December 30, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF S.O., S.O., AND S.O., MINORS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 children's "health or development has been or will continue to be endangered by [defendant's] parental relationship." N.J.S.A. 30:4C-15.1(a)(1).
The court determined that the evidence disclosed further that T.O. was transient and unable to provide a stable living environment for her children, failed to maintain contact with the court or the Division, and had not taken advantage of services the Division offered. The court concluded that this conduct evidenced T.O.'s inability or unwillingness to "eliminate the harm facing [her children] or is unable or unwilling to provide a safe and stable home for [her children] and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2).
The court next found that the Division had made reasonable efforts to provide services to T.O., to which she failed to avail herself. N.J.S.A. 30:4C-15.1(a)(3) Additionally, the court noted that because the familial caregivers were interested in adopting the children and adoption was feasible, the alternative of kinship legal guardianship was not available.
Finally, the court concluded that termination of T.O.'s parental rights would not do more harm than good. The court observed that the children were doing well with their relative caregivers, and despite assistance from the Division, T.O. had done nothing to create a permanent plan for them, care for them, or support them.
T.O. did not file a direct appeal from the court's October 9 order terminating her parental rights. Instead, four months later, on February 18, 2009, T.O.'s attorney filed a motion under Rule 4:50-1(f) seeking to vacate the October 9 order and also seeking a stay of the adoption. The court conducted oral argument on March 6, 2009. During the argument, defense counsel acknowledged that T.O. was aware of the trial date and that he sent investigators to locate her, who advised her there was a trial. He argued that the Division failed to prove its case on the merits, by clear and convincing evidence, that T.O was rehabilitating herself, and that since the court entered its October 9 order, T.O. had been in contact with her children "[a]nd her position is that these children do not want to remain where they are, and that being the case is even [sic] important for the Court to reevaluate what... is in the best interest of [the children.]" Defense counsel indicated to the court, however, that he did not have "any updated bonding or attachment evaluations." Both the Division and the law guardian opposed the motion, arguing that T.O had failed to satisfy the standards for relief from judgment under Rule 4:50-1(f).
In an oral opinion issued immediately following oral argument, the court denied the motion, finding:
The motion to vacate filed by defense counsel did not address for this court, nor did it -- it wasn't addressed in oral argument today why [T.O.] did not appear to court on the date of her trial, but rather the motion focused on her lack of counsel during the FN*fn7 stage of the litigation. However, in this court's written opinion in October of 2008, it was clearly noted that [T.O.] was aware that her children were not in her care, was in touch with the Division and her children at times, did not make her -- or her children, and that [she] did not make herself available to the Court or to the services that were being provided by the Division.
Now[,] although this court properly entered a default judgment against [T.O.], this court still proceeded with a full proof hearing on the merits regarding the termination of... [T.O.]'s parental rights. And in the Court's lengthy 22[-]page opinion[,] it addressed all of those issues raised, as well as all of the best interest prongs before reaching its final decision to terminate. Additionally, at the trial both the Division and defense counsel were permitted to present evidence and testimony, as well as to object to and cross[-]examine... the witnesses that were available. The decision to terminate was done clearly on the merits, and the motion is incorrect in its argument to the contrary. Additionally, the decision to terminate was filed on October 9th, 2008.
Now, defense counsel had time to appeal that decision, and there's nothing to say that counsel cannot still appeal that decision. I'm not sure what the position of the Appellate Division would be at this time, but if it's an argument on the merits of this court's decision[,] clearly... the relief would be an appeal, and that has not been done. Nothing stops the defendant from appealing at this time. It is up to the Appellate Division to determine whether or not they will adhere to the 45... days that are allowed for appeal pursuant to [Rule 2:4-1].
Now,... this matter comes before this court at a time where it seems that the defendant parent has all of a sudden awakened to the reality that her nonparticipation in court has resulted in a decision that is not in her best interest. But it is in the best interest of the children to have stability, and the children deserve to be in relationships with people who are constant in their lives, and who are responsible. For this court to determine that it would not be in the best interest of these children to maintain its judgment in place and not vacate, and to terminate these parental rights is not in their best interest, I think that it's... disingenuous. These children have been away from their natural mother for a very long time, and... the stability that they do have now has not been provided by the mother.
There's nothing to tell this court that things will change. There's no evidence before this court today that this defendant mother cares enough to... and has not provided this court today any evidence that things would change, that she has rehabilitated herself, she is stable in a home. For this court to dislodge these children... from where they are[,] having had proof before it at trial, and as evidence in... the Court's [sic] that there... are bonding issues here that the Court dealt with. [T.O.] did not avail herself of the opportunity to attend the bonding evaluation that was scheduled by the Division for her benefit so that the Court could consider same, I think it's disingenuous to think that things would change, and that she has -- you [k]now, she has made any strides towards rehabilitating, and that... her rehabilitation would be in the best interest of these children or any changes. That simply is not before this court. So, she has not provided this court with any hint of an excusable reason why she did not attend any of the court appearances, and did not attend her trial, and she was very well aware that a trial was tak[ing] place.
All of that is in the Court's opinion. And so, therefore, she has not also put before this court any meritorious defense that would allow this court in the best interest of justice to vacate this judgment. The motion is denied.
The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING T.O.'S MOTION TO VACATE THE DEFAULT JUDGMENT.
THE JUDGMENT OF GUARDIANSHIP SHOULD BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL AS T.O.'S TRIAL COUNSEL WAS INEFFECTIVE. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILD WILL BE SERVED BY TERMINATING T.O.'S PARENTAL RIGHTS.
A. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE CHILDREN'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THEIR RELATIONSHIP WITH THEIR MOTHER.
B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT T.O. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILDREN.
C. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE PARENT CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT OUTSIDE THE HOME.
D. TERMINATION OF T.O.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
We reject all of the arguments advanced in each point and affirm substantially for the reasons expressed by Judge Lourdes Santiago in her cogent and well-reasoned March 9, 2009 oral opinion. We add the following comments.
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." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). This is particularly true where an action is commenced to terminate parental rights. New Jersey Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 434 (App. Div. 2001). A motion to vacate a default judgment under subsection (f) requires the movant to demonstrate exceptional circumstances for the relief. F.B. v. A.L.G., 176 N.J. 201, 208 (2003). Ultimately, in a parental termination case, "the primary issue is not whether the movant was vigilant in attempting to vindicate his or her rights or even whether the claim is meritorious, but what effect the grant of the motion would have on the child." Guardianship of J.N.H., 172 N.J. 440, 475 (2002).
The decision to grant or deny a motion for relief pursuant to Rule 4:50 is committed to the sound discretion of the trial court, guided by equitable principles. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). That decision "will be left undisturbed unless it represents a clear abuse of discretion." Ibid.
Under this standard, we are satisfied Judge Santiago did not abuse her discretion in denying the motion. As Justice Long noted in J.N.H.:
The very purpose of a Rule 4:50 motion is not, as in appellate review, to advance a collateral attack on the correctness of an earlier judgment. Rather, it is to explain why it would no longer be just to enforce that judgment. The issue is not the rightness or wrongness of the original determination at the time it was made but what has since transpired or been learned to render its enforcement inequitable. [J.N.H., supra, 172 N.J. at 476 (emphasis added).]
Other than defense counsel's representation that T.O. was rehabilitating herself and that her children did not want to remain in their current living situation, nothing in the form of a certification from T.O. explaining her reason for not appearing at the trial and detailing the steps she had taken towards rehabilitation was presented. Nor did defense counsel present any updated bonding or attachment evaluations. Hence, the court properly denied the motion. When viewed under the totality of these circumstances, T.O. failed to demonstrate exceptional circumstances and that enforcement of the judgment was not in the best interest of her three children. Ibid.
The trial court also properly noted that defendant's argument that the Division had failed to meet its burden of proof in the underlying guardianship trial by clear and convincing standards was an issue that should have been raised on direct appeal. It is well-settled that motions under Rule 4:50 are not a substitute for relief by direct appeal. In re Estate of Schifftner, 385 N.J. Super. 37, 43 (App. Div. 2006) (citing Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 519 (App. Div. 1998)).
Nonetheless, in addressing the merits, the trial court correctly found that the Division had proved, by clear and convincing evidence, all four prongs of the elements that govern termination of parental rights proceedings as set forth under N.J.S.A. 30:4C-15.1(a):
(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.
Here, the Division presented evidence establishing T.O.'s transient living arrangements, failure to make appropriate arrangements for her children who were living with relatives for long periods of time, and the poor judgment she exercised in removing Susan, an asthmatic, from the hospital against medical advice when the child was suffering from a bacterial infection that could have led to respiratory distress. Dr. Daley testified that T.O. does not "have an understanding of child development," has "inappropriate expectations of... children[,]" and has a "tendency to reverse parent/child roles[,]" all of which he opined would severely affect her ability to parent the children. He further testified that T.O. "admitted [to] not having done her best... to rehabilitate herself so that she could take care of her children." As a result, he recommended parenting classes, vocational training, psychotherapy, obtaining a mentor, and becoming "thoroughly familiar with the functioning of early childhood education." However, according to Shipmon's testimony, throughout the course of the Division's direct involvement with her, as of December 2006, T.O. either refused or was unwilling to completely and consistently avail herself of the services offered by the Division. Shipmon testified that T.O. failed to take minimal steps to address her substance abuse by complying with the recommendations from the CADC*fn8 evaluation, which included outpatient drug counseling. She indicated that T.O. tested positive for marijuana and failed to attend parenting skills classes at Building an Empire*fn9 because "there were a lot of people on the waiting list, so she left." Nor did she follow through with the Division's referrals to Parents Anonymous or the Family Support Organization, despite being given a bus pass when she told Shipmon she had transportation problems. Shipmon was not aware of any other reason why T.O. failed to follow through with the Division's recommendation to these programs. Finally, the record demonstrated that the children were thriving in their living arrangements with their familial caregivers with whom the children had bonded. Thus, while defendant's collateral attack upon the underlying judgment was not properly before the trial court or this court, we are persuaded that that there is substantial credible evidence in the record that termination of T.O.'s parental rights was in the best interest of her three children.
Defendant's remaining argument that trial counsel provided ineffective assistance of counsel by failing to raise the issue of defective notice in the abuse and neglect litigation, which preceded the guardianship litigation, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that while defense counsel raised the issue of defective notice in the FN litigation, during oral argument, he agreed that his Rule 4:50-1 motion was directed to the guardianship action only. Further, we have recently held that the filing of a guardianship complaint pursuant to N.J.S.A. 30:4C-15(c), regarding the "best interests of the child," as was done here, does not require that the Division first initiate an action under Title 9. N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009).