NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.R.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1770-08T41770-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.R.,

Defendant-Appellant.

_________________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.Z.R.,

a minor.

_____________________________________________

 

Argued August 5, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-104-08.

Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Wroblewski, of counsel and on the brief).

Wilbur J. Van Houten, Jr., Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).

Phyllis G. Warren, Assistant Deputy Public Defender, argued the cause for minor J.Z.R. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Warren, on the brief).

PER CURIAM

M.R., the natural mother of J.Z.R., a boy, now seven years old, appeals from the October 31, 2008 order, denying her motion to vacate a judgment of guardianship by default. The Division of Youth and Family Services (DYFS) and the Law Guardian urge affirmance. According to the verified complaint for guardianship, M.R. has two other children who are not with her. A maternal aunt has kinship legal guardianship (KLG) of one child. The other is in the legal and physical custody of her maternal great-grandmother. These children are not subjects of this guardianship action. The birth father of J.Z.R. is unknown. It is undisputed that M.R. is mentally ill. She acknowledges this condition. J.Z.R. has emotional challenges and special needs. We reverse and remand for a new hearing.

In November 2003, DYFS received a referral regarding M.R. from a DYFS caseworker. That caseworker expressed concern because M.R. suffered from a mental illness and was not properly supervising her children.

J.Z.R. was three years old when DYFS was granted his care, custody, and supervision. Since then, he has not returned to the care of his mother. He has been in the same home from March 2005, until July 8, 2009, with foster parents who wish to adopt him. However, we have been notified by DYFS's counsel that:

In accordance with the proposed amendment to Rule 2:6-11(e), please be advised that on or about July 8, 2009, J.Z.R. was removed from his pre-adopt placement by [DYFS]. The child was removed after a report was received that he had visible marks on his arm. [DYFS] is continuing the investigation.

We have granted M.R.'s motion to supplement the record. M-6657-08.

J.Z.R. was residing with M.R. at a shelter in Irvington. On December 1, 2003, M.R. was evicted from the shelter after failing a room inspection. M.R. and J.Z.R. moved in with M.R.'s grandmother and sister. DYFS referred M.R. for parenting skills classes and a psychological evaluation.

On October 31, 2007, DYFS filed the complaint and order to show cause. Shauntele Volpe, DYFS Family Specialist II, executed an affidavit of service testifying that, "On November 13, 2007, at 470 Colfax Avenue, Clifton, New Jersey, I served [M.R.] with the Order to Show Cause, Complaint for Guardianship and Affidavit in this matter." The location of the service was a mental health program called "Medallion Care." However, M.R. failed to appear on November 26, 2007. At the hearing on that date, Volpe testified that she served M.R. personally at Medallion Care. The judge entered default against M.R. and set December 20, 2007, as the date for a proof hearing.

At the proof hearing, M.R. did not appear. Volpe testified as follows:

[DEPUTY ATTORNEY GENEJRAL VAN HOUTEN]: Ms. Volpe, I spoke to you yesterday about contacting [M.R.] prior to today's . . . hearing, is that correct?

A. Yes, it is.

Q. And did you reach out for [M.R.] yesterday?

A. Yes, I did.

Q. And were you able to make contact with her?

A. Yes, I did.

Q. And what did you advise her?

A. I told [M.R.] that there was court today. And she said, "Oh, I know. And I'll be there." And afterwards, we got into a conversation about visitation and she called back and said, "Well, I'll be in court tomorrow to let the judge know how you guys are treating me."

[THE COURT]: And what time did you tell [M.R.] the matter would be heard?

A. I spoke to her yesterday at 11:30 in the morning and at 3 again - like 3 - around 3:00 in the afternoon.

Q. And what time was [M.R.] advised that this case would be reviewed by the Court?

A. At 11:00 in the morning.

[VAN HOUTEN]: Now, what time did you tell her to be here today?

[THE COURT]: No. What - that's when you spoke with her. When did you tell her -

A. Oh, at 9 a.m. I'm sorry.

Q. 9 a.m.?

A. 9 a.m.

[COURT OFFICER]: What's her name?

[VAN HOUTEN]: [M.R.]

A. [M.R.]

[COURT OFFICER]: I'll call her one last time.

. . .

[THE COURT]: Let the record reflect that it is now 4 minutes after the hour of 10 a.m., more than an hour after the time when [M.R.] was advised this case would be heard. She is being, again, paged in the hallway. There is no response.

The Court notes that, despite the time of year, we do not have weather conditions that would challenge anyone in arriving here on time. And, accordingly, the Court noting the prior Default that has been entered, will continue to - to consider the proofs.

Volpe testified about M.R. and J.Z.R.'s involvement with DYFS based on the DYFS record. According to Volpe, DYFS has offered M.R. the following services: psychological testing, counseling, parenting skills, and a home aide. However, Volpe testified that M.R. has not progressed with the services.

J.Z.R.'s foster mother, T.R., testified via telephone. According to T.R., J.Z.R.'s behavior "had escalated" in a charter school and she had enrolled him in a full-time treatment program. She did this on her own without assistance from DYFS. According to her, the program diagnosed J.Z.R. as emotionally disturbed. Once J.Z.R. receives help in the full-day program and progresses, he will go to a half-day program and then return to regular school. T.R. also indicated that she wanted to adopt J.Z.R. The judge finished the conversation with her by stating to her:

As the primary caretaker for [J.Z.R.], I'm impressed for the steps that you've taken to see that [J.Z.R.] gets on tract and it appears that he is well served by your commitment to him.

This conversation occurred before J.Z.R.'s removal from the foster home.

The Law Guardian stated on the record full support for the plan of adoption.

The judge admitted into evidence several psychological evaluations. Gerald A. Figurelli, Ph.D, examined M.R. at the request of her counsel. During the evaluation, M.R. denied having any current or prior history of problems with clinical depression and related symptoms. She admitted, however, that she has had problems with the control and expression of anger. She also admitted that she was seen by a psychiatrist at Beth Israel Medical Center from March 2005 until April 2007. She participated in individual counseling and was prescribed Paxil for depression. According to her, although she was prescribed antidepressant medication, she has not experienced problems with depression and did not believe the treatment was helpful to her. She reported that at the time of the evaluation, she was not taking any prescribed medications. M.R. admitted that she had never been employed. She had only completed the eighth grade and was retained in the seventh grade because she was "never coming to school" and was "coming to school late." M.R. admitted that DYFS referred her to parenting skills classes and counseling, and that she visits J.Z.R. once weekly at Reunity House.

Dr. Figurelli opined that M.R. may experience parenting as demanding and not providing her with positive reinforcement. He concluded that she may, at times, misinterpret the needs and wants presented by her child, and thus, should complete parenting skills education to further enhance her parental functioning. Based solely upon M.R.'s self-reports of her treatment and medication history, Dr. Figurelli concluded that M.R. would benefit from mood-stabilizing medication to help with her affective instability, in addition to ongoing interpersonal skills training. Finally, he opined that if M.R. is able to successfully address these issues, and the issues noted previously, she would "appear" to "have the capacity to act adequately in a parenting role."

The evaluations of M.R. by Guillermo E. Gallegos, Ph.D.; Samiris Sostre, M.D.; and Mark Singer, Ed.D., were admitted in evidence. The three experts evaluated M.R. at the request of DYFS. During the evaluation with Dr. Gallegos, M.R. admitted that her mother was a heroin addict and abused alcohol. M.R. had resided with her mother until she was thrown out at age thirteen. M.R. admitted that she would "get angry too much" from a very early age, although she denied getting into physical fights with anyone. She stated that she attended mainstream public school, but that most of her grades were D's and F's and that she dropped out of school during the eighth grade. However, she could read and write well.

M.R. also admitted that she becomes agitated and has threatened others with knives. She told Dr. Gallegos that after feeling depressed and irritable, she stayed in the hospital for two weeks and was discharged with medication. She admitted, however, that she never took the medication on her own and only attended two sessions of outpatient psychotherapy.

Dr. Gallegos opined that M.R. experienced a chronic, usually low grade depressive condition characterized by low energy, low self-esteem, overeating, hypersomnia, and feelings of hopelessness. He indicated that effective treatment is available in the form of psychotropic medication and psychotherapy. M.R.'s personality presents some enduring traits which significantly interfere with an effective functioning in her environment. He noted that M.R. has trouble tolerating frustration and could act angrily to minor setbacks or provocations. Accordingly, he concluded that, as a parent, M.R. falls short of being adequate, as her own sense of urgency may, at times, displace the attention or care she needs to give to her child.

In December 2005, DYFS arranged for a psychiatric evaluation of M.R. with Dr. Sostre. During the evaluation, M.R. admitted that she requested that DYFS take custody of J.Z.R. because she "was going to lose her mind." She admitted that she has had problems with depression. She receives treatment on an out-patient basis at Beth Israel Hospital. She acknowledged that she has been diagnosed with bipolar disorder and is prescribed Paxil. Following the evaluation, Dr. Sostre recommended that M.R. receive regular psychotherapy and attend parenting skills classes.

DYFS also scheduled M.R. for a psychological evaluation with Dr. Singer on April 6, 2006. During the evaluation, M.R. admitted that she has never lived independently with any of her three children. She acknowledged having been unable to take care of J.Z.R. because she was not taking her medications as prescribed. She admitted that she takes Paxil for her depression. She is supposed to participate in therapy through Beth Israel Hospital in Newark, but that she misses sessions because she has "stuff to do."

Dr. Singer opined that M.R. lacks the physical and emotional resources needed to care for a child. M.R.'s feelings of depression, combined with other personality issues and possible delusional thought, limit her ability to muster the emotional resources needed to care for J.Z.R. Moreover, M.R.'s inconsistency with counseling raised questions regarding her ability to comply with demands placed upon her. Dr. Singer recommended that M.R. continue to attend therapy, complete her parenting skills training program, and continue to be medically monitored by a qualified psychiatrist. He opined that should M.R. comply with these recommendations, she could become a more viable placement option for her child.

The judge also admitted into evidence reports from DYFS, Medallion Care and Family Corrections Reunity House. Based on these proofs, the judge found that DYFS had proven by clear and convincing evidence, all four prongs set by N.J.S.A. 30:4C-15.1(a), which codified the holding in New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986). The judge entered a judgment of Guardianship and terminated M.R.'s parental rights with respect to J.Z.R.

M.R. moved to set aside the default ten months later. She asserted that she was not aware of the court date. She said that the only court date she was aware of was December 20, 2007, because Volpe had notified her of that date. She testified that she had no transportation to get to court. She arrived late and was told the hearing was done and that there was nothing she could do and her rights were terminated. The judge dismissed the motion.

M.R. contends that:

THE TRIAL COURT ERRED BY FAILING TO MAKE SPECIFIC FACTUAL FINDINGS AND CONCLUSIONS OF LAW TO SATISFY THE REQUIREMENTS OF R. 1:7-4(a).

THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(A) There Did Not Exist Clear and Convincing Evidence to Support the Finding the Health and Development of the Child Was and Continued to Be Endangered By the Parental Relationship.

(B) The Parent is Willing Or Able to Eliminate the Harm Facing the Child.

(C) There Did Not Exist Clear and Convincing Evidence That [DYFS] Made Reasonable Efforts to Provide Services to Help M.R. Correct the Circumstance Which Led to Her Child's Placement Outside the Home.

(D) DYFS Did Not Prevail On Prong Four Of N.J.S.A. 30:4C-15.1A Because It Did Not Prove By Clear and Convincing Evidence That Termination Of Parental Rights Would Not Cause More Harm Than Good.

We agree.

The judge's fact-finding can be characterized as "sparse" and "bare bones." This is troubling to us. From our careful review of the record, we conclude that the judicial fact-finding was inadequate. Moreover, the recent development of J.Z.R.'s removal from what was anticipated to be his adoptive home also casts doubt on whether DYFS has met its burden with respect to the fourth prong. Therefore, we vacate the judgment and remand for a new proof hearing.

M.R. also contends:

THE TRIAL COURT ERRED IN GRANTING [DYFS'S] MOTION FOR DEFAULT AGAINST DEFENDANT.

We disagree; however, M.R. should be permitted to participate at the new proof hearing.

A motion to vacate should be granted sparingly. In re Guardianship of J.N.H., 172 N.J. 440, 473-74 (2002). It is addressed to the sole discretion of the trial court, whose determination should be left undisturbed unless it results from a clear abuse of discretion. Id. at 473; Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). Pursuant to R. 4:43-3 and R. 4:50-1(a), a court may vacate a default judgment upon a showing of "excusable neglect." "Excusable neglect" has been defined by the Supreme Court as carelessness "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Davis v. DND/Fidereo, Inc., 317 N.J. Super. 92, 100 (App. Div. 1998) (quoting Mancini v. EDS, 132 N.J. 330, 335 (1993)). A default may also be vacated for "any other reason justifying relief from the operation of the judgment or order." R. 4:50-1(f). To prevail, the moving party must show "truly exceptional circumstances." See In re Guardianship of J.N.H., supra, 172 N.J. at 473 (citing Housing Auth. of Morristown, supra, 135 N.J. at 286). Nonetheless, a default judgment will not be disturbed unless the failure to defend was excusable under the circumstances and the party petitioning for such relief has demonstrated a meritorious defense. Marder v. Realty Construction Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964); New Jersey Div. of Youth and Family Servs. v. T.R., 331 N.J. Super. 360, 364 (App. Div. 2000). In the matter of In Re Guardianship of N.J., 340 N.J. Super. 558 (App. Div. 2001), we held that the trial court properly denied defendant's motion to vacate a default judgment when the defendant failed to appear at earlier hearings and failed to comply with court-ordered drug screening and psychiatric evaluations. Id. at 561. Similarly, we rejected a claim that the defendant did not know the trial date, an excuse similar to the one in this case. Ibid.

Here, M.R. has not met the requirement of showing excusable neglect or exceptional circumstances. She acknowledged being aware of the December 20, 2007 proof hearing date. Yet, she did not appear on time. It is painfully obvious to us that due to her mental illness, M.R. was unwilling or unable to appear in court. We recognize that she has little or no control over her condition. But, it is equally obvious that if her condition prevents her from attending a court hearing, it is even more unlikely that she can carry out the infinitely more difficult tasks of caring for a child with special needs. Nonetheless, her parental rights should not be terminated until and unless DYFS meets its burden, pursuant to N.J.S.A. 30:4C-15.1(a) and A.W., supra, 103 N.J. at 604-11.

 
The judgment of Guardianship is reversed and remanded to the Family Part for a new proof hearing.

(continued)

(continued)

15

A-1770-08T4

RECORD IMPOUNDED

September 24, 2009