On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-99-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Sapp-Peterson and Espinosa.
Defendant T.O. appeals from the March 9, 2009 Family Part order denying her motion to vacate its October 9, 2008 order terminating her parental rights to her three children Sarah, Sharon, and Susan.*fn1 We affirm.
The default judgment arises out of a complaint for guardianship filed by the Division of Youth and Family Services (Division) against T.O. Two of the children, Sarah, born February 17, 2004, and Sharon, born March 25, 2005, are the biological children of T.O. and their putative father A.L., whose whereabouts were unknown throughout the course of the proceedings, despite efforts by the Division to ascertain his location. The youngest child, Susan, born May 5, 2006, is the biological child of T.O. and M.D.*fn2 The trial court terminated T.O.'s parental rights following a proof hearing conducted on September 16, 2008. T.O. did not appear, despite receiving notice of the proceeding from the court on May 6 and additional notice from a Division worker on August 27.
The Division filed its guardianship complaint on February 19, 2008. The complaint alleged, among other allegations, that on December 20, 2006, T.O. removed Susan, who was seven months old at the time, from the hospital against medical advice after Susan had been diagnosed with asthma and determined to be in need of further medical treatment. The complaint further alleged that T.O. was continuously transient, lacked stable and appropriate housing, "failed to make a permanent plan for her children, has abandoned them to the care of others, and has substantially failed to perform the regular and expected functions of care and support for the minors."
On March 3, Family Services Specialist Kimberly Shipmon (Shipmon) personally served the order to show cause, verified complaint, complaint of guardianship, and an application for assignment of counsel upon T.O. at the Office of Children and Family Services in Bayonne. Additionally, Shipmon served a copy of the February 19 case management order upon T.O. at the same time. That order advised T.O. that the next court proceeding was scheduled for May 6.*fn3
T.O. appeared, with counsel, at the May 5 case management conference. At that time, Shipmon testified that T.O. had previously tested positive for marijuana. Counsel for the Division advised the court that T.O. had specifically asked to be referred to M.A.S.S.H.*fn4 and attended the initial intake appointment but did not return because "there are people from her neighborhood that she did not want to see." Counsel for the Division further advised the court T.O. would be referred to "another outpatient program." In light of these statements, the court ordered an "instant drug screening today." T.O.'s attorney then advised the court that his client would "test positive for marijuana." The court directed the Division to refer defendant to another program and admonished defendant that she may know people at another program but that she was nonetheless required to address her substance abuse. The court advised defendant that she could not miss any more appointments and that her non-compliance could result in the court terminating her parental rights. The court, on the record, scheduled the May 20 bonding evaluation, the August 25 case management review and the September 16 trial date. The order entered from the May 5 conference and provided to defendant also memorialized those dates, and at the bottom of the order in capitalized, bold lettering, T.O. was advised: "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."
T.O. did not attend the May 20 bonding evaluation. In a letter dated June 3, sent to the address T.O. provided to the court on May 5, Shipmon advised T.O. that her bonding evaluation had been rescheduled for June 19. T.O. failed to appear for that appointment. She also failed to appear for the August 25 case management review. At the case management review, T.O.'s counsel placed on the record that he had not been in contact with her since the May 5 hearing.*fn5 He indicated that his office had scheduled evaluations for T.O., which she had missed. Further, he advised the court that investigators, at his request, had located T.O., at which time she provided a telephone number but that subsequent efforts to reach her at that number were unsuccessful, although the number was a working telephone number.
The matter proceeded to trial on September 16, as previously scheduled. M.D. appeared, and after his attorney questioned him regarding his desire to submit a voluntary surrender of his parental rights to his mother, the court accepted the voluntary surrender. T.O. did not appear. Defense counsel reported that on July 25, he submitted a request to the Office of Parental Representation (OPR) requesting that investigators attempt to locate T.O. He indicated that he received a report from OPR advising that investigators had located T.O. and "they provided me with an address where she lives, and they provided me a phone number." Defense counsel also stated that "[w]e have sent correspondence to that address, none of those correspondence has returned to us as unclaimed. But the telephone number that was presented is not functioning, even as of yesterday when I tried it." He advised the court that he was "willing to proceed with this trial, in view of the fact that the burden is on the Division to prove the four prongs against my client."
The court then inquired whether the Division had been in contact with T.O. Shipmon testified that she had seen T.O. on August 27. At that time, T.O. appeared at the local Urban League office for a supervised visit with her children. Shipmon handed T.O. a letter on which she wrote the name and telephone number of T.O.'s lawyer as well as the September 16 trial date. Shipmon indicated that she also told T.O. that "on September 16th we will be going to trial, and she needed to contact her lawyer."
The Division moved for the entry of default. Defense counsel objected, arguing that defendant had appeared at the May 5 hearing, but requested that if the court granted the motion, that the default be entered without prejudice to defendant to seek reconsideration if she "could show good cause" for her non-appearance. The law guardian did not oppose the motion. The court entered the default.*fn6
The court then proceeded to conduct a proof hearing. In support of the complaint's allegations, the Division presented evidence through the testimony of Shipmon and Dr. Charles Daley, who was qualified, without objection, as an expert in psychology. The Division's records were also admitted into evidence without objection. The court permitted defense counsel to cross-examine the Division's witnesses. Additionally, once the Division completed its case, the court inquired of defense counsel whether he intended to present any witnesses on behalf of defendant, to which defense counsel responded, "None from me."
On October 9, the court issued a written decision finding clear and convincing evidence supporting the termination of T.O.'s parental rights to Sarah, Sharon, and Susan, and entered a judgment of guardianship in favor of the Division. The court found T.O.'s removal of Susan from Jersey City Medical Center against medical advice, despite Susan's respiratory infection, leaving her children with relatives for long periods of time without making appropriate provisions for their care, and her untreated drug use, as evidence demonstrating that the ...