March 31, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF D.C.H., J.S.H., AND B.C.H., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FG-05-09-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2008
Before Judges Yannotti and LeWinn.
On June 21, 2006, the Division of Youth and Family Services (DYFS) filed a complaint, under Docket No. FG-05-09-06 (the FG proceedings), seeking (1) guardianship of the minors, D.C.H., born April 29, 1998, J.S.H., born July 31, 2000, and B.C.H., born July 22, 2002, and (2) termination of the parental rights of H.H., their natural mother. On October 25, 2006, an order of default was entered against H.H.
A proof hearing was held on January 8, 2007. At the outset, counsel for H.H. made an oral application to vacate the default, which the judge denied. The court then proceeded with the hearing and rendered a decision terminating H.H.'s parental rights and awarding guardianship of the children to DYFS. An order reflecting that decision was entered on January 10, 2007. On February 7, 2007, the court entered an order denying H.H.'s oral application to vacate the default nunc pro tunc. This appeal followed.
On appeal, H.H raises the following arguments:
THE TRIAL COURT ERRED IN GRANTING THE DIVISION'S MOTION FOR DEFAULT AGAINST THE DEFENDANT
THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE
(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN WAS [SIC] AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP
(B) THE PARENT IS WILLING AND ABLE TO ELIMINATE THE HARM FACING THE CHILDREN
(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP H.H. CORRECT THE CIRCUMSTANCE WHICH LED TO HER CHILDREN['S] PLACEMENT OUTSIDE THE HOME
(D) TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD
Having reviewed the extensive record in this case*fn1 , we conclude the termination order should be affirmed substantially for the reasons stated in the trial judge's bench decision. The trial testimony of the DYFS caseworker, in conjunction with the voluminous documentary evidence, presented clear and convincing evidence to support the judge's decision to terminate H.H.'s parental rights under N.J.S.A. 30:4C-15.1(a)(1) through (4). Defendant's challenges to that decision are without sufficient merit to warrant discussion. R. 2:11-3(e)(1) (A) and (E).
We find no abuse of discretion in the trial judge's entry of default against H.H. on October 25, 2006, or in his subsequent denial of her application to vacate that default on the day of trial. There was "sufficient credible evidence" of record to support those two decisions as well. Elkin v. Sabo, 310 N.J. Super. 462, 468 (App. Div. 1998). Because of the magnitude of the consequences of that default, D.Y.F.S. v. T.J.B., 338 N.J. Super. 425, 432-33 (App. Div. 2001), we briefly address defendant's argument on this point.
Prior to the commencement of the FG proceedings on June 21, 2006, H.H. had been involved with DYFS as far back as July 2002, resulting in DYFS' institution of abuse and neglect proceedings on December 11, 2002, under Docket No. FN-05-42-03D (the FN proceedings). The FN proceedings were conducted before the same judge who later presided over the FG proceedings.
Throughout the course of the FN proceedings, defendant consistently failed to appear for scheduled court proceedings and was non-compliant with DYFS referrals for drug and alcohol abuse screenings and psychological evaluations. Her eldest child, D.C.H., came under the care and supervision of DYFS on December 18, 2003. The two younger children, J.S.H. and B.C.H., were permanently removed from H.H.'s custody in August 2004.
The FN proceeding was scheduled for a compliance review hearing on June 21, 2006. Once again, H.H. did not appear. DYFS thereupon terminated the FN proceeding and instituted the FG proceedings.
H.H. appeared at the first case management hearing in the FG proceeding on August 2, 2006, having been brought to court from custody in the Cape May County Jail. On that date, H.H. received a copy of the case management order scheduling the next court appearance for September 20, 2006. The terms of that order stated, in bold print:
"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."
On September 20, 2006, H.H. came to court but left the courthouse before her matter was heard. H.H.'s attorney appeared and told the court:
I didn't have an adequate chance to speak to [H.H.] before she left, but I did have a chance to speak to her mother, [P.H.], and I did tell her that if [H.H.] didn't show up next time, that the Division would most likely be seeking a default. She told me she would convey that to [H.H.], but I will still reach out to [H.H.] in the hopes that . . . she'll be here.
The court thereupon issued an order scheduling the next case management conference for October 25, 2006, and ordering H.H. to attend psychological and bonding evaluations scheduled by DYFS. Handwritten on the order was the following notice: "Failure to appear at the upcoming October 25, 2006 hearing may result in a default being entered and ultimately termination of parental rights." The handwritten language was in addition to the bold-print notice on the form of order itself.
H.H. failed to appear at the October 25 case management conference. Her attorney appeared and advised the court that "[n]o one has had any recent contact with [H.H.]." The judge granted DYFS' request for entry of default, noting it was H.H.'s "second consecutive failure to appear[.]" The judge entered an order canceling the previously scheduled bonding and psychological evaluations, due to H.H.'s failure to attend, and scheduling the proof hearing.
H.H. appeared on January 8, 2007; once again she was brought from custody in the Cape May County Jail. At the outset of the hearing, her attorney made an oral application to vacate the default, based on H.H.'s claim that she did not receive notice of the October 25 hearing because there was a fire at her residence in "late September" and she had become homeless.
In his decision, the trial judge first acknowledged his obligation "to take a liberal view, in the interest of justice," of defendant's application to vacate default. He then noted that H.H. had failed to appear in September and October, and that the trial notice was sent to H.H.'s last known address and was not returned. The judge then recounted H.H.'s history of non-appearances and non-compliance with court orders in the FN litigation, and concluded: "[H.H.] has effectively been a non-participant, in this FG and the previous FN, for an extended period of time. . . . [T]he failure to appear on October 25th is part of a larger pattern[.]"
Notwithstanding the default entered against H.H., the judge permitted her attorney to participate in the hearing. Counsel had the opportunity to cross-examine the DYFS caseworker, to challenge the documentary evidence, and to make arguments to the court on H.H.'s behalf.
We conclude that the trial court properly declined to vacate the default against H.H. The judge correctly noted, as a matter of general principle, that an application to vacate default should be "'viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.'" T.J.B., supra, 338 N.J. Super. at 434 (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd 43 N.J. 508 (1964)). Nonetheless, that principle does not mandate the granting of such an application even "when the results have consequences of magnitude such as the termination of a parent's rights to his or her child." Ibid.
Defendant relies upon T.J.B. to support her contention that the trial judge "erred in not finding good cause" to vacate the default against her. However, the facts in T.J.B. are distinguishable from H.H.'s history, thereby rendering that decision inapposite.
In T.J.B., defendants were seriously mentally impaired. Ibid. The court orders that defendants received did not contain language "alert[ing them] to the possibility that their failure to appear at a review hearing could result in the entry of a default judgment terminating their parental rights." Id. at 429. Their case was "relatively new" at the time default was entered. Id. at 434. Moreover, there was "no evidence that defendants failed to comply with any of the court's orders." Ibid. On those facts, we "simply h[e]ld that proper procedures must be followed, including the use of a more appropriate form of order, before we will affirm a termination order entered by default." Id. at 435.
"[P]roper procedures" were followed here. Defendant had the benefit of receiving "a more appropriate form of order" that clearly warned her of the consequences of non-appearance. Her two non-appearances in the FG proceedings did not exist in a vacuum; they followed a pattern of non-appearances and disregard of court orders over the prior four years.
We upheld a termination order entered by default in a case that is factually analogous to this one. In In re Guardianship of N.J., S.J., C.A., J.A., and E.J., 340 N.J. Super. 558 (App. Div.), certif. denied, 170 N.J. 211 (2001), the children's natural mother, D.M.J., appealed the default entered against her by the trial court. The facts showed that D.M.J. "ha[d] a history of not appearing for court proceedings and of not maintaining contact with her attorney." Id. at 560. D.M.J. was also non-compliant with court-ordered drug evaluations. Ibid. On one occasion when she did appear in court, she was expressly warned that her failure to appear could subject her "to a default that might result in the loss of her children." Ibid. On the day of trial, she did not appear and her attorney "did not know her whereabouts." Ibid.
On that factual record, we concluded that the trial judge "did not abuse his discretion in refusing to vacate the default judgment." Ibid. We noted that, "[u]nlike the circumstances" in T.J.B., supra, D.M.J. "was well-aware of the possibility that failure to appear could result in entry of a default judgment terminating parental rights." Id. at 561.
We reach the same conclusion here. H.H.'s history is akin to that of defendant in In re Guardianship of N.J., and bears no similarity to that of defendants in T.J.B..