On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Burlington County, Docket No. FG-03-09-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
E.S. is the mother of E.P.S., a five year old child with profound and global developmental delays. In October 2007, the motel room in which E.P.S. lived with her mother and her mother's paramour was raided by police. The Division of Youth and Family Services (DYFS) removed the child from her mother's care at that time. She has been in the care of E.S.'s sister since September 2008. E.S. appeals from the January 26, 2009 default judgment terminating her parental rights and the September 10, 2009 order denying her motion to vacate the default judgment. We vacate the order terminating the parental rights of E.S. and reverse and remand for further proceedings following the appointment of counsel for E.S.
E.P.S. was born to E.S. and F.D.*fn1 on July 11, 2005. E.S. is the mother of two other children, none of whom are in her care. The family first came to the attention of DYFS in 2002 on a report that E.S. was using drugs. The agency found the referral unfounded and took no action.
The next referral occurred in June 2006, at which time a relative expressed concerns that E.S., her paramour and E.P.S., then about eleven months old, were living in a hotel and E.S. might be abusing drugs. DYFS determined no action was required.
On September 8, 2007, the agency received a referral alleging that E.S. and E.P.S. were living in a motel in Wrightstown, E.S. was using drugs and alcohol, and E.P.S. was not receiving proper care. A DYFS worker investigated the claims, determined that the neglect allegations were unfounded, but advised E.S. of early intervention services for her child. The DYFS worker also suggested a urine screen.
On October 19, 2007, E.S.'s paramour was arrested and charged with drug distribution. The next day, police accompanied by a DYFS worker arrived at E.S.'s room. They found a very messy room "extremely difficult to maneuver." The room was littered with empty cigarette cartons, old food, dirty diapers, and other trash. E.P.S. was found lying on the bed.
When informed of her paramour's arrest, E.S. acknowledged that she knew that he had been selling drugs from the room. E.S. also admitted that she had used cocaine that morning while E.P.S. slept. Drug paraphernalia was also found in the room. E.S. was arrested and charged with possession of drug paraphernalia and child neglect. DYFS removed the child and placed her in an approved foster home for children with special needs. After a long period of training of the maternal aunt and progressively longer periods of overnight visits with her, the child was placed with the maternal aunt in September 2008 and continues to reside with her.
On October 23, 2007, DYFS filed a complaint seeking custody, care and supervision of E.P.S. A judge issued an order to show cause and an order appointing a law guardian on that day. E.S. appeared at the hearing represented by counsel. E.S. and her attorney appeared on November 19, 2007, the return date of the order to show cause; on January 29, 2008, for a case management review; and on February 27, 2008, for a fact-finding hearing. At the February hearing, E.S. stipulated that her drug use impeded her ability to care for E.P.S. and placed her at risk of neglect.
On April 22, 2008, the judge conducted a compliance review. E.S. did not appear but her attorney did appear. Thereafter, the court conducted two compliance reviews on June 17 and September 9, 2008, at which E.S. did not appear. Her attorney appeared at both hearings. E.S. did not appear at a permanency hearing on September 29, 2008; her attorney did appear. At that time, the judge approved the permanency plan of termination of parental rights and adoption by E.S.'s sister and ordered DYFS to file a complaint for guardianship of E.P.S.
On December 22, 2008, DYFS filed a complaint seeking guardianship of E.P.S. and termination of the parental rights of E.S. and F.D. DYFS was unable to serve the complaint on E.S; it successfully served F.D. On January 26, 2009, neither E.S. nor F.D. appeared in court. The attorneys who had represented them in the neglect proceeding initiated in October 2007 appeared at that time and requested to be relieved. Counsel for E.S. explained he had no contact with E.S. Due to her absence, she could not request appointment of counsel and sign the appropriate paperwork to assure payment for representation provided by him to E.S. in the termination proceeding.*fn2 The judge granted the request of each attorney, dismissed the abuse and neglect complaint, and immediately proceeded to commence a proof hearing on the guardianship complaint. In support of the motion to ...