February 23, 2009
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF K.L.R., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-81-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Wefing, Parker and LeWinn.
Defendant L.R.R. is the natural mother of K.L.R., born August 31, 2005.*fn1 The child has been in the custody of the Division of Youth and Family Services (DYFS) since her birth and, except for sporadic and limited supervised visits with defendant, has never been in L.R.R.'s presence, let alone custody. Defendant appeals from an order of the Family Part entered on December 6, 2007, denying her motion to vacate a default judgment of guardianship, and from a judgment entered on the same day, following a proof hearing, terminating defendant's parental rights and awarding guardianship of K.L.R. to DYFS. For the reasons that follow, we affirm.
Prior to giving birth to K.L.R., defendant had four other children, none of whom were in her custody at the time of these proceedings. K.R., born October 18, 1988, and D.R., born February 4, 1992, were placed in the custody of K.R.'s paternal aunt in 1998, due to defendant's history of chronic substance abuse. H.R., born December 7, 1998, tested positive for cocaine and opiates at birth; E.R., born July 11, 2000, tested positive for methadone at birth. In August 2000, these two children were placed in the custody of defendant's sister.
Defendant tested positive for methadone on the day of K.L.R.'s birth, and the infant tested positive for opiates and methadone. Neglect was substantiated and K.L.R. was placed in DYFS's custody on September 13, 2005. DYFS initiated FN (abuse and neglect) proceedings, and scheduled substance abuse evaluations and treatment, counseling sessions and parenting classes for defendant. K.L.R. was diagnosed with cardiac problems that were likely attributable to defendant's substance abuse during pregnancy.
On October 20, 2005, K.L.R. was discharged from the hospital to Saint Clare's Home for Children in Elizabeth due to her medical needs. On December 12, 2005, K.L.R. was placed with a special care foster parent who was provided with instructions for meeting the infant's medical needs. During the two months K.L.R. was at Saint Clare's, defendant visited her only once.
Defendant attended a psychological evaluation with Dr. Mark Singer on December 1, 2005. Defendant told Dr. Singer that she had an extensive history of drug abuse starting when she was fifteen years old, and that she had been on methadone during her pregnancy with K.L.R. Dr. Singer opined that defendant was in the "early stages of recovery" from substance abuse, but that she was still "at a significant risk of relapse . . . ." The doctor recommended that defendant complete the drug treatment program in which she was then enrolled at Straight and Narrow, and maintain sobriety for a minimum of nine to twelve months "as a prerequisite to unification." Dr. Singer also recommended that defendant obtain adequate housing and employment upon discharge from Straight and Narrow, complete a parenting skills training program and participate in individual therapy.
L.R.R. failed to appear at the September 6, 2006 compliance review and permanency hearing. DYFS reported that defendant had not been compliant with the services it offered her. The trial judge found that DYFS had made reasonable efforts to provide services to defendant, and thereupon ordered DYFS to file for guardianship, which it did on October 11, 2006. The abuse and neglect litigation was dismissed on December 13, 2006.
L.R.R. appeared at a case management conference on January 11, 2007, at which time she was ordered to attend psychological and bonding evaluations. She failed to appear at the next scheduled case management conference on April 2, 2007. At that hearing, DYFS advised the court that defendant had been non-compliant with services and had missed scheduled visitation with K.L.R. DYFS also informed the court that two relative resources defendant had identified as possible custodians for K.L.R. had been ruled out, and that it was "urgent" to schedule a proof hearing. DYFS proposed a plan to place K.L.R. for adoption.
Defense counsel was present on behalf of L.R.R. Counsel advised the court that defendant knew she was supposed to come to court that day, that defendant was "realistic about her own situation," and it appeared that she had "just given up." The judge scheduled a proof hearing for April 13, 2007, but that date had to be adjourned because DYFS could not locate L.R.R.
A proof hearing was held on May 14, 2007. DYFS informed the court that it had located an adoptive home for K.L.R., pursuant to its plan set forth at the April 2 hearing. Defendant appeared, submitted to a urine screen and tested positive for cocaine. She told the court that she was scheduled to start an outpatient drug treatment program at East Orange General Hospital. She also identified two additional resource relatives, and the judge instructed her to bring those individuals to the next hearing scheduled for June 18, 2007.
DYFS arranged for defendant to have a psychological evaluation with Dr. Peter N. DeNigris on May 24, 2007. Dr. DeNigris informed DYFS that defendant appeared on that date but left his office building shortly after her arrival. She returned and began the psychological tests, but after one hour had completed only twenty-seven questions. After another half hour, Dr. DeNigris observed defendant sleeping. L.R.R. informed him that she had taken a prescription sleeping pill the previous night and had attended a methadone clinic that morning.
Dr. DeNigris reported that defendant had difficulty remaining awake during his interview with her. Therefore, he canceled the evaluation due to her inability to complete it. The evaluation was rescheduled twice; defendant failed to appear on both occasions.
At the June 18, 2007 hearing, defendant presented Yvonne Merrill as a potential caretaker for K.L.R. When questioned by the judge, Merrill stated that she had previously been involved with DYFS regarding her adolescent son who was no longer in her custody.*fn2
At that hearing, DYFS informed the court of defendant's failure to complete her psychological evaluation with Dr. DeNigris. DYFS further advised that a new appointment for that evaluation had been rescheduled for August 9, 2007, and the bonding evaluation had been scheduled for July 25, 2007.
DYFS requested a drug screen of defendant at the June 18 hearing; she tested positive for marijuana, cocaine and heroine.
On July 25, 2007, Dr. DeNigris completed a bonding evaluation of defendant and K.L.R. Based upon his observations, the doctor concluded that no bond had formed between them. Dr. DeNigris identified eight factors which he considered indicative of the presences of a bond between a parent and child:
(1) reciprocal and mutual interactions as well as exchanges of affection; (2) the caretaker's ability to be attuned and sensitively responsive to the child's needs; (3) the caretaker's skillfulness with appropriately monitoring and supervising the child; (4) the child's level of comfort when in the presence of the caretaker; (5) the child's involvement in exploratory behaviors; (6) the caretaker's abilities to comfort the child during stressful times and to resolve difficulties; (7) the caretaker's knowledge of the specific child's needs as well as awareness of general child development; and (8) the caretaker's ability to implement appropriate discipline that is consistent with the child's age and applicable to the misbehavior.
In applying those factors to defendant and K.L.R., Dr. DeNigris opined that the child "exhibited minimal, if any, exploratory behaviors throughout the evaluation," and that "[a]lthough [defendant] attempted on several occasions to engage [K.L.R.] in playing with toys, the child either moved away from her or appeared disinterested." Dr. DeNigris further observed "noticeable periods of silence" during the interactions and that defendant fell asleep during the bonding evaluation. When that occurred, Dr. DeNigris observed that K.L.R. "appeared confused. . . ." Defendant awoke at one point and asked the child, "So, are you sleepy like Mommy?" Defendant then closed her eyes, but later opened them briefly and asked K.L.R., "You['re] having fun by yourself, aren't you?"
Dr. DeNigris opined that defendant's "inability to remain awake in order to consistently monitor and supervise her daughter during this evaluation raise[d] much concern about the child's safety when in [her] care," adding that it was "clearly inappropriate for a caretaker to fall asleep in the child's presence" considering K.L.R.'s young age.
Dr. DeNigris stated that K.L.R. did not reciprocate defendant's affectionate gestures and often walked away from defendant to another part of the room. The child also did not approach defendant for comfort when upset or in distress. Dr. DeNigris concluded:
Children who are attached to their caregivers explore their environments when the caregivers are present, are distressed by anticipated or actual separation, and seek close contact when they are reunited with their caregivers. [K.L.R.] did not exhibit many of these behaviors during this evaluation. This, coupled with the other factors listed above, suggest[s] that a bond has not formed between [K.L.R.] and [defendant].
Between July and September 2007, DYFS scheduled seven supervised visits for L.R.R. with the child; defendant failed to attend five of those visits. On the two occasions defendant did attend, the supervisor indicated that her interactions with K.L.R. were positive, affectionate and playful.
Defendant appeared at the permanency hearing scheduled for September 10, 2007, at which time DYFS reported to the court about her behavior during the evaluations with Dr. DeNigris. DYFS also advised the court that the foster parent with whom K.L.R. was living was interested in adopting her.
Defendant's attorney stated to the court that L.R.R. had been sleepy on the day of her psychological evaluation with Dr. DeNigris due to an anti-depressant medication she had been taking, but had since discontinued. Defendant advised the court that she was "willing to be compliant with the new[ly] scheduled appointments[,]" and stated that she was currently receiving methadone treatments and was "doing well."
The trial judge commented that defendant's "presence here in [c]court has been accompanied with positive drug screens every time she has been before the [c]court," and noted "the positive drug screen February 20, 2007 -- positive for marijuana, positive for cocaine. May 14, '07, positive for cocaine. June 18, '07, positive [for] marijuana, . . . cocaine, . . . [and] heroin." Her counsel advised the court that L.R.R. "knows she has a drug problem and she is [in] treatment. She's now on methadone maintenance. We are hopeful that that's taking care of her problem."
Defendant proffered her godmother as another resource for placement of K.L.R.*fn3
The judge scheduled the next hearing for October 22, 2007, at which the "foster mother's position" was to be "clarified to confirm that she indeed would be interested in adopting the child[,]" and "a discussion [would be held] as to whether or not the caretaker would be willing to participate in mediation."
L.R.R. did not appear at the October 22, 2007 hearing. DYFS requested that default be entered against defendant, to which her counsel replied: "I can't oppose the default, because my client really has not cooperated unfortunately, although she may yet come today." The judge entered default and scheduled a proof hearing for November 5, 2007, adding: "The [c]court will liberally construe any application to vacate the default, and consider the matter on the merits."
Defendant did not appear at the November 5, 2007 proof hearing. Her attorney advised the court that she had sent L.R.R. a letter, but was not certain whether she had yet received it. DYFS caseworker Rose Johnson testified that she spoke to defendant on October 29, 2007, and "advised her to get in touch with her attorney."
DYFS requested an adjournment to December 6, 2007, in order to obtain K.L.R.'s social security card and "also to provide more adequate notice to the mother, in writing, by regular and certified mail, of the [p]roof [h]earing." DYFS noted further that all relative resources proffered by defendant had been ruled out.
The judge granted the adjournment and advised defense counsel that "this will give your client one additional opportunity to come up with . . . an alternative to the Division's plan." The judge added: "The reality is, though, that the child has been in out-of-home placement for an extended period of time. And at this juncture the [c]court must look to permanency as the primary goal."
Defendant appeared at the December 6, 2007 hearing. She submitted to a drug screen which indicated "positive results for cocaine, heroin, and benzodiazepine."
Defense counsel moved to vacate the default, stating that defendant "did call [her] office" on the last hearing date, "to say that she was going to be late, and . . . [s]he wasn't feeling well." Counsel requested that the default be vacated and that defendant "have the opportunity to have a mediation with the foster family, so that she can meet them, and they can assess where they go from there." Both DYFS and the law guardian opposed the request to vacate the default.
In denying that request, the trial judge stated:
There have been multiple failures of [L.R.R.] to appear in this matter. The [c]court is unable to consider on the basis of her drug involvement a surrender or any statement of her position today. The Division maintains that it has made multiple referrals to services to assist [L.R.R.] with services to address her dependency, and she has throughout the proceeding continued to test positive for . . . drugs. The [c]court notes that . . . based upon the amount of time in litigation that it is the [c]court's obligation to focus on permanency issues for the child, and to consider first and foremost the health and well-being of the child.
As [L.R.R.] sits here today, she is not able to present any palpable, viable alternative to the Division's plan. And accordingly I am going to deny the motion to vacate the default, and direct that the Division shall proceed with [its] proofs.
DYFS presented the testimony of Charles Cohen, a supervising claim service specialist who was first assigned to K.L.R.'s case in November 2006. Cohen was the custodian of all the DYFS records concerning the child. He testified as to his familiarity with all of those documents, which were then admitted into evidence. Cohen described defendant's history of non-compliance with DYFS-offered services, continual relapses into substance abuse, failures to appear for supervised visitation with K.L.R., and her general inability to improve her situation. Cohen also confirmed that, in a conversation with K.L.R.'s foster parent on December 5, 2007, the foster parent had expressed a willingness to adopt the child. L.R.R.'s attorney had the opportunity to cross-examine Cohen.
Both DYFS and the law guardian requested that the judge enter a guardianship order for K.L.R. DYFS contended that the child "ha[d] waited long enough." The law guardian stated that the child was in a "very good home," and was being "very well taken care of . . . ."
In opposition, defense counsel argued that L.R.R. recognized her substance abuse problem and regretted that she was unable to accomplish the goal of reunification with K.L.R. Counsel asserted that defendant's intention was to keep her daughter in her life, adding that L.R.R. loved and cared for K.L.R.
The judge addressed L.R.R. directly:
[T]here has never been a question with respect to the fact that you are doing the best that you can. There's never been a question as to whether or not you love your child. The challenge to you from the day of your child's birth has been to take steps to remain sober, and straight, and develop a lifestyle consistent with an ability to parent your child.
The matter has been under this court's supervision since September 13, 2005, when the Division filed its order to show cause, and has remained under active review with the [c]court since that time. The Division[,] . . . by this court's finding[,] has offered supportive services from the very beginning. You have signed case plans, and the [c]court acknowledges your sporadic participation with services. But even as we sit here today[,] it is apparent that you are unable to stay focused, the [c]court notes that have had your head down, and it appears to the [c]court as if you had been sleeping during the presentation of this hearing. I note that you have had difficulty keeping your eyes open. I note further that the drug screening conducted today shows that you still tested positive for cocaine, heroin and benzodiazepine. It is apparent that your efforts have not been sufficient in terms of your ability to offer yourself as a resource.
Further[,] it appears that you've been active with regard to recruiting every possible resource that you have known with regard to a preferred caretaker for your child. The Division has assessed each and every one of your resources provided, and each one of the[m] unfortunately has been ruled out. There are no administrative proceedings or other proceedings relating to their qualification that would permit the [c]court to consider any alternative that you are offering. I am sure you agree that it is important for [K.L.R.] to have a safe, secure, and permanent home. I am sure you agree that it is important for every child to know security in life. Unfortunately, neither you nor any of your relative resources have been able to provide any plan that might otherwise [be] considered by the [c]court.
The judge then rendered his decision terminating L.R.R.'s parental rights to K.L.R.
It is this court's obligation to review the proofs and make a determination in [K.L.R.'s] best interest, and to be satisfied that the judgment which the Division seeks is based upon very substantial evidence by a standard of clear and convincing evidence. I am satisfied in reviewing the history of this matter as presented, and the proofs offered by the Division[,] that to delay any further would not serve this child's best interest.
In reviewing the exhibits cited in Mr. Cohen's testimony[,] they only partially present the efforts of the Division, and the [c]court is satisfied that each of the allegations of the complaint ha[s] been established by . . . clear and convincing evidence. It is this court's conclusion to support the permanency of foster home adoption, which is now being presented as the Division's plan, as supported by the law guardian[,] by indicating that a review of the facts substantiates the Division's position.
I have no basis upon which I can vacate the default, there is no viable plan being offered by the biological mother either directly or indirectly.
The [c]court in reviewing the four prongs of [N.J.S.A. 30:4C-15.1(a)] notes that the child was born testing positive for drug exposure, thus neglect had been substantiated from the initiation of litigation. There has never been a denial by [L.R.R.] that she has been unable to control her drug habituation. There has never been a denial with regard to her challenge, she has attempted to meet that challenge through others, but unfortunately unsuccessfully. The Division has made reasonable efforts in terms of a multitude of services working very diligently with [L.R.R.] over the years that this matter has been in litigation. [L.R.R.] has been encouraged by her own attorney to do everything within her ability to comply with the case plans, which have been developed, assigned, and acknowledged by [L.R.R.]. And I am compelled at this point to indicate that despite the efforts of the Division to assist in reunification, [L.R.R.] has been either unwilling or unable to eliminate the risk of harm to [K.L.R.] by rehabilitating herself or providing for an alternative plan. The Division has assessed all resources offered by [L.R.R.], and they have been ruled out.
I am encouraged by the fact that the current home, which has dutifully met the special needs of [K.L.R.], ha[s] committed to becoming a permanent home for this child. It does appear that [K.L.R.] has established a permanent relationship and life, and I am directing that the Division move forward to effect its permanency plan.
The [c]court finds under all facts presented that termination of parental rights cannot do more [harm] th[a]n good, and further that entry of guardianship as sought by the Division is appropriate.
On appeal, L.R.R. raises the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING L.R.R.'S MOTION TO VACATE THE DEFAULT JUDGMENT
L.R.R.'S PARENTAL RIGHTS SHOULD NOT BE TERMINATED BECAUSE THE FINDINGS [OF] FACT WERE INSUFFICIENT TO SUPPORT A LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE BEST INTEREST TEST HAD BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE
A. Each [p]rong of the N.J.S.A. 30:4C-15.la test [m]ust be met by clear and convincing evidence [b]efore a [m]other's rights to her [d]aughter may be extinguished [b]y the State
B. Providing [r]eferrals [d]oes not [e]qual [d]elivery of [s]ervices
C. DYFS did not prove, by clear and convincing [e]vidence, that termination would not do more [h]arm [t]han good
D. The [f]oster [p]arent did not testify as to her [w]illingness to adopt K.L.R.
Having reviewed these contentions in light of the record and the controlling law, we are entirely satisfied that the uncontroverted evidence supports entry of both the default judgment and the order of guardianship terminating L.R.R.'s parental rights.
"Generally, a defendant seeking to reopen a default judgment must show that the neglect to [appear] was excusable . . . and that [s]he has a meritorious defense." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964). Defendant has presented no such reasonable excuse or "meritorious defense." Rather, she contends that her failure to appear at the October 22, 2007 hearing should be excused because her attorney advised the court that defendant had telephoned counsel's office complaining of not feeling well on that date. This contention completely ignores L.R.R.'s history of sporadic court appearances throughout the litigation, as well as her chronic lack of compliance with DYFS-scheduled services.
Defendant acknowledges that on the occasions when she did appear in court, she received written orders advising her that her failure to appear could result in the entry of a default judgment against her. However, she contends that she received no verbal warnings to that effect. The record reflects that both defendant's attorney and DYFS workers contacted L.R.R. in ongoing efforts to secure her presence at scheduled court hearings.
We have recognized 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.'" Div. of Youth & Fam. Servs. v. T.J.B, 338 N.J. Super. 425, 434 (App. Div. 2001) (quoting Marder, supra, 84 N.J. Super. at 319). However, unlike the defendants in T.J.B., L.L.R. had no "valid excuses" for her failure to attend court hearings. Ibid.
Rather, L.L.R's situation is more analogous to that of the defendant in In re Guardianship of N.J., 340 N.J. Super. 558 (App. Div.), certif. denied, 170 N.J. 211 (2001), in which we held:
In light of all the facts that preceded [defendant's] default and motion to vacate default judgment, we are satisfied that the trial judge did not abuse his discretion in refusing to vacate the default judgment . . . . [H]ere [defendant] was well-aware of the possibility that failure to appear could result in entry of a default judgment terminating parental rights. [Id. at 561.]
L.R.R's history of missed court appearances, coupled with the fact that she consistently tested positive for various drugs when she did attend, leads to the ineluctable conclusion that her lack of meaningful participation in the guardianship litigation arose primarily from her chronic substance abuse, and not from a lack of proper notice of the scheduled hearing dates.
We further conclude that the trial judge's decision to terminate L.R.R.'s parental rights and to award guardianship of K.L.R. to DYFS is well supported by the record. While it is well established that a parent has a fundamental right to enjoy a relationship with her child, nonetheless "[p]arental rights . . . are not absolute." In re Guardianship of K.H.O., 161 N.J. 337, 346, 347 (1999). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Id. at 347.
That standard requires that an individual's parental rights not be terminated unless DYFS establishes by clear and convincing evidence each of the following criteria:
(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)(1) to (4).]
L.R.R's arguments relate only to the third and fourth statutory prongs. Defendant's contention that "[p]roviding [r]eferrals [d]oes not [e]qual [d]elivery of [s]ervices[,]" completely ignores the record, which demonstrates DYFS's ongoing efforts to schedule evaluations, substance abuse treatment and visitation, most of which were thwarted by L.R.R's persistent non-compliance, relapses and failure to appear.
Defendant's argument regarding the fourth statutory factor, that DYFS did not prove by clear and convincing evidence that termination of parental rights would not do more harm than good, is devoid of merit and warrants no discussion in this opinion.
R. 2:11-3(e)(1)(E). "[A] proof hearing was conducted that permitted the trial judge to consider a vast array of records, reports and evaluations." In re Guardianship of N.J., supra, 340 N.J. Super. at 561. We affirm substantially for the reasons stated by Judge Craig R. Harris in his decision rendered from the bench at the conclusion of the proof hearing on December 6, 2007. R. 2:11-3(e)(1)(A).