The following DFYS appeal was recently decided by the Appellate Division, finding that a defendant’s failure to appear at a factfinding hearing does not warrant a default to be entered when the defendant’s attorney appeared on her behalf and the defendant did not violate any court order. Summary by Mark Friedman.
DYFS v. P.W.R., L.C., AND C.R., Jr./Matter of A.R., ? N.J. Super. ?, 2009 N.J. Super. LEXIS 241 (November 19, 2009) – “The judge in this Title 9 action defaulted a defendant because she did not attend the factfinding hearing even though her attorney appeared to represent her interests.
We conclude that, unless warranted by defendant’s failure to comply with a prior order and the potential for default was adequately noticed, a judge is not authorized to enter a default in this circumstance. However, because the default had no meaningful impact, we affirm…. A default based upon the failure to comply with an order requires as a predicate that the defendant received adequate notice that default may follow a failure to comply….
As we have explained, the prior order did not indicate that defendant would be defaulted if she failed to appear for the factfinding hearing. Moreover, even if it were possible to parse the language of the prior order in a way that would suggest otherwise, a court should not enter default when fundamental fairness counsels against it….
In urging that we uphold the judge’s decision to enter default in this case, the Division relies upon N.J.S.A. 9:6-8.42, which declares that ‘[i]f the parent or guardian is not present, the court may proceed to hear a complaint under this act only if the child is represented by a law guardian.’ Proceeding in a party’s absence is not the same as entering default….
As the judge declared in entering default here, defendant was precluded from putting on ‘an affirmative case.’ What the judge meant by this was not defined, but the common understanding attributable to this phrase would suggest that the default barred defendant from calling witnesses or offering other evidence. Such a ruling was not authorized or remotely suggested by N.J.S.A. 9:6-8.42.” (Mary Potter, Designated Counsel; Melissa R. Vance, A.D.P.D., Law Guardian)