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New Jersey Division of Youth and Family Services v. D.N.


November 16, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-37-09.

Per curiam.



Submitted October 18, 2010

Before Judges Grall and C.L. Miniman.

Defendant D.N. appeals from an order denying his motion to vacate a default judgment terminating his parental rights to his son J.T.B. The judgment was entered following a proof hearing conducted after multiple defaults. Relying on N.J. Div. of Youth and Family Servs. v. P.W.R., 410 N.J. Super. 501, 506 (App. Div. 2009), certif. granted, 201 N.J. 440 (2010), defendant contends the default judgment must be vacated. In the alternative, he argues that the Division of Youth and Family Services (DYFS) failed to establish grounds adequate to terminate his parental rights.*fn1 After considering the evidence of defendant's multiple failures to defend as required by court orders, which effectively prevented DYFS from providing services to unite him with a child he never met, cared for or nurtured, we reject the claims and affirm.

J.T.B. was born in June 2007 to a mother, C.B., who was still a minor and in the legal custody of DYFS. DYFS commenced litigation to obtain custody of J.T.B. on June 15, 2007. Due to C.B.'s history of violent and disruptive behavior, failing to cooperate with treatment for her diagnosed mental illness and repeatedly running away from the homes in which she had been placed, the judge authorized J.T.B.'s removal and granted DYFS custody.

C.B. was not certain of the identity of J.T.B.'s father. She named three men, one of whom was defendant, who might be the father. DYFS was unable to locate defendant because C.B. knew him only by his first name and did not know his address or age. DYFS located the other men, but paternity testing established that neither could be J.T.B.'s father.

Due to C.B.'s subsequent failure to participate in the proceedings and comply with court orders addressing evaluations and visitation, the judge approved a permanency plan that called for termination of parental rights and adoption. When DYFS filed the guardianship complaint in August 2008, J.T.B.'s father was identified as "[D.] Last Name Unknown." Pursuant to N.J.S.A. 30:4C-17c, service on defendant was waived, and on October 23, 2008, default was entered against him.

C.B. did not provide defendant's surname until May 2009. A proof hearing to accept DYFS's proofs relevant to terminating parental rights was scheduled for May 7, 2009. According to C.B.'s testimony, she saw defendant on the street the day before the hearing, and defendant called DYFS and spoke with a supervisor. Although she still did not know defendant's age, address or anything about any member of his family, she gave the judge defendant's surname. But C.B. also testified that defendant knew about the child and knew that she had given his first name to DYFS. She said he knew about "all of it" and acknowledged that he had known "[s]ince the baby was born."

Defendant arrived at the hearing after C.B. testified. He confirmed his surname and provided his address. He also confirmed J.T.B.'s date of birth, and acknowledged that C.B. had informed him of J.T.B.'s birth.*fn2

Defendant admitted that he had never met the then twenty-three month old child and gave two explanations of the obligations that had limited his past involvement and would need to be accommodated in future proceedings. He said he had not tried to get custody of the child earlier because he is the "Executive Producer at Shiney Label [and] move[s] around a lot." The judge explained that counsel would be appointed for defendant, that he would be required to take a paternity test, undergo a psychological evaluation and drug testing, and attend future hearings to avoid default being entered against him. Defendant said, "I'm in the United States Marine[s]" and "going through a - a lesser discharge - honorable discharge." Defendant told the judge that his base was in Okinawa, Japan and that he believed his next departure would be in August. The judge indicated her willingness to accommodate his military obligations.

J.T.B.'s foster mother also attended the May 7 hearing and testified that J.T.B. had been in her home since August 2008 and was doing well. She described his health and daily routine and said she was "absolutely" committed to adopting J.T.B.

At the conclusion of the proceeding, defendant accepted and acknowledged on the record receipt of the amended complaint and order to show cause. The judge issued an order stating defendant's obligation to participate in a psychological evaluation and appear for a hearing on June 4, 2009 and requiring DYFS to arrange the evaluation and a paternity test.

Defendant's appointed attorney appeared on June 4 but defendant did not. At DYFS's request, the judge re-entered default against him and scheduled a proof hearing for June 25, 2009.

On June 25, defendant appeared for the scheduled hearing. By that time, DNA testing had established that he was J.T.B.'s father. Defendant explained he had not appeared on June 4 because of a military obligation related to his discharge, which had been moved up. He gave the judge a new address, which he identified as the home of his wife and children. Defendant also submitted to a drug screen; that test was positive for marijuana.

The judge again vacated the default, adjudicated defendant's paternity and directed DYFS to set up a visitation schedule and give defendant a bus pass to permit him to attend. The order required defendant to report for a psychological evaluation with a specified doctor at a specified time on July 14, 2009, and it directed DYFS to transport him to the doctor's office if he reported to DYFS by the time set in the order. The judge also ordered DYFS to schedule a substance abuse evaluation and required defendant to provide his military records and "financial information." A case management conference was scheduled for August 13.

Defendant did not attend the psychological evaluation or contact DYFS about the substance abuse evaluation and visitation. At the August 13 hearing, he explained that he was confused about the dates and sequence of his obligations. When the judge questioned defendant in an effort to identify the source of his confusion, he said he had not gone over the papers. Defendant submitted to a second drug test, which was positive for marijuana.

The judge again ordered DYFS to provide visitation and schedule a substance abuse evaluation. Clarifying how the scheduling was to be accomplished, the judge directed defendant to appear at the DYFS office at 10:30 a.m. the next morning, August 14. The judge also ordered defendant to attend a psychological evaluation on September 2 and directed DYFS to provide him with transportation to the doctor's office if he reported to the agency's office by 12:00 p.m. The order also indicated that the next court hearing was scheduled for 9:00 a.m. on September 24 and specified that the judge would re-enter default and conduct a proof hearing that day if defendant did not appear.

Defendant did not appear on September 24, 2009. His attorney had not heard from him since the last hearing. Defendant had not appeared for the meeting on August 14 or reported for his psychological evaluation on September 2. When the August 14 meeting was rescheduled for August 21, defendant did not appear. Defendant had not provided evidence of his military status or financial information or a plan for his child's future care. In September, two of defendant's relatives had called DYFS and expressed interest in the child, and DYFS had not yet ruled them out as possible placements. On that evidence, the judge again entered default and proceeded with a proof hearing.

Because the parents had not submitted to evaluations or participated in visitation, DYFS's evidence was limited to its efforts to unify the family and the parents' lack of participation and failure to provide a plan for J.T.B.'s care. The essence of DYFS's case against defendant was that he had known about J.T.B. and the litigation since the baby was born and harmed J.T.B. by making no effort to care for or nurture him. Moreover, since entering the litigation, he had not engaged in any conduct demonstrating a willingness or ability to do so in the future. Defendant had no relationship with the child because he had never seen J.T.B. nor taken any steps to visit him. In his parents' absence, J.T.B. was living in the home of a foster mother who was caring for him and wanted to adopt him. Indeed, when defendant joined the litigation, J.T.B. had been in her home for nine of his twenty-three months and defendant failed to take advantage of multiple opportunities to schedule visits and undergo the evaluations essential to his assuming responsibility for J.T.B.'s care.*fn3

On that evidence, the judge concluded that DYFS established grounds for termination of defendant's parental rights by clear and convincing evidence in accordance with N.J.S.A. 30:4C-15.1a(1)-(4). Apparently accepting C.B.'s earlier testimony, the judge found that defendant had known about J.T.B. and the litigation since the baby was born and harmed J.T.B. by abandoning all responsibility and failing to take any action that would allow him to establish a relationship with and assume responsibility for him. She determined that DYFS had done all it could do under the circumstances and that termination of defendant's parental rights would not cause the child more harm than good.

Defendant moved to vacate the judgment on October 27, 2009. Although the motion did not include a sworn statement from defendant, a hearing was scheduled for December 17. Defendant was permitted to testify. He had explanations for his failures to appear in court and participate in services. He was in school on June 4, 2009 and on the dates of his psychological evaluations, and he was incarcerated on August 14. He had come to court on September 24 but left because he did not see anyone he recognized. He said he had evidence of his enrollment in school and his military records, but he did not have that evidence with him. He also said that he had once called a caseworker "Mr. Odum," who did not return his call.

Defendant's caseworker testified that defendant had called her on August 17 and said he was incarcerated on August 14. Consequently, she scheduled another meeting for August 21, but defendant did not attend. Defendant's caseworker did not know of a "Mr. Odum" employed by DYFS.

The judge scheduled a second hearing on the motion to vacate for January 21, 2010. Defendant did not appear. Setting forth the history of the case and noting the multiple opportunities and warnings defendant had been given, the judge denied the motion.

We reject defendant's claims that the judge erred in denying the motion to vacate. Default was entered and vacated several times before the judge entered judgment. Thus, while entry of default when defendant failed to appear for the first hearing scheduled after he joined the case might have been improvident, the judge did not act on that default and gave defendant numerous additional opportunities to appear and comply with the court orders governing essential services.

"Rule 4:43-1 provides the grounds upon which default may be entered." P.W.R., supra, 410 N.J. Super. at 506. Assuming the party has "received adequate notice that default may follow a failure to comply," id. at 507, entry of default is permissible when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order." R. 4:43-1; see N.J. Div. of Youth and Family Servs. v. T.J.B., 338 N.J. Super. 425, 433 (App. Div. 2001).

Defendant's reliance on P.W.R. is misplaced. This case is in no way analogous to P.W.R., a case in which the default was based on a failure to appear at a single fact-finding hearing in an abuse or neglect action and entered after the defendant had notified the court that she did not believe she would be able to attend because of medical issues. 410 N.J. Super. at 504-05.

This case is more like In re Guardianship of N.J., 340 N.J. Super. 558 (App. Div.), certif. denied, 170 N.J. 211 (2001). In that case, defendant had "a history of not appearing for court proceedings and of not maintaining contact with her attorney" and had failed to undergo court-ordered drug evaluations or cooperate in the preparation of a psychological evaluation. Id. at 560. In those circumstances, we found no abuse of the judge's discretion in denying defendant's motion to vacate a default judgment. Id. at 561.

This defendant was afforded ample opportunity to participate after his initial appearance on May 7, 2009. By his conduct between May 7, 2009 and January 21, 2010, he precluded DYFS from providing visitation that would permit him to meet and bond with J.T.B. and allowed J.T.B. to remain in the home of a foster parent who was caring for him. His various and conflicting explanations for his lack of involvement with his son, his conduct during the litigation and his failure to cooperate with DYFS were undocumented. Moreover, his efforts to comply with court orders essential to the pursuit of his claims were inadequate given J.T.B.'s age and the length of time that he had been deprived of nurture and care by a parent. Finally, the judge, who had the opportunity to observe defendant's testimony, did not believe his explanation for failing to appear on September 24, 2009. See Cesare v. Cesare, 154 N.J. 394, 412 (1998) (noting the deference owed to Family Part credibility findings).

Defendant's attack on the adequacy of the evidence supporting termination also lacks merit, and the evidence adduced allows us to conclude that defendant had no meritorious defense to termination of his parental rights. N.J.S.A. 30:4C-15.1a sets forth the four elements DYFS must establish by clear and convincing evidence in order to warrant termination of parental rights. These statutory standards strike a constitutionally permissible balance between the parents' right to have a relationship with their children, Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982), and the State's responsibility to protect children from harm, In re Guardianship of J.C., 129 N.J. 1, 10 (1992). See In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999).

DYFS must show:

(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)-(4).]

As the Supreme Court has explained, these statutory standards provide "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

When a judge has applied the standards and found them satisfied on the basis of facts that are supported by "adequate, substantial and credible evidence on the record," this court must uphold the findings unless the determinations are based upon a misunderstanding of the law or the implications drawn from the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (internal quotations omitted). There is no basis for disturbing the judge's determination in this case.

Each prong of the four-part test was established at the proof hearing. A parent's persistent failure "to provide paternal care, nurture, and support" or "to perform any parenting functions" is "a parental harm . . . arising out of the parental relationship and cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." D.M.H., supra, 161 N.J. at 380-81. Even after paternity was established, defendant took no action to visit his child or address his positive tests for illegal drugs.

Thus, he prolonged the harm he caused by extending the period during which he was not caring for his child. The efforts made by DYFS were, as the judge found, reasonable given defendant's repeated failures to keep court-ordered appointments essential to putting services in place and to document his living arrangements, obligations and ability to care for the child. See N.J.S.A. 30:4C-15.1(a)(3). Finally, given the absence of any relationship between defendant and J.T.B. and the foster parent's willingness to adopt, the judge was not wide of the mark in concluding that termination of defendant's parental rights would not do more harm than good. See N.J.S.A. 30:4C-15.1(a)(4).

There was no rush to judgment or denial of justice in this case. A parent who had no contact with his or her child cannot avoid or prolong the termination of his or her parental rights and permanency for the child by not participating in court-ordered services and testing and failing to appear in court. Such conduct, in itself, is inconsistent with the child's best interests as defined in N.J.S.A. 30:4C-15.1(a). Defendant's claim that he should have been afforded additional time because he did not join the proceeding until May 2009 might have some worth if he had made any effort to comply with the court-ordered services, but this record, quite sadly, does not include evidence that he did.


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