NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0412-09T4A-0412-09T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.J.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF V.J. and R.G.Z., III,

Minors.

________________________________________________________________

 

Submitted May 18, 2010 - Decided

Before Judges Carchman and Lihotz.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Warren County, Docket No. FG-21-102-08.

Yvonne Smith Segars, Public Defender,

attorney for appellant J.J. (Janet A.

Allegro, Designated Counsel, of counsel

and on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian, attorney for minor

(Noel C. Devlin, Assistant Deputy

Public Defender, on the brief).

Paula T. Dow, Attorney General, attorney

for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel;

Michael S. Rubin, Deputy Attorney General,

on the brief).

PER CURIAM

Defendant J.J. appeals from a October 16, 2008 default judgment terminating her parental rights to her two children - V.Z. and R.G.Z., III (R.G.Z.). Following the entry of a default against defendant and an unsuccessful motion to vacate the default, a proof hearing was conducted. Judge Goodzeit in the Family Part concluded the Division of Youth and Family Services (DYFS or the Division) had established by clear and convincing evidence the requisite four prongs to terminate parental rights enunciated in N.J.S.A. 30:4C-15.1a. We affirm.

These are the relevant facts adduced from the record. V.Z., currently age five, and R.G.Z., currently age three, are the children of J.J. and R.Z. On June 29, 2005, less than two months after V.Z.'s birth, R.Z.'s mother informed the Division that J.J. regularly used marijuana and frequently failed to adequately supervise the child, often roaming the streets with V.Z. at night. After being contacted by a Division caseworker, J.J. denied current use of marijuana, but admitted she had previously abused the drug. She stated she was currently staying at the home of her grandmother, F.J., and agreed to undergo a substance abuse evaluation (SAE) and to inform the Division if she moved.

On July 8, 2005, J.J. appeared for her scheduled SAE at Preferred Children's Services (PCS) in Washington, New Jersey. She denied using marijuana within the last thirty days, but provided a urine sample that tested positive for cannabinoids (THC). While noting that the final level of care "w[ould] be determined on results of a second urine [test]", J.J.'s evaluator referred her to a Family Guidance facility in Phillipsburg for "Level I" outpatient cannabis abuse treatment.

On December 22, 2005, the Division received a second referral from an anonymous caller who stated he "witnessed [J.J.] and [R.Z.] . . . smoking marijuana in the[ir] home in front of [V.Z.]" and "sometimes bl[e]w smoke" in the child's face. The caller also claimed the parents had "a black friend from North Jersey" living with them who was selling crack cocaine out of the home. The next day, caseworkers met with J.J., F.J., L.W. (J.J.'s mother) and R.Z. F.J. contended the allegations were false as V.Z. had been staying with her for the last three weeks, not at J.J. and R.Z.'s apartment. Based on this information, the referral was classified as "unfounded." Both J.J. and R.Z. denied ever smoking marijuana in front of V.Z. or blowing smoke in her face.

J.J. and R.Z. did acknowledge that a friend, M.D., had been staying in their apartment. However, their description of M.D.'s alleged drug use or drug dealing, as well as their response to those problems, varied. J.J. "admitted [M.D.] is a 'crack head' but denied that he ever did any kind of drugs in their apartment. [She] stated that [they] kicked [M.D.] out of the home last week because he never gave them any rent money." In contrast, R.Z. stated he and J.J. "did not know that [M.D.] was a 'crack head' when they allowed him to live with them [and] stated that as soon as they found out from [M.D.'s] girlfriend that he used crack, they kicked him out."

On February 17, 2006, J.J., L.W., and F.J. signed a case plan subjecting J.J. and R.Z. to more frequent drug evaluations and compelling them to refrain from drug use, providing that V.Z. would continue to stay with F.J. until a June 2006 reassessment, and stating that "[n]on-compliance may result in removal of [the] minor child."

Despite this warning, J.J. provided another urine sample three months later which tested positive for THC. This test was discussed at a May 30 meeting between J.J., F.J. and the Division's case supervisor. The supervisor stressed that J.J. would require two negative screenings before the Division would consider returning V.Z. to her care. F.J. stated she loved having V.Z., but "it [was] a concern to the family the length of time it is taking for [V.Z.] to be returned to the care of her parents[.]"

The supervisor also conducted a review of the services provided to J.J., determining that (1) J.J. was in danger of losing rental assistance, as continuing receipt of funds for that purpose required her to sign up for General Assistance (GA) by June 1, however J.J. had not yet contacted that agency; (2) due to V.Z. residing with F.J., J.J.'s Temporary Aid to Needy Families (TANF) benefits had been reduced to cover only partial utility costs; and (3) she was receiving vocational training and was currently testing for her G.E.D.

Two days later, on June 1, L.W. and J.J. went shopping with V.Z. When they returned home, J.J. allegedly refused to part with the child. L.W. called the police, who refused to intervene "because there were no custody papers." L.W. then contacted F.J., who called the Division claiming that "she and [L.W.] have had the baby since November" and that "DYFS 'gave' them custody." Before there could be any further intervention, J.J. contacted F.J. and L.W. to apologize and requested they pick up V.Z. The Division contacted the local police department to confirm the child returned home safely.

By mid-June, the D. family next-door neighbors of F.J. came forward as a resource family "to care for [V.Z.]." The D.'s had been helping F.J. care for V.Z. when the child was in her home. The Division's investigation of the family continued through July and early August, and concluded that

there are no concerns regarding Mr. and Mrs. [D.] They are very appropriate and their home is neat and clean. There is plenty of space in the home for a child as well as adequate furnishing . . . .

. . . .

All of the references regarding Mr. and Mrs. [D.] have been received with positive feedback. They are medically cleared, their police reports were received with no criminal history, and Mr. [D.'s] employment reference was received with positive feedback.

J.J. underwent an additional SAE at PCS on June 30, 2006. She acknowledged being pregnant and stated that she had last used marijuana on May 24. Her Diagnostic Impression Report from this visit notes that "[R.Z.] is not helpful or able to care for [J.J.] and her unborn baby. He does not appear to be supportive of treatment, or concern[ed] she is smoking marijuana while pregnant." As a result of the evaluation, J.J. was referred to Warren Hospital's Alcohol and Drug Recovery Center (ADRC) for "Level II.I Intensive Outpatient" treatment.

On August 2, 2006, the Division filed an Order to Show Cause (OTSC) seeking temporary custody of V.Z. and to appoint a Law Guardian for the child. Premised on the "parents['] homelessness and marijuana use," the then trial judge ordered J.J. "to complete a risk assessment and comply with random urines and complete the ADRC program." The Division then placed the child with the D. family. However, the Division's lack of communication with F.J. regarding the placement soon became apparent, as

[Mrs. D.] told [F.J.] that DYFS placed [V.Z.] with her and [F.J.] started yelling at her and threatening to get a gun and shoot [Mrs. D.] and [her] daughter. [Mrs. D.] stated that [F.J.] was an ex-correction's officer and had guns in her home. [F.J.] told her that she would have [DYFS] start an investigation on her. . . . [A responding police officer] stated that [Mrs. D.] could sign a complaint against [F.J.] for the threats. [Mrs. D.] said that she did not want to put an eighty year old woman in jail.

These circumstances prompted the Division to place V.Z. with a family in Alpha "for a night or two" until F.J. could be brought to terms with the new arrangement.

The next day, August 3, a Division case supervisor met with J.J. to discuss the removal. J.J. approved of V.Z.'s placement with the D.'s, noting it would allow "open contact" with the child for her and her family and that she did not believe the D.'s would seek to adopt the child. The supervisor challenged J.J. regarding her lack of compliance with previous case plans and motivation to take advantage of services. J.J. provided inadequate answers, acknowledging she had continued to smoke marijuana after discovering she was pregnant for the second time, had failed to complete her G.E.D. program and had been fired from a job before it began after calling in late on her first day. As predicted after the May 30 meeting, J.J. did not apply for GA and lost her rental assistance payments. As a result, she was "now [two] months behind on the rent. . . . [T]he couple was to appear in court and did not[,] so now they are being evicted. [J.J.] answered they did not go to court because no one picked her up . . . ." A urine sample collected on that date tested positive for THC.

In response to the condition contained in the OTSC, J.J. underwent a SAE at Warren Hospital on September 8, 2006. She was found to require "substance abuse treatment at the minimum of an intensive outpatient level of care." After testing positive for THC on September 12 and September 19, J.J. began treatment at the hospital on September 20.

At the October 4, 2006 return date on the OTSC, J.J. waived her right to a fact-finding hearing "at which the Division would have the burden of proof"; stipulated that she abused marijuana while caring for V.Z., which constituted abuse or neglect; consented to the Division's continued legal and physical custody of V.Z. and weekly, supervised visitation with the child; and was ordered to

attend and complete the ADRC program. If she fails to fully engage in the next 30 days she is required to enter a long term inpatient substance abuse program.

[J.J.] . . . shall be required to undergo weekly urines at the Division office. . . . If [she] fail[s] to attend or provide a urine sample, the urine will be presumed a positive.

The Division was ordered to reimburse J.J. for mileage or cab fare to the ADRC program.

The next day, J.J. was terminated from the ADRC for "Non-Compliance with facility rules." It was noted she "had several 'no shows'" and was suspected of continuing marijuana use. On October 17, October 26, and November 9, 2006, J.J. tested positive for THC.

On December 20, 2006, the Division received another anonymous referral expressing concern for J.J.'s unborn child. The caller stated that J.J. and R.Z. were continuing to smoke marijuana and that R.Z. had begun selling crack. J.J. and R.Z. had asked to move in with the reporter, and R.Z. claimed he could easily afford rent with the money he made from his sales of illicit drugs. The Division sought to verify these allegations, but could not complete an assessment as it no longer had an address for J.J. and R.Z.

On January 17, 2007, a compliance review was held in the Family Part. Although counsel was present, J.J. did not appear. Custody and care of V.Z. with the Division were to continue, as was the requirement that both parents continue to submit to regular drug testing. As a result of her termination from ADRC, J.J. was ordered to "attend and complete a long term inpatient substance abuse program." Her visitation with the child was temporarily suspended.

J.J. was also requested to "inform the [c]ourt and the Division [of] her plans regarding the birth of her second child", which became moot when she gave birth to R.G.Z. later that afternoon. Warren Hospital contacted the Division and stated that J.J. had tested positive for THC immediately after birth. Although the test results for R.G.Z. were negative, J.J. had used marijuana throughout her pregnancy and had missed several pre-natal wellness visits.

On January 19, 2007, the Division removed R.G.Z., pursuant to N.J.S.A. 9:6-8.29. Both parents signed the notice of removal, which advised them of a January 23, 2007 hearing. R.G.Z. was placed in his present foster home. On January 24, the judge appointed a Law Guardian and granted the Division's request for continued temporary custody of R.G.Z. on grounds of "the use of marijuana by the mother, the father's inability to care due to homelessness [and] the lack of compliance by the defendants with prior court ordered services."

A March 2, 2007 psychological evaluation of J.J. suggested she had an "Extremely Low" verbal IQ but an "Average" performance IQ, a difference of both statistical and clinical significance. Likewise, J.J. was found to be "somewhat emotionally immature," with the evaluator noting her

motivation to regain custody of her children is hampered . . . as her own needs for care and concern appear to come first in her mind. She is ambivalent, at best, about growing up and taking on the responsibilities of adulthood, including parenting. While she is currently "clean" from drugs (by her self-report), there does not seem to be a strong recognition that her drug use was really a problem (except in as far as DYFS disapproved) or that relapse is a real possibility against which she must guard. . . . She will need intervention on a number of different fronts before she is ready to resume full custody of her children.

At an April 18, 2007 court hearing, J.J. was required to continue with psychological and substance abuse evaluations and ordered to "attend and complete a long term inpatient substance abuse program." Provided these conditions were complied with, J.J.'s weekly visitation with the children was reinstated.

A SAE, originally scheduled for February 21, 2007, but delayed after J.J. failed to appear at two scheduled appointments, was held on April 21. Beyond a continued dependence on cannabis, J.J. was found to have "serious impairment in social functioning" and was recommended to receive "Level III Medically Monitored Intensive Inpatient" treatment.

Following a Child Placement Review Board hearing, the judge continued the placement of each child outside the home pending the parents' "compl[iance] with services offered by DYFS through the [c]ourts." Notwithstanding the order, the Division received an update from Sunrise House's (Sunrise) "Mommy and Me" program, to which J.J. had previously been referred, that J.J. had "postponed admission on [two] occasions, the latest of which is this date [June 7]. [J.J.] has given reasons such as needing to work, or having an appointment 'next week.' [J.J.] loses the bed each time[,] jeopardizing getting in for treatment." The Division continued to work for J.J.'s entry into the program, but no beds were available until the first week of July 2007.

At the July 18 compliance review hearing, J.J. did not appear but was represented by counsel. In addition to the previous SAE and drug screening requirements, J.J. was ordered to provide proof of attendance at Narcotics Anonymous (NA) treatment and support meetings, as well as parenting classes and "employment/vocational rehabilitation." The next day, it was learned that J.J. tested positive for THC on July 17. At a subsequent hearing on July 31, the Division was asked to "change its goal to 'Termination of Parental Rights,' followed by [a]doption", as J.J. had largely failed to comply with the Division's case plan, which included the offering of a wide-range of medical, psychological and educational services.

On September 14, 2007, the Division filed a complaint for guardianship of both children. Six months later, J.J. was ordered to complete all psychological and bonding evaluations by July 31, 2008, and continue to attend and comply with an inpatient substance abuse program.

Psychological evaluations of J.J. and R.Z. were conducted on April 8 by Alan S. Gordon, Ed.D. In addition to interviews and a review of the parents' medical and Division records, Dr. Gordon administered a series of psychological tests including the Wechsler Adult Intelligence Scale-III (Wechsler), Wide Range Achievement Test-3 (WRAT), Millon Clinical Multiaxial Inventory-III (Millon), Child Abuse Potential Inventory (CAP), Sentence Completion Form, and Common Scenarios of Parenting.

Among other things, Dr. Gordon concluded J.J. was "functioning in the mild mental retarded range of intelligence in terms of verbal skills and the normal range of intelligence in terms of nonverbal skill." She appeared to have several "learning difficulties", most prominent of which was a reading disorder as J.J. reads at a sixth grade level and spells at a fourth grade level. The Millon test revealed J.J. was "experiencing a severe mental disorder" characterized by paranoia and compulsivity. In summary, Dr. Gordon found that

[J.J.] has not been able to learn from experience or punishment. She continued to use drugs. She has not entered any programs for drug use. Although many suggestions were made by the Division, she has not complied. [J.J.] looks for the easy way out rather than the best way. She is of the opinion that if she does nothing, it will all go away. She does not understand that her lack of activity and action produces negative results. She has a tendency to be immature, self-seeking and does not meet the responsibilities of parenting.

Bonding evaluations for both parents were scheduled for April 18. "Separate appointment cards were given to each [and] [t]hey were informed the purpose of the appointment was to conduct a bonding evaluation." J.J. did not keep the appointment. It was rescheduled for August 5, 2008, but again J.J. did not attend. The new evaluator, Dr. Eric Kirschner of Newark, maintained he was "somewhat unclear" as to the circumstances surrounding J.J.'s absence. At an August 20 case management conference, further details surrounding the cancellation emerged, specifically that:

[DIVISION'S ATTORNEY]: The Division set up the transportation. They were well informed of their evaluation appointments. They actually called that day, saying that they were unwilling to come. Another relative called saying that an uncle died. But the parents did not use the excuse, as the parents did not go to the uncle's funeral.

The mother actually requested to go to a visit, a visit [ ] that was scheduled for that day. They couldn't make it to the evaluation but they wanted to go to the visit.

And the worker said you know what, if we're picking you up, you're going to the evaluation, we're not going to . . . pick you up for a visit, this is ridiculous, you're court ordered and [ ] that's basically what's been occurring.

. . . .

[LAW GUARDIAN]: I spoke to . . . the supervisor of the adoption unit. She [ ] really, [] really tried to engage them in this process. She told me that she called Dr. Kirschner [ ] in an attempt to see if she could get them rescheduled in the afternoon. He was willing to see them in the afternoon, which was when they were asking for visitation.

She called them back. She got them on the phone. She said look, you're making yourselves available for visitation, I talked to Dr. Kirschner, he is available to see you in the afternoon, and they literally just refused to []go.

They were going to be driven there and they just refused to go.

As a result of these failures to cooperate and proceed with the evaluations, both the Division and the Law Guardian moved for an entry of default. J.J.'s counsel asked that the judge refrain from entering default as "we are not going to trial this second," and related his client's representation that the death of her uncle prevented her attendance at the evaluation. The Division challenged this version of events, noting that J.J. had still sought to have visitation with V.Z. and R.G.Z. that day.

The judge agreed to provide J.J. with one more set of scheduled bonding evaluations (for both the Division and the Law Guardian), to be attended at her own expense and with her own transportation, before entering default. Several letters were sent by the Division of Children and Families (DCF) to J.J. attempting to schedule the missed evaluations. The clarity of these letters regarding the importance of attendance is beyond dispute. Those relating to the Law Guardian's evaluation informed J.J. that

you have been court ordered to provide your own transportation to this evaluation therefore it is important that you make plans accordingly. . . .

THESE EVALUATIONS ARE COURT ORDERED AND YOUR ATTENDANCE IS MANDATORY. IT IS IMPERATIVE THAT YOU DO NOT CANCEL THESE APPOINTMENTS. YOUR FAILURE TO ATTEND THE EVALUATIONS WILL RESULT IN DEFAULT BEING ENTERED AGAINST YOU.

Those for the Division stated: "PLEASE NOTE THAT THIS EVALUATION IS COURT ORDERED AND YOUR ATTENDANCE IS MANDATORY."

Nevertheless, J.J. neglected to attend any of these appointments. On October 16, 2008, both the Division and the Law Guardian renewed their request for default. The Law Guardian stated Dr. Kirschner had informed her J.J. called his office the previous morning to cancel. The judge entered default and scheduled an initial default hearing for November 12.

At the commencement of the November 12, 2008 hearing, counsel for J.J. made an unannounced application to set aside the default entered against his client. Noting his client continued to challenge the Division's explanation for her failure to attend its August 5 evaluation, counsel stated the court's withdrawal of transportation for the September and October appointments

effectively meant that the defendants were not going to make [it,] as they have no transportation.

They live in . . . I believe the Washington/Hackettstown area, and there's just no no train or bus service that would take them to either Newark or definitely not down towards Princeton, where Dr. Gordon is.

Both the Division and the Law Guardian objected and noted that while J.J. focused on this one appointment, she had prior missed appointments as well. Additionally, both parties argued the importance of bonding evaluations, citing the Supreme Court's recent decision in Division of Youth and Family Servs. v. E.P., 196 N.J. 88, 109 (2008) (noting the importance of bonding evaluations in determining whether separation of the child from his or her foster parents would do more harm than good by comparing that relationship to the psychological and emotional bond with the birth parent).

Judge Goodzeit denied J.J.'s application.

[DEFENSE COUNSEL]: [O]nce they had to transport themselves, there was no realistic way they were going to make

[THE COURT]: Well, why not?

[DEFENSE COUNSEL]: these evaluations.

[THE COURT]: If they're interested in keeping their children, why not? I mean, I hold my patience a lot in this courtroom, but frankly, you know, they had multiple chances when transportation was being provided and they didn't go.

. . . .

I don't find any good cause [to vacate the default]. Defendants were given many opportunities, with transportation provided, and they did not avail themselves, and I think this is an absolute[ly] inappropriate way to prolong these proceedings for reasons that are unspoken on the part of the defendant when there was no interest shown by the defendant in moving forward with these evaluations.

The Division proceeded with its proofs. Junon Sterling, the caseworker in charge of V.Z. and R.G.Z.'s file, related a history of the case and then was asked to discuss her familiarity with the "birth records from Warren Hospital for [R.G.Z.]." Counsel objected to Sterling discussing the records, namely in light of a reference to "Prenatal/Intrapartal Risk: + marijuana use," without further foundation for the statement offered by a hospital employee. The judge overruled the objection, noting there was "no need for [any] foundation. It is a statement of opinion that is within the certified hospital records. That's all it is. All it stands for is the proposition [ ] that they noted that, period, the end."

Dr. Kirschner described the bonding evaluations he conducted with V.Z. and her foster parents and R.G.Z. and his foster parents. With regard to V.Z., Kirschner observed a "secure attachment" had developed and that her foster parents were "attuned to her, responsive, attentive[,] addressing her [ ] needs and giving her attention". V.Z. had made "significant strides" in previous areas of developmental difficulty, including increased verbal expression and decreased headbanging. Were her relationship with the foster parents severed, Kirschner testified within a reasonable degree of psychological certainty that

the impact would be great. It would certainly fall in the category of serious and enduring harm. I would think that given that she does not have . . . any other individuals that she has th[is] similar type of secure relationship with, that losing that relationship would likely result in a lot of the positive strides as far as developmental progress that occurred, kind of backsliding in a sense and [ ] reversing.

R.G.Z. was described as a "happy, energetic child" who "clearly was comfortable and at ease interacting with his foster parents." Kirschner again described the "secure attachment," which had developed between R.G.Z. and his foster parents, pointing particularly to the parents' work in addressing his spina bifida and food allergies. As to the issue of harm to the child, Kirschner noted returning R.G.Z. to J.J. would pose even greater risks than those faced by V.Z. as he "ha[d] lived with his current caretakers for everything but maybe two days of his life or close to that, so certainly it's safe to assume that he has come to view them as his psychological parents[.]"

Kirschner acknowledged a bond with J.J. could potentially be re-established, but that particularly with R.G.Z. such bond would take "at least six months to a year" to develop and there was "certainly no guarantee" that it would "materialize to an equal or greater extent."

Following the direct examination of both Sterling and Kirschner, J.J.'s attorney was afforded the opportunity to cross-examine both witnesses and did so.

In her decision, Judge Goodzeit applied the "best interests of the child" test prescribed by N.J.S.A. 30:4C-15.1a. This test balances the following four factors:

(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 or 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.

With regard to the first prong, the judge noted J.J.'s continued multiple positive tests for marijuana even after the Division put forward a plan calling for termination of her parental rights based, in large part, around her drug use. Despite the Division's "many attempts to engage the family in [ ] court ordered services," J.J. continued to place her use of marijuana above her children's health and safety. Placing J.J.'s addiction in context, the judge stated

[r]eference here is not to the notion of "inadequate parenting," but rather to [J.J.'s] failure to provide even minimal parenting to [V.Z.] and [R.G.Z.]. As noted above, [J.J.] has been completely enmeshed in her drug addiction and has been unable to provide an appropriate and stable home for her children. Even before [V.Z.] was placed in foster care she was inadequately cared for by [J.J.] and, indeed, spent substantial time in the care of relatives. [J.J.] has been transient before and throughout the litigation and has not been compliant with court ordered services.

[(Citations omitted).]

She also found the second prong was satisfied as both parents are unable to "sustain continued employment or independent housing," as well as their "recurrent drug abuse

. . . and fail[ure] to complete the court ordered drug treatment." In sum, "no progress" was made by J.J. in the over four years of her involvement with the Division. As to prong three, the judge found the Division had made "extraordinary efforts" to secure the family's reunification, recounting a comprehensive list of the attempted medical, vocational and educational services provided by caseworkers. Finally, the judge reviewed the bonding evaluation reports of Drs. Gordon and Kirschner, finding they conclusively showed the children's bonds with their respective foster parents "were strong and that it would be detrimental to remove the children" from their new homes.

Reviewing all four factors, the judge determined

[V.Z.] and [R.G.Z.] have been in stable and loving foster homes and have bonded with their foster parents. During this time, the foster parents have addressed their needs emotionally, physically and medically. The foster parents have been there on a daily basis and have provided th[e] only source of consistency [V.Z.] and [R.G.Z.] have known. [They] will suffer a far greater harm if the parental rights are not terminated. . . .

Based on the proofs in this matter, the [c]ourt concludes that there is clear and convincing evidence that the termination of the parental rights of [J.J.] is imperative.

An order entering Judgment for Guardianship was entered and this appeal followed.

On appeal, J.J. raises the following issues:

POINT I THE TRIAL COURT ERRED IN GRANTING THE DIVISION'S MOTION FOR DEFAULT AGAINST THE DEFENDANT AND BY DENYING DEFENDANT'S MOTION TO VACATE THE DEFAULT.

A. The Court [sic] By Entering The Default Against J.J.

B. The Court Improperly Denied J.J.'s Motion to Vacate Default.

POINT II THE COURT ERRED BY ALLOWING INTO EVIDENCE A RISK ASSESSMENT REGARDING R.G.Z. III WHICH WAS INDICATED IN DULY CERTIFIED AND DELEGATED HOSPITAL RECORDS.

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

(B) J.J. IS WILLING OR ABLE TO ELIMINATE THE HARM FACING HER CHILDREN.

(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP J.J. CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILDREN'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 have carefully reviewed the record and conclude that defendant's arguments are without merit. Specifically, as to the merits arguments in Point III and the factors set forth in N.J.S.A. 30:4C-15.1, we affirm substantially for the reasons set forth in Judge Goodzeit's comprehensive findings of fact and conclusions of law. As to Point I and II, we add the following comments.

"Rule 4:43-1 provides the grounds upon which default may be entered." Division of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 506 (App. Div. 2009). It provides default is appropriate "[i]f a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order[.]" Before default can be entered on these grounds, a party must have "received adequate notice that default may follow a failure to comply." Id. at 507 (citing Division of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 433 (App. Div. 2001)).

Applications to vacate default "'should be viewed with great liberality and every reasonable ground for indulgence is tolerated to the end that a just result is reached.'" Id. at 508 (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)). Our application of these principles is "particularly important when the results have consequences of magnitude such as the termination of a parent's rights to his or her child." T.J.B., supra, 338 N.J. Super. at 434. Nevertheless, there are circumstances where the denial of relief in a termination of parental rights case is appropriate. See In re Guardianship of N.J., 340 N.J. Super. 558, 561 (App. Div.), certif. denied, 170 N.J. 211 (2001).

J.J. asserts that her circumstances are similar to P.W.R., supra, and suggests that this case comes within the parameters of our admonition that "unless warranted by defendant's failure to comply with a prior order and the potential for default was adequately noticed, a judge is not authorized to enter a default[.]" 410 N.J. Super. at 504. We reject that claim.

In P.W.R., default was entered against a defendant who failed to attend a single fact-finding hearing in a Title Nine proceeding, even though her attorney was present. Id. at 503. A week prior to the hearing, the defendant advised the court she did not believe she could attend due to medical issues. Id. at 504. The court directed the defendant to submit a written note from her doctor, verifying these claims. Ibid. As no writing from the doctor was received, the judge entered default with no notice of this possible consequence being provided to the defendant. Ibid.

We found the entry of default was error, but affirmed the trial court's ultimate decision as there had been "no meaningful impact" on the proceedings, since

defendant's attorney was permitted to cross-examine the witnesses that were called and to give a closing statement. . . . [T]he record does not reveal that defense counsel had any witnesses to call or other evidence to offer. . . . Accordingly, despite the inappropriate and potentially chilling effect of a default in such a circumstance, there is nothing in the record on appeal to suggest the hearing would have been different had the judge not entered default.

[Id. at 510.]

Additionally, we noted that counsel was present, and frequently an attorney's appearance alone obviates the need for a defendant's presence, even where that presence is required by order. Id. at 509 (listing conferences, pretrial hearings or portions of a factfinding hearing as examples of such situations).

Here, J.J. failed to comply with numerous orders of the court, including those providing for her completion of drug treatment programs and most important, those mandating her attendance at psychological and bonding evaluations held by experts of the Division and the Law Guardian. At an August 20, 2008 case management conference, the judge provided one additional opportunity to comply for the express purpose of avoiding default, a fact communicated to J.J. The notices for the rescheduled Law Guardian's evaluation appointment contained capitalized, boldfaced, underlined language informing J.J. that her failure to attend would result in the entry of default. The notices addressing the Division's evaluations provided that J.J.'s attendance was "mandatory" and included a copy of the August 20 order stating default would be entered if she did not satisfy her obligations.

While J.J. attributes the August 5 absence to a death in her family, her claim lacks credibility in light of her expressed desire to have visitation time with the children that same day. It was only the bonding evaluation J.J. sought to avoid. Likewise, as transportation was offered to J.J. for both the April 18 and August 5 scheduled evaluations, which she did not attend, the Division cannot be faulted for requesting she provide her own transportation for the third and fourth appointments. Facing a known, severe sanction that would impede her ability to prevent termination of her parental rights, J.J. chose to cancel the appointments anyway.

Moreover, unlike the initial fact-finding hearing at issue in P.W.R., these bonding evaluations were critical to the factual underpinnings of this proceeding. The absence or presence of counsel is of no moment. In essence, by failing to appear, J.J. altered the balance of the proceedings. See In re Guardianship of J.C., 129 N.J. 1, 21-22 (1992) (noting the "complex field of knowledge" surrounding bonding theory requires courts to secure "competing views" and "assure a complete and balanced presentation of all relevant and material evidence sufficient to enable it to make a sound determination consistent with the child's best interests"). J.J. demonstrated to the judge that she was almost intransigent in complying with the judge's orders; the judge was reluctant to enter default and afforded J.J. yet another opportunity to comply. This, too, was to no avail.

The situation is much more analogous to our decision in N.J., where an order of default was upheld. In N.J., supra, the defendant

ha[d] a history of not appearing for court proceedings and of not maintaining contact with her attorney. Since the end of 1997 she has failed to appear at nine of eleven hearings concerning her children.

. . . .

Prior to trial, [the defendant] was to undergo court-ordered drug evaluations, but failed to do so. As a result, D.Y.F.S. moved for entry of default against [the defendant] and the natural father of three of the children. It is not clear whether that application was ever specifically ruled upon because the parents, including [the defendant], did not appear for trial on June 12, 2000. [The defendant's] attorney had not had contact with his client for some time prior to that date and did not know her whereabouts. She also had not cooperated with her own expert and, therefore, a psychological evaluation on her behalf had not been prepared. The trial judge attempted to call [the defendant] on the phone, but with no success. Default was entered and a proof hearing was conducted. The proofs were predominantly documentary. They exceeded a thousand pages.

[340 N.J. Super. at 560-61.]

Here, although J.J. was frequently present at trial, she failed to appear at perhaps the most important stage of the proceedings: the bonding evaluations by which the judge could compare the children's attachment to their prospective caregivers.

J.J. was afforded multiple opportunities to fulfill her responsibilities. However, she continually failed to appear at events for which the appearance of counsel alone was insufficient, despite being provided clear notice of the potential for default. As in P.W.R., J.J. was not prejudiced by the default. J.J.'s counsel cross-examined both Sterling and Kirschner, and she suggests no witnesses or evidence she was precluded from providing as a result of the order. As the judge had a "continuing requirement to conduct a hearing and make findings regardless of [her] presence or involvement[,]" the judge's decision was based on the same documentary and testimonial evidence as if J.J. had in fact participated fully. Id. at 509. We find no error in the entry of default and the denial of J.J.'s application to vacate the default.

We reach the same result regarding the admission of the hospital records.

A trial judge's decision to admit or exclude certain evidence is reviewed under an "abuse of discretion" standard. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Erazo, 126 N.J. 112, 131 (1991)), certif. denied, 163 N.J. 79 (2000). Our review encompasses "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), certif. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

N.J.R.E. 803(c)(6) provides that

A statement contained in a writing or other record of acts, events, conditions, and, subject to [N.J.R.E.] 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

J.J. challenges the judge's decision to admit, under the business records exception to the hearsay rule, N.J.R.E. 803(c)(6), the entirety of R.G.Z.'s birth records from Warren Hospital, including a statement that "[p]renatal/[i]ntrapartal risk[s]" included "+ marijuana use." Arguing the notation was not offered as an opinion, but rather for the truth of what it asserted, J.J. contends the statement should not have been admitted without foundational testimony from a hospital employee.

By way of introduction, the hospital records are prefaced with a "CERTIFICATE AS TO OFFICIAL RECORD MAINTAINED IN THE USUAL COURSE OF BUSINESS IN THE STATE OF NEW JERSEY" signed by Marsha J. Faden, MBA, RHIA, stating the records "were maintained in the usual course of business" and that Faden had "custody of, and knowledge of" the records' authenticity. Both parties agree that this certification renders the record in general admissible evidence.

At trial, the Law Guardian sought to clarify the Division's position, stating that

other than the hospital considered [possible marijuana use] a risk at the time of the child's birth, whether that was true or not I think is really not what the Division's putting this record in for.

It's that this was the hospital's opinion at the time of the birth and it's reflected in the records.

Judge Goodzeit accepted that argument, finding that "[a]ll [the notation] stands for is the proposition [ ] that they noted that, period, the end."

Particularly as the record reflects J.J. tested positive for THC the day she gave birth, the opinion that marijuana use constituted a prenatal "risk" is neither far-fetched nor overly complicated. But see Brun v. Cardoso, 390 N.J. Super. 409, 422 (App. Div. 2006) (holding that complexity of rendering diagnoses from examination of MRI film renders such documents inadmissible under this rule in the absence of further foundational testimony). Even discounting the positive January 17, 2007 test, the hospital staffer who contacted the Division to inform it of R.G.Z.'s birth stated "local hospitals were notified of [J.J.'s] substance abuse history prior to her delivery." Further, J.J. had provided several positive tests, during R.G.Z.'s pregnancy, at Warren Hospital's laboratory. Regardless of whether J.J. was abusing marijuana at the time of R.G.Z.'s birth, the hospital was justified in opining that her drug use posed a "prenatal risk" to the unborn child. The statement falls within the scope of N.J.R.E. 803(c)(6) and was properly admitted by the court.

 
Affirmed.

V.J., the minor whose birth name is V.Z., has been improperly plead as V.J. in all pleadings in this matter. Throughout this opinion, we refer to V.J. by using the correct initials, V.Z.

R.Z.'s parental rights were also terminated; however, he has chosen not to appeal that determination and is no longer part of the litigation.

The record is not clear as to which party's evaluations J.J. actually attended and which she did not. There is reference in the record to having completed her own expert's bonding evaluation, but there are no documents in the file confirming this.

The issue of transportation became relevant as a result of the Division's dedicating prior resources to providing transportation, which proved for naught as a result of defendants' refusal to attend the evaluations.

There remains, however, some unexplained inconsistency regarding the provided dates. An August 25, 2008 letter advises of September 23 appointments with Dr. Kirschner, the Law Guardian's expert. A September 12, 2008 letter references October 15. The reason for the change is not explicitly mentioned in the record. Dr. Gordon's evaluation was scheduled only for September 15.

A review of the New Jersey Transit website reveals a direct train from Hackettstown to Newark, and a one-transfer train service from Hackettstown to Princeton Junction. See http://www.njtransit.com/pdf/rail/Rail_System_Map.pdf, N.J. Transit, (last visited May 27, 2010).

Dr. Gordon was not called to testify at the proof hearings.

(continued)

(continued)

34

A-0412-09T4

RECORD IMPOUNDED

June 14, 2010