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New Jersey Division of Youth and Family Services v. R.E.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 14, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.E.H., DEFENDANT-APPELLANT.
IN THE MATTER OF S.T.H., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-04-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 23, 2008

Before Judges Messano and King.

R.E.H., the father, appeals from Judge Schlosser's January 24, 2006 judgment of guardianship of his son S.T.H.; the November 2, 2006 order denying reconsideration, and the January 18, 2007 order denying reconsideration. He filed this out-of-time appeal on June 19, 2007. His son was adopted on February 23, 2007 by the family with whom he had been placed at his birth on August 24, 2004 and which also had adopted his brother.

The mother and the father, appellant here, have had no contact with their son from the time of his placement at birth. Default was entered against both in the guardianship proceeding on December 7, 2005. At the proof hearing on January 24, 2006 the judge found that the parents had been served at their last known addresses by certified and regular mail and that R.E.H. had not participated in any court proceedings regarding his son. The judge found the four points necessary for termination of parental rights were satisfied and entered a judgment of guardianship.

In November 2006 R.E.H. filed a motion for reconsideration claiming he had not received notice of either hearing, which notice had been handed to his father at their address at a motel and also mailed there by certified mail and regular mail unreturned. R.E.H. claimed his father's brain surgery in 1992 impaired his memory. The judge did not agree, holding service was sufficient under the court rules. R. 4:4-4(a)(1). Despite the fact that he was expressly informed of his right to a timely appeal, he filed another untimely motion for reconsideration in January 2007, changing his posture and asserting that his father did not live with him and was not a member of the household as required by the court rules, which claim the judge also rejected. R.E.H. now untimely makes the same claims on this appeal.

On this appeal R.E.H. argues that the judge should have conducted a plenary hearing to determine that service was deficient. After the termination order, R.E.H. moved to vacate the default judgment by claiming he was never served. The judge, a different judge from the judge who conducted the termination case, made defense counsel order the transcript and review it to determine whether there was any legitimate argument about the propriety of service. We have not been supplied with that transcript. However, from the subsequent motion hearing it appears that D.Y.F.S. tried six or seven prior addresses defendant had furnished during the course of the litigation and the provision of D.Y.F.S. services. Finally, D.Y.F.S. located defendant living at the motel with his father. The D.Y.F.S. worker actually confirmed with the father that defendant was living there with him, served the father, and also sent the papers certified and regular mail. The certified mail came back; the regular mail did not.

Based on this record we conclude that service was appropriate. The motion to vacate service was premised on the allegation, and nothing more, that defendant's father had a brain injury, resulting in surgery years earlier, and was not competent to accept service of process. There was nothing to support this claim and the judge in her sound discretion decided not to conduct any plenary hearing. We are satisfied that the uncorroborated claim of defective service did not require a plenary hearing in these suspect circumstances. We are convinced that the appeal is both untimely and clearly without substantive merit. R. 2:11-3(1)(E).

Affirmed.

20080514

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