April 2, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF L.A. AND D.A., MINORS.
On appeal from the Superior Court of New Jersey Chancery Division, Family Part, Essex County, FG-07-193-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Stern, Collester and C.L. Miniman.
This is an appeal by N.A., the mother of L.A. and D.A., from a "judgment of guardianship after default and proof hearing," entered January 8, 2007, against N.A., W.H., father of L.A., and "the unknown father of [D.A.]."*fn1 The fathers did not appear and do not appeal. A default was also entered against N.A. because of her non-appearances, but she ultimately appeared and moved to vacate the default. Judge Craig R. Harris declined to vacate the default, but held a proof hearing at which N.A. testified and her counsel was permitted to cross-examine the DYFS witness. N.A.'s testimony included the fact she was on cocaine and left rehabilitation programs. In fact, a test revealed she tested positive for cocaine on the day of the hearing.
While the two children, L.A. and D.A., were subjects of the termination proceeding, the "permanency order" of January 8, 2007 pertains only to D.A. L.A. has special needs, and the foster parent was not ready to adopt her at that time.*fn2
The present proceedings were commenced when N.A. passed out after a drinking binge and related fight while on medication. The children were left unattended at a motel. The children have been in foster care since June 2004. By order of September 30, 2004, the children were placed "under the custody, care and supervision" of DYFS. On November 10, 2004, N.A. stipulated that she had put her children "at risk of harm pursuant to [N.J.S.A.] 9:6-8.21(C)(4)(b) by consuming alcohol while on medication causing her to pass out and render herself unable to provide proper care for her children." The children were continued "under the custody, care and supervision of the Division," with N.A. to attend "in-patient drug treatment" and supervised visitation. A similar order was entered on compliance reviews on January 20, 2005, April 14, 2005, and, after transfer of venue to Essex County, on June 10, 2005.
A "permanency order" of June 17, 2005 placed L.A. with a relative and ordered development of a termination plan with respect to D.A. The court found that N.A. had not completed the in-patient or out-patient drug treatment program she was ordered to attend or to appear for a psychological evaluation. At a permanency hearing after re-transfer of the case to Cumberland County, on November 1, 2005, the judge found that "[t]he mother has been offered a substance abuse evaluation and treatment, a psychiatric evaluation and follow-up treatment and parenting classes," but "has not completed the needed services for reunification." Compliance reviews continued in Cumberland County until the matter was re-transferred to Essex County on November 28, 2005, with instructions for DYFS to commence termination proceedings. A complaint for guardianship and Order to Show Cause thereon were filed on March 29, 2006, and review hearings were conducted in Essex County at least once a month from May through December 2006 (except in August and November). N.A. did not appear for at least five of the hearings.*fn3
In a report dated August 16, 2006, Dr. Ronald Gruen found that N.A. suffered from bipolar disorder and was "incapable of parenting at this time." He concluded:
[N.A.] cannot parent at this time and the prognosis for change is not good. She has not made very much progress in the past two years during the times that the children have been in placement. She has been noncompliant with services. She is still abusing drugs.
In my opinion, the children's lives cannot be placed on hold any longer waiting to see if Ms. [A.] can become a responsible adult/parent. For the best interest of the children, I recommend termination of their mother's parental rights.
In his report of December 16, 2006, Dr. Alexander Ionfi stated N.A. "cannot be considered as a minimally adequate parent to take care of her two children."
At the termination hearing of January 8, 2007, the judge denied another motion to vacate the default, but defendant was given the right to testify and cross-examine DYFS caseworker, Rose Johnson, who testified for DYFS.*fn4 Johnson's testimony detailed DYFS' efforts in the case and supports the findings under the AW-statutory four prong test. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986); N.J.S.A. 30:4C-15.1.*fn5 See also, e.g., In Re Guardianship of K.H.O., 161 N.J. 337 (1999). Ms. Johnson noted that L.A. had been in seven foster homes and D.A. in six, and that N.A. had not attended therapy, the children had special needs, and N.A. had not addressed "the circumstances that led to the removal of the children from [her] care."*fn6 Moreover, given N.A.'s actual involvement in the hearing, we see no real adverse impact by the technical failure to vacate the default entered against her, and any difficulties N.A. had in terms of preparation can be attributed to her non-appearance and default.