New Jersey Division of Child Protection and Permanency

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4020-14T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION

v. January 10, 2017

S.W., APPELLATE DIVISION

Defendant,

and

R.W.,

Defendant-Appellant.
___________________________________________

IN THE MATTER OF
AL.W., AN.W., M.W., and N.W.,

Minors.
___________________________________________

Submitted November 9, 2016 – Decided January 10, 2017

Before Judges Messano, Guadagno, and Suter.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Gloucester County, Docket No. FN-08-0052-13.

Joseph E. Krakora, Public Defender, attorney
for appellant (Laura M. Kalik, Designated
Counsel, on the briefs).
 Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa Puglisi,
Assistant Attorney General, of counsel;
Renard L. Scott, Deputy Attorney General, on
the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Danielle
Ruiz, Designated Counsel, on the brief).

The opinion of the court was delivered by

GUADAGNO, J.A.D.

Defendant R.W. appeals from a Family Part order finding he

abused or neglected four of his children. We are again asked to

review a threadbare record after the trial judge permitted the

parties to proceed "on the papers" by submitting reports

prepared by Division of Child Protection and Permanency

(Division) caseworkers, rather than taking testimony and making

credibility findings. This is the third time in the last four

months we have addressed the use of this truncated practice at

fact-finding hearings in a published opinion.

In New Jersey Division of Child Protection and Permanency

v. S.G., ____ N.J. Super. ____ (App. Div. 2016), the defendant

appealed an order that she abused or neglected her two-year-old

daughter. The judge allowed the parties to forgo the

presentation of witnesses and decided disputed material facts

based solely on redacted copies of a police report and

investigation summaries prepared by the Division. Id. at (slip

2 A-4020-14T4
op. at 3). We vacated the order and remanded for a testimonial

fact-finding hearing, concluding that testimony was required

when there are unresolved and disputed details regarding facts

of consequence to the determination of an abuse or neglect

finding. Id. at (slip op. at 16).

In New Jersey Division of Child Protection and Permanency

v. J.D., ____ N.J. Super. ____ (App. Div. 2016), the defendant

through his counsel agreed to a trial on the papers through the

admission into evidence of redacted documents. Id. at (slip op.

at 14). We affirmed the order that the defendant neglected his

son because the evidence was compelling and undisputed, but we

cautioned trial judges about the dangers inherent in

adjudicating contested trials on the papers. Id. at (slip op. at

22).

Here, the evidence of neglect is neither compelling nor

undisputed. We vacate the order finding defendant neglected his

children and again caution our trial judges: Where there are

contested facts in a Title Nine fact-finding hearing, forgoing

testimony in favor of the submission of documents serves neither

the defendant, who may be deprived an opportunity to present a

meaningful defense, nor the Division, which may be limited in

admitting all available proofs of a defendant's culpability. In

such cases, the trial judge, who possesses plenary authority

3 A-4020-14T4
over the conduct of hearings, must reject a proposal for a trial

on the papers and insist on testimony, even if the parties have

agreed to the procedure.

I.

From the record before us, we gather the following

information. Defendants R.W. and S.W. (Sophia)1 have at least

seven children together: M.W. (Martin), age five at the time of

the incident; N.W. (Norbert), age six; An.W. (Austin), age

fifteen; Al.W. (Alison), age sixteen; R.W., Jr. (Junior), age

twenty; J.W. (Julie), age twenty-one; and their oldest daughter,

Sh.W. (Sherry).

The Division's history with this family dates back to April

1997 when it received a referral that Sophia had run over Junior

with her car. Neglect was substantiated as to Sophia but there

is no indication that defendant was involved in the incident.

In July 1997, the Division received a report of neglect for

inadequate supervision. Defendant and Sophia admitted to

leaving their children unattended at home and both were

substantiated for neglect. Additional allegations of neglect in

1997, 2004, 2010, and 2011 were deemed unfounded or

unsubstantiated.

1
We employ pseudonyms to protect the privacy of the minors and
for clarity.

4 A-4020-14T4
 By 2012, defendant and Sophia had separated. Sophia moved

to Ocean City to live with her mother and defendant lived in a

duplex in Paulsboro. Sophia agreed to defendant having custody

of Martin, Norbert, Austin, and Alison.

Even though defendant had custody of the four children, he

was arrested on August 20, 2012, for failure to pay child

support. Following defendant's arrest, Junior brought the

children to Sophia's home. Defendant was released the same day

and contacted Sophia seeking to have the children returned to

him; Martin and Norbert returned, but Alison remained with

Sophia.

On August 22, 2012, defendant's oldest daughter Sherry,

contacted the Division and expressed concern for her younger

siblings. Sherry reported that parts of defendant's home were

without electricity and she believed defendant was using drugs.

A caseworker was assigned to investigate. Sophia told the

caseworker that after defendant's arrest, the children came to

Ocean City to stay with her, but she allowed Martin and Norbert

to return to defendant. Sophia told the caseworker that

defendant had used drugs in the past, but she left the children

with him because she believed he was doing better.

The caseworker went to defendant's home and spoke with

Sherry who confirmed defendant was arrested two days earlier for

5 A-4020-14T4
failing to pay child support. Sherry and Junior cared for the

children in defendant's absence. The caseworker spoke with

fifteen-year-old Austin who told her that after defendant's

arrest, Martin and Norbert were taken to Sophia's house. After

defendant's release, Norbert and Martin returned to defendant's

home, but Alison stayed with Sophia. Austin said there was

electricity on the second floor of his father's home, and

everyone slept upstairs. Austin told the caseworker he feels

safe with his father and would like to stay with him.

Six-year-old Norbert told the caseworker his mother left

him with defendant and Junior. His brother Austin helps him

when he takes a bath, defendant and Sherry cook for him, and

Junior takes him to school and to the doctors. The caseworker

found that Norbert appeared healthy and well groomed.

Sherry told the caseworker that defendant had been arrested

for failure to pay child support and suspected he may be using

drugs, although she has never witnessed him doing so. After his

release, defendant sent Sherry a text message stating he was

"going to get his life better," but she did not know what that

meant.

Junior interrupted the interview and when Sherry told him

that the Division had been called again, he became visibly upset

and stated "[i]f I find out who . . . called DYFS again, I am

6 A-4020-14T4
going to punch them in the face[.]" Sherry went inside to speak

with Junior and to prepare dinner for the children.

After Junior calmed down, he told the caseworker he

considers his brothers his "children" and ensures that they eat

and bathe every day. He also watches over them when defendant

leaves the home. After defendant's arrest, Junior took his

younger siblings to his mother's house. Defendant was released

the same day and Norbert and Martin returned the following day;

Alison remained with her mother in Ocean City. Junior did not

know if his father was using drugs, but told the caseworker that

he would not leave the children alone with defendant if he

appeared to be under the influence. Junior said he does not use

drugs or alcohol, and the caseworker noted that he appeared

coherent and cooperative during the interview. Junior denied

physically disciplining his younger siblings, and told the

caseworker that when the children misbehave he either makes them

sit on their bed and think about what they did, or takes away

their video game. Junior explained that the electricity to the

lower part of the duplex home was in Julie's name, and it had

been shut off. The family runs extension cords from the second

floor to the first floor in order to provide electricity for the

refrigerator and washing machine.

7 A-4020-14T4
 After examining the home, Sherry and Austin agreed to clean

up and remove a couch that smelled of urine. In her report, the

caseworker stated that the children were safe in the care of

Sherry and Junior.

Later that day, defendant came home and two caseworkers

returned to interview him. Defendant denied using drugs that

day, but admitted to using crack cocaine two days earlier after

he was released from jail. When defendant was arrested he left

the children in the care of Sherry and Junior. He admitted he

used cocaine in the past in the backyard while the children were

asleep, but denied ever using drugs in the home or around the

children.

Defendant told the caseworkers he was receiving drug

treatment and was scheduled for a drug screening on August 15,

2012, but had no way to get there. Defendant said he was

prescribed Percocet for a back and leg injury, however he was

unable to show proof of his prescription. Defendant became

emotional and told the caseworkers that Sophia left him with the

children, and did not help him with caring for them or paying

the bills. Defendant was two or three months behind on rent for

the duplex.

Defendant and Sophia agreed to a safety protection plan

whereby Sherry would supervise defendant's contact with the

8 A-4020-14T4
children. Defendant agreed to submit to drug testing and on the

following day, he tested positive for cocaine and opiates.

Because of defendant's positive drug test and the Division's

discovery that police had found baggies containing a white

powdery substance during the execution of a search warrant at

defendant's home on May 11, 2012, a revised safety protection

plan was executed requiring that Sherry take custody of Austin,

Martin, and Norbert and designate an alternate caregiver when

she was at work. Sherry agreed to care for the children until

August 31, 2012. On August 30, 2012, the Division executed an

emergency removal of Martin, Norbert, Austin, and Alison and

placed them in foster care as Sherry was no longer willing to

care for them. In June 2013, the children were returned to

Sophia, but in August 2013, she informed the Division that she

was homeless and the Division again placed the children in

foster care.

On June 17, 2013, defendant appeared for a compliance

review. The judge entered an order that day scheduling a fact-

finding hearing for September 12, 2013. For reasons not

apparent on the record before us, that hearing was advanced to

September 11, 2013. When the case was called, defendant's

counsel told the judge that defendant could not be there because

he was attempting to resolve an issue with his Medicaid

9 A-4020-14T4
coverage. Counsel confirmed the fact-finding had been scheduled

for September 12, 2013, but did not seek to adjourn the hearing

even after the judge suggested that if defendant had been

present, "there might have been more basis to negotiate."

Rather, counsel agreed to proceed with the hearing in

defendant's absence and to "just move the exhibits in."

The Division then submitted four exhibits: P-1, an

investigative summary dated August 22, 2012; P-2, two screening

summaries dated August 22 and October 18, 2012; P-3, two safety

plans dated August 23 and August 28, 2012; and P-4, contact

sheets dated August 22 and 23, 2012.

Both caseworker Marangelly Ortiz, and permanency worker

Ennis Thompson were present in court and presumably available to

testify. Even though defendant was not present, the judge

offered defendant's counsel the opportunity to cross-examine

Ortiz on her observations as recorded in the documents; counsel

declined.

When defendant's counsel learned that defendant had a prior

substantiation, presumably for the July 1997 inadequate

supervision incident, he appeared to trivialize the effect of a

second finding of abuse or neglect: "Yeah, my general point is,

. . . he's in the [Child Abuse] Registry now, you know, being in

the Registry twice is really not - -."

10 A-4020-14T4
 On November 19, 2013, the court entered an order finding by

a preponderance of the evidence that defendant

while responsible for the care of four of
his minor children, ages 16, 15, 6 & 5, used
crack cocaine, highly debilitating,
addictive & expensive on & between August 20
& 21 and on August 23 testing positive &
during this period also using prescription
opiates for pain and drinking to excess,
(alcohol) all increasing the risk, rendering
him unable to plan & care for the children
in a minimally adequate fashion placing the
children at risk of harm.

The order states that the judge's reasons supporting this

order were stated on the record, however there is no written

decision or transcript indicating the judge placed her reasons

supporting this order on the record.

II.

On appeal, defendant argues that there was insufficient

evidence to support the finding; the children were not at

substantial risk of harm or facing imminent danger; the trial

judge impermissibly expanded the legal definition of the minimum

degree of care as set forth in N.J.S.A. 9:9-8.21(c)(4)(b); and

the informality of the proceedings violated the principles set

forth in New Jersey Division of Youth and Family Services v.

J.Y., 352 N.J. Super. 245 (App. Div. 2002), thus denying

defendant due process.

11 A-4020-14T4
 N.J.S.A. 9:6-8.21(c) defines an abused or neglected child

as

a child less than 18 years of age whose
parent or guardian, as herein defined . . .
(2) creates or allows to be created a
substantial or ongoing risk of physical
injury to such child by other than
accidental means which would be likely to
cause death or serious or protracted
disfigurement, or protracted loss or
impairment of the function of any bodily
organ; . . . (4) or a child whose physical,
mental, or emotional condition has been
impaired or is in imminent danger of
becoming impaired as the result of the
failure of his parent or guardian, as herein
defined, to exercise a minimum degree of
care (a) in supplying the child with
adequate food, clothing, shelter, education,
medical or surgical care though financially
able to do so or though offered financial or
other reasonable means to do so, or (b) in
providing the child with proper supervision
or guardianship, by unreasonably inflicting
or allowing to be inflicted harm, or
substantial risk thereof[.]

The Division "must prove that the child is 'abused or

neglected' by a preponderance of the evidence, and only through

the admission of 'competent, material and relevant evidence.'"

N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32

(2011) (quoting N.J.S.A. 9:6-8.46(b)).

Our standard of review is well-settled. We are bound by

the family court's factual findings if supported by sufficient

credible evidence. N.J. Div. of Youth & Family Servs. v. I.H.C.,

12 A-4020-14T4
415 N.J. Super. 551, 577-78 (App. Div. 2010). As the judge here

made no factual findings, we review the record de novo.

Some facts are not in dispute: Defendant had custody of

the four youngest children after he and Sophia separated and she

moved to Ocean City; defendant received strong support from his

older children, Junior and Julie, who cared for their younger

siblings in his absence; when defendant was arrested on August

20, 2012, Junior took the children to Sophia's home; after

defendant's release, Martin and Norbert were returned to his

care; and Junior and Julie continued to assist defendant with

the care of the children at the home.

Significantly, there is not even a suggestion in the

present record, let alone proof by a preponderance, that any of

the children suffered harm during the three-day period addressed

by the November 19, 2013 order. As there is no evidence of

actual harm, our focus shifts to whether there is a threat of

harm, and we look to determine whether the Division has proven

"imminent danger or a substantial risk of harm to a child by a

preponderance of the evidence." N.J. Dep't of Children &

Families v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-

8.21(c)(4)(b), -8.46(b)).

As the judge did not provide an oral or written opinion, we

have only the brief handwritten statement found in her order to

13 A-4020-14T4
determine the basis for her conclusion. The order indicates

that the judge's conclusion that defendant placed the children

at a risk of harm was based on her finding that defendant used

crack cocaine between August 20 and 21; tested positive for

drugs on August 23; used prescription opiates for pain; and

drank alcohol to excess.

As to defendant's use of opiates, the judge never

acknowledged that a Division caseworker confirmed that defendant

had been a patient of a local orthopedist since 2006, had last

been seen by a physician there on August 2, 2012, had been

prescribed Percocet, and there was no concern by his physician

that defendant was abusing his medication. We are at a loss to

understand why the judge referenced defendant's prescribed use

of Percocet as a basis for her finding of abuse or neglect.

Similarly, there is no proof in the record that defendant

was impaired by his use of alcohol. Indeed, a caseworker

indicated that, when she interviewed defendant on August 29,

2012, he did not appear to be under the influence. The judge's

conclusion that defendant drank alcohol to excess is untethered

to any evidence in the record.2

2
On August 29, 2012, a caseworker observed nine empty beer
bottles outside of defendant's house, but defendant explained
that he consumed the beer with other friends. Nothing in the
record contradicts that assertion.

14 A-4020-14T4
 Defendant's admitted relapse and use of cocaine, even if

the children had been under his care, is not, standing alone,

sufficient to support a finding of abuse or neglect as the trial

judge appeared to find. N.J. Div. of Youth & Family Servs. v.

V.T., 423 N.J. Super. 320, 331-32 (App. Div. 2011). In V.T.,

the trial judge found that a father neglected his child based on

the father's refusal to attend substance abuse treatment, and

two positive drug tests for cocaine and marijuana during

supervised visits. Id. at 325-27. As in this case, the Division

presented no evidence of actual harm and no expert evidence that

the father posed a risk during visits with the child. Id. at

331.

We reversed, finding that "[a]ddiction is not easy to

successfully remediate; a failure to successfully defeat drug

addiction does not automatically equate to child abuse or

neglect." Ibid. We noted that even though drug use is illegal,

"Title 9 is not intended to extend to all parents who imbibe

illegal substances at any time. . . . [N]ot all instances of

drug ingestion by a parent will serve to substantiate a finding

of abuse or neglect." Id. at 331-32.

After defendant's arrest, the four children in his custody

were cared for by their older siblings Junior and Julie and then

taken that day to Sophia's house. There is no proof that

15 A-4020-14T4
defendant's relapse and use of cocaine after his release

following his arrest exposed any of these children to imminent

danger or a substantial risk of harm.

III.

We also find no evidence that defendant knowingly waived

his right to a fact-finding hearing, and agreed to have the

judge decide whether he abused or neglected his children solely

based on her review of reports prepared by Division caseworkers.

The fact-finding hearing is a critical element of the abuse

and neglect process. J.Y., supra, 352 N.J. Super. at 264. The

judge, as the fact-finder, must "determine whether the child is

an abused or neglected child as defined herein." N.J.S.A. 9:6-

8.44. A stipulation of fact may substitute for the introduction

of reliable evidence on a point, if "the consent of the parties

to be bound by it [is] clearly established." J.Y., supra, 352

N.J. Super. at 265.

As defendant's counsel was not aware that the date for the

fact-finding hearing had been advanced from September 12 to

September 11, 2013, it is unlikely that defendant knew about the

change before he spoke with his counsel that morning. Even the

judge expressed some confusion as to the date, stating, "[w]e

were supposed to be back September 12th, and this is September

11th." Although counsel spoke with defendant earlier that day,

16 A-4020-14T4
there is no indication that they discussed defendant's waiver of

his right to a fact-finding hearing, the implications of that

waiver, or that defendant agreed to the truncated procedure of

proceeding on the papers.

We have previously held that before a defendant stipulates

to a finding of abuse or neglect at a fact-finding hearing, the

Division

after consultation with defense counsel,
should advise the judge which specific
provision of N.J.S.A. 9:6-8.21(c) is
expected to be proven by way of defendant's
stipulated facts. The judge must then
explicitly inform the defendant: that by
agreeing to enter into a stipulation, she is
waiving her right to a hearing at which [the
Division] must prove abuse or neglect by a
preponderance of the evidence, . . . that at
such a hearing, the judge would determine
what documentary evidence and testimony
would be admitted, and that defendant,
through counsel, would have the right to
challenge the evidence and cross-examine the
witnesses, . . . that if the judge accepts
defendant's stipulated facts and concludes
they demonstrate abuse and/or neglect, the
judge will enter an order finding that
defendant has abused and/or neglected her
child; and, that as a result of that order,
[the Division] may seek termination of the
defendant's parental rights, and the judge
may remove, or continue the removal of, the
child from the defendant's custody, . . .
and/or require [the Division] to provide
such services as are deemed appropriate to
the ends of protecting the child and
rehabilitating and improving family life[.]

17 A-4020-14T4
 [Div. of Youth & Family Servs. v. M.D., 417
N.J. Super. 583, 617-18 (App. Div. 2011)
(citations omitted)].

We acknowledge that agreeing to have a judge decide a Title

Nine matter based on submitted documents does not automatically

result in the entry of a finding of abuse or neglect, as does a

stipulation to abuse or neglect. Nevertheless, statutory and

constitutional rights are impacted when a defendant waives the

right to testify on his own behalf, to call witnesses, to cross-

examine witnesses who testify against him, and to have a judge

make credibility determinations. We see no reason why the same

protections afforded to defendants entering stipulations of

abuse or neglect announced in M.D., should not be required when

a defendant waives the right to a fact-finding hearing.

Therefore, before a court permits a fact-finding hearing to

proceed "on the papers" the judge must ensure that the defendant

has been informed of the rights being waived, including the

right to a hearing where the Division has the burden of proof,

the right to testify and call witnesses, the right to confront

and cross-examine witnesses against him, and the right to have

the judge make credibility findings. The judge must then

determine that a defendant's waiver of these rights is clear and

unequivocal. As we did in M.D., supra, 417 N.J. Super. at 589,

we refer this issue to the Supreme Court's Committee on Practice

18 A-4020-14T4
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 waives a hearing and

agrees to a determination of abuse or neglect on the papers.

Even where a defendant makes a knowing waiver and agrees to

a determination on the papers, the judge is not required to

accede to the parties' intention to proceed in that fashion.

Trial judges are given wide discretion in exercising control

over their courtrooms, J.Y., supra, 352 N.J. Super. at 264

(citations omitted), and the trial judge has the ultimate

responsibility of conducting adjudicative proceedings in a

manner that complies with required formality in the taking of

evidence and the rendering of findings. If the record contains

conflicting facts critical to the determination, the judge must

reject the abbreviated procedure and proceed with a testimonial

hearing.

We find no evidence in the record that defendant's counsel

advised defendant that he had a right to a hearing, or that

defendant made a knowing and voluntary waiver of that right.

Due process requires that a parent charged with abuse or neglect

have "adequate notice and [an] opportunity to prepare and

respond[.]" N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J.

Super. 96, 109 (App. Div. 2010). Defendant's counsel's

19 A-4020-14T4
suggestion that the significance of this proceeding was somehow

diminished because defendant had a prior substantiation is also

troubling. From the record before us, we conclude that

defendant's counsel provided ineffective assistance by failing

to ensure that defendant received the minimal protections he was

entitled to during this "critical stage" of the proceedings. See

N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401

(2009).

Even if defendant had knowingly waived his right to a

hearing, the evidence presented through the Division's documents

was insufficient to establish that defendant abused or neglected

his children.

The order of November 19, 2013 finding that defendant

abused or neglected his children is vacated and the Division is

directed to remove defendant's name from the Central Child Abuse

Registry as to this incident within thirty days of the date of

this opinion.

Reversed.

20 A-4020-14T4