On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket FN-11-55-08.
The opinion of the court was delivered by: Nugent, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2012
Before Judges Sapp-Peterson, Nugent and Haas.
The opinion of the court was delivered by NUGENT, J.A.D.
Following a guardianship trial at which the Division of Youth and Family Services*fn1 (the Division) failed to prove a cause of action for terminating defendant T.S.'s parental rights to C.B. ("Charlie"),*fn2 the Family Part judge ordered that the "matter as to [defendant] . . . shall revert to the FN docket [number]" and scheduled a permanency hearing before another judge. On the date of the permanency hearing, the new judge, among other things, scheduled sua sponte an abuse or neglect fact-finding hearing. Following the fact-finding hearing, the judge determined by clear and convincing evidence defendant had abused or neglected Charlie, even though the Division had not informed defendant that he was Charlie's father until eight months after Charlie's birth, had not established defendant's paternity until nearly a year after Charlie's birth, had assumed responsibility for care and supervision of Charlie shortly after he was born, and had never relinquished its care and supervision of Charlie.
Defendant appeals from the abuse or neglect finding. We reverse and remand for further proceedings.
When Charlie was born prematurely on September 18, 2007, he tested positive for cocaine, as did his mother, K.B. ("Kathleen"). A Division caseworker responded to a referral from the hospital and interviewed Kathleen, who identified defendant as Charlie's father, though she had not put defendant's name on Charlie's birth certificate. A week later, the caseworker learned that the address where defendant supposedly resided did not exist.
On October 3, 2007, the Division filed a Verified Complaint "pursuant to N.J.S.A. 9:6-8.21 et seq., and N.J.S.A. 30:4C-12 and Rule 5:12-1 et seq." seeking custody of Charlie and a finding that he had been abused or neglected. After recounting its previous involvement with Kathleen and Charlie's "maternal half sibling," the Division explained its involvement with Charlie, and that it could not locate defendant. Following a hearing that same day, the court entered an order placing Charlie, who by then had been determined to be medically fragile, under the care and supervision of the Division. Kathleen attended the hearing; defendant did not, as he had not been served with the complaint.
On December 13, 2007, the court ordered that Charlie remain under the care and supervision of the Division, and that he remain in the physical custody of his current caregiver. The court also scheduled a fact-finding hearing for February 2008. On the date scheduled for the hearing, Kathleen appeared and admitted that she had ingested cocaine while pregnant. Defendant again did not appear because he had not been served with the complaint.
Defendant appeared for the first time, unrepresented by counsel, at a compliance review hearing on May 29, 2008. He had been located and served with a copy of the complaint and an order to show cause approximately two weeks earlier. The court ordered defendant to complete paternity testing. The paternity test results, which were received by the Division on August 21, 2008, indicated the probability of defendant being Charlie's father as 99.99%.
At the next compliance review hearing on September 30, 2008, though defendant had retained counsel, the court entered default against him for "non-appearance." The court also ordered the Division to provide defendant's counsel with discovery. The court entered a permanency order that approved the Division's permanency plan to terminate Kathleen's and defendant's parental rights to Charlie, followed by adoption.
Although the permanency order noted that Kathleen had a substance abuse issue and had refused in-patient treatment, it said nothing about defendant. The order noted that Charlie's foster family had agreed to adopt him.
Defendant failed to appear at a November compliance review hearing. He did appear with his attorney at a hearing on December 19, 2008, when the court entered an order terminating the FN action because the Division had filed a guardianship complaint the previous day. The guardianship complaint contained a single allegation against defendant:
It is the opinion of the Division that [defendant] has not been part of [Charlie's] life and has not fulfilled parental responsibilities to [Charlie]. He has not attempted to plan for his son. [Defendant] has abandoned [Charlie] to the care of others.
In addition to terminating the FN action, the court entered a case management order which, among other things, permitted defendant to visit ...