July 22, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.R.G., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-108-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges Parker and Gilroy.
Defendant M.G. appeals from an order entered on August 16, 2007 denying his motion to vacate a default judgment terminating his parental rights to his biological child, A.R.G. The child's mother, J.G., entered an identified surrender of the child on April 18, 2007. The identified surrender was to the child's current foster parent, who intends to adopt the child.
A.R.G. was born on March 28, 2005, drug addicted and HIV positive. At the time of the child's birth, defendant was incarcerated on drug charges.
On April 30, 2005, when the child was released from the hospital, she was placed in the legal and physical custody of the Division of Youth and Family Services (DYFS). The infant remained in St. Clare's Home for Children, a facility for medically fragile infants, for the first year of her life. On March 13, 2006, the child was placed in the home of her foster parent, to whom the mother surrendered her parental rights. During his initial interview by the DYFS caseworker in May 2005, defendant indicated that he had a history of heroin and cocaine abuse, he did not have safe, stable or appropriate housing for the child, he did not have a job because he had recently left his employment "under the books" and he had not been receiving medical treatment for his HIV-positive condition since he was released from prison.
After contacting DYFS on May 31, 2005, defendant attended a scheduled drug abuse evaluation on June 1, 2005. The evaluation indicated that defendant continued to struggle with drug dependence, although he had been abstinent while incarcerated. He tested negative for all substances that day and was referred to North Hudson Community Action Mental Health and Addiction Services for outpatient substance abuse treatment and hospital services for his HIV-positive illness.
On June 9, 2005, defendant appeared at a court hearing without counsel. Although the court determined that day that the child had been abused and neglected by his mother, there were no findings with respect to defendant.
On September 6, 2005, defendant contacted DYFS and the caseworker told him that she had been advised by the police that he had been arrested. Thereafter, DYFS had no further contact with defendant despite numerous efforts to locate him, until October 2, 2006, when he appeared at the DYFS office and met with the supervisor. In the interim, DYFS learned that defendant had been convicted in municipal court of possession or distribution of hypodermic needles and pled guilty in Superior Court to third degree burglary. DYFS had noticed him for each of the interim court hearings, but he failed to appear.
On July 28, 2006, at the final hearing in the protective services litigation, defendant failed to appear but his counsel appeared on his behalf. DYFS filed the guardianship proceedings and noticed defendant for each of the hearings, but neither he nor counsel appeared.
On August 30, 2006, Robert Kanen, Psy.D., a licensed psychologist, undertook a bonding evaluation between the child and the foster parent. Dr. Kanen reported that the child was strongly attached to the foster mother and would suffer serious harm if removed from her care.
When defendant appeared at the DYFS office in October 2006, he was personally served with copies of the guardianship complaint and order to show cause and provided with an application for counsel. A psychological bonding evaluation between defendant and the child was scheduled, but defendant failed to appear. Defendant also failed to appear for the next court hearing on November 17, 2006 and a default was subsequently entered.
In April 2007, the guardianship trial proceeded with the testimony of the DYFS caseworker, who reported that defendant was initially cooperative with parent-child visits at St. Clare's, but then stopped visiting the child and discontinued contact with DYFS. The caseworker further testified that defendant had been referred for substance abuse treatments several times, but failed to comply with the referrals. He was also referred for medical treatment for his HIV-positive illness, but did not comply with that referral either. At the time of trial, the caseworker testified that defendant had made no contact with DYFS since October 2006.
Dr. Kanen's report and the DYFS record were submitted to the court. On April 25, 2007, the court rendered its decision on the record, stating its finding of facts, including the fact that defendant was missing at that point and had had no contact with the child since he visited the infant in the early months of her life. The court further found that defendant failed to comply with the numerous DYFS referrals for drug abuse and medical treatment.
The court found "nothing in the record to indicate that [defendant] offered any relatives or alternative placement options for the Division during the limited period of time when he had any contact with the Division." The court found that the child was bonded to the foster parent and there was no evidence to indicate any bond between defendant and the child. The court further noted that the child had extensive special needs and, in evaluating the criteria for terminating parental rights under N.J.S.A. 30:4C-15.1, the court concluded:
There's nothing to indicate that [defendant] is able or willing to remove the circumstances preventing the child from being with him and that includes substance abuse or . . . lack of contact.
The child has also been harmed because of [defendant's] lack of involvement, the child has been with the foster parent who the child is now firmly bonded to and if that bond was broken the child would suffer severe -- serious and enduring harm.
Services were offered to [defendant]. He did not follow through on those services. And as previously indicated terminating his parental rights will not do more harm than good. To the contrary, . . . based upon the strong bond, special needs, and the willingness of this foster parent to adopt. So also on a best interest analysis this court would find a basis by clear and convincing evidence to terminate the rights of [defendant] to [A.R.G.]
The court, therefore, granted DYFS guardianship of the child with the intent that the child be adopted by the foster parent.
On July 3, 2007, defendant moved to vacate the final judgment by default. Defendant filed a certification stating that he had not been served with a complaint for guardianship. On August 16, 2007, a hearing was conducted at which testimony was taken. Sadia Mohammad, the DYFS supervisor who had been involved with the case since September 2006, testified that on October 2, 2006, defendant came to the DYFS office and spoke to her and she personally served him with the guardianship complaint and order to show cause. Ms. Mohammad testified that when defendant appeared at the DYFS office "he was very wobbly" and "appeared to be unkempt." She stated:
I asked him where he was living, he told me he was staying here and there, he gave I believe what was his mother's address. He told me he didn't have a telephone. I asked him was he working and he said he did construction which I thought was kind of odd being that -- [Objection made and question withdrawn].
Thereafter, Ms. Mohammad testified that she did not hear from defendant again.
Defendant, who was apparently present in court on August 16, 2007 for the hearing on his motion to vacate the default, and was provided with an interpreter, did not testify or otherwise dispute Ms. Mohammad's testimony.
After hearing Ms. Mohammad's testimony, the court found her credible, found that her testimony was corroborated in writing and that defendant was served with the order to show cause and guardianship complaint. Accordingly, the court denied defendant's motion to vacate the default.
In this appeal, defendant argues:
THE DIVISION FAILED TO PROVE ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1 BY CLEAR AND CONVINCING EVIDENCE AND FAILED TO PROVE THAT A.R.G. WAS ABANDONED BY M.G.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO VACATE THE DEFAULT ENTERED AGAINST DEFENDANT
We have carefully considered defendant's arguments and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). There was more than sufficient evidence in the record to support the judgment terminating defendant's parental rights. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons stated by Judge Lawrence P. DeBello on the record of April 25, 2007. We further affirm the denial of defendant's motion to vacate the default substantially for the reasons stated by Judge DeBello on the record of August 16, 2007.
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