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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4126-08T44126-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.J.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

E.E.J. AND P.J., minors.

________________________________________________________________

 

Submitted January 4, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-113-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Catherine F. Reid, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Veronica A. Beke, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors E.E.J. and P.J. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant, E.J., appeals from a judgment of guardianship terminating her parental rights to her daughters, E.E.J. (born November 4, 1997), and P.J. (born January 15, 2007). Defendant argues that the trial court erred by entering a default against her, subsequently refusing to vacate the default, and relying upon defendant's testimony in connection with her motion to vacate the default in rendering its final decision. Defendant further argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing prongs one, two and four of the best interests of the child test. The law guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm the termination order. We are satisfied from our review of the record that any error in entering default or denying defendant's motion to vacate it was harmless. We are further satisfied that the Division presented sufficient evidence to support the judge's finding that all four prongs were clearly and convincingly established. We therefore affirm.

I

DYFS received its first referral regarding defendant in 2005 because she was arriving late to pick up E.E.J. from school. When defendant gave birth to P.J. on January 15, 2007, mother and child both tested positive for cocaine. DYFS was called and the children were removed. They were placed with defendant's aunt, M.J., where they have remained ever since. Defendant visited them only sporadically in 2007 and 2008, and only once in 2009.

On January 25, 2007, defendant was evaluated and diagnosed with cocaine dependence. She was referred to Choices, Inc. for long-term treatment. On February 6, 2007, she was sent to St. Michael's Hospital to undergo detoxification. Three days later, she was discharged and taken to Choices, Inc., where she remained for a brief period until she was caught using drugs and alcohol in the facility, resulting in her expulsion from the program. She was offered a list of other rehab facilities, but she refused further assistance.

From April 24, 2007 to May 16, 2007, defendant participated in the Turning Point, Inc. drug treatment program. On June 11, 2007, defendant was further evaluated and referred to the treatment facilities CURA and Straight and Narrow, but she refused to attend either program, stating that she had previously attended CURA and found it too harsh. Defendant expressed her preference to enter a particular program in Connecticut, but there is no evidence that she ever did so.

On November 6, 2007, defendant entered Damon House in New York, a drug-free community residence that provides services to chemically-dependent persons. She tested positive for cocaine on November 11 and 13, 2007.

Beginning in December 2007 through January 2009, defendant's whereabouts became unknown. Despite its continuing efforts, the Division was largely unable to locate defendant during this time period. When defendant later testified at the March 20, 2009 proof hearing in support of her motion to vacate the default against her, she acknowledged that she had been involved in drug use in New York during this time, had gotten into unspecified legal trouble resulting in her incarceration, and asserted that she had participated in treatment (although there is no documentation to that effect). Defendant also advised the court that she was awaiting sentencing in New York to her choice of either a six-month jail sentence or a twenty-four month "Mommy and Me" program. She was pregnant at the time. She was required to submit to a drug test on that date, and she tested positive for cocaine.

II

Because of the issue in this appeal pertaining to the default against defendant, we set forth in some detail the procedural history in the case.

On January 19, 2007, the Division served a notice of emergency removal regarding the newborn P.J. On January 22, 2007, the court found that removal of P.J. was necessary because mother and child tested positive for cocaine at the time of P.J.'s birth. On that date, the judge transferred physical custody of E.E.J. and P.J. to DYFS, and transferred physical custody of both children to their maternal great aunt, M.J. Defendant was present at this hearing and was ordered to undergo a substance abuse evaluation. She was also awarded biweekly visitation.

Defendant failed to appear at a case management conference on February 15, 2007, a factfinding hearing on May 10, 2007, and a compliance review hearing on August 2, 2007. However, her attorney attended these proceedings. Defendant appeared at a compliance review hearing on November 15, 2007, and submitted to a random drug test, with negative results. The judge ordered DYFS to refer defendant to an in-patient drug treatment program, and also ordered that defendant have nightly telephone contact with the children.

Defendant failed to attend the December 20, 2007 compliance review hearing, although her attorney attended. On that date, the judge also held a permanency hearing and ordered that the Division's plan for permanent placement with a relative was appropriate in light of defendant's drug issues and her noncompliance with drug treatment programs.

Defendant failed to appear at the January 30, 2008 compliance review hearing, although her attorney attended. The judge found that DYFS had made reasonable efforts at reunifying the family. The efforts included substance abuse evaluations and treatment, placement of the children with a relative, and supervised visitation. The judge also ordered DYFS to investigate whether kinship legal guardianship (KLG) was appropriate for E.E.J., and whether E.E.J. was willing to be adopted if P.J. was also adopted.

Defendant failed to appear for the February 21, 2008 compliance review hearing. A permanency order entered on that date found appropriate the Division's plan for termination of defendant's parental rights to both children followed by adoption by M.J. The order approved the Division's plan for termination because the "mother's whereabouts are currently unknown and she has a history of substance abuse and has not completed drug treatment." Adoption was deemed appropriate because "of [P.J.'s] age and [E.E.J.'s] wishes to be adopted."

On April 18, 2008, the Division filed a guardianship complaint seeking termination of the parental rights of defendant and the unidentified fathers of both children. On that date, the court ordered defendant to return to court on May 9, 2008 and show cause why the court should not enter an order terminating her parental rights.

Case management conferences were held on May 9, August 8, September 5, November 14 and December 8, 2008. Defendant was not present at any of these proceedings. However, this was the time during which her whereabouts were unknown, and it appears she was not served notice of the proceedings. At these hearings, the judge ordered psychological evaluations of defendant and ordered her to attend a bonding evaluation. The judge also ordered DYFS to continue its search for defendant and to submit an affidavit of diligent inquiry.

On September 2, 2008, a Division worker hand delivered a letter directly to defendant informing her of a hearing to be held three days later on September 5, 2008. The letter stated: "IF YOU DO NOT APPEAR, THE JUDGE MAY SEVER YOUR PARENTAL RIGHTS FOREVER." Defendant failed to appear in court on September 5, 2008.

On January 12, 2009, the Division filed an affidavit of service specifying that a Division worker personally served her on January 2, 2009 with a copy of the guardianship complaint and informed her of the date, time and location of the next scheduled court hearing. The caseworker also served defendant with a copy of the April 18, 2008 order requiring her to return to court to show cause why her parental rights should not be terminated. This service on defendant was effected in the Hudson County jail, where defendant was then incarcerated.

On January 23, 2009, defendant failed to appear for the hearing for which she was noticed. At that time, the judge entered a default against her and scheduled a proof hearing.

The proof hearing was conducted on March 20, 2009. Defendant attended with her attorney, who orally moved to vacate the default and asked for an "opportunity to present a defense here." After receiving some brief testimony from defendant in support of her motion to vacate the default, the judge found no excusable neglect for defendant's failure to attend the many court hearings over the past two years and denied the motion. During a brief recess, as we previously stated, defendant submitted to a drug test, which was positive for cocaine.

The proof hearing then continued. The Division offered numerous records and documents in evidence. Defendant's attorney objected to several of the documents, which he had obviously reviewed in advance in preparation for the hearing. After some colloquy on the record, all of the documents to which defendant's counsel objected were not admitted in evidence. The Division then called its only witness, the caseworker then assigned to the case. Defendant's counsel was granted an unrestricted opportunity to cross-examine the witness, which he did. After the Division rested, the judge asked defendant's counsel if he wished to present any witnesses. After consulting with defendant, defendant's attorney advised the court that the defense rested. Summations were then delivered by all counsel, including defendant's attorney. At no time did defendant's attorney suggest that he intended or wished to call any witnesses who were not then present or that he needed any further time to prepare in order to do so.

On March 23, 2009, the judge issued two written decisions, one memorializing in further detail the reasons for denying defendant's motion to vacate default, and the other setting forth her findings in support of her decision to terminate defendant's parental rights to both children. This appeal followed.

III

Defendant argues that the judge erred in entering default against her and further erred in denying her motion to vacate the default. The January 23, 2009 order entering default does not contain a rationale for entering default. Presumably, the impetus was defendant's failure to appear on various dates as we have set forth.

A panel of this court recently decided in a Title 9 case that a judge may not enter default merely because a defendant fails to appear for trial. N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 506 (App. Div. 2009). We noted that a party may defend at trial without being physically present, id. at 506, and that "default based upon the failure to comply with an order requires as a predicate that the defendant received adequate notice that default may follow a failure to comply." Id. at 507. See also N.J. Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 433 (App. Div. 2001) ("[T]he form of order utilized by the court was inadequate to advise defendants that if they failed to appear on any review date, a default judgment could be entered against them terminating their parental rights. It is significant that these were not trial dates or compliance review dates. They were in the nature of case management conferences for the attorneys.") (footnote omitted). In light of these principles, we analyze in more detail the various orders and defendant's compliance or noncompliance with them.

Defendant appeared at the January 22, 2007 hearing, where she was ordered to undergo a substance abuse evaluation. She apparently complied with that aspect of the order. Moreover, at the bottom of the January 22, 2007 order (and incorporated in most of the orders in this case) the following warning appeared:

THE FAILURE OF THE DEFENDANT(S) TO COMPLY WITH ANY PROVISION OF THIS ORDER OR THE DEFENDANT'S CONTINUING FAILURE TO APPEAR MAY RESULT IN A DEFAULT BEING ENTERED BY THE COURT AND MAY RESULT IN THE COMMENCEMENT OF A TERMINATION OF PARENTAL RIGHTS PROCEEDING. A TERMINATION OF PARENTAL RIGHTS WOULD FREE THE CHILD(REN) FOR ADOPTION.

[Emphasis added.]

The January 22 order also stated that "this matter shall return to court on Feb. 15, 2007 at 1:30 p.m. for return order to show cause." While defendant did not appear on the indicated date, her attorney did. Defendant's failure to personally appear did not violate that order. P.W.R., supra, 410 N.J. Super. 506-07.

Prior to default being entered against defendant on January 23, 2009, the only other hearing which she attended was the compliance review on November 15, 2007, at which she submitted to a random drug test, with negative results. There is no indication that defendant violated any provision of the order entered on that date. While the order instructed that "this matter shall return to court on December 20, 2007" for a permanency hearing, the order did not mandate defendant's physical presence. At the December 20 hearing, although defendant did not appear, her attorney did. Therefore, she did not violate the November 15 order.

As we have stated, the orders entered with respect to many of the other hearings indicate by their terms that defendant was never served and the Division should continue in its efforts to find her. Accordingly, any failures to appear or other violations with respect to those orders could not have provided a basis upon which to enter default against defendant. Id. at 507. Moreover, many of the hearings were in the nature of case management conferences and did not necessarily require defendant's physical appearance.

Perhaps the most persuasive basis for entry of default was defendant's failure to appear and her attorney's failure to appear at the September 5, 2008 case management conference, despite the fact that defendant had been hand delivered the letter three days prior warning her that failure to appear could result in default and termination of parental rights. However, the Division admits that this informal method of service on such short notice was not proper, especially in light of the fact that a copy of the guardianship complaint was not attached. The Division admits that, in light of this deficient service, it did not seek default on September 5, 2008.

The January 12, 2009 affidavit of service provides another potential basis for entry of default. As we have stated, on January 2, 2009 a DYFS caseworker hand delivered the complaint along with a copy of the April 18, 2008 order to show cause to defendant and advised her of the January 23, 2009 court date. However, there is no evidence that defendant was advised that her physical presence was required at the hearing or that she was informed of the consequences of failing to appear. And, she was in jail. Although the Division informs us, without record support, that defendant was out of jail by the scheduled court date of January 23, 2009, it is quite possible that her incarceration prevented or interfered with her ability to attend the court proceeding. Neither defendant nor her attorney appeared in court on January 23, 2009, and it was then that the court entered default against defendant.

This course of events leads to the conclusion that default against defendant was not warranted. However, in light of what transpired after the entry of default, the error was harmless.

At the March 20, 2009 proof hearing, the judge (although continuing the default) permitted defendant to testify and permitted her attorney to cross-examine the sole witness presented by DYFS. Defendant's attorney was permitted to object to documentary evidence offered by DYFS, and he successfully did so. Defendant was given the opportunity to call witnesses, but she and her attorney declined to do so. Her attorney did not ask for an adjournment or suggest in any way that if he had more time to prepare he would be in a position to present witnesses or any other form of evidence. And, defendant's attorney was permitted to make a summation on her behalf.

Therefore, although the default remained in effect, the judge essentially proceeded as if defendant was not in default, and the proof hearing was tantamount to a full trial. Nothing in the record suggests that this proceeding would have been conducted any differently if the default were vacated and the case proceeded as a "trial" instead of a "proof hearing." For the same reason, any error in the judge's denial of the motion to vacate the default was also harmless. Indeed, we reached the same conclusion in P.W.R., supra, 401 N.J. Super. at 510, explaining it this way:

Having concluded that the judge erred in entering default, we find it had no consequence here. As we have observed, defendant's attorney was permitted to cross-examine the witnesses that were called and to give a closing statement. As we understand the judge's ruling in entering the default, defendant would likely have been precluded from doing much more at trial, but the record does not reveal that defense counsel had any witnesses to call or other evidence to offer. Indeed, even if defendant felt it was important to testify in the matter, she did not move to vacate the default in order to attempt to provide that testimony either before or after the judge rendered her decision. 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.

Finally with respect to the default issue, we find no merit in defendant's contention that the judge erred in considering her brief testimony in support of her motion to vacate the default in rendering a decision on the substantive issue in the case. Defendant willingly provided this testimony, in which she briefly summarized her activities in New York during the thirteen months that she absented herself from these proceedings and allowed her whereabouts to be largely unknown to the Division and the court. That testimony was properly considered as part of the record in this case.

IV

We now address the substantive issue, namely whether the judge's finding that the Division carried its burden of proof is supported by the evidence.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

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

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

The judge found that prong one was proven based upon defendant's continuous drug use, the fact that she was missing for most of the time since the children were removed from her care, that she had only sporadic contact with them since they were removed, and that she failed to perform any parenting functions, thus endangering the health and development of the children. These findings are well supported by the record. Such inability to provide parenting functions is a harm cognizable under the first prong. K.H.O., supra, 161 N.J. at 356 ("This mother's inability to provide any nurturing or care for her daughter for the prolonged period is a harm to K.H.O. that is cognizable under the best interests standard."); In re Guardianship of DMH, 161 N.J. 365, 379 (1999) ("[T]he attention and concern of a caring family is the most precious of all resources. . . . A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child.") (citations and internal quotation marks omitted). Accordingly, the judge did not err in concluding that prong one was proven.

We likewise reject defendant's argument that prong two was not satisfied because the Division failed to establish continuing harm she posed to her children. The judge relied upon defendant's failure to successfully address her drug abuse problems, the fact that she was awaiting sentencing by a New York court, and her failure to maintain stable housing. The record contains ample evidence to support these findings, including defendant's own testimony at the time of the proof hearing and the fact that she tested positive for cocaine on that day notwithstanding that she was pregnant.

The second prong requires proof that "[t]he parent is unwilling or unable to . . . provide a safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1a(2). The judge properly concluded that defendant would not be able to provide a stable home for the children because she continued abusing drugs, which had been a long-term problem for her. Moreover, the second prong allows that "[s]uch harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." Ibid. At the proof hearing, the Division caseworker testified that "about a week ago" she had personally spoken to E.E.J., then eleven years old. E.E.J said that she loved her mother and would like to live with her, but only if her mother was well enough to care for both children. E.E.J. said that if her mother was unable to care for them, she would be willing to be adopted by her great aunt as long as P.J. would be similarly adopted. According to the caseworker, E.E.J. was "comfortable" in the great aunt's home.

The Division also produced in evidence the report of the bonding evaluation performed by Dr. Robert Kanen. Dr. Kanen reported that M.J. said she wanted to adopt the children and that "[b]oth children appear to be bonded and attached to [M.J.] as she has been providing them with a permanent home. . . . [Defendant] is reported to have had no contact with [P.J.] since the child was three months old." The permanent home provided by M.J. gave the children "a sense of certainty and security." Dr. Kanen concluded that "the children would suffer serious and enduring harm if removed from [M.J.]." As we have previously stated, defendant failed to appear for a bonding evaluation.

We find no error in the judge's finding that the Division met its burden in proving the second prong.

Defendant does not dispute that the evidence was sufficient to satisfy the third prong. Therefore, we need not address the issue. We, nevertheless, note that our review of the record satisfies us that the Division did indeed make the required "reasonable efforts" to provide services to defendant, and the court considered alternatives to termination of parental rights.

Finally, the fourth prong requires DYFS to prove that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). There is an inherent risk of harm to a child associated with termination of parental rights. K.H.O., supra, 161 N.J. at 355. Therefore, under prong four, the State need not prove that the child will suffer no harm, but rather the issue is whether, after considering both relationships, "the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." Ibid. Thus, the fourth prong is "related to the first and second" prongs because all require a consideration of harm to the child caused by the parent-child relationship. DMH, supra, 161 N.J. at 384. Moreover, "to satisfy the fourth prong, the State should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (internal quotation marks omitted).

Defendant argues that the judge erred in finding that prong four was satisfied, especially with respect to the older child, E.E.J. Defendant points to the fact that E.E.J. stated that she would prefer to live with her mother. However, as we have pointed out, E.E.J. said she wanted to live with her mother, but only if her mother was well enough to care for both children. E.E.J. also said that if this were not the case, she would be willing to be adopted by her great aunt. The record supports the judge's conclusion that defendant is not in a position to care for her children. Therefore, E.E.J.'s alternative wish that she be adopted by her great aunt became operative. Her great aunt expressed her willingness to adopt both children and rejected KLG as an alternative. Both children are doing well there. Indeed, the younger child, P.J., does not really know her mother.

We reject defendant's argument that prong four was not satisfied because the Division failed to present expert testimony regarding the relationship of the children with her. Defendant failed to appear for the bonding evaluation. Further, defendant argues that Dr. Kanen's report should not have been admitted to prove the truth of the matter asserted, namely that the children were bonded with their current caregiver, defendant's aunt. Thus, according to defendant, prong four was not satisfied because of an absence of expert testimony establishing the relationship between the proposed adoptive parent and the children.

However, Dr. Kanen's report was properly admitted in evidence pursuant to N.J.R.E. 803(c)(6) and N.J.R.E. 808, as well as Rule 5:12-4(d). Defendant's attorney did not object to the admission in evidence of Dr. Kanen's report (although he did object to a number of other documents proffered by the Division). Therefore, the report provided the requisite expert testimony.

The judge's conclusion that terminating defendant's parental rights would not do more harm than good is well supported by the record. Defendant has a long history of substance abuse, which continues. She does not have stable housing. She has no relationship whatsoever with her younger daughter, and has had only minimal contact with either child since their initial removal from her in January 2007. Moreover, in accordance with Dr. Kanen's opinion, removal of the children from the stable home which their great aunt has provided would cause serious and enduring harm. The judge properly concluded that the fourth prong was satisfied.

 
Affirmed.

The parental rights of the birth fathers were also terminated, but they are not involved in this appeal.

(continued)

(continued)

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A-4126-08T4

RECORD IMPOUNDED

January 26, 2010