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November 29, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-329-08.

The opinion of the court was delivered by: Grall, J.A.D.




Submitted October 4, 2010 - Decided Before Judges Rodriguez, Grall and LeWinn.

The opinion of the court was delivered by GRALL, J.A.D.

N.D. appeals from an order of disposition entered in an action for abuse and neglect filed by the Division of Youth and Family Services (the Division), N.J.S.A. 9:6-8.8 to -8.73 (Title 9). The Title 9 order transfers custody of T.W. from his mother N.D. to his father E.W., N.J.S.A. 9:6-8.54, for an indefinite period.

The order was entered without a fact-finding hearing, which is a prerequisite to a Title 9 disposition, N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382, 399-401 (2009). And, although N.D. consented to receipt of services pursuant to Title 30, the order was entered without a proper exercise of the Family Part's jurisdiction over custody and related matters pursuant to Title 30. N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252, 263-65 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). Non-compliance with the statutory framework for litigating a Title 9 or Title 30 action and inadequate notice of the issues being adjudicated warrant a remand for further proceedings. See G.M., supra, 198 N.J. at 401, 402 n.3.

On February 27, 2008, the Division, in an exercise of its authority under N.J.S.A. 9:6-8.29, removed T.W. from N.D.'s custody. On February 29, 2008, the Division filed a complaint and order to show cause alleging abuse or neglect by N.D. and seeking authorization to assume responsibility for T.W.'s care and supervision pursuant to Title 9 and Title 30. The judge granted the Division's request, and protracted litigation followed. The order of disposition was entered on August 12, 2009.

T.W. was born in September 1996, and the Division has been involved with this family several times, starting in 1999.*fn1 Over the years, the agency investigated two complaints filed by T.W.'s paternal grandmother, three filed by E.W., one filed by N.D., one filed by a neighbor and five filed by persons not described in the complaint. Most were unsubstantiated, and on the two prior occasions that the Division filed Title 9 complaints, the litigation ended with T.W.'s return to N.D. The last order of dismissal prior to this litigation was entered on December 1, 2005. It directs the parents not to use the Division to settle custody disputes and to use instead a non-dissolution proceeding between them.

In February 2008, T.W.'s custody was governed by an order entered in a non-dissolution case. N.D. had custody of T.W. and E.W. had visitation on weekends and holidays.*fn2 T.W. was then eleven years old.

On February 19, 2008, E.W. contacted the Division to report that T.W. told him N.D. had left him home alone, that her apartment was heated only by the oven and had electricity from an extension cord that N.D. plugged into an outlet in the basement of the building. A caseworker went to the home but no one responded; accordingly, the caseworker and her supervisor spoke to T.W. at his school. T.W. told them the apartment had been without heat for about a year and the electricity was being taken illegally from a source outside the dwelling. He also said his mother leaves him alone for three to four hours when she goes to night school. The caseworker went home with T.W. to speak to N.D., but N.D. did not answer the caseworker's questions about the utilities and told her to leave.

N.D. did not admit to taking electricity or being without heat for an extended period of time. According to her, the electricity bill had been paid and the furnace was undergoing repairs that could not be completed until the repairman received a necessary part.

On that evidence, the judge placed T.W. in the care and supervision of the Division on February 29, 2008 and directed the Division to provide N.D. and E.W. supervised visitation. On March 5, 2008, the Division placed T.W. with his paternal grandmother.

At the outset, the Division's plan was to return T.W. to his mother's custody. In March 2008, the Division's "family team" met with N.D. and concluded that she had "the ability to respond to her child's needs beyond the basic." The team anticipated "no barriers" to T.W.'s return to her custody if the conditions in her home "meet[] agency's safety and adequacy standards."

A caseworker visited N.D.'s apartment on April 21, and found all utilities in working order. N.D. did not, however, have anything to document her tenancy and admitted she could "be locked out of the home at anytime."

N.D. appeared for a fact-finding hearing on July 9 on the Division's allegation of abuse or neglect, but no evidence was received because the parties had agreed to a stipulation.

N.D.'s attorney questioned her about her understanding of the stipulation and its consequences. Their colloquy was as follows:

[N.D.'s attorney]: [D]id I speak to you about entering into a stipulation under Title 30 or proceeding to the fact finding hearing? [N.D.]: Yes. [N.D.'s attorney]: And do you understand that today the Division is alleging that you need the continued supervision of the Division, under Title 30:4C-12, because they're . . . stating that you acknowledge that there are enough child welfare concerns to warrant the Division's involvement in the case? [N.D.]: Yes. [N.D.'s attorney]: All right. And you understand that by doing a Title 30, there are no findings of abuse or neglect against you. [N.D.]: Yes. [N.D.'s attorney]: And you understand that by submitting to the jurisdiction of this [c]court, that the Division can continue to require you to do services, like parenting in the home, like family counseling with [T.W.], and so forth, specific services. [N.D.]: Yes.

The judge found that "the stipulation has been entered into voluntarily and . . . there are enough child welfare concerns in this matter in order to warrant the involvement of the Division and the [c]court, under Title 30."

The judge entered an order reflecting that N.D. and the Division stipulated that "there are enough child welfare concerns that warrant the Division's involvement." The reference to Title 30 was omitted. And, although there was no discussion of waiver of a fact-finding hearing on the record, the order reflects that N.D. "knowingly, willingly and voluntarily agreed to give ...

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