October 9, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
A.H., Defendant-Appellant, and C.H., N.F., and A.S., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF D.F., L.M., Q.H., Q.H., AND Q.H., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0078-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Joseph F. Kunicki, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Nancy P. Fratz, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges Fuentes, Simonelli and Haas.
Defendant A.H. appeals from the January 6, 2012 Family Part order, which denied her motion to vacate a default judgment terminating her parental rights to her children, L.M. (Lamar), born in October 2000, Q.H. (Qiana), born in August 2002, and twins Q.H. (Queen) and Q.H. (Quentin), born in December 2006.We affirm.
In addition to the four children involved in this appeal, defendant is the biological mother of S.G. (Susan), born in August 1989, and A.H. (Anne), born in May 1993. Defendant C.H. is the biological father of D.F. (David), born in December 1994, Qiana, Queen and Quentin. Defendant N.F. is David's biological mother. C.H. and N.F. are not involved in this appeal.
The family has been involved with plaintiff New Jersey Division of Youth and Family Services (Division) since 1994. The incidents that gave rise to the present matter stem from an August 2009 report the Division received that C.H. was abusing drugs and physically abusing David in the presence of his younger siblings. C.H. agreed to the Division's safety plan, which required him to leave the home and enroll in a detoxification program.
The Division received another report in August 2009, that C.H. had been sexually abusing Anne for the past two years, and Anne reported this to defendant, who did nothing to stop it. Susan reported that C.H. had sexually abused her as well. Pursuant to another safety plan, C.H. was required to leave the home, and defendant was not to allow him to be in the home or have any contact with the children.
The Division received a third report in August 2009, that defendant and C.H. were abusing heroin, defendant allowed C.H. into the home, C.H. would hide in the basement when Division caseworkers arrived, and defendant instructed Anne to lie to Division caseworkers about C.H.'s presence in the home. Defendant initially denied that C.H. was in the home, but later admitted it.
The Division filed a complaint for and obtained custody of Anne, Lamar, Qiana, Queen and Quentin. In a January 12, 2010 order, defendant stipulated that she had violated the safety plan by permitting C.H. into the home, which placed the children at risk. Thereafter, the court ordered defendant to attend psychological and substance abuse evaluations, submit to random drug and alcohol screens, and obtain stable housing and full employment. Defendant failed to comply, resulting in the filing of a complaint to terminate her parental rights.
Defendant's conduct following the filing of the complaint was marked by non-compliance with court-ordered services and positive drug screens. She also failed to communicate with her attorney and attend pre-trial hearings. At a May 23, 2011 hearing, the trial judge advised defense counsel that default would be entered against defendant if she failed to appear at the next hearing on June 30, 2011. The court also suspended defendant's visitation until she appeared. Defendant never contacted the Division thereafter to have visitation reinstated.
Defense counsel twice wrote to defendant, advising her of the next court date and that default would be entered if she failed to appear. Despite counsel's efforts, defendant failed to appear. As a result, the judge entered default on June 30, 2011, but permitted defendant to move to vacate if she appeared at the trial.
Defense counsel mailed several notices to defendant about the trial on September 29, 2011, but defendant did not respond. Defendant was not present when the trial began, but defense counsel was present and cross-examined a Division caseworker. During the trial, defendant finally appeared. The default was vacated and she testified. In defendant's presence, the judge adjourned the trial to December 12 and 15, 2011, to afford defense counsel an opportunity to meet with defendant.
Thereafter, defendant failed to comply with court-ordered services. Defense counsel sent letters to defendant reminding her of the trial dates. Defendant failed to contact counsel or appear on December 12, 2011. The trial proceeded in her absence. Defense counsel cross-examined a Division caseworker, moved successfully to bar admission of a report from the Division's expert psychologist, moved successfully for the admission of defendant's psychological and bonding evaluations, and presented a closing statement. In a December 12, 2011 oral opinion, the judge made factual findings and legal conclusions and entered a default judgment terminating defendant's parental rights to the children. Defendant does not challenge the judge's ruling in this appeal.
Defendant filed a motion to vacate the default judgment and for reconsideration. Defendant claimed she could not appear on December 12, 2011 because she was incarcerated; however, the evidence showed she had been released on December 4, 2011, and failed to appear because she had other matters to address. In a January 6, 2012 oral opinion, the judge found that defendant failed to prove excusable neglect and her expert's psychological and bonding evaluations did not establish a meritorious defense. Thus, the judge denied the motion. This appeal followed.
On appeal, defendant contends that the judge erred: (1) in entering default without warning her that this would be a consequence for her failure to appear; (2) denying the motion to vacate; and (3) denying defense counsel the opportunity to cross-examine plaintiff's expert. We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the judge in his January 6, 2012 oral opinion. However, we make the following brief comments.
The orders entered in this matter clearly advised defendant that her failure to comply with any provision or her continuing failure to appear may result in entry of default and termination of parental rights. In addition, her attorney notified her that default would be entered if she failed to appear. Defendant's history of failing to appear, showing up late for the first day of trial, and failing to appear thereafter, provided sufficient basis for the judge's decision.
In addition, defendant failed to show that the result would have been different had the judge not entered default judgment and permitted defense counsel to cross-examine the Division's expert. Defendant's expert confirmed that although defendant possessed the ability to adequately care for and protect the children, she could not presently do so and needed additional time "to fulfill the court's mandate." Further, the judge did not substantially rely on the Division's expert's report to terminate defendant's parental rights.