NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4246-05T44246-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

K.C.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF D.C. and K.W.,

Minors.

_________________________________________

 

Submitted September 20, 2006 - Decided October 12, 2006

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-273-04 and FG-07-238-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill G. Viggiano, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors D.C. and K.W. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.C. appeals from a January 31, 2006 order denying his motion to vacate a default judgment order entered on October 19, 2005, which terminated his parental rights to his six-year-old son, D.C., and to his three-year-old daughter, K.W., and placed the two children in the guardianship of the New Jersey Division of Youth and Family Services (DYFS). We affirm.

D.C. was born to N.C. and K.C. on May 16, 1999, while K.W. was born to K.C. and Keisha W. on July 28, 2003. Both children tested positive for drugs at birth and both have been in out-of-home placement for most of their lives. Moreover, K.W., at birth, experienced drug withdrawal symptoms and was diagnosed with other medical complications. She remained hospitalized for the next five months. On March 5, 2004, DYFS filed a verified complaint for an order terminating the parental rights of Keisha W. and K.C. to K.W. DYFS filed a second verified complaint on April 12, 2004, seeking to terminate the parental rights of N.C. and K.C. to D.C. Because K.C. is the biological father of both children, the court consolidated the complaints for trial purposes.

Subsequent to the filing of the complaints, K.C., despite having notice, failed to appear for the pretrial proceedings scheduled for March 25, April 10, June 7, and August 25, 2005. As a result, default was entered against K.C. On October 6, 2005, one day before the proof hearing was scheduled to commence, K.C. contacted the DYFS caseworker assigned to the matters and left an updated telephone number. The caseworker attempted to contact K.C. but was unsuccessful. The next day, K.C. did not appear for the proof hearing.

At the conclusion of the proof hearing, the judge, having considered the testimony and records introduced, concluded that DYFS, by clear and convincing evidence, had satisfied the four-prong test for termination of K.C.'s parental rights pursuant to N.J.S.A. 30:4C-15.1.

On January 26, 2006, K.C. moved to vacate the judgment. The motion did not set forth the specific grounds for relief; however, the court afforded the application the most liberal construction and considered the motion under R. 4:50-1(e), ". . . it is no longer equitable that the judgment or order should have prospective application," and under R. 4:50-1(f), "any other reason justifying relief from the operation of the judgment or order." In doing so, the court reviewed the history of the proceedings and the factual record underlying its original decision. The court also considered K.C.'s most recent letters sent directly to the court and the undated certification from his attorney. Citing In re Guardianship of J.N.H., 172 N.J. 440 (2002), the court found neither changed nor exceptional circumstances that would justify relief under either subsections (e) or (f) of the rule. The present appeal followed.

I.

An application to vacate a default judgment is "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.), aff'd 43 N.J. 508 (1964). This is particularly true where an action is commenced to terminate parental rights. N.J. Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 434 (App. Div. 2001). The need to accomplish an equitable and just result is balanced against the need to encourage finality in judgments. J.N.H., supra, 172 N.J. at 474. In such cases, there is the additional consideration of a child's stake in a future that is tied to stability and permanency. In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999).

The decision to grant or deny a motion for relief pursuant to R. 4:50 is committed to the sound discretion of the trial court, "guided by equitable principles." Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). That decision "will be left undisturbed unless it represents a clear abuse of discretion." Ibid.

A motion to vacate a default judgment under subsection (e) must be supported by evidence of changed circumstances. F.B. v. A.L.G., 176 N.J. 201, 208 (2003); while a motion for relief pursuant to subsection (f) requires the movant to demonstrate exceptional circumstances for the relief. Ibid. Ultimately, in a parental termination case, whether the motion is brought under (e) or (f), the primary issue is not whether the movant was vigilant in attempting to vindicate his or her rights or whether the claim is meritorious, but "what effect the grant of the motion would have on the child." J.N.H., supra, 172 N.J. at 475.

As Justice Long noted in J.N.H.:

The very purpose of a Rule 4:50 motion is not, as in appellate review, to advance a collateral attack on the correctness of earlier judgment. Rather, it is to explain why it would no longer be just to enforce that judgment. The issue is not the rightness or wrongness of the original determination at the time it was made but what has since transpired or been learned to render its enforcement inequitable.

[Id. at 476.]

Here, the trial judge determined that the best interests of the two children would be jeopardized if the motion was granted. He noted that K.C.'s prior history with DYFS consistently reflected failed attempts at substance abuse rehabilitation, housing and employment instability, non-compliance with DYFS' case plans, and sporadic visitation with K.W. and D.C. The judge concluded that nothing in the papers submitted in support of the motion evidenced changed or exceptional circumstances. We are satisfied the judge's decision denying the motion to vacate default judgment was not an abuse of his discretion and was based on substantial credible evidence in the record. F.B., supra, 176 N.J. at 211.

II.

K.C. contends DYFS failed to prove, by clear and convincing evidence, that terminating his parental rights was in the best interest of the children because DYFS failed to prove that he is unable to overcome any harm caused by the parental relationship. In addition, K.C. contends the trial court, in finding that termination of his parental rights would not do more harm than good, failed to acknowledge the harm inherent in permanently removing D.C. and K.W. from their biological father.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Any decision to terminate parental rights requires consideration of the four-part "best interest of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), now codified in N.J.S.A. 30:4C-15.1. The statute provides:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . . if the following standards are met:

(1) The child's safety, health or development has 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.

[N.J.S.A. 30:4C-15.1a.]

The four statutory criteria "are not discrete and separate." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.

Judicial determinations of whether DYFS has satisfied the statutory prerequisites to termination of parental rights are fact sensitive. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005). For the trial judge, who sits as the fact-finder, this process involves assessing credibility, which means that the trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses under both direct and cross-examination, consider any potential bias or prejudice of the witnesses, and then arrive at a determination of whether DYFS, by clear and convincing evidence, has met the four-part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).

On appeal, the factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As a reviewing court, our task is not to disturb the "'factual findings and legal conclusions of the trial judge unless [we are] convinced that 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)).

We have considered the arguments advanced on appeal in light of the record, and conclude the evidence clearly and convincingly establishes that the best interests of D.C. and K.W., when assessed under the statutory standards set forth in N.J.S.A. 30:4C-15.1a, warrant termination of K.C.'s parental rights. See K.H.O., supra, 161 N.J. at 348.

As to the first prong, the judge concluded K.C.'s contact with his children had been sporadic, particularly since the spring of 2005 and, by summer's end, K.C. had "functionally abandoned" them. Additionally, the judge found that K.C., as of April 26, 2005, had virtually severed all contact with DYFS. The judge concluded that by his own conduct, K.C. had demonstrated that "he either does not want his children in his custody or that he does not feel able to parent them," which "has caused both [K.W.] and [D.C] great harm." The judge also expressed concerns about K.C.'s sobriety, noting that K.C. had "failed to take several court ordered drug screens over a period of many, many months" and that "he had left, or quit, or been fired from many jobs over the last several months." The court concluded that the "harm [K.C.] has caused to his two children would continue if his parental rights were not terminated."

With respect to the second prong, the judge determined that the same factors of inability to maintain a stable living environment, employment instability, insobriety, and non-compliance with DYFS' mandates, demonstrated that K.C. was either "unwilling or unable to eliminate the harm [he has] caused [K.W.] and [D.C.]."

The judge found the third prong was met with evidence that over the years, DYFS, in an effort to reunite both D.C. and K.W. with K.C., had arranged psychological and bonding evaluations, urine screens, substance abuse treatment, supervised visitations, and housing referral assistance. In addition, the judge indicated that he considered all of the alternatives to termination of parental rights, including "long-term foster care and kinship legal guardianship and found none of them to be appropriate under the circumstances."

Finally, with respect to the fourth prong, the judge concluded that termination of K.C.'s parental rights would not do more harm than good. Here, the judge considered the undisputed evidence that D.C. had "firmly and positively bonded with his present caregiver, [R.J.]," and that K.W. had special needs which were being addressed through her placement in a Special Home Service Provider (SHSP) foster home, while K.C., whose whereabouts were unknown, had abandoned the children.

We are satisfied that DYFS proved all four prongs of the best interests of the child standard by clear and convincing evidence. Thus, the judge's decision terminating K.C.'s parental rights to D.C. and K.W. was based on substantial credible evidence in the record. See Cesare, supra, 154 N.J. at 412. Consequently, we are compelled to affirm.

Affirmed.

 

Default was entered against N.C., while Keisha W. appeared and defended the allegations in a trial conducted September 26, 28, and 29, 2005. The October 19, 2005, order also entered judgment against Keisha W. and default judgment against N.C. Neither N.C. nor Keisha W. has appealed the court's decision.

11

A-4246-05T4

RECORD IMPOUNDED

 

October 12, 2006