October 24, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
V.N.S., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF Q.P.S., A MINOR.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 there was re-direct and re-cross testimony.
Despite the default, Vera was permitted to testify and to introduce evidence on her behalf.*fn5 She testified she had recently begun parenting skills classes at Project Teach and she planned to begin independent living skills classes at Children's Futures the next day. Defense counsel introduced a schedule from Project Teach, where Vera had attended two parenting skills classes the prior week, and a report from Children's Futures, where Vera planned to begin independent living skills classes.
Vera corroborated that she was currently living with her mother. Vera said her immediate plan was for Queenie to reside with them in an apartment. She denied her mother used to beat her with a "broom" or "belt," claiming she "lied" about that to the Division when she "was mad at her." She testified her mother "doesn't hit on" her currently. In response to the question of whether her mother was still using drugs, Verna stated, "I don't know. Ask her."
Vera acknowledged her new baby was due on December l. According to Vera, when she turned eighteen in November, she planned to put her name on a list with welfare for an apartment, which would take about six months, and in the interim, she and her children would go into a shelter. Vera also said she would try to get employment. She acknowledged she had been suspended from the Daylight/Twilight program in October 2009 because of an altercation with the vice-principal, and neither attended school nor worked from October 2009 through September 2010. She only began attending Project Teach a week before the hearing.
Vera further testified she was unaware of what grade Queenie was in, and had never asked about that, and in the past three-plus years that Queenie was out of her care, she had never asked to attend a medical appointment with her. Vera acknowledged she had only visited with Queenie about six times since January.
Upon the completion of testimony, the court heard summations from all counsel. The court referenced the services and programs recommended in Dr. Seidman's and Dr. Gambone's reports; Lieggi's testimony, which he credited and found to be "a font of information"; and the Division's contact sheets regarding the programs offered by the agency and Vera's visits with Queenie. He described in detail Vera's testimony. He acknowledged Vera "had some things that she's done," including the evaluations with Dr. Gambone and Dr. Seidman, but found, overall, she was not a credible witness. The judge explained:
[I]t seems like wherever the Court's wiling to order that [Vera] go she's going to leave, whether it's a residential home, she runs away, at foster homes that she left for days on end. . . .
Overall, and for all those particulars, I didn't find [Vera] to be a credible witness. And in terms of what her plan was, . . . when it was really examined on cross examination, it didn't old up. It didn't have the details. It didn't consider the things that should've been considered. And I don't have a problem if someone's going to go to  their mother for some money, that if they're going to go to Welfare to get benefits that people are entitled to.
People have to use what resources they have available to them and that's -- in the one hand that is what [Vera] is attempting to do. But, when you really look at it she didn't really look into this for [Queenie]. She didn't really know how much money her mother was going to have. She doesn't know when it's going to run out. She doesn't know when she's going to get a job. She's testified about getting a job or trying to find one, but then one never really comes up.
She admitted that she lied about allegations about her mother. . . . I didn't find her credible. I didn't find her demeanor credible. I didn't find the way she answered the questions credible. On the witness stand she had an affect that was more childlike, and she's 17 years old.
There's just been too many fits and starts and stopping and going, coming and going and I think  at this point if past is prologue [Vera] is only going to be there until someone tells her that she has to do something that she doesn't want to do and then she's going to tell them she doesn't want to do it and leave because that's what she's done before.
I don't think that the case is really ripe for mediation. I don't think [Vera] has any intention of trying to work out any issues or being reasonable. . . .
If there was any chance I thought that having the parties sit down, maybe [Nora] could satisfy a particular concern for [Vera], or even that [Nora] might change [her] mind to a KLG if [Vera] is even interested in it . . . but I think that the only reason that [Vera] is interested in mediation is so that she can use it to cause more turmoil . . . because that's what this family has done in the past several years where they go from one direction to another. . . . So, I'm not going to order mediation.
He noted the defense had not filed a motion to vacate the default, but even so, "she has actually proposed no plan, at all, just promises of doing things that I don't believe . . . ." The judge thus found Vera had no defense, the default would remain, and the matter would proceed to a default proof hearing. He noted the matter would have to proceed quickly because of concerns that a delay "will only give [Vera and her family] the opportunity to make unnecessary referrals to the Division to get in touch with [Nora] to bring pressure on them and to cause problems." Moreover, Queenie needed permanency. Vera offered no explanation for her failure to appear at the October 15, 2009 case management review, and the judge made no findings on that issue.
After a short recess, defense counsel represented Vera's intent to execute an identified surrender of her parental rights to Nora. However, Nora began to cry during her testimony and could not complete the surrender. The judge advised the clerk that the order should reflect he "converted the case from a trial to a proof hearing [after] we had a pretrial hearing" during which Lieggi and Vera testified.
Lieggi then testified about service of the complaint and notices on Vera and D.F. and his default. Pursuant to the judge's instruction that he would incorporate the testimony of Lieggi and Vera presented earlier that day, Lieggi summarized the various referrals regarding Vera's relationship with Nancy and with Queenie, and Vera's criminal and truancy history. Representing that the Division had engaged in psychological testing and yearly evaluations of Vera to determine what services she would need, Lieggi enumerated the myriad of services and programs unsuccessfully offered by the Division to Vera. Lieggi also explained the numerous family placements the Division had explored before Queenie's placement with Nora in January 2010, and the reasons for their rule-out, and represented that Nora had expressed an intention to adopt Queenie, who was thriving in her home. She opined that a plan of termination of parental rights followed by Nora's adoption of Queenie was in the child's best interests. Defense counsel chose not to cross-examine Lieggi.
The matter continued on September 15, 2010. Defense counsel advised that Vera elected not to proceed with the voluntary surrender. The Division's counsel moved to admit the agency's full case record, which Lieggi had reviewed and testified about at the prior hearing. Defense counsel objected, as she had received many of the documents a few days before and had insufficient time to review them or prepare for trial. She also objected to the absence of a bonding evaluation between Queenie and Nora. She objected "most fundamentally" to the "matter proceeding in this fashion, given that the entry of default in this matter wasn't . . . proper" and Vera's "failure to appear didn't inhibit a function or proceedings of this court," citing New Jersey Division of Youth and Family Services v. P.W.R., 410 N.J. Super. 501 (App. Div. 2009), rev'd on other grounds, 205 N.J. 17 (2011). She also requested an adjournment as she was awaiting receipt of an evaluation report, which she conceded was a psychological evaluation and not a bonding report. She also requested the opportunity to schedule a bonding evaluation.
The Division's counsel had no objection to the court setting additional dates to have the matter proceed as a trial, to let the defense's expert report come in, and to allow Vera to cross-examine her bonding expert, Dr. Becker-Mattes.
The Law Guardian, however, urged that the case proceed without bonding evaluations, arguing that Dr. Becker-Mattes had observed Vera with Queenie, and this was an "unfitness case, . . . [and] not a bonding case," because of Vera's "failures to remedy any harms." She further contended the Division was not presenting "evidence that removal [of Queenie] from her foster parents would be severe and enduring harm." She opined there was ample evidence under the four-prong test for termination to justify proceeding with the case at that time, without additional evaluations and reports, which would unnecessarily delay the matter, particularly in view of the lack of information provided in the prior hearing about a defense to the guardianship action.
The judge found there was no surprise of new facts being contained in the recently-delivered discovery, which defense counsel had an opportunity to read "cover to cover." He reasoned that the late discovery was balanced by Vera's ability to present a defense without any formal motion to vacate default. He also noted that despite trial having been scheduled for six months, Vera had not completed her evaluations or participated in a bonding evaluation on her own behalf. The judge concluded that bonding evaluations were unnecessary, stating:
[W]ith five or six visits in the last nine months by [Vera] with [Queenie] and the evidence that I've seen so far . . . that shows that they are really just playing together, there's nothing parent/child about it, the fact that there aren't bonding evaluations is overruled.
The issue here, I agree . . . is [Vera's]'s fitness, which really goes to the default. Default may have been issued initially because of a failure to appear but the record I have here is a failure to comply with one order after another. Failure to comply with one service after another. Just as soon as something gets difficult for [Vera], she just up and leaves. If she doesn't hear what she likes, she leaves.
[F]rom what I have in front of me so far, there is no foreseeable time in the future that she will become fit to become a parent. If there was something that could be worked on, some more effort that looks like it could be made, then tickling a case along to have a child go back to the biological parent has such value that it would be worth engaging, but [Vera's] default is so pervasive on so many levels that the matter is going to continue today as a proof hearing. . . . [E]ven if there was no bond with the current family placement [Nora], the list of family placements that's available has been exhausted, this is the last one that I know of. If we lose this family placement and this child cannot go back with the mother, then she'll wind up going into . . . a foster care with a non-family placement. The value of a family placement is worth quite a bit.
To give an opportunity for the turmoil in this family to hurt the possibility . . . that this child could wind up with a family member would not be in the child's best interests. The hearing needs to proceed forward.
The Law Guardian and the defense presented no testimony or evidence. Counsel offered closing arguments. Defense counsel urged that without a comparative bonding evaluation, the State failed to meet the fourth prong of the termination test.
The court rendered an oral decision, finding the Division had established by clear and convincing evidence each of the four prongs of the best interests test for the termination of parental rights, N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (l986), as codified in N.J.S.A. 30:4C-15.1(a). Accordingly, he entered a "judgment of guardianship after default and proof hearing" terminating Vera's parental rights to Queenie. He extensively highlighted the psychologist's recommendations for services and programs, Vera's continuing lack of interest and noncompliancy, and the Division's progress reports. Noting Dr. Becker-Mattes' bonding evaluation report, the judge found it "heartbreaking to read through it, to see [Queenie] really giving no attention and no mind to [Vera] as a mother. Not listening to her, saying she didn't like her[,]
[n]ot really recognizing instantly [Vera] as a mother and authority figure[,] [and Vera] threatening [Queenie and] trying to bribe [her]." He also referenced Dr. Becker-Matttes' conclusion, which echoed and bolstered his findings at the prior hearing that based on [Vera's] behavioral history, combined with her psychological functioning and the quality of her interaction with her child, that [Vera] should not be considered as an appropriate caretaker of her child.
She cannot offer [Queenie] the sense of stability, safety and security that this child so desperately needs.
Because [Vera] has been unable to care for herself adequately, it is very difficult to imagine that she would be able to provide consistently and appropriately for a child.
As to the first two prongs, the judge found Queenie's safety, health, and development had been and would continue to be endangered by continuing the parental relationship because Vera was "unwilling or unable to eliminate the harm" facing Queenie or to provide her with a "safe and stable home." He pointed to Vera's past history, continued disinterest in availing herself of services even after Queenie was removed from her custody, and lack of a reasoned plan for providing for Queenie's needs upon reunification. He found the third prong was clearly met by the myriad of appropriate services and programs offered by the Division to no avail and the lack of alternatives to termination based on Vera's and other family members' harassment of Queenie's caregiver. He also concluded the fourth prong of termination of not doing more harm than good was met, noting Vera's lack of a proposal of a defense to the guardianship complaint. He was not surprised that the defense had not obtained a bonding evaluation to oppose the findings by Dr. Becker-Mattes, particularly considering the number of Vera's missed visits. The judge also found that for Queenie to return to Vera's home without Vera demonstrating progress and completing some of the programs would subject the child to being "left, abandoned, beaten, sent to other family members, if the kinds of things happen to [Queenie] that have happened in this family in the past," which would certainly cause significant harm to the child.
With respect to Queenie's placement, the judge stated:
It's certainly going to do [Queenie] a lot more good than harm to be able to get into a family placement, if she can, and even if she can't to just get to some place stable that she gets set down, hopefully it's [Nora's]. But even if it's not, this is a general plenary termination of parental rights requested by the . . . Division. If that doesn't happen with [Nora], it'll be very disappointing, but at least [Queenie] could get somewhere where she can finally set down and have the routines and make the progress that was demonstrated when she had a stable home with [Barbara], until that became a problem. It'd certainly do her a lot more good than harm.
On or about February 9, 2011, Vera filed a Rule 4:50-1 motion to vacate the default judgment. She relied on our decision in P.W.R., and renewed her argument that default had been entered improperly as her attorney appeared at the October 16, 2009 hearing in her absence. Vera certified that her son, who was born on November 13, 2010, resided with her in a teaching home sponsored by Children's Home Society, where she was learning to parent him and had attended to all his immunizations and medical appointments. She was participating in weekly counseling sessions and attended GED classes three times a week. She also advised that about two weeks after the termination order was entered, Queenie had been removed from her placement with Nora and placed with a non-family member. The Law Guardian joined with the Division in opposing the motion.
Following oral argument, the judge issued an order and written statement of reasons denying the motion on March 15, 2011. He explained that Vera "failed to comply with court ordered services for the lengthy duration of the case [and it] was not until she failed to appear at the October 16, 2009 court hearing that default was actually entered, and was subsequently upheld as [Vera] failed to complete her psychological exam." He noted that P.W.R. was decided after another judge had entered the default; nevertheless, he found the initial default was "proper." He found P.W.R. distinguishable as that defendant had attended every other court hearing and complied with all court-ordered services, so "the entry of default for a single missed hearing was improper where [the] defendant's attorney was present." Supra, 410 N.J. Super. at 503-04. Here, Vera failed to complete any of the court-ordered services and failed to appear at the hearing. Additionally, in the final nine months of the guardianship case, Vera only saw her daughter six times.
The judge also noted that defense counsel failed to timely file a formal motion to vacate default as required in the court order following the October l5, 2009 hearing. Nonetheless, he permitted Vera to testify at the September 13, 2010 hearing. Although defense counsel made an "oral request to vacate the default and hold a full trial" at the September 13, 2010 hearing, Vera presented no explanation for her prior nonappearance and continuing noncompliance with services, so she clearly did not establish "excusable neglect" to vacate the default. He further noted Vera's recent certification presented no explanation for her noncompliance, and her explanation for her nonappearance at the October 2009 hearing,
i.e., that she was pregnant, which made her emotional and confused, was not true because her son was born in November 2010. The judge also found Vera failed to demonstrate a meritorious defense, as she was noncompliant with services from the initial removal through the guardianship hearing. The judge made the following comments respecting Vera's current noncompliance:
Even now as [Vera] proceeds through an abuse and neglect case as to her baby son, her efforts are not as promising as she indicated in her testimony at the plenary hearing. [Vera] and her baby were placed in a residential program, and in January [Vera] stayed out past her curfew. Her foster mother called the police, who discovered two outstanding warrants. [Vera] was given ten days notice to be discharged as they did not feel she was appropriate for their program. Although [Vera] was admitted back into the program and promised to comply with the rules going forward, it is further evidence of her inconsistencies and immaturity with regard to her sense of responsibility.
The judge concluded that four and one-half year old Queenie, who had been out of her mother's placement since she was five months old, needed permanency.
This appeal ensued. We denied defense counsel's motion filed on August 8, 2011, for temporary remand for further proceedings. On appeal, Vera contends the trial court erred in entering a default against her, thus depriving her of due process, and in declining to vacate the default and default judgment against her. She also challenges the court's finding as to all four prongs, arguing the decision to terminate her parental rights was not supported by clear and convincing evidence.*fn6
A. Entry of Default
Vera first challenges the initial judge's entry of default against her for nonappearance at the October 16, 2009 proceeding. She argues her attorney was present and able to defend on the return date of the order to show cause, and thus she had appropriately defended the matter in accordance with the Court Rule and case law. See R. 4:43-1 (setting forth the grounds upon which default may be entered and, in pertinent part, providing that default may be entered "[i]f a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order . . ."); P.W.R., supra, 410 N.J. Super. at 506 ("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 [namely, the factfinding hearing in a Title 9 case] absent evidence that the party has not otherwise defended as required by rule or court order.").
Relying on P.W.R., she further contends the potential for default was not adequately noticed as the order to show cause and the case management order conflicted with one another, the latter order only informing her that her "continuing failure to appear may result in a default entered by the court and termination of parental right" (emphasis added). See id. at 507 (holding that a "default based upon the failure to comply with an order requires as a predicate that the defendant receives adequate notice that default may follow a failure to comply")
(citing N.J. Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 433 (App. Div. 2001))).
Vera additionally contends the return on the order to show cause exclusively involved matters best managed by the attorneys, such as scheduling evaluations and a subsequent case management conference. She thus urges it was "fundamentally unfair" for the judge to enter a default because her absence did not impede the hearing from proceeding or the goal of the hearing being accomplished, and the default did nothing to advance any interest of the Division, Queenie, or the trial court. See P.W.R., supra, 410 N.J. Super. at 508-09 (directing a trial judge to "examine the reasons for the defendant's failure to appear when ordered to do so and consider whether the defendant's presence is of sufficient importance on that occasion as to warrant the drastic step of entering default," noting, for example, "there may be conferences or pretrial hearings that do not necessarily require a defendant's input and involvement, but mainly or even exclusively require the involvement of counsel" and "portions of a factfinding hearing that also do not require a defendant's presence") (citing T.J.B., supra, 338 N.J. Super. at 433). Vera emphasizes that neither the Division nor the Law Guardian requested default be entered; that was a sua sponte decision of the trial judge.
Vera similarly argues the other judge erred in declining to vacate the default on September l3, 2010, in response to her oral request, and requiring her to present a defense as to the merits of the case. Alternatively, she argues that if she were obliged to present a defense in connection with the oral Rule 4:43-3 motion, the judge deprived her of her ability to do so by declining defense counsel's requests, which had the support of the Division counsel, for time to review the last-minute discovery, obtain the psychological evaluation report, and schedule a bonding evaluation.
We are in accord that the initial judge erred in entering default against Vera for failing to appear at the proceeding on the return date of the order to show cause. We reject Vera's argument that she was not properly advised of her obligation to appear, as she was served with the order expressly designating the return date of October 16, 2009, at 1:30 p.m. for her to show cause why an order terminating her parental rights should not be entered. The July 17, 2009 case management order also advised her of the "case management review" hearing and of potential consequences, though not in as clear terms.
Moreover, in contrast with P.W.R., Vera had a history of nonappearance during the Title 9 proceedings, failing to appear on June 12, 2008, September 9, 2008, and December 2, 2008.
Furthermore, she never provided any explanation for her failure to appear on October l6, 2009. Nevertheless, we are not convinced Vera's failure to appear at the October l6 hearing, the first scheduled proceeding of the guardianship case, constituted such a clear-cut violation of the case management order justifying the entry of default against her. Perhaps if the judge had the benefit of our decision in P.W.R. at the time of the default, he would have "consider[ed] whether [Vera's] presence [was] of sufficient importance on that occasion as to warrant the drastic step of entering default." See supra, 410 N.J. Super. at 509.
B. Denial of Vacation of Default
Defense counsel did not file a motion to vacate the default and, in fact, did not even make an oral request until almost a year later at the September 13, 2010 trial, despite having appeared with Vera at several case management conferences in the interim. By that time, however, Vera had shown a pattern of noncompliance with court-ordered services, failed to appear at the court-ordered bonding evaluation with Dr. Becker-Mattes on November 30, 2009,*fn7 and had only visited Queenie six times since January 2010. We recently held that a parent's failure to comply with court orders requiring him to submit to psychological evaluations and obtain related services did not constitute a failure to defend that would justify the trial court's entry of default against him in a termination of parental rights action. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 170 (App. Div. 2012). We reasoned that those conditions were not "imposed by a court order in discovery or in preparation for trial," R. 4:43-l, but, rather, "were conditions imposed for the purpose of providing services in the best interests" of his daughter. Ibid. We note, however, in contrast with M.G.'s "sporadic failures" to comply with these orders, id. at 158, Vera violated nearly every court order during the Title 9 and Title 30 proceedings, which required her to attend evaluations and complete services, including: counseling; parenting skills classes; anger management classes; domestic violence counseling; residential treatment programs; and mentoring services.
We also note, as we held in M.G., supra, 427 N.J. Super. at 171-72, that in declining to vacate the default, the second judge may have incorrectly applied the standard applicable to a motion to set aside a default judgment, i.e., an excusable failure to appear or defend and a meritorious defense, see R. 4:50-l; Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964), rather than the standard applicable to a motion to vacate default, i.e., a "mere showing of good cause." N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J. Super. 354, 360 (App. Div.), certif. denied, 199 N.J. 543 (2009); see also R. 4:43-3. It would have been preferable for the judge to have conducted a full-blown trial at that juncture, which would have removed any potential due process claims. However, even utilizing the less stringent standard, see Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:43-3 (2013), as Vera provided no explanation for her failure to maintain contact with her attorney, her prior nonappearance, or her flagrant disregard of court orders, we are not convinced the judge's ruling resulted in a fundamentally unfair procedure under the circumstances of this case.
Ordinarily, a defaulting party is not entitled to present affirmative proofs following default, and the trial court has discretion to permit the defaulting party to challenge the proofs presented, or cross-examine the witnesses. N.J. Div. of Youth & Family Servs. v. L.H., 340 N.J. Super. 617, 619 (App. Div. 2001). However, "[t]he opportunity for such involvement is . . . critical where the interests at issue are fundamental, as with parental rights." Ibid. Moreover, "a parental termination case [that] proceeds on the basis of default must be concluded by a plenary proof hearing and not merely via a certification in lieu of proofs." Id. at 620. "[A]ll parties in interest must be afforded suitable opportunities to participate." Ibid.
In P.W.R., we concluded that default was improper where it was based solely upon the defendant's isolated failure to appear on the first day of a Title 9 fact-finding hearing where defense counsel represented the defendant's interests, and the defendant had appeared at all prior hearings and complied with the provisions of all orders. Supra, 410 N.J. Super. at 503-05, 507. Nonetheless, we ultimately determined the default had "no meaningful impact," and affirmed the judgment that abuse and neglect had occurred. Id. at 503-04, 510. We noted the defendant's attorney was permitted to cross-examine the witnesses who were called, namely the Division's caseworker and the child's grandfather, and to give a closing statement. Id. at 510. Moreover, the record did "not reveal that defense counsel had any witnesses to call or other evidence to offer." Ibid.
Here, like the defendant in P.W.R., even though a default had been entered, defense counsel was permitted extensive cross-examination of the Division caseworker. She also had the opportunity to make a closing statement. Indeed, Vera was afforded even more protections than the defendant in P.W.R., as she testified on her own behalf, and was permitted to submit affirmative proofs, including a schedule from Project Teach and reports from Children's Futures, where she planned to commence independent living skills classes.
Vera did not seek to offer any witness testimony at that juncture. Although the Title 9 proceeding had been instituted in January 2007, and the guardianship proceeding had been pending for fourteen months, Vera apparently only recently had attended a psychological evaluation scheduled by the defense. Furthermore, she had not participated in her own bonding evaluation with Queenie. Although defense counsel requested an adjournment pending the anticipated receipt of the psychological report, based on the record of Vera's longstanding behavior, it is unlikely such report would have been favorable to her. Moreover, in rejecting defense counsel's request for the opportunity to schedule a bonding evaluation, there was ample basis for the judge's conclusion that it likely would be futile and not contradict Dr. Becker-Mattes' assessment, considering Vera's sporadic visitation with Queenie (six visits in the prior nine months), who had not been in her custody for over three and one-half years. But cf. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009) ("[W]e can envision very few scenarios in which comparative [bonding] evaluations would not be required.").
We are satisfied Vera had ample opportunity to present a defense to the guardianship complaint. Even if we disregard the court's reference to the psychological and bonding evaluations of the experts who were not produced as witnesses by the Division, see M.G., supra, 427 N.J. Super. at 174-75, Vera's testimony was woefully insufficient to rebut the testimony of the Division caseworker. Lieggi provided ample factual information respecting Vera's noncompliance with all court-ordered services, her transient lifestyle, and her emotional and behavioral immaturity and instability as demonstrated by her assaultive behavior, running away from placements, criminal behavior, and erratic visitation of Queenie. In fact, Vera's own testimony that she was living with her mother, who was a substantiated drug user with whom she had an extensive history of domestic violence, and planned to bring her young daughter there if reunited, demonstrated her poor judgment and solidified that she was unfit to parent the child. The expert reports, in essence, were merely the icing on the cake.
In analyzing this proceeding, it is also of significant importance that the Law Guardian strongly urged the court to proceed with the default proof hearing. She emphasized Vera's refusal to modify her behavior, consistent noncompliance with services, and complete disinterest in parenting her daughter during the entire litigation. The Law Guardian also emphatically supported the termination of Vera's parental rights, as she does on appeal, as clearly within Queenie's best interests.
C. Judgment of Guardianship
We turn now to Vera's challenge to the court's findings respecting termination. Based on our review of the record, we are satisfied the default played no role in the court's decision. There is overwhelming basis in the testimony adduced at the September 2010 hearings to support the court's conclusion that the Division established by clear and convincing evidence the statutory four-prong test of termination of parental rights.
"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(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).]
These criteria are neither separate nor discrete. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (l993)).
The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because of the Family Courts' special jurisdiction and expertise in family matters, we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing D.M.H., supra, 161 N.J. at 382).
When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupportable by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citation omitted). Applying this standard, we discern ample evidence in the record to support the judge's conclusions that Queenie's best interests required termination of Vera's parental rights.
The first statutory prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. Here, shortly after her birth, Vera exposed Queenie to domestic violence by becoming involved in physical altercations with her mother and her then-boyfriend D.L. Vera allowed her friend to throw stolen clothing over her infant daughter in a stroller, which they left unattended when they fled from police after being involved in a shoplifting incident at Old Navy. Thereafter, Vera failed to provide a safe and stable home for Queenie, as she became "transient," staying in various homes with friends and family, intermittently attending a residential program at Vineland, and subsequently refusing to comply with her court-ordered treatment.
Related to prong one, the second statutory prong considers a parent's failure to provide even minimal parenting to his or her children. D.M.H., supra, 161 N.J. at 379. "This inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child" or, alternatively, "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. The withdrawal of nurture and care for an extended period of time is itself a harm that endangers the health and development of the child. D.M.H., supra, 161 N.J. at 379.
The trial judge also found the Division had clearly met this prong. Queenie was removed from Vera's custody when she was five months old. Over the intervening three and one-half years, Vera made no effort whatsoever to change her transient lifestyle, refrain from criminal action, learn parenting skills, maintain gainful employment so as to be able to support Queenie, obtain stable housing, visit Queenie regularly, or work towards a viable plan upon Queenie's return. To the contrary, Vera refused to cooperate with the Division or with her attorney, and displayed no interest in reunification with her daughter other than occasional lip service. The future plan Vera expressed at the September 13, 2010 hearing was for Queenie to reside with her and Nancy, a drug user with whom she had a longstanding and extensive history of domestic violence, and from whose custody she and her sister had been removed by the Division at a young age.
The third prong of the statutory test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. As testified to at length by the Division caseworker and extensively detailed by the trial judge, the Division provided every evaluation and service imaginable to help Vera correct the circumstances that led to Queenie's placement outside of the home, reinforced by court order, to no avail. These services included: individual and group counseling, parenting skills classes, anger management classes, domestic violence counseling, residential treatment programs, transportation, supervised visits with Queenie, psychological evaluations with three doctors, a psychiatric evaluation for mood-stabilizing medication, and a bonding evaluation performed by Dr. Becker-Mattes. As the judge stated:
The Division has offered one service after another, tried to get [Vera] to go to one program after another. There were caseworkers that would show up at [Vera's] home and sit there in the car waiting for her to come out and [Vera] wasn't even there [because she had] left.
Short of physically making her go, . . . there isn't anything . . . more the Division could do.
The Division also explored every possible alternative to termination of V.S.'s parental rights and every potential relative placement. Since she was removed from V.S.'s care, Queenie has had numerous relative and non-relative caregivers including: her maternal great aunt Barbara, her paternal great aunt Katie, and her paternal cousin Nora. Queenie has also resided at Angel's Wings foster home, and she was ultimately placed in a non-relative foster home after the final judgment was entered. Each relative was ultimately ruled out as a placement for Queenie due to their own involvement with criminal activity, substantiations of abuse and neglect with the Division, and refusal to provide care for the child.
Although these relocations are unfortunate, particularly the post-judgment one, they do not vitiate the third or fourth statutory prongs. The fervent hope at the September 2010 hearing was that Queenie would remain in her last relative placement and be adopted by Nora, which was part of the reason for the way the proceedings were conducted. The judgment terminating Vera's parental rights, however, was based on her parental "unfitness," not because Queenie had developed a stronger bond with a foster parent. In his findings, the judge anticipated a potential relocation. He explained that even if Queenie did not remain with Nora, termination of Vera's parental rights was warranted, as any placement was safer, more stable, and potentially more permanent than living with her mother. Ideally, termination of Vera's parental rights would free Queenie up for potential adoption.
Lastly, "[t]he fourth prong of the best interests of the child standard requires a determination that termination of parental rights will not do more harm than good to the child." K.H.O., supra, 161 N.J. at 354-55. While a child will undoubtedly suffer from some degree of loss from the termination of their parent's parental rights, the child cannot and should not be expected to wait for her mother to "get herself together." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 114 (App. Div.), certif. denied, 180 N.J. 456 (2004). There comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with his or her child. K.H.O., supra, 161 N.J. at 355.
This is clearly such a case. Queenie has been deprived of the sense of permanency to which she is entitled, while Vera has made virtually no effort to "get herself together." As Lieggi testified, Queenie has been "bounced around from caregiver to caregiver," and "[s]he deserves to have some permanency." We agree. We are convinced the record overwhelmingly supports the judge's finding that Vera is unable or unwilling to provide the safe, stable, and permanent home her young daughter so desperately needs at this point in her life, and that termination of Vera's parental rights at this juncture will be in Queenie's best interests and not do more harm than good.
D. Motion to Vacate Default Judgment
We discern no basis to second-guess the trial court's denial of her motion to vacate the default judgment terminating her parental rights, filed six months after the guardianship judgment. It is well settled that a motion to vacate default is within the "sound discretion" of the trial court, and the trial judge's decision shall not be disturbed "unless it represents a clear abuse of discretion." J.N.H., supra, 172 N.J. at 473 (internal quotation marks and citation omitted).
While a Rule 4:50-1 motion to vacate default judgment is generally viewed with great liberality, a motion to vacate default judgment in a guardianship matter "should be granted sparingly," as different considerations are presented by the child's paramount need for stability and permanency. Id. at 473-74. The Court has explained that in "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.
To succeed in attacking a judgment terminating parental rights, a moving parent must satisfy a two-part test:
First, a parent's motion "must be supported by evidence of changed circumstances" as the "moving party bears the burden of proving that events have occurred subsequent to the entry of a judgment to justify vacating the judgment." [J.N.H., supra, 172 N.J.] at 473 (internal quotations omitted). A showing of those reasons articulated under Rule 4:50-1(a) to (f) satisfies this provision. However, this alone will not be sufficient to succeed as review must encompass a second condition: in a "termination case[,] the best interests of the child must be considered." Ibid.; see also Division of Youth & Family Servs. v. L.L., 201 N.J. 210, 228 (2010) (stating, in addition to proving changed circumstances, a parent must show clear and convincing evidence that vacating judgment of KLG is in child's best interest). This prong requires a weighing of the effects setting aside the judgment may have on the child's stability and permanency." J.N.H., supra, 172 N.J. at 474. Consequently, "the primary issue is . . . what effect the grant of the motion would have on the child." Id. at 475. [N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 434-35 (App. Div. 2010).]
We noted that "[a]lthough the proceeding under review did not involve a full guardianship trial, our examination of whether [the] defendant's motion was properly denied is guided by the two-pronged examination articulated in J.N.H." T.G., supra, 414 N.J. Super. at 435. We are satisfied, as was the trial judge, that no grounds were presented which justified vacating the default judgment of guardianship.
Queenie's post-judgment placement in a non-relative foster home does not constitute "new evidence" requiring the judge to vacate the guardianship judgment. Queenie had been in multiple relative and non-relative placements during the four-plus years that she had been removed from Vera's care. Queenie's history of being "bounced around" from placement to placement was part of the trial court record at the time the decision was rendered, and the potential relocation was expressly addressed by the judge in his findings on the statutory prongs.
Nor did Vera's argument of "new evidence of her fitness to parent [Queenie]" warrant the vacating of the guardianship judgment under either of the prongs. As the trial judge explained in his statement of reasons appended to the March 14, 2011 order denying this relief, contrary to Vera's certification, her current efforts were not even as promising as she indicated in her testimony at the plenary hearing. She was involved in an abuse and neglect case with her baby son, and she continued to demonstrate "immaturity with regard to her sense of responsibility" by her staying out past curfew and initial discharge from the residential program where she and her son had been placed. In her brief, the Law Guardian noted that most of Vera's argument on this point relied on post-trial information, and thus she provided us with the April 3, 2012 compliance review order in the abuse and neglect proceeding involving Vera's son. As neither party moved to supplement the record, we will simply note that the judge who terminated Vera's parental rights to Queenie is also the judge who is involved in that matter. Thus, he clearly had a "feel" for Vera's current circumstances when he denied her motion to vacate.
The record amply reflects that setting aside the guardianship judgment would clearly not have been in Queenie's best interest.