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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1727-09T4
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
Plaintiff-Respondent,
v.
J.G.,
Defendant-Appellant.
IN THE MATTER OF THE GUARDIANSHIP
OF G.G., Jr., D.G., and L.G.,
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Minors.
January 11, 2011
Submitted December 8, 2010 - Decided
Before Judges Fisher and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family
Part, Monmouth County, Docket No. FG-13-65-09.
Yvonne Smith Segars, Public Defender, attorney for appellant (Catherine Reid,
Designated Counsel, on the brief).
Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin,
Assistant Attorney General, of counsel; Lisa B. Landsman, Deputy Attorney
General, on the brief).
Yvonne Smith Segars, Public Defender, Law Guardian, attorney for the minor
children (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).
PER CURIAM
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
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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.
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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.
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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.
R
eversed  and  remanded.  We  do  not  retain  jurisdiction.
1We 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.
This archive is a service of Rutgers School of Law - Camden.
This archive is a service of Rutgers School of Law - Camden.
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