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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...