On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-53-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2010
Before Judges Reisner and Chambers.
In these consolidated termination of parental rights cases, default judgments were entered against the parents C.F., the mother, and J.W., the father. The parents now appeal from the order of February 19, 2009, denying their applications to vacate those default judgments. We conclude that the Rules do not permit the entry of default judgments under the circumstances here. The parents' failure to appear for a court hearing did not merit entry of default. Both parents had participated in prior hearings before the trial court and were represented by counsel. When they did not appear, the guardianship trials should have proceeded in their absence without precluding defense counsel from presenting affirmative evidence on their behalf.
We nonetheless affirm the judgments because the parents have failed to make a showing that the outcome would have been different if default had not been entered. They have not come forward with any material evidence that they would have introduced that had a likelihood of changing the result.
While this appeal was pending, defendants moved to vacate the judgments and remand the case to the trial court because the children have recently been removed from their foster adoptive home. While we deny the motion to remand, this denial is without prejudice to the parents' right to make a motion pursuant to Rule 4:50(e) and (f) to set aside the judgments based on these circumstances.
C.F., the mother, and J.W., the father, are the parents of twins, a boy and a girl, born in August 2004; the twins are the subject of this appeal. These parents had also appealed the termination of their parental rights to a third child, S.W. born in January 2001, and the mother had appealed the termination of her parental rights to a fourth child, A.D. born in July 1994, with a different biological father. However, while this appeal was pending, all parties consented to kinship legal guardianship for S.W. and A.D. with a maternal relative. As a result, we remanded for entry of the appropriate order, and this appeal now concerns the twins only.
Before the events leading to this litigation, the children were living with their mother, and the father was living separately from them, although he saw them on a regular basis. On December 18, 2005, the mother was taken to the hospital because she was hallucinating that "bugs were crawling all over her." She tested positive for cocaine. The father, who appeared at the hospital, said that he was intoxicated, but would take the children if another relative was unavailable. The children appeared healthy and clean, with no marks or bruises. With the consent of both parents, the Division of Youth and Family Services (DYFS) placed the children with a maternal great aunt.
DYFS filed an order to show cause and verified complaint, seeking care, custody and supervision of the four children.
Both parents appeared at the initial hearing. The children were placed in the immediate custody, care and supervision of DYFS.
Then began the mother's long efforts in an attempt to regain custody of her children. In 2006, she successfully completed an in-home parenting skills program and individual counseling. Her psychological evaluation revealed no mental illness, although it did indicate that she had "poor judgment" and was "lacking in insight." She obtained a full time job and had adequate housing and in September 2006, the counseling service recommended that the children be slowly transitioned home. The mother initially successfully participated in a substance abuse program, but on one occasion in June 2006 she tested positive for cocaine and in August 2006 she missed two consecutive drug counseling appointments. Although she was terminated from the program, she was then accepted into another program.
By February 2007, the counseling service again recommended that the children be returned home and the children were being transitioned back to the mother with unsupervised visits. Then in March 2007, when the children were scheduled to be returned to her, the mother tested positive for cocaine, and the children were not returned. The twins were then placed in a foster home where they exhibited behavioral problems.
By April 2007, the mother was attending drug therapy twice a week, group counseling twice a week, and NA meetings two to four times a week. She had one positive urine screen in May, but was otherwise doing well in the drug program. Then in June 2007, she tested positive for cocaine and stopped attending the program. By August 2007, the mother was placed again in an outpatient drug free rehabilitation program.
In September 2007, DYFS filed its complaint seeking termination of the parental rights of the mother and father. On the November 1, 2007 return date, the mother appeared with counsel and was ordered to submit to a psychological and bonding evaluation and an immediate drug screening, and DYFS was directed to arrange visitation. The day of the January 2008 hearing, the mother tested positive for cocaine. At the conclusion of the hearing, the trial court set a pretrial date for March 20, 2008. It did not instruct the mother that she must attend that hearing nor did it advise her that if she failed to attend a default would be entered against her.
On March 20, 2008, while the mother had been present in the courthouse that day, she left before the hearing began. As a result, upon application by DYFS, the trial court placed her in default. DYFS also reported that the mother was being discharged from the court-ordered outpatient substance ...