On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-108-09.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2011
Before Judges Carchman, Fisher and Baxter.
The opinion of the court was delivered by FISHER, J.A.D.
In this appeal, defendant H.P. argues, among other things, that an order declaring he abused or neglected his three children cannot stand because it was based on testimony heard by the court when defendant was not represented by counsel and because the judge utilized the "clear and convincing" instead of "preponderance" standard. We agree that the utilization of the clear and convincing standard was improper absent prior notice. And, although it might logically follow that the judge would have concluded that abuse or neglect was demonstrated by the lesser standard, his findings are insufficient to permit any safe conclusion. Accordingly, we vacate the order under review and remand for further proceedings.
The record on appeal reveals that H.P. has been married to defendant V.P. for many years. On December 5, 2008, when the events in question were set in motion, the couple's three children were eleven, eight and seven years old. On that day, the children were removed from the home by the Division of Youth and Family Services (the Division) and placed in separate foster homes,*fn1 based upon a referral of a domestic violence incident that occurred a week earlier.
The complaint, which invoked Title Nine, N.J.S.A. 9:6-8.21, was filed on December 9, 2008. The complaint recounted that the oldest child, A.P. (hereafter "Alice," a fictitious name), reported to school officials on Monday, December 1, 2008, that on Thanksgiving Day*fn2 her father, defendant H.P. (hereafter "defendant"*fn3 ), had "been drinking" and "tried to kill her mother" by "chok[ing]" her and "bang[ing] her head against the wall." According to the complaint, Alice called 9-1-1, and police officers arrived and arrested her father. The referral to the Division was not made by the school until December 5, 2008.
On December 9, 2008, the day the complaint was filed, the trial court conducted a hearing regarding the legitimacy of the children's removal. The record reflects that all parties --except defendant -- were represented by counsel at that hearing. An attorney from the Office of Parental Representation (OPR) representing defendant's wife, V.P., informed the court he "had advised [defendant] to remain silent at this point."
There is nothing in the record to suggest that anyone advised defendant of his right to counsel or how he could apply for representation through OPR. Instead, the judge simply commenced the hearing. Counsel for the Division provided an opening statement and then called a Division caseworker, who provided an account of the circumstances alleged in the complaint, that prompted the Division to remove the children. For the most part, the caseworker simply reported the content of the referral and the statements Alice had made to him and others about her father's conduct on Thanksgiving.
The caseworker also testified that he spoke with the younger children and recounted that the second oldest child, Anna (a fictitious name), told him that her father "would yell at her and beat her" with a belt; she also testified that the youngest child, H.P., Jr. (hereafter "Harold," also a fictitious name), stated "that his father would beat him with a belt . . . every night" and that, "[e]very weekend," his father "called his sisters fat pigs . . . and called him gay homo."
The caseworker testified that he visited the family home. At that time, both defendant and his wife were present. He spoke with defendant's wife, who said defendant "drinks excessively," and that, on the day in question, he was intoxicated and "a little bit out of control." She denied, however, that defendant "had threatened the children." Other than these generalities, the caseworker provided no other statements he received from defendant's wife regarding the incident; if he spoke with defendant during the course of his investigation, he was not asked at the hearing to reveal the content of those discussions.
The caseworker was cross-examined by counsel for defendant's wife and the Law Guardian. Among other things, it was revealed during cross-examination that there were prior allegations of domestic violence regarding defendant and his wife but none during the previous eight years. According to the transcript, the judge did not offer defendant the opportunity to cross-examine the witness. With that, the Division rested.
Defendant's wife was then called as a witness by her attorney and provided the following testimony:
Q. . . . Was there an incident . . . occurring on Thanksgiving?
A. No. This -- there was an incident like a week later or the following weekend, but there was no choking, there was no head-banging.
Q. Was there a physical altercation?
A. No. It was more grabbing. He started getting a little out of control, but it wasn't nothing -- nothing to call 911 about.
A. Yeah. My daughter . . . hid in the room and called 911. I didn't even know she called 911 until [the police] got there.
Q. So on that occasion, you did not flee to Lindenwold?
A. I fled to Lindenwold after he got arrested, which he got arrested for a traffic warrant. . . . A warrant for not going to court. It had nothing to do with domestic violence.
Q. So there was no ambulance involved --A. No.
A. No choke marks, no nothing. No.
Q. So a police report would indicate --A. Yes.
Q. -- that he was arrested for --
A. For violating -- for motor vehicle --what was it? -- for driving while suspended -- I don't know -- something with motor vehicle.
Defendant's wife also testified that after the Division caseworker stated that the children were going to be removed, she told him she would separate from defendant because she was willing ...