Opinion
DOCKET NO. A-0973-11T1
01-30-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. Y.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.B., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Clinton Page, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.B. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz, Ostrer and Kennedy.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-35-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Clinton Page, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.B. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant Y.B. appeals from the Family Part judgment terminating parental rights to her daughter S.B. (Sarah), which was entered following default and a proof hearing. Defendant contends that plaintiff, the Division of Youth and Family Services (the Division) failed to prove by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1(a), and that the trial judge erred when he denied defendant's subsequent motion to vacate default judgment against her. After considering the arguments presented in light of the record and the applicable law, we are satisfied that the trial judge's findings are supported by substantial, credible evidence in the record as a whole and supported his legal conclusions. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006).
We have fictionalized the name of the child to protect her identity.
The Division was recently renamed the Division of Child Protection and Permanency. L. 2012, c. 16 (eff. June 29, 2012).
Moreover, even if we were to find that the trial judge erred in entering default, such error does not warrant vacating the judgment on appeal, given our concern for the best interests of the child in the circumstances presented, and in light of the concession of defendant's counsel that defendant had no evidence or testimony to introduce "regardless" of the default. See In re Guardianship of J.N.H., 172 N.J. 440, 474-75 (2002). Consequently, we affirm the judgment and order of the Family Part.
I.
We gather the facts from the record.
Sarah was born prematurely at thirty-one weeks on October 28, 2009 at Mercer Medical Center. Defendant was eighteen-years-old at the time. Sarah remained at the Mercer Medical Center in the Neonatal Intensive Care Unit until she was discharged to defendant's care on November 25, 2009. On December 9, 2009, Sarah was seen by a physician who found that the child had an abnormally low body temperature, and was vomiting and not gaining weight. The physician determined that Sarah was "fail[ing] to thrive" and ordered her re-admitted to the hospital that day.
Sarah was discharged on December 12, 2009, and defendant was advised to return to the emergency room if the child continued to vomit, became feverish or was unable to feed. Defendant was also instructed to return with Sarah to the physician for follow-up care on December 14, 2009.
Defendant did not keep the appointment, however, and later explained that she did not return to the physician because she did not like the physician's attitude toward her. After several unsuccessful efforts were made to locate defendant, a hospital social worker contacted the Division on December 18, 2009 to report that Sarah was "medically fragile" and "at high risk," and that defendant may not be properly addressing Sarah's medical condition. Also, she was concerned that defendant had not submitted forms to obtain Medicaid for Sarah, and that, consequently, the child would be ineligible for medical benefits.
The Division sent an investigative caseworker on December 18 to locate and interview defendant. Defendant and Sarah were found at the home of defendant's aunt. Defendant told the caseworker that she had an appointment to bring Sarah to another physician on December 30, 2009, and could not have obtained an earlier appointment for the child because of a "lack of insurance." She also stated she had called a Medicaid office earlier that day and had "left a message." She added she did not know the name of Sarah's father, but only knew him by his "street name, Cheese."
The caseworker then informed defendant and her aunt that the Division was taking custody of Sarah to safeguard her health. Defendant was upset, but signed a notice of emergency removal without court order, and the Division placed Sarah with a Special Home Service Provider (SHSP).
On December 22, 2009, the Division filed a verified complaint and order to show cause under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, seeking care, custody and supervision of Sarah based on allegations of abuse and neglect. The court entered the order to show cause and found that Sarah's removal was required because defendant "failed to seek prompt follow-up medical care for her child" and placed the child at risk of harm by failing to secure medical coverage. The court ordered the Division to take custody of Sarah, and permitted defendant to have weekly supervised visitation with the child, later arranged by Mercer Street Friends.
On the return date of the order to show cause, the court continued the terms of its earlier order, and required the Division to provide child specific training to defendant's aunt to enable Sarah to "be placed with her on an expedited basis." The court also relieved the Division of its obligation to serve the complaint on Sarah's biological father because defendant was unable to properly identify him, other than by his street name.
In March 2010, defendant informed the Division she was homeless. She blamed the Division for her homelessness, and her inconsistent visitation with Sarah, but conceded she had not checked the voicemail messages left by her caseworker respecting available housing support agencies. Defendant was then provided with the phone numbers for HomeFront and Mercer County Board of Social Services to assist her in obtaining housing, but later failed to contact either agency.
In late April 2010, the Division learned that defendant was still homeless, and again encouraged her to contact various shelters and housing programs. Defendant's aunt also explained she had "tried to work with [defendant] and assist her with caring for the baby but the mother [would] not cooperate."
In June 2010, defendant told an interviewer at Preferred Children Services that she began using illegal drugs at the age of sixteen, and admitted to drinking fifteen out of the previous thirty days, and using drugs ten days during the same time period. She explained she used marijuana daily to cope with stress and her lack of housing. The interviewer referred her to an outpatient substance abuse treatment program at Catholic Charities Project Free (Project Free). A report from Project Free later revealed defendant only attended two out of sixteen scheduled appointments in the past month, and tested positive for marijuana on July 7, 2010. The report noted defendant was "very resistant toward attending" the program.
In addition, defendant performed poorly in Project Free's substance abuse program. Defendant's attendance was sporadic, and she failed to call when she did not attend. On three different occasions, defendant tested positive for drugs, and disregarded efforts by the Division to encourage her attendance.
On July 29, 2010, the court ordered defendant to attend a psychiatric evaluation and substance abuse evaluation, and continue her weekly supervised visits with Sarah. That same month, defendant told the Division she wanted to surrender her parental rights.
Although she claimed in August 2010 to have stopped using marijuana, defendant tested positive for marijuana on August 10, August 11, and August 23, 2010. That same month, defendant was terminated from Mercer Street Friends Family Support and Reunification Program because she had not participated in services.
Sarah had been removed from the foster home and placed in the home of defendant's aunt on May 7, 2010. Three days later, a Division case manager and nurse visited the home and, although Sarah appeared neat and clean, the home itself was cluttered and in need of cleaning. In addition, Sarah's crib contained pillows, stuffed animals and other items that posed a danger of suffocation. On June 3, 2010, a Division case manager again visited the home and again found it to be dirty and cluttered. The case manager was told that Sarah had been vomiting.
On June 28, 2010, Sarah's daycare provider contacted the Division to report the child was not clean and there were dirty clothes and bottles in her diaper bag. The Division also learned that defendant's aunt had failed to inform the daycare provider about the child's dietary requirements.
On July 1, 2010, Division representatives visited the home of defendant's aunt, who advised that Sarah continued to vomit her medication, and that Sarah had been referred to a gastroenterologist, although an appointment had not yet been made. The Division representatives expressed concern about the condition of the home, and, thereafter, the Division concluded that her home would not be used as a foster home in the future. Later that day, defendant's aunt called the Division and requested that Sarah be removed from her home.
Sarah was then returned to the home of her initial SHSP. A few days later, the Division reported Sarah's foster home was clean and well-maintained. Sarah appeared well-fed, and was no longer vomiting because the foster parents changed her formula. The foster parents had scheduled a doctor's appointment, set up "early intervention" services for Sarah, and expressed a desire to adopt her.
On April 21, 2010, pursuant to the Division's request, Gregory C. Gambone, Ph.D., conducted a psychological evaluation of defendant. Defendant told Dr. Gambone that she began abusing drugs when she was thirteen years old, her last alcohol use was two weeks earlier, and her last drug use was the previous month. Dr. Gambone observed defendant "is usually able to function on a daily basis, [but she] may experience periods of marked cognitive, emotional or behavioral dysfunction." He noted she is "suspicious, compulsive, and defensive, with obsessional ideation", but was "psychologically stable."
However, defendant displayed behavioral patterns that may affect her decision making, her ability to control anger, control substance abuse, maintain a positive social life, and benefit from psychotherapy. Dr. Gambone diagnosed defendant with "Bipolar Disorder, Mixed" and "Obsessive Compulsive Personality Disorder with Histrionic features." The report also concluded defendant had a "superficial understanding" of Sarah's needs. Dr. Gambone cited her history of irresponsibility regarding her daughter's health, and her unwillingness or inability to "consistently meet the parenting needs of her daughter." Dr. Gambone concluded defendant "should not currently be considered capable of adequately parenting her daughter on an independent basis," and that visitation should be supervised.
In July 2010, Alexander Iofin, M.D. conducted a psychiatric evaluation of defendant. Defendant told Dr. Iofin that she had suffered from depression since December 2009. Defendant denied using crack/cocaine, heroin, and other drugs, but admitted using marijuana. Dr. Iofin diagnosed defendant with "Affective Disorder, NOS, versus Depressive Disorder, NOS; Anxiety Disorder, NOS;" and "Personality Disorder, NOS, with Maladaptive Traits in Cluster B and C." Dr. Iofin determined defendant could benefit from mental health treatment, and concluded defendant had to deal effectively with her psychiatric condition and abstain from drugs and alcohol "to be considered as a minimally adequate parent who can be considered for the process of reunification."
On November 18, 2010, at a compliance hearing, defendant appeared by telephone and advised she wished to undertake an "identified surrender" of Sarah to her foster parent. The court found that the Division's plan for termination of parental rights followed by adoption to be "appropriate and acceptable," and defendant was advised to return to court on November 29, 2010. The court's order specified that defendant's failure to comply with court orders or failure to appear in court "may result in a default being entered . . . ."
On November 29, 2010, defendant stated she no longer wished to surrender her parental rights. The court, after considering the parties' positions, ordered the Division to file a guardianship complaint within sixty days. The court further ordered the Division to provide defendant with other services, but suspended defendant's visitation with Sarah until she completed sixty days of substance abuse treatment. The court informed defendant she would be placed in default if she did not fully comply with its order, and the order itself stated "[d]efault will be entered against [defendant] at the next court hearing if she is not fully compliant with services."
Earlier that month, the Division referred defendant for a substance evaluation with Preferred Children's Services; however, defendant missed three scheduled appointments with the agency and, as a result, the agency closed defendant's file.
On January 28, 2011, the Division filed a complaint seeking termination of defendant's parental rights with respect to Sarah. On February 4, 2011, the court dismissed the Title Nine action in view of the filing of the guardianship complaint. At a case management hearing the same day, which defendant attended with counsel, the Division informed the court that Preferred Children Services closed defendant's file; that defendant had not attended parenting and anger management courses at the Children's Home Society; and that defendant's case with the Division of Vocational Rehabilitation Services was closed because defendant failed to participate in substance abuse treatment.
The court explained on the record that where a Title Nine proceeding is followed by a guardianship proceeding under Title Thirty, the parties' compliance or non-compliance with services "should not need to [be] relitigated [.]" The court then stated that defendant had not complied with ordered services in the Title Nine proceeding; had been "forewarned" that the court would consider the entry of default if defendant did not comply with ordered services; that "compliance with services in obtaining rehabilitation to be able to reunify with her child was the central issue" in the earlier action; and that the parties were the same. Consequently, the court announced it would "enter default" against defendant because "we don't want to have to duplicate the efforts[.]"
Nonetheless, the court gave defendant another opportunity to comply with services, and ordered her to comply with substance abuse evaluation and treatment, parenting classes and anger management classes. The court also allowed defendant to resume weekly visitation with Sarah after she attended a substance abuse evaluation on February 9, 2011. The court, in the presence of defendant, stated the next court date would be March 4, 2011.
The guardianship also named Sarah's biological father, who had been identified earlier. The father later surrendered his parental rights to Sarah and he is not involved in this appeal.
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The court entered an order on February 4, 2011, memorializing its determinations. The order expressly stated that on the next case management date, "the court will decide whether to pro[ceed] with another case management conference or to schedule a default proof hearing or trial as appropriate." Further, the order provided that the failure to comply with the order or failure to appear "may result in a default" and "termination of parental rights."
Defendant failed to attend the substance abuse evaluation on February 9, 2011, and tested positive for cocaine and marijuana at a rescheduled evaluation. She was referred to an outpatient treatment program. Also, defendant attended one parenting class, but failed to appear thereafter. Defendant failed to attend anger management classes and did not appear for visitation with the child.
On March 4 2011, defendant failed to appear at the case management conference and the court held her and the biological father in default, once again. The court stated, in pertinent part:
the reason is for the non-compliance with the services and referrals that they were to comply with. The fact that they haven't appeared here, even if they showed up today they would still be in default, the fact that they are not in appearance, it's now quarter to 12 and the case was scheduled for nine o'clock, they were both present at the last court hearing to know that that's when it was scheduled, they're not here. It's going to be very difficult to try to schedule things, as the next thing we're going to do is if it's going to go to trial, we're going to set a mediation date, which their appearance would be crucial because we can't get a settlement and mediation even it it's not the whole case, even if it would be as to some of the issues, they're not there.The court, after consultation with counsel, then set the matter down for a proof hearing on April 26, 2011. The court ordered the Division to continue to offer services to defendant, and required counsel to seek to vacate the default by "formal motion."
At this state of the proceeding their appearance here is necessary so that things can be scheduled and coordinated . . . .
. . . .
[Defendant] just keeps on using drugs and not going to do the things that she's supposed to do and she is also in default if she's not in default already. The Court schedules her for a proof hearing as well. Both parents were on notice that the Court would be scheduling these things today and put it right in the order that it's either going to be a proof hearing or a trial.
On March 22, 2011, a clinician at Children's Home Society informed the Division that defendant had only attended the first parenting group class, and had not returned for a parenting group or individual counseling session. Also, she attended three out of nine parenting classes and only three counseling sessions since February with Children's Home Society.
On April 26, 2011, defendant did not appear, despite receiving notice of the date from her counsel, and no motion to vacate the default was filed. Counsel for defendant appeared, who conceded, "[d]efendant's in default, that will continue, we're not filing a motion either orally or on paper as of right now or in the near future to vacate that default." The Division thereafter offered into evidence the "court report" and an "affidavit of proof" comprised of thirty-two exhibits, including the reports of Gambone and Iofin.
A Division caseworker was the only witness at the hearing. She testified Sarah was doing well in her foster home, that "she's very active, she appears very happy," and that she "appears to be engaged with the entire foster family[.]" She also stated the foster family wished to adopt Sarah. She stated defendant's recent attendance at parenting classes was "minimal," and that defendant had not participated in drug treatment, citing her failure to attend treatment sessions at the Trenton Treatment Center, and her departure from Sunrise House after "a few days."
On cross-examination, the caseworker stated defendant's aunt was ruled out as a possible foster parent because "[t]here were some concerns regarding her home environment and her ability to take care of [Sarah]'s needs." She also conceded that defendant requested parenting services, and confirmed defendant and Sarah recently had "regular" visits. After the caseworker testified, defendant's attorney stated, "My client's in default so we wouldn't be able to . . . introduce any evidence into the record but nonetheless we have nothing, regardless."
On April 28, 2011, the judge entered judgment terminating defendant's parental rights to Sarah. In a sixteen-page opinion, the judge found that defendant failed to "successfully participate" in parenting classes, job training, and substance abuse programs, and found the Division's caseworker credible. He gave her testimony "significant weight."
With respect to prong one of N.J.S.A. 30:4C-15.1(a), the court cited defendant's failure to obtain housing and insurance for Sarah. The court also noted defendant's failure to provide appropriate medical care to Sarah, and her overall "lack of responsibility." The court discredited defendant's assertion that she stopped using marijuana, identifying several recent positive tests. The court determined that defendant "cannot take care of herself. She cannot take care of a child."
With respect to prong two, the court ruled "[defendant] has not completed any rehabilitative services provided to her. She does not want to change. She cannot provide a stable home for herself. She had demonstrated no progress in remediating her issues or finding stable housing. There is no time in the foreseeable future when that might change."
On the third prong, the court found that defendant was given referrals for every service she requested, and despite "extensive efforts at reunification," defendant was "just not willing to do them." In addition, the court found it was "extremely unlikely" that a shared custody arrangement with defendant's aunt would succeed because of defendant's past failure to cooperate with her. The court noted the child was too young to "age out in foster care," and found reunification was not a possibility.
With respect to the fourth prong, the court held that "[defendant]'s failure to abide by the services provided to her shows her lack of commitment to her daughter." He cited her "dishonesty, failure to provide medical care, and failure to attend so many visits[.]"
On August 18, 2011, almost four months after judgment had been entered, defendant moved to vacate the default judgment terminating her parental rights. The motion was supported by a terse certification signed by defense counsel. Counsel argued the court should vacate the judgment because defendant "has frequently expressed interest in several programs and should be given another opportunity to complete the ordered services." Counsel asserted defendant attended regular visits with Sarah, and that these visits demonstrated defendant "cares for and is attached to her daughter[.]"
The court denied the motion on September 30, 2011. The court found defendant failed to offer good cause to set aside the default, did not explain her prior noncompliance with services, or demonstrate she has a meritorious defense or proof that her neglect was excusable. This appeal followed.
II.
On appeal, defendant argues that the Division failed to prove each prong of N.J.S.A. 30:14C-15.1(a) by clear and convincing evidence and that the court erred by not vacating the default judgment. None of these arguments are persuasive.
We consider initially the challenge to the court's findings and conclusions with respect to N.J.S.A. 30:14C-15.1(a), and thereafter we consider defendant's argument pertaining to the default judgment.
A.
In an action to terminate parental rights, the Division has the burden to establish by clear and convincing evidence four elements:
(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 four factors are not independent of each other; rather, they are "interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999)), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (internal quotation marks omitted).
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). Accordingly, the "absence of physical abuse or neglect is not conclusive"; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. (internal quotation marks omitted). Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and [her] mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." (citing In re Guardianship of J.C., 12 9 N.J. 1, 18 (1982))).
Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and its proofs overlap with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services to further the goal of reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "'coordinated'" and must have a "'realistic potential'" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
The third prong also requires that the court consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Where a relative caregiver agrees to raise a child to adulthood, the court may award kinship legal guardianship to that relative pursuant to N.J.S.A. 3B:12A-6. N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003). However, this option is not appropriate where adoption is feasible and likely. Id. at 88 (citing N.J.S.A. 3B:12A-6(d)(3)); see also N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div.), certif. denied, 192 N.J. 293 (2007).
Under the last prong of the best interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. "If a child can be returned to the parental home without endangering [her] health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005); see K.L.F., supra, 129 N.J. at 44-45.
In meeting this prong, the Division ordinarily should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural parent and foster parent. J.C., supra, 129 N.J. at 19. "[T]ermination of parental rights likely will not do more harm than good" where a child has been exposed to continuing harm by the parent and, in contrast, "has bonded with foster parents who have provided a nurturing and safe home." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The Division "must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
Before addressing these issues, we outline the general legal principles that govern our review of judgments terminating parental rights.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (citing J.N.H., supra, 172 N.J. at 472). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
Based upon our review of the record in light of the applicable law, we conclude that the record supports the trial judge's conclusion that all four prongs of the statutory test were proven by clear and convincing evidence.
We address prongs one and two together. See D.M.H., supra, 161 N.J. at 379 (stating, regarding prongs one and two, "evidence that supports one informs and may support the other.") Under the first prong of the termination statute, the trial court must assess whether there is clear and convincing evidence of harm arising out of the parent-child relationship. N.J.S.A. 30:4C-15.1(a)(1); see K.H.O., supra, 161 N.J. at 348 ("Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship.").
The fact that there is no evidence that defendant physically abused Sarah does not preclude a prong one finding. See A.W., supra, 103 N.J. at 605 ("The absence of physical abuse or neglect is not conclusive[.]" (internal quotation and citation omitted)). It is sufficient to prove the risk or danger of harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." K.L.F., supra, 129 N.J. at 44.
The second prong 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." K.H.O., supra, 161 N.J. at 348. The court is not required to wait "until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. Under the second prong, a trial court determines whether it was "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.
In this case, despite her involvement with the Division, defendant has been unable to overcome the significant obstacles to her ability to parent, including her persistent homelessness, failure to address her emotional difficulties, failure to respond to Sarah's medical needs, and her drug abuse. Proof of defendant's on-going, significant, and treatment-resistant drug abuse alone demonstrates her inability to prevent harm to her child's physical or emotional health. See K.H.O., supra, 161 N.J. at 353 (stating that "indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse" may be probative of the second prong). Although "not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect," N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011), we perceive no error in the court's conclusion that defendant's chronic irresponsibility and drug usage endangered Sarah's physical and emotional health.
In sum, we discern ample support for the court's finding that prongs one and two were met. The evidence of defendant's failure to respond appropriately to Sarah's health needs, her persistent drug abuse, resistance to treatment, and unstable living arrangements, all supported the court's conclusion that Sarah's health and development were endangered and would continue to be endangered if placed in defendant's care.
Turning to prong three, defendant challenges the court's finding that the Division made reasonable efforts to provide services to help defendant correct the circumstances that led to Sarah's placement outside the home. We disagree.
The third prong of the best interests standard, as we have noted, requires the Division to make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "'coordinated'" and must have a "'realistic potential'" to succeed. J.Y., supra, 352 N.J. Super. at 267 n.10 (quoting N.J.A.C. 10:133-1.3).
A court must consider whether a parent actively participated in the reunification effort. See D.M.H., supra, 161 N.J. at 390. The reasonableness of the Division's efforts "is not measured by their success." Id. at 393. Ultimately, "[t]he failure or lack of success of the [Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007)).
We reject the argument that the Division failed to make reasonable efforts in the case before us. The record is replete with instances of the services provided, which defendant failed to attend or fully complete. Her claim that the Division failed to "work with [defendant's] maternal aunt to keep [Sarah] in the relative's home despite minor issues with clutter and cleanliness" is utterly unpersuasive and unsupported in the record. Indeed, we note further that defendant's aunt asked the Division to remove Sarah from her home.
Lastly, we shall not disturb the court's finding, under prong four, that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. It is, concededly, a "painfully difficult" decision that is vested in the trial judge who is most familiar with the case. Ibid. (quoting J.C., supra, 129 N.J. at 25). In balancing harms, the court must be mindful of New Jersey's strong public policy interest in permanency. Id. at 357 ("In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor.").
Under the last prong of the best interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 607-09. The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45.
Defendant challenges the trial judge's finding on prong four and claims that the Division "never conducted a bonding evaluation" with respect to her or the foster parent. Under the circumstances of this case, we reject the argument that the Division was obligated to conduct a bonding evaluation. Defendant never spent any significant time with Sarah, and the record below is replete with un-rebutted testimony that Sarah is thriving in her foster home. But for Sarah's short stay in her great aunt's home, Sarah has continuously lived with her foster parents who have been her primary caregivers for almost two years. They have demonstrated their ability to provide for Sarah's special medical needs, offer security and stability, as well as displayed their commitment and love for this special needs child. The evidence reflects the child's strong attachment to her foster parents. K.H.O., supra, 161 N.J. at 363.
Moreover, except for approximately one week shortly following Sarah's birth, defendant has been inconsistent in visiting with the child and has never provided for her care. Even now, defendant offers no plan to provide Sarah with a safe, stable permanent home. In balancing the two relationships, the trial judge properly concluded the severance of parental ties between defendant and Sarah would not be more harmful than permanent disruption of her relationship with her foster parents. Id. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with natural parents is not as strong," termination may be appropriate. K.H.O., supra, 161 N.J. at 363. A court must balance the two relationships and the question is whether the child will "suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents."
Ideally, expert testimony would have addressed Sarah's bond with her foster family, J.C., supra, 129 N.J. at 19, but the absence of such testimony does not foreclose a conclusion that termination was in the child's best interests. Here, of course, Sarah's foster parents are interested in adoption. Moreover, Sarah's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 36 7 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion required by the fourth prong. D.M.H., supra, 161 N.J. at 386.
Following our review of the record, we conclude that there was adequate, substantial and credible evidence to support the judge's findings under each prong of the best interests standard, and that the judge correctly determined that the Division had established by clear and convincing evidence each of the four prongs.
B.
Finally, we consider defendant's argument that the court erred in refusing to vacate the default judgment on a motion filed four months after the proof hearing and over six months after defendant had last appeared in court. Although we have some concern with the procedural posture of this case, we are satisfied defendant had sufficient opportunity to present a defense, and the evidence in favor of the guardianship petition overwhelmingly supported the termination of defendant's parental rights. See, e.g., M.M., supra, 189 N.J. at 279 (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 now three-year old Sarah, who has not been in defendant's custody since shortly after her birth, 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).
We appreciate that a trial court may not enter a default in a case such as that before us simply because a defendant has repeatedly ignored a court order or occasionally failed to appear in court when ordered to do so. See N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 508-09 (App. Div. 2009) (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 N.J. Div. of Youth & Family Services v. T.J.B., 338 N.J. Super. 425, 433 (App. Div. 2001)), rev'd on other grounds, 205 N.J. 17 (2011).
Also, 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. N.J. 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. M.G., supra, 427 N.J. Super. at 170. Nonetheless, defendant provided no explanation for her failure to maintain contact with her attorney, her prior nonappearance, or her flagrant disregard of court orders.
Beyond this, however, we are not convinced the judge's ruling resulted in a fundamentally unfair procedure under the circumstances of this case. Here, even though a default had been entered, defense counsel participated in the trial, was permitted extensive cross-examination of the Division caseworker, and had the opportunity to make a closing statement. Defense counsel conceded at the proof hearing that defendant had no evidence to offer "regardless" of the default.
The remainder of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION