Division of Youth and Family Services v. MYJP

• Decision Date: 27 May 2003
• Citation: 823 A.2d 817,360 N.J. Super. 426
• Parties: DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.Y.J.P. and J.R.A., Defendants-Appellants. In the Matter of the Guardianship of S.J.A.
• Court: New Jersey Superior Court

823 A.2d 817

360 N.J. Super. 426

DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.Y.J.P. and J.R.A., Defendants-Appellants.

In the Matter of the Guardianship of S.J.A.

Superior Court of New Jersey, Appellate Division.

Argued October 17, 2002.

Decided May 27, 2003.

William J. Sweeney, Westfield, Designated Counsel, argued the cause for appellant J.R.A. in 3402-01 (Yvonne Smith Segars, Public Defender, attorney; Mr. Sweeney, on the brief).

Marty M. Judge, Princeton, argued the cause for appellant M.Y.J.P. in 3875-01 (Drinker Biddle & Shanley, attorneys; Mr. Judge, of counsel; Mark P. Luedeke, on the brief).

Mary Jane Lembo Cullen, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Acting Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Ms. Cullen, on the brief).

Before Judges KESTIN, EICHEN and FALL. The opinion of the court was delivered by KESTIN, P.J.A.D

M.Y.J.P. and J.R.A. are, respectively, the biological mother and father of S.J.A. They have appealed separately from a judgment terminating the parental rights of each and granting guardianship of S.J.A. to the Division of Youth and Family Services (DYFS or the Division). The appeals have been consolidated. The trial court's decisional rationale was expressed by Judge Council orally on February 1, 2002 and in a detailed written opinion filed on that date.

The child's mother, M.Y.J.P., is a Haitian citizen residing in Haiti. The father, J.R.A., is a Haitian citizen who, when the operative facts occurred and at the time of trial, resided in New Jersey. M.Y.J.P. argues the trial court erred in rejecting her motion to dismiss the complaint as to her for lack of in personam jurisdiction, in violating her procedural due process rights, and in denying her a fair trial. She also argues that the trial court erred in admitting into evidence the testimony of DYFS's bonding expert. M.Y.J.P. and J.R.A. both argue that the trial court erred in terminating their parental rights because the Division did not prove each of the four required elements of N.J.S.A. 30:4C-15.1a; see also Division of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11, 512 A.2d 438 (1986), as to each of them.

I

When the child, S.J.A., was born on August 5, 1992, his mother, M.Y.J.P., was twenty years of age and his father, J.R.A. was twenty-eight. The parents had begun dating in 1990, when M.Y.J.P. was a student at a school in Port-au-Prince, in which J.R.A. was employed as a teacher. In November 1991, M.Y.J.P. became pregnant and returned to her father's home in the province of L'Acul du Nord. J.R.A. remained in Port-au-Prince, where he married W.A. M.Y.J.P. testified during a de bene esse deposition that her father and siblings assisted her in the care of S.J.A., and thus, despite a United States embargo related to the civil unrest in Haiti at the time, the child was never without food and clothing. J.R.A. did not visit or maintain any contact with S.J.A. while the child was in L'Acul du Nord.

In May 1994, at J.R.A.'s request, M.Y.J.P. and S.J.A. returned to Port-au-Prince where they resided with M.Y.J.P.'s aunt. M.Y.J.P. testified that, at the time, conditions in Port-au-Prince were dangerous and violent; that she was often afraid; and that she had problems obtaining sufficient food for S.J.A. Around that time, J.R.A. asked M.Y.J.P. whether she would allow S.J.A. to go to the United States with him and S.J.A.'s half-brother J.R.A., Jr. M.Y.J.P., who by then had learned of J.R.A.'s marriage, agreed, but insisted that J.R.A. send for her as soon as possible, which he said he would do. M.Y.J.P. testified that she would not have allowed S.J.A. to leave Haiti if she had known that J.R.A. would not send for her.

The child arrived in the United States in July 1994 with his father, J.R.A., accompanied by the father's wife, W.A., and J.R.A.'s other child, J.R.A., Jr., who was about four years older than S.J.A. Their entry was sponsored by the Lutheran Ministries Haitian Refugee Program (Lutheran Ministries), and they settled in New Jersey. J.R.A. did not send for M.Y.J.P.; and W.A. left J.R.A. shortly after their arrival, leaving J.R.A. as the primary caretaker of the children.

DYFS first became involved with the family on October 20, 1994, when it received a referral from Lutheran Ministries that J.R.A. had left the children home without adult supervision. Lutheran Ministries assisted J.R.A. in arranging for child care. Thereafter, on November 16, 1994, DYFS received a second referral, from the principal at J.R.A., Jr.'s school, reporting that the child had a red and swollen left ear. DYFS sent J.R.A., Jr., to a hospital for examination. The examination disclosed that J.R.A., Jr. had old scars on his chest, back, and arms. J.R.A. admitted he had used corporal punishment, and refused to stop doing so because he maintained that such punishment was acceptable in Haiti. A DYFS case manager noted at the time that "[w]hen the children are in [J.R.A.'s] presence, neither child smiles or talks and they both display fear of him and their affects are flat."

At that point, DYFS recommended placing J.R.A., Jr. in a foster home, to which J.R.A. agreed, stating, according to DYFS personnel, that if the Division did not accept J.R.A., Jr., who had been having behavioral problems at home and at school, he would abandon the child. J.R.A. also insisted that DYFS place the children in the same foster home because he said they had a close relationship and separation would have an adverse effect on S.J.A. J.R.A. then signed a voluntary placement agreement, written in English, and the children were placed in foster care. J.R.A. testified to his understanding that he could retake custody of S.J.A. "[a]nytime."

II

This matter commenced on June 4, 1998, with DYFS's complaint for guardianship of S.J.A., then almost six years of age, and his ten-year-old half-sibling, J.R.A., Jr.¹ On June 18, 1998, DYFS mailed a summons and copy of the complaint, written in English, to M.Y.J.P. in Haiti. M.Y.J.P. is fluent only in Creole. In the accompanying cover letter, DYFS advised M.Y.J.P. that if she could not afford an attorney one would be appointed at no cost, cautioned her that if she did not appear in court her parental rights would be terminated, and informed her that a hearing would be held on September 24, 1998.

By letter handwritten in English, dated June 26, 1998, M.Y.J.P. responded² that she had read the documents "carefully" and appreciated the fact that DYFS was "interested in [S.J.A.'s] parental rights and his future too." She requested that an attorney be appointed on her behalf and asked for a photograph of her son.

On September 24, 1998, the trial court conducted a case management conference and directed DYFS to provide M.Y.J.P. with notice of the next court date. On October 5, 1998, DYFS mailed a second summons and complaint written in English to M.Y.J.P. The accompanying cover letter stated that a hearing had been set for October 22, 1998. M.Y.J.P. responded by letter dated October 19, 1998, once again asking DYFS to appoint an attorney for her because she was a "moneyless person." She indicated that she had not received the October 5 letter until October 14, and that she had read the documents carefully as I am told.

* * *

I appreciate a lot for the decision you want to make to determinate my child parental rights. So I must tell you sincerely I feel a little bit sad because I am not able to attend the hearing. And I know a hearing is never held by one part or one person ... [so] could you help me in order to attend the hearing. [sic]

In orders entered on October 22, 1998, and December 9, 1998, the trial court appointed counsel for the respective parents and designated the guardian ad litem. On November 13, 1998, the court, following on another case management conference, ordered, inter alia, psychological and bonding evaluations of J.R.A., the two children, and the foster parents of the children at DYFS's instance. The order also provided for the retention of experts to perform evaluations on behalf of "the defendant," if requested. All evaluations were to be completed by January 1,1999.

In January 1999, counsel for M.Y.J.P. raised the issue of personal jurisdiction. By order entered on January 28, 1999, the court directed DYFS to pay for a translator to assist defense counsel in communicating with M.Y.J.P. and directed DYFS to seek assistance from the American Embassy in Haiti in communicating with M.Y.J.P. The court reserved decision on the issue of jurisdiction.

After another case management conference, the court, on March 30, 1999, ordered that the petition regarding J.R.A., Jr. be accelerated while consideration of the jurisdictional argument in S.J.A.'s case pended. In June 1999, M.Y.J.P. filed a motion to dismiss the complaint as to her for lack of jurisdiction over the person.

On August 5 and 11, 1999, the court tried the guardianship petition regarding J.R.A., Jr. The father, J.R.A., who had been incarcerated in the Mercer County Correctional Facility, appeared by writ on August 5, but did not appear on August 11, 1999, after he had been released. At the conclusion of the trial, the court terminate ed J.R.A.'s and I.C.'s³ parental rights to J.R.A., Jr., and a judgment of guardianship was entered on August 25, 1999. No appeal from that judgment was filed.

In a letter dated June 22, 2000, the trial court judge sent counsel for M.Y.J.P. and the Division a written decision denying M.Y.J.P.'s motion to dismiss the guardianship complaint for lack of in personam jurisdiction to the extent it sought termination of her parental rights as to S.J.A. The Court determined that New Jersey had a parens patriae interest in the best interests of the child. This determination was based on findings that the child, born in Haiti on August 5, 1992, had come to the United States with M.Y.J.P.'s permission and in the care and...