On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-37-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 18, 2010
Before Judges Grall and C.L. Miniman.
Defendant D.N. appeals from an order denying his motion to vacate a default judgment terminating his parental rights to his son J.T.B. The judgment was entered following a proof hearing conducted after multiple defaults. Relying on N.J. Div. of Youth and Family Servs. v. P.W.R., 410 N.J. Super. 501, 506 (App. Div. 2009), certif. granted, 201 N.J. 440 (2010), defendant contends the default judgment must be vacated. In the alternative, he argues that the Division of Youth and Family Services (DYFS) failed to establish grounds adequate to terminate his parental rights.*fn1 After considering the evidence of defendant's multiple failures to defend as required by court orders, which effectively prevented DYFS from providing services to unite him with a child he never met, cared for or nurtured, we reject the claims and affirm.
J.T.B. was born in June 2007 to a mother, C.B., who was still a minor and in the legal custody of DYFS. DYFS commenced litigation to obtain custody of J.T.B. on June 15, 2007. Due to C.B.'s history of violent and disruptive behavior, failing to cooperate with treatment for her diagnosed mental illness and repeatedly running away from the homes in which she had been placed, the judge authorized J.T.B.'s removal and granted DYFS custody.
C.B. was not certain of the identity of J.T.B.'s father. She named three men, one of whom was defendant, who might be the father. DYFS was unable to locate defendant because C.B. knew him only by his first name and did not know his address or age. DYFS located the other men, but paternity testing established that neither could be J.T.B.'s father.
Due to C.B.'s subsequent failure to participate in the proceedings and comply with court orders addressing evaluations and visitation, the judge approved a permanency plan that called for termination of parental rights and adoption. When DYFS filed the guardianship complaint in August 2008, J.T.B.'s father was identified as "[D.] Last Name Unknown." Pursuant to N.J.S.A. 30:4C-17c, service on defendant was waived, and on October 23, 2008, default was entered against him.
C.B. did not provide defendant's surname until May 2009. A proof hearing to accept DYFS's proofs relevant to terminating parental rights was scheduled for May 7, 2009. According to C.B.'s testimony, she saw defendant on the street the day before the hearing, and defendant called DYFS and spoke with a supervisor. Although she still did not know defendant's age, address or anything about any member of his family, she gave the judge defendant's surname. But C.B. also testified that defendant knew about the child and knew that she had given his first name to DYFS. She said he knew about "all of it" and acknowledged that he had known "[s]ince the baby was born."
Defendant arrived at the hearing after C.B. testified. He confirmed his surname and provided his address. He also confirmed J.T.B.'s date of birth, and acknowledged that C.B. had informed him of J.T.B.'s birth.*fn2
Defendant admitted that he had never met the then twenty-three month old child and gave two explanations of the obligations that had limited his past involvement and would need to be accommodated in future proceedings. He said he had not tried to get custody of the child earlier because he is the "Executive Producer at Shiney Label [and] move[s] around a lot." The judge explained that counsel would be appointed for defendant, that he would be required to take a paternity test, undergo a psychological evaluation and drug testing, and attend future hearings to avoid default being entered against him. Defendant said, "I'm in the United States Marine[s]" and "going through a - a lesser discharge - honorable discharge." Defendant told the judge that his base was in Okinawa, Japan and that he believed his next departure would be in August. The judge indicated her willingness to accommodate his military obligations.
J.T.B.'s foster mother also attended the May 7 hearing and testified that J.T.B. had been in her home since August 2008 and was doing well. She described his health and daily routine and said she was "absolutely" committed to adopting J.T.B.
At the conclusion of the proceeding, defendant accepted and acknowledged on the record receipt of the amended complaint and order to show cause. The judge issued an order stating defendant's obligation to participate in a psychological evaluation and appear for a hearing on June 4, ...