On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-109-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Grall.
E.D.H., the biological mother of D.D. and R.H., appeals from a dispositional order entered in a proceeding commenced by the Division of Youth and Family Services (Division) in the exercise of its authority to protect children under provisions of Title 9, N.J.S.A. 9:6-8.8 to -8.73, and Title 30, N.J.S.A. 30:4C-11 to -24. The order placed D.D. in the custody of her biological father, C.D., and terminated the proceedings. Because the court entered those orders on the mistaken assumption that E.D.H. had stipulated to abuse and neglect of D.D., we reverse and remand for further proceedings.
The Division received the referral that led to this litigation on October 31, 2008. The reporter advised that E.D.H., who was pregnant, did not look healthy and had tested positive for cocaine and admitted substance abuse. At that time, twelve-year-old D.D. was living with E.D.H. and W.H., the expectant father.
E.D.H. told the Division's caseworker that she took medication prescribed for her Bipolar Disorder but, with the exception of "a hit of pot" two months earlier, had not taken any other drugs. On the caseworker's request, E.D.H. signed a case plan agreeing to keep her home free of "abuse, neglect and substance abuse."
On December 1, 2008, the Division filed a complaint and order to show cause seeking responsibility for the care and supervision of D.D. D.D.'s father, C.D., who lived with E.D.H. until D.D. was two years old, was named in the Division's complaint. The court granted the Division's request, placed D.D. in the residential custody of her maternal grandparents, and scheduled a hearing on the order to show cause for January 2, 2009. C.D. appeared at the hearing. At that time, C.D. was living with his mother in a four-bedroom house. He asserted that he was ready, willing and able to care for D.D.
E.D.H. did not attend because she had given birth to R.H. days earlier. At his birth, R.H. was "lifeless, with no pulse," but he was revived and transported to a neonatal intensive care unit at another hospital, where he was prescribed methadone to address his withdrawal symptoms.
E.D.H. and W.H. married on January 2, 2009. On January 6, the Division amended its complaint to include R.H., and on January 7, the court granted the Division responsibility for the care and custody of R.H., who was still hospitalized. The court also directed the Division to consider whether D.D. could be placed with C.D. Subsequently, in August 2009, the court gave the Division approval to place D.D. with C.D.
Although the Division was scheduled to prove its allegations of abuse and neglect at a "fact-finding hearing," N.J.S.A. 9:6-8.44, on March 25, 2009, E.D.H. agreed to stipulate that she had abused and neglected R.H. The Division reported that there would be "a stipulation under Title 9" from E.D.H.*fn1
E.D.H.'s attorney stressed that her stipulation would relate "only to the newest child, [R.H.]." Thereafter, E.D.H. was placed under oath, and testified as follows:
Q: You realize we're here for a fact-finding hearing, a trial, where the Division would have the obligation of proving the case, that they present witnesses, I would have an opportunity as your attorney to cross-examine witnesses and we could ...