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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 nonappearance at the prior hearing and her "many failures to follow court orders and comply with services."

Defense counsel advised that Dr. Becker-Mattes had performed a bonding evaluation between Natalie and Tanya in November*fn5 and opined there was an "attachment" between them. Because she just learned the Division was not planning to call the psychologist as a witness but, instead, was submitting her reports as attached to the affidavit of proof, she asked to call the expert as an affirmative proof, which the court denied.

The Division presented the testimony of Heather Tilghman, the case manager who testified about the agency's involvement with the family, Natalie's inability to parent Tanya, Natalie's overall noncompliance with numerous services offered by the Division, and her inconsistent visitation with Tanya. For example, Natalie was ousted from the Great Expectations residency program in 2007, was noncompliant with the rules when she resided at the Trenton Family Preservation House in May 2009, and left about three months later. Natalie was also closed out of the DRENK program that offers individual counseling, parenting, and supervised therapeutic visitation because she failed to attend any intake appointments for a three-month period from the referral date. She additionally failed to attend many substance abuse evaluations beginning in January 2009, and after failing to follow up on the referral to the Family Guidance Center's intensive outpatient program for substance abuse treatment, was terminated from the program in October 2009. Natalie then missed several more substance abuse evaluations in March 2010, tested positive for marijuana in June, and was terminated from the program in August for failing to follow through with any of the scheduled intake appointments. Natalie again missed five scheduled substance abuse evaluations between October and December, and tested positive for marijuana in December 2010.

Tilghman did not know where Natalie was currently living as she did not contact the agency other than to occasionally leave phone messages at times such as 3 a.m. to confirm her visits. When Tilghman would call Natalie back the next day, her phone was out of service or she did not return the call. In early December 2010, a Division worker attempted to hand-deliver a letter to Natalie's address in Trenton but was informed by the man who answered the door that she no longer lived there, and he did not know her address. Tilghman's letters to Natalie sent certified and regular mail were returned unopened as "return to sender."

Tilghman also testified that Natalie presented no plan for Tanya's care and no relatives as potential placements. She further testified to her observations of Tanya and the M. family, which was her sole placement by the Division since her birth. According to Tilghman, Tanya addresses them by familial names, and they are "very affectionate and caring towards each other." Tilghman testified she fully explained to the M. family the difference between KLG and adoption, and they clearly wanted to adopt Tanya. In contrast, Tilghman related that Tanya began to call her mother by her first name and said she did not want to see Natalie anymore because she's "not nice to her and that she hurt her feelings."

Defense counsel cross-examined Tilghman. The Division marked into evidence, without objection, supporting exhibits. Defense counsel acknowledged in summation that the Division had offered Natalie parenting programs and Natalie had been using marijuana. She argued, based on Dr. Becker-Mattes' report, that because Tanya had lived with Natalie for almost the first year of her life, Tanya knew her mother and they were "attached." She acknowledged, however, that the contact was interrupted by Natalie not visiting on a regular basis. She urged, among other points, that the Division did not satisfy the fourth statutory prong for termination of parental rights because there was "no concrete opinion" that, with "proper services or proper guidance," Natalie "would not be able to ameliorate the harm suffered" to Tanya if the child were transitioned from the M. family home to Natalie.

When the judge inquired what witnesses or experts she would call at trial that was scheduled for March 7, 9, and l4, 2011, defense counsel responded that she "certainly [] would have presented evidence through a bonding evaluation between [Natalie] and [Tanya]. When the judge inquired whether the evaluation was done, she said "no," and when asked if it were scheduled, she replied: "I know that I have scheduled at least a psychological evaluation. I don't know that [Natalie] attended, and I'm not sure why."

Both the law guardian and deputy attorney general emphasized Natalie's ongoing noncompliance with numerous services, inability to parent Tanya, and referenced specific portions of Dr. Becker-Mattes' reports that evidenced concern about Natalie's ability to care for Tanya and Tanya being removed from the M. household. The law guardian further urged that Tanya was in Natalie's care for less than a year and has not been with her for over two years; the child is thriving and is safe and secure with the M. family, who she views as her psychological parents; and the psychologist concluded there is an "affectionate relationship," between Natalie and Tanya, of which Natalie "seems somewhat more involved in this relationship than is her child[,]" and does not use the word "bond."

On January 10, 2011, the court entered a Judgment of Guardianship "after default and proof hearing" terminating Natalie's parental rights to Tanya, accompanied by a lengthy written decision. The court found 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).

As to the first prong, the judge found Tanya's safety, health, and development had been endangered by Natalie. He noted that Natalie often left the infant hungry while she overslept, fed her large foods that created a choking hazard, regularly left her unsupervised, and habitually smoked marijuana, using what little money she had to purchase the drugs rather than providing for Tanya's needs. Natalie also missed numerous visitations, demonstrating she did not value her time with the child, and continued to abandon Tanya to the care of others. Natalie further provided no proof she had a job or stable housing.

The judge found the Division also clearly satisfied the second statutory prong that Natalie was unwilling or unable to eliminate the harm or provide Tanya with a safe and stable home, commenting that Natalie's "almost pristine failure to complete any other services [other than parenting skills] or even attend visits with the child shows that she does not really care about the relationship." He noted that Natalie's longstanding conduct belied her argument at the proof hearing that "she was then ready to do what she needed to do to regain custody of [Tanya]."

For example, she missed her visit the week before the hearing and failed to make any visits in the few months before the hearing, and missed five substance evaluations in the few months prior to the hearing. Natalie also repeatedly failed to follow through in her verbal commitments by missing court hearings without explanation, and asking for services and then refusing to follow up on the referrals.

The judge additionally found Natalie had no stable home between 2008 and 2011, constantly moving because she was ejected or failed to cooperate with or threatened other occupants. Based on her track record, there was no likelihood of stable housing in the foreseeable future. Natalie was also hostile towards individuals attempting to help her, demonstrating an unwillingness to change her ways. She assaulted residential staff, broke rules, and lied to Division workers.

The judge concluded:

[Natalie] is so unfit that even if there were no relationship with the current caregivers, the Division would still have proven factor 2 by clear and convincing evidence. The fact that [Tanya] has reached or exceeded her milestones and stages of development, that she has done so while in the [M. family] since arriving there [] 2 1/2 years ago, and that [Tanya] is 3 years old does not require any expert to know that there would be harm to [Tanya] for moving out of the only home that she knows.

The judge found the third prong of reasonable efforts to provide services to the biological parent to correct the circumstances leading to the child's placement outside the home was clearly met by the myriad of appropriate services and programs offered by the Division to no avail. He noted the Division's numerous referrals for substance abuse evaluations and treatment, housing assistance, anger management programs, individual therapy, and visitation. Other than the parenting classes, which it took her a while to comply with, Natalie "just flatly and substantially refused" all other services and the majority of the visitations. The Division also explored alternatives to termination, but Natalie refused to permit the Division to investigate and her own behavior "sabotaged any chance that the [M. family] might want to do a KLG." The judge analyzed a variety of scenarios and concluded the only option was to terminate Natalie's parental rights.

The judge also found the Division clearly demonstrated the fourth prong that termination would not do more harm than good. He found there was no harm in terminating the parental relationship as Natalie does not see her daughter more than once every few months and "[t]here is no relationship," explaining:

[T]here is no family member that is willing to take [Tanya] and [Natalie] would leave [Tanya] unfed and uncared for. There is a loving caring family that wants to adopt [Tanya] and that would do much more good than harm. Dr. Becker-Mattes' opinion was that there was an affectionate relationship between [Tanya] and [Natalie] and that [Natalie] was more invested in the relationship than [Tanya] . . . based on the circumstances in November 2009. Since then there have been relatively few visits and those visits have been harmful and hurtful to [Tanya]. [Tanya] would be better off not having to be exposed to [Natalie's] negative behavior. Whatever possible relationship Dr. Becker-Mattes might have found over a year ago is gone. The Division has established its burden of proof under this factor by clear and convincing evidence.

On April 19, 2011, Natalie filed a motion to vacate the default and default judgment, arguing she did not receive proper notice of the possibility of a default and the entry of default was improper, relying on our decision in New Jersey Division of Youth & 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 submitted a certification, alleging she was confused about the timing of court on October 8, 2010, and arrived at 1:30 p.m., completed all of her services except the substance abuse program, was not responsible for her missed visits, was attending Mercer County Community College, and had her own apartment. According to Natalie, had she not been precluded from presenting evidence as a result of the default, she would have presented evidence of her status at school, residence, and attachment between Tanya and her. She also "could have had testimony from an expert witness as to [her] mental health as well as to bonding issues[,]" claimed Tanya was "very attached" to her, and it was "not fair" to her and Tanya to terminate her parental rights without giving her an opportunity to present her evidence at trial.

Pursuant to court order of May 5, 2011, Natalie supplemented her motion with a certification from her grandmother on May 19, stating she was helping Natalie pay her rent, a December 2, 2010 transcript reflecting an "Overall Non-Pass Grade," and a handwritten note from an unidentified person reflecting that on May l9, 2011, Natalie had taken one of the tests she had originally failed and was scheduled to take the other one on May 20, with scores to be available online by May 27, 2011. The record does not reflect any additional documentation evidencing a passing grade. The Division and the Law Guardian opposed Natalie's motion.

On June 7, 2011, the M. family's adoption of Tanya was finalized.*fn6

Following oral argument on July 22, 2011, the court denied Natalie's motion to vacate the default judgment and termination of her parental rights, memorialized in a July 25, 2011 order and written statement of reasons. The court found the circumstances surrounding Natalie's nonappearance for court sessions and noncompliance with services were sufficient basis for the entry of default. The court detailed Natalie's sporadic attendance at court, even after the initial default was vacated, and she received numerous warnings about the consequences of nonappearance. The court also detailed Natalie's persistent failure to cooperate with services and visitation both before and after the default was entered.

The judge 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, Natalie was "consistently noncompliant throughout the guardianship case" and was "fairly noticed of such consequences." The judge found Natalie's actions constituted a "continuing failure" to appear, not only at case management conferences, including the October 8, 2010 one where default was entered, but at the proof hearing scheduled for December 7, 2010. She also repeatedly refused to participate in or complete any of the court-ordered or Division-referred substance abuse evaluations or services other than parenting classes, tested positive for marijuana as late as December 2010, and only visited with Tanya five times in the year prior to the default proof hearing.

The judge further noted that when default was entered against Natalie for the second time he "invited" her to file a formal motion to vacate the default with a certification explaining her noncompliance. Not only did Natalie fail to do so, she continued with noncompliant behavior.

Under the circumstances, the judge was satisfied he followed appropriate procedures after the entry of default and afforded Natalie a "suitable opportunit[y] to participate." See N.J. Div. of Youth & Fam. Servs. v. L.H., 340 N.J. Super. 617, 620 (App. Div. 2001). At the proof hearing, he permitted Natalie's attorney to cross-examine the Division caseworker and to make closing arguments, with all other counsel, regarding the statutory four-prong test for termination of parental rights. He considered the testimony and evidence, and then issued a lengthy written opinion explaining the basis for the guardianship judgment.

The judge further found Natalie presented neither reasons for her nonappearance or noncompliance that constituted excusable neglect, nor a meritorious defense, as required by Rule 4:50-1(a) to vacate the default judgment. He found Natalie had been given the opportunity to explain her court absences by filing a certification prior to the proof hearing but failed to do so; nevertheless, even if she mistakenly appeared in the afternoon rather than morning of October 8, it was the third hearing she missed, including five substance abuse evaluations after default was entered. Moreover, Natalie's explanations for failing to attend visits and evaluations lacked credibility because they were inconsistent with her prior representations to the court.

The judge also found Natalie failed to demonstrate a meritorious defense. Although Natalie stated she had her own apartment, the fact her grandmother was paying the rent was indicative that Natalie was still not able to support herself, let alone a child. Moreover, Natalie presented no evidence she had actually attained her GED or community college credits. "Most importantly," considering that Tanya had lived with the M. family for three years and her adoption by them became final on June 17, 2011, the court relied on the paramount notion of "stability and permanency" articulated in J.N.H., supra, 172 N.J. at 474-75, and concluded "[i]t would be egregiously contrary to the established public policy and court precedent to vacate the default judgment and allow for the possibility of removing [Tanya] from her adoptive home."

This appeal ensued. On appeal, Natalie 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.

II.

A. Entry of Default

Natalie first challenges the initial judge's entry of default against her for nonappearance at the October 8, 2010 proceeding. She argues her attorney was present and able to represent her during all proceedings, and thus she 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 boilerplate language on the last page of the order merely informed her that "continuing nonappearance 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 received 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)).

Natalie additionally contends she was never expressly told she had to appear, the case management conference exclusively involved matters best managed by the attorneys, 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, Tanya, 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). Natalie emphasizes that she was present for trial on July 7, 2010, when the State was unable to proceed, as well as the proof hearing held on January 7, 2011.

According to Natalie, she was not ordered to attend visitation but was only "entitled" to visitation, therefore, assuming she did not have a valid basis to miss her visitations with Tanya, that was not a valid basis for the entry of default. She additionally urges that once the court "wrongfully" entered default, it "chill[ed] her participation in the proceedings" and excused her nonappearance.

It is clear from the record that Natalie cannot blame her persistent noncompliance with services and sporadic attendance at court proceedings throughout the litigation on the court's entry of default in October 2010. As the judge pointed out, P.W.R. is factually inapposite. Natalie was well aware of, and apparently had no concern for, the consequences of her conduct. As the judge noted, this was the second default entered against Natalie, the first one being vacated in July 2010 with the consent of the Division.

Natalie evidenced no interest in participating in court sessions dealing with permanency planning for Tanya, nor did she make any attempt to demonstrate she was capable of caring for Tanya's financial, shelter, and parenting needs. To the contrary, the record is replete with instances of Natalie's disregard of court orders and refusal of services that would assist her in safely parenting Tanya, such as anger management, substance abuse evaluations and programs, counseling, housing assistance, and consistent visitation. Throughout the litigation, Natalie sporadically appeared in court without explanation for her absences, which hamstrung her attorney's and the court's ability to move the case forward in Tanya's best interests of permanency and stability.

Thus, we cannot fault the judge for entering default against Natalie under the circumstances of this case. We reject Natalie's argument that she was not properly advised of her obligation to appear, as she was instructed to appear and served with the order, which advised her of the potential consequences.

B. Denial of Vacation of Default

The court provided defendant with more than sufficient opportunity before the proof hearing to file a motion to vacate the default. This motion was not made until almost three months after the hearing and entry of the guardianship judgment.

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, Natalie violated nearly every court order during the Title 9 and Title 30 proceedings, which required her to attend evaluations and complete services itemized at length by the court and noted in this opinion.

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. L.H., supra, 340 N.J. Super. at 619. In a parental termination case, we focus on whether the parties had "suitable opportunities to participate." Id. at 620.

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 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. It would have been preferable for the judge to have required the testimony of Dr. Becker-Mattes rather than simply accepting her reports into evidence. See M.G., supra, 427 N.J. Super. at 174-75. Nevertheless, we discern no prejudice to Natalie in the judge's denial of her request to call the psychologist as a witness at the proof hearing. As argued by the deputy attorney general and law guardian in summation at the proof hearing, Dr. Becker-Mattes' psychological evaluation of Natalie and bonding evaluation of Natalie and Tanya in November 2009 provides no support whatsoever for Natalie's position. For example, in the psychological evaluation, Dr. Becker-Mattes stated:

There is some indication that [Natalie] may be maturing and realizing the necessity of compliance. [Natalie] now says that she is willing to do whatever is required of her to gain further access to her daughter. . . . Of greatest concern, is the fact that [Natalie] has been extremely difficult in her recent residential placement and has been unable to inhibit her oppositional attitude in order to achieve her goals up until the present time. [Natalie's] interpersonal alienation has made living with other people very hard for her. Given her elevated abuse score and past lack of appropriate care of her child while in the Second Chance Crossroads Program, it would be necessary for her to have a great deal of supervision and a willingness to cooperate with services in order to be considered as a possible caretaker for a child. [Tanya's] extended stay with, and attachment to, [the M. family] is also a factor that must be taken into consideration. . . . It is difficult to be optimistic about [Natalie's] prospects in succeeding in a Mommy and Me program with significant oversight given her past history of non-compliance and her challenging of authority. The best interest of [Tanya] may also preclude the possibility of such a placement. However, only with an extended stay and significant supervision in such a program with a successful outcome, would this examiner possibly recommend that [Natalie] be given the opportunity to care for her daughter on her own. She should not be considered as an independent caretaker for a minor child at the present time. (Emphasis added).

The psychologist recommended individual therapy, Natalie should only be considered as an independent caretaker of Tanya as part of a Mommy and Me program with significant supervision and oversight, and Natalie's parenting capacity should be reevaluated after an extended stay in such supervision program.

As previously discussed, following the bonding evaluation, Dr. Becker-Mattes concluded Natalie and Tanya appear to have an "affectionate relationship" with Natalie primarily involved in the relationship. The psychologist opined, however, that she "did not have the sense that [Tanya] relies primarily on [Natalie] for a sense of safety and security nor that [Natalie] is [Tanya's] primary attachment figure. There was not "a level of involvement and familiarity" between Tanya and Natalie that was observed between the child and the M. family. She concluded:

It is this examiner's professional opinion that [Tanya] views the [M. family] as her primary attachment figures. [Tanya] is flourishing in her current placement with the [M. family]. It is difficult to predict what the outcome would be if her present circumstances were changed, and [Natalie] were to be given another chance to care for [Tanya]. [Tanya] is at an age when identity and attachment is being solidified. She is a precocious child. It is this examiner's professional opinion that to disrupt her current placement might do serious harm to this child's security and her sense of self. [Tanya] seems to be primarily attached to the [M. family] rather than to her mother.

However given the affection that exists between [Natalie] and [Tanya] and [Natalie's] apparent good intentions, it might be in [Tanya's] best interest to continue to have contact with her mother if the [M. family is] comfortable allowing this.

By the proof hearing over a year later, Natalie had complied with none of the recommendations in Dr. Becker-Mattes' December 2009 report, and did not participate in the supervised program with Tanya. Moreover, as defense counsel acknowledged in her summation at the proof hearing, Natalie did not even visit her daughter on a regular basis. It is thus highly unlikely that Natalie even would have had the benefit of these qualified favorable comments had Dr. Becker-Mattes testified at trial.

In her brief on appeal Natalie makes a vague claim that she "would have presented the reports and trial testimony from the expert she engaged on the subjects of the bonding between the Mother and Daughter, as well as the bonding between her daughter and the foster parents." As previously noted, however, Natalie presented no independent reports. Based on the record of Natalie's longstanding noncompliance, it is unlikely such report would have been favorable to her.

We are satisfied Natalie had ample opportunity to present a defense to the guardianship complaint. Tilghman provided ample factual information respecting Natalie's noncompliance with all court-ordered services, her transient lifestyle, and her emotional and behavioral immaturity and instability as demonstrated by her aggressive behavior, running away from placements, continued use of marijuana, and erratic visitation of Tanya.

C. Judgment of Guardianship

We turn now to Natalie'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 substantive decision terminating parental rights. There is overwhelming basis in the testimony adduced at the January 2011 proof hearing 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. J.N.H., supra, 172 N.J. at 472. 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." N.J. 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 In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).

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 Tanya's best interests required termination of Natalie'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. 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. "That 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 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.

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.

We are convinced the record overwhelmingly supports all four statutory prongs by clear and convincing evidence. The judge more than amply explained his factual findings on each of the prongs, with reference to the record, in his comprehensive statement of reasons attached to the judgment of guardianship. We substantially affirm the termination of Natalie's parental rights for those reasons, and add the following brief comments.

After moving from family member to family member, Natalie was essentially given a "Second Chance" to care for nine-month old Tanya when the Division placed them together at the treatment foster home of the M. family in May 2008, with the intention Natalie would learn the skills to independently care for Tanya. Instead, she refused to cooperate with the parenting skills training, anger management, and individual counseling offered by the program, attend school or work; ignored the house rules, choosing to consistently sleep late and not feed Tanya or leave the house without making advance arrangements for the infant's care; and ultimately, she left Tanya in the care of the M. family, expressing the desire she remain there.

Natalie intermittently gave lip service to her desire to be reunified with Tanya and care for her. However, by the time of the proof hearing in January 2011, when Tanya had been with the M. family for almost three years, Natalie had consistently refused to participate in a myriad of services and programs, tested positive for marijuana, rarely availed herself of the opportunity to visit with her daughter, missed several court appearances without explanation, and provided neither the Division nor the court with any indication that she was willing or able to care for Tanya at that time or in the near future. Fortunately for Tanya, she had undisputedly thrived in the M. family household, bonded with the family and viewed them as her psychological parents and, most importantly, they wanted to adopt her.

The law guardian emphatically supported the termination of Natalie's parental rights as clearly within Tanya's best interests. We reject as without merit Natalie's challenges to the statutory prongs, particularly the fourth prong. We are clearly convinced the record supports the finding that Natalie is unable or unwilling to provide the safe, stable, and permanent home her young daughter so desperately needs, and that termination of Natalie's parental rights in January 2011 was in Tanya's best interests and did not do more harm than good. See 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).

D. Motion to Vacate Default Judgment

We also discern no basis to second-guess the trial court's denial of Natalie's motion to vacate the default judgment terminating her parental rights, filed three 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 such 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.

We affirm the judge's denial of Natalie's motion to vacate the default judgment substantially for the reasons set forth in his July 25, 2011 statement of reasons. Even had the adoption not been finalized as of the return date of Natalie's motion, the requirements of Rule 4:50-1(a), as well as the best interests of Tanya, who has "successfully adjusted to [her] long term placement" and is entitled to "stability and permanency," would have clearly militated against vacating the guardianship judgment. See J.N.H., supra, 172 N.J. at 474-75. Moreover, reviewing the case in its present posture, Natalie has failed to overcome the "additional heavy weight" of the completed adoption.

Affirmed.


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