NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.D.E.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5494-06T45494-06T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.D.E.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.E.L.E., Jr., a minor.

__________________________________

 

Submitted February 4, 2008 - Decided

Before Judges Lintner, Sabatino, and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-22-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Grace Eisenberg, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney

for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lisa J. Rusciano, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

On July 25, 2006, following protective services litigation pursuant to N.J.S.A. 9:6-8.21 to -8.73, spanning approximately two years and beginning with a July 2004 order placing immediate custody of T.E.L.E. with the Division of Youth and Family Services (DYFS), a complaint seeking to terminate the parental rights of T.E.L.E.'s mother and father, S.D.E. and T.L., was filed.

On January 25, 2005, a family court judge ordered T.E.L.E. to be placed with D.W., his maternal great grandmother. Although S.D.E. was not permitted visitation at D.W.'s home, the order allowed D.W. to arrange for visitation outside the home. On June 17, 2005, an order was entered approving DYFS placing permanent Kinship Legal Guardianship with D.W. The order also provided that it would not be safe for T.E.L.E. to return to his mother's home.

S.D.E. did not appear for a case management conference on October 20, 2006, despite notice. She also failed to appear in court on February 14, 2007. Defaults were entered for her failure to appear for case management conferences on December 6, 2006, and February 28, 2007.

On March 19, 2006, S.D.E. and T.L. appeared at a case management conference, at which time T.L. voluntarily surrendered his parental rights. A judgment surrendering T.L.'s parental rights was filed. A case management order was also filed, scheduling a proof hearing for April 4, 2007. S.D.E. did not appear on April 4, and default was entered. The judge then conducted the proof hearing, taking testimony from two DYFS workers. He also reviewed the psychological reports, DYFS records, and the extensive court records and rendered his decision, terminating S.D.E.'s parental rights. A formal judgment was entered on the same date. S.D.E.'s motion to vacate the default judgment was heard and denied on May 2, 2007. This appeal followed. We now affirm.

We recite the facts necessary for disposition of this appeal. T.E.L.E. was born at University Hospital in Newark on July 20, 2004. S.D.E. was almost nineteen at the time of the child's birth. She had three prior pregnancies, none of which resulted in a birth. During S.D.E.'s childhood, DYFS investigated claims that S.D.E.'s mother, A.E., abused S.D.E. verbally, physically, and emotionally. Emotional abuse was substantiated. S.D.E. moved out of her mother's home at age six. She lived in foster and group homes until age fourteen. She dropped out of school and went on Social Security when she was fifteen.

DYFS was alerted on July 22, 2004, by hospital representatives that S.D.E. and her son were to be discharged. They reported that, during S.D.E.'s pregnancy, she had visited the hospital multiple times after being beaten and kicked in the stomach. DYFS was also informed that S.D.E. had been transferred to the Crisis Unit with a diagnosis of "Intermittent Explosive Disorder" after going into an "uncontrollable rage" after being told that she would not be able to see her newborn child. S.D.E.'s mother confirmed that there had been a history of domestic violence between S.D.E. and T.L. She also revealed that S.D.E. has not taken her two medications since she was fourteen. D.W. expressed concern for the safety of T.E.L.E. if placed in S.D.E.'s care. Although S.D.E. was discharged from the hospital on July 22, T.E.L.E. "was not discharged home to his mother due to her mental health issues."

On July 30, 2004, a Family Part judge issued an order pursuant to a Notice of Emergency Removal, N.J.S.A. 9:6-8.29 and 8.30, based upon S.D.E.'s diagnosed "Intermittent Explosive Disorder" and the allegations of domestic violence.

S.D.E. was examined by a psychiatrist, Dr. Ambrose O. Mgbako, on November 4, 2004. She told Mgbako that she was twice hospitalized as a child due to "temper tantrums and crying a lot." S.D.E. took various types of medication between ages six and fourteen, also recalled "get[ting] upset easily during this period." Mgbako determined that S.D.E. did not need psychiatric support.

On December 3, 2004, the DYFS caseworker noted that S.D.E. "[did] not have a place of her own to stay . . . [and was] not taking the prescribed medications that she needs to take." S.D.E. contacted her DYFS caseworker on March 30, 2005, stating that she found an apartment in Irvington and needed financial assistance with rent and a security deposit. She later received letters on April 12 and 14, 2005, from the Newark Housing Authority, informing her that she had been assigned a housing unit.

S.D.E. tested positive for marijuana on December 16, 2004. She again tested positive for marijuana on June 19, 2005.

Dr. Charles S. Hasson, a psychologist, informed the DYFS caseworker on March 2, 2005, that he was terminating his treatment of S.D.E. because she "failed to show for four appointments with no attempt to call or explain" her absence. He diagnosed S.D.E. with

a borderline personality disorder in which she overreacts to any perceived slights. She is demanding, immature and has no insight into how she causes problems for herself. She requires long term psychiatric treatment with medication and also needs psychotherapy. Her anger control problem is just the tip of the iceberg. She is very unstable and would present a danger to any child left in her care. At a minimum, she needs an immediate psychiatric work-up with medication to stabilize her mood. [S.D.E.] has an explosive temperament and could react in a violent manner toward people she perceives as crossing her. I am not optimistic about her future. She is essentially satisfied with the person she is and only becomes upset when people and circumstances do not bend to her will.

S.D.E. also underwent a psychiatric evaluation on April 13, 2005, performed by Dr. Ronald W. Crampton. S.D.E. indicated to Crampton that she had multiple arrests for various infractions, including assault and terroristic threats. She also stated that "there may be current, unspecified, outstanding charges against her." S.D.E. told Crampton that she had a total of four pregnancies, which included "two miscarriages and one therapeutic abortion." Crampton noted that S.D.E. had previously taken medications, including Mellarill, Depakote, and Risperdal. S.D.E. expressed to Crampton a desire to become a daycare worker or nursing assistant. Crampton's observations of S.D.E. included "attempts to camouflage her underlying anger," mood fluctuation, limited insight into her situation, and poor judgment. S.D.E. was diagnosed with "Mood Disorder NOS [and] . . . Personality Disorder NOS." Crampton recommended that S.D.E. not have unrestricted access to T.E.L.E. and that she receive "comprehensive mental health services."

S.D.E.'s DYFS caseworker contacted her on May 13, 2005, informing her that she was scheduled to begin anger management counseling on May 26 at Powell Group. S.D.E. failed to complete the program. S.D.E. was also told to participate in parenting skills classes at Wise Women, which she completed.

On June 15, 2005, S.D.E.'s therapist, Tiffany Flynn, LSW, notified the DYFS caseworker that S.D.E. missed two scheduled counseling sessions without calling to cancel or reschedule. Flynn informed DYFS that S.D.E. was not taking any medication and stressed that it was imperative that S.D.E. take medication due to her mental health issues. Two employees at Final Stop Family Services (Final Stop) also contacted the DYFS caseworker, on June 17, 2005, advising that S.D.E. was contacted on three separate occasions to schedule parenting skills classes without success. Flynn again notified the DYFS caseworker on July 12, 2005, that S.D.E. missed another Final Stop appointment without canceling or rescheduling.

On July 16, 2005, S.D.E. contacted DYFS, alleging that her father, T.W., threatened to kill S.D.E. and T.E.L.E. the previous day while at S.D.E.'s home. S.D.E. told the DYFS caseworker that T.W. resides in D.W.'s home and she wanted T.E.L.E. removed from D.W.'s home due to concerns for the child's safety. On that same date, the DYFS caseworker received a call from D.W., who stated that S.D.E. "had come to the front of her home cursing and threatening her." The DYFS caseworker, as well as two police officers, responded to D.W.'s home. D.W. denied that T.W. was staying at her home and signed a DYFS service agreement to that effect.

On July 25, 2006, Leah Jackson from Final Stop alerted the DYFS caseworker that S.D.E. missed an appointment for a parenting skills class without canceling and arrived to a subsequent class without the proper materials, requiring rescheduling. Because S.D.E. had missed five scheduled appointments and attended only one class, Jackson advised that S.D.E. "ha[d] not made any progress in regards to parenting." Jackson wrote the DYFS caseworker again on July 27, 2005, reporting that, although S.D.E. attended a July 26 class without the proper materials, Jackson and her supervisor were able to create a plan for parenting skills classes and counseling sessions.

Flynn wrote to the DYFS caseworker on August 2, 2005. Flynn noted that she had met with S.D.E. for four individual counseling sessions, the majority of which time "was spent on discussing the importance of following through with obtaining medication as well as attending her therapy sessions," without much focus on S.D.E.'s "anger issues." On one occasion, S.D.E. arrived with an unlabeled medicine bottle, claiming that it was for her medication. However, S.D.E. was unable to identify the name of the medication or the doctor who prescribed it. Flynn found that S.D.E. "was very adamant about not wanting to participate in individual counseling, as well as not wanting to take medication." Flynn concluded that S.D.E. "is unable to engage in therapeutic treatment due to her unstable mental state and will not benefit from further continued therapy."

S.D.E. contacted DYFS on August 17, 2005, after "a friend informed her" that D.W. and T.W. were having an argument in D.W.'s home while T.W. was holding a beer bottle and D.W. was holding T.E.L.E. A DYFS worker investigated the allegation that day, at which time D.W. stated that T.W. was present at a family funeral the prior week but there was no argument and T.W. was not drunk or residing in her home. D.W. informed the DYFS worker that both she and A.E. had temporary restraining orders against S.D.E. The DYFS caseworker concluded that S.D.E.'s allegations were unfounded.

According to LaToya Wills, a Mental Health Counselor at Newark Beth Israel Medical Center, S.D.E. was enrolled in a program at the hospital from September 2-20, 2005. During that time, S.D.E. only attended four half-day sessions, during which time she engaged in "inappropriate behavior." The Staff concluded that S.D.E. was not appropriate for their program and Wills stated that the psychiatrist recommended S.D.E. attend an anger management group.

S.D.E. began supervised visitations with T.E.L.E. at Tri-City Peoples Corporation on October 20, 2005. S.D.E. visited with T.E.L.E. on four occasions: October 20, November 3, December 15, 2005, and January 26, 2006. S.D.E. missed three visits without calling to cancel, leaving T.E.L.E. waiting at the scheduled appointment. On two other occasions, visits were cancelled by Tri-City when S.D.E. failed to call to confirm the appointments.

On May 23, 2006, Case Manager Loretta Sheikh reported that T.E.L.E. was enrolled at Grace West Daycare Center in Newark on a full time basis and "doing very well." She also noted that he was also doing well with D.W.

S.D.E., D.W., and T.E.L.E. attended a bonding evaluation at the office of Dr. Bessie A. Duncan, a clinical psychologist, on December 6, 2006. Duncan considered S.D.E.'s interaction with her son to be inappropriate. When Duncan told S.D.E. that she was to be given a psychological evaluation, S.D.E. said "she would not comply . . . [and] threatened to leave" before D.W. tried to convince her to stay. D.W. told S.D.E. that staying would help her situation. S.D.E., however, insisted on leaving and would return only if she did not have to submit to a psychological evaluation. Duncan noted that S.D.E. said that she was enrolled in a job-training program, but had not yet started.

Duncan also noted that without a psychological assessment she was unable to determine whether T.E.L.E. should be returned to S.D.E. S.D.E. denied that T.L. had been violent toward her. When discussing a plan for her son if she were to gain custody, S.D.E. stated that, on weekdays, she would take T.E.L.E. to daycare, pick him up, feed him, and put him to sleep. Her plan for weekends would be to leave him with D.W. at D.W.'s home. Duncan maintained that S.D.E. was not aware of how to child proof a home and had no idea of a daily schedule for her son other than daycare during the week and her grandmother's on weekends. She concluded that S.D.E. should not have custody of her son at that time.

At the April 4, 2007, hearing, DYFS introduced the testimony of Sheikh. She testified that DYFS's plan with regard to T.E.L.E. was to have D.W. adopt the child, and that D.W. was willing to do so. Sheikh stated that DYFS provided S.D.E. with "psychological testing, psychiatric evaluation, counseling, parenting skills [classes, and] referrals to . . . the supervised visitation program at [Tri-City]." DYFS also arranged for visitation at a DYFS office. S.D.E.'s visitations with the child at D.W.'s home were ended because S.D.E. caused altercations with D.W. S.D.E. was also allowed to visit the child at daycare, but those visits were ceased due to S.D.E.'s behavior. While S.D.E. was compliant with the parenting skills classes, she was noncompliant with psychiatric and psychological counseling and did not provide any plans for the child. According to Sheikh, T.E.L.E. was developing properly, in good health, and receiving therapeutic services, including play therapy, through his daycare center. From her observations, Sheikh determined that D.W., despite her age, was "quite functional" and in good enough health to care for the child. Sheikh believed that it would not be safe to return the child to S.D.E. because of "her inability to effectively parent, her inconsistent visitation with the child . . . a concern about substance abuse[, and] . . . [m]ental health issues."

Linda Onyekwelu also testified on DYFS's behalf. Onyekwelu was assigned to the case the Tuesday prior to the April 4 hearing. She did a home assessment and visited T.E.L.E. at daycare. She observed that D.W.'s home was neat, well arranged, and free of any hazards, and that the child had adequate sleeping arrangements. Onyekwelu stated that she attempted to arrange a court ordered visitation between S.D.E. and her child, but was unable to reach S.D.E.

At the motion to vacate the default, S.D.E. related that on April 4, 2007, when she was eighteen weeks pregnant, she went to a scheduled gynecologic cytology examination with Dr. Anna Shoshilos at Newark Beth Israel Medical Center. The examination was not an emergency. Instead, the appointment had been made approximately a month in advance. According to S.D.E., on March 19, when she was present in court and the court had scheduled the April 4 hearing date, she did not mention the conflict because she had forgotten about the appointment. When asked why she waited until the day after the April 4 hearing to call her attorney about her doctor's appointment rather than calling prior to or on the day of the hearing, S.D.E. responded, "I don't know."

On appeal, S.D.E. raises the following points:

I. THE TRIAL COURT ERRED IN ENTERING DEFAULT AND IN DENYING THE MOTION TO VACATE THE DEFAULT ENTERED AGAINST DEFENDANT. (RAISED BELOW.)

II. THE TRIAL COURT ERRED IN ENTERING FINAL JUDGMENT BY DEFAULT AGAINST DEFENDANT. (RAISED BELOW.)

III. THE DEFAULT JUDGMENT ENTERED BELOW WAS NOT BASED UPON THE REQUIRED PROOF BY CLEAR AND CONVINCING EVIDENCE. (NOT RAISED BELOW.)

A. The child's safety, health or development has not been and will not continue to be endangered by the parental relationship.

B. The parent is willing or able to eliminate the harm facing the child and is able or willing to provide a safe and stable home for the child.

C. DYFS has not 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 trial court failed to consider alternatives to termination of parental rights.

D. Termination of parental rights will do more harm than good.

IV. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW.)

We first address S.D.E.'s assertion that the trial judge erred in entering default and denying her motion to vacate default. She contends that her prenatal medical appointment satisfies the "good cause" criteria required to set aside a default. She maintains that she was seeking medical help and was not guilty of "contumacious conduct." She rationalizes that, had she decided to skip the medical appointment to attend court, she would have been penalized for neglecting her baby. She also argues that an application to vacate a default should be viewed with great liberality and that her due process rights were violated because the judge proceeded to default judgment in her absence.

Rule 4:43-3, Setting Aside Default, provides the following:

For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with R. 4:50.

Good cause is not the standard for setting aside default judgment. Default judgment was entered on April 4 after the judge conducted a proof hearing in which he reviewed a vast number of records, reports, and evaluations. The March 19 Case Management Order notified S.D.E. that a proof hearing would be held on April 4. It specified in bold capital letters:

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

More importantly, S.D.E. was in court on March 19, at which time she was advised of the April 4 hearing. She was well aware of the possibility that failure to appear could result in entry of a default judgment terminating parental rights. See In re Guardianship of N.J., 340 N.J. Super. 558, 561 (App. Div.), certif. denied, 170 N.J. 211 (2001). The procedural history demonstrates that S.D.E. failed to appear on at least five occasions for scheduled court sessions. The pertinent reasons for relieving a party from a judgment are enumerated in R. 4:50 and include "excusable neglect," "newly discovered evidence," or "any other reason justifying relief from the operation of the judgment."

S.D.E. correctly points out that an application to vacate a default judgment is "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). Nevertheless, a default judgment will not be disturbed unless the failure to appear and defend was excusable under the circumstances and there is a showing of a meritorious defense. Id. at 318.

S.D.E. failed to present sufficient proof to establish excusable neglect. She could not explain why she waited until after the hearing to notify the court and counsel of the doctor's appointment that had been scheduled prior to her March 19 appearance in court. Her claim of forgetfulness does not ring true, when consideration is given to her other absences. Her failure was in not advising the court of her medical appointment rather than attending the medical appointment. Presumably, the judge would have accommodated her had she notified the court or counsel of the conflict. Her conduct negates any finding of excusable neglect or exceptional circumstances.

S.D.E.'S argument that her due process rights were violated because the proof hearing proceeded in her absence lacks merit. The record clearly establishes that she was advised in advance by the court of the necessity to appear. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899, 99 L. Ed. 2d 75, 81 (1988); Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 313 (App. Div. 1997).

We next address S.D.E.'s claim that DYFS did not present sufficient evidence at the proof hearing. The criteria for the termination of parental rights, which includes the best interest test, is set forth in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986). The Legislature, thereafter, codified the elements of the test in N.J.S.A. 30:4C-15.1(a). The statute provides that, in order to terminate parental rights, the State must prove the following:

(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.

Each of the statutory elements must be established by clear and convincing evidence.

The psychological examinations established that S.D.E. has a mood and personality disorder which puts her in denial of her mental health issues. Hasson diagnosed S.D.E. with borderline personality disorder and anger management problems, both of which "present a danger to any child left in her care." S.D.E.'s mental health problems pose a continuing danger to T.E.L.E.'s health and safety.

Duncan found that S.D.E.'s interaction with her son is inappropriate and she did not have an acceptable plan for taking care of her son. She is simply unable to and is not in a position to care for her son. Moreover, she continually rejects medication as well as psychological counseling to deal with her anger issues. Her prolonged inattention to her problems, together with her inability to assume a responsible parental role, satisfies the second prong.

The record also established the third prong. S.D.E. failed to take advantage of DYFS's referrals to psychologist Hasson, therapist Flynn, and mental health counselor Wills. Although she attended some of her parenting classes, she missed those scheduled with Final Stop. When she did attend, she neglected to bring the proper materials. She failed to attend many of her son's visitation sessions supervised at Tri-City. The visits with her son scheduled at DYFS's office and D.W.'s home had to be ended because of her problematic behavior.

When considering the fourth prong, there is a "strong public policy in favor of permanency," and a parent should not be afforded an unlimited amount of time to correct problematic conditions in order to reunite with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 357-58. T.E.L.E. has formed a close relationship with D.W., with whom he has lived since shortly after his birth, and is doing well. S.D.E. has never cared for her son, is incapable of doing so, and is unwilling to address those problems that prevent her from doing so. The evidence satisfies the fourth and final prong. Our thorough review of the entire record satisfies us that, notwithstanding the arguments presented on behalf of S.D.E., all the criteria under A.W. and the statute were met by clear and convincing evidence. See Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

Finally, S.D.E. contends that she received ineffective assistance of trial counsel because counsel failed to object to the admission of expert reports without those experts' live testimony. Recently, in N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007), the Court recognized that a parent responding to a petition to terminate parental rights possesses the right to effective assistance of counsel. The Court directed that such claims be raised on direct appeal. Id. at 311. The standard to be used in judging the effectiveness of counsel is the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by New Jersey courts in State v. Fritz, 105 N.J. 42 (1987).

S.D.E. asserts that her trial counsel was deficient because he did not move to exclude the expert reports relied upon by the judge in terminating S.D.E.'s parental rights. S.D.E. contends that expert reports, such as the ones introduced in the instant case by Mgbako, Hasson, Crampton, and Duncan, should have been excluded under In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969). Cope, however, explicitly allows for such expert reports to be introduced against a parent in a complaint for termination of parental rights. Ibid. An expert report may be admitted into evidence where it is prepared by DYFS staff personnel or an affiliated medical, psychiatric, or psychological consultant having "first-hand knowledge of the case, at a time reasonably contemporaneous with the facts [it] relate[s]." Id. at 343.

S.D.E. does not present any factual or legal proof, beyond conclusory statements, to establish a prima facie case of ineffective assistance of counsel. There is no proof presented contradicting the expert reports, questioning the veracity of the conclusions contained therein or the competency of the evidence reviewed by the judge. Indeed, S.D.E.'s counsel pointed out that an evaluation prepared for S.D.E. by Dr. Griffith would not have benefited S.D.E. We are satisfied that S.D.E.'s claim that she received ineffective of assistance of counsel lacks sufficient legal and factual supported to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we see no reason to intervene.

Affirmed.

S.D.E. did appear at case management conferences on November 6, 2006, January 17, 2007, and March 19, 2007.

Loretta Sheikh is also named Loretta Elsheikh and Loretta El Sheith in the record.

September 15, October 20, and December 6, 2006, and February 14 and 28, 2007.

Dr. Griffith's first name was not provided in the appellate record.

(continued)

(continued)

22

A-5494-06T4

RECORD IMPOUNDED

March 18, 2008