NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. G.F IN THE MATTER OF THE GUARDIANSHIP OF J.F

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0661-07T40661-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

G.F.,

Defendant-Appellant,

________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

J.F.,

A Minor.

_________________________________________________

 

Argued September 17, 2008 - Decided

Before Judges Stern, A. A. Rodr guez and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Essex County,

FG-07-151-06.

Justin J. Walker, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Walker, on the brief).

George Macchia, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel, Mr. Macchia, Deputy Attorney General, on the brief).

Melissa R. Vance, Assistant Deputy Public

Defender argued the cause for minor child

(Yvonne Smith Segars, Public Defender,

Law Guardian, attorney for minor child

respondent; Ms. Vance, on the brief).

PER CURIAM

G.F., the mother of J.F. (fictitiously Jacques), a son born on October 14, 2004, appeals from a default judgment terminating her parental rights and from an order entered by a judge of the Family Part denying her motion to vacate the default judgment. On appeal, the mother claims that, following the entry of default against her, she did not receive timely notice of the proof hearing in the matter. She argues as well that at the hearing, the State failed to present clear and convincing evidence that would satisfy the four-part test initially articulated in N.J. Div. of Youth & Family Servs v. A.W., 103 N.J. 591, 604-11 (1986) and codified in N.J.S.A. 30:4C-15.1(a). The Division of Youth and Family Services (DYFS) and the Law Guardian, on the other hand, argue that the evidence presented at the proof hearing was sufficient to support the judge's termination decision and that the judge did not abuse his discretion in refusing to vacate the default judgment, particularly, because the mother offered no evidence that would suggest that she could prevail on the merits.

I.

The facts of the matter follow. Although unmarried and living apart, Jacques' mother and father have had three children together: a son born on November 19, 1996, a daughter born on October 7, 1999 and Jacques, who as we have stated previously, was born on October 14, 2004. The two older children are in the legal custody of their maternal aunt, who has declined to take custody of Jacques. Both the mother and the father were born in Haiti. Neither speaks English, and examples of difficulties in communicating with them appear throughout the record. A Creole interpreter has been present for most court appearances.

The mother has had a long history of mental problems. At the age of fifteen, while living in Haiti, she was hit by a car. Head injuries resulted. When the mother was nineteen, she commenced experiencing headaches and hearing voices. She is currently diagnosed as suffering from schizophrenia and depression, and she is also HIV positive. The mother has been psychiatrically hospitalized on numerous occasions, most recently, in 2001. She remains in active treatment and, according to the documents in the record, has been compliant in taking the psychotropic and other drugs that alleviate her condition. When properly medicated, the mother no longer hears voices. Since April 2005, the mother has lived in a supervised boarding home for the elderly and mentally challenged that does not accept children under the age of eighteen. The record does not reflect any effort on the part of DYFS to find a residential facility where the mother could live with Jacques.

Throughout these proceedings, the mother has expressed a desire to be reunified with Jacques and, according to the caseworker who testified at the proof hearing and the documents contained in the record, she has regularly attended bi-weekly visitation. In a report contained in the appendix to the brief submitted on behalf of the mother but not entered into evidence by DYFS at the proof hearing conducted in this matter, psychologist Minerva Gabriel, a former expert retained by DYFS, found bonding to exist between the mother and Jacques, although she found a stronger bond to have been formed between the child and his natural father. Dr. Gabriel stated in her report:

It is apparent that [Jacques] has made a child parental attachment with . . . his natural parents although he does not live with them. He has bonded with them. They respond to [Jacques] as normal parents do.

* * *

Throughout this lengthy psychological bonding evaluation it was evident that both [parents] love minor [Jacques] very much and responded in an appropriate manner to him.

Dr. Gabriel did not note any inappropriate conduct on the mother's part when caring for Jacques.

Despite her continuing psychiatric treatment and, it would appear, some State supervision, the mother received no prenatal care prior to the birth of Jacques. The child was found to be HIV positive at birth, but was successfully treated with retroviral drugs. He also has sickle cell trait and reactive airway disease.

Following Jacques' birth, the mother executed a fifteen-day consent to his placement in foster care. On October 21, 2004, DYFS sought an order to show cause why Jacques should not be placed in its custody, supported by a verified complaint. An order to show cause and to appoint a law guardian with temporary custody was issued on the same day. Following his release from the hospital, Jacques was placed in specialized care as the result of his medically fragile condition. Thereafter, he was transferred to regular foster care, and he spent time in a number of foster homes before his current placement, which occurred in September or October, 2005. At the time of the proof hearing, Jacques had resided with his current foster mother for approximately one and one-half years.

The foster mother is the divorced mother of two children. She has additionally adopted three children and is the foster mother of at least three more. She regards foster motherhood as her livelihood. Apparently, she is well-regarded by DYFS. Following a bonding evaluation, conducted on March 9, 2006, Dr. Gabriel found that the foster mother and Jacques "appeared to be bonded together."

An early intervention services evaluation conducted on July 29, 2006, when Jacques had been in his present foster mother's care for nine months, disclosed delays in "cognition, communication and social emotional." On September 29, 2006, while in the foster mother's care, Jacques was admitted to the hospital with a toxic lead level of 55. He remained in the hospital until October 19, 2006, and upon discharge, was placed by DYFS with Angel's Wings in Trenton after an unsuccessful search for a resource home. At some point, Jacques was returned to his prior placement. It is unclear whether Jacques' developmental delays were related to his exposure to lead in that home. The hospital discharge summary indicates that, although Jacques' prior foster home had been cleared of lead by October 18, he was not immediately returned there because of a "foster home suspension, unrelated to [Jacques'] case." No inquiry into the cause of that suspension or the suitability of Jacques' continued placement with the foster mother was made at the proof hearing.

II.

The record reflects that the mother was present on the return date of the order to show cause on November 15, 2004 and at the next four compliance review hearings, conducted in January, February, April and July, 2005. The case was then transferred to another judge, at which time the mother's attendance became less regular. She was not present at a hearing conducted on November 30, 2005, at which time a permanency order was entered stating as its goal foster home adoption.

On February 9, 2006, DYFS sought an order to show cause, supported by a verified complaint, seeking to terminate the parental rights of Jacques' mother and father. The mother appeared with counsel on the return date of that order to show cause, March 22, 2006. At that time, the parents' inability to understand English was discussed in the context of notice to them of appointments for psychological and bonding evaluations. The judge observed:

The difficulty is if you send them [the parents] a letter in English, they're not going to understand it. If you call them on the phone and try and speak English to them, they're not going to understand it. And then someone's going to come back and say they're skipping evaluations. But if they don't understand what's required of them, where they have to go, what they have to do, it's not fair to hold it against them. So that's the difficulty.

When ordering DYFS to provide proper notice to the parents of their appointments, the judge stated further: "Just make a note that the notice to them has to be in Creole."

The mother was not present at the next case management hearing, conducted on June 28, 2006. However, the parents attended the evaluations scheduled by DYFS with Dr. Gabriel shortly before that date. At the June hearing, the judge returned to the subject of the necessity of communicating with Jacques' parents in Creole, recalling that "we talked about getting the notices done in Creole so that we're sure that they'll understand them, in fairness to them." No compliance with the judge's directive appears in the record.

A further hearing took place on September 27, 2006, at which time both parents were present, but late. They were likewise present at a hearing conducted on December 6, 2006, but may again have been late. At the December hearing, it was disclosed that neither parent had appeared for defense evaluations, scheduled prior to the September hearing and rescheduled prior to the December hearing. However, it was determined that notice to the mother of the latter appointment was sent to the wrong address. It is unclear whether she received notice of the earlier appointment. A notification to the mother of a third appointment was returned to her counsel as undeliverable. It thus appears likely that the mother has not received a meaningful opportunity to obtain a defense psychological and bonding evaluation.

Because the first psychologist retained by DYFS had moved to Florida after his evaluations of the parents and the second psychologist, Dr. Gabriel, had refused to continue with the assignment, the court authorized DYFS to undertake a third set of psychological and bonding evaluations and additionally permitted psychiatric examinations. Psychological and bonding evaluations of the mother and Jacques were subsequently conducted by Dr. Leslie J. Williams, a psychologist, in January 2007. However, DYFS states in its brief on appeal that "although Dr. Williams issued a report, it was not available for the proof hearing on April 3, 2007." The report is not included in the appendix to the brief submitted on behalf of DYFS, and it is unclear whether it was served upon defense counsel.

The parents were defaulted following their failure to attend a pre-trial conference on March 21, 2007. On that date, counsel provided written notice to the mother, in English only, of the entry of default and the scheduling of a proof hearing on April 3, 2007. The parents did not appear at the proof hearing, and at 9:23 a.m., the hearing commenced without any inquiry as to the adequacy of notice to the parents or as to their whereabouts. Cursory testimony at the hearing, set forth in five transcribed pages, was provided by DYFS caseworker Rosaline Thompson, who was assigned to the matter in January 2006. No expert testimony was offered. The only evidence with respect to Jacques' relationship with his foster mother was provided by the caseworker, who stated:

He's developing well. He -- well, he's bonded with the foster parent. She is committed to adopting him. She loves [Jacques] very much and she's -- she's just very anxious to go through with the adoption.

The caseworker confirmed that DYFS' plan for Jacques was foster home adoption. She concluded that this was the best plan for Jacques "because he's in a structured, stable environment with a positive . . . caretaker, and he can receive permanency in the home."

At the conclusion of the hearing, the judge delivered an oral opinion in which he concluded that the four prongs of the best interest test set forth in N.J.S.A. 30:4C-15.1(a) had been established by DYFS by clear and convincing evidence. The judge found that Jacques had suffered harm as the result of his mother's psychiatric condition, and that the harm endangered his health and development. He likewise found that the mother was unable to provide a safe and stable home for Jacques because he could not live with her in her present location. With respect to services, the judge stated "there was psychological testing, there was counseling, there was visitation, there was attempts at psychiatric and psychological treatment, all of which was designed to try and stabilize [the mother] so that she would be in a position to take back her child." However, he found that it had not worked, stating, without support in the record, that part of the reason for the result was the mother's "sporadic attendance." He stated: "Sometimes she would go, sometimes she wouldn't go. But while the Division made the effort, unfortunately, it didn't work." Discussing the fourth prong, requiring that termination not do more harm than good, the judge stated:

Here, termination of parental rights allows [Jacques] to continue in a safe and stable environment that he is [in] with the foster parent, who, as Ms. Thompson characterized it, he's bonded with the foster family, he is clearly loved, he's in a structured and stable environment, all of which would not be available to him were he with his mother.

Finding the statutory requirements to have been met, the judge terminated the mother's and father's parental rights to their son, Jacques, and granted guardianship over him to DYFS.

In a motion filed on June 19, 2007, counsel for the mother moved to vacate default and the order of guardianship entered in the case. Counsel supported the motion with a certification, in which she stated that "[o]n or about May 21, 2007, [the mother] appeared in Court with a copy of the letter (Exhibit B) indicating that she would have been present on April 3, 2007, however, she had not received the letter until long after the court date and was unaware of the date until it was too late."

The motion was argued on July 24, 2007 in the presence of both parents, but with no interpreter. At the hearing, the mother's counsel stated that the mother had come to court on the date that the default was entered against her, but the proceedings had concluded, and she therefore did not make her presence known. Counsel also stated that she had been contacted by telephone on two occasions by the mother prior to the May 21 date, but that at the time she had been unable to identify the caller or understand the message given. Counsel could not provide an explanation for the mother's late receipt of notice of the proof hearing. The judge therefore stated that "[t]here is no basis for me not to believe she didn't get it." He then denied the motion without further elaboration as to the reasons for his denial. The fact that, contrary to the court's directives, notice to the mother was provided only in English was not addressed. Although the mother was present and available to answer any questions by the judge regarding notice, no testimony was taken, and in the circumstances, it could not have been taken because of the absence of a Creole interpreter.

III.

Our review of the record satisfies us that, in the circumstances presented, the Family Part judge misapplied his discretion in declining to vacate the default judgment entered against the mother in this matter. In doing so, we emphasize the fundamental, constitutionally protected nature of a mother's right to raise her child without the interference of the State. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982); see also A.W., supra, 103 N.J. at 599-600. While that right is not inviolable, if the parent-child relationship is to be severed, that severance must occur under circumstances that accord with the Constitution's guarantee of due process, including the right to notice and to be heard. Santosky, supra, 455 U.S. at 753, 102 S. Ct. at 1394, 71 L. Ed. 2d at 606 (recognizing the applicability of principles of due process to termination proceedings), Div. of Youth & Family Servs v. M.Y.J.P., 360 N.J. Super. 426, 464-67 (App. Div.) ("It is well established as a matter of due process principle that procedural requirements are more demanding in parental termination cases than in ordinary civil actions" and those requirements clearly include adequate notice and a fair opportunity to be heard), certif. denied, 177 N.J. 575 (2003).

Here, there is substantial doubt that the mother received effective notice of the proof hearing conducted in this case and that the lack of notice caused her not to attend. Even if the mother did receive her counsel's letter in a timely fashion, contrary to the uncontradicted representations of her counsel, the letter was not written in Creole, as the judge had previously indicated that fairness dictated and he thus required. Cf. Rivera v. Bd. of Review, 127 N.J. 578, 588 (1992) (noting that English-only notices sent to migrant farm workers in Puerto Rico are not reasonably calculated to provide those persons with adequate notice). Moreover, this is not a case in which the mother demonstrated a consistent pattern of failing to attend court hearings and a concomitant disinterest in her son. In fact, the mother attended eight out of eleven hearings prior to entry of default. Her interest in obtaining custody of Jacques was consistently expressed, she regularly attended bi-weekly visitation with him, and she developed a sufficient bond with her son, despite their separation, to cause Dr. Gabriel to conclude that a child-parent bond was present between the two. Although the mother was defaulted for failing to attend a pre-trial hearing conducted on March 21, 2007, after that date, she unsuccessfully sought to contact her attorney by telephone on two occasions and, on May 21, 2007, traveled to court. In these circumstances, we find that relief from judgment should have been granted pursuant to Rule 4:50-1(a) or (f). Marder v. Realty Construction Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964) (holding "the opening of default judgments should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.").

In its brief, DYFS argues that relief from judgment should not be granted in this case because the mother cannot demonstrate a meritorious defense to the termination action. Although that ultimately may be true (we express no opinion on this issue), we are troubled by the quality of the proofs providing the basis for the judge's termination decision. In this regard, we question the absence of any exploration of Jacques' developmental delays, which were not mentioned at all at the proof hearing. Indeed, at that hearing the testifying caseworker stated that Jacques was "developing well," and that he had been found not to be in need of early intervention services. Although that was true when he was evaluated while in the care of an earlier foster mother on July 12, 2005, a subsequent evaluation, conducted on July 29, 2006 when Jacques had been in his present foster mother's care for nine months, demonstrated the developmental delays that we have described and a need for services. Moreover, the caseworker did not mention, and the judge did not explore, Jacques' toxic lead exposure, his lengthy hospitalization, any relationship of the exposure to Jacques' developmental delays, and the fact that the condition occurred as a result of exposures in the home of the present foster mother -- a person who provides foster care as a livelihood. Likewise, there was no discussion of the foster mother's suspension for causes unrelated to Jacques and the relationship of that suspension to the foster mother's fitness as an adoptive parent. As a final matter, we note in connection with the fourth prong of the best interests test that the judge relied solely on the lay testimony of the caseworker when he found the existence of a bond between Jacques and the foster mother, contrary to the recognition, in N.J. Div. of Youth & Family Servs v. M.M., 189 N.J. 261, 281 (2007), that the opinion of an expert is required on this essential issue as well as the issue of the child's relationship with his natural mother, as to which no evidence was introduced for comparison purposes.

These evidentiary deficiencies, together with the judge's unsupported conclusion that the mother had failed to cooperate with psychiatric services offered to her, leads us to question whether the clear and convincing evidence required to support an order terminating parental rights was in fact adduced at the proof hearing. Most particularly, we question whether the record developed at the proof hearing established a basis for the judge's conclusion, reached after his comparison of Jacques' present foster care and the care that his mother could provide and his determination that the present placement provided Jacques with the permanence he needed, that terminating the mother's parental rights at this time would not do more harm than good.

As a consequence of the foregoing, we vacate the default judgment entered in this matter, and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

The father has not appealed.

Following a dispute over Dr. Gabriel's recommendation that the maternal aunt be interviewed, Dr. Gabriel removed herself from the case on December 3, 2006 without rendering a final opinion.

DYFS records produced for the proof hearing appear to be incomplete, and it is not possible to determine from them where or when Jacques was placed.

This evaluation, likewise, was not entered into evidence by DYFS at the proof hearing.

Although the judge stated on the record that he was not going to default the parents, he apparently did so. As a consequence, DYFS circulated a proof package prior to the next hearing.

Since the mother was known to be in a supervised residential facility, additional notice to the supervisor might have provided some assurance that notice was adequate.

DYFS was required to demonstrate

(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.

The record reflects sporadic attendance only in connection with the three missed court appearances. The caseworker confirmed the mother's compliance with her medical regimen and her consistent appearance for visitation. The record does not reflect that other services were proffered.

The parents elected to proceed, nonetheless.

(continued)

(continued)

19

A-0661-07T4

RECORD IMPOUNDED

October 31, 2008