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New Jersey Div. of Youth and Family Services v. D.M.J.

April 23, 2001


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-0088-00.

The opinion of the court was delivered by: Ciancia, J.A.D.


Submitted March 27, 2001

Before Judges Kestin and Ciancia.

This is an appeal in a parental termination case that resulted in a judgment of guardianship entered upon the default of the parents. Only the mother, defendant D.M.J., sought to vacate the default judgment. Denial of that motion is the basis of the present appeal. We are entirely satisfied that the evidence in favor of the guardianship petition overwhelmingly supported the termination of parental rights. On the motion to vacate the default judgment there was no showing of a meritorious defense. D.M.J.'s only proffered reason for not appearing at the trial was that she had gone to Atlantic City and forgot the trial was scheduled. As the trial judge concluded, no grounds were presented which justified vacating the default judgment pursuant to R. 4:50- 1. On appeal to this court, the arguments advanced are without sufficient merit to warrant discussion in a full written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

D.M.J. is the mother of six children, five of whom, all girls, are the subject of the present litigation.*fn1 D.M.J. has an extensive history of drug addiction. Two of her daughters tested positive for drugs at birth. Among other things, D.M.J. has consistently refused to appear for court-ordered drug evaluations. The three oldest girls were placed in foster care in 1997 at the ages of nine, seven and six, respectively. A daughter born in July 1996, and a daughter born in December 1998, were placed into foster care shortly after birth. Over the years, D.M.J.'s contact with her daughters has been minimal.

D.M.J. has a history of not appearing for court proceedings and of not maintaining contact with her attorney. Since the end of 1997 she has failed to appear at nine of eleven hearings concerning her children. The earlier hearings were Title 9 proceedings that were conducted prior to the filing of the complaint for guardianship in October 1999.

At the initial guardianship hearing on November 29, 1999, D.M.J. did appear and requested counsel. That request was granted and a pretrial hearing was scheduled for January 10, 2000. D.M.J. did not appear and a default was entered. When the court learned D.M.J. was incarcerated, the default was vacated and D.M.J. appeared in court on January 11, 2000, represented by counsel. At that time, she was specifically cautioned that she must stay in touch and let people know where she was or she could be subject to a default that might result in the loss of her children. A trial date of June 12, 2000 was set, and a summons was given to D.M.J. before she left the courtroom.

Prior to trial, D.M.J. was to undergo court-ordered drug evaluations, but failed to do so. As a result, D.Y.F.S. moved for entry of default against D.M.J. and the natural father of three of the children. It is not clear whether that application was ever specifically ruled upon because the parents, including D.M.J., did not appear for trial on June 12, 2000. D.M.J.'s attorney had not had contact with his client for some time prior to that date and did not know her whereabouts. She also had not cooperated with her own expert and, therefore, a psychological evaluation on her behalf had not been prepared. The trial judge attempted to call D.M.J. on the phone, but with no success. Default was entered and a proof hearing was conducted. The proofs were predominantly documentary. They exceeded a thousand pages. On June 20, 2000, the trial judge issued a detailed oral opinion terminating parental rights and granting guardianship of the five children to D.Y.F.S.

On July 17, 2000, D.M.J. moved to vacate default. She claimed she did not know the trial date. At the subsequent hearing on July 24, 2000, D.M.J. said she was in Atlantic City on June 12 and criticized her D.Y.F.S. caseworker for not letting her know the court date. The trial judge was satisfied D.M.J. had been given notice of the trial date and that she offered no sufficient reason for failing to appear. He also noted the inordinate length of time that the children had been in foster care.

In light of all the facts that preceded D.M.J.'s default and motion to vacate default judgment, we are satisfied that the trial judge did not abuse his discretion in refusing to vacate the default judgment. Unlike the circumstances we recently addressed in In re Guardianship of A.M.B., ___ N.J. Super. ___ (App. Div. 2001), here the parent was well-aware of the possibility that failure to appear could result in entry of a default judgment terminating parental rights. Moreover, a proof hearing was conducted that permitted the trial judge to consider a vast array of records, reports and evaluations.

Finally, although technically the merits are not before us, we are satisfied from our review of the record that D.Y.F.S. proved by clear and convincing evidence each of the four prongs of the termination criteria developed by New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986), and thereafter mandated by N.J.S.A. 30:4C-15.1. See also In re Guardianship of K.H.O., 161 N.J. 337 (1999).

The order denying the application to vacate the default judgment entered ...

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