DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.P and A.P

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

L.P.,

Defendant-Appellant,

and

A.P.,

Defendant-Respondent.

____________________________________

IN THE MATTER OF

A.P., Jr., D.P., and M.P., minors.

___________________________________________________

June 6, 2016

 

Submitted May 10, 2016 Decided

Before Judges Yannotti, Guadagno, and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-109-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent A.P. (John A. Salois, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.P., Jr., D.P., and M.P. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant L.P. (Lydia)1 appeals from a November 18, 2011 Family Part order granting sole legal and residential custody of her daughter, M.P. (Molly), to Lydia's ex-husband and Molly's father, A.P. (Amos). Lydia also appeals from the September 26, 2012 order terminating this Title 9 litigation.

Lydia raises several claims of error by the trial judge for the first time on appeal, including: denying her counsel at the initial removal hearing; accepting her stipulation of neglect in lieu of conducting a fact-finding hearing; failing to properly evaluate and place Molly with maternal relatives in Alabama; not ordering the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (Division), to provide her with appropriate services and make reasonable efforts to avoid placement of the children; admitting certain evidence without proper foundation or opportunity for cross-examination; and not ordering "effective visitation."

In addition, Lydia contends that after our remand to settle the trial record regarding purported missing documents relevant to her appeal, the trial judge failed to conduct "proper proceedings," which prejudiced her in presenting this appeal and asserting her claims of ineffective assistance of trial counsel.

After considering these arguments in light of the record and applicable law, we reject all but one, and affirm the November 18, 2011 order granting custody of Molly to Amos. However, Lydia's stipulation was insufficient to establish abuse or neglect, and we vacate the November 18, 2010 order finding that she abused or neglected her children and remand for a fact-finding hearing.

I.

Lydia and Amos were married and had three children, A.P., Jr. (Alan), D.P. (David), and Molly. They were divorced in January 2008. The final judgment of divorce awarded Lydia custody of the three children and Amos was given visitation on alternate weekends.

Shortly after the divorce, the Division began to receive referrals alleging abuse or neglect of the children. The first two referrals were investigated and deemed unfounded.

On March 18, 2010, the Division received a referral that there had been a drug raid at Lydia's house. The Division confirmed that police searched Lydia's home and arrested her paramour. Although Lydia was also charged in connection with the drug raid, the Division determined that the allegations against her were unfounded. The case remained open and Lydia was asked to submit to a substance abuse evaluation.

On April 12, 2010, the Division received a referral from Molly's school that Molly, who was nine years old, had been driven to school that morning by her fifteen-year-old brother David. The school reported an ongoing issue with Molly's excessive tardiness and absenteeism, which had been brought to Lydia's attention. A Division caseworker investigated the allegation and spoke with David and Molly. Both children confirmed that Lydia went into the bathroom that morning and would not come out. Aware that Molly's school was pursuing truancy charges against his mother, David drove his sister to school so his mother would not get in trouble. Even though Lydia later confirmed that she was aware that her unlicensed son drove Molly to school, the Division determined that neither child was placed at risk and deemed the allegations unfounded.

On May 1, 2010, the Division received a report that Lydia was abusing Oxycontin, oxycodone, and cocaine, and selling drugs as well. The Division scheduled a substance abuse evaluation for Lydia on May 11, 2010, which she failed to attend.

On June 4, 2010, the Division received another referral alleging drug use and dealing at Lydia's house. A caseworker questioned Lydia about the allegations, and she admitted to a prior arrest in Ft. Lee for possession of cocaine and that she was facing charges as a result of the March drug raid. Lydia told the caseworker that she might receive a jail sentence as a result of the charges and planned to send her children to live with relatives in Alabama if that occurred. The caseworker learned that Molly had thirteen unexcused absences at school and truancy charges had been filed against Lydia.

On July 12, 2010, Lydia submitted to a random urine screen and tested positive for cocaine and opiates. The Division developed a case plan calling for Lydia to submit to substance abuse and psychological evaluations, and for her two older children, Alan and David, to undergo drug testing. Lydia was then scheduled for a psychological evaluation, which she failed to attend.

On July 27, 2010, Lydia contacted the Division and reported that she had been evicted and was homeless. A caseworker placed Lydia and the children temporarily in a hotel. While at the hotel with the family, a caseworker observed a man approach Alan and give him something, which Alan quickly put into his pocket and then passed to his mother. When the worker questioned Alan about the incident, he stated that the man had given him Oxycontin for his mother.

Based upon Alan's statement, the worker told Lydia that the Division would effectuate an immediate emergency removal of the children and assume custody. Alan and David became aggressive towards the worker, and the police were called. The boys attempted to flee, but were apprehended. Later, both boys tested positive for marijuana. Alan and Molly were placed in resource homes, while David was sent to the Middlesex County Youth Shelter.

The Division filed a complaint and an order to show cause, seeking care, custody, and supervision of the three children. On July 29, 2010, a hearing was held on the removal. The judge addressed Lydia and asked whether she was requesting the appointment of the public defender to represent her. Lydia responded that she was represented by private counsel, and identified her attorney by name. She then stated that her attorney could not attend because he had other matters on his calendar. The judge told Lydia to remind her attorney to submit a letter of representation.

The judge then explained to Lydia that he would be hearing testimony that day and that she was welcome, but not required, to testify. The judge also told Lydia about her right to cross-examine the Division's witnesses. Lydia acknowledged that she understood all of the judge's instructions.

The judge swore in Lydia and Adrian Zeyez, the caseworker who witnessed the alleged drug transaction. Although Zeyez was available to testify, the Division decided to rely on the allegations contained in the complaint. The judge summarized the allegations and asked Lydia if she wanted to present any evidence. Lydia stated that the allegations in the complaint were "totally untrue," and proceeded to give her version of events leading to the children's removal.

Lydia claimed that she called the Division to report that she was sitting outside of her apartment complex with her children and was homeless. Zeyez arrived and began making efforts to find them temporary housing. A friend of Lydia's, who she only identified as "Mike," spoke briefly to her and one of her sons.

Lydia stated that after about an hour, a police officer approached her and said the Division was going to take her children because Zeyez saw her son Alan buy Oxycontin from "Mike" and give it to her. Lydia was surprised, claiming Alan had done no such thing. Lydia then stated that she had never taken Oxycontin. She stated that her sons ran away from the police because they did not want to be removed from their mother, not because they had done anything illegal. Lydia argued that the Division had fabricated the drug transaction to "break [her family] apart."

The judge then asked Lydia about her positive drug test for cocaine and opiates. She denied ever taking illegal substances and implied that the Division fabricated the test results. The judge did not find Lydia credible and ordered continued custody of the children with the Division.

On August 19, 2010, the judge held a hearing on the order to show cause. Lydia was now represented by the public defender. Amos also appeared and requested appointment of counsel. The Division produced Lydia's recent drug test results, which were positive for cocaine and opiates. Lydia disputed the test results and claimed that her urine was switched with someone else's sample. Both Lydia and Amos submitted to urine screens that day. Lydia tested positive for benzodiazepine and morphine, while Amos was negative for all illicit substances.

The judge continued the Division's custody of the children and ordered Lydia to complete a psychiatric evaluation and engage in substance abuse treatment. Amos indicated a desire to begin visitation if the children were willing. The judge ordered the Division to arrange psychological and psychiatric evaluations for Amos, and to provide him with supervised visitation.

On September 13, 2010, Lydia pled guilty to conspiracy to possess cocaine. On September 28, 2010, Lydia submitted to a psychiatric evaluation conducted by Alexander Iofin, M.D. Lydia acknowledged taking several drugs for treatment of her chronic pain problems associated with a motor vehicle accident. She acknowledged taking Xanax, which she said was taken as a muscle relaxant. She denied ever using illicit drugs. Dr. Iofin diagnosed Lydia with cocaine abuse, pain disorder associated with both psychological factors and medical/orthopedic conditions, and adjustment disorder with emotional disturbance. He recommended that the Division continue to monitor her for substance abuse.

On October 14, 2010, Lydia submitted to a psychological evaluation by Sarah Seung-McFarland, Ph.D. Lydia admitted taking Mobic, Avenza, MS-Contin (morphine), Oxycodone, Soma, Neurotin, Xanax, and Valium. Lydia acknowledged her guilty plea to conspiracy to possess cocaine and explained that she committed the crime because she needed a down payment for her house.

Seung-McFarland diagnosed Lydia with narcissistic personality disorder with histrionic features, and concluded

Given [Lydia]'s high level of defensiveness at this time, the prognosis for the family is poor. If [Lydia] continues to minimize/justify her behaviors and place blame on others, she will not be able to be appropriately protective of her children, and meet their needs for structure, boundaries, and nurturance. Therefore, this family is at a high risk for continued allegations of neglect.

On October 18, 2010, Lydia was sentenced to a five-year term of probation conditioned on her serving a 180-day term of incarceration.

The Family Part judge held a case management conference on October 22, 2010. Lydia was incarcerated, but was produced for the proceeding. Dr. Iofin's report was presented, as were Amos' medical records showing previous diagnoses of bipolar disorder and cocaine dependence. The Division reported that Amos had been cooperative with the Division's requests. Lydia had proposed placement of the children with a relative in Alabama, and the Division submitted an interstate request to evaluate the family.

On November 4, 2010, Amos submitted to a psychological evaluation by Amy L. Kavanaugh, Ph.D. Amos told Kavanaugh that he previously suffered from depression, and recalled one instance of domestic violence with Lydia, when he struck her. Amos admitted to using cocaine for about ten years. Kavanaugh recommended that Amos participate in individual psychotherapy, complete a substance abuse evaluation, and take parenting skills classes.

On November 18, 2010, a fact-finding hearing was scheduled. Lydia's attorney indicated that Lydia denied most of the allegations in the complaint, but offered to waive a hearing and enter a limited stipulation. During questioning by her attorney, Lydia explained that on July 27, 2010, she contacted the Division after she had been evicted. Her attorney then asked Lydia if she understood that not being able to provide her children with shelter constituted abuse or neglect. Lydia responded that she understood and, based on the stipulation, the judge made a finding that Lydia abused or neglected her children.

Lydia was offered therapeutic visitation, but resisted because she claimed the Division's therapist was one-sided. She also opposed participating in substance abuse treatment because she claimed she did not need it.

At a compliance review on February 17, 2011, the Division reported that Amos had complied with mental health treatment and participated in Narcotics Anonymous (NA) meetings. Amos expressed his desire to comply with all Division-recommended services in hopes of reestablishing a relationship with his children. Lydia tested positive for amphetamine and reported taking Flexeril, Neurontin, Zantac, and Seroquel. She again objected to participating in substance abuse treatment, claiming she did not need it.

At a March 25, 2011 compliance review, a letter from the director of Multicultural Community Services was presented, reporting that Lydia did not qualify for case management or parenting skills classes due to her "complicated medical conditions, mental health issues, and addiction, complicated by her need to take various pain medication for spinal and neck pain."

Amos completed an initial substance abuse evaluation at the University of Medicine and Dentistry of New Jersey and was negative for all illicit substances. He was diagnosed with bipolar disorder, not otherwise specified (NOS), and cocaine dependence. He continued attending NA meetings. The deputy attorney general reported that Amos "certainly complied with everything the Division [has] asked him to do," and his supervised visits were "going well."

At the May 6, 2011 compliance review, a report from Lydia's intensive outpatient program was produced, stating

[Lydia] was not willing to share her previous psychological evaluation which she indicated was not an accurate assessment of her situation. [Lydia] denied any substance use despite previous evidence to the contrary. These factors, along with the negative urine screen, indicate that [Lydia]'s mental health is the primary problem at this time and should be evaluated to determine a course of treatment that would best meet [Lydia]'s needs. Unfortunately, I do not believe that the Level II.1 (Intensive Outpatient) substance abuse treatment that we offer in our facility would be beneficial to [Lydia] at this time.

It was reported that Amos had successfully completed a parenting skills class, was compliant with his mental health services at Raritan Bay, and had been expressing a strong interest in building his relationships with all of his children.

Lydia and Amos submitted to in-court urine screens. Amos tested negative for all illicit substances, and Lydia was positive for morphine and tetrahydrocannabinol (THC), the main psychoactive component of marijuana. Lydia objected to the initial results and was positive for the same two substances when she was retested. Molly's law guardian related Molly's reluctance to visit with Amos, and the judge suspended his visitation with her until family therapy could commence.

At the June 10, 2011 compliance review, the Division reported that Molly and Amos had begun therapeutic visitation, which was going very well. The Division also reported that Amos was compliant with mental health treatment and that Lydia remained homeless. Lydia's attorney reported that Lydia believed everybody was against her, including her own attorney. Molly had been placed with her maternal aunt and uncle in Edison. The judge permitted Amos to have unsupervised visitation with Molly if she agreed.

A permanency hearing was held on July 7, 2011. The Division reported that Lydia had been terminated from treatment at Community Care Behavioral Health because she did not have a permanent residential address. Lydia had rejected Social Service's offers of housing at three local shelters. Lydia also attended an initial intake appointment at Substance Abuse Initiative (SAI), but on June 29, 2011, she tested positive for opiates. Molly reported to her therapist that she enjoys her visits with her father and feels comfortable being around him.

The judge entered a permanency order approving the Division's permanency plan for Molly of reunification with either Amos or Lydia. The judge increased unsupervised visitation by both parents and permitted Amos overnight visitation with Molly.

On July 29, 2011, the Division informed the judge that Lydia's maternal relatives in Edison were no longer willing to care for Molly due to Lydia's inappropriate behaviors toward them, including threatening phone calls and text messages. Those relatives filed a restraining order against Lydia. The Division also reported positive results from family therapy between Molly and Amos, noting that their "relationship was moving forward and making progress."

On August 3, 2011, the Division informed the court that Molly had been placed with Amos the previous day because the Edison relatives were no longer an option, placement in a resource home would have been too traumatic, and Amos had been compliant with all provided services. The Division further reported

When [Molly] arrived at her father's home she cried, but her brother [Alan] was very comforting to her. [Amos]'s girlfriend responded appropriately to [Molly] also. Both [Amos] and his girlfriend are willing to support [Molly] through her adjustment. [Molly] loves her father and the Division would like to see this family have a successful outcome. On August 9, 2011, caseworker, [E.B.] went to see [Molly] in her home. [Molly] is doing very well, she gets along with dad's girlfriend and is happy. In order to help [Molly] continue with her transition home, the Division has spoken with the . . . family therapist who will provide increased sessions to help the family adjust. Also, [Molly]'s individual therapist . . . is planning to see [Molly] in order to assist with her adjustment home.

At a dispositional hearing on October 28, 2011, the Division reported that Lydia had missed four recently scheduled visits with her children due to her failure to confirm them in advance. SAI reported that Lydia recently tested positive for cocaine once and prescription opiates three times. As of September 30, 2011, she had additionally tested positive for cocaine twice, prescription benzodiazepines three times, and prescription opiates four times. Amos had consistently been attending NA meetings.

The Division also admitted a report of Molly's and Amos's therapy. The therapist recalled Molly's feelings with respect to residing with her father

She has stated . . . that she feels comfortable in her father's care and enjoys spending time with both him and his girlfriend, who also lives in the home. She

is upset however that she will not be living in Alabama with her cousins and brother as she thought she would be.

The judge appointed a guardian ad litem (GAL) for Molly who reported that Molly was "getting along with" Amos. Amos was collecting permanent disability, and planned to move from a one-bedroom home to a three-floor townhome to provide Molly with her own room. The GAL concluded

[Amos] appears to be an appropriate residential custodian for [Molly] and the pair appear to be functioning well together. The law clearly favors a fit parent over another well-meaning family member or other third party. Therefore, it is clear that it is in [Molly]'s best interest that [Amos] continue to serve as [Molly]'s parent of primary residence.

The judge also heard reports that Molly was flourishing in school, participating in extracurricular activities, and engaging in positive experiences with Amos. Amos continued to attend NA meetings.

At the hearing, Lydia conceded that she was not able to care for Molly because she lacked shelter and acknowledged that she had not "finished treatment." The Division sought placement of Molly with Amos, while the law guardian and Lydia urged placement with the Alabama relatives. Neither the Division nor the law guardian presented any witnesses.

Amos testified that he had complied with Division-provided services, including mental health evaluations, substance abuse evaluations, NA meetings, parenting classes, family counseling, and individual counseling. He was not taking any medication, was currently living with his fiancée in an apartment, and had secured a larger townhome so that Molly would have her own bedroom. He was collecting Social Security disability benefits and his fiancée was employed as a licensed practical nurse. Molly was thriving in school.

By oral decision and order dated November 18, 2011, the judge transferred legal and physical custody of Molly to Amos. The judge noted that Lydia consented to placement with Amos, as she could not be a resource for the child. The Division and the law guardian also supported placement with Amos. The judge noted that Amos had complied with all recommended services, while Lydia was not attending recommended substance abuse treatment, continued to test positive for drugs, missed a number of individual counselling sessions, did not attend group sessions, and did not visit consistently with Molly. Molly's therapist reported that she was well adjusted in Amos' care "and appears genuinely happy living with her dad and his girlfriend." The judge concluded: "For all of those reasons, [Lydia] has not been able to ameliorate the risk of harm to the child that existed when this case came into the Division."

The judge allowed Lydia supervised visitation at Amos' discretion, so long as she complied with substance abuse treatment as well as individual and group counseling.

After an order was entered terminating litigation, Lydia filed a notice of appeal from the November 18, 2011 order. In April 2013, Lydia's appellate counsel filed a motion pursuant to Rule 5:12-3 to compel production of certain documents, which counsel claimed were part of the record but were not provided. By order dated May 2, 2013, we granted the motion. Subsequently, some, but not all of the requested documents were produced.

In July 2013, Lydia's appellate counsel moved for a remand to settle the trial record pursuant to Rule 2:5-5(a). Counsel identified nine missing documents. By order dated August 6, 2013, we granted the motion.

Also in July 2013, Lydia's appellate counsel moved for an order compelling parenting time or, in the alternative, for a limited remand directing entry of an order granting parenting time. On August 7, 2013, we granted that motion.

The trial judge held three hearings to resolve the remand issues. On October 4, 2013, the Division represented that it had provided "most of the documents" and represented that the outstanding documents were not admitted into evidence at trial and, therefore, were not relevant to the pending appeal. The judge located three of the nine missing documents in the court file and provided them to the parties.

On October 18, 2013, Lydia's counsel represented that nine documents remained missing. The judge said that she would attempt to retrieve the documents through the court's digital recording system and, if unsuccessful, would hold another hearing.

The law guardian advised the judge that she had located several missing documents and believed the remaining ones did not exist. The law guardian also reported interviewing Molly, who expressed her desire to visit her mother, but was "extremely conflicted" in her loyalties to her parents. The judge ordered weekly supervised visitation.

On November 15, 2013, Lydia's counsel again reported that many documents were still missing and requested a hearing. The judge settled the record by concluding that there was no proof that the one claimed missing item existed.

On February 10, 2014, Lydia filed an amended notice of appeal, challenging "all orders, entered from and after the filing of the complaint in this matter, which in any way changed or restricted defendant's custody, visitation or other parental rights from their status prior to the litigation and all evidentiary rulings throughout the proceedings below."

On the same day, Lydia filed a motion to enforce litigant's rights with this court, seeking a remand for an evidentiary hearing regarding "the loss or destruction or failure to disclose the missing items," and for bi-weekly supervised visitation. By order dated March 4, 2014, we denied the motion.

In April 2014, Lydia moved before this court for modification of custody and parenting time pending appeal; appointment of a GAL for Molly; a referral to mediation to set a parenting time schedule; and an investigation by the Family Division. By order dated May 19, 2014, we denied the motion.

In October 2014, Lydia filed another motion before this court seeking correction of the record to include all items contained within the appendix; judicial notice to permit inclusion of documents in the appendix; and leave to file a 161-page overlength brief. Amos cross-moved to dismiss the appeal. By separate orders dated November 7, 2014, we denied these motions and instructed Lydia to submit a conforming brief.

Lydia subsequently moved for leave to appeal our November 7, 2014 order to the Supreme Court. The Court denied that motion on February 3, 2015.

In March 2015, Lydia moved for a remand for an evidentiary hearing, and to preserve her right to raise issues arising on remand in a supplemental appellate brief. On April 14, 2015, we denied the motion "without prejudice to the merits panel's consideration of whether a remand is appropriate."

II.

A.

Lydia argues for the first time on appeal that the trial judge failed to establish that she knowingly, intelligently, and voluntarily waived her right to counsel at the initial removal hearing on July 29, 2010. She also claims that the judge failed to "directly apprise" her of her rights under Title 9, failed to inform her of her right to an adjournment, and failed to contact her counsel or determine when counsel could appear. She urges that these errors necessitate reversal of the order awarding custody of Molly to Amos. We disagree.

On July 27, 2010, the Division removed the children pursuant to N.J.S.A. 9:6-8.29, which allows for emergency removal without court order if there is imminent danger to the child's life, safety, or health, and there is insufficient time to apply for a court order. Within two court days of emergency removal, the Division must file a complaint pursuant to N.J.S.A. 9:6-8.30(b), which it did on July 29, 2010, along with an order to show cause.

The Division is required to make a reasonable effort, at a minimum of twenty-four hours prior to the court hearing, to: "notify the parent . . . of the time to appear in court; and inform the parent . . . of his [or her] right to obtain counsel, and how to obtain counsel through the Office of the Public Defender if the parent . . . is indigent." N.J.S.A. 9:6-8.30(a).

Pursuant to N.J.S.A. 9:6-8.31(a), the "safety of the child shall be of paramount concern" at the initial hearing. "[I]f the court finds that continued removal is necessary to avoid an ongoing risk to the child's life, safety, or health, it shall affirm the removal of the child to an appropriate place[.]" N.J.S.A. 9:6-8.31(b). "[F]or good cause shown," the court may issue a preliminary order of protection. N.J.S.A. 9:6-8.31(c).

At the initial hearing on July 29, 2010, the judge informed Lydia of her right to counsel and stated his understanding that she was waiving that right. Lydia replied that she had private counsel, but he was unable to appear that day. The judge fully informed Lydia about the hearing procedure and confirmed that she understood his instructions.

The Division relied on the allegations in the verified complaint and called no witnesses. The judge told Lydia that she was permitted to present evidence. Lydia denied the allegations and presented her version of the events leading to the children's removal. The judge did not find Lydia credible, and ordered that custody of the children remain with the Division.

N.J.S.A. 9:6-8.43(a) provides

The court shall advise the parent or guardian of his [or her] right to have an adjournment to retain counsel and consult with him [or her]. The court shall advise the respondent that if he [or she] is indigent, he [or she] may apply for an attorney through the Office of the Public Defender. In cases where the parent or guardian applies for an attorney through the Office of the Public Defender, the court may adjourn the case for a reasonable period of time for the parent or guardian to secure

counsel; however, the adjournment shall not preclude the court from granting temporary relief as appropriate under the law. . . .

While the judge did not advise Lydia of her right to an adjournment, Lydia was clearly aware of her right to counsel, advised the judge she had retained an attorney, and indicated that she was willing to proceed in her attorney's absence. The judge properly determined that there was good cause to support entry of the preliminary order of protection and removal of the children. N.J.S.A. 9:6-8.31(c). We are satisfied that the order continuing custody of the children with the Division was appropriate and Lydia suffered no prejudice from her counsel's failure to appear.

B.

Lydia next argues that the judge erred by accepting her stipulation of neglect because it was not knowing and voluntary, and the stipulation was inadequate to establish abuse or neglect as defined at N.J.S.A. 9:6-8.21(c)(4)(a).

At the fact-finding hearing on November 18, 2010, Lydia's counsel advised the judge that Lydia was going to enter a stipulation. In establishing that Lydia abused or neglected her children, the following exchange occurred

Q: And I also explained to you that if you know that at least one or even more of the allegations in the complaint are true that you can, in fact, waive your right to a fact-finding and explain to the Court which allegation is true and what it is that you did that you believe rises to the level of abuse or neglect under our statutes that govern these proceedings, correct?

A: Yes.

Q: I explained that to you, correct?

A: Yes.

Q: Okay. And you indicated that you want to enter a stipulation today, correct?

A: Yes.

Q: Okay. And, specifically, . . . you wanted me to make clear to the Court that you [do] not believe that most of the allegations in the complaint are true, correct?

A: Absolutely.

Q: Okay. But there are allegations that are true[.] . . . That specifically on or about July 27, 2010 you contacted the Division because you reported that you had been evicted from your home, correct?

A: Yes.

Q: And you had tried to reach out to shelters and agencies and things of that nature, but you couldn't get any assistance, correct?

A: Correct.

Q: So you contacted the Division for assistance and the Division came out, correct?

A: Correct.

Q: And you indicated that you didn't have any relatives or friends who the children could reside with temporarily and you owed a significant amount in back rent, correct?

A: Yes.

Q: And when all was said and done you were not able to secure housing, correct?

A: Correct.

Q: Okay. And as a result of not being able to secure housing I explained to you that under our statute it indicates that a parent or a caregiver of a child has to be able to provide the children with the minimum degree of care and being able to provide them with the appropriate shelter, correct?

A: Correct.

Q: And you were not able to do that, correct?

A: Correct.

Q: And you understand that that rises to neglect under our statute, correct?

A: Correct.

The judge found that the facts Lydia "placed on the record [were] sufficient to sustain the complaint" by a preponderance of the evidence. The judge then indicated that he would enter an order of abuse or neglect "under the section of the minimum degree of care, that being her inability at that point in time to provide the minimum degree of care in the essence of a shelter for the children."

The facts here are similar to those in New Jersey Division of Protection and Permanency v. L.W., 435 N.J. Super. 189 (App. Div. 2014). In L.W., the defendant brought her four-year-old and twenty-month-old children to a Division office and reported that, after exploring all her options, she could not find housing. Id. at 192. A caseworker described the children as clean, well-fed and well-clothed. Ibid. The defendant made an appointment with a welfare agency to obtain rental assistance and sought help from family members, to no avail. Ibid. The Division sought a finding of abuse or neglect against her. Ibid. The judge found that the defendant did not have housing due to her poor planning and criticized her as "irresponsible" for leaving permanent housing in Georgia and coming to New Jersey without the means to return. Id. at 193.

In reversing the finding of abuse or neglect, we noted that the defendant's "poor planning" was, at least in part, a side-effect of poverty, and she did what was in the best interest of her children by coming to the Division for help instead of subjecting her children to further homelessness. Id. at 196. We cautioned that "[i]t is important that impoverished, homeless parents feel free to call on the Division in times of need, without fear of being found neglectful for 'poor planning.'" Ibid.

"A 'fact-finding hearing is a critical element of the abuse and neglect process,' because the court's 'determination has a profound impact on the lives of families embroiled in this type of a crisis.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 87-88 (App. Div. 2008) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002)). N.J.S.A. 9:6-8.46(b) requires the Division to present "competent, material and relevant evidence," of abuse or neglect.

We have cautioned that a stipulation in an abuse or neglect case must provide a factual basis from which a judge may conclude that a defendant has committed a specific act or acts which constitute abuse or neglect and that the parent willingly, knowingly, and voluntarily agrees that she has committed these acts. J.Y., supra, 352 N.J. Super. at 266.

The complaint here contains troubling allegations of the children's involvement in Lydia's drug abuse which, if proven, may have established Lydia's abuse or neglect. However, the Division chose to forgo a testimonial hearing in favor of accepting the more expeditious stipulation to homelessness. Lydia denied all of the allegations relating to drug possession and limited her admission to "not [being] able to secure housing" for her children. Without more, this admission was insufficient to establish abuse or neglect. Given the serious nature of the unproven allegations, a remand for a testimonial fact-finding is warranted to allow the Division to present competent, material, and relevant evidence of Lydia's abuse or neglect.

C.

Next, Lydia contends that the judge erred by granting Amos custody of Molly after the dispositional hearing. The judge concluded that transferring legal and physical custody of Molly to Amos was appropriate because it was not safe for Molly to be placed with Lydia. The judge cited Lydia's non-compliance with drug treatment and counseling, and positive drug tests

As noted [Lydia] does not have stable housing at this point. And that's an issue, but even more importantly she has not complied with successful completion of a substance abuse treatment. She is not compliant with her individual counseling or her group counseling. And she is not consistently visiting the child. For all of those reasons . . . mom has not been able to ameliorate the risk of harm to the child that existed when this case came into the Division.

The judge then determined that Amos was a suitable caretaker and it was in Molly's best interests for her father to assume custody of her. The judge cited evidence that Molly was thriving following her placement with Amos in August 2011. The judge also found Amos's testimony credible

I thought there was something very compelling from the testimony that [Amos] made and he talked about this being a big process, a long journey and that there's a lot to do. And I'm glad he said that, because it isn't just [at] the end of the day we all live happily ever after. It is a process. He's willing to continue with this process. Not only is he willing to continue with his therapy, but also the individual [therapy] for [Molly] and the family counseling. Because as he had stated in his testimony, he believes it helps the family bond. And that's very important.

The judge assessed all of the best interest factors at N.J.S.A. 9:2-4(c).

After a trial court makes a finding of abuse or neglect, and before it terminates a Title 9 case, it must conduct a dispositional hearing. N.J.S.A. 9:6-8.50; N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009). At the dispositional hearing, the court must determine whether the child "may safely be released to the custody of [the offending parent], who was responsible for [her] care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate." G.M., supra, 198 N.J. at 402.

Here, the judge scrupulously adhered to the dictates of G.M., supra, 198 N.J. at 402, in conducting a dispositional hearing before concluding, based on substantial, credible evidence, that it was not safe to return Molly to Lydia. Additionally, the judge's conclusion that continuing custody with Amos was in Molly's best interests was amply supported by the record. See N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 22 (App. Div. 2010) ("[A]ny dispositional review must consider not only whether the offending parent has abated the harm previously posed, but also must consider whether other parties have asserted the child's best interest demands that custody rest elsewhere.").

D.

We find the remaining arguments raised by Lydia lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(E).

The November 18, 2011 order granting custody of Molly to Amos is affirmed. The November 18, 2010 order finding that Lydia abused or neglected her children is vacated and the matter is remanded for a testimonial fact-finding. The Division is directed to remove Lydia's name from the Child Abuse Registry within ten days of this opinion. We do not retain jurisdiction.

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