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New Jersey Division of Youth and Family Services v. N.B

January 16, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
N.B., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF T.S.C.G., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-95-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 28, 2012

Before Judges Axelrad, Sapp-Peterson and Nugent.

N.B. ("Natalie") appeals from a January 10, 2011 judgment of guardianship of the Family Part terminating her parental rights to her then-three and one-half-year-old daughter T.S.C.G. ("Tanya"), following the entry of default and a proof hearing, and a July 25, 2011 order of the Family Part that denied her motion to vacate the judgment pursuant to Rule 4:50-1.*fn1 Tanya was adopted on June 7, 2011 by the resource family she was placed with in May 2008. Natalie asserts due process violations in the entry of default, challenges all four statutory prongs for entry of the guardianship judgment, and asserts error in the court's denial of her motion to vacate the default and default judgment. We note the law guardian supported the procedure and termination of Natalie'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 Natalie had sufficient opportunity to present a defense, and the evidence in favor of the guardianship petition overwhelmingly supported the termination of Natalie'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 four and one-half-year-old Tanya, who has been in her adoptive family's custody since she was nine months old and whose adoption has been final for a year and one-half, by a remand for further proceedings. See, e.g., In re Guardianship of J.N.H., 172 N.J. 440, 475 (2002) (recognizing that "the passage of time in a parental termination case, especially where a child has successfully adjusted to a long term placement, is of much greater significance than it would be in practically any other context [and] . . . that a completed adoption would constitute an additional heavy weight against Rule 4:50 relief").

I.

Natalie first became known to the Division of Youth and Family Services*fn2 ("Division") as a minor between 1990 and 2003, as she had a history of aggression towards her mother and her peers, and had run away from home. In March 2004, Natalie was placed by her mother at a residential placement, in May 2004, Natalie was hospitalized for depression, and in June 2005, she was placed in the Vineland Residential Center. In May 2006, Natalie ran away and was not located until January 2007, when she was returned there. She was removed that same month for assaulting staff and was sent to a juvenile detention center.

In April 2007, Natalie was placed at the Center for Great Expectations, a program for pregnant teenagers and was scheduled to remain there until July. The program, however, advised the Division that Natalie was being discharged in May because, among other things, she was sneaking in male guests, breaking windows, threatening another guest, and possessing unauthorized cell phones. The discharge led to a violation of Natalie's probation and she was returned to the juvenile detention center.

On May 15, 2007, Natalie was placed in the custody of her great-grandfather and was ordered to cooperate with services to assist her in learning parenting and independent living skills, and to enroll in school. Tanya was born on August 2, 2007, after which she and Natalie lived with various relatives.

By May 2008, Natalie had exhausted all family resources due to her violent behavior, disrespect, and theft. On May 30, 2008, the Division filed an order to show cause and Title 9 complaint for the protection of Tanya, alleging she was abused or neglected while in the care of Natalie.*fn3 On the same date, the court placed Tanya under the Division's supervision. Around the same time, the Division placed her and Tanya in the Crossroads Second Chances Treatment foster home of Mr. and Mrs.

M. (the "M. family"), intending for Natalie to learn how to independently care for Tanya, but Natalie failed to cooperate with the parenting skills and anger management training, and individual counseling over the next few months.

On June 27, 2008, the court continued physical custody of Tanya with Natalie, but under the Division's supervision, and again ordered Natalie to comply with services.

On September 24, 2008, after refusing to attend school, work, follow house rules, or comply with services, Natalie left her Crossroads home, leaving Tanya in the care of the M. family and expressing her desire for Tanya to remain there. On that date, the Division took emergency custody of Tanya and served Natalie with a notice of emergency removal, which she signed.

On September 26, 2008, the Division filed an order to show cause and amended complaint for custody of Tanya, and by order of that date the court placed Tanya in the Division's custody. Four days later, Natalie agreed to give up her right to a fact-finding hearing and stipulated she was in need of the Division's services. Following a dispositional hearing on that date, the court entered an order continuing Tanya under the Division's supervision, continuing her physical custody with the M. family, and allowing Natalie supervised visitation. By dispositional order of December 22, 2008, the court continued Tanya in the Division's custody, and directed, among other things, that Natalie cooperate with a psychological evaluation to be arranged by the Division.

Over the next five months, the Division attempted to help Natalie by referring her to the Lester A. Drenk Behavioral Health Center ("DRENK") for supervised visitation, parental skills training, and other reunification efforts. Natalie, however, failed to submit to substance abuse evaluations and failed to comply with many services the DRENK program offered. DRENK closed Natalie's case on February 18, 2009 because of her non-compliance.

On March 17, 2009, following a permanency hearing, the court found it would not be safe to return Tanya to Natalie's home, and it approved a goal of termination of parental rights followed by a foster home adoption. The court expressly found Natalie had been noncompliant with completing the court-ordered services for over one year, thus the issues regarding her inability to independently parent and provide safe and stable housing for Tanya had not been remediated.

On June 16, 2009, the Division filed a Title 30 guardianship complaint, seeking to terminate Natalie's parental rights to Tanya. By orders of June 19, 2009, the court continued Tanya's placement in the Division's custody and terminated the abuse and neglect litigation. Around that time, the M. family notified the Division they wished to adopt Tanya, as they felt she had become a part of their family.

Natalie continued failing to comply with orders by refusing services offered to her. On July 16, 2009, Trenton Family Preservation House, a women's shelter where Natalie had been staying since May 5, advised the Division that Natalie had been violating curfew, was entering the rooms of other residents without permission, and was at risk of discharge. Natalie left the shelter sometime prior to October 22, 2009. On October 6, 2009, the Family Recovery Program for substance abuse treatment closed its case based on Natalie's noncompliance with services that had been offered in August. In October 2009, however, Natalie did complete parenting classes at Mercer Street Friends.

On September 18, 2009, the court held a case management conference and directed Natalie, who was present and represented by counsel, to cooperate with psychological and bonding evaluations to be scheduled by the Division.

After conducting a psychological evaluation of her on October 22 and November 9, 2009, Amy Becker-Mattes, Ph.D., stated that Natalie "has been challenging of authority and rules and generally non-compliant in programs," and "unable to cooperate with others in order to achieve her desired goals." Dr. Becker-Mattes concluded that Natalie "should not be considered as an independent caretaker of a minor at present." She performed a bonding evaluation of Natalie and Tanya on November 12, 2009. She noted that the mother and child shared "an affectionate relationship," but Tanya did not feel safe and secure with Natalie, while Tanya did with the M. family. Dr. Becker-Mattes concluded that it would be in Tanya's best interests if she remained with the M. family as she felt Tanya was primarily attached to them rather than to her mother.

Natalie appeared at another case management conference on December 11, 2009, and her attorney advised that Natalie had completed a defense bonding evaluation the prior day, and one between the M. family and Tanya was scheduled for December 14.*fn4

Natalie failed to attend two substance abuse evaluations in March 2010, and tested positive for marijuana on June 9, 2010. She then failed to appear for three more evaluations scheduled in the fall, and again tested positive for marijuana on December 14, 2010. Around this time, Natalie was evicted from her house and did not maintain contact with the Division or respond to the agency's attempts to contact her. Thus, the Division was unable to contact Natalie over the next few months to determine her housing status.

Natalie also failed to appear at the March 19, 2010 case management conference and her attorney was unable to offer an explanation for her absence. Based on this failure to appear and Natalie's failure to attend two scheduled substance abuse evaluations and two visits with Tanya, the Division requested the court enter default against her. The court denied the request and referred the matter to mediation; however, the order expressly provided that if Natalie failed to appear at mediation and/or a pre-trial conference, default would be entered against her. The court also approved the Division's permanency plan of termination of parental rights and adoption by Tanya's resource parents, noting Natalie's continuing noncompliance with counseling, anger management, and parenting skills training offered by the Division. Mediation occurred on April 21, 2010, but the parties did not reach an agreement.

When Natalie failed to appear for a case management conference on May 21, 2010, the court entered default against her but afforded her an opportunity to make an oral application to vacate default when the guardianship trial began on July 7, 2010. On that date Natalie appeared with counsel, but the trial was adjourned due to the illness and absence of the deputy attorney general. At defense counsel's request and with the Division's consent, by order of that date, the court vacated the default against Natalie, and rescheduled the trial. On July 12, 2010, the trial was again adjourned, and the court ordered the parties to attend mediation on September 30, 2010 to address the viability of kinship legal guardianship (KLG).

Following an unsuccessful mediation, the court conducted a case management conference with Natalie present. The September 30, 2010 order confirmed the case management review scheduled for October 8, 2010 at 9:00 a.m., and contained the following preprinted notice: "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."

Natalie failed to appear at the scheduled case management review but was represented by counsel, who was unable to offer an explanation for her absence. The court entered default against Natalie based on her failure to: (1) appear in court;

(2) attend every scheduled visitation with Tanya except one between July 1 and October 8, 2010, without explanation; and (3) comply with substance abuse treatment. The judge elaborated that Natalie did neither of the "essential" and "substantial and material" aspects of the case of visiting regularly with Tanya to maintain a relationship with her and "go[ing] to rehab to be able to get clean." The court also noted Natalie's knowledge of the consequences of noncompliance and failure to appear based on the preprinted notice in the order. The court scheduled a proof hearing for December 7, 2010.

Natalie appeared at the November 16, 2010 case management conference hearing. The Division requested that default continue against Natalie because she had only attended three of eleven scheduled visits since June 10, 2010, and had failed to attend substance abuse evaluations on October 18, 28, and November 5, 2010. Defense counsel advised she was preparing a motion to vacate the default. The court continued the default and reminded the parties that the proof hearing remained scheduled for December 7, 2010, in the event default was not vacated. The court further ordered Natalie to comply with all services and evaluations scheduled by the Division.

On December 7, 2010, Natalie failed to appear. Her attorney requested the proof hearing be adjourned because she had not seen the updated affidavit of proof received by her office. The hearing was rescheduled for January 7, 2011.

Natalie appeared in court on January 7, 2011. The court noted she had failed to file a motion to vacate the default against her. Natalie then sought to make an oral application. The Division opposed the request because Natalie had not visited Tanya since October 29, 2010, and had not cooperated with any services, and the Law Guardian concurred. The court denied the oral application, commenting on Natalie's ...


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