NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. V.M.D.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5951-07T45951-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

V.M.D.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF L.D., L.D., and L.D., minors.

_________________________________

 

Submitted April 27, 2009 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-19-07.

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

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for the minors-respondents (Aleli M. Clemente-Crawford, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

After default was entered against defendant, V.M.D., in this Title 30 guardianship case because of her numerous previous failures to appear for scheduled court hearings, the Family Part granted a final judgment on January 14, 2008, terminating her parental rights as to three of her minor children. Defendant now appeals that final judgment and the trial court's ensuing order of May 29, 2008, denying her motion to vacate the final judgment pursuant to Rule 4:50-1. We affirm.

I.

V.M.D., the biological mother of eleven children, and her family, have been the subject of more than thirty referrals to the Division of Youth and Family Services ("DYFS" or "the Division"). The minor children involved in this particular DYFS litigation are Lorraine, a girl who was born on July 9, 1998; Larry, a boy who was born on February 19, 2001; and Lena, a girl who was born on May 29, 2003. The three siblings are the biological children of V.M.D. and J.F.A., who also had seven other children together. Two of those older children are now adults, and the remaining five have been adopted by other individuals after defendant voluntarily surrendered her parental rights. All of V.M.D.'s eleven children have been placed in foster care at some point in their lives.

We summarize the facts and circumstances most relevant to V.M.D.'s appeal. The biological father, J.F.A., has not appealed the trial court's termination of his own parental rights.

The history of DYFS referrals that preceded the birth of the three children involved in this litigation includes several noteworthy episodes of parental neglect that prompted the removal and supervision of their older siblings. For example, in May 1995, DYFS substantiated allegations that V.M.D.'s household had no food or hot water and that her apartment was in deplorable condition. Around this time, V.M.D. admitted to using cocaine during her preceding two pregnancies. Consequently, in September 1995, the Division took care, custody and supervision of the six children who were then residing with her.

In September 1996, the Division again filed a complaint to remove another child of V.M.D., who was born with birth defects. Both that infant and V.M.D. tested positive for cocaine. The Division provided drug treatment services to V.M.D. However, she did little to comply with her treatment plan. In January 1997, the Family Part issued an order finding that all seven of these older siblings had been abused and neglected.

The removal that led to the present litigation was prompted when the Division received information on January 17, 2006, that V.M.D. had given birth to her eleventh child, Lester. Lester is the biological child of another man, E.A. He was noted as having tremors after birth, and deemed medically fragile. Both V.M.D. and Lester tested positive for cocaine. V.M.D. stipulated that she had used drugs during her pregnancy and that her drug use contributed to Lester's medical problems. She also admitted that she had failed to obtain pre-natal care.

During the investigation of Lester's drug exposure, a case worker from the Division asked Lorraine, who was then seven years old, if "she has ever seen anyone use drugs or alcohol at home?" She initially responded "no," and that they "only smoke cigarettes." But, Lorraine then went on to explain that "her mom has a little blue bag. She then take[s] her cigarettes and opens them. She then takes the stuff in the little blue bag and puts it in the cigarette and rolls it back up." Lorraine also stated that "she is left home alone [with] no adults to watch her little brother, [Larry] and sister, [Lena]."

On January 20, 2006, the Division filed a complaint seeking to have the four children then residing with V.M.D. and J.F.A., including Lester, be placed in its protection, care and supervision. The Division also sought that the court find that the children were abused and neglected. The Family Part granted that application and placed all of the children in foster care.

The Division made lengthy and considerable efforts to provide V.M.D. with services to address her drug problems. Even before the birth of her eleventh child, V.M.D. was referred in 2005 for drug treatment at an agency known as Substance Abuse Initiative ("SAI"). However, she did not attend her appointment with that agency. V.M.D. was also terminated from another program for failure to attend scheduled testing. She was then "re-referred" for a drug and alcohol assessment. V.M.D. also was referred for a psychological evaluation. However, she did not keep her January 30, 2006 appointment for that evaluation, and then failed to attend her rescheduled appointment on February 2, 2006.

V.M.D. was finally assessed on February 17, 2006. During the course of that assessment, she acknowledged daily use of cocaine since the age of fifteen or sixteen. She was recommended to attend the Choices Residential Treatment facility ("Choices"). The Center for Family Services ("the Center") then began to assist V.M.D. to complete the requirements needed for her to enter the Choices facility. However, both Choices and the Center terminated V.M.D.'s enrollment because she failed to obtain a necessary tuberculosis immunization.

The Division then provided V.M.D. with information about other treatment facilities. Consequently, V.M.D. was admitted into one of those recommended facilities, Seabrook House, in May 2006. However, she left that facility voluntarily within ten days without completing the program.

In August 2006, V.M.D. was referred for another drug and alcohol evaluation. It was then recommended that she receive intensive outpatient treatment, so she was referred to the Institute of Human Development ("IHD"). V.M.D. attended her intake process at IHD on September 8, 2006. She was then scheduled for a psychological evaluation, which was to take place on October 27, 2006.

On September 20, 2006, the court conducted a review hearing. V.M.D. appeared for that court session and tested positive at the courthouse for cocaine.

On October 19, 2006, SAI and DYFS reported that V.M.D. "was not attending outpatient [sessions] for drug and alcohol [dependency], attending only one time since [her] intake." V.M.D. was then referred for residential drug treatment at her own request. She was admitted to the New Hope Residential Treatment Center. However, she left that program after only two days.

V.M.D. did not complete her psychological evaluation scheduled for October 27, 2006. The evaluation was rescheduled for November 17, 2006. On November 8, 2006, V.M.D. missed a follow-up session at SAI to facilitate her outpatient treatment. Consequently, V.M.D.'s SAI case was closed.

Early in 2007, V.M.D. again attempted to participate in another intensive outpatient drug program. That effort failed because on January 18, 2007, she again tested positive for cocaine.

In June 2007, V.M.D. attended the Women's Day Intensive Outpatient Program for three days. Once again, she had a relapse because of cocaine usage. She did not attend the group any further. V.M.D. refused, at the time, to submit to a urine screen because she said it would come up "dirty." In early July 2007, SAI reported to the Division that V.M.D. had relapsed and had stopped attending drug treatment.

DYFS also scheduled parenting classes for both V.M.D. and J.M.A. However, neither of them attended those designated classes. V.M.D. did obtain some parenting skills instruction while she was enrolled at IHD, but she discontinued the program after relapsing on cocaine.

On July 27, 2007, V.M.D. requested a new referral for treatment services because her welfare benefits would otherwise be sanctioned. A case worker from DYFS explained that SAI would not allow another referral unless V.M.D. submitted to a psychiatric evaluation. According to the case worker, V.M.D. then "became angry" and she "discontinued discussion and avoided eye contact with [the case] worker." At that same meeting, the case worker asked V.M.D. and J.M.A. why they had not attended scheduled parenting sessions. They both claimed they did not receive notice of the sessions in the mail, yet they were not willing to give the case worker their current addresses.

Meanwhile, after several rescheduled appointments, V.M.D. finally submitted to a psychological evaluation on March 1, 2007. Dr. John Quintana, Ph.D., a psychologist retained by the Division, diagnosed V.M.D. with "[c]ocaine abuse," "[n]eglect of child by history" and "[p]ersonality disorder NOS [Not Otherwise Specified] with borderline personality traits." Dr. Quintana stated in his report:

It is recommended that [V.M.D.] successfully complete substance abuse treatment and remain[] drug-free before regaining custody of her children. If her therapists . . . do not address some of the other issues highlighted in this report, she then should be referred to a local outpatient mental health facility for therapy. [V.M.D.] also may benefit from parenting skills training.

On December 19, 2007, the Family Part ordered bonding evaluations of V.M.D. and J.F.A. with the three children. Dr. Joanne M. Schroeder, Psy.D., conducted the bonding evaluations. Her report stated, in pertinent part:

[V.M.D.] was referred for a bonding evaluation with her . . . children who had been in foster care since February 2006. The three older children had been in placement prior to this episode as well. A review of the records indicated that there was a history of substantiated neglect. [V.M.D.] had not completed substance abuse counseling despite testing positive for drugs at the delivery of [Lester]. The results of the evaluation are limited to the attachment between [V.M.D.] and the children; no psychological assessment of [V.M.D.] was performed.

[V.M.D.] stated that the evaluation session was a typical visit for her and the children. The results reported here and conclusions drawn are the best opinion given the data, and are made within a reasonable degree of psychological certainty. However,

it should noted that for children of [Larry]'s and [Lena]'s ages, the description of attachment profiles is inexact. Unlike very young children, [Larry] and [Lena] are at the age where they can bring some cognitive resources to bear in coping with separations, and therefore the assessment of attachment can rely less firmly upon the observation of behavioral displays. Also, [Lena] and [Larry] are not yet at the age where they can assist by giving information with some perspective (like [Lorraine] can).

Dr. Schroeder continued:

The results of the bonding evaluation were that the children showed no relief upon reunion, no distress upon separation, and an absence of open, reciprocal communication and availability that would promote security. Termination of the relationships between [V.M.D.] and [Lorraine], [Lena], and [Lester] would not cause serious and enduring harm. Termination of the relationship between [Larry] and [V.M.D.] might cause [Larry] harm, in addition to what he has already experienced. If [V.M.D.] is found to be unable to care for him, the challenge for [Larry] will be to find him a permanent situation that will best ameliorate the damage he has already experienced, by providing him with a responsive, available, sensitive caregiver.

As of the time of the final guardianship hearing in January 2008, neither V.M.D. nor J.F.A. had successfully completed substance abuse treatment or parenting skills training. In addition, there were no expert reports from the defense that contradicted the findings of the Division's own experts.

The children remained in foster care from their time of removal from V.M.D. in January 2006 through the time of the Family Part's final hearing two years later in January 2008. As of the time of that final hearing, one of the children, Lena, was in a pre-adoptive home. Lorraine was in a mentor home, with a plan for select home adoption. Larry remained in foster care as well. Five sets of relatives had been ruled out as suitable alternative placements for the children. According to the case worker's testimony, another set of relatives identified by defendant---less than two weeks before the final hearing---was also in the process of being ruled out as unsuitable.

The default entered by the trial court against V.M.D. stemmed from the fact that she failed to attend court sessions on four separate occasions: (1) May 30, 2007; (2) July 25, 2007; (3) September 14, 2007; and (4) November 7, 2007. Defendant then missed a fifth pre-trial hearing on December 19, 2007, despite having had contact before the trial hearing with an investigator from the Public Defender's Office. On each of these occasions, the customary court notice for the hearing specified in bold typeface:

THE FAILURE OF THE DEFENDANTS TO COMPLY WITH ANY PROVISION OF THIS ORDER OR THEIR CONTINUING FAILURE TO APPEAR MAY RESULT IN A DEFAULT ENTERED BY THE COURT AND TERMINATION OF PARENTAL RIGHTS.

No motion was made to vacate the default by V.M.D.'s counsel, either orally or in writing, prior to the scheduled trial date of January 14, 2008.

The trial on January 14 was scheduled to commence at 9:00 a.m. That morning, J.F.A. telephoned the trial judge's chambers, stating that he and V.M.D. were at a bus station in Atlantic City and that they would be late for court. The judge consequently delayed the start of the proceedings for over two hours. The judge began the trial at 11:22 a.m., having heard nothing further from defendants. V.M.D. and J.F.A. finally arrived in the court room at 11:45 a.m., nearly three hours late. By that point, more than thirty exhibits have been moved into evidence, the DYFS case worker had completed her direct examination of the case worker (the sole trial witness) and the Law Guardian was in the midst of cross-examination.

After a brief recess, V.M.D.'s counsel made an oral application to vacate the default that had been entered against her more than two months earlier in November 2007. Defendant contended that she had missed the prior court sessions because of transportation problems.

The trial judge denied the oral motion to vacate the default. In doing so, the judge traced the history of repeated failures by V.M.D. to appear for mandatory court sessions. The judge found that V.M.D. had not demonstrated that her prior failures to appear were excusable. The judge noted that each of the prior court orders in the case contained prominent language alerting defendants that a continuing failure to appear may result in the entry of default and the termination of their parental rights. In this report, the judge observed that "the manner in which [V.M.D. and J.F.A.] have . . . failed to interact with this [c]ourt on this . . . extraordinarily serious matter, has really been nothing but cavalier." The judge expressed concern that, if the case did not go forward as scheduled, the matter would "drift" without any permanent solution for the children. Moreover, the judge found that the facts of record reflected "really no suggestion at the likelihood, or even the possibility of a meritorious defense."

Having denied the application to vacate the default, the court heard the remainder of the case worker's testimony. The case worker summarized the drug and neglect issues that had led to the children's removal, the services that had been offered to the parents by DYFS, and the "[v]ery little compliance" shown by the parents in following through on the programs, including their failures to complete substance abuse treatment.

After considering the proofs, the judge issued an oral decision. In that ruling, the judge concluded that all four prongs of the statutory predicates for termination, see N.J.S.A. 30:4C-15.1(a), had been established by clear and convincing evidence. Among other things, the judge made the following significant findings concerning the past and prospective harm to the children:

The long and the short of the harm that these children have suffered and will apparently continue to suffer is that the parents, and in particular, as we're focusing right now on [Exhibit] P-3, [V.M.D.], have a longstanding, serious, deep-seated addiction problem and it was apparently an addiction which [Lorraine] herself was able to, in her own childish way, tell us about, that was going on before this baby was born. And [Lorraine] also indicates that she was often left home alone to watch her little brother and sister. The harm is compounded when we consider, and it's probably been mentioned a dozen times now in one fashion or another, the length of time that these children have been out of their family's care and custody. That period of time, without any reasonable basis on which the children have to expect permanency, is, in and of itself I believe, its own form of harm.

The judge continued:

Neither of the parents has presented himself or herself, on any regular or consistent basis, for the services that would be needed in order to address the harm that resulted in the removal of the children. Neither of them present themselves today as parents who are successfully treated, let alone recovered, from their substance abuse issues and problems. Neither of them are presenting as parents who have a stable and appropriate home for these children to come to. I think that the first prong, all in all, is well established by clear and convincing evidence. And the second prong, that the parents are unwilling or unable to eliminate the harm or provide a safe and stable home, in this case goes pretty much hand in hand with that. The lack of compliance with requested services, notwithstanding the protestations of [J.F.A.] here today, is something that I think stands on its own as an indication of either unwillingness or inability to address the harm.

As to the third prong of the statute, the judge concluded that the Division had made "reasonable efforts" to provide V.M.D. with services, including drug treatment, psychological evaluations, training and other assistance, but that V.M.D. had failed to complete treatment and otherwise comply with those recommendations.

Lastly, as to the balancing of the "best interest" factors under the fourth prong of the statute, the trial court concluded:

[T]hese are children who are within an age range where certainly the likelihood of adoption is reasonably strong. They're ages nine, seven and four. They are children as to whom certainly the statutory preference is in favor of, in appropriate cases, of termination followed by adoption to give them the appropriate permanency. So, based on all of that, based on the testimony of the caseworker, based on the uncontroverted evidence, except to the extent that [J.F.A.]'s protestations would be seen as some level of controversion, with respect to his compliance with services, based on all of that, I conclude that there is clear and convincing evidence that it would be in the best interest of these children to terminate the parental rights of these two parents and I will conclude that each of the prongs is met by clear and convincing evidence individually. I'll enter judgment today that will terminate parental rights and award guardianship of these three children to the Division.

Subsequently, V.M.D. moved under Rule 4:50-1 to vacate the final judgment. She argued that the trial court had erred in denying her earlier motion to vacate the default, and that the trial proceedings therefore should be reopened. The trial court denied her motion on two grounds. First, the court found that defendant had failed to demonstrate "excusable neglect" to justify her absence from five court appearances preceding the trial date. With respect to V.M.D.'s transportation problems, the court noted that DYFS had provided bus fare to V.M.D. when she asked her case worker for it. The court ruled that defendant's transportation problems were not "insurmountable" and that she had failed "to exercise due diligence to overcome them." Second, the court found that plaintiff had failed to present a meritorious defense that could justify reopening the case. The court specifically noted that it was "hard-pressed even to imagine a defense that could be serious[ly] interposed," and that "[t]he sad truth is that [V.M.D.] cannot parent these children."

This appeal ensued. On procedural grounds, V.M.D. argues that the trial court erred in declining to vacate her default. Substantively, she maintains that the Division did not establish all four statutory criteria by clear and convincing evidence. She also contends that her trial attorney was constitutionally ineffective, and that the judgment against her consequently must be vacated.

II.

We begin our analysis of the appeal with our recognition of the well settled legal principles that govern cases involving the termination of parental rights and the constitutional interests that inhere in the relationship between a parent and a child. See, e.g., N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008) (noting the constitutional protection afforded to "[t]he right of a parent to raise a child and maintain a relationship with that child, without undue interference by the State"); see also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (same); In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (same).

Recognizing the important interests that are at stake, applicable law, as codified at N.J.S.A. 30:4C-15.1(a), requires DYFS to prove, by clear and convincing evidence, the following elements in order to terminate parental rights:

(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 or her] resource family parents would cause serious and enduring emotional or psychological harm to the child;

 
(3) [DYFS] 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-15.1(a). See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

Apart from these substantive requirements, the parties in termination cases must also adhere, like all other litigants, to the procedural requirements of the Supreme Court's Rules of Court. The expeditious determination of such cases, in a manner consistent with the court rules and with case management directives, is especially important for the children whose day-to-day welfare and futures hinge upon the decisions reached in those cases. Our public policies recognize the importance of achieving permanency and stability for those children within a reasonable period of time. J.C., supra, 129 N.J. at 26. The passage of time because of the pendency of a case awaiting final disposition therefore becomes even more critical in Title 30 cases than it does for many other forms of litigation. Within reason, litigation deadlines should be honored, court hearings should be scheduled and completed, and decisions rendered in a prompt fashion so that the harm of uncertainty for the children is minimized. These temporal considerations must, of course, be weighed against the need to assure that the litigants before the court are dealt with fairly, and that the necessary proofs are gathered and presented to assist the court in making sound decisions on the merits.

Bearing in mind these principles, we first consider V.M.D.'s contention that default should not have been entered against her because of her missed court appearances, as well as her related argument that the default and the ensuing default judgment against her should have been vacated. We reject those contentions, given the particular history of this case and this family.

First, we have no difficulty in sustaining the trial judge's initial entry of default against V.M.D. in November 2007. By that point, she had already missed four mandatory court sessions, despite having received written notices and court orders that prominently informed her of the necessity of her attendance and the potential default consequences of her absence. See R. 4:43-1 (authorizing the entry of default against parties who fail to defend their interests in the manner prescribed by the Rules of Court or court order). V.M.D. contends that her non-appearances should have been tolerated because of her transportation problems in getting from Atlantic County to the Cape May County Courthouse. However, as the trial judge recognized, DYFS provided defendants with transportation funding when it was requested. The Division was not required, by assumption or intuition, to provide transportation funds before they were ever requested. Although we are cognizant that public transportation from Atlantic to Cape May County can be time-consuming, defendants should have planned accordingly in advance once the court dates were set.

We turn to the default judgment. "Generally, a decision to vacate a default judgment lies within the sound discretion of the trial court, guided by principles of equity." Coryell, L.L.C. v. Curry, 391 N.J. Super. 72, 79 (App. Div. 2006) (citing Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994)). "The decision to grant or deny a motion to vacate the entry of judgment 'will be left undisturbed unless it represents a clear abuse of discretion.'" Ibid. (quoting Little, supra, 135 N.J. at 283). In particular, a well-established two-pronged test applies. "In order to achieve relief pursuant to subsection (a) [Rule 4:50-1] . . . the defendant must be prepared to 'show that [1] [her] neglect to answer was excusable under the circumstances and [2] that [she] has a meritorious defense.'" Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005) (quoting Marder v. Realty Const. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1984)).

Here, in analyzing the first element of this standard for vacature, the trial judge relied in part upon Mancini v. EDS, 132 N.J. 330 (1993). In Mancini, the Supreme Court recognized that "[a] defendant seeking to reopen a default judgment [because of excusable neglect] must show that the neglect to answer was excusable under the circumstances and that [she] has a meritorious defense." Id. at 335-36 (internal quotations and citations omitted). The Court further elaborated that "[c]arelessness may be excusable when attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Id. at 335.

Applying these principles in the termination of parental rights context, in Matter of the Guardianship of N.J., 340 N.J. Super. 558 (App. Div. 2001), we affirmed the denial of a motion to vacate a judgment of default entered against a parent who had not complied with the rules of court. The circumstances in Guardianship of N.J. are strikingly similar to the chronology here. In Guardianship of N.J., the defendant had "an extensive history of drug addiction" and "two of her daughters tested positive for drugs at birth." Id. at 560. The defendant in that case also had "consistently refused to appear for court-ordered drug evaluations," had a "history of not appearing for court proceedings and of not maintaining contact with her attorney," and "failed to appear at nine of eleven hearings concerning her children." Ibid.

In Guardianship of N.J., an initial default was entered when the defendant failed to appear at a pretrial hearing, but that default was later vacated when it was discovered that defendant as incarcerated at the time. Ibid. The defendant then appeared in court with counsel at a later date and "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. While the defendant was in the courtroom that day, a trial date was set, and she was given a summons before she left. Ibid.

Thereafter, the defendant in Guardianship of N.J. failed to undergo court-ordered drug evaluations and did not meet with her own expert to have a psychological evaluation. Ibid. "Default was entered against the defendant and a proof hearing was conducted." Id. at 561. The trial judge then issued a "detailed oral opinion terminating parental rights." Ibid. The defendant moved to vacate the default, claiming that she did not know the trial date. Defendant contended that she was in Atlantic City, and she blamed her DYFS caseworker for not letting her know about the court date. Ibid. The trial court was satisfied that proper notice of the trial date had been given to the defendant, and he also noted the "inordinate length of time that the children had been in foster care." Ibid. We sustained the trial court's determination. Ibid.

As in Guardianship of N.J., V.M.D. had ample notice of her scheduled court dates. The trial judge in the present matter was reasonably indulgent of her persistent problems in getting to court. The judge did not enter default until the fourth time that she was absent. Thereafter, defendant missed yet another pretrial session in December 2007.

By the time the final and critical date for trial was reached, the court had more than ample reason to insist that defendant appear and that she be punctual. Instead, defendant arrived almost three hours late, after the proofs had already been substantially presented. This was not a single, isolated incident, which might mandate a different result. Given defendant's persistent pattern of absence, we find that the trial court acted reasonably in declining to grant her oral application to vacate the default when she belatedly arrived during the trial. The trial judge's finding of the absence of "excusable neglect" under Rule 4:50-1 is well supported, and it is sustained.

As to the second element for vacature---the presentation of a meritorious defense---we likewise concur with the trial judge that such a demonstration is absent from the record. We reach that conclusion even viewing the record with "great liberality." Nowosleska v. Steele, 400 N.J. Super. 297, 303 (App. Div. 2008). Even considering the record in an extremely indulgent fashion, we agree with the trial judge that one is "hard pressed even to imagine a defense [here] that could be serious[ly] interposed." The Division's proofs on all four of the statutory factors for termination were unassailable. Defendant has an unfortunate history of more than two decades of serious and unresolved drug addiction. She has been unable to parent any of her eleven children effectively. The unfavorable opinions of the psychological experts retained by the Division confirming V.M.D.'s inability to parent and the best interests of the children were not refuted by any defense experts. Although it was recognized in the bonding evaluation that the son, Larry, would likely experience difficulty upon being separated from his mother, that recognition was tempered by the reality that he needs a permanent situation with a "responsive, available, sensitive caregiver."

In sum, we affirm the trial court's finding that V.M.D. had not presented sufficiently meritorious defenses to warrant the reopening of the judgment under Rule 4:50-1.

We turn to the trial court's substantive decision of termination. Having carefully reviewed the record, we agree with the Division and the Law Guardian that all four necessary criteria for termination were established by clear and convincing evidence through the testimony and exhibits adduced at the proof hearing. We affirm the trial court's determination, substantially for the reasons articulated in its oral ruling of January 14, 2008.

Lastly, we briefly comment upon defendant's argument that she was deprived of the effective assistance of trial counsel, in violation of the standards set forth in New Jersey Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007). The record reflects neither deficient performance by her counsel, nor "'a reasonable probability that, but for counsel's [allegedly] unprofessional errors, the result of the proceeding would have been different.'" B.R., supra, 192 N.J. at 307 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984)). Defense counsel had an exceedingly difficult case, and was further burdened by her client's failure to follow through with programs recommended by DYFS and her repeated missed appointments and court appearances. Even if we were to accept, as true, V.M.D.'s allegations of her lawyer's shortcomings, "the outcome would not have changed." Id. at 311. As the Supreme Court recognized in B.R., such a scenario permits the rejection of the ineffectiveness claim without the necessity of a remand. Ibid.

Affirmed.

 

For ease of reference, we have utilized fictitious first names for the three children in question, all of whom have actual first names starting with the initial "L."

Lester is also a fictitious first name, in lieu of an actual first name likewise beginning with the letter "L." Lester has since been reunited with his father, after initially being placed by DYFS in a specialized foster home. He is not a subject at this litigation involving his three half-siblings.

The Division's brief on appeal represents that all three children have since been placed in a common pre-adoptive home.

(continued)

(continued)

26

A-5951-07T4

RECORD IMPOUNDED

June 2, 2009