DIVISION OF YOUTH AND FAMILY SERVICES v. B.T.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6750-04T46750-04T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.T.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF G.L.D., R.D.

III, C.L.D., and B.R.D.,

Minors.

______________________________

 

Submitted April 25, 2006 - Decided July 13, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden County,

FG-04-111-04.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian for minors G.L.D., R.D. III, C.L.D.,

and B.R.D. (Olivia Belfatto Crisp, Assistant

Deputy Public Defender, of counsel and on the

brief).

PER CURIAM

B.T. appeals from the May 25, 2004, judgment of guardianship terminating her parental rights to four of her children: G.L.D., born August 29, 1998; twins R.D. III and C.L.D., born May 4, 2000; and B.R.D., born June 6, 2002. The judgment of guardianship also terminated the parental rights of R.D., Jr., the biological father of the four children.

At about 10 p.m. on February 25, 2003, Camden police were dispatched to 81 Rand Street after a report of a shooting. They met two young children in the doorway, two-year-old twins, C.L.D. and R.D. III, who directed them to a rear bedroom where they found B.T. lying on the floor in a pool of blood with a rifle lying at her feet. She was immediately taken to the hospital. Police discovered that a third child, four-year-old G.L.D., had witnessed the shooting and had run to a neighbor's home. G.L.D. told the police that her mother had shot herself. Further investigation confirmed that B.T. had attempted suicide. The Division of Youth and Family Services (DYFS) responded, and the children were placed with relatives.

On July 31, 2003, DYFS filed a complaint alleging abuse and neglect. Judge Robert W. Page ordered that the children be made wards of the court and placed them in DYFS' custody and further ordered that defendants B.T. and R.D., Jr., were to have counsel appointed to them. The children were then placed with their paternal aunt, Y.R., but were removed in October 2003, because Y.R. failed to comply with the kinship legal guardianship program and DYFS discovered she was a drug abuser. DYFS explored placing the children with other relatives without success. The maternal grandmother had a DYFS history. Another aunt had four or five children and was unable to accommodate B.T.'s children.

The initial plan was to reunite the children with their parents. However, it became apparent that B.T. and R.D., Jr. had substance abuse problems, and B.T. suffered from psychiatric problems. DYFS offered parenting skills classes, psychiatric and psychological evaluations, therapy, drug evaluations, and bus passes. However, both parents were basically non-compliant.

On November 20, 2003, the court entered a judgment of abuse and neglect against B.T. On February 19, 2004, the court ordered the DYFS to file a guardianship complaint within sixty days and terminated the abuse and neglect litigation. B.T. appeared at the proceeding and was represented by counsel.

On April 20, 2004, B.T. was served with a summons stating that the termination hearing would commence on May 24, 2004, and if she lacked sufficient funds, an attorney would be appointed to represent her free of charge upon application. The summons concluded with the sentence: "If you fail to appear at the specified time and place or respond within twenty days of receipt of this complaint, a judgment may be entered against you terminating your parental rights." B.T. was served with a copy of the guardianship complaint on April 27, 2004.

When B.T. failed to appear at the May 24, 2004, hearing, the Deputy Attorney General produced affidavits of service stating that B.T. had been personally served with the summons and complaint. Judge Page entered a default against B.T., and the matter proceeded. DYFS worker Carmelo Garcia testified as to the circumstances of DYFS's involvement, the placement of the children with relatives and subsequently with foster parents, that B.T. was non-compliant with services offered by DYFS, and that B.T. was aware of that day's proceedings. Mr. Garcia indicated the revised goal for the four children was adoption by the foster families with whom they lived and that the Child Placement Review Board agreed with that plan. He said the twins had been in their current foster home since October 2003, the other two children in the same foster home since January 2004, and there was sibling visitation between the two foster families. Both foster families had stated their intentions to adopt.

Placed in evidence at the hearing was a psychological evaluation of B.T. by a psychologist, Dr. Douglas R. Crawford, dated July 23, 2003, which concluded:

[B.T.] gives evidence of a limited capacity to form close attachments to others and may be experiencing post-traumatic stress symptoms related to reported abuse and molestation. She cites numerous personality difficulties and generally shows less interest in other people than ordinarily would be expected. Her limited interpersonal interest constitutes a personality liability and is likely to be associated with her having infrequent or mostly superficial relationships. She is currently depressed and presents as a pessimistic and unhappy person. Concerns about her potential for suicide are heightened by the pressures of situational stresses, a lack of social support, social isolation and past suicidal behavior. Currently, she acknowledges important problems and perception of a need for help in dealing with these problems. The nature of some of these difficulties suggests that treatment would be fairly challenging with a difficult treatment process and the probability of reversals. She may currently be too disorganized and feel too overwhelmed to be able to participate meaningfully in some forms of treatment. Such treatment should, of course, rule out post-traumatic stress disorder, major depressive disorder, possible borderline personality and antisocial personality features.

Judge Page gave his decision at the conclusion of DYFS's case, finding that DYFS had met the standards of N.J.S.A. 30:4C-15.1, having proved by "more than clear and convincing evidence" that the best interests of the children required guardianship be awarded for all purposes to DYFS and their placement for adoption. He found that the children's safety, health and development was endangered by the parental relationship and, by failing to take advantage of the services offered, the parents abandoned their children. He further found the parents were unwilling or unable to eliminate the harm or provide a safe and stable home for the children and the delay in permanent placement would add to the harm the children suffered. He added that DYFS made reasonable efforts to provide services to help the parents correct the circumstances and considered alternative determination by placement with other relatives. Finally, he found that in light of the ages of the children, their need for a stable life, coupled with the inability or unwillingness of the parents to change, led him to conclude that termination of parental rights would not do more harm than good.

On May 25, 2004, a judgment of guardianship was entered against both B.T. and R.D., Jr. The following day the Deputy Attorney General sent B.T. notification of the judgment terminating her parental rights and advising her of the right to appeal within forty-five days. The notification was sent by certified and regular mail. The certified letter was sent back as undelivered but the regular mail notice was not returned.

Ten months later on March 24, 2005, B.T. filed a notice of motion to vacate the default entered against her in the guardianship proceeding. A hearing was held on the motion to vacate on June 24, 2005. B.T. did not appear. An attorney previously assigned to her case appeared on her behalf. Judge Page denied the motion to vacate the default, finding that B.T. did not satisfy the standard of R. 4:50-1 in that the motion was not made within a reasonable time, there was no showing of excusable neglect, and there was no suggestion of a reasonable defense to guardianship.

On appeal B.T. makes the following arguments:

POINT I - THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FAILURE TO ASSIGN AN ATTORNEY TO REPRESENT THE DEFENDANT AT THE GUARDIANSHIP TRIAL RESULTED IN AN ADJUDICATIVE PROCESS THAT DID NOT ADEQUATELY PROTECT THE DEFENDANT'S INTERESTS EVEN THOUGH THE DEFENDANT WAS ABSENT AND IN DEFAULT.

POINT II - THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S APPLICATION TO VACATE THE DEFAULT JUDGMENT.

POINT III - THE TRIAL COURT'S FINDINGS WITH REGARD TO THE THIRD AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST CANNOT BE SUPPORTED BY CLEAR AND CONVINCING EVIDENCE IN THE RECORD.

(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT THE DIVISION MADE REASONABLE EFFORTS TO PLACE THE CHILDREN WITH THEIR MATERNAL AUNT AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS.

(B) THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" EVALUATION INSTEAD OF THE STATUTORILY REQUIRED "BEST INTERESTS" DETERMINATION IN FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

We affirm substantially for the reasons set forth by Judge Page in his oral opinions of May 24, 2004, and June 24, 2005.

Affirmed.

 

B.T. has two other children who reside with their paternal grandmother and are not the subject of this appeal.

(continued)

(continued)

8

A-6750-04T4

RECORD IMPOUNDED

July 13, 2006