On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-104-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and LeWinn.
M.R., the natural mother of J.Z.R., a boy, now seven years old, appeals from the October 31, 2008 order, denying her motion to vacate a judgment of guardianship by default. The Division of Youth and Family Services (DYFS) and the Law Guardian urge affirmance. According to the verified complaint for guardianship, M.R. has two other children who are not with her. A maternal aunt has kinship legal guardianship (KLG) of one child. The other is in the legal and physical custody of her maternal great-grandmother. These children are not subjects of this guardianship action. The birth father of J.Z.R. is unknown. It is undisputed that M.R. is mentally ill. She acknowledges this condition. J.Z.R. has emotional challenges and special needs. We reverse and remand for a new hearing.
In November 2003, DYFS received a referral regarding M.R. from a DYFS caseworker. That caseworker expressed concern because M.R. suffered from a mental illness and was not properly supervising her children.
J.Z.R. was three years old when DYFS was granted his care, custody, and supervision. Since then, he has not returned to the care of his mother. He has been in the same home from March 2005, until July 8, 2009, with foster parents who wish to adopt him. However, we have been notified by DYFS's counsel that:
In accordance with the proposed amendment to Rule 2:6-11(e), please be advised that on or about July 8, 2009, J.Z.R. was removed from his pre-adopt placement by [DYFS]. The child was removed after a report was received that he had visible marks on his arm. [DYFS] is continuing the investigation.
We have granted M.R.'s motion to supplement the record. M-6657-08.
J.Z.R. was residing with M.R. at a shelter in Irvington. On December 1, 2003, M.R. was evicted from the shelter after failing a room inspection. M.R. and J.Z.R. moved in with M.R.'s grandmother and sister. DYFS referred M.R. for parenting skills classes and a psychological evaluation.
On October 31, 2007, DYFS filed the complaint and order to show cause. Shauntele Volpe, DYFS Family Specialist II, executed an affidavit of service testifying that, "On November 13, 2007, at 470 Colfax Avenue, Clifton, New Jersey, I served [M.R.] with the Order to Show Cause, Complaint for Guardianship and Affidavit in this matter." The location of the service was a mental health program called "Medallion Care." However, M.R. failed to appear on November 26, 2007. At the hearing on that date, Volpe testified that she served M.R. personally at Medallion Care. The judge entered default against M.R. and set December 20, 2007, as the date for a proof hearing.
At the proof hearing, M.R. did not appear. Volpe testified as follows:
[DEPUTY ATTORNEY GENEJRAL VAN HOUTEN]: Ms. Volpe, I spoke to you yesterday about contacting [M.R.] prior to today's . . . hearing, is that correct?
Q: And did you reach out for [M.R.] yesterday?
Q: And were you able to make ...