On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Essex County, FG-07-151-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Stern, A. A. Rodríguez and Payne.
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.*fn1
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.
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 ...