On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-131-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2010 - Decided
Before Judges Cuff, Simonelli and Fasciale.
Defendant J.R. appeals from the March 15, 2010 Family Part order terminating this Title 9 proceeding and denying his motion for reconsideration of a January 5, 2010 order, which required plaintiff Division of Youth and Family Services (Division) to file a guardianship complaint pursuant to Title 30 seeking to terminate his parental rights to his son, John,*fn1 born in September 2006. Because we conclude that the March 15, 2010 order was improperly entered without a fact-finding and dispositional hearing as to defendant, we reverse and remand for further proceedings.
The Division became involved with defendant and John's biological mother, T.F., on February 3, 2008, as the result of the death of their youngest child, Kelly, born in November 2007. T.F. dropped Kelly after giving her a bath at approximately 1:00 p.m. on February 2, 2008. T.F. also put her hand around the baby's throat, placed the baby's face under a faucet sink, shook the baby, and did not call 911 until approximately 10:30 p.m. the next day. Kelly died in the hospital. An autopsy report revealed that the child died from head trauma with bilateral subdural and subarachnoid hemorrhage.
Defendant and T.F. lived together at the time Kelly died. Although defendant was at work when the incident occurred. there is some evidence that he knew T.F. abused alcohol, suffered from post-partum depression, and asked him not to leave her alone with the children.*fn2 The Division filed a Title 9 complaint, naming defendant as a dispositional defendant. The Division removed John from the home on February 3, 2008, and placed him with his paternal grandmother, where he currently resides.
The court held a fact-finding hearing on February 11, 2009, and found by a preponderance of the evidence that T.F. had abused or neglected Kelly by failing to seek immediate medical attention after accidentally dropping the child. The court made no finding that defendant abused or neglected Kelly or the other children, or was linked to T.F.'s abuse or neglect of Kelly. Further, at the time of the fact-finding hearing, defendant and T.F. were not residing together, defendant had housing, was employed and voluntarily engaging in services the Division offered, and had a plan for reunification with his son. Subsequent to the fact-finding hearing, the court never held a dispositional hearing to determine whether John could be safely returned to defendant's custody.
"Both the fact-finding hearing and the dispositional hearing are critical stages in Title  Proceedings. Those hearings must be conducted 'with scrupulous adherence to procedural safeguards,' . . . and the trial court's conclusions must be based on material and relevant evidence. . . ." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009) (emphasis added) (quoting Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004)); see also N.J. Div. of Youth and Family Servs. v. N.D. ___ N.J. Super. ___ (App. Div. 2010) (slip op. at 15-17). A fact-finding hearing must be held prior to a dispositional hearing in order "'to determine whether the child is . . . abused or neglected.'" N.D., supra, (slip op. at 8) (alteration in original) (quoting N.J.S.A. 9:6-8.47; N.J.S.A. 9:6-8.44). "[W]ithout a finding or stipulation of abuse or neglect, the [court has] no authority to enter any order of disposition under Title 9. A dispositional hearing 'may commence' upon completion of the fact-finding hearing if 'the required findings are made.'" Id. at 18 (quoting N.J.S.A. 9:6-8.47(a)). "If the judge determines that abuse or neglect is not established, the Title 9 action must be dismissed. . .
[A]n order of disposition placing a child with a person other than the parent from whose custody the child was removed may be entered pursuant to N.J.S.A. 9:6-8.51 only if there is first a finding of abuse or neglect." Ibid. (citing N.J. Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 394 (1990)).
Further, even if there had been a finding of abuse or neglect, an order of disposition placing children outside the home of a parent who had custody at the time of removal could not be entered without a finding as to "whether the children may safely be returned to the custody of" that parent. [Ibid. (quoting G.M., supra, 198 N.J. at 402).]
At the dispositional hearing, the parent must be permitted to present material and relevant evidence showing that the children can be safely returned to the parent's custody. G.M., supra, 198 N.J. at 402.
In this case, the court never held a fact-finding hearing to determine whether defendant abused or neglected a child or was linked to T.F.'s abuse and neglect of Kelly. The court also never held a dispositional hearing to determine whether John could be safely returned to defendant's custody. The permanency hearings held in this case are no substitute for a fact-finding and dispositional hearing especially where, such as here, the Division provided no testimony as to why the matter should proceed to termination of J.R.'s parental rights. Indeed, the record of the January 5, 2010 permanency hearing underscores the inadequacy of this hearing. The judge requested to hear testimony from a Division representative because he could not determine why termination of parental rights was appropriate as to defendant. This request was followed by a recess after which the judge approved the permanency plan. The record is devoid of any explanation for this sudden shift. ...