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New Jersey Division of Youth and Family Services v. E.S.


June 10, 2010


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Burlington County, Docket No. FG-03-09-09.

Per curiam.



Argued: April 28, 2010

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 be relieved as counsel, the judge recognized that neither counsel had any contact with their client for some time and "can[no]t really take a position about the Division's request [to terminate their parental rights]."

At the proof hearing, a DYFS caseworker testified that she had been assigned to the case since October 2, 2008, and last had contact with E.S. on October 21, 2008. She stated that E.S. was informed of the court-approved plan to allow the maternal aunt to adopt E.P.S., and E.S. spoke at that time of surrendering her parental rights. The judge determined that E.S. was aware of the termination proceedings and that DYFS made all reasonable efforts to serve her with the December 2008 complaint.

The caseworker then reviewed the history of DYFS involvement with E.S. and her daughter, opined that the child "is doing great" with the maternal aunt and her fiancé, and that the child has "bonded" with her caretakers. After brief closing statements and a statement by the law guardian that the placement with the maternal aunt "can accurately be characterized as a miracle," the judge rendered her decision. In doing so, she reviewed the best interests test set forth in N.J.S.A. 30:4C-15.1. The judge found that the child's health and development will continue to be endangered by a parental relationship with E.S. due to her ongoing drug problem and her failure to participate in the services offered to her. The judge found that E.S. had done nothing to alleviate the harm, that DYFS had made all reasonable efforts to effectuate a reunification, and termination would not do more harm than good to the child.

DYFS mailed notice of the judgment to E.S. at her mother's home; the notice was returned bearing a handwritten notation which read MLNA (moved, left no address). Nevertheless, on August 27, 2009, E.S. filed a motion to vacate the January 2009 default judgment. In her motion, E.S. reported that she did not appear on January 26, 2009, because she was in the hospital. In a letter dated September 10, 2009, another judge advised the attorney from the Office of the Public Defender, who had filed the motion on behalf of E.S., that she would not hear the motion.*fn3 The letter provides as follows:

The Court has received and reviewed [E.S.]'s Notice Motion to Vacate Default.

On January 26, 2009, [the prior judge] entered a default against [E.S.] and terminated her parental rights to [E.P.S.]. The Court determined that E.S. had appropriate notice based on the Affidavit of Inquiry filed on December 22, 2008. After considering the evidence submitted and argument of counsel, [the prior judge] found that the Division had proven its case under N.J.S.A. 30:4C-15.1 by clear and convincing evidence for the reasons set forth in an opinion from the bench. A deadline of June 1, 2009 was set for filing the complaint for adoption.

Based on this, the Court will not hear your client's motion.

E.S. filed her notice of appeal on September 23, 2009.

We have omitted a recitation of the interaction between DYFS and E.S. from the time of removal until October 21, 2008, when E.S. may have had her last interaction with the agency. Although she did not appear in court after the February 27, 2008 fact-finding hearing, the record demonstrates that E.S. had contact with DYFS caseworkers, engaged in but did not complete various services, and visited her child on an intermittent basis. Suffice it to say, the record strongly suggests that termination of parental rights is an appropriate remedy. A parent, however, has certain rights that must be honored in the course of all proceedings that seek to terminate her parental rights. Chief among these rights is representation by counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). If she cannot afford to retain counsel, one must be appointed to represent her. Crist v. N.J. Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1975); N.J.S.A. 30:4C-15.4a.

In B.R., the Court "recognized that the due process guarantee of [N.J. Const. Article I, paragraph 1] serves as a bulwark against the loss of parental rights without counsel being afforded." B.R., supra, 192 N.J. at 305 (citing Pasqua v. Council, 186 N.J. 127, 147 (2006)). The need for counsel in such proceedings is evident in light of the nature of the right involved; the permanency of the threatened loss; the State's interest in exercising its parens patriae jurisdiction only where necessary; and the potential for error in a proceeding in which the interests of an indigent parent, unskilled in the law, are pitted against the resources of the State. [Id. at 306.]

Here, counsel for E.S. sought to be relieved at the point when the complaint alleging neglect, commonly referred to as the Title 9 or the FN proceeding, was concluding and the termination of parental rights proceeding, commonly referred to as the Title 30 or the FG proceeding, was about to commence. When parents seeks appointment of counsel, the parents must fill out a form demonstrating that they are indigent and qualify for appointed counsel. This form is known as Form 5A and is filled out separately for the Title 9 action and the Title 30 action. This record clearly demonstrates that counsel sought to be relieved because he had no contact with E.S., and she had not filled out a new Form 5A to assure payment for his services in the course of the Title 30 proceeding.

We appreciate counsel's concern that he receive payment. We are informed, however, that payment can be made when the matter is in transition from an abuse and neglect proceeding to a termination of parental rights proceeding that would allow the rights of a parent to be protected, even one who does not appear at the initial hearing following filing of the Title 30 complaint, before her rights are permanently altered by judicial action.

We also appreciate that the failure of E.S. to communicate with him for such a lengthy period of time raised questions about the course she wished to pursue. Nevertheless, counsel had access to the record and could examine the affidavit of diligent inquiry to determine whether a default was warranted. Counsel could also represent his client by expressing his objection, if the facts as found by the judge to support a default judgment of parental rights were legally insufficient or unsupported by the record.

The judge's decision to relieve counsel centered on assigned counsel's need to be compensated. The judge also seems to have assumed that counsel could provide little or any assistance at the proof hearing. As previously noted, that is simply not the case. Moreover, the record strongly suggests that the judge never contemplated an adjournment to a date certain to allow counsel to contact his client, attempt to determine her desired response to the complaint, and secure her attendance at trial or effectuate an identified surrender.

Moreover, an adjournment rather than the immediate commencement of the proof hearing would almost certainly have prevented the entirely too summary procedure pursued in this matter. In short, we are satisfied that the course pursued here denied E.S. the due process to which she was entitled.

Furthermore, E.S. argues that her motion to vacate the default judgment should have been granted, and she should have been able to present oral argument in support of her motion. DYFS and the Law Guardian contend that the judge properly denied the motion and respond to this argument as if the motion had been decided on the merits. The judge to whom this motion was submitted, however, advised the parties that she "will not hear the motion."

This motion should have been decided on the merits, oral argument should have been afforded to E.S., as she requested, and an order should have been entered after argument.

Furthermore, this motion should have been heard by the judge who entered the original default judgment in January 2009. A series of protocols have been established to assure that a host of post-judgment motions, such as a motion for a new trial, a motion for judgment notwithstanding the verdict, and petitions for post-conviction relief, should be heard by the judge who entered the original order regardless of current assignment, as long as the judge remains active and in the vicinage. A motion to vacate a default judgment of termination of parental rights deserves no less treatment.

Accordingly, we remand for reconsideration of the judgment of termination following appointment of counsel.

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