On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FG-11-41-98.
Before Judges Kestin, Eichen and Fall.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
M.Y.J.P. and J.R.A. are, respectively, the biological mother and father of S.J.A. They have appealed separately from a judgment terminating the parental rights of each and granting guardianship of S.J.A. to the Division of Youth and Family Services (DYFS or the Division). The appeals have been consolidated. The trial court's decisional rationale was expressed by Judge Council orally on February 1, 2002 and in a detailed written opinion filed on that date.
The child's mother, M.Y.J.P., is a Haitian citizen residing in Haiti. The father, J.R.A., is a Haitian citizen who, when the operative facts occurred and at the time of trial, resided in New Jersey. M.Y.J.P. argues the trial court erred in rejecting her motion to dismiss the complaint as to her for lack of in personam jurisdiction, in violating her procedural due process rights, and in denying her a fair trial. She also argues that the trial court erred in admitting into evidence the testimony of DYFS's bonding expert. M.Y.J.P. and J.R.A. both argue that the trial court erred in terminating their parental rights because the Division did not prove each of the four required elements of N.J.S.A. 30:4C-15.1a; see also Division of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), as to each of them.
When the child, S.J.A., was born on August 5, 1992, his mother, M.Y.J.P., was twenty years of age and his father, J.R.A. was twenty-eight. The parents had begun dating in 1990, when M.Y.J.P. was a student at a school in Port-au-Prince, in which J.R.A. was employed as a teacher. In November 1991, M.Y.J.P. became pregnant and returned to her father's home in the province of L'Acul du Nord. J.R.A. remained in Port-au-Prince, where he married W.A. M.Y.J.P. testified during a de bene esse deposition that her father and siblings assisted her in the care of S.J.A., and thus, despite a United States embargo related to the civil unrest in Haiti at the time, the child was never without food and clothing. J.R.A. did not visit or maintain any contact with S.J.A. while the child was in L'Acul du Nord.
In May 1994, at J.R.A.'s request, M.Y.J.P. and S.J.A. returned to Port-au-Prince where they resided with M.Y.J.P.'s aunt. M.Y.J.P. testified that, at the time, conditions in Port- au-Prince were dangerous and violent; that she was often afraid; and that she had problems obtaining sufficient food for S.J.A. Around that time, J.R.A. asked M.Y.J.P. whether she would allow S.J.A. to go to the United States with him and S.J.A.'s half- brother J.R.A., Jr. M.Y.J.P., who by then had learned of J.R.A.'s marriage, agreed, but insisted that J.R.A. send for her as soon as possible, which he said he would do. M.Y.J.P. testified that she would not have allowed S.J.A. to leave Haiti if she had known that J.R.A. would not send for her.
The child arrived in the United States in July 1994 with his father, J.R.A., accompanied by the father's wife, W.A., and J.R.A.'s other child, J.R.A., Jr., who was about four years older than S.J.A. Their entry was sponsored by the Lutheran Ministries Haitian Refugee Program (Lutheran Ministries), and they settled in New Jersey. J.R.A. did not send for M.Y.J.P.; and W.A. left J.R.A. shortly after their arrival, leaving J.R.A. as the primary caretaker of the children.
DYFS first became involved with the family on October 20, 1994, when it received a referral from Lutheran Ministries that J.R.A. had left the children home without adult supervision. Lutheran Ministries assisted J.R.A. in arranging for child care. Thereafter, on November 16, 1994, DYFS received a second referral, from the principal at J.R.A., Jr.'s school, reporting that the child had a red and swollen left ear. DYFS sent J.R.A., Jr., to a hospital for examination. The examination disclosed that J.R.A., Jr. had old scars on his chest, back, and arms. J.R.A. admitted he had used corporal punishment, and refused to stop doing so because he maintained that such punishment was acceptable in Haiti. A DYFS case manager noted at the time that "[w]hen the children are in [J.R.A.'s] presence, neither child smiles or talks and they both display fear of him and their affects are flat."
At that point, DYFS recommended placing J.R.A., Jr. in a foster home, to which J.R.A. agreed, stating, according to DYFS personnel, that if the Division did not accept J.R.A., Jr., who had been having behavioral problems at home and at school, he would abandon the child. J.R.A. also insisted that DYFS place the children in the same foster home because he said they had a close relationship and separation would have an adverse effect on S.J.A. J.R.A. then signed a voluntary placement agreement, written in English, and the children were placed in foster care. J.R.A. testified to his understanding that he could retake custody of S.J.A. "[a]nytime".
This matter commenced on June 4, 1998, with DYFS's complaint for guardianship of S.J.A., then almost six years of age, and his ten-year-old half-sibling, J.R.A., Jr. *fn1 On June 18, 1998, DYFS mailed a summons and copy of the complaint, written in English, to M.Y.J.P. in Haiti. M.Y.J.P. is fluent only in Creole. In the accompanying cover letter, DYFS advised M.Y.J.P. that if she could not afford an attorney one would be appointed at no cost, cautioned her that if she did not appear in court her parental rights would be terminated, and informed her that a hearing would be held on September 24, 1998.
By letter handwritten in English, dated June 26, 1998, M.Y.J.P. responded *fn2 that she had read the documents "carefully" and appreciated the fact that DYFS was "interested in [S.J.A.'s] parental rights and his future too." She requested that an attorney be appointed on her behalf and asked for a photograph of her son.
On September 24, 1998, the trial court conducted a case management conference and directed DYFS to provide M.Y.J.P. with notice of the next court date. On October 5, 1998, DYFS mailed a second summons and complaint written in English to M.Y.J.P. The accompanying cover letter stated that a hearing had been set for October 22, 1998. M.Y.J.P. responded by letter dated October 19, 1998, once again asking DYFS to appoint an attorney for her because she was a "moneyless person." She indicated that she had not received the October 5 letter until October 14, and that she had read the documents carefully as I am told.
* * * I appreciate a lot for the decision you want to make to determinate my child parental rights. So I must tell you sincerely I feel a little bit sad because I am not able to attend the hearing. And I know a hearing is never held by one part or one person . . . [so] could you help me in order to attend the hearing. [sic]
In orders entered on October 22, 1998, and December 9, 1998, the trial court appointed counsel for the respective parents and designated the guardian ad litem. On November 13, 1998, the court, following on another case management conference, ordered, inter alia, psychological and bonding evaluations of J.R.A., the two children, and the foster parents of the children at DYFS's instance. The order also provided for the retention of experts to perform evaluations on behalf of "the defendant," if requested. All evaluations were to be completed by January 1, 1999.
In January 1999, counsel for M.Y.J.P. raised the issue of personal jurisdiction. By order entered on January 28, 1999, the court directed DYFS to pay for a translator to assist defense counsel in communicating with M.Y.J.P. and directed DYFS to seek assistance from the American Embassy in Haiti in communicating with M.Y.J.P. The court reserved decision on the issue of jurisdiction.
After another case management conference, the court, on March 30, 1999, ordered that the petition regarding J.R.A., Jr. be accelerated while consideration of the jurisdictional argument in S.J.A.'s case pended. In June 1999, M.Y.J.P. filed a motion to dismiss the complaint as to her for lack of jurisdiction over the person.
On August 5 and 11, 1999, the court tried the guardianship petition regarding J.R.A., Jr. The father, J.R.A., who had been incarcerated in the Mercer County Correctional Facility, appeared by writ on August 5, but did not appear on August 11, 1999, after he had been released. At the conclusion of the trial, the court terminated J.R.A.'s and I.C.'s *fn3 parental rights to J.R.A., Jr., and a judgment of guardianship was entered on August 25, 1999. No appeal from that judgment was filed.
In a letter dated June 22, 2000, the trial court judge sent counsel for M.Y.J.P. and the Division a written decision denying M.Y.J.P.'s motion to dismiss the guardianship complaint for lack of in personam jurisdiction to the extent it sought termination of her parental rights as to S.J.A. The Court determined that New Jersey had a parens patriae interest in the best interests of the child. This determination was based on findings that the child, born in Haiti on August 5, 1992, had come to the United States with M.Y.J.P.'s permission and in the care and custody of J.R.A., then accompanied by his wife, W.A.; that, in 1994, J.R.A. placed the child and his half-sibling into foster care in this State; and that J.R.A. was incarcerated in 1994 "and has had little or no contact with either child during the past six years." The court found further that M.Y.J.P. has not seen her child or had any contact with him since he left Haiti. She has never visited the United States and the child has never visited Haiti. She speaks very little English, and the child does not speak Creole. More important, M.Y.J.P. has no plans for the child's future, and does not wish to have the child returned to Haiti.
The court also determined that DYFS had given M.Y.J.P. sufficient notice of the guardianship complaint and that M.Y.J.P. had sufficient "minimum contacts" with the State of New Jersey----namely, her receipt of services by DYFS in caring for S.J.A.----so as not to offend "traditional notions of fair play and substantial justice."
At counsel's request, the court delayed issuance of an order to allow counsel time to discuss with M.Y.J.P. the filing of an interlocutory appeal. The court ultimately entered an order on September 12, 2000.
On October 2, 2000, M.Y.J.P. filed a motion for leave to appeal, for summary disposition, and for a stay. We denied the motion. Thereafter, on November 22, 2000, M.Y.J.P. filed a notice of motion with the New Jersey Supreme Court for leave to appeal and for a stay pending final disposition. The Court denied that application, with two justices dissenting.
In ensuing case management conferences, the trial court mandated bonding evaluations of M.Y.J.P., S.J.A., and the foster parent, and ordered defense counsel to "attempt to arrange for M.Y.J.P. to travel to New Jersey for the purpose of trial[.]" The court recognized, however, that M.Y.J.P. might be unable to obtain a visa to enter the United States, and therefore also ordered the parties to "prepare to proceed with her testimony by phone."
On March 13, 2001, ruling on a short notice motion filed on behalf of M.Y.J.P., the court entered an order establishing trial procedures. The order provided, inter alia, that M.Y.J.P. "shall appear at trial by telephone." The arrangements were to be made by the Administrative Office of the Courts. The order also provided that, if telephone participation were not possible alternative procedures shall be adopted before the trial commences to satisfy minimal due process standards; and
Upon notice by counsel to the Court, [M.Y.J.P.] may request a brief adjournment of the trial at the end of each witness's testimony (or sooner, if necessary to raise or meet an objection) to confer with her counsel privately; and All witnesses shall be instructed that [M.Y.J.P.] is participating at trial by telephone and with the aid of a translator and that during testimony the witness shall be cognizant of and cooperate with the translator[.]
The order concluded with the following provision, sought by M.Y.J.P. and unobjected to by DYFS: No testimony or other proofs adverse to [M.Y.J.P.] may be proffered at trial by any party regarding [M.Y.J.P.]'s fitness as a parent and her relationship to her son.
In advance of a March 30, 2001 case management conference, the Mercer County trial court administrator advised the judge in a memorandum that he had not been successful in obtaining a temporary visa for M.Y.J.P. to allow her to be present at trial, and that Haiti lacked the telephonic or technical capabilities to enable M.Y.J.P. to participate in the trial by telephone. Accordingly, the court acknowledged that further, specially tailored procedural safeguards needed to be formulated for the trial to proceed in the likely absence of M.Y.J.P.
As a result, on May 30, 2001, DYFS filed a motion seeking to set a trial date, to proceed in the absence of M.Y.J.P., and to implement alternative procedural safeguards to address M.Y.J.P.'s inability to participate personally in the trial. In response, on May 31, 2001, M.Y.J.P. filed a motion, on short notice, for dismissal of the guardianship action "because of the impossibility of providing trial procedures that satisfy procedural due process under the United States and New Jersey Constitutions," or, in the alternative, for implementation of long-term foster care for S.J.A.
After oral argument on the motion on July 13, 2001, the judge found that "the welfare of the child outweighs [M.Y.J.P.'s] interest . . . [in] physically being present for trial" and that the court could proceed in M.Y.J.P.'s absence "provided that we have procedural safeguards in place." By order entered on July 16, 2001, the court set forth the following trial procedures:
1) The Division shall present its case-in- chief.
2) Defendants [M.Y.J.P. and J.R.A.] shall be permitted to cross-examine the Division's witnesses.
3) A transcript of (1) and (2) shall be prepared.
4) The transcript shall be translated from English to Creole. *fn4
5) A recess shall be had and [M.Y.J.P.'s] counsel shall have the opportunity to review the transcript with their client.
6) Counsel for [M.Y.J.P.] shall be permitted to call back the Division's witness(es) for cross-examination of issue(s) that are raised in consultation with [M.Y.J.P.].
7) [J.R.A.] (Birth Father) shall be permitted to testify.
8) [M.Y.J.P.] shall be permitted to testify through one of the following methods: a) Defense counsel shall be permitted to arrange a telephone deposition of their client; or b) Defense Counsel shall be permitted to retain counsel in Haiti to conduct a deposition of [M.Y.J.P.]; or c) Defense Counsel shall be permitted to travel to Haiti to conduct a video deposition of [M.Y.J.P.]. Counsel for M.Y.J.P. ultimately arranged for her video-taped de bene esse deposition.
Shortly before the scheduled date of trial, M.Y.J.P. moved for an order excluding the testimony of the Division's bonding expert, Wendy Matthews, Ph.D., on the grounds that exclusion was necessary "to create a level playing field[;]" that Dr. Matthews had not evaluated the bond between M.Y.J.P. and S.J.A., and that Dr. Matthews lacked any factual predicate upon which to opine relative to the bonding, vel non, between M.Y.J.P. and S.J.A. The trial court denied that motion on August 6, 2001.
Two days of trial were held on August 6 and 7. The proceedings were then recessed so that the Creole version of the testimony could be sent to M.Y.J.P., and to allow for M.Y.J.P.'s video de bene esse testimony, which was conducted on August 30, 2001. The trial resumed on September 10, 11, and 12, 2001. Closing arguments were heard on December 3, 2001. For reasons summarized orally on February 1, 2002 and stated comprehensively in a written decision of the same date which embodied extensive findings of fact and conclusions of law, the court terminated the parental rights of M.Y.J.P. and ...