Opinion
DOCKET NO. A-4541-12T2
02-03-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.E., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.D. and D.D., Minors.
Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief). Victoria Galinski, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Galinski, on the brief). Lisa M. Black, Designated Counsel, argued the cause for minor, D.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-19-12.
Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief).
Victoria Galinski, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Galinski, on the brief).
Lisa M. Black, Designated Counsel, argued the cause for minor, D.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief). PER CURIAM
S.E. appeals from an August 31, 2012 default judgment terminating her parental rights to her son, D.D. (Dan), and the May 10, 2013 denial of her motion to vacate that judgment. Six weeks after the entry of judgment and well before S.E. filed her motion, Dan was adopted. Dan's adoptive parents are not parties to this appeal. Because the trial judge failed to make any finding on the four prongs of N.J.S.A. 30:4C-15.1 prior to entering the default judgment, we are constrained to reverse and remand for a new proof hearing. We do not, however, vacate the October 19, 2012 judgment of adoption pending remand.
This is a fictitious name employed to protect the child's privacy.
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Because of the truncated proceedings in the trial court, there are few facts in the record. What we know is that S.E. is the biological mother of three sons, A.E., C.D., and Dan. Dan, who was two years and four months old at his adoption, is the youngest of the three. S.E. has a long history of heroin abuse. The Division of Child Protection and Permanency (the Division) made an emergency removal of S.E.'s first child in March 2006 when he was seven months old because S.E. admitted buying and using heroin while caring for the baby. The Division substantiated neglect, and the baby was returned to S.E. after she entered an in-patient substance abuse treatment program.
S.E.'s second child tested positive for opiates and Hepatitis C at birth in March 2008. S.E. admitted to using heroin during her pregnancy. In June, S.E. was arrested and charged with possession of heroin with the intent to distribute. The Division made an emergency removal of both children in October after S.E. admitted to again using heroin. S.E. pled guilty to the drug charges and was sentenced to jail.
Dan was born on June 2, 2009, following S.E.'s release. The Division was awarded his care and supervision shortly thereafter, but S.E. retained legal and physical custody of Dan. S.E. again entered drug treatment. In August, she was reunited with her two older children at the Hope Residence of Eva's Village where she was living with Dan. S.E. was eventually terminated from the program with the result that she was charged with a violation of probation in January 2010.
In May, S.E. was arrested during a hearing in drug court after testing positive for heroin. The Division made an emergency removal of all three children. The Division was subsequently granted their custody, care and supervision. S.E. was released from jail in June to a long-term residential facility for in-patient substance abuse treatment. At a fact finding and permanency hearing in October, the court found that S.E. had abused or neglected her three children by abusing heroin while they were in her care and accepted the Division's plan for termination of parental rights followed by adoption.
The Division filed a complaint for guardianship in December. In September 2011, S.E. made an identified surrender of her parental rights to her two older children, A.E. and C.D. On September 12, 2011, the guardianship action was terminated and the child protective services proceeding reactivated as to Dan with care and custody continuing in the Division. A permanency order was subsequently entered in December extending attempts for reunification for six months.
S.E. attended a court hearing on March 23, 2012, with counsel. She was ordered to attend drug treatment, participate in counseling, submit to random drug screens, comply with the terms of her parole, and obtain housing and employment. She was also to continue supervised visitation with Dan and be afforded one hour of unsupervised visitation if her drug screens continued to be negative.
S.E. was again arrested for possession of heroin on April 29, 2012, and thereafter fled the State. Although she missed the May 18, 2012 case management conference, her counsel was present, and the Division advised the court of her arrest and subsequent disappearance. The judge temporarily suspended visitation and directed the Division to file a complaint for guardianship.
The Division filed its guardianship complaint and order to show cause on May 22, 2012. When personal service was unsuccessful, the Division sought the assistance of the Human Services Police, the Division of State Police, and S.E.'s parole officer in locating S.E. S.E.'s parole officer advised that the fugitive unit was attempting to apprehend her. The State Police provided S.E.'s two last known addresses, and the Division served S.E. at each by regular and certified mail. The Division also telephoned S.E.'s parents to ascertain her whereabouts and was advised that she might have gone to Virginia. The Division thereafter published a copy of the summons in the Star Ledger and the Richmond Times Dispatch.
When S.E. failed to appear on the return date of the order to show cause, the court entered default against her and scheduled a proof hearing. Although counsel for the Division advised the court that it would present its proofs at that hearing, the only evidence presented at the default hearing consisted of testimony verifying its previously filed affidavit of diligent inquiry. The court entered default judgment terminating S.E.'s parental rights to Dan on August 31, 2012, and he was subsequently adopted on October 19, 2012.
Also in October, S.E. surrendered to authorities after being advised that members of the fugitive unit had ascertained her whereabouts. S.E. was arrested and incarcerated at Edna Mahan Correctional Facility with a scheduled release date of August 2013. In March 2013, S.E. sought the appointment of counsel and a motion to vacate the default judgment was subsequently filed on her behalf. S.E. submitted a certification in support of the motion in which she explained that she fled to Virginia following her arrest for possession of narcotics on April 29, 2012, knowing she would be in violation of the terms of her parole. She stated that she stayed in Virginia for approximately one month and then returned to New Jersey, living in Nutley.
S.E. argued on the motion that the Division's efforts to locate her were "half-hearted," and that the procedure employed at the proof hearing failed to comply with the court rules or due process. She asserted the Division could have discovered, as the fugitive apparently unit did, that she maintained a Facebook page, and contacted her by leaving a message there. The judge rejected those arguments. Noting the five months that elapsed between Dan's adoption and S.E.'s motion to vacate the judgment, the judge found that S.E.'s willful decision to absent herself from ongoing proceedings while her child was in the custody of the Division, as well as the efforts made by the Division (and S.E.'s parole officers) to find her provided sufficient support for the entry of default judgment. S.E. renews those arguments on appeal.
We are satisfied that the Division properly effected service on S.E. in accordance with the substitute service rules, R. 4:4-4(b)(1)(c)(1), 4:4-5, Feuchtbaum v. Constantini, 59 N.J. 167, 181 (1971), and that such service comports with the requirements of due process. N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 457-71 (App. Div.), certif. denied, 177 N.J. 575 (2003), Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317, 70 S. Ct. 652, 658, 94 L. Ed. 865, 875 (1950). S.E. is a New Jersey citizen and was provided extensive services over several years. Her son was in the custody of the Division at the time she fled the state to avoid criminal consequences. As the means of service employed by the Division provided the notice required by our court rules, S.E.'s due process rights were not impugned by the trial court's exercise of jurisdiction over her. The entry of default was in accordance with Rule 4:43-1.
We cannot agree, however, that default judgment was properly entered in the absence of findings that termination was warranted under N.J.S.A. 30:4C-15.1. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). The law is well settled that a parental termination case which proceeds on the basis of a default must be concluded by a plenary proof hearing. N.J. Div. of Youth & Family Servs. v. L.H., 340 N.J. Super. 617, 620 (App. Div. 2001). The trial court is required to assess the proofs presented in order to make the detailed factual findings required under N.J.S.A. 30:4C-15.1. Id. at 619.
Although the trial judge advised the Division when the court entered default that the Division would be expected to present its proofs in order to obtain judgment, that was, inexplicably, not done. Accordingly, the judge's failure to grant the motion to vacate the default judgment was a mistaken exercise of discretion, Nowosleska v. Steele, 400 N.J. Super. 297, 302 (App. Div. 2008), and we are constrained to reverse and remand for a proper plenary proof hearing in accord with L.H., supra, 340 N.J. Super. at 620.
Like the trial judge, we are appropriately mindful that during the period when S.E. remained a fugitive, Dan was lawfully adopted. S.E. has not sought to set aside that adoption pending remand, and we do not do so. Whether this proceeding will have any effect on the adoption must await the outcome of the proof hearing. We reverse the entry of the guardianship judgment and remand for a plenary proof hearing pursuant to Rule 4:43-2(b). We do not retain jurisdiction.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION