On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-45-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
T.R.R. is the mother of J.I.D., born March 2, 2009. She appeals from the Family Part order terminating her parental rights over J.I.D. and granting guardianship to the Division of Youth and Family Services (Division). We conclude the trial judge mistakenly exercised his discretion when he denied T.R.R.'s motion to vacate the entry of default, which the court entered after T.R.R. failed to complete a scheduled psychological evaluation. We therefore reverse and remand for a new trial.
The circumstances leading up to the entry of default are not complex. T.R.R. suffers from schizophrenia, and the Division has been aware of this diagnosis since 2006, when it became involved with T.R.R. after she removed one of her children, who was diagnosed with lead poisoning, from the hospital against medical advice. When the Division visited T.R.R. to investigate the referral, a confrontation erupted, resulting in the police arriving to provide assistance to the Division caseworker. The Division effectuated an emergency removal of T.R.R.'s two children, whose father, A.D., was eventually granted custody of them. Then in 2008, the Division became involved again when it learned that T.R.R. was not taking her medication and living with A.D. and their children although she was prohibited from doing so. A.D. finally secured a restraining order against T.R.R. The Division learned at that time that she was pregnant.
When J.I.D. was born in March 2009, T.R.R. had been ordered by her psychiatrist to return to Trenton Psychiatric Hospital, where she had been admitted prior to J.I.D.'s birth, as soon as she gave birth to him. She had no discharge plan for J.I.D. Although she named A.D. as the father, he denied paternity.*fn1 The Division was able to place J.I.D. with a family friend, Y.S., with whom J.I.D. has remained and who has expressed a desire to adopt J.I.D. Thereafter, the court conducted a number of compliance proceedings. Because the Division concluded the goal of reunification was not being accomplished, it filed a complaint for guardianship on April 22, 2010.
On August 31, 2010, T.R.R. underwent psychological and bonding evaluations, which she did not complete for two reasons:
(1) she said she experienced heart palpitations during her evaluation; and (2) J.I.D. slept through the bonding evaluation with T.R.R. as well as with the foster parents. At the conclusion of the proceeding, the court indicated it wanted the order entered for the proceeding to "reflect that if [T.R.R.] is not able to complete the evaluation again due to heart issues that she'll need to obtain a doctor's note, a medical doctor's note." The order entered included this provision and also contained, in bold and capitalized letters, the standard language included in all guardianship multipurpose orders promulgated by "Assignment Judge memorandum (05/25/2010), CN:10263-English," which is set forth just under the signature line for the judge: "THE FAILURE OF THE DEFENDANTS TO COMPLY WITH ANY PROVISION OF THIS ORDER OR THEIR CONTINUING FAILURE TO APPEAR MAY RESULT IN A DEFAULT ENTERED BY THE COURT AND TERMINATION OF PARENTAL RIGHTS." The order directed that T.R.R. be prepared to appear in court on October 1, 2010 "at one hour's notice," but that if "her appearance is not requested her appearance will be waived."
The court did not require her appearance on October 1, but T.R.R. nonetheless appeared for the proceeding, designated as a "Case Management Review." When the court inquired whether T.R.R. "ma[d]e it to Dr. Gordon's office," the Division's attorney responded "No" and requested that T.R.R. be defaulted. T.R.R. told the court she left the note at home. When her attorney asked for permission to supplement the record with information regarding T.R.R.'s health condition, the court declined, discussing problems with its trial calendar and noting that although T.R.R.'s case was only listed as a "backup trial[,] it would still have been a live trial[,]" but could not have been one because she had not attended the evaluation. The court then stated:
The [c]court today enters a default against [T.R.R.] I don't think I've made a finding that she has a heart problem, that's what she says and that's why I wanted to have a doctor's note that she could not go to the appointment.
The matter will be listed for a default proof hearing on December 10th at nine a.m. The Division's affidavit of ...