On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-84-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2011 -
Before Judges Reisner and Ostrer.
In this guardianship appeal, C.D. appeals from an April 23, 2009 default judgment terminating her parental rights to five of her children - D.D., T.D., T.B.D., Q.D., and H.D. - and from an October 28, 2009 order denying her motion to vacate the April 23 judgment.*fn1 While we strenuously disapprove of the procedural flaws in this matter, we find no basis to undo the April 23, 2009 guardianship judgment and, accordingly, we affirm that judgment and the October 28, 2009 order.
To put our conclusion in perspective, we begin with the following summary. At the time the guardianship proceedings were taking place, C.D. had six children, none of whom she had been able to care for due to her drug problems, and all of whom were in the legal custody of the Division of Youth and Family Services (DYFS or Division). Nearly a year after judgment was entered terminating her rights to the five children involved in this case, she made an identified surrender of her parental rights to the sixth child.
This appeal involves C.D.'s five oldest children.*fn2 These children have been in foster care for several years, due to C.D.'s inability to overcome her drug addiction. After extensive, unsuccessful efforts to assist C.D. to recover from her addiction, DFYS filed a complaint on March 26, 2008 seeking to terminate C.D.'s parental rights. The trial court entered default against C.D. for failing to appear at a scheduled case management conference on April 1, 2009.*fn3
In entering default, the judge found that C.D. failed to appear in court on April 1; that neither her attorney nor her DYFS caseworker had been able to contact her; and that she had not visited her children since December 2008. Although default was entered, the Division's attorney stated on the record, in the presence of C.D.'s counsel, that if C.D. later appeared and sought to vacate the default, she would consent. The judge rescheduled the matter for April 23, 2009, either to hear C.D.'s application to vacate the default or for a proof hearing.*fn4
At the April 23 hearing, C.D. once again failed to appear. Her counsel advised the court that he had been unable to locate her. C.D.'s mother also testified that she had not heard from C.D. in months, and that her search for her daughter had been unsuccessful. The judge ruled that the hearing would proceed in C.D.'s absence, and DYFS presented testimony and documentary evidence in support of the guardianship complaint. However, because C.D. had failed to appear and was in "default," the trial court denied C.D.'s counsel the opportunity to cross-examine the witnesses. After hearing the witnesses and placing a lengthy oral opinion on the record, the judge entered final judgment by default on April 23, terminating C.D.s parental rights to all of the children.
C.D. filed a motion to vacate the default judgment and stay adoption proceedings, on August 19, 2009. Her motion was filed two days after the foster parents of H.D., the youngest of the five children involved in this case, had legally adopted her. The August 19 motion was not supported by any evidence that C.D. had successfully completed drug rehabilitation or that she was otherwise currently able to parent her children. The Division presented evidence that even after her parental rights to these five children were terminated, the agency made additional efforts to enroll C.D. in drug treatment but she failed to cooperate. The trial court denied C.D.'s motion.
On this appeal, C.D. asks us to reverse the April 23 and October 28, 2009 orders on three grounds: (1) DYFS failed to prove that termination was in the best interests of the children by clear and convincing evidence; (2) the trial court's denial of her motion to vacate the default judgment was an abuse of discretion; and (3) the trial court's refusal to allow C.D.'s counsel to cross-examine witnesses denied her due process.
After thoroughly reviewing the record, we conclude that C.D.'s first point is without merit, because the evidentiary record overwhelmingly supports the trial judge's conclusion that termination is in these children's best interests. We agree that the trial court initially erred in entering a default and in denying her counsel's request to cross-examine witnesses. However, we find that in the circumstances of this case, those errors do not justify re-opening the guardianship judgment.
The record leaves no doubt that, even at the time of her motion to vacate the judgment, C.D. continued to be unable to parent her children. She failed to present any meritorious defense to the guardianship complaint. All of the children have either been adopted, or are living with foster parents who wish to adopt them. There is no basis to conclude that cross-examination of the State's witnesses on April 23, 2009 would have changed the trial result. We decline to inflict on these children the grievous harm that would result from returning them to legal limbo, and we affirm.
Although we outlined the facts briefly, we now address them in greater detail, because they tell an essential story. On January 30, 2007, the Division removed all five children from C.D.'s custody. The three oldest children were previously removed on January 26, 2005, after they were found alone in the home C.D. shared with A.C., who was arrested for drugs and weapons possession. When the fourth child, Q.D., tested positive for cocaine at her birth on July 14, 2005, DYFS also placed her in foster care. All four of the children were returned to C.D. on July 28, 2006.
The 2007 removal was precipitated when the youngest child, H.D., was born with cocaine in her system, on January 23, 2007.
During the investigation opened after H.D.'s birth, T.B.D. (three years old at the time) reported that his mother hit him with a belt and investigators found bruises on his face. Additionally, the oldest child, D.D., who was then nine years old, had been absent for six consecutive school days while he cared for his younger siblings.
Prior to the 2007 removal, the children were living with C.D. and A.C. in an apartment from which A.C. distributed drugs and kept weapons. C.D. admitted during an April 2007 interview with DYFS psychological consultant Dr. Margaret DeLong that she was aware of the presence of drugs and weapons in the home prior to A.C.'s arrest, but was so "wrapped up in getting high" that she was unable to protect her children.
After the 2007 removal, DYFS referred C.D. to the Options program, which provided her with substance abuse counseling, psychological counseling, and parenting classes. C.D. tested positive for cocaine on June 25, 2007, and left the program on August 10, 2007. DYFS had intended to recommend that C.D. begin overnight weekend visitation with her children, but abandoned that plan when she dropped out of drug treatment. C.D. also stopped attending office visits with her children during this time.
DYFS recommended that C.D. complete a second drug treatment program, the Challenge program, on October 3, 2007. She tested positive for cocaine the day she was supposed to begin the program, and did not appear at the program after the October 8 drug screen; she was discharged from the program on October 17, 2007. C.D. tested positive for cocaine again on December 3 and 20, 2007. She missed a scheduled evaluation with a psychologist, Dr. Donna LoBiondo, in January 2008. As a result of her lack of progress, DYFS argued at a January 14, 2008 permanency hearing, that the ...