On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-100-99.
Judges Keefe, Eichen and Weissbard.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2001
T.J.B., the biological mother of A.M.B., born August 6, 1998, and A.T.L., the putative biological father, appeal separately*fn1 from a March 23, 2000 order denying their motions to set aside a final judgment by default entered on December 14, 1999 terminating their parental rights to A.M.B. The judgment by default was stayed pending this appeal.
A.M.B. has been in placement at a DYFS facility known as Hudson Cradle since immediately after his birth.*fn2 A.M.B. was placed there voluntarily under a temporary Foster Home Placement Agreement entered into between T.J.B., A.T.L. and DYFS on August 12, 1998.
On May 6, 1999, DYFS commenced this guardianship action by filing a verified complaint and order to show cause seeking placement of A.M.B. under its care and supervision.*fn3
On June 29, 1999, in the presence of defendants, Judge DePascale entered an order directing defendants "to file application for 5-A (Indigency)" and "the Office of the Public Defender to appoint." See N.J.S.A. 30:4C-15.4. The order also directed the appointment of a law guardian for A.M.B. The matter was then set down for a review on August 10, 1999 at 9:00 a.m. before Judge Lisboa. The order did not contain a provision for a DYFS case manager's name and telephone number.
The form of order utilized to memorialize the court's order is a form used by the court in a variety of family matters, including ordinary custody and visitation cases not involving DYFS. In a boilerplate provision, in small print, the order states: "If you fail to comply with the provisions contained in the Order pursuant to N.J.S.A. 2C:13-4 [concerning interference with custody] you may be subject to Criminal penalties to include but not to be limited to imprisonment, probation and/or fines." Therefore, nothing in the order alerted defendants to the possibility that their failure to appear at a review hearing could result in the entry of a default judgment terminating their parental rights.*fn4
On August 10, 1999, the law guardian and the Deputy Attorney General representing DYFS, as well as A.T.L.'s assigned counsel, appeared in court. Neither T.J.B.'s counsel nor T.J.B. appeared. Over A.T.L.'s counsel's objection, Judge Lisboa entered a default against both defendants. The matter was again listed for review on September 21, 1999.
On September 21, 1999, both defendants appeared as did appointed counsel for A.T.L. and the law guardian. However, once again, no counsel was present for T.J.B., although the record suggests that T.J.B.'s counsel may have been present earlier in the proceedings. Judge Lisboa vacated the default and entered an order requiring A.T.L. to undergo paternity testing.*fn5 The order also directed both defendants to submit to drug and alcohol testing. It also states that "Psychological Evaluation Repts. [are] to be submitted to this court." The judge, however, did not admonish defendants that if they were absent again their parental rights might be terminated.
The record reflects that defendants attended the probation department that day and that drug and alcohol tests were performed.*fn6 The record also reflects that a psychological evaluation of A.T.L. had already been performed, but that the report had not yet been prepared. No mention of DYFS's efforts to obtain a psychological evaluation of T.J.B. appears in the record.*fn7 The matter was then listed for a review on November 16, 1999.
On November 16, 1999, neither T.J.B. nor A.T.L. appeared in court. T.J.B.'s attorney and the law guardian were present, however. As a result of defendants' non-appearance, Judge Lisboa again entered a default against them and rescinded the prior order requiring A.T.L. to undergo paternity testing.*fn8
On December 14, 1999, both defendants appeared in court with their assigned counsel and the law guardian. Because Judge Lisboa was absent from court on that day, a third judge presided over the review. Defendants and the law guardian moved to vacate the default. A.T.L.'s attorney sought to explain A.T.L.'s non-appearance on November 16, 1999 based on an alleged asthma-related illness and his arthritis.*fn9 To this end, A.T.L. claimed he could get a doctor's note. T.J.B. acknowledged that she had been told orally in court of the November 16, 1999 court date, but claimed she had forgotten the date.*fn10 In addition, T.J.B. ...