On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-145-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Coburn and Grall.
The Division of Youth and Family Services (DYFS) appeals from an order of February 21, 2007, that requires DYFS to permit discovery of its records by a parent whose rights were terminated by default judgment on June 19, 2002. Unless and until the parent establishes grounds to vacate the default judgment pursuant to Rule 4:50-1, there is no basis for permitting discovery of DYFS records. Accordingly, we reverse.
R.T. and D.O.T. are the natural parents of K.D.T. On April 6, 1999, DYFS obtained an order temporarily placing K.D.T. under its care, custody and supervision pursuant to N.J.S.A. 9:6-8.29. K.D.T. was twenty-two months old at the time. On November 30, 2000, DYFS commenced the litigation that led to termination of R.T.'s parental rights by default judgment on June 19, 2002.
K.D.T. was adopted in July 2004.
In July 2004, the trial court received a letter from R.T. The court forwarded that letter to the deputy attorney general representing DYFS and the child's law guardian and provided R.T. with the phone number and address of the Office of the Public Defender. In August 2004 and January 2005, the trial court forwarded additional letters from R.T. to the Public Defender's Office, the deputy attorney general and the law guardian. On February 15, 2005, the trial court wrote to the public defender and reported that "[n]ew information indicates that the matter warrants re-opening."
By motion dated February 1, 2007, R.T. sought an order compelling production of the DYFS case file. Noting the trial court's obligation to "insure that the litigants are provided with procedural due process," the trial court concluded that an order permitting disclosure of the files was authorized by N.J.S.A. 9:6-8.10a(b)(6) and entered an order granting discovery pursuant to Rule 5:12-3.
The trial court erred. Child abuse reports and information obtained in investigating those reports are confidential and may be disclosed under limited circumstances. N.J.S.A. 9:6-8.10a(a). Disclosure is authorized when a court determines "that access to such records may be necessary for determination of an issue . . . ." N.J.S.A. 9:6-8.10a(b)(6). Similarly, Rule 5:12-3 permits discovery of DYFS's case file when litigation is pending. In this case, however, there is no pending litigation, and R.T. cannot gain access to confidential materials in DYFS files without first establishing grounds to vacate the default judgment pursuant to Rule 4:50-1. It would appear that R.T.'s explanation for her failure to participate in the proceedings and her subsequent delay in taking action to set aside the default are matters peculiarly within her knowledge and that of her attorneys.
The order of February 21, 2007, is vacated.
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