at B.C.'s home where he was also residing with D.D.L. and A.C. After performing a home assessment, D.D.L. was permitted to stay in that home provided that the grandmother would assume primary responsibility for D.D.L.'s supervision and welfare.

DYFS received a letter dated April 1, 2003, from Suburban Treatment Associates, stating that D.L. had been admitted into their program on July 1, 2002, and was being treated with methadone. However, D.L. ultimately reverted back to drug use. As a result, DYFS determined that D.D.L.'s safety in B.C.'s home became questionable.

D.D.L. was removed from his grandmother's home and placed with his paternal great aunt, G.R., on September 10, 2003 and resided there until August 31, 2004. G.R. failed to make required repairs in her home and as a result, D.D.L. was placed in the care of his present foster parents on August 31, 2004. His present foster parents have indicated a desire to adopt D.D.L.

On May 19, 2004, DYFS received a letter from D.L.'s drug treatment program at the Salvation Army, indicating that D.L. had been discharged from the program on May 9, 2004 because he left his treatment program without notice. When he sought re-admission on May 17, 2004, he screened positive for cocaine use. He was, therefore, denied re-admission.

On June 24, 2004, D.L. signed a copy of a DYFS case plan, advising him that "termination of parental rights is scheduled to commence unless tasks are completed." D.L. was then served with a verified complaint for guardianship on August 31, 2004. A psychological evaluation of D.L. was performed by Dr. Eric Kirschner on March 14, 2005, which indicated that D.L. lacked insight into his behavior and that he denied even the most common of human faults. Dr. Kirschner opined:

returning D.D.L. to the care of D.L. would expose the child to an unacceptable level of risk of harm. D.L. is not currently living in an appropriate or stable environment, and he does not currently have any type of means of employment.

. . . .

He significantly minimized both his and his wife's substance abuse, and repeatedly desired only to look forward, and to not have any unseemly aspects of his history incorporated.

. . . .

Overall, in conclusion, D.L. does not appear to be capable of providing a safe, appropriate and protective environment for his child at this time.

Judge Harris found:

the Exhibits have been appropriately qualified, relying upon the evidence presented, the testimony of Miss Gillon and the report of the Law Guardian, it is clear that all four prongs of the statute have been met by a standard of clear and convincing evidence.

. . . .

The Division has provided a host of services to assist the biological father, who has offered himself, although not consistently, as a resource. Unfortunately, the indication is that the last evaluation is not favorable to D.L.'s ability to parent the child.

D.L.'s motion to vacate default judgment was heard on July 26, 2005. In denying D.L.'s motion, the judge stated:

Mr. L. there is no question of this fact with respect to the fact that you love your child. Part of that love has to be expressed in terms of a concern for permanency for your child. And the reality of this - the facts of this case, are that you have not been there. You have not been there and able to assume a parenting role, not only month after month, but almost year after year.

. . . .

And, even today, as you stand there, you are not in a position to assume that primary role today. And that is really the test. There has to be a viable showing that - that, to vacate this judgment, would be upon the facts which are in issue with regard to an alternative plan. And as you stand here today, unfortunately you are not in that position.

. . . .

The proof hearing that was held on March [28], 2005, was only after an extended period of time in litigation, with the Court determining, at that time, that you have failed to put yourself in a position, within a reasonable period of time, to assume that role. And, again, this is -- there's no question with regard to your commitment to your child in terms of what your desires are and where your heart is, but it's the actions. . . that count. It is the dedication to permanency, the security that has been provided to your child, that the Court must consider first and foremost at this point. A promise that cannot be fulfilled today, is not the subject of an application that can be recognized by the Court.

D.L. attempted to reiterate to the judge that he was not going to be in his current position forever, and he was making strides to move forward. To this the judge replied:

I understand that you are in a position where you anticipate being in a better position as time goes on. And that's wonderful. But what I'm telling you, is that the law is that any child who has been in and out of home placement for fifteen of the last twenty-two months, must have their interests considered paramount. That is what the court looks at. That is what the court is directed to look at. That is the law. And, in this case, that has effected a permanency plan, that has been presented to you, with your having the benefit of counsel. And the court has considered the proofs and made its determination that the Division had met the burden of proof, that it had to terminate your parental rights.

I

D.L. first contends that the judge abused his discretion by not granting his motion to vacate the default judgment terminating his parental rights and awarding guardianship of D.D.L. to DYFS. In order to vacate a default judgment, the requirements of Rule 4:50-1 must be satisfied. D.L. argues that the circumstances of this case provide compelling justification for vacating the default judgment under the "catch-all" provision of Rule 4:50-1(f), stating that a party may seek relief from a judgment for "any other reason justifying relief from the operation of the judgment or order."

Although an application to vacate a default judgment should be "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached[,]" Marder v. Realty Constr. Co. 84 N.J. Super. 313, 319 (App. Div.) (citing Foster v. New Albany Machine & Tool Co., 63 N.J. Super. 262, 269-70 (App. Div. 1960)), aff'd, 43 N.J. 508 (1964), it is also well settled that the decision to vacate a default judgment is a matter firmly within the discretion of the trial court. See, e.g., Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) (citing Hodgson v. Applegate, 31 N.J. 29, 37 (1959)). Furthermore, a trial court's decision whether to vacate a default judgment is not to be disturbed except where a clear abuse of discretion has occurred. Ibid.

The application of Rule 4:50-1(f) has been addressed by our Supreme Court. See Court Inv. Co. v. Perillo, 48 N.J. 334 (1966). In Court Investment Co., the Court stated:

Such a motion under (f) is addressed to the discretion of the trial court. That discretion is a broad one to be exercised according to equitable principles, and the decision reached by the trial court will be accepted by an appellate tribunal in the absence of an abuse of its discretion. No categorization can be made of the situations which would warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice.

[Id. at 341 (emphasis added).]

The broad concern for equity is balanced by the importance placed on the finality of judgments; thus, relief under subsection (f) is available only when "'truly exceptional circumstances are present.'" Hous. Auth. of Morristown, supra, 135 N.J. at 286 (quoting Baumann [v. Marinaro, 95 N.J. 380, 395 (1984)]). The specific application of subsection (f) is guided by the particular facts of each case.

This court, in In re Guardianship of N.J., 340 N.J. Super. 558 (App. Div.), certif. denied, 170 N.J. 211 (2001), affirmed the trial court's order denying the defendant/mother's application to vacate the default judgment entered against her, terminating her parental rights. Id. at 561. This decision was based, in part, on the mother's "history of not appearing for court proceedings and of not maintaining contact with her attorney." Id. at 560. She had "failed to appear at nine of the eleven hearings concerning her children." Ibid. Additionally, the mother had "consistently refused to appear for court-ordered drug evaluations." Ibid. In fact, "she was specifically cautioned that she must stay in touch and let people know where she was or she could be subject to a default that might result in the loss of her children." Ibid.

Upon moving to vacate the default judgment entered against her, the mother claimed she did not know the trial date. Id. at 561. She claimed that she had been in Atlantic City on the trial date, and she "criticized her D.Y.F.S. caseworker for not letting her know the court date." Ibid. The trial court was "satisfied [she] had been given notice of the trial date and that she offered no sufficient reason for failing to appear[,]" noting the "inordinate length of time that the children had been in foster care." Id. at 561. This court concluded that, "there was no showing of a meritorious defense. [Her] only proffered reason for not appearing at the trial was that she had gone to Atlantic City and forgot the trial was scheduled." Id. at 559. "[T]he parent was well-aware of the possibility that failure to appear could result in entry of a default judgment terminating parental rights." Id. at 561.

D.L. failed to appear at hearings scheduled on October 18, 2004, October 25, 2004, December 13, 2004, January 3, 2005, and March 28, 2005, the date default judgment granting DYFS guardianship of D.D.L. was granted. While D.L. did appear before the court on February 9, 2005, amid his string of absences, he failed to maintain proper contact with his attorney. Although a proof hearing was scheduled for February 9, 2005, the judge postponed the hearing until March 28, 2005, and notified D.L., on the record, that a formal motion to vacate the default against him must be filed. D.L. never filed such a motion, and also failed to appear on March 28, 2005. D.L.'s only defense, as contained in his affidavit in support of his motion to vacate default judgment, was that he was attending drug rehabilitation programs at the time, preventing him from being present.

Rule 4:50-1 is to be used sparingly and in order to avoid a grave injustice. Hous. Auth. of Morristown, supra, 135 N.J. at 289. The broad discretionary powers of the trial court to grant a motion to vacate default judgment should be tempered with consideration of "evidence in the record that militates against the grant of relief[.]" Id. at 290.

D.L.'s explanations for missing the numerous court dates fall short of the exceptional circumstances to justify the vacation of default judgment in the interest of justice under Rule 4:50-1(f). Ultimately, D.L.'s position is that "he forgot." There is no further explanation or mitigating circumstances for D.L.'s consistent failure to comply with the scheduled hearings or DYFS' requirement of a psychological examination, which took several months for D.L. to complete.

At the time of the March 28, 2005 proof hearing, no substantive plan had been submitted by D.L., which would serve as an alternative to awarding guardianship to DYFS. On that date guardianship was granted to DYFS. However, D.L. did not file a formal motion to vacate default until three months later, on June 29, 2005.

During the hearing on the motion to vacate judgment, D.L. testified admirably about his drug treatment progression and the changes he had made to enable him to be a parent. However, the judge framed the issue before him as the need for permanency for D.D.L., not merely D.L.'s progress. D.D.L. had been in DYFS custody since September 4, 2003. D.L. had yet to demonstrate that he could provide D.D.L. with any amount of stability, but rather merely potential to provide for D.D.L. in light of his recent attempts at recovery.

Even if D.L.'s application were to be judged under Rule 4:50-1(a), excusable neglect, the default judgment will not be disturbed unless D.L.'s failure to answer or otherwise appear and defend was excusable under the circumstances and unless D.L. has a meritorious defense. Marder, supra, 84 N.J. Super. at 318. Without stating so explicitly, the judge essentially concluded that there was no excusable neglect or meritorious defense because D.L. was not in a position to take care of his son and had not participated in the essential programs required of him. The judge reiterated the requirements of the best interests of the child test and on that basis denied D.L.'s motion. We are satisfied that the judge's decision denying the motion to vacate default judgment was not an abuse of the judge's discretion and was based on substantial credible evidence in the record.

II

D.L. contends that the evidence did not support the judge's finding that DYFS proved by clear and convincing evidence the four prongs of the "best interests of the child" test codified in N.J.S.A. 30:4C-15.1a. The four prongs required to be proved by N.J.S.A. 30:4C-15.1a are:

(1) The child's health and development have been or will continue to be endangered by the parental relationship;

(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.

These criteria are overlapping, not isolated factors, and must all be met before parental rights are terminated. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). While parental rights are fundamental and constitutionally protected, they are not absolute in light of the state's parens patriae responsibility to protect children. Id. at 347. This balancing act is reflected by the four pronged "best interests of the child" standard. Ibid.

The first prong was met by virtue of D.D.L.'s having been born addicted to drugs and his continued subjection to his parents' involvement in the drug culture. Since D.D.L.'s birth, D.L. has not exhibited an ability to provide D.D.L. with a safe and stable home, principally because of D.L.'s continuing drug problems. D.L. has been shown to have left D.D.L. alone for extended periods of time on multiple occasions. D.L.'s instabilities led to his own transient lifestyle, moving from shelter to shelter, and eventually to D.D.L. being placed in foster care on September 10, 2003, first with G.R. and then on August 31, 2004 with his current foster parents.

Under the second prong, the focus is on whether the parent has rectified the risk which placed the child in danger and whether the ameliorative action would preclude such future danger or risk of harm. Id. at 352. In the alternative, the State must demonstrate that the parent is unable or unwilling to provide the child with a stable home and that delay in permanent placement will exacerbate the harm. Ibid. In New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 607 (1986), the Court looked to whether it was "reasonably foreseeable that the parent[] can cease to inflict harm upon" his child.

D.L., as of the date of the proof hearing, failed to provide evidence that he had a viable plan to parent D.D.L. and to provide him a stable and safe home. Indeed, at the hearing on his motion to vacate default judgment, D.L. again failed to demonstrate that he was presently prepared to provide D.D.L. with a stable home. D.L. merely offered a promise to do so in the future.

The third prong centers on DYFS' attempts to provide ameliorative services to D.L. DYFS must have made "reasonable efforts" to reunify D.L. with D.D.L. DYFS made referrals to numerous community services including parenting classes, employment training, drug and psychological evaluations and treatment. D.L. also signed a case plan agreeing to comply with all court ordered steps and tasks. DYFS evaluated friends and relatives of D.L. as potential placements for D.D.L.

Although D.L. has apparently complied with a portion of these referrals, he has ultimately failed to establish stable housing for D.D.L. Additionally, the psychological evaluation performed on D.L. undermines D.L.'s contentions that he is ready to competently fulfill the role as D.D.L.'s parent. D.L. continues to battle with drug abuse, which detracts from his ability to parent.

The fourth prong of the "best interests" test is the determination of whether the termination of parental rights will do more harm than good. It is not imperative to show that no harm will come from severing a child's ties with a biological parent but rather whether the termination of parental rights will not do more harm than good. K.H.O., supra, 161 N.J. at 355. The psychological evaluation performed on D.L. concludes that returning D.D.L. to D.L. would subject the child to an unacceptable risk of harm. The evaluation also focuses on D.L.'s inability to provide a stable home for D.D.L. Adoption by D.D.L.'s foster family will, however, provide the permanency D.D.L. needs.

We are convinced that all four prongs of the best interests of the child standard were proved by DYFS by clear and convincing evidence. The judge's decision terminating D.L.'s parental rights was based on substantial credible evidence in the record. See Cesare v. Cesare, 154 N.J. 394, 412 (1998).

 
Affirmed.

The March 28, 2005 default order also terminated the parental rights of A.C., D.D.L.'s biological mother. A.C., however, has not brought a motion to vacate the March 28, 2005 order.

We note that D.L.'s affidavit in support of motion to vacate default judgment contained in the appendix to defendant's brief as exhibit Da 13 is neither signed and dated nor acknowledged by his attorney.

(continued)

(continued)

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A-0081-05T4

RECORD IMPOUNDED

March 16, 2006