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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...