On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-04-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2012
Before Judges Axelrad and Nugent.
V.N.S. ("Vera") appeals from a September 15, 2010 judgment of guardianship of the Family Part terminating her parental rights to her then four-year-old daughter Q.S. ("Queenie"), following the entry of default and a proof hearing, and a March 15, 2011 order of the Family Part that denied her motion to vacate the judgment pursuant to Rule 4:50-1.*fn1 She asserts due process violations and challenges all four statutory prongs. We note the Law Guardian supported the procedure and termination of Vera's parental rights in the trial court, and urges us to affirm.
Although we have some concern with the procedural posture of this case, we are satisfied Vera had sufficient opportunity to present a defense, and the evidence in favor of the guardianship petition overwhelmingly supported the termination of Vera's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we are convinced it would not serve any purpose and, in fact, would be contrary to the best interests of six-year-old Queenie, who has not been in Vera's custody since she was five months old, to be placed in limbo by a remand for further proceedings. See, e.g., In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.) (holding where the record clearly supports the conclusion that termination of parental rights would be in a child's best interests, and would free the child up for adoption, there is no reason to delay permanent resolution), certif. denied, 162 N.J. 127 (1999).
Vera is the mother of Queenie, born on September 14, 2006. Vera was fourteen years of age when her daughter was born. She had an extensive history with the Division of Child Protection and Permanency, formerly known as the Division of Youth and Family Services ("the Division"), as both the mother of Queenie, and as the child of parallel proceedings involving abuse and neglect by her mother, N.S. ("Nancy"). During the trial court proceedings involving Queenie, Vera became pregnant with a son who was born in November 2010, and is not part of this appeal.
Vera was involved with the Division as a young child due to issues of neglect and drug abuse by her mother. From June 1999 to December 2004, the Division received seven referrals alleging inadequate supervision, physical abuse, and neglect of Vera and her sister by Nancy. Throughout this proceeding, Vera has been placed in the custody of relatives, intermittently reunited with Nancy, placed in numerous shelters and foster homes, and remanded to various youth correctional facilities due to her extensive contacts with the juvenile court system for offenses including: carjacking, simple assault, terroristic threats, and violation of her court-ordered probation.
At a Family Team meeting held a week after Queenie's birth, Vera expressed a desire to parent her daughter.*fn2 She agreed to accept services from the Division. However, on November 18, 2006, the Division received a referral from the Lawrence Police Department stating that Vera had left Queenie in a stroller while she and her friend shoplifted from Old Navy. According to the police report, Vera's friend was observed placing clothing into the stroller and leaving the store. Upon exiting the store, Vera and her friend were approached by a store employee.
They ran into another store, leaving the stroller and merchandise behind. Upon checking the stroller, the employee found Queenie underneath the shoes and clothing. Vera and her friend were apprehended shortly afterwards when they returned for Queenie. As Vera was not observed removing any clothing from the store, only her friend was charged with shoplifting. Vera was released to an aunt who returned her to Vera's home address.
On January 7, 2007, the Division received a referral from the Trenton Police Department that Vera and her then-boyfriend D.L. had been involved in a domestic dispute. D.L. beat and choked her and threatened to throw Queenie out the car window or crash the car with Vera and Queenie inside.
Two weeks later, the Division filed a Title 9 complaint seeking custody, care and supervision of Queenie, as well as of Vera, who was then fourteen years old. The court awarded the Division the care and supervision of Queenie and Vera, and ordered Vera to comply with the services recommended by the agency. Vera, however, continuously failed to comply with services offered to her, including: in-home therapy, parenting classes, and a psychological evaluation. She also failed to attend school, violated her court-ordered probation, and failed to enroll Queenie in daycare as requested by the Division.
On February 19, 2007, the Division received another referral from the Trenton Police Department that Vera and Nancy had engaged in a physical altercation the previous night, and the police were concerned for Queenie's safety. The caller reported that the police had responded to Vera's home on seventy-four occasions since October 2005, due to fights between Vera and Nancy, forty-two of which occurred during the preceding two months. Accordingly, the Division promptly executed an emergency removal of Queenie and placed her in the care of her maternal great-aunt B.N. ("Barbara").
On March 14, 2007, Dr. Cherie L. Young performed a psychological evaluation of Vera and opined that she was not an appropriate caregiver for Queenie due to her "lack of responsibility and refusal to participate in services . . . and [failure to] meet the requirements necessary for the proper care of [Queenie]." Dr. Young recommended, in view of Vera's "ongoing conduct problems, defiance, verbal and physical aggression as well as [her] refusal to attend school," Vera be referred to a residential facility, required to complete counseling and parenting skills classes, and be permitted to have only supervised visitation with Queenie.
On March 22, 2007, Vera was arrested for carjacking and ordered to complete a residential treatment program. She entered a residential treatment center in Vineland in June 2007, and she completed fifteen months of residential treatment. There, Vera complied with services provided to her, including counseling and parenting classes. However, during that time, she also ran away from the group home on several occasions, assaulted two staff members, and threatened to "blow the place up" on one occasion.*fn3
Following her discharge from Vineland, Vera was ordered to attend a step-down program and continue residential treatment. On May 23, 2008, she was accepted into Project Youth Haven, a residential program located by the Division. However, she refused to enter the program or to accept residential treatment.
On May 26, 2009, Vera was arrested on an outstanding warrant,*fn4 and the court placed her in a Division-approved resource home. She refused to comply with services, including psychological assessments and counseling. She also ran away from the resource home, was picked up by probation and transferred to a shelter, ran away from the shelter, and returned to her mother's home. Vera eventually submitted to a psychological evaluation performed by Dr. Marla W. Deibler, who opined that Vera was not "a safe and appropriate caregiver for [Queenie] . . . due to her poor insight/judgment, . . . and overall instability." The psychologist recommended she attend a crisis center and receive inpatient treatment.
In August 2008, Barbara declined to provide further care for Queenie and the child was placed in the care of her paternal great-aunt K.N. ("Katie"). However, Queenie was removed from Katie's care in December 2009, and placed in a foster home after there were allegations of drug use and Katie allowed Vera to have unsupervised contact with Queenie in violation of the court order. In January 2010, Queenie was placed in the care of her paternal cousin N.W. ("Nora"), where she resided at the time default judgment was entered in September 2010.
On July 16, 2009, the Division filed a complaint for guardianship of Queenie. The next day Vera appeared in court and was served with a copy of the order to show cause and guardianship complaint. The order to show cause expressly required Vera to "show cause before . . . [the Family Part judge] . . . on October 16, 2009 at 1:30 p.m., why [the] Court should not enter an Order terminating [her] parental rights . . . and committing the child, [Queenie], to the guardianship and control of the [Division]" with authority to "place [the] child for adoption." The case management order provided to Vera on the same date advised that a case management review would occur on October l6, 2009 at 1:30 p.m. The order contained the following language:
THE FAILURE OF THE DEFENDANTS TO COMPLY WITH ANY PROVISION OF THIS ORDER OR THEIR CONTINUING FAILURE TO APPEAR MAY RESULT IN A DEFAULT ENTERED BY THE COURT AND TERMINATION OF PARENTAL RIGHTS.
The order also required Vera to attend psychological and bonding evaluations with Dr. Amy Becker-Mattes on November 16 and November 30, 2009, respectively. Litigation under the Title 9 docket (FN-11-152-07) was terminated pursuant to another order of the same date.
On August 21, 2009, the Division caseworker met with Vera at her foster parent's home, her third residential placement within the past four months. At that time, Vera was violating curfew by staying out overnight without notifying her caregiver of her whereabouts and was not complying with the services at PEI Kids, Mercer Street Friends, or LifeTies. Vera had also been partially noncompliant with an updated psychological evaluation with Dr. Deibler that could not be performed on August l9, 2009, due to Vera's fatigue from staying up watching television until 4 a.m. the prior night. She also did not comply with probation requirements, did not attend school, did not visit Queenie for three weeks at a time, and, during the visits she attended, Vera was not attentive to her daughter and was verbally abusive to her caseworker when attempts were made to address these issues.
Vera did not attend the October 16 hearing, but her attorney appeared and represented that she had been unable to contact Vera in the three months that had elapsed since the July hearing as all letters had been returned and all phone numbers had been disconnected. The Division caseworker reported that Vera was still residing in the same foster home in Trenton where she had resided since the July 17 hearing, based on her conversation with the foster mother in September and another caseworker during the preceding two days. Defense counsel represented that she was unaware of that address as Vera had given her a different address in July.
The judge acknowledged he was unaware of Vera's situation and whether there was a transportation issue because she was in a foster home. Nevertheless, he entered default against Vera based on her failure to appear. He also directed the previously scheduled evaluations by the Division were to take place within thirty days, and stated that if Vera failed to attend them, the default would be amended to include non-appearance at the evaluations. Defense counsel stated she was not planning to have any evaluations performed unless Vera indicated in the future that she would cooperate with one, as she did not want to waste an expert's time with a client she could not find and who would not cooperate. Defense counsel represented that, if Vera told her she would cooperate with the evaluation and keep her advised of her address, she would retain Dr. Legacky and have him evaluate Vera.
A Case Management Order issued on that date memorialized the default and required any motion to vacate the default to be filed within thirty days. The order contained the same block language as the July 7 order respecting failure to comply with the order or continuing failure to appear. Defense counsel did not move to vacate the default within this time period.
When the Division arrived at Vera's foster home with Queenie to transport them both to the bonding evaluation on November 30, 2009, the caseworker was advised by Vera's caregiver that she had not come home the prior night, despite knowing about the evaluation, and Vera had not been in contact with her.
On November 5, 2009, Vera was expelled from the Daylight/Twilight school program. On December 31, 2009, she was terminated from Mercer Street Friends due to her noncompliance with their program. On January 5, 2010, Vera did not attend a scheduled visit with Queenie at Angel Wings despite written notice of the visit and transportation being provided to her. On January 6, 2010, Vera left her foster home after an altercation with another child in that home, and went to live with a family friend. She refused to provide the Division with the address. Several case management conferences were conducted by a different judge. Vera appeared at a case management conference on March 19, 2010. The order required all discovery and witness lists to be exchanged by August l3 and scheduled a trial before a third judge on September 13 and September 15, 2010.
On September 13, 2010, the judge conducted a plenary hearing to "get some facts or evidence on the record about . . . services that have or have not been completed and any progress that [Vera] has made" and to "figure out what should happen from here." He noted that "all options are on the table from proceeding to trial, to sending the matters to mediation."
Caseworker Nanette Lieggi testified for the Division. At the outset of her testimony, Lieggi advised that the Division had current psychological evaluations performed on Vera -- one from Dr. Becker-Mattes performed in February 2010, and one from Dr. Gambone performed in August 2010. Defense counsel objected, particularly since she had not received the reports until a few days before the hearing, noting the proceeding was supposed to be limited to the services Vera engaged in, not a summary of expert reports. The judge overruled the objection, stating, if it was trial . . . I think I might be more inclined to agree with you. But I've asked the Division to give me a status of this and I believe that the rules as to this are clear, in that, it's material and that relevant information is available. The decision that I'm going to be making after this is what procedure to take . . .
Lieggi then testified at length about the services the psychologists had recommended since Vera's first evaluation in March 2007 -- individual counseling, parenting skills classes, family therapy, domestic violence counseling, residential programs, a psychiatric evaluation for mood-stabilizing medication, birth control counseling, and mentor services. She explained that as of the date of the hearing, Vera had failed to complete a single service. She also detailed Vera's criminal history.
Lieggi related that the only time Vera cooperated with services was during her court-ordered placement at Vineland in 2008, during which she received counseling and attended supervised visits with Queenie. After her discharge, however, Vera refused to attend a court-ordered step-down program at Project Youth Haven and continued to "be non-compliant and . . . unstable emotionally and behaviorally." Instead, Vera ran away with her sister, violated her parole and was arrested, and refused further treatment. Lieggi further testified that, since Queenie's birth, Vera had been "transient," living with various family members and friends, becoming involved in altercations with her mother, and staying in foster placements where "she would leave . . . overnight, [and] break all [of] the rules."
Lieggi discussed Vera's and Queenie's current living arrangements. She testified that, since January, Vera had been living with her aunt, who had a history with the Division, and her mother, who had been substantiated for neglect towards her based on violence and drug use. Queenie had not been in Vera's care since the child was five months old. Queenie was currently residing with a relative, Nora, who indicated a preference for adoption rather than kinship legal guardianship (KLG). According to Lieggi, from January 2010 to August 31, 2010, Vera only visited Queenie on five occasions and missed eleven visits.
Lieggi concluded that, having supervised Vera and "being an adoption supervisor," she did not believe the case should continue as an FN matter and give Vera more time to complete the recommended and court-ordered services, stating:
This child has been in care since 2007. It'll be almost, it's well over three years, three and a half years. She deserves to have some permanency. She's bounced around from caregiver to caregiver. I believe that [Vera] would benefit from any services that she would attend and consistently attend and buy into the fact that she needed these services and to this point she has not done that. So, I can only view the record as what has happened in the past is what may be in the future. So, that I would have to say no at this time.
The Law Guardian and defense counsel cross-examined Lieggi extensively about Vera's history, living arrangements, and noncompliance with services, and ...