June 25, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF J.I.D., A MINOR.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2012
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 proof is due by November 19th.
If there is something more though that needs to be done . . . please file a motion.
When the matter returned for the proof hearing on December 10, 2010, in support of her application to vacate the entry of default, defense counsel produced medical records confirming that T.R.R. had ongoing medical problems related to her heart. The records indicated she had been complaining of chest pain, on and off, since approximately June 2010. Both the law guardian and the Division's attorney opposed the application, arguing the medical records did not support T.R.R.'s failure to appear for evaluations because none of the contacts with the emergency room corresponded with any of the dates on which she missed the evaluations, and that there was no letter from a treating physician indicating her condition prevented her from "participating [in] and completing the services."
The court denied the application to vacate the entry of default but stated "in considering the proofs [it would] consider the application to vacate the default and the proofs and hear everybody as to all the evidence, and all of their arguments and put everything all together at once." The court immediately presided over the proof hearing, which consisted of T.R.R.'s medical records, the Division's records, and brief testimony from the Division's representative regarding where T.R.R. was living at the time, which the witness described as appropriate housing.
In an oral opinion immediately following the proof hearing, the court terminated T.R.R.'s parental rights to J.I.D., finding the Division proved that termination was in the best interest of J.I.D. On February 1, 2011, T.R.R. filed a motion to vacate the judgment, which the court denied in a written opinion. The present appeal followed.
On appeal, T.R.R. raises the following points for our consideration:
THE COURT ABUSED ITS D[I]SCRETION WHEN IT ENTERED A DEFAULT AGAINST THE DEFENDANT MOTHER BECAUSE SHE WAS NEVER ON NOTICE THAT FAILURE TO PRODUCE A DOCTOR'S NOTE WOULD RESULT IN DEFAULT.
THE COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF THE MOTHER BECAUSE DEFENDANT-APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED IN THAT SHE WAS NOT PERMITTED TO PUT ON A DEFENSE OR CROSS[-]EXAMINE WITNESSES IN HER TERMINATION OF PARENTAL RIGHTS TRIAL.
THE TRIAL COURT ERRED BY TERMINATING THE MOTHER'S PARENTAL RIGHTS BECAUSE THE COURT NEVER DETERMINED WHETHER TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD TO THE CHILD.
Because we conclude the court abused its discretion when entering the initial default and further abused its discretion in denying the application to vacate the entry of default, we need not address the remaining points raised.
"When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). DYFS failed to do so. While the court clearly told T.R.R. that she would need a note from a medical doctor if she were unable to attend the next scheduled psychological evaluation, it did not orally advise her that if she failed to appear, the court would enter default. The order entered contained appropriate language advising T.R.R. of this potential outcome. There is, however, no indication that T.R.R. saw the order, much less read it. Thus, in the absence of a clear statement to T.R.R. on the record explaining the consequences of her failure to obtain the doctor's notes if she failed to attend an evaluation, we cannot conclude that her failure to attend rose to the level of a willful failure to comply with a court order warranting the sanction of the entry of default, particularly in light of her well-documented history of mental illness. In addition, we note there were delays in moving the matter for other reasons, including a delay in completing the bonding evaluation of the foster parents that led defense counsel to represent to the court at the September 17, 2010 case management hearing that if the evaluation did not occur when rescheduled, he would be seeking to strike the Division's pleadings.
The evaluations were rescheduled for September 30, 2010. The medical records produced revealed that on October 1, 2010, T.R.R. was treated for dizziness and a urinary tract infection. The bonding evaluation was rescheduled for December 8, 2010, and T.R.R. appeared. Thus, the conduct resulting in the entry of default had been cured by the time of the trial. Rather than adjourn the trial for a short period of time, the court perpetuated its error when it denied T.R.R's application to set aside the default. New Jersey Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 434 (App. Div. 2001). "It is axiomatic that an application to vacate a default judgment is viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). Given the liberal standard by which a default judgment is set aside, it stands to reason that even greater liberality should be accorded to setting aside the entry of default where judgment has not yet been entered and there is no clear evidence that T.R.R. understood that not completing the evaluations when scheduled would result in the entry of default. See New Jersey Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 507 (App. Div. 2009) (holding "a default based upon the failure to comply with an order requires as a predicate that the defendant received adequate notice that default may follow a failure to comply" (citing T.J.B., supra, 338 N.J. Super. at 433), rev'd on other grounds, 205 N.J. 17 (2011)).
Reversed and remanded for the entry of an order vacating the entry of default and proceeding with the guardianship case. In view of the passage of time, an updated psychological evaluation, including bonding evaluations for both T.R.R. and the foster parents, may be required. We do not retain jurisdiction.