NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.W. and C.F.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3752-08T43750-08T4

A-3752-08T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.W. and C.F.,

Defendants-Appellants.

_________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

S.W., D.W. AND D.W.,

Minors.

__________________________________________

 

Submitted January 19, 2010 - Decided

Before Judges Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-53-08.

Yvonne Smith Segars, Public Defender, attorney for appellants (Evelyn F. Garcia, Designated Counsel, on the brief in A-3750-08T4; Dianne Glenn, Designated Counsel, on the brief in A-3752-08T4).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated termination of parental rights cases, default judgments were entered against the parents C.F., the mother, and J.W., the father. The parents now appeal from the order of February 19, 2009, denying their applications to vacate those default judgments. We conclude that the Rules do not permit the entry of default judgments under the circumstances here. The parents' failure to appear for a court hearing did not merit entry of default. Both parents had participated in prior hearings before the trial court and were represented by counsel. When they did not appear, the guardianship trials should have proceeded in their absence without precluding defense counsel from presenting affirmative evidence on their behalf.

We nonetheless affirm the judgments because the parents have failed to make a showing that the outcome would have been different if default had not been entered. They have not come forward with any material evidence that they would have introduced that had a likelihood of changing the result.

While this appeal was pending, defendants moved to vacate the judgments and remand the case to the trial court because the children have recently been removed from their foster adoptive home. While we deny the motion to remand, this denial is without prejudice to the parents' right to make a motion pursuant to Rule 4:50(e) and (f) to set aside the judgments based on these circumstances.

I

C.F., the mother, and J.W., the father, are the parents of twins, a boy and a girl, born in August 2004; the twins are the subject of this appeal. These parents had also appealed the termination of their parental rights to a third child, S.W. born in January 2001, and the mother had appealed the termination of her parental rights to a fourth child, A.D. born in July 1994, with a different biological father. However, while this appeal was pending, all parties consented to kinship legal guardianship for S.W. and A.D. with a maternal relative. As a result, we remanded for entry of the appropriate order, and this appeal now concerns the twins only.

Before the events leading to this litigation, the children were living with their mother, and the father was living separately from them, although he saw them on a regular basis. On December 18, 2005, the mother was taken to the hospital because she was hallucinating that "bugs were crawling all over her." She tested positive for cocaine. The father, who appeared at the hospital, said that he was intoxicated, but would take the children if another relative was unavailable. The children appeared healthy and clean, with no marks or bruises. With the consent of both parents, the Division of Youth and Family Services (DYFS) placed the children with a maternal great aunt.

DYFS filed an order to show cause and verified complaint, seeking care, custody and supervision of the four children. Both parents appeared at the initial hearing. The children were placed in the immediate custody, care and supervision of DYFS.

Then began the mother's long efforts in an attempt to regain custody of her children. In 2006, she successfully completed an in-home parenting skills program and individual counseling. Her psychological evaluation revealed no mental illness, although it did indicate that she had "poor judgment" and was "lacking in insight." She obtained a full time job and had adequate housing and in September 2006, the counseling service recommended that the children be slowly transitioned home. The mother initially successfully participated in a substance abuse program, but on one occasion in June 2006 she tested positive for cocaine and in August 2006 she missed two consecutive drug counseling appointments. Although she was terminated from the program, she was then accepted into another program.

By February 2007, the counseling service again recommended that the children be returned home and the children were being transitioned back to the mother with unsupervised visits. Then in March 2007, when the children were scheduled to be returned to her, the mother tested positive for cocaine, and the children were not returned. The twins were then placed in a foster home where they exhibited behavioral problems.

By April 2007, the mother was attending drug therapy twice a week, group counseling twice a week, and NA meetings two to four times a week. She had one positive urine screen in May, but was otherwise doing well in the drug program. Then in June 2007, she tested positive for cocaine and stopped attending the program. By August 2007, the mother was placed again in an outpatient drug free rehabilitation program.

In September 2007, DYFS filed its complaint seeking termination of the parental rights of the mother and father. On the November 1, 2007 return date, the mother appeared with counsel and was ordered to submit to a psychological and bonding evaluation and an immediate drug screening, and DYFS was directed to arrange visitation. The day of the January 2008 hearing, the mother tested positive for cocaine. At the conclusion of the hearing, the trial court set a pretrial date for March 20, 2008. It did not instruct the mother that she must attend that hearing nor did it advise her that if she failed to attend a default would be entered against her.

On March 20, 2008, while the mother had been present in the courthouse that day, she left before the hearing began. As a result, upon application by DYFS, the trial court placed her in default. DYFS also reported that the mother was being discharged from the court-ordered outpatient substance abuse treatment program for lack of attendance. However, she was still working.

In April 2008, DYFS advised the mother by letter that an appointment had been scheduled for her in order to reinstitute visits with the children, and that her court ordered psychological evaluation was scheduled for May 14, 2008. She was advised to confirm the appointments by April 21, 2008. By the time she responded, it was too late.

A proof hearing was conducted on May 29, 2008. The mother's attorney's attempts to reach her client had been unsuccessful. Among other proofs, DYFS provided testimony indicating that the twins had both been classified as pre-school disabled and had been placed in special education. Since late 2007, they were residing with a foster-adopt parent, who was a special education teacher and interested in adopting them. On October 8, 2008, a default judgment was entered against the mother terminating her parental rights.

We will now recount the events regarding the father. He first appeared in court in December 2005, after the children were initially removed from the home. He appeared again in court on February 10, 2006, when he was ordered to undergo paternity testing and random urine screenings. He tested positive for marijuana and did not attend three subsequent drug screenings scheduled in March and April 2006. He also did not keep appointments for paternity testing. On June 20, 2006, he was ordered to cooperate with a psychological evaluation and a substance abuse evaluation. This he apparently did not do. The father does not appear to have become further involved in the litigation until July 17, 2008. At the mother's proof hearing on May 29, 2008, testimony was taken with respect to the father, and the trial court entered a decision terminating his parental rights as well. However, that determination was contingent on DYFS providing proof that he had been served.

After a further search, DYFS was able to locate the father.

He appeared in court on July 17, 2008, and the Court provided him with a form to obtain counsel. According to DYFS, the father missed the child placement review meeting scheduled in August to discuss his plans for the children. He appeared in court with counsel on August 21, 2008, and the judge indicated that the matter would be set down for trial. The father admitted that he would test positive for marijuana if screened that day. The court ordered a drug abuse assessment appointment for him and directed him to be present for a home visit scheduled for August 29, 2008. The trial was scheduled on the record for September 25, 2008.

When the father did not appear in court on September 25, 2008, at the request of DYFS, the judge entered a default against him, and scheduled a proof hearing. At a court hearing on October 2, 2008, DYFS reported that the father was not home for the August 29, 2008 home visit. DYFS also reported that while he missed his first drug assessment appointment, he was eventually evaluated, and he was referred to an intensive outpatient treatment.

The father was not present for the proof hearing held on October 8, 2008, although his attorney was present. DYFS did not have information on whether the father had followed up with the outpatient treatment. The court held a proof hearing on the father anew. The DYFS caseworker testified that the father had a long history of marijuana use; he never graduated high school; he was unemployed; and he had no visible means of support. On October 8, 2008, the trial court entered an order terminating his parental rights.

In October 2008, the month in which the default judgments were entered, the parents moved before the trial court under Rule 4:50-1 for relief from the default judgments. See N.J. Div. of Youth & Family Servs. v. T.R., 331 N.J. Super. 360 (App. Div. 2000) (providing that parents who seek to set aside a default judgment terminating their parental rights must move before the trial court for relief under Rule 4:50-1). The motions were heard on February 19, 2009. The father advised that he had been unaware of the date of the proof hearing, because he was not present in court when it was scheduled. Further, in his certification in support of this motion, he advised that he had started the drug program the day before the proof hearing and that he was required to attend it four days a week from 10 a.m. to 2 p.m. At oral argument on the motion, his attorney advised the court that the father had maintained a drug free status. The mother acknowledged her difficulty in staying away from drugs, but by the time the motion was heard, she had successfully completed a drug treatment plan and had been "clean" for the past six to seven months. The trial court denied the motions. The parents now appeal to this court.

II

We first address the procedural problems raised in this appeal. The trial court entered a default against each parent when the parent did not appear at a court proceeding even though each parent was represented by counsel at the proceeding. Entering a default under these circumstances was contrary to the Rules. As we explained in New Jersey Division of Youth & Family Services v. P.W.R., a default may not be entered against a party merely because the party failed to appear at a court proceeding unless the party "has not otherwise defended as required by rule or court order." 410 N.J. Super. 501, 506 (App. Div. 2009).

The Rules provide for the entry of a default where a party "has failed to plead or otherwise defend as provided by these rules or court order." R. 4:43-1. A default also may be entered where a party's answer has been stricken with prejudice. Ibid. A pleading may be stricken for failure to provide discovery provided the procedures under Rule 4:23-5(a) are followed. None of these rules apply here.

The trial court entered default and thereafter default judgment because the parents did not appear at the court proceedings although their counsel were present. Rule 1:2-4(a), which governs sanctions for failure to appear at a court proceeding, includes as a sanction "the striking of the answer and the entry of judgment by default." However, this Rule only applies where "no appearance is made on behalf of a party." Ibid. Here, an attorney appeared on behalf of each parent on the days when the defaults were entered. The Rules do not authorize the entry of default under these circumstances. We note that even if Rule 1:2-4 did apply, the sanction of striking the answer and entering judgment by default is viewed as a "recourse of last resort not to be invoked unless no lesser penalty is adequate in view of the nature of the default and its attendant prejudice to other parties." Pressler, Current N.J. Court Rules, comment 1 on R. 1:2-4 (2010).

We note that the form language in the orders entered by the trial court states 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 ENTERED BY THE COURT AND TERMINATION OF PARENTAL RIGHTS." This language, however, does not warrant the dismissal, because through the presence of their attorneys, the parents had made an appearance. Even if the language is interpreted as referring to them individually and not counsel, once served, neither party continually failed to appear in the guardianship proceeding. Further, "[a] 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." N.J. Div. of Youth & Family Servs. v. P.W.R., supra, 410 N.J. Super. at 507. The parents were not advised in the order or on the record that they must appear at the next hearing or default would be entered. Moreover, even if that were done, "a court should not enter default when fundamental fairness counsels against it." Id. at 508.

Freely granting defaults and default judgments in termination of parental rights cases leads to the clash of two important policy concerns when a parent moves to vacate those default judgments. On one hand, a motion "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.'" N.J. Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 434 (App. Div. 2001) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)). Application of this principle "is particularly important when the results have consequences of magnitude such as the termination of a parent's rights to his or her child." Ibid. A default judgment will be vacated where defendant has shown both excusable neglect and a meritorious defense. Marder v. Realty Constr. Co., supra, 84 N.J. Super. at 318.

On the other hand, the Court has recognized that "[j]udgments that terminate parental rights profoundly affect the long-term well-being of the children at issue." In re Guardianship of J.N.H., 172 N.J. 440, 479 (2002). Collateral attacks on those judgments run contrary to "[t]he strong judicial interest in protecting children and preserving the stability of their foster-care arrangements, and in many cases their ultimate adoption." Ibid. Where the judgment was reached after a fully contested trial, such a collateral attack will be granted in only a "rare case." Ibid. As a result, defaults or default judgments in termination of parental rights cases, as with other kinds of cases, may be entered only when allowed by the Rules.

As noted earlier, the Rules do not provide for entry of defaults in the circumstances of this case. When the parents did not appear, the court should have continued with the proceeding without them. When they did not appear at trial, the trial should have continued to judgment without them. The critical difference between proceeding as a proof hearing and proceeding as a trial, is that unlike a trial, in a proof hearing, the defaulted party is unable to present affirmative evidence, although in the court's discretion the party may cross-examine witnesses and challenge proofs. N.J. Div. of Youth & Family Servs. v. L.H., 340 N.J. Super. 617, 619 (App. Div. 2001). Here, at the proof hearings, counsel for each defendant was allowed to cross-examine the witness. While defendants would not have been allowed to present evidence at the proof hearing, they have not identified any evidence that they would have introduced, if allowed to do so, that would have made a difference.

As noted above, on her motion to vacate the default judgment, the mother came forward with evidence that she had subsequently successfully completed her substance abuse program, testifying that she had remained drug free for six to seven months. However, that time period post-dated the proof hearing, so she would not have had that evidence to present if a trial, rather than a proof hearing, had been held on May 29, 2008.

Similarly, the father has not come forward with any proofs that would have made a difference. He indicated that he missed the proof hearing due to his attendance at a drug program. Like the mother he contended that since then he has remained drug free. Once again that status occurred after the proof hearing, and that information would not have been available if a trial, rather than a proof hearing, had been held.

As a result, whether the guardianship hearings had been conducted as ordinary trials or as proof hearings, there would have been no material differences in the proofs. See N.J. Div. of Youth & Family Servs. v. P.W.R., supra, 410 N.J. Super. at 510 (concluding in an abuse and neglect proceeding that the trial judge's error in entering default was of no consequence where the defendant's attorney was permitted to cross-examine witnesses, give a closing statement, and where the record did not reveal that the defense had any witnesses or other evidence to present). As discussed in more detail below, neither defendant was fit to act as a parent at the time of the May 29 and October 8, 2008 hearings.

III

We next address whether the proofs presented at the hearings were sufficient to terminate the parents' parental rights.

Parental rights will be terminated when by clear and convincing evidence, DYFS establishes that to do so is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008). In evaluating whether parental rights should be terminated under this standard, the courts apply the four part test first enunciated in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and now codified in N.J.S.A. 30:4C-15.1(a). Under that test, the following four prongs must be proved by clear and convincing evidence in order to terminate parental rights:

(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-15.1(a).]

These four prongs "are neither discreet nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

At the proof hearing with respect to the mother, the trial court applied the four prong test. It recounted the potential danger presented to the children by the mother's drug addiction. It also concluded that she was unable to ameliorate that harm by the time of the trial, which we note was about two and one-half years after she was hospitalized due to her addiction. The trial court recounted the repetitive efforts of DYFS to provide programs to address the mother's drug addiction, and we note the psychological and parenting counseling DYFS provided as well. Considering the current circumstances of the children, who were in good placements that offered permanency, the trial court determined that termination of the mother's parental rights would not do more harm than good.

At the conclusion of the father's proof hearing, the trial court once again applied the four prong test. It concluded that the father had a substance abuse problem and a "lack of reliability" noting that he was not around to take care of his children, he had appeared at the hospital intoxicated, and he agreed that the children should stay with an aunt. He failed to eliminate the harm. We note that he apparently did not begin a substance abuse program until the week of his proof hearing, which was almost three years after the children had been removed from the home. Indeed, we note that he missed the home evaluation that DYFS had scheduled with him on the record at an earlier hearing. DYFS set up drug abuse evaluations and paternity testing for him which he missed. Recognizing the promise of permanency in the children's current placements and the fact that the children had never lived with their father, the trial court concluded that termination would "clearly not cause any more harm than good," and terminated the father's parental rights.

Our review of a trial court's decision is limited. N.J. Div. of Youth & Family Servs. v. E.P., supra, 196 N.J. at 104. We will not disturb the factual findings of the trial court unless "they are so wholly insupportable as to result in a denial of justice." In re Guardianship of J.N.H., supra, 172 N.J. at 472 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Further, we accord deference to the factfinding of the family court, recognizing its special expertise in this area. 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, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 25 (2007).

We have considered the trial court's decision in light of these legal standards and conclude that the trial court's decision to terminate parental rights was supported by clear and convincing evidence in the record.

IV

While this appeal was pending, we were advised by DYFS that on January 26, 2010, the twins were removed from the foster home where they had been placed since March 2007. The trial court's order of February 3, 2010, indicates that the removal occurred because the foster parent's license was suspended for inappropriately disciplining one of the twins. The order also states that at the recommendation of a therapist, the children have been placed in separate foster homes due to the aggressive behavior of one twin toward the other and that the aggressive twin will be evaluated to determine if a therapeutic placement is needed. However, the plan is to eventually place the children in an adoptive home together. The next trial court hearing was scheduled for May 5, 2010.

In light of these events, both parents have moved for a remand. They seek to vacate the orders terminating their parental rights and request a remand to the trial court for further proceedings. They contend that these recent events preclude a finding that termination of their parental rights will not do more harm than good as required by N.J.S.A. 30:4C-15.1(a). DYFS and the Law Guardian for the twins oppose these applications.

In this appeal, the parents have sought to overturn the judgments terminating their parental rights on the basis that defaults and default judgments were procedurally improper and that the evidence does not support termination. As explained above, we have rejected those arguments. The issues raised in the motion for a remand are different and concern facts that have arisen after this appeal was taken and which have not been developed before this court. We do not know the circumstances of the parents and whether they have remained free of substance abuse and would be able to parent these children; we do not know the nature of the children's problems and whether contact with or separation from their biological family is beneficial or harmful; we do not know what alternatives are available for their placement.

The parents' applications for a remand based on these recent events are best viewed as applications to vacate the judgments under Rule 4:50-1(e) and (f), using the analysis set forth in In re Guardianship of J.N.H., supra, 172 N.J. at 472-75. In J.N.H., the Court explained that a judgment terminating parental rights may be set aside under a Rule 4:50-1(e) or (f) analysis. Id. at 472-75. Rule 4:50-1(e) allows relief from a final order or judgment if "it is no longer equitable that the judgment or order should have prospective application." R. 4:50-1(e). To prevail under this portion of the Rule, the applicant must show that as the result of a change in circumstances, the judgment will result in "'extreme' and 'unexpected' hardship." In re Guardianship of J.N.H., supra,, 172 N.J. at 473 (quoting Housing Auth. v. Little, 135 N.J. 274, 285 (1994)). Rule 4:50-1(f) is a catch-all section of Rule 4:50 allowing a judgment or order to be set aside for any "reason justifying relief." However, relief under this section of the Rule is only available when "truly exceptional circumstances are present." In re Guardianship of J.N.H., supra, 172 N.J. at 473 (quoting Housing Auth. v. Little, supra, 135 N.J. at 286).

When applying these portions of the Rule to termination of parental rights cases, the Court explained:

On a Rule 4:50 motion, the need to achieve equity and justice always is balanced against the state's legitimate interest in the finality of judgments. Where the future of a child is at stake, there is an additional weight in the balance: the notion that stability and permanency for the child are paramount. Thus, in determining a Rule 4:50 motion in a parental termination case, the primary issue is not whether the movant was vigilant in attempting to vindicate his or her rights or even whether the claim is meritorious, but what effect the grant of the motion would have on the child.

[Id. at 474-75 (citations omitted).]

These issues must first be raised before the trial court where a proper record can be made. Thus, we deny the motion for a remand, but this denial is without prejudice to the parents' rights to make a motion to vacate the judgments under a Rule 4:50-1(e) or (f) analysis. However, in navigating such an application, the trial court must be guided by the best interests of the children, keeping in mind that these children removed from their mother in 2005 and from their maternal great aunt in 2007, are still without a permanent placement.

 
Affirmed.

At the proof hearing, the DYFS worker testified that she had arranged a bonding and psychological evaluation for May 14, but her letter to the mother did not mention the bonding evaluation.

The default entered against him on May 29, 2008 was vacated by order dated October 2, 2008.

(continued)

(continued)

2

A-3750-08T4

RECORD IMPOUNDED

March 19, 2010