November 30, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
J.M.V.H., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF C.L.S. AND R.M.R., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-0049-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2011
Before Judges Carchman, Fisher and Baxter.
J.M.V.H., to whom we shall refer as J.V., appeals from an October 1, 2010 Family Part order that denied her motion to vacate a June 23, 2010 judgment of guardianship, following the entry of default and a proof hearing. The June 23, 2010 judgment terminated J.V.'s parental rights to her two daughters, C.L.S., born in the early summer of 2007, and R.M.R., born at the end of 2009. J.V. maintains she was not in default because she was represented by counsel, and that in any event, the judge should have vacated the default judgment because J.V. demonstrated excusable neglect and a meritorious defense. She further maintains that the order in question should be reversed because the Division of Youth and Family Services (DYFS or the Division) failed to satisfy the statutory standard for termination of parental rights set forth in N.J.S.A. 30:4C-15.1(a). We disagree with those contentions and affirm the termination of J.V.'s parental rights.
Even before J.V. first came to the attention of the Division in the late summer of 2007, she had already suffered the termination of her parental rights to her first child, a son born in the spring of 2005 in Florida. The Florida court entered a guardianship order allowing the child to be adopted by his maternal grandmother due to ongoing domestic violence between J.V. and the child's father C.C.S., and the parents' unresolved substance abuse problems.
C.L.S. was born to J.V. and C.C.S. in the early summer of 2007. On September 6, 2007, the paternal grandmother of C.L.S. called DYFS to report that J.V. and C.C.S. often got drunk, had no permanent address and went from home to home with C.L.S. The grandmother told DYFS that she had contacted the agency at the request of her son C.C.S. because neither he nor J.V. was able to care for the child. The paternal grandmother also notified DYFS that although C.L.S. was lactose intolerant, J.V. and C.C.S. had given her a baby formula not designed for babies with such a disorder, and that they often left C.L.S. in a wet diaper sitting in her car seat by herself. The paternal grandmother's own children had been previously removed from her care because of her drug use, and she told DYFS she was unable to care for C.L.S.
DYFS commenced an investigation, but was initially unable to locate either J.V. or C.C.S. When the caseworker was finally able to interview them on September 20, 2007, J.V. admitted that she had never taken C.L.S. to a pediatrician subsequent to the child's six-day hospitalization due to the effects of lactose intolerance. J.V. further admitted in the interview that she had smoked marijuana as recently as a week before the interview, and agreed to participate in a substance abuse evaluation and parenting skills classes. J.V. also told the caseworker that although she had been diagnosed with attention deficit hyperactivity disorder, she was taking no medication to address its symptoms. She also admitted to the caseworker that neither she nor C.C.S. had employment or income, and that she was surviving on handouts from her family. At the time, she and C.L.S. were living with J.V.'s brother.
The day after that interview, DYFS received a second referral from the paternal grandmother, in which she reported that J.V. and C.C.S. were both high and that the two smoked marijuana every day. The paternal grandmother also expressed concern that J.V. and C.C.S. had never obtained immunizations for the baby, and even though the child was merely two months old, J.V. had been adding rice cereal to C.L.S.'s bottle to ensure that she would sleep through the night.
Within an hour of receiving that referral, two DYFS caseworkers arrived at the paternal grandmother's home, and found C.C.S. lying on a mattress in the living room intoxicated and unresponsive, and found the baby strapped into a car seat in the dining area. When the caseworkers attempted to awaken C.C.S., who smelled of alcohol, they were unable to do so. The caseworkers searched for J.V., but were unable to locate her. DYFS effectuated an emergency removal of C.L.S. from her parents' care and left the notice with C.C.S. Shortly thereafter, DYFS filed an abuse and neglect complaint (FN) against both parents.
The DYFS caseworkers took C.L.S. to an area hospital for a physical examination. They noted that the child appeared hungry and that the baby bottle found at the home was watery and had cereal in it. While changing the baby's diaper, the caseworker observed a diaper rash and noted that C.L.S. had not been bathed recently. The child was also suffering from a rash around her neck caused by a cereal build-up. DYFS substantiated neglect against both parents, arising from their inadequate supervision and from the substantial risk of harm to C.L.S. due to her parents' substance abuse problems.
After removing C.L.S. from J.V.'s care, the Division offered J.V. the following services: visits with C.L.S., a substance abuse evaluation, substance abuse treatment and referrals for housing. After only four visits with C.L.S., J.V. left New Jersey to live in New York. When J.V. and C.C.S. failed to appear in court on January 22, 2008, the judge entered default against both, and ordered DYFS to begin interstate evaluations of family members to determine their suitability as possible resource parents for C.L.S. A few weeks later, J.V. notified DYFS that she was back in Trenton and living with her brother. She asked the case manager for the date of the next court hearing, and expressed her intention to attend a substance abuse intake appointment at the Trenton Treatment Center.
On March 5, 2008, when J.V. appeared in court as promised, the judge vacated the default that had been entered on January 22, 2008. The judge did, however, enter a finding of abuse and neglect against J.V. arising from leaving C.L.S. in the care of C.C.S. who was intoxicated. In the course of the next month, J.V. tested positive for marijuana.
Despite her promise to remain in touch with DYFS and to cooperate with substance abuse treatment, during the three-month period between March and June 2008, J.V. missed appointments at the Trenton Treatment Center, claiming that she had laryngitis. She also missed sixteen of the eighteen days of substance abuse treatment at Project Free, even though a DYFS case aide arrived at J.V.'s home on each of the days J.V. was scheduled for appointments to provide her with transportation.
By late June 2008, when J.V. continued to miss her treatment appointments and could not be located, DYFS learned from her brother that in early June, J.V. had fled to Florida to avoid prosecution for having stolen $650 from a male friend. Although J.V.'s efforts to avoid prosecution in New Jersey were successful, she did not fare as well in Florida because by September 2008, she was incarcerated in that State. J.V.'s last visit with C.L.S. occurred some five months earlier in April 2008.
On August 28, 2008, J.V. notified DYFS by letter that she wished to surrender her parental rights to C.L.S. to her mother in North Carolina. That identified surrender was ultimately unsuccessful because of unfavorable reports DYFS received from the North Carolina protective service agency. The foster parents who had been caring for C.L.S. since shortly after her placement in 2007 notified DYFS that they wished to adopt her.
The September 11, 2008 permanency hearing was conducted with J.V. participating by phone from the Hillsborough County Jail in Florida with the assistance of counsel in New Jersey. At that hearing, the court approved the Division's plan to terminate the parental rights of both parents. DYFS filed a guardianship complaint against both J.V. and C.C.S. on November 6, 2008, seeking to terminate their parental rights to C.L.S.
Upon J.V.'s subsequent release from the Florida jail, she failed to establish contact with DYFS or make any effort to return to New Jersey. Although DYFS began searching for J.V. in December 2008, the agency was forced to discontinue that search in April 2009 with no leads concerning J.V.'s whereabouts. During this same time period, the DYFS caseworker conducted visits at the foster home and observed that C.L.S. was thriving in her foster parents' care.
At the time of the April 24, 2009 court hearing, the Division reported to the judge that C.C.S. was living in Tampa, but that the agency had been unable, despite significant efforts, to locate her. In particular, the Division's investigation disclosed that J.V. had last resided in Tampa, Florida in January 2009 but had left no forwarding address, and had failed to make any contact with DYFS or inquire about the well-being of C.L.S. The judge approved the Division's request to serve each parent by publication.
In July 2009, DYFS was finally able to locate J.V. in Trenton after C.C.S.'s mother directed caseworkers to various locations in the city. The Division also learned that although J.V. and C.C.S. had returned to Trenton in June 2009, neither had advised the Division of his or her whereabouts. J.V. did appear in court for the July 17, 2009 hearing, and advised the judge that she was unsure if she intended to contest the termination of her parental rights to C.L.S.
J.V. appeared in court for both the August 14 and November 20, 2009 hearings. During the latter hearing, DYFS reported that J.V. had tested positive for marijuana in September 2009, but that she had resumed her substance abuse treatment at Project Free. DYFS also advised the judge that on October 7, 2009, it had provided J.V. with bus passes for three months of visits with C.L.S. to occur on alternate weeks. At the conclusion of the November 20, 2009 hearing, J.V. advised the judge that she was due to give birth to her third child in a few weeks. At the conclusion of the hearing, the judge entered default against C.C.S.
J.V.'s third child, R.M.R., was born at the end of 2009. The hospital reported to DYFS that J.V. had received no prenatal care while pregnant with R.M.R. When asked about her plans for caring for R.M.R., J.V. responded that she intended to stay at her brother's home in Trenton where he would assist her in caring for the baby. J.V.'s brother agreed to do so, and a case plan was prepared accordingly.
When the DYFS case manager arrived at J.V.'s brother's home in mid-January 2010 to transport J.V. to the court-ordered psychological evaluation, J.V.'s brother reported that she was no longer there, as she had come home "under the influence of something" and was so "out of control" the prior evening that he had been forced call the police. The police arrested J.V. and transported her to the local crisis center. A few weeks later, when the caseworker discussed with J.V. her living conditions while in Florida, J.V. admitted that she and C.C.S. had no home and were essentially living on the streets.
Upon speaking with J.V.'s substance abuse counselor, DYFS learned that the last substance abuse treatment session J.V. attended was on November 24, 2009, some two months earlier. Based upon J.V.'s refusal to attend drug treatment and her removal from her brother's home the previous night by police, DYFS executed an emergency removal of R.M.R. and substantiated neglect against J.V. for that incident. On January 26, 2010, the Division filed a verified complaint and order to show cause seeking custody of R.M.R.
J.V. failed to appear in court on the March 18, 2010 return date of the order to show cause, although she appeared at two hearings later that month. On March 25, when J.V. was present in court, DYFS advised the judge that it intended to also seek guardianship of R.M.R., and that it intended to move for the consolidation of the two guardianship complaints against J.V. through a motion to be heard on May 7, 2010. The judge instructed J.V. to appear in court on May 7. At the March 25, 2010 hearing, the judge also ordered J.V. to attend a mediation hearing on June 21, 2010.
As promised, on April 30, 2010, DYFS filed an amended complaint for guardianship adding R.M.R. as a subject child. J.V. was personally served with the guardianship complaint and order to show cause reflecting the hearing date of May 7, 2010 at 1:30 p.m. Despite having been personally served on May 5, 2010, with the amended guardianship complaint that reflected a court hearing date of May 7, 2010, and despite having been advised of the May 7, 2010 court date during the March 25, 2010 proceeding, J.V. failed to appear. J.V.'s attorney objected to the entry of default against J.V., arguing that J.V. had been present at every court hearing since July 2009. Notwithstanding counsel's request that he refrain from doing so, the judge entered default against J.V. on the newly filed guardianship complaint.
The judge reasoned that the prior orders served upon J.V. notified her that a failure to comply with any of the provisions of the court order or "a continuing failure" to appear in court could result in the entry of default. The judge also pointed to the fact that J.V. had been provided notice on two occasions to appear in court on May 7, 2010. The judge advised J.V.'s counsel that he would entertain an application to vacate the default, without the filing of a formal motion, if J.V. appeared at the next scheduled court hearing. After entering default, the judge dismissed the two FN complaints. Later in the May 7, 2010, proceeding, DYFS advised the judge and J.V.'s attorney that J.V. had appeared to visit her children a few hours earlier at the DYFS office, which was located at 120 S. Stockton Street in Trenton.*fn1
After the judge entered default against J.V., he granted DYFS's motion to admit in evidence the April 29, 2010, court report that had been prepared in connection with the FN matters. The April 29 report outlined the services the agency had provided to J.V. and described her level of compliance. In its report, the Division noted that J.V. had failed to appear for the court-ordered psychological and bonding evaluations scheduled on January 14 and 21, 2010, and had also failed to attend the rescheduled appointment on April 8, 2010. She tested positive for marijuana in September 2009, although the urine screens were negative on three occasions in November 2009. The Division also reported that despite J.V.'s admission that she suffered from substance abuse, she had been discharged from Project Free for failing to attend, causing DYFS to refer her to yet another program, New Horizon, where she refused to submit any of the required urine screens after March 11, 2010. J.V. also missed two of her appointments at the New Horizon program between mid-March and mid-April 2010.
Moreover, a report prepared by a Mercer County social service agency concerning all DYFS clients who were receiving public assistance, reported that J.V. had only attended two of the required fifteen intensive outpatient substance abuse sessions following her intake appointment on March 11, 2010. The Division also noted in its May 7, 2010 court report that although it had provided a monthly bus pass to J.V. so she could attend various treatment programs, the Division had recently stopped providing J.V. with bus passes upon learning that she was not attending the required treatment sessions.
In addition to failing to appear at the May 7, 2010 court hearing, J.V. failed to appear for the court-ordered mediation proceeding on June 21, 2010. Based upon J.V.'s failure to appear at the mediation proceeding, the judge continued J.V.'s default status, noting that he would conduct a proof hearing two days later, on June 23, 2010.
J.V. did not appear at the June 23, 2010 hearing, although her attorney was present. At the hearing, DYFS produced its case manager, Nonee Kendall, to testify that she had spoken to J.V. on June 15, 2010 and had confirmed that J.V. was aware of her obligation to attend the June 21, 2010 mediation hearing. Kendall noted that J.V. had promised to do so. Kendall also testified that when she asked J.V. why she had failed to appear on May 7, 2010 for the court hearing, J.V. "didn't answer. She just said she didn't make it. She couldn't make it." Kendall testified that she responded to J.V.'s comments by reminding J.V. that she could have walked to the courthouse that day because her visit with her children at the DYFS office was in the morning and the court hearing was at 1:30 p.m. the same day.
During the June 23, 2010 hearing, the judge reviewed the pleadings, the attachments, and the written proofs already submitted to the court. He observed that J.V. had failed to appear in court for the May 7 return date of the order to show cause and for the June 21 mediation, and had failed on four occasions to appear for court-ordered evaluations. Based upon all of those factors, the judge reiterated his conclusion that the entry of default was appropriate.
The judge turned next to a determination of whether DYFS satisfied the four-prong test for termination of parental rights established by N.J.S.A. 30:4C-15.1(a). Addressing the first prong, which requires clear and convincing evidence that the parent's conduct had endangered, or will continue to endanger, the child's safety, health or development, the judge observed that during her daughters' entire lives, J.V. was unable to provide the care and protection that young children require. Although J.V. had been able to "get off of drugs for a while," she quickly relapsed. The judge remarked, "[S]he disappears. . . . [S]he hasn't gotten off the drugs. . . . If these children were in her care, there wouldn't effectively be any care at all[.]"
Addressing the second prong, which requires DYFS to establish that the parent is unwilling or unable to eliminate the harm facing the child, the judge concluded that J.V. had "plac[ed] her substance abuse over [the welfare of] her children." The judge observed that "[i]t takes quite a bit to get clean of drugs but this case has been going on for quite some period of time." He held that J.V. was unwilling to "do the things that she's supposed to do . . . to get herself clean from drugs where she would be able to be sober and cognizant of the things she needs to do to be a parent." He also noted that J.V. was unable to establish a permanent home, "moving from place to place, [and] getting kicked out from place to place[.]" The judge concluded that J.V.'s rootlessness was particularly problematic for R.M.R., who was medically fragile due to a heart condition. The judge also found in connection with the second prong that removing the children from their current placements, where they were thriving, would cause serious harm to both children.
As to the third prong, which requires a showing that DYFS made reasonable efforts to provide services to correct the circumstances that led to the child's removal, the judge found that DYFS had offered an array of services, but J.V. had refused to accept them. The judge also considered alternatives to termination of J.V.'s parental rights, concluding that kinship legal guardianship (KLG) was not an option in light of J.V.'s pattern of repeatedly disappearing from her children's lives for prolonged periods of time.
Turning to the fourth prong, the judge concluded that termination of J.V.'s parental rights would not do more harm than good. The judge observed, "[s]ince there is little, if any, good that [J.V.] is able to offer . . . her children[,] and adoption would offer the . . . probability of a safe and stable home, clearly it would do a lot more good for these children to get into a stable home with somebody who is able to take care of their needs[.]" He added, "[t]he good certainly outweighs the harm." Having concluded that DYFS satisfied all four prongs of the statutory test by clear and convincing evidence, the judge entered a judgment terminating J.V.'s parental rights and granting guardianship to the Division. He signed a confirming order the same day.
On August 3, 2010, some three months after default was entered on May 7, 2010, and five weeks after the judgment of guardianship was entered on June 23, 2010, J.V. moved to vacate the default judgment. The judge established October 1, 2010 as the hearing date on J.V.'s motion. Notably, J.V. was not present in court that day, and her attorney was unable to offer any explanation for her absence. Nonetheless, the judge proceeded to consider J.V.'s certification, in which she asserted that she failed to appear at the May 7, 2010 hearing because she "did not have transportation" to the courthouse. She asserted that DYFS provided her with bus passes in either March or April, 2010, but she had not received her bus pass for the month of May "until a day or two after the court hearing." She did not explain why, if she was at DYFS headquarters on the morning of the May 7 hearing to visit her children, she was unable to walk four-tenths of a mile to the courthouse for the 1:30 p.m. hearing. She also did not explain why, if she had no transportation, she had not called her DYFS caseworker to request assistance.
As for her failure to attend the required substance abuse treatment program, J.V. asserted she was unable to do so as she had no medical insurance. She maintained that her insurance had been "temporarily suspended . . . in the beginning of 2010." She also insisted that although she had been "going to welfare for various aspects of [her] substance abuse program," the welfare agency had not provided her with "documentation of [her] appearance at the welfare office." J.V.'s certification closed with a statement that if the judge vacated the default, she intended to present "a substantive defense[.]" She did not elaborate.
Addressing J.V.'s claim that she was entitled to the vacating of the default judgment, the judge observed that J.V.'s argument was based upon Rule 4:50-1(a), "excusable neglect." The judge held that J.V.'s neglect "was not excusable." He noted that DYFS had informed J.V. in April 2010 that she would no longer be receiving a bus pass due to her non-compliance with program attendance, and that, consequently, J.V. was responsible for "either find[ing] a way to get to the courthouse or, since she presumably had over a week to do so, inform the Division that she had no way to get herself to the hearing." Because J.V. "did neither of these things," her failure to appear in court on May 7, 2010, did not constitute "excusable neglect" within the meaning of Rule 4:50-1(a).
Next, the judge analyzed the propriety of the entry of judgment by default. He noted that J.V.'s failure to appear in court for the May 7, 2010 hearing was not the only instance in which she had failed to appear. To the contrary, J.V. had also failed to appear for the court-ordered mediation on June 21, 2010. Moreover, J.V. had not notified DYFS or the court that she needed transportation to appear at the mediation proceeding after having received ample notice that she was required to be present.
Additionally, the judge noted that throughout the pendency of the FN proceedings, J.V.'s whereabouts had been unknown for protracted periods of time. The judge stated:
Through[out] each of th[e] FN cases, [J.V.] failed to comply with court orders, failed to make herself available for court hearings, and failed to comply with services. The Division removed [C.L.S.] from [J.V.'s] care in November of 2007, almost three years ago, for substance abuse problems. By November, the Division had heard that [J.V.] was homeless, that she had not been attending her drug treatment, and that she was still using drugs. [She] missed several supervised visits and a court hearing in January. In fact, the Division had no contact with [her] from November 19, 2007 until February 26, 2008.
With regard to the FN case in the matter of the . . . younger daughter, [R.M.R.], defendant exhibited the same pattern of behavior. . . . She . . . failed to comply with her urine screens and did not show up at three scheduled psychiatric evaluations. She remained non-compliant with both C[atholic Charities] H[ealth] S[ervices] and New Horizons substance abuse treatment and her services throughout the case. [J.V.] also failed to appear for several hearings.
The judge also observed that at the time he entered the default on May 7, 2010, he expressed his willingness to vacate the default if J.V. appeared at the next court hearing; however, she neither appeared at any of the hearings subsequent to the entry of default, nor attended the mediation proceeding. The judge also noted that J.V. failed to appear at the October 1, 2010 hearing on her motion to vacate the default judgment. The judge stated that during the June 23, 2010 hearing at which the judgment terminating J.V.'s parental rights was entered, he had thoroughly reviewed the documentary proofs, and had provided detailed reasons supporting his conclusion that all four prongs of N.J.S.A. 30:4C-15.1(a) were satisfied.
Finally, the judge addressed J.V.'s contention that if the default were to be vacated, she would present a substantive defense. The judge observed that J.V. had provided no proof establishing that her medical insurance had been temporarily suspended, which would have justified her failure to attend the overwhelming majority of her drug treatment sessions. The judge held that nothing in J.V.'s certification remotely established a meritorious defense. In his final remarks denying J.V.'s motion, the judge aptly stated:
So, the picture here is one where there's a parent who is not working . . . and continuing to use drugs. She is . . . unfit to be a parent and has been . . . uncooperative in this litigation. . . .
[H]er parental rights must be terminated so that the two children can find a foster home to create a bond[.]
The judge signed a confirming order on October 1, 2010 denying J.V.'s motion to vacate the previously entered judgment of guardianship. On January 7, 2011, during the pendency of this appeal, DYFS notified J.V. and the Law Guardian that despite the filing of J.V.'s notice of appeal on October 27, 2010, the adoption of C.L.S. was finalized on November 19, 2010, "apparently as a result of a breakdown in communication as to the appeal." DYFS also reported that R.M.R. continued to reside with her maternal grandmother, who was anxious to adopt R.M.R., but that the adoption of R.M.R. would remain stayed pending appeal.
On appeal, J.V. argues: 1) the trial court erred in entering the default and in subsequently denying her motion to vacate the default judgment, both because she demonstrated excusable neglect and a meritorious defense, and because she was represented by counsel and was therefore not in default; and 2) DYFS failed to establish the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.
In appropriate circumstances, a trial judge may terminate a parent's parental rights by default judgment. N.J. Div. of Youth & Fam. Servs. v. P.W.R., 410 N.J. Super. 501, 506-08 (App. Div. 2009), rev'd on other grounds, 205 N.J. 17 (2011). "Because a party represented by counsel may defend at trial without being physically present, default may not be entered when a party is not present at a trial absent evidence that the party has not otherwise defended as required by rule or court order." Id. at 506. Although we assume that P.W.R. will quell the rapidity with which defaults tend to be entered in these matters when the defendant fails to appear for trial or for other events, for the following reasons, we find no error in the proceedings that led to termination of J.V.'s parental rights.
In light of our holding in P.W.R. that default cannot be entered solely because a parent is absent from trial, we agree with J.V.'s contention that default could not properly have been entered based solely on her failure to appear at the May 7, 2010 return date of the order to show cause. But default was not entered solely on that basis. As Judge Anklowitz's comprehensive findings of fact make abundantly clear, the default was also based upon J.V.'s failure to appear for, and participate in, the court-ordered June 21, 2010 mediation. As is evident, and as Judge Anklowitz held, an attorney cannot substitute for the parent at a mediation proceeding. Unlike P.W.R., in which default was entered despite the parent's appearance at all of the prior court hearings, id. at 507, here, J.V. missed the May 7 court hearing, and the June 21 mediation proceeding, at the time judgment by default was entered on June 23, 2010.
Additionally, unlike the circumstances in P.W.R., where the default was based upon only a failure to attend a court hearing, ibid., here the default was also based on J.V.'s repeated and protracted periods of leaving the State, with her whereabouts unknown, during the pendency of the FN proceedings. Additionally, unlike in P.W.R., J.V. was non-compliant with court-ordered treatment for substantial periods of time. As a result, we conclude that defendant failed to defend "as provided by . . . court order," id. at 506, and that the entry of default was wholly appropriate.
We likewise reject J.V.'s contention that the judge barred her attorney from presenting evidence at the June 23, 2010 hearing. As defense counsel acknowledged at the hearing:
As [counsel for DYFS] noted, I did not produce anything to refute the Division's proofs. Well, it's because we are still in the discovery stage up until the time of . . . this proof hearing, we were still in the discovery stage. So, it makes sense to me that nothing has been adduced on my end.
Moreover, contrary to J.V.'s arguments on appeal, the judge did not deny her attorney the opportunity to cross-examine Kendall. The record reflects that the judge afforded defense counsel the opportunity to do so, and that the judge imposed no limits on the scope of that cross-examination.
As for the judge's denial of J.V.'s motion to vacate the default judgment, the parameters of such motions are well-established. Although a motion to vacate a default judgment is generally viewed with liberality, a motion to vacate a default judgment in guardianship matters "should be granted sparingly." In re Guardianship of J.N.H., 172 N.J. 440, 473-74 (2002). In the context of a DYFS termination case, different considerations are presented because of the child's paramount need for stability and permanency. Id. at 474-75. "Thus, in determining a Rule 4:50 motion 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." Id. at 475. We will not interfere with a trial judge's refusal to vacate a default judgment absent an abuse of discretion. Id. at 473.
Having carefully considered J.V.'s contentions in light of the record and applicable law, we are satisfied that Judge Anklowitz did not abuse his discretion when he denied J.V.'s motion to vacate the default judgment. We affirm substantially for the reasons expressed by the judge in his comprehensive and well-reasoned oral opinion of October 1, 2010. We add only the following comments. First, the default was entered on May 7, 2010, and when J.V.'s motion to vacate the default judgment was heard by the court nearly five months later on October 1, 2010, J.V. offered no witnesses, expert or otherwise, nor did she herself offer to testify. Indeed, as we have noted, J.V. was not even present at the time the court entertained her motion to vacate the default judgment.
Second, despite her claim of a meritorious defense, and despite her contention that the termination of her medical insurance was the sole reason for her failure to attend the required drug treatment sessions, J.V. presented no proof, documentary or otherwise, to support her claim that her medical insurance had been canceled, and that such cancellation excused her failure to attend the drug treatment programs the judge had ordered her to attend. Notably, the record reflects that J.V.'s failure to attend substance abuse counseling began in March 2008, continued when she absconded from New Jersey to flee to Florida in 2008, and persisted through November 2009.
Third, on four occasions, J.V. failed to appear for her court-ordered psychological evaluation, and in the nearly five months that elapsed between May 7 and October 1, 2010, she never cured that serious breach of the court's order. Under all of these circumstances, we have no basis upon which to interfere with the judge's refusal to vacate the default judgment.
In Point II, J.V. asserts that the judgment terminating her parental rights should be reversed as DYFS failed to satisfy the governing statutory standard established by N.J.S.A. 30:4C-15.1(a). Her arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). The record demonstrates that J.V.'s drug addiction interfered with her ability to provide C.L.S. and R.M.R. with their most basic needs: a stable home, proper nutrition, medical care, and parental love. Despite DYFS's sustained effort to provide J.V. with supportive services to address her serious substance abuse problem, J.V. resisted the Division's efforts, and left New Jersey for months at a time. Even after her release from jail in Florida, she made no effort to establish contact with DYFS, and it was only through DYFS's own investigation that the agency was able to locate her. The judge correctly concluded that termination of J.V.'s parental rights would not do more harm than good, and would instead provide her two children with the stability, permanency and care to which they are entitled.