NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. IN THE MATTER OF THE GUARDIANSHIP OF (2011)

In this guardianship matter, the trial judge terminated the parental rights of defendant J.G. (defendant) to three children, G.G., Jr., D.G., and L.G. Defendant appealed, and then moved for a remand.

On June 18, 2010, we granted defendant's motion for a remand for two reasons.   As to G.G., Jr., and D.G., we remanded for reconsideration in light of the death of their foster mother during the pendency of the appeal;  as to L.G., we remanded for reconsideration of the default entered against defendant at the outset of the trial in light of our intervening decision in N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J.Super.   501 (App.Div.2009), certif. granted on other issues, 201 N.J. 440 (2010), which counseled against what appeared to be a routine practice of Family Part judges to enter default against defendants when they fail to appear for guardianship trials.   In response to our mandate, the trial judge reopened the proceedings with regard to G.G., Jr., and D.G. because of the death of their foster mother-a ruling not questioned here.   The judge also reconsidered but denied defendant relief from the default, thereby allowing to stand the judgment terminating defendant's parental rights to L.G. Those determinations were memorialized in an order entered on September 13, 2010.

Defendant now moves for summary reversal of that part of the September 13, 2010 order that denied relief from the default.   For the reasons that follow, we grant defendant's motion, reverse that part of the September 13, 2010 order, and remand for the reopening of the proceedings regarding defendant's parental rights to L.G.

I

The record reflects that default was entered against defendant on the first day of trial.   Default was entered solely because defendant failed to appear.   At that time, the trial judge stated that “[i]f nothing further eventuates, meaning a face comes in that back door that would cause me to alter the conclusion that I have just made that both biological parents are in default, the [c]ourt would then literally convert what is left into a default judgment proof hearing, and take it from that perspective.”   The judge later explained that this ruling meant that defendant “would be limited to only cross examination through [c]ounsel of any witness offered by Division's [c]ounsel,” and that defendant “would not be able to introduce any affirmative lay fact or expert testimony.”

Defendant appeared in court for the second day of trial.   Her attorney requested that the default be vacated, arguing defendant had “meritorious defenses ․ that the [c]ourt need[s] to be apprised of ․, particularly in the way of bonding and particularly in the matter of responses to the court ordered services by [defendant] during the pendency of the FM case[ ¹ ] and even after when it was converted to an FG case.”   The Division opposed the application, arguing that defendant had not appeared on the first day of trial and also failed to appear for certain pretrial evaluations.   In response to the judge's further inquiries, however, the Division candidly acknowledged that “all of our evaluations, our psychological evaluation, our bonding evaluation, they've all been completed.”   Notwithstanding that the default rested solely on defendant's failure to appear on the first day of trial, the judge refused to vacate the default.

The judge thereafter heard the testimony of defendant G.G., who voluntarily surrendered his parental rights, following which the court went into recess.   When the proceedings resumed, the judge observed that defendant was no longer present and noted that the “default posture” would be maintained.   When the Division rested later that day, the judge reminded defense counsel that because the “default posture” remained unchanged, defendant would be “precluded from presenting an affirmative case.”   With that and the parties' waiver of their right to present a summation, the record closed.   The judge later rendered a decision and entered judgment terminating defendants' parental rights to the three children in question.

II

In P.W.R., we rejected what appears to have been a common family court practice of defaulting defendants in guardianship matters when they fail to appear for trial, and we confirmed the principle that “a party represented by counsel may defend at trial without being physically present,” meaning that “default may not be entered when a party is not present at trial absent evidence that the party has not otherwise defended as required by rule or court order.”  Id. at 506.   Defendant correctly argues that we must reverse because the default was based solely on her failure to appear on the first day of trial and was not lifted when she appeared the second day.

We are mindful that in P.W.R., the judgment under review was affirmed notwithstanding the inappropriate entry of default but only because we were satisfied that the default had no material impact on the presentation of evidence.  Id. at 504.   Unlike P.W.R., defense counsel here argued that he intended to offer affirmative proofs, which were ultimately precluded because of the default.   Certainly, we agree that the better course would have been for defendant to remain in court on the second day of trial and urge, once the Division rested, the right to present that affirmative case;  had defendant taken that course, the judge may very well have relented.   Nevertheless, because the default should never have been entered, the judge's insistence on keeping defendant in default status after she had appeared for the start of the second day of trial undoubtedly had a chilling effect on her further participation and mistakenly precluded defendant's presentation of an affirmative case.   As a result, unlike the circumstances in P.W.R., we do not view the default here to be harmless.

III

For these reasons, we grant defendant's motion for summary disposition and reverse the judge's denial of reconsideration contained within his order of September 13, 2010.   We also reverse the entry of default against defendant at trial and, as a result, vacate the judgment under review and remand for further proceedings in conformity with this opinion.   To be clear, with the exception of the entry of default and the later refusal to lift it, we find no infirmity in the trial up to and through the testimony of G.G. on the second day of trial.   The termination proceedings with regard to L.G. should be resumed at that point.

Reversed and remanded.   We do not retain jurisdiction.

FOOTNOTES

FN1. We assume the reference to “FM” was actually intended to be a reference to the so-called FN case.   FN, FM and FG are prefixes included in docket numbers assigned to abuse or neglect actions, matrimonial actions, and guardianship actions, respectively..  FN1. We assume the reference to “FM” was actually intended to be a reference to the so-called FN case.   FN, FM and FG are prefixes included in docket numbers assigned to abuse or neglect actions, matrimonial actions, and guardianship actions, respectively.

PER CURIAM