August 6, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF R.E., F.E. AND L.E., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-170-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 30, 2009
Before Judges Stern and Parker.
M.E., the natural mother of three girls born in 2001, 2006 and 2007, respectively, challenges a judgment of June 12, 2008, terminating her parental rights.*fn1 M.E. did not appear for the April 3, 2008, and May 8, 2008, hearings. The hearings were adjourned to assure notice to M.E., but she did not appear for the subsequent June 12, 2008, hearing. A proof hearing was conducted that day prior to the entry of judgment.
M.E. technically appeals from an order of August 18, 2008, denying her motion to vacate the judgment. She testified by telephone at the August 18, 2008, hearing that she was living with an aunt in Pennsylvania in March and April of 2008. She also testified that she thereafter moved to Florida to live with her sister and did not have the money to travel to New Jersey for the hearing in June. She further testified that she tried to call her caseworker but was told "he was on vacation."
M.E. complains that DYFS did not properly communicate with her because it sent notices to her Irvington address while it should have been aware she was homeless and not living there, and knew she had "cognitive impairment and a second-grade reading level." Hence, she claims not to have received notice of the hearings or due process protections. She also complains of the lack of a bonding evaluation. She testified at the August 2008 hearing that she did not appear for the psychological and bonding evaluations scheduled for April 8, 2008, because she did not receive notice.*fn2
Thus, M.E. asserts that her motion to vacate the default should have been granted. She relies on N.J. Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 434 (App. Div. 2001), requiring a "liberal" approach to vacation of default judgments in termination cases, and Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S.Ct. 1176, 157 L.Ed. 2d 1207 (2004), requiring strict adherence to due process requirements in such cases. She claims that she was deprived of the "opportunity to dispute the findings of the DYFS experts" and "to appear and participate in a trial" and should have been provided transportation to appear in person at the August hearing on her post-judgment application. She also asserts that she has a meritorious defense particularly because DYFS did not satisfy its burden of proof as to the four prongs of the statutory test which must be proven before parental rights may be terminated. See N.J.S.A. 30:4C-15.1. See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986).
As to the merits, M.E. contends that she "tried her best to eliminate the harm facing her children and tried her best to provide a safe and stable home for the children." M.E. also contends that she complied with all directions from DYFS until she was unable to do so for physical reasons due to her pregnancy which resulted in the birth of her youngest daughter F.E., on August 9, 2007. Hence, she asserts DYFS did not satisfy the second prong of the test.
She asserts that "DYFS failed to prove... it made reasonable efforts to help the parent correct the circumstances which led to the children's placement with [their paternal aunt] and the court failed to consider alternatives to termination of her parental rights." She insists that DYFS should have accommodated the fact that the paternal aunt and uncle moved further away from her to Somerset County, making it harder to visit them, thereby affecting the findings under both the third and fourth prongs of the statutory test and that she did not communicate with DYFS "[b]ecause they never g[o]t back to (her)." Similarly, M.E. contends that the fourth prong was not satisfied.
We recognize that we recently held that a bonding evaluation with foster parents was necessary in almost every termination case. See N.J. Div. of Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009). But here, there could be no comparative bonding analysis because defendant did not appear for her evaluation and the youngest child, F.E, was placed in foster care immediately upon her birth. See also In re Guardianship of J.C., 129 N.J. 1, 17 (1992). A neuro-psychological evaluation of M.E. by Dr. Andrew Brown, however, conducted in June 2007 concluded "[t]o a reasonable degree of psychological certainty [M.E.] is mentally incompetent with regard to her ability to execute adequate parental judgment independent of supervision. [M.E.'s] neuropsychological deficits render the potential for child endangerment excessive."
In essence, M.E. defaulted by her non-appearances and lack of communication with DYFS and the court even before the June hearing.
The Family Part is entitled to special deference. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), and our scope of review is limited. New Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-80 (2007). Judge Hayden conducted the proof hearing in June 2008 and required DYFS to sustain its burden at that time. M.E.'s caseworker, Willie Warren, testified at the June hearing, and the judge concluded that DYFS satisfied its burden as to all four prongs.
The proofs included evidence that M.E. left one child with her grandmother who suffered from dementia, lived in filthy and unsanitary conditions while her two older children were living with her, that she tested positive for marijuana, and did not attend and comply with program participation. As noted at the August 18, 2008, hearing, M.E. testified by telephone she could not afford to return to New Jersey for the June 12, 2008, hearing. She called the caseworker but left no message because "they never get back to me" and did not call the court. Moreover, M.E. did not always update her address as she moved.*fn3
She therefore could not reasonably expect that DYFS could arrange her return to New Jersey for the June hearing. M.E. also acknowledges she had been homeless and had not complied with DYFS' directions to attend drug and parental counseling. The record also reflects that she was terminated from the Bridge program for non-compliance in July 2007, and supervised visitation had been terminated in May 2008 "[a]fter [M.E.] missed her third consecutive visit."
The judge found that M.E. had notice of the April 3, 2008, hearing at the March 6, 2008, hearing, and found no "exceptional circumstances" for reconsidering the matter, see In Re Guardianship of N.J., 340 N.J. Super. 558, 560-61 (App. Div.), certif. denied, 170 N.J. 211 (2001), but again reviewed the best interests of the children. We agree with Judge Hayden's conclusion particularly because of the children's need for permanency and stability and the children will remain together. Their paternal aunt and uncle who are the foster parents want to adopt them, and there is no basis on this record to delay the termination with any prospect that M.E. would be able to provide her parental responsibilities at any time in the reasonably foreseeable future.
The judgment is affirmed.