On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-96-09.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Messano and Waugh.
The opinion of the court was delivered by MESSANO, J.A.D.
This appeal requires us to consider a recurring issue in Title 9 and Title 30 litigation. Specifically, when a defendant stipulates to a finding of abuse and/or neglect at a fact-finding hearing, what information must counsel provide to the defendant to insure he or she has made a knowing and voluntary waiver of his or her rights, and what are the obligations of the judge in accepting such a stipulation? In this case, the issue arose in the context of a contentious divorce and bitter custody dispute.
We conclude that neither defense counsel nor the judge provided defendant with the minimum, necessary information regarding the consequences of the stipulation. We also conclude that given the significant rights a defendant waives by entering such a stipulation, and the frequency with which issues regarding these stipulations are raised on appeal, trial counsel and Family Part judges must make specific inquiries of the defendant on the record, as set forth below, before accepting a stipulation. We also refer the matter to the Supreme Court's Committee on Practice in the Family Part, and the Acting Administrative Director of the Courts, and suggest that a form be adopted and used at all fact-finding hearings wherein the defendant intends to stipulate to a finding of abuse and/or neglect.
Defendant M.D. appeals from two orders of the Family Part. The September 10, 2009 order terminated the Title 9 litigation initiated by the Division of Youth and Family Services (DYFS or the Division) and granted defendant's ex-husband, S.D., custody of the couple's three minor children. The December 10, 2009 order denied defendant's motion for reconsideration.
Although not specifically listed in defendant's Notice of Appeal, based upon her brief and the arguments of counsel, two other orders entered by a different Family Part judge are also at issue. On April 11, 2008, after a "Dodd" hearing, the judge ordered the continued removal of defendant's children from her custody.*fn2 See N.J.S.A. 9:6-8.31(b) (permitting "continued removal [when] necessary to avoid an ongoing risk to the child's life, safety or health"). At a September 17, 2008 fact-finding hearing, following defendant's stipulation, the judge entered an order finding that defendant had neglected her children by "le[aving] the burners and oven on in the home to heat the home thus posing a risk to the minor children."
On appeal, defendant has raised the following points for our consideration:
POINT I: M.D. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO AND DURING THE STIPULATION TO NEGLECT (not raised below).
POINT II: THE TRIAL COURT ERRED BY TRANSFERRING CUSTODY OF [George*fn3 ] TO HIS FATHER.
POINT III: M.D. WAS DENIED DUE PROCESS OF LAW AS THE CHANGE OF CUSTODY AT THE DISPOSITIONAL HEARING WAS CONDUCTED AT A LESSER EVIDENTIARY STANDARD THAN IT WOULD
HAVE BEEN HAD THE CHANGE OF CUSTODY OCCURRED UNDER THE FM DOCKET.
POINT IV: THE TRIAL COURT ERRED BY INTERVIEWING THE CHILD N.D. AND THE SUBSEQUENT INTERVIEW OF N.D. AND S.D. WAS INADEQUATE, DID NOT GIVE COUNSEL FOR M.D. AN OPPORTUNITY TO SUBMIT QUESTIONS PURSUANT TO R. 5:8-6, AND DID NOT GIVE M.D. AN OPPORTUNITY TO ANSWER THE ISSUES RAISED IN THE INTERVIEW (partially raised below). POINT V: THE EMERGENCY REMOVAL (DODD) HEARING VIOLATED M.D.'S CONSTITUTIONALLY PROTECTED RIGHTS AS IT FAILED TO ESTABLISH THAT REMOVAL OF S.D. AND G.D. FROM M.D.'S CARE WAS NECESSARY TO AVOID AN ONGOING RISK TO LIFE, SAFETY OR HEALTH OF THE CHILDREN.
Because we conclude that defendant was denied the effective assistance of counsel at the fact-finding hearing, we reverse.
(a) Defendant and S.D. are the parents of three children: a son, Neal, born in 1994; a daughter, Samantha, born in 1995; and a son, George, born in 2002. Well before DYFS initiated this complaint, defendant and S.D. had already appeared in the Family Part in other litigation.
For example, defendant had filed various domestic violence complaints against S.D. An amended final restraining order, dated October 27, 2006, granted defendant possession of the couple's home in Washington Township, barred S.D. from the residence and the children's elementary school, and awarded defendant custody of Samantha and George and gave S.D. custody of Neal.
In addition, defendant and S.D. were in the midst of a divorce. Although we cannot discern from the record when the complaint for divorce was filed, an order to show cause was entered on December 21, 2007, in the FM action granting S.D. temporary custody of all three children pending the return date on January 4, 2008. Defendant was granted "supervised custody with the children at [S.D.'s] discretion." The reasons, as listed by the judge on the face of the order, included S.D.'s certification that defendant had been "hospitalized . . . in an apparent suicide attempt." Although the order is not part of the record, the judge awarded defendant pendente lite custody of Samantha and George on the January return date. Thus, when these proceedings were initiated, on April 11, 2008, residential custody of Samantha and George remained with defendant, and Neal resided with his father.
The Division's verified complaint against defendant and S.D. sought custody of all three children. The complaint detailed the Division's contacts with the family, beginning in 1997 and ending with the removal of Samantha and George from defendant's custody on April 10, 2008. We recite some of the allegations to provide a more complete picture of the acrimonious relationship that existed between defendant and S.D.
On June 2, 1999, DYFS received a report that Samantha, three years old at the time, was found alone at the Clinton Community Care Center. Defendant had left her daughter with an adult friend while she ran errands, and that friend had forgotten the child at the Center. No finding of abuse or neglect was made.
On September 12, 2001, the Division received a referral from the Crisis Intervention Unit (CIU) alleging that defendant was "an untreated bi-polar, [had] pulled a knife on [S.D.] th[at] morning," and was "suicidal and homicidal." It is unclear who made the report to CIU.
When contacted by DYFS, S.D. was "rather complacent." DYFS assessed defendant at her home that day, and, although she was "visibly upset," she "was not irrational or erratic." Defendant denied any history of mental illness and told the caseworker that she was planning to divorce S.D., citing financial difficulties and various incidents of domestic violence. Defendant told the caseworker that she had dismissed an earlier restraining order against S.D. after being pressured by him and his family. The CIU worker interviewed defendant's neighbors who "reiterated that [S.D.] was the problem not [defendant]."
Defendant was taken to the local police department, a domestic violence temporary restraining order was issued against S.D., and he was ordered to leave the home.
The Division's caseworker interviewed Neal and Samantha the next day. Neal denied that his mother had threatened S.D. with a knife and both denied that they were fearful of their parents. Neal told the caseworker that his parents "ha[d] been arguing a lot," and that they "f[ou]ght a lot about money." When S.D. was interviewed by the Division two days later, he denied any incidents of domestic violence but admitted that defendant had previously obtained a restraining order against him. S.D. claimed that defendant was diagnosed with bi-polar disorder five years earlier, had repeatedly threatened him with knives and had threatened to kill him and the children. DYFS closed its case file in October 2001 without any finding of abuse or neglect.
In December 2004, the Division received a referral from Florida Child Protective Services regarding an incident that occurred on November 24 while the family was attending a motocross event in that state.*fn4 According to the report, when S.D. returned from the event late in the evening, he found the three children standing outside the motel room. They claimed to have left the room because defendant was making too much noise. S.D. confronted defendant, who was apparently speaking with a man from a neighboring room, and physically assaulted her. S.D. was arrested that night and made bail.
DYFS re-opened its file and conducted an investigation of the incident. Defendant told the caseworker that Neal was staying with S.D. in Florida. She claimed that her son went to Florida with S.D. every winter, had become "a professional dirt bike racer," and, because he had missed so much school, was being "home schooled while . . . in Florida." Defendant told the caseworker that Samantha had been diagnosed with "selective mutism," i.e., "she d[id] not talk to anyone she d[id] not know." The caseworker noted that Samantha did not respond when she greeted the child. George had "delayed speech" and was receiving in-home therapy. Defendant told the caseworker that she had filed for divorce in August.*fn5 She also reiterated some of the history of domestic violence that existed between her and her husband. DYFS referred defendant to a local domestic abuse resource center.
In February 2005, DYFS received an anonymous report that defendant left the three children unsupervised at home on multiple occasions. The reporter also stated that Neal was not registered in school because S.D. took him to motocross events at which Neal was paid. A DYFS caseworker met with all five members of the D. family. Defendant denied leaving the children alone. However, she verified that Neal and S.D. "travel[ed] all over the country so that [Neal] c[ould] compete in . . . motocross events[,]" where he "earn[ed] money." Defendant told DYFS that Neal was being tutored and was not "missing anything academically."
S.D. told the caseworker that his wife did not leave the children home alone. He also acknowledged that Neal was being privately tutored because he "miss[ed] too much school with his busy motocross schedule." S.D. denied any incidents of domestic violence other than his arrest in Florida.
Neal told the worker that defendant did not leave the children alone. Samantha "did not respond" to the worker's questions and George was too young to be interviewed. The caseworker noted that the children appeared clean and healthy. DYFS again concluded that there was no abuse or neglect of the
D. children and closed its case.
On December 14, 2007, Neal, in the company of S.D., reported to his counselor at Hunterdon Behavioral Health that several days earlier, defendant had taken his cell phone, hit him in the arm and threatened to "run him over with the car."*fn6 S.D. stated that defendant had obtained a restraining order against him, that she had a "history of yelling" at both him and the children, and that she "threw a knife at him" on December 9. DYFS interviewed Neal the next day, during which the boy claimed that his mother was "out of control," threatened to kill herself and "need[ed] help." DYFS interviewed defendant's mother who stated that "neither parent [wa]s . . . fit."*fn7
Defendant and S.D. were interviewed by a caseworker and both admitted to incidents of domestic violence in the home. S.D. said that he and defendant were going through a divorce, that he had custody of Neal, and, that while he did not intend to pursue custody of the other two children, he believed they should be removed from defendant's care. Defendant claimed that Neal was verbally and physically abusive toward her.
DYFS interviewed Samantha. She corroborated defendant's claim that Neal tried to hit their mother, that S.D. and defendant frequently fought and that both parents asked her to "say things against the other parent." George also told the caseworker that his parents fought all the time. DYFS concluded that the allegations of physical abuse by defendant toward Neal were unfounded, but recommended that defendant and S.D. undergo psychological evaluations and that the entire family attend therapy.
On December 21, 2007, DYFS received a referral from the Washington Township Police Department advising that defendant was taken to the Emergency Department at Warren Hospital. S.D. had called the police after receiving a text message from Samantha claiming that her mother was suicidal. Police officers dispatched to the family home convinced defendant to undergo a mental health assessment at the hospital. Defendant explained that she was not suicidal, and the crisis assessment team concluded that defendant was suffering from depression. After being issued a prescription, defendant was discharged. On the same day, S.D. sought the order to show cause we referenced above and obtained custody of all three children.
DYFS again conducted an investigation. At the time, defendant was staying with her sister because the furnace in her home needed repair and there was no heat. The Washington Township home was also in foreclosure. Defendant claimed that she was not suicidal and that Samantha had misunderstood a phone conversation defendant was having with her sister. Defendant told the caseworker that S.D. had taken Neal and George with him to Bermuda on vacation.
DYFS then interviewed Samantha who doubted that she had misconstrued her mother's phone conversation. Samantha preferred to live with S.D. or her paternal grandmother because defendant was mean and "d[id] not do anything for her," such as cook or clean. However, Samantha also told the caseworker that when she was mad at her grandmother, she sometimes texted defendant with false allegations, including claims that her grandmother was mean and hit her. The caseworker opined that Samantha seemed "coached" on what to say during the interview.
On January 18, 2008, DYFS received a report from Neal's doctor who had seen the boy and S.D. in his office that day. Neal claimed that defendant had kicked him in his lower back six to seven weeks prior. The doctor conducted an exam and found that the area "was not tender." He told DYFS that Neal's parents "may be having custody issues" and that "[S.D.] knew the child would tell him [about the incident] and that [the doctor]. . . would have to report this [to DYFS]."
When contacted by the Division, defendant denied kicking Neal. She also told DYFS that she had little contact with her oldest son, who now resided with S.D. in Chester at defendant's brother's apartment. Samantha told the caseworker that she "ha[d] no problems with her mom . . . [and that] [defendant] d[id] not use physical discipline and [wa]s not abusive." The caseworker concluded her report by noting, "it appears that until custody is resolved, referrals will continue to be made by the family."
The case was still open on February 1 when Samantha, accompanied by S.D., filed a police report alleging that defendant had entered her room while she was on the phone with her father, told her to get off the phone and hit her on her leg and arm. S.D. told the police that he "was going to the Family Court . . . to attempt to get a TRO to get full emergency custody of [Samantha] and [George] for their protection." S.D. told the caseworker that "he ha[d] his children at least 70% of the time and would like to attain full custody of all of his children because of his concerns with them living with their mother." S.D. told DYFS that he "need[ed] $5000 to have a custody evaluation done."
The Division's caseworker, however, did not observe any bruises or marks on Samantha, who also claimed that her mother had hit her approximately one month earlier. The child told the caseworker that her mother never made breakfast for her and her brother, and that "they ha[d] to go to school hungry each morning."
On Saturday, February 2, the children's paternal grandmother called DYFS. She stated that Samantha was at her home in Bethlehem, Pennsylvania, and was "afraid to return home with [defendant]," who had allegedly told the child over the phone the previous evening, "Thanks for calling DYFS on me." DYFS was already intending to interview the family that day.
When the DYFS caseworkers arrived at the Washington Township home, defendant expressed concern about her daughter, claiming she had not returned home from school, presumably the day before. Defendant told the caseworkers that S.D. was not paying child support, even though she had custody of the children. She acknowledged that there was no "custody agreement." Defendant stated that she was attending counseling and taking prescription medication including Wellbutrin and Zoloft. The ...