January 18, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF C.J.V. AND C.D.V., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-44-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 6, 2011
Before Judges Messano, Yannotti and Espinosa.
D.C.B. appeals from an order entered by the trial court on December 8, 2010, denying her motion to vacate a final judgment by default entered on July 16, 2010, which terminated her parental rights to the minor C.D.V. and awarded the Division of Youth and Family Services (Division) custody of the child. For the reasons that follow, we reverse and remand the matter to the trial court for further proceedings.
We briefly summarize the relevant facts, drawn from the record established in the trial court. D.C.B. gave birth to C.J.V. on April 27, 1995, and to C.D.V. on March 18, 1999. R.V. is the birth father of both children.*fn1 In August 2002, the Division received a report that D.C.B.'s residence was strewn with garbage and infested with insects. In September 2002, D.C.B. informed the Division that she and her children were living with her mother, A.B. In addition, D.C.B. reported that she was on a new medication and was attending a treatment clinic, to address certain long-standing mental health issues, including depression.
By March 2003, D.C.B. and the children had moved in with D.C.B.'s aunt. D.C.B. later established her own residence in a one-bedroom apartment by June 2003. The Division also received a report in June 2003, indicating that R.V. had taken C.D.V. to the emergency room because the child had bruises all over his body. A doctor reported that the marks were consistent with hyperactivity, and the child had reported that he was bruised when he fell down.
In October 2005, the Division was informed that C.D.V. indicated that he wanted to kill himself and he was placed in a hospital for psychiatric treatment. In June 2006, C.J.V. underwent a psychological evaluation, and she was diagnosed as suffering from bipolar disorder, attention deficit hyperactivity disorder (ADHD), and other conditions for which medication was prescribed. Counseling was recommended.
In August 2006, D.C.B. contacted the Division to report that she had taken C.D.V. to a crisis center after she had difficulty restraining him during a fight with C.J.V. The boy was admitted to a hospital. In October, 2006, C.D.V. was placed in a group home for children. C.D.V.'s therapist reported to the Division that D.C.B. had not been protecting the child since she allowed him to speak to R.V. on the telephone, after which C.J.V. had exhibited certain behavioral problems.
On November 2, 2006, representatives from the Division attended a meeting concerning C.D.V. with social and mental health workers. C.D.V. was classified as having multiple disabilities and diagnosed with post-traumatic stress disorder (PTSD) and ADHD. Several days later, one of the Division's caseworkers visited D.C.B.'s home and found that it was filthy, cluttered, and without operational smoke alarms.
In January 2007, D.C.B. contacted the Division and reported that C.J.V. had been refusing to take her medication. In March 2007, D.C.B. was hospitalized for diabetes treatment, and C.J.V. was temporarily placed with A.B. The Division became concerned when it learned that three men who were living with A.B. had problems with alcohol abuse.
On March 20, 2007, the Division filed a complaint in the trial court seeking custody, care and supervision of C.D.V. and C.J.V. The court granted the Division's application. The court ordered D.C.B. to undergo a psychological evaluation and required A.B. to cooperate with a substance abuse evaluation.
On March 28, 2007, Dr. Chester E. Sigafoos (Dr. Sigafoos) evaluated D.C.B. and determined that she was suffering from a variety of disorders, including bipolar and major depressive disorders, dependent personality disorder, histrionic personality traits and anti-social personality features. Dr. Sigafoos opined that D.C.B.'s prognosis for change was poor because of her lack of insight, motivation and commitment to change. He concluded that D.C.B. could not "effectively parent her children and insure their safety and well being[.]"
In August and September 2007, D.C.B.'s attorney arranged for Dr. Jonathan H. Mack (Dr. Mack) to perform a psychological evaluation of D.C.B. Dr. Mack determined that D.C.B. should continue her psychiatric and psychological treatment, avail herself of other services, and the Division should work towards reunification of D.C.B. and the children.
At some point, C.D.V. was placed in a foster home. In October 2007, the Division received a report that C.D.V. was engaging in self-injurious behaviors and his agitation level was increasing. Later that month, C.D.V.'s foster parents took him to a hospital because he had tried several times to jump off a moving school van and repeatedly hit his head against the van's window.
C.D.V. was later transferred to another hospital. He was discharged from that hospital on November 8, 2007, and medications were prescribed. However, on November 29, 2007, C.D.V. was again taken to a hospital after he became agitated, had paranoid delusions and threatened to kill himself. C.D.V. was transferred to St. Clare's Hospital.
The Therapeutic Foster Care Program decided that upon his discharge, C.D.V. should not be returned to his foster family. The program recommended C.D.V.'s placement at the Children's Transitional Residence because he required more structured care to address his behavior.
In January 2008, C.D.V. was released from St. Clare's and placed at Davis House, a facility operated by Youth Consultation Service (YCS). YCS's psychiatric evaluation noted that, while C.D.V. was in his foster home, he had refused to attend school, take medications, do homework or shower. The evaluation also noted that, after C.D.V. was removed from his foster home, he claimed that he was "hearing the devil" and the devil had prevented him from being "a good boy."
Meanwhile, D.C.B. had been attending a program at the Family Guidance Center (FGC). The FGC's report indicated that, although D.C.B. had availed herself of some of its services, she failed to attend numerous appointments for individual therapy and medication management. D.C.B. was told that the FGC would not continue to provide her with services if she missed any other appointments.
On January 8, 2007, D.C.B. appeared at FGC for a medication management session. It was reported that D.C.B. had poor hygiene and complained of anxiety and depression. In February 2008, C.J.V. was returned to D.C.B.'s care. A Division caseworker visited D.C.B. and C.J.V. several weeks later, and noted that they appeared to be doing well.
In May 2008, Dr. Gregory C. Gambone (Dr. Gambone) performed a psychological evaluation of C.D.V. and found that the boy was suffering from ADHD. In his report, Dr. Gambone noted that C.D.V. had exhibited behavioral symptoms "often associated with early childhood trauma." Dr. Gambone recommended, among other things, that C.D.V. continue psychiatric treatment and psychotherapy.
In June 2008, a Division caseworker visited D.C.B.'s home and found that it was dirty and disorganized. In the next several months, the Division continued to monitor D.C.B.'s home. In addition, C.D.V. had weekend visits with D.C.B. and C.J.V. On October 7, 2008, C.D.V. was discharged from Davis House and placed in a therapeutic foster home. C.D.V.'s visits with D.C.B. and his sister continued.
In November 2008, the Division learned that D.C.B. had not been attending her treatment programs. That month, Dr. Jamie Gordon-Karp (Dr. Gordon-Karp), performed a psychological evaluation and found that although D.C.B. was capable of handling her son's needs, she required support and guidance in doing so. Among other things, Dr. Gordon-Karp recommended that C.D.V. continue his weekend visits with D.C.B. The doctor also recommended that D.C.B. receive individual therapy.
In January 2009, after a holiday stay with D.C.B., C.D.V. engaged in behaviors that resulted in his placement in a hospital crisis center. A treatment meeting took place in February 2009, and it was determined that C.D.V. required a higher level of care. In February 2009, the Family Preservation Service (FPS) terminated its services to the family. The FPS said that it had difficulty working with D.C.B. because of her illnesses and cancellations of treatment sessions. D.C.B. was referred to the Association for Advancement of Mental Health (AAMH), where she was scheduled to participate in a program to assist in her recovery. However, in May 2009, the AAMH advised that it planned to discharge D.C.B. from the program for lack of participation.
As of June 2009, A.B. was hospitalized for alcohol withdrawal. C.J.V. was temporarily placed at Anchor House and then transferred to a foster home. D.C.B. meanwhile reported in July 2009, that she needed to move out of her apartment due to a conflict with her roommate. In September 2009, the Division learned that D.C.B. had been hospitalized after a friend was unable to wake her. D.C.B. tested positive for benzodiazepines, opiates and marijuana. At the hospital, D.C.B. admitted that she had been abusing pain killers, cocaine, heroin, and marijuana.
While D.C.B. was in the hospital, C.J.V., who was then fourteen years old, wrote to her and said that she was "on the road" to a nervous breakdown. C.J.V. stated that she wanted to be adopted by her foster mother. She said that D.C.B. needed "looking after" but she could not do it anymore.
The Division referred D.C.B. for a psychological evaluation by Dr. Lorraine Weigand (Dr. Weigand), who found that D.C.B. was suffering from bipolar disorder with borderline personality traits. Dr. Weigand determined that D.C.B. had limited insight and very poor problem solving. According to the doctor, D.C.B. did not understand "the antecedents and consequences" of her behaviors, which impeded her ability to provide a safe and stable environment for herself and her children. Dr. Weigand recommended that D.C.B.'s parental rights be terminated.
D.C.B. was discharged from the hospital on September 16, 2009. From that time until January 2010, D.C.B. had little contact with her children. As of December 2009, D.C.B. began residing in a homeless shelter.
On January 14, 2010, the Division transported D.C.B. to visit C.D.V. He reportedly exhibited surprise and happiness when he saw his mother. C.D.V. also expressed concern over D.C.B.'s physical condition, since she had recently fractured a bone in her foot. After D.C.B. left, C.D.V. reportedly became upset.
On January 20, 2010, C.D.V. was transported to the children's hospital at Hackensack University Medical Center. The hospital issued a progress report, in which it noted that C.D.V. had expressed concern about the lack of contact with his mother. The report recommended that C.D.V. remain in a structured residential setting with focused therapy because "he continues to manifest a level of distorted thought processes, possible hallucinatory experiences and dysregulated behavior[.]"
On February 9, 2009, the trial court conducted a permanency hearing and approved the Division's plan to terminate D.C.B.'s parental rights to C.D.V. and C.J.V. The court ordered the Division to file a guardianship complaint seeking that relief by April 23, 2010.
On February 20, 2009, C.D.V. was informed of the plan for his adoption. D.C.B. attended the meeting and told C.D.V. she will always love him, and that she wanted the best for him. C.D.V. became very emotional and angry. He expressed a desire to be with D.C.B. The Division filed its guardianship complaint on April 16, 2010.
The final hearing in the abuse and neglect case was scheduled for April 23, 2010. D.C.B. did not appear, although her attorney was present for the hearing. D.C.B.'s attorney advised the court that he was not representing her in the guardianship case. The Division moved to dismiss the abuse complaint because the guardianship complaint had been filed.
The trial court stated that it had not received word from D.C.B. The court was informed that D.C.B. had not yet been served with the guardianship complaint. The court noted that D.C.B. had received notice that the action for termination of her parental rights would proceed if she did not appear on April 23, 2010.
The court entered an order dated April 23, 2010, declaring defendants in default for failure to appear. The order stated in pertinent part that if defendants were served with the guardianship complaint and did not appear on the July 16, 2010 return date, the court could proceed with the proof hearing. The Division served its pleadings upon D.C.B. and R.V. and they were advised of the July 16, 2010 return date.
D.C.B. and R.V. did not appear in court on July 16, 2010. The trial court noted on the record that defendants had both been served with the summons and complaint, as indicated in the affidavits of service submitted by the Division. The court decided to proceed in a summary manner because there were no material facts in dispute.
The court then made specific findings, concluding that the Division had proven by clear and convincing evidence all of the criteria for termination of parental rights under the best interest test codified in N.J.S.A. 30:4C-15.1(a). The court then entered a final judgment by default, terminating D.C.B.'s and R.V.'s parental rights to the children.
On August 23, 2010, D.C.B. filed a motion to vacate the default judgment. In a certification submitted in support of the motion, D.C.B. stated that she did not appear on April 23, 2010, because she had been in the hospital and was released on that date. D.C.B. also stated that one of the Division's workers was supposed to transport her to court for the July 16, 2010 proceeding but the worker had arrived too late. Neither the Division nor the Law Guardian for the children opposed D.C.B.'s motion.
The trial court did not, however, vacate the default judgment but decided to conduct another proof hearing. The court explained that if the evidence presented at the proof hearing was insufficient to make a decision, it would vacate the judgment. The court entered an order reserving its decision on D.C.B.'s motion to vacate the judgment until the second proof hearing was held. The court ordered the Division to file a new affidavit setting forth the evidence in support of its complaint.
All parties were in court on December 8, 2010. D.C.B. agreed to an identified surrender of her parental rights to C.J.V., but she continued to contest the termination of her parental rights to C.D.V. D.C.B.'s attorney renewed her motion to vacate the default judgment, arguing that there was insufficient proof on the fourth prong of the test for termination of parental rights in N.J.S.A. 30:4C-15.1(a), which requires the Division to show that termination of parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The judge refused to vacate the judgment and conducted the proof hearing.
Based on the evidence presented by the Division, the trial court found that the Division met its evidentiary burden on all four prongs of the best interest test under N.J.S.A. 30:4C-15.1(a). The court entered an order dated December 8, 2010, memorializing its decision. This appeal followed.
D.C.B. argues that the trial court abused its discretion by refusing to vacate the default judgment terminating her parental rights to C.D.V. D.C.B. contends that her failure to appear at the April 23, 2010 and July 16, 2010 court proceedings was excusable under the circumstances. D.C.B. also contends that she presented a meritorious defense to the Division's guardianship complaint.
It is well established that an application to vacate a default judgment is "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd., 43 N.J. 508 (1964). To obtain an order vacating a default judgment, a defendant must show that the failure to answer or appear "was excusable under the circumstances" and defendant "has a meritorious defense." Id. at 318.
In this case, it is undisputed that the trial court entered an order on February 9, 2010, which required D.C.B. to appear in court on April 23, 2010. The order stated in pertinent part that if D.C.B. did not appear on that date, default could be entered and the proceedings for termination of her parental rights would go forward. D.C.B. acknowledges that she received a copy of the February 9, 2010 order, and she did not appear in court on April 23, 2010.
Consequently, the trial court filed an order dated April 23, 2010, which declared D.C.B. in default for failure to appear. The April 23, 2010 order additionally indicated that if D.C.B. and R.V. were served with the Division's guardianship complaint before the next court hearing, which was scheduled for July 16, 2010, they would be "defaulted" and the Division could proceed with the proof hearing on that date. The order also stated that defendants' continuing failure to appear could result in entry of default against them and termination of their parental rights.
D.C.B. was served with a copy of the court's April 23, 2010 order as well as the summons requiring her appearance on July 16, 2010. The summons stated that if defendants did not appear at the time and place indicated, a judgment could be entered against them which could result in the termination of their parental rights to the children. Neither D.C.B. nor R.V. appeared in court on July 16, 2010, and neither defendant was represented by counsel at that proceeding.
Because defendants did not appear as required, the court entered default against them, proceeded with the proof hearing, determined that their parental rights should be terminated, and entered the final judgment by default. However, when D.C.B. moved to vacate the default judgment, she provided the trial court with an explanation for her failure to appear at both proceedings.
In her certification dated August 5, 2010, D.C.B. stated that she failed to appear on April 23, 2010, because she had been in the hospital and was not discharged until the date of that proceeding. D.C.B. also stated that, prior to the July 16, 2010 proceeding, she had contacted the Division caseworker, Precious Wheeler (Wheeler), to arrange for transportation to the court. Wheeler told D.C.B. to call again.
D.C.B. stated that she called Wheeler on the morning of the July 16, 2010 hearing but was told that Wheeler was on vacation. D.C.B.'s call was transferred to the caseworker's supervisor, Nanette Lieggi, who arranged to have D.C.B. transported to court. D.C.B. was picked up at about 9:10 a.m. On the way to the courthouse, D.C.B was informed that the court had proceeded in her absence.
We are convinced that D.C.B. provided a reasonable explanation for her failure to appear at the April 23, 2010 and July 16, 2010 court proceedings. Indeed, the trial court apparently accepted D.C.B.'s explanation for her failure to appear, but nevertheless refused to vacate the default judgment against her, concluding that D.C.B. had not shown that she had a meritorious defense to the Division's guardianship complaint. We disagree with the court's determination.
Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child" and the petition may be granted if the following criteria are established by clear and convincing evidence:
(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).]
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
Here, D.C.B. argued that she had a meritorious defense to the Division's guardianship complaint because the Division failed to present clear and convincing evidence on the fourth prong of the test for termination of parental rights in N.J.S.A. 30:4C-15.1(a). D.C.B. maintained that the Division's proofs on that prong failed because it had not presented an expert evaluation of C.D.V.'s bonds with his mother. D.C.B. argued that, without such evidence, the court could not determine whether termination of her parental rights would do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4).
The court found that the evidence established that D.C.B.'s relationship with C.D.V. was so inimical to C.D.V.'s best interests that a bonding analysis was not required. We are convinced, however, that the court erred by finding that an expert bonding evaluation would not have any bearing upon whether termination of D.C.B.'s parental rights would do more harm than good to C.D.V.
The Supreme Court has observed that the fourth prong of the "best interests" test requires the court to weigh "'the potential harm that terminating [the child's] relationship with [his] mother against that which might come from removing [him] from [his] foster home . . . .'" K.H.O., supra, 161 N.J. at 355 (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992)). Resolving that issue "'necessarily requires expert inquiry specifically directed to the strength of each relationship.'" Ibid. (quoting J.C., supra, 129 N.J. at 25).
Here, the record shows that C.D.V. has had at least seven different placements in crisis centers, psychiatric facilities and treatment homes. There is no evidence that C.D.V. had formed a bond with any foster parent. At the time of the proof hearings, C.D.V. was residing in a psychiatric resident group home for children with emotional and behavioral problems. The record suggests that C.D.V. continues to have a strong bond with his mother and would suffer some harm if those bonds were severed.
The trial court nevertheless concluded that the evidence clearly and convincingly showed that termination of D.C.B.'s parental rights will not do more harm than good to C.D.V. The court reasoned that D.C.B.'s relationship with C.D.V. was so inimical to the child's best interests that termination of D.C.B.'s parental rights would not do more harm than good to the child. We are convinced that the court erred by resolving that issue without an expert assessment of C.D.V.'s bonds with his mother and the impact that termination of D.C.B.'s parental rights would have upon him.
The decision in N.J. Division of Youth and Family Services. v. E.P., 196 N.J. 88 (2008), supports our conclusion. In that case, the trial court terminated the defendant's parental rights to her daughter, based in large part upon the mother's drug addiction, psychological problems, and unstable lifestyle. Id. at 92. The child was "emotionally fragile and unstable[.]" Ibid. She had been "moved from one foster home to another, and suffered abuse on more than one occasion." Ibid.
The Court upheld that trial court's determination that the Division had presented sufficient proof to establish the first three prongs of the test for termination of parental rights in N.J.S.A. 30:4C-15.1(a). Id. at 102-05. The Court concluded, however, that the Division had not presented sufficient evidence to establish that termination of parental rights will not do more harm than good. Id. at 108-11.
The Court noted that the fourth prong of the test would be satisfied when "a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home[.]" Id. at 108. The Court noted, however, that termination of parental rights "without any compensating benefit, such as adoption, may do great harm to a child." Id. at 109 (citing A.W., supra, 103 N.J. at 610-11).
The Court said that the child might be "cycled through multiple foster homes after a parent's rights are severed." Ibid. (citing A.W., supra, 103 N.J. at 611). The resulting harm to the child from such placements might be greater because the child's bond with his parent had been severed with nothing to take its place. Ibid. (citing A.W., supra, 103 N.J. at 611).
The Court concluded that the record did not support the trial court's finding that termination of the defendant's parental rights would not do more harm than good. Id. at 110. The Court noted that there was no permanent placement in sight, and the possibility for adoption was "elusive." Id. at 109. The Court pointed out that the evidence indicated that the child's "only enduring emotional bond [was] with her mother." Ibid.
There was, moreover, no "real compensating benefit" to be derived from termination of the mother's parental rights. Ibid.
Here, the record before the trial court established that there was no permanent placement for C.D.V. in sight. Furthermore, there was no evidence that C.D.V. had formed a bond with a foster parent. Under these circumstances, expert evidence regarding C.D.V.'s bonds with his mother could have a significant bearing upon whether termination of D.C.B's parental rights will do more harm than good to C.D.V. We are therefore convinced that the trial court erred by deciding that such evidence could not establish a meritorious defense to the Division's guardianship complaint.
We note that, when she moved to set aside the default judgment, D.C.B. only focused upon the evidence presented on the fourth prong of the test in N.J.S.A. 30:4C-15.1(a). Because the Division must establish all four prongs of the test, the presentation of a meritorious defense as to one of the four prongs is sufficient to warrant vacation of the default judgment, thereby allowing D.C.B. to contest and present affirmative evidence on all four prongs, if she wishes to do so.
We emphasize that, while we believe that D.C.B. presented sufficient grounds to warrant vacation of the default judgment, we do not mean to suggest that D.C.B. should prevail in this case. Based on a full record, the court may ultimately conclude that the Division has presented clear and convincing evidence on all four of the prongs of best interests test under N.J.S.A. 30:4C-15.1(a), and D.C.B.'s parental rights to C.D.V. should be terminated.
Accordingly, we reverse the trial court's order of December 8, 2010, and the final judgment by default entered on July 16, 2010, terminating D.C.B.'s parental rights to C.D.V. We remand the matter to the trial court for further proceedings, which should be expedited and resolved as soon as practicable.
Reversed and remanded for further proceedings in conformance with this opinion. We do not retain jurisdiction.