On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-113-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Lisa and Alvarez.
Defendant, E.J., appeals from a judgment of guardianship terminating her parental rights to her daughters, E.E.J. (born November 4, 1997), and P.J. (born January 15, 2007).*fn1 Defendant argues that the trial court erred by entering a default against her, subsequently refusing to vacate the default, and relying upon defendant's testimony in connection with her motion to vacate the default in rendering its final decision. Defendant further argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing prongs one, two and four of the best interests of the child test. The law guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm the termination order. We are satisfied from our review of the record that any error in entering default or denying defendant's motion to vacate it was harmless. We are further satisfied that the Division presented sufficient evidence to support the judge's finding that all four prongs were clearly and convincingly established. We therefore affirm.
DYFS received its first referral regarding defendant in 2005 because she was arriving late to pick up E.E.J. from school. When defendant gave birth to P.J. on January 15, 2007, mother and child both tested positive for cocaine. DYFS was called and the children were removed. They were placed with defendant's aunt, M.J., where they have remained ever since. Defendant visited them only sporadically in 2007 and 2008, and only once in 2009.
On January 25, 2007, defendant was evaluated and diagnosed with cocaine dependence. She was referred to Choices, Inc. for long-term treatment. On February 6, 2007, she was sent to St. Michael's Hospital to undergo detoxification. Three days later, she was discharged and taken to Choices, Inc., where she remained for a brief period until she was caught using drugs and alcohol in the facility, resulting in her expulsion from the program. She was offered a list of other rehab facilities, but she refused further assistance.
From April 24, 2007 to May 16, 2007, defendant participated in the Turning Point, Inc. drug treatment program. On June 11, 2007, defendant was further evaluated and referred to the treatment facilities CURA and Straight and Narrow, but she refused to attend either program, stating that she had previously attended CURA and found it too harsh. Defendant expressed her preference to enter a particular program in Connecticut, but there is no evidence that she ever did so.
On November 6, 2007, defendant entered Damon House in New York, a drug-free community residence that provides services to chemically-dependent persons. She tested positive for cocaine on November 11 and 13, 2007.
Beginning in December 2007 through January 2009, defendant's whereabouts became unknown. Despite its continuing efforts, the Division was largely unable to locate defendant during this time period. When defendant later testified at the March 20, 2009 proof hearing in support of her motion to vacate the default against her, she acknowledged that she had been involved in drug use in New York during this time, had gotten into unspecified legal trouble resulting in her incarceration, and asserted that she had participated in treatment (although there is no documentation to that effect). Defendant also advised the court that she was awaiting sentencing in New York to her choice of either a six-month jail sentence or a twenty-four month "Mommy and Me" program. She was pregnant at the time. She was required to submit to a drug test on that date, and she tested positive for cocaine.
Because of the issue in this appeal pertaining to the default against defendant, we set forth in some detail the procedural history in the case.
On January 19, 2007, the Division served a notice of emergency removal regarding the newborn P.J. On January 22, 2007, the court found that removal of P.J. was necessary because mother and child tested positive for cocaine at the time of P.J.'s birth. On that date, the judge transferred physical custody of E.E.J. and P.J. to DYFS, and transferred physical custody of both children to their maternal great aunt, M.J. Defendant was present at this hearing and was ordered to undergo a substance abuse evaluation. She was also awarded biweekly visitation.
Defendant failed to appear at a case management conference on February 15, 2007, a factfinding hearing on May 10, 2007, and a compliance review hearing on August 2, 2007. However, her attorney attended these proceedings. Defendant appeared at a compliance review hearing on November 15, 2007, and submitted to a random drug test, with negative results. The judge ordered DYFS to refer defendant to an in-patient drug treatment program, and also ordered that defendant have nightly telephone contact with the children.
Defendant failed to attend the December 20, 2007 compliance review hearing, although her attorney attended. On that date, the judge also held a permanency hearing and ordered that the Division's plan for permanent placement with a relative was appropriate in light of defendant's drug issues and her noncompliance with drug treatment programs.
Defendant failed to appear at the January 30, 2008 compliance review hearing, although her attorney attended. The judge found that DYFS had made reasonable efforts at reunifying the family. The efforts included substance abuse evaluations and treatment, placement of the children with a relative, and supervised visitation. The judge also ordered DYFS to investigate whether kinship legal guardianship (KLG) was appropriate for E.E.J., and whether E.E.J. was willing to be adopted if P.J. was also adopted.
Defendant failed to appear for the February 21, 2008 compliance review hearing. A permanency order entered on that date found appropriate the Division's plan for termination of defendant's parental rights to both children followed by adoption by M.J. The order approved the Division's plan for termination because the "mother's whereabouts are currently unknown and she has a history of substance abuse and has not completed ...