DIVISION OF YOUTH AND FAMILY SERVICES v. N.O.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4775-05T44775-05T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

N.O.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF N.O., JR.,

A Minor.

______________________________

DOCKET NO. A-5838-05T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

C.T.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF N.O., JR.,

A Minor.

______________________________

 

Submitted January 24, 2007 - Decided

Before Judges Collester and Lyons.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth

County, FG-13-103-05.

Yvonne Smith Segars, Public Defender, attorney

for appellant N.O. (William J. Sweeney,

Designated Counsel, of counsel and on the

brief).

Yvonne Smith Segars, Public Defender, attorney

for appellant C.T. (Michele C. Buckley,

Designated Counsel, of counsel and on the

brief).

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney

General, of counsel; Lisa B. Landsman, Deputy

Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian for minor N.O., Jr. (Cynthia McCulloch

DiLeo, Designated Counsel, of counsel and on the

brief).

PER CURIAM

This appeal is taken from the termination of parental rights of C.T. and N.O., parents of seven-year-old N.O., Jr., (also known as N.T.), born on June 10, 1999. He is presently in foster care and has been with his present foster mother since he was four. She wishes to adopt him.

The Division of Youth and Family Services (DYFS or Division) filed an order to show cause and complaint for guardianship to terminate the parental rights of C.T. and N.O. on June 1, 2005. Both defendants were afforded separate counsel. The trial began in March 2006, before Judge Michael A. Guadagno. Only N.O. appeared. Default was entered against C.T. for her failure to appear, but she presented herself two days after the trial began. Judge Guadagno denied her motion to vacate the default, but he permitted her to testify at the subsequent proof hearing. Judge Guadagno gave his oral decision terminating the parental rights of N.O. on April 5, 2006. He issued a written decision on May 8, 2006, following the proof hearing in which he terminated C.T.'s parental rights. Both defendants appeal.

N.O. presents the argument that the State did not present clear and convincing evidence under the "best interests" test as to all four prongs required to terminate his parental rights under N.J.S.A. 30:4C-15.1(a). See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986). However, the trial record clearly substantiates Judge Guadagno's decision. N.O. is a stranger to the child. He has been incarcerated since his son's birth serving an eight-year prison term for eluding police and resisting arrest. Among his other convictions was endangering the welfare of a child after originally being charged with sexually assaulting his fifteen-year-old niece. He is a Tier I Megan's Law offender.

N.O. testified he wanted to care for his son after his release from prison and requested his mother assume custody in the interim. DYFS made efforts to secure the cooperation of defendant's mother in Puerto Rico. The supervising judge took the unusual step of reviewing the case every thirty days in an attempt to properly evaluate placement of N.T. with his grandmother. He was advised that the paternal grandmother had changed her mind and had relocated in the United States. DYFS interviewed her and reported she did not understand English and had no relationship with her grandson. Nonetheless, visitation was arranged. However, the foster mother reported N.T. had anxiety attacks after the visits and was afraid he would be kidnapped and taken to Puerto Rico. N.T. was interviewed by Judge Guadagno and expressed his fear of living with his grandmother and his love and trust of his foster mother. A psychological evaluation confirmed bonding with the foster mother and recommended he be placed in her care on a permanent basis.

We find that there was more than sufficient proof under the standard of A.W. and the applicable statute that the best interests of N.T. mandated the termination of the parental rights of N.O. His arguments on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

C.T.'s arguments on appeal include asserting that the standard of clear and convincing evidence to justify termination of her parental rights was not satisfied. She also argues:

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S APPLICATION TO VACATE THE DEFAULT AND DENYING C.T.'S APPLICATION TO CALL WITNESSES ON HER BEHALF.

C.T. has had no contact with her son for the past two years. She has an extensive history of drug arrests and convictions. Her first involvement with DYFS was on August 16, 1989, after a referral was made by a hospital social worker who reported that C.T. tested positive for cocaine at the birth of one of her other children, an allegation that was not substantiated. Since that date, she received DYFS services for over sixteen years. In his written opinion dated May 8, 2006, Judge Guadagno made sufficient factual and legal findings supported by the record that clear and convincing evidence had been demonstrated to satisfy the four-prong test of the statute and A.W., supra, 103 N.J. 604-11.

Moreover, we find no abuse of discretion by Judge Guadagno in declining to vacate the default judgment against C.T. of granting permission to call witnesses. C.T. had ample notice of the proceedings and was expressly warned that a failure to appear could result in a default and termination of her parental rights. Nonetheless, for twenty-two months she failed to appear at various proceedings and failed to give notice of her whereabouts to DYFS, her attorney, and the court. No acceptable reason was given for her absence, and she failed to demonstrate good cause or a meritorious defense to the action. The judge properly denied her request to vacate the default. State v. Givens, 353 N.J. Super. 280 (App. Div. 2002); DYFS v. T.J.B., 338 N.J. Super. 425 (App. Div. 2001); IMO N.J., S.J., C.A., J.A., and E.J. v. D.M.J., 340 N.J. Super. 558 (App. Div. 2001). Moreover, based on the record before us, there is no showing that any witnesses proposed by C.T. would have affected the outcome.

Affirmed.

 

(continued)

(continued)

6

A-4775-05T4

RECORD IMPOUNDED

February 28, 2007