On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-108-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Gilroy.
Defendant M.G. appeals from an order entered on August 16, 2007 denying his motion to vacate a default judgment terminating his parental rights to his biological child, A.R.G. The child's mother, J.G., entered an identified surrender of the child on April 18, 2007. The identified surrender was to the child's current foster parent, who intends to adopt the child.
A.R.G. was born on March 28, 2005, drug addicted and HIV positive. At the time of the child's birth, defendant was incarcerated on drug charges.
On April 30, 2005, when the child was released from the hospital, she was placed in the legal and physical custody of the Division of Youth and Family Services (DYFS). The infant remained in St. Clare's Home for Children, a facility for medically fragile infants, for the first year of her life. On March 13, 2006, the child was placed in the home of her foster parent, to whom the mother surrendered her parental rights. During his initial interview by the DYFS caseworker in May 2005, defendant indicated that he had a history of heroin and cocaine abuse, he did not have safe, stable or appropriate housing for the child, he did not have a job because he had recently left his employment "under the books" and he had not been receiving medical treatment for his HIV-positive condition since he was released from prison.
After contacting DYFS on May 31, 2005, defendant attended a scheduled drug abuse evaluation on June 1, 2005. The evaluation indicated that defendant continued to struggle with drug dependence, although he had been abstinent while incarcerated. He tested negative for all substances that day and was referred to North Hudson Community Action Mental Health and Addiction Services for outpatient substance abuse treatment and hospital services for his HIV-positive illness.
On June 9, 2005, defendant appeared at a court hearing without counsel. Although the court determined that day that the child had been abused and neglected by his mother, there were no findings with respect to defendant.
On September 6, 2005, defendant contacted DYFS and the caseworker told him that she had been advised by the police that he had been arrested. Thereafter, DYFS had no further contact with defendant despite numerous efforts to locate him, until October 2, 2006, when he appeared at the DYFS office and met with the supervisor. In the interim, DYFS learned that defendant had been convicted in municipal court of possession or distribution of hypodermic needles and pled guilty in Superior Court to third degree burglary. DYFS had noticed him for each of the interim court hearings, but he failed to appear.
On July 28, 2006, at the final hearing in the protective services litigation, defendant failed to appear but his counsel appeared on his behalf. DYFS filed the guardianship proceedings and noticed defendant for each of the hearings, but neither he nor counsel appeared.
On August 30, 2006, Robert Kanen, Psy.D., a licensed psychologist, undertook a bonding evaluation between the child and the foster parent. Dr. Kanen reported that the child was strongly attached to the foster mother and would suffer serious harm if removed from her care.
When defendant appeared at the DYFS office in October 2006, he was personally served with copies of the guardianship complaint and order to show cause and provided with an application for counsel. A psychological bonding evaluation between defendant and the child was scheduled, but defendant failed to appear. Defendant also failed to appear ...