NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1592-09T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.D.

Defendant-Appellant.

______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.D., T.D., T.B.D., Q.D. and H.D.,

Minors.

________________________________________________

April 19, 2011

 

Submitted March 28, 2011 - Decided

 

Before Judges Reisner and Ostrer.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-84-08.

 

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

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Geraldine O. Livengood, Deputy Attorney General, on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for Minors D.D., T.D., T.B.D., and Q.D. (Lisa M. Black, Designated Counsel, on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for Minor H.D. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this guardianship appeal, C.D. appeals from an April 23, 2009 default judgment terminating her parental rights to five of her children - D.D., T.D., T.B.D., Q.D., and H.D. - and from an October 28, 2009 order denying her motion to vacate the April 23 judgment.1 While we strenuously disapprove of the procedural flaws in this matter, we find no basis to undo the April 23, 2009 guardianship judgment and, accordingly, we affirm that judgment and the October 28, 2009 order.

I

To put our conclusion in perspective, we begin with the following summary. At the time the guardianship proceedings were taking place, C.D. had six children, none of whom she had been able to care for due to her drug problems, and all of whom were in the legal custody of the Division of Youth and Family Services (DYFS or Division). Nearly a year after judgment was entered terminating her rights to the five children involved in this case, she made an identified surrender of her parental rights to the sixth child.

This appeal involves C.D.'s five oldest children.2 These children have been in foster care for several years, due to C.D.'s inability to overcome her drug addiction. After extensive, unsuccessful efforts to assist C.D. to recover from her addiction, DFYS filed a complaint on March 26, 2008 seeking to terminate C.D.'s parental rights. The trial court entered default against C.D. for failing to appear at a scheduled case management conference on April 1, 2009.3

In entering default, the judge found that C.D. failed to appear in court on April 1; that neither her attorney nor her DYFS caseworker had been able to contact her; and that she had not visited her children since December 2008. Although default was entered, the Division's attorney stated on the record, in the presence of C.D.'s counsel, that if C.D. later appeared and sought to vacate the default, she would consent. The judge rescheduled the matter for April 23, 2009, either to hear C.D.'s application to vacate the default or for a proof hearing.4

At the April 23 hearing, C.D. once again failed to appear. Her counsel advised the court that he had been unable to locate her. C.D.'s mother also testified that she had not heard from C.D. in months, and that her search for her daughter had been unsuccessful. The judge ruled that the hearing would proceed in C.D.'s absence, and DYFS presented testimony and documentary evidence in support of the guardianship complaint. However, because C.D. had failed to appear and was in "default," the trial court denied C.D.'s counsel the opportunity to cross-examine the witnesses. After hearing the witnesses and placing a lengthy oral opinion on the record, the judge entered final judgment by default on April 23, terminating C.D.s parental rights to all of the children.

C.D. filed a motion to vacate the default judgment and stay adoption proceedings, on August 19, 2009. Her motion was filed two days after the foster parents of H.D., the youngest of the five children involved in this case, had legally adopted her. The August 19 motion was not supported by any evidence that C.D. had successfully completed drug rehabilitation or that she was otherwise currently able to parent her children. The Division presented evidence that even after her parental rights to these five children were terminated, the agency made additional efforts to enroll C.D. in drug treatment but she failed to cooperate. The trial court denied C.D.'s motion.

On this appeal, C.D. asks us to reverse the April 23 and October 28, 2009 orders on three grounds: (1) DYFS failed to prove that termination was in the best interests of the children by clear and convincing evidence; (2) the trial court's denial of her motion to vacate the default judgment was an abuse of discretion; and (3) the trial court's refusal to allow C.D.'s counsel to cross-examine witnesses denied her due process.

After thoroughly reviewing the record, we conclude that C.D.'s first point is without merit, because the evidentiary record overwhelmingly supports the trial judge's conclusion that termination is in these children's best interests. We agree that the trial court initially erred in entering a default and in denying her counsel's request to cross-examine witnesses. However, we find that in the circumstances of this case, those errors do not justify re-opening the guardianship judgment.

The record leaves no doubt that, even at the time of her motion to vacate the judgment, C.D. continued to be unable to parent her children. She failed to present any meritorious defense to the guardianship complaint. All of the children have either been adopted, or are living with foster parents who wish to adopt them. There is no basis to conclude that cross-examination of the State's witnesses on April 23, 2009 would have changed the trial result. We decline to inflict on these children the grievous harm that would result from returning them to legal limbo, and we affirm.

II

Although we outlined the facts briefly, we now address them in greater detail, because they tell an essential story. On January 30, 2007, the Division removed all five children from C.D.'s custody. The three oldest children were previously removed on January 26, 2005, after they were found alone in the home C.D. shared with A.C., who was arrested for drugs and weapons possession. When the fourth child, Q.D., tested positive for cocaine at her birth on July 14, 2005, DYFS also placed her in foster care. All four of the children were returned to C.D. on July 28, 2006.

The 2007 removal was precipitated when the youngest child, H.D., was born with cocaine in her system, on January 23, 2007. During the investigation opened after H.D. s birth, T.B.D. (three years old at the time) reported that his mother hit him with a belt and investigators found bruises on his face. Additionally, the oldest child, D.D., who was then nine years old, had been absent for six consecutive school days while he cared for his younger siblings.

Prior to the 2007 removal, the children were living with C.D. and A.C. in an apartment from which A.C. distributed drugs and kept weapons. C.D. admitted during an April 2007 interview with DYFS psychological consultant Dr. Margaret DeLong that she was aware of the presence of drugs and weapons in the home prior to A.C. s arrest, but was so "wrapped up in getting high" that she was unable to protect her children.

After the 2007 removal, DYFS referred C.D. to the Options program, which provided her with substance abuse counseling, psychological counseling, and parenting classes. C.D. tested positive for cocaine on June 25, 2007, and left the program on August 10, 2007. DYFS had intended to recommend that C.D. begin overnight weekend visitation with her children, but abandoned that plan when she dropped out of drug treatment. C.D. also stopped attending office visits with her children during this time.

DYFS recommended that C.D. complete a second drug treatment program, the Challenge program, on October 3, 2007. She tested positive for cocaine the day she was supposed to begin the program, and did not appear at the program after the October 8 drug screen; she was discharged from the program on October 17, 2007. C.D. tested positive for cocaine again on December 3 and 20, 2007. She missed a scheduled evaluation with a psychologist, Dr. Donna LoBiondo, in January 2008. As a result of her lack of progress, DYFS argued at a January 14, 2008 permanency hearing, that the children should not be returned to her care; the court approved the agency's plan to seek termination of parental rights and foster care adoption.

C.D. gave birth to a sixth child, J.D., on February 1, 2008.5 J.D. tested positive for cocaine at birth, and C.D. was consequently again referred for drug treatment. For ten months, she participated in treatment at Eva's Village. While her initial participation was successful, the January 30, 2009 discharge report from Eva's Village indicated that C.D. had dropped out, and had not attended the program since the middle of December. Her progress was described as "slow." C.D. had two positive drug screenings and multiple occasions upon which she did not cooperate fully with drug testing, and her treatment providers believed she was using drugs again. Although C.D. "made progress related to the identification of potential relapse triggers and cues . . . towards the end of her stay it appeared as if the client simply took her will back and reverted back into old habits of secret keeping, isolating and pushing her supporters away from her."

At the April 23 hearing, DYFS worker Maria Lugo testified that she tried to reunite C.D. with her then-youngest child, J.D., even though DYFS had guardianship proceedings pending for the five oldest children. When C.D. failed to appear at J.D.'s permanency hearing on January 29, 2009, Lugo asked for an adjournment so she could discover the reason for her absence. Lugo went to C.D.'s home and knocked for several minutes before C.D. opened the door; C.D. then immediately returned to her darkened bedroom and got under the covers. C.D. told Lugo that she was aware of the court date, but had asked an "advocate" to reach out to her attorney and have the hearing adjourned. She also told Lugo that she had not visited with her children the previous week. She showed "no emotion" in response to Lugo's encouragement that there was a possibility J.D. would be returned to her. A distraught C.D. told Lugo that she had dropped out of the drug treatment and personal counseling programs and stopped visitation with her children because she was "tired" of participating and felt she should have already completed the process.

When Lugo informed C.D. that J.D.'s permanency hearing had been rescheduled for the following day, C.D. became enraged and screamed that she was "just tired of everything [and] . . . wanted a normal life." At that point, Lugo left C.D.'s home after telling her that she could call if she needed to talk and reminding her of the importance of attending the hearing the following day. According to Lugo, C.D. did not appear, and her parental rights were terminated at the January 30, 2009 hearing.6 Lugo never heard from C.D. again.

At the April 23 hearing, caseworker Kelly Boehmer testified about her repeated attempts to serve C.D. with notice of the proceeding. She went to C.D. s listed address in Paterson on four occasions (April 6, 8, 13, and 14, 2009) before a neighbor informed her on April 14 that C.D. had moved less than two weeks earlier. She tried to call C.D., whose phone was not in service during the month of April, and she spoke to C.D. s mother, when she appeared at the DYFS office during a similarly unsuccessful search for her daughter. Boehmer also testified about the agency's removal of the five oldest children due to C.D. s ongoing substance abuse problem, C.D. s numerous referrals to drug and counseling treatment, and her equally numerous positive tests for cocaine.

The court also considered a September 18, 2008 report from Dr. Donna LoBiondo, a DYFS psychological consultant. According to Dr. LoBiondo, although C.D. s "most obvious and pervasive parenting liability is her substance abuse and addiction . . . [C.D. s] parenting testing suggest[s] a secondary parenting liability in the form of a limited tendency to hold inappropriate expectations of children . . . [that] stem in part from [her] need to depend upon her children for companionship" that her unsupportive partners did not provide. Dr. LoBiondo did not recommend reunification unless C.D. successfully concluded a formal drug treatment program and functioned soberly and appropriately for a minimum of six months after completion. "To attempt reunification prematurely would place the children at risk for breaches in their attachment processes, which in turn places them at risk for various forms of psychopathology related to unstable attachment."

The record also includes two reports from Dr. Elizabeth Smith, a psychologist hired by the Law Guardian7. Dr. Smith noted that the four older children all had good relationships with their foster parents, describing the foster father as "expressive and gentle" with Q.D. and T.B.D. during her observation of them, and noting that the foster mother was "very nurturing and attentive to the children." The foster parents wanted to adopt the children if that was an option, and expressed a remarkable sensitivity towards the children's attachment to their mother:

They said that they would never encourage the children to forget their mother. They have pictures of her around the house. They were not sure if they should allow contact with [C.D.] if they adopted or how much would be advisable. They wanted to do what was best for the children. They were open to seeking therapeutic advice regarding this issue if they were allowed to adopt.

 

Smith also opined that it would be "emotionally devastating for all the children" if all four of them were not adopted by the same family.

Boehmer also testified about the good relationship each child shared with his or her foster parents. H.D. s foster mother had been her sole caretaker from the time of her birth, and was committed to adopting both H.D. and the new baby J.D., as well. The four older children, D.D., T.D., T.B.D., and Q.D. were placed together in a foster home that created a "loving and open" relationship between all of the children and their foster parents. The children thrived in this home, and D.D. particularly showed remarkable improvement in his schoolwork with the aid of his foster mother. When D.D. was first placed in the foster home, he was ten years old and completely unable to read. According to Boehmer, with the assistance of his foster mother, a teacher, and a tutor, D.D. had learned to read well.

Boehmer confirmed that the foster family supported the children s significant bond with their mother, keeping pictures of C.D. in the home and speaking freely with the children about her. Boehmer testified that both the foster mother and foster father were committed to adopting all four of the children.

C.D. s attorney was not permitted to cross-examine the witnesses because C.D. was not present at the hearing. The judge reasoned that C.D. was not "an active defendant who wants me to take notice of the affirmative facts in the case that might attach to her." The judge also stated: "She s not here. So who are we going to give the children to?" Although C.D.'s attorney was not permitted to cross-examine witnesses, the Division's attorney stipulated that C.D. had previously made some progress in her treatment and parenting skills development. But the attorney argued that C.D.'s sporadic and largely unsuccessful progress was insufficient to reduce the risk of harm to her children.

The Law Guardian representing D.D., T.D., and T.B.D. sought termination, arguing that that the three boys and their younger sister, Q.D., were thriving with their foster family and removal from the current living arrangement would be "extremely detrimental." She also argued that C.D. s failure to appear at court since late February showed she was not committed to or capable of managing her children s return. H.D. s Law Guardian stressed the poor results of a bonding evaluation with H.D. and C.D., conducted by Dr. LoBiondo. H.D. cried continuously and did not want to separate from her foster mother. H.D. s Law Guardian argued that her client could not wait any longer for permanency. Q.D. s Law Guardian likewise advocated termination of C.D.'s parental rights, followed by adoption by the foster parents.

In an oral opinion placed on the record on April 23, the judge found that all of the elements of the best interests test were proven by clear and convincing evidence. See N.J.S.A. 30:4C-15.1a. He concluded that C.D. was incapable of overcoming her drug addiction, which was so strong that it kept her, in the trial court s opinion, from attending court to contest the termination action despite repeated encouragement and services from DYFS. He found that her drug habit had clearly harmed the children in a variety of ways. He found that C.D. had lived with the four oldest children (D.D., T.D., T.B.D., and Q.D.) and her then-partner A.C. in a home containing drugs and weapons. C.D. lost custody of her children in 2005, and then failed to use their July 2006 return as an "opportunity to keep the children and stay clean of drugs." Instead, she suffered a relapse that led to their removal seven months later, and to the removal of H.D. at birth. Ibid.

The judge concluded that C.D.'s inability to overcome her drug addiction constituted an inability to care for her children. He found that, despite her temporary success in treatment, C.D. had relapsed and there was a "likelihood that the harm would continue." The court further found that DYFS had provided multiple appropriate services through many different providers.

The judge considered the children's relationship with their mother, and acknowledged that D.D., the eldest child, appeared to suffer a particular sense of loss at the separation from his mother. He found that the four older children were significantly attached to both their foster parents and natural mother, while H.D. had no attachment to C.D. (with whom she had never lived) and significant attachment to her foster mother. Weighing all the evidence, the judge concluded that adoption by their foster families was in each of the children s best interests.

C.D. filed a notice of motion to vacate the default judgment and stay the adoption proceedings, on August 19, 2009. In her certification submitted August 24, 2009, C.D. attested that although she was aware of the April 1, 2009 proceeding, she was unable to attend because she was evicted from her apartment on March 1, 2009. She claimed she was unaware of the April 23, 2009 proceeding because she had moved following that eviction. She blamed her failure to stay in touch with her attorney and caseworker on being "scared, confused, pregnant and homeless."8 Significantly, C.D. s certification did not address her drug treatment plan or her current sobriety, provide proof of clean drug tests, or offer a plan to provide a safe and stable home for her children.

In opposition, DYFS provided the certification of Boehmer, who located C.D. after the entry of judgment on April 23, 2009, because J.D. s case was still pending at the time. When C.D. met the caseworker, she told Boehmer that she was pregnant and unable to purchase the medication she needed; DYFS provided the necessary funds. She also told Boehmer that she was homeless, because she had left her prior residence to hide her pregnancy from DYFS workers. Although C.D. told Boehmer that she intended to "fight to get her children back," and came to the DYFS office to meet with the caseworker, she left the premises before receiving any assistance. Boehmer then attempted to enroll C.D. in further substance abuse treatment at the Paterson Counseling Center, but C.D. was uncooperative. C.D. expressed aggravation at having to make numerous telephone calls in order to set up the various required appointments.

In denying the motion, the court rejected C.D. s contention that she knew about the April 1, 2009 court date but did not attend because she was homeless and upset. He reasoned that C.D. was not a newcomer to the justice system or to the process of termination and she was represented by counsel whom she had the capacity to contact regularly. The judge also found it suspicious that the timing of her failure to appear coincided with her withdrawal from drug treatment. He concluded it was likely that her anxiety stemmed from her inability to demonstrate to the court that she was complying with her drug treatment program and was drug-free. Significantly, the judge considered the "manifest prejudice" to the children who, with the exception of a seven-month period in 2006, had not lived with C.D. since 2005. He reasoned that further delay would make "almost a mockery of the permanency concerns that the Supreme Court has mandated." The judge therefore concluded that equitable considerations weighed in favor of granting the children permanency by allowing them to be adopted by loving foster families.

III

A.

On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We owe special deference to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).

Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102.

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:

(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.

 

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).

B.

Against that legal backdrop, we first address the issue of default. As we held in N.J. Division of Youth & Family Services v. P.W.R., 410 N.J. Super. 501, 503-04 (App. Div. 2009), rev'd on other grounds, 205 N.J. 17 (2011), absent violation of a court order, it is not appropriate to "default" a guardianship litigant for non-appearance when the litigant is represented by counsel and the counsel appears. Although the Supreme Court reversed our decision on other grounds, the Court noted that our opinion "rightfully" concluded that default was improperly entered. P.W.R., supra, 205 N.J. at 22.

Pertinent to this case, our decision further observed that there was a difference between proceeding with a scheduled trial in a parent's unauthorized absence, which might be entirely justified, and declaring the parent in "default":

Moreover, we are of the view that the entry of a default--in light of the court's continuing requirement to conduct a hearing and make findings regardless of a defendant's presence or involvement--will often do little to advance any valid interests of the Division, the children or the court. As a result of the caution required in such instances, we cannot sustain the entry of an automatic default based upon a defendant's failure to appear. Default should not be entered absent clear notice to defendant of the potential for such an outcome and absent a principled consideration of all the circumstances to which we have alluded.

 

. . . We do not question the judge's decision to proceed with the factfinding hearing in defendant's absence in this case. Defendant did not present any valid basis for an adjournment; indeed, defendant's counsel did not even ask for an adjournment. And defendant does not argue on appeal that the judge erred by proceeding with the factfinding hearing in her absence.

 

Default is different. As the judge declared in entering default here, defendant was precluded from putting on "an affirmative case." What the judge meant by this was not defined, but the common understanding attributable to this phrase would suggest that the default barred defendant from calling witnesses or offering other evidence. Such a ruling was not authorized or remotely suggested by N.J.S.A. 9:6-8.42.

 

[P.W.R., supra, 410 N.J. Super. at 509-10.]

We reach the same conclusion here. We can understand the frustration of the trial judge as well as that of counsel for the Division and the Law Guardian in this case. Each of the five children involved in the current case had a different father. Between the non-appearances and re-appearances of the assorted parents, it was almost impossible to set a certain trial date so as to achieve some permanency for these children who had been in foster care for years. However, C.D.'s failure to appear at one proceeding did not warrant entering a "default." On the other hand, her additional unexplained failure to appear for the scheduled April 23 trial certainly warranted proceeding with a trial in her absence.9

However, calling the April 23 trial a "proof hearing" may have led to further procedural errors. Unlike, for example, a commercial collections case in the Law Division, a guardianship case implicates fundamental rights of parents and children. See N.J. Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 434 (2001). The State must justify termination of parental rights, by clear and convincing evidence, whether the parent appears for the trial or not, and whether the parent "defaults" or not. Therefore, calling a guardianship trial a "proof hearing" is in a sense a misnomer, which may lead to errors in the way the case is presented. Further, while the parent's failure to show up for the hearing may well be a factor in the court's guardianship decision, ultimately the court must still decide whether termination is in the children's best interests. Conceivably, a parent might fail to appear for the trial but the court could still find that termination is not in the children's best interests.

This brings us to our next point. Even if a parent fails to appear for the trial, the parent's counsel should be permitted to cross-examine the witnesses, so that the court has a complete record on which to decide the critical issues in the case.

Only through an evidentiary hearing can the court and the parties be assured that DYFS has met its heavy burden to prove by clear and convincing evidence that termination of a parent's rights to his or her child is in the child's best interests. In most default cases, the matter should proceed to a plenary hearing where defendants' counsel and the law guardian shall have an opportunity to cross-examine DYFS's witnesses. Even in the Special Civil Part, defendants are accorded such rights. The Family Part should provide no less protection; indeed, more is required.

 

[N.J. Div. of Youth & Family Servs. v. T.J.B., supra, 338 N.J. Super. at 435.]

 

Likewise, as we indicated in N.J. Division of Youth & Family Services v. L.H., 340 N.J. Super. 617, 619 (App. Div. 2001):

Thus, it is clear that a parental termination case which proceeds on the basis of a default must be concluded by a plenary proof hearing and not merely via a certification in lieu of proofs. That is not to say that the evidence in the proof hearing may not be documentary in nature, as appropriate. In that proceeding, however, all parties in interest must be afforded suitable opportunities to participate.

 

In this case, the State presented plenary proofs at the April 23 hearing, including witness testimony and documentary evidence. We agree with C.D. that she should not have been declared in default for missing the April 1 court date, and her counsel should have been permitted to cross-examine the State's witnesses at the April 23 plenary proof hearing. However, unlike In re Guardianship of J.N.H, 172 N.J. 440 (2002), on which C.D. relies, we find no basis to re-open the guardianship judgment in this case.

In J.N.H., the parent's rights to her children were terminated, but she later applied to vacate the judgment based on two factors: she had overcome her prior serious drug problems, and her son was no longer thriving in his foster placement. Id. at 475-77. Therefore, considering the son's best interests, the Court found that J.N.H. presented that "rare" case when re-opening of a guardianship judgment was warranted. Id. at 479.

Here, by contrast, C.D. presented no evidence that she has successfully recovered from her seemingly intractable drug addiction. One of her children involved in this case has already been adopted, a circumstance that weighs very heavily against setting aside the judgment. Id. at 475. The other four children are living with a foster family that is willing to adopt them as soon as this appeal is resolved.

Moreover, C.D. has not pointed to any evidence that her attorney could have elicited on cross-examination of the State's witnesses, or that he could have affirmatively presented, that would have changed the result in this case. She had no meritorious defense to the guardianship action, and the lack of cross-examination was harmless error. See In re Guardianship of N.J., 340 N.J. Super. 558, 560-61 (App. Div.), certif. denied, 170 N.J. 211 (2001). We therefore find no justification to vacate the judgment and deprive these children of the permanent homes to which they are entitled.

C.

C.D. next contends that the proofs elicited at the April 23 hearing did not satisfy the best interests test. Her arguments are without merit and, in light of the State's overwhelming evidence, they warrant little discussion. R. 2:11-3(e)(1)(E). We agree with the trial judge's thorough oral opinion, placed on the record on April 23, 2009. We add the following comments.

It is clear from this record that C.D.'s four oldest children, who had a relationship with her before she lost custody of them, have a bond with her. It is also clear that C.D. loves her children, even though she is not able to act as their parent. She told Dr. LoBiondo that if her parental rights were terminated, she would appeal "because I have to let them know that I fought for them." She has done so.

Unfortunately, her fight to regain custody of the children has been unsuccessful because she has been unable to win her struggle with her addiction. The record strongly suggests that C.D. still has a long way to go toward her recovery, and that until she attains that goal she will be unable to act as a fit parent to any child. Meanwhile, these children cannot continue to wait for stable and permanent family placements.

Fortunately, the record also reflects that the four oldest children will be adopted by foster parents who understand that the children love C.D., and who respect the children's need to cherish their memories of her.10 The youngest child, who has spent her entire life in foster care, has already been adopted. By clear and convincing evidence, the result in this case is in the children's best interests.

A

ffirmed.

1 Although the notice of appeal did not indicate that C.D. was appealing from the April 23, 2009 judgment, the parties have briefed this case as though she was appealing that judgment as well as the October 28, 2009 order. In the interests of justice and finality, we deem the notice of appeal amended to include the April 23, 2009 judgment.

2 D.D. was born on June 20, 1997; T.D. on April 26, 2002; T.B.D. on December 20, 2003; Q.D. on July 14, 2005 and H.D. on January 23, 2007.

3 The order entered on February 23, 2009, which scheduled the April 1 conference, warned in large letters that a "continuing failure" to appear for court proceedings could result in default and termination of parental rights.

4 The guardianship cases involving these five children included the multiple men who had fathered them, as well as C.D., their mother. The Division was trying to ensure that the cases involving the four children living in the same foster home would proceed at the same trial, so that if termination was granted the children could all be adopted by their foster family at the same time. One of the attorneys described the case as "an octopus" because of the scheduling difficulties caused, in part, by the failure of the various defendants to appear.

5 J.D. was placed in foster care shortly after his birth, and his case proceeded separately from that of his five older siblings. C.D. voluntarily surrendered her rights to him on February 19, 2010, and agreed to his adoption by the same foster family that adopted H.D.

6 A February 19, 2010 order indicates that C.D. agreed to an identified surrender of J.D.

7 Dr. Smith's reports were included in appellant's appendix and the parties have treated them as part of the record.

8C.D. gave birth to her seventh child, O.D., on September 11, 2009. DYFS filed for guardianship on August 15, 2010. O.D. was placed with the sister of the woman who fostered and adopted H.D. and J.D.

9 We acknowledge the harm that can result to the children as well as to the progress of the proceedings when parents not only fail to attend court but, as in this case, simply disappear. An absent parent is not available for visitation with the children, or for updated bonding evaluations, drug screenings, or psychological evaluations. However, we still cannot conclude that a single non-appearance warrants entry of default.

10 While legally there is no "open adoption," it appears possible that, if appropriate, the foster parents would let C.D. visit with the children.