On appeal from the Superior Court, Chancery Division, Family Part, Essex County.
Dreier and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
[247 NJSuper Page 38] The Division of Youth and Family Services (DYFS) appeals from a Family Part May 25, 1990 court order involving the alleged delinquent J.D. and the family of P.S., a DYFS foster mother.*fn1 J.D. was under the custody of DYFS and had been placed with the P.S. family, apparently with a view toward adoption. P.S. prompted the police to sign a delinquency complaint against J.D., alleging that J.D., along with another foster child, had sexually abused her neurologically impaired natural son and a foster son. On February 2, 1990, there was a detention hearing. The court ordered DYFS to investigate the D.D. family, where DYFS proposed to place J.D., based upon Mr. D.D.'s representation in court that J.D. was a friend of his companion's son and welcome in their home. After that hearing, P.S. brought an order to show cause to restrain DYFS from placing J.D. at the D.D. household because of its location, a short distance from her home.
On March 7, 1990, the court heard the matter and ordered DYFS not to place J.D. within ten miles of P.S.'s home, as P.S. requested. DYFS sought to vacate that order and P.S. moved to make the restraining order permanent resulting in a March 9 and March 30, 1990 hearing. On May 25, 1990, the judge modified the order, restraining J.D. and DYFS as follows:
Ordered, that the Division of Youth and Family Services is hereby restrained from placing the said [J.D.], a minor, in a foster home within three (3) miles of the home of [P.S.] . . .
FURTHER ORDERED, that the said [J.D.], a minor, is hereby restrained from interfering with [J.M.S.], a minor, and shall not present himself within three (3) miles of . . . the [P.S.] residence.
And it being further ORDERED that this matter shall be scheduled for review one (1) year from the date of this Order to determine whether or not the said restraints shall continue.
That order accorded with the judge's March 9th and March 30th oral opinions. On March 30th, the judge said his order was based upon J.D.'s guilty plea to the sexual offense and
DYFS' conduct in this case as an admission on their part that the child acted in an offensive way, criminally or not, sexually towards [P.S.'s] nine year old son.
Neither statement, however, concerning J.D.'s plea of guilt nor DYFS' admission of J.D.'s guilt, is supported in the record. On March 9, 1990, J.D. was represented by the Public Defender who requested that the delinquency matter be heard within two weeks. Yet on March 30, 1990, the judge said that J.D. had pleaded guilty on February 16, 1990. Although not provided to us, we requested and received a copy of that February 16, 1990 order which places the delinquency complaint on an inactive list for one year on conditions. No counsel is recorded as appearing for J.D. There is no evidence that a plea was taken.
According to respondent's brief, the evidence that J.D. committed any offense was that the other foster child in the P.S. household (who had been charged by P.S.) said so. According to respondent's certification before the trial court, P.S.'s natural son told her that another child had admitted sexual abuse on a third child, and "[h]e [the admitted abuser] had also indicated [to P.S.'s son] that [J.D.] had also sexually abused [two children]."
J.D. is reported as steadfastly denying any wrong conduct. On March 9, when the judge changed the restraints from a ten-mile radius of the P.S. home to a three-mile radius, the judge specifically rejected an attempt by the proposed foster father, Mr. D.D., to speak about whether J.D. was guilty. The ...