On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-88-08.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Axelrad, Fisher and Espinosa.
The judge in this Title 9 action defaulted a defendant because she did not attend the factfinding hearing even though her attorney appeared to represent her interests. We conclude that, unless warranted by defendant's failure to comply with a prior order and the potential for default was adequately noticed, a judge is not authorized to enter a default in this circumstance. However, because the default had no meaningful impact, we affirm.
The Division of Youth and Family Services (the Division) commenced this action, claiming A.R. was abused or neglected within the meaning of N.J.S.A. 9:6-8.21(c), when subjected to corporal punishment while residing in the home of defendant C.R., Jr. (her biological father) and defendant P.W.R. (her stepmother).*fn1 In early 2008, when the events in question occurred, the child was sixteen years old. At the conclusion of a factfinding hearing, the trial judge found the child was abused and neglected. Only defendant P.W.R. (hereafter "defendant") has appealed.
On May 19, 2008, the first day of the hearing, defendant did not appear. Her counsel, however, did. At the beginning of the hearing, the judge revealed that the week before her chambers had received telephone calls from defendant regarding her inability to be present due to medical issues. The judge recounted that her secretary directed defendant to submit a note from her doctor concerning her inability to attend. The judge indicated that no such note was received and then stated:
I'm entering the default of both of the [defendants] today. They're both the targets, and they would be prohibited from putting on an affirmative defense unless they -- unless they successfully move to vacate the defaults.
On that day, only one witness was called, a Division caseworker. Defendant's attorney was permitted to cross-examine.
On May 22, 2008, the second hearing date, the Division called the child's grandfather to the stand. Defendant's attorney was again permitted to cross-examine. When the testimony of that witness was completed, the Division rested. The judge then turned to defendant's counsel, as well as counsel for C.R., Jr., and stated:
[Y]our clients are still not here. So they're still in default, and you cannot put on affirmative cases. So may I assume that you're resting as well[?]
Defendant's attorney answered in the affirmative, but went on to explain how he had telephoned defendant the day before and was told by defendant's husband that she was medically unable to attend. Without commenting on the circumstances related by counsel, the judge again asked: "So you're resting?" Defendant's attorney ...