On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-29-11.
The opinion of the court was delivered by: Espinosa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Kennedy.
The opinion of the court was delivered by ESPINOSA, J.A.D.
M.G., the defendant in this appeal from a termination of parental rights, regularly appeared at scheduled hearings in the Title 9 and Title 30 proceedings against him, even when incarcerated, and was represented by counsel throughout. This case presents the question whether it was proper to enter default against him based upon his sporadic failures to comply with orders that required him to submit to evaluations and obtain services. We conclude that it was not. For the reasons that follow, we further find that the flaws in the procedures here resulted in a failure to provide M.G. with the "fundamentally fair procedures" required before his parental rights could be terminated. See N.J. Div. of Youth & Family Servs. v. T.J.B., 338 N.J. Super. 425, 433 (App. Div. 2001). We therefore reverse the termination order and remand for a new trial.
A.R.G. is the daughter of M.G. and his wife, F.C.-G.*fn1
When A.R.G. was born on December 24, 2009, she tested
positive for marijuana. On December 28, 2009, the Division of Youth
and Family Services (DYFS or the Division) executed an emergency
removal of A.R.G. pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30. At that
time, and at M.G.'s request, DYFS agreed to evaluate his aunt, L.P.,
as a placement option.
On December 30, 2009, DYFS filed a verified complaint alleging child abuse and neglect against both F.C.-G. and M.G. pursuant to N.J.S.A. 9:6-8.21 to -8.73, and asking the court to grant the Division continuing care and custody of A.R.G.; to find that she was abused or neglected; and to grant other relief as provided by N.J.S.A. 30:4C-12 and Rule 5:12-1 to -7.
From the time the initial Title 9 complaint was filed until his parental rights were terminated, M.G. regularly attended the scheduled hearings and was represented at each by counsel. His history of compliance with court-ordered evaluations and services can, however, be fairly characterized as checkered, and is summarized here to provide context.*fn2
M.G. was referred to a substance abuse evaluation on February 1, and completed that assessment on March 16, 2010.
On March 24, 2010, the court concluded that the Division had failed to prove abuse or neglect by M.G. or F.C.-G. Nonetheless, the court ordered that the matter proceed under Title 30 and scheduled a hearing for April 14, 2010. The court also ordered both parents "to comply with the substance abuse evaluations and psychological evaluations as set by the Division."*fn3
Approximately one week later, on April 1, 2010, M.G. underwent a psychological evaluation by Alan S. Gordon, Ed.D.
As of April 14, DYFS had not provided M.G. with either the report of his substance abuse evaluation or psychological evaluation. Nonetheless, the court ordered him to submit to weekly urine testing at DYFS's request and also required him to receive substance abuse treatment, marital counseling and parenting skills training. M.G. was ordered to submit to a urine screen "immediately" following the court hearing. Although DYFS contended M.G. did not appear for this screen, his attorney later reported that the results were negative.
Following the specific obligations imposed upon the defendants, a paragraph in the April 14 order included this language:
Failure to appear at a court hearing, unless excused by the Court, or failure to comply with the provisions of this order may result in entry of a default, termination of parental rights,*fn4 or such other relief and proceedings as the Court deems just. [Emphasis added.]
On May 4, 2010, the Division filed an amended verified complaint, seeking a finding of abuse or neglect. The order dated May 5, 2010*fn5 repeats the court's earlier determination that the Division had not sustained its burden of proof under Title 9 and that the matter should proceed under Title 30. The order entered default against M.G. "for non-compliance with the Court ordered drug screen and services as set by the Division." The court also ordered M.G. to produce proof of the following: his attendance at a substance abuse program and mental health counseling; his official class schedule; financial support for the child; home utility bills in his name; lease or mortgage in his name; and documentation of benefits.
On May 13, 2010, M.G. completed an initial intake at the Family Growth Program of Catholic Charities (Family Growth Program) for anger management and domestic violence counseling. He participated in three additional counseling sessions thereafter, the last of which was cut short by the counselor when M.G. stated he was only attending counseling to regain custody of his daughter and had no other issues to discuss.
Dr. Gordon's report of his psychological evaluation of M.G., dated April 23, 2010, made suggestions regarding services M.G. should receive but did not state further psychological evaluation was required. Nonetheless, an order dated May 17, 2010 directed M.G. to participate in a psychological evaluation.*fn6
In addition, the order required M.G. to submit to a substance abuse evaluation and weekly urine screenings, and also to attend counseling. On May 18, services provided to M.G. by the Preferred Children's Services Child Protection Substance Abuse Initiative were terminated as a result of his non-compliance.
On May 25, 2010, the parties were again ordered to provide a copy of their lease at the next hearing scheduled for June 1. As reflected in the May 25 order, M.G. provided evidence of job searches and school grades. M.G. was also ordered to engage in a substance abuse treatment program and to provide proof of ten job searches. He failed to enroll in a substance abuse program by the June 1 hearing, and was ordered to do so again. The court also found his proof of job searches on June 1 to be deficient and ordered that he provide proof of thirty job searches by the hearing date one week later.
On June 8, 2010, M.G. still had not engaged in a substance abuse program as ordered but he did produce proof of seventy job searches for the court. The order of that date reflects the court's consideration of a lease document, job searches and M.G.'s school schedule. The court again ordered that he participate in a substance abuse program and directed the Division to submit another referral for such treatment. On July 2, 2010, M.G. completed his court-ordered substance abuse intake and also submitted to a drug screen, which was negative.
On July 4, 2010, M.G. was arrested on a charge of simple assault and contempt of a domestic violence restraining order. He remained incarcerated until November 5, 2010.
Although in custody, M.G. appeared at the next hearing on July 27, 2010. Without any consideration as to what services were available to M.G. while incarcerated, the court ordered him to submit to another psychological evaluation, a substance abuse re-evaluation, weekly urine screenings and parenting skills training. M.G. was also ordered "to contact the Division for services upon his release from jail." The matter was scheduled for a compliance review on October 26, 2010.
Defendant was still incarcerated at the October 26 review hearing. Yet, he appeared and the court again ordered weekly urine screening, counseling and parenting skills training, and that he contact the Division for services upon his release. The order stated, "Default is entered against [M.G.] for non-compliance with services." At the hearing, the court provided its reasoning:
[A]t this point, Mr. [G. is] not following through on the services that were ordered for him because he's incarcerated. I find that that was a voluntary act on his part and that he's in default.
The court advised the parties they could file a formal motion to vacate the defaults, but stated that such motion had to be supported by a showing of a meritorious defense. The court stated further that the next hearing would be a permanency hearing and requested the Division to file an order to show cause or complaint if it intended to propose a termination of parental ...