NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.M.

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NOT FOR PUBLICATION WITHOUT THE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.

A.M.,

Defendant-Appellant,

and

T.M.,

Defendant.

_____________________________________________

IN THE MATTER OF

A.M. and M.M., minors.

_____________________________________________

July 30, 2015

Submitted July 27, 2015 Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-280-13.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.M. and M.M. (Todd S. Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant A.M. appeals from the February 19, 2014 Family Part order finding that she abused or neglected her two children, three-year-old A.M. (Alan)1 and two-year-old M.M. (Mark), by leaving them at home alone while she went to work. The children wandered out of the home and were found unharmed at a nearby firehouse.

On the day a fact-finding hearing was scheduled, defendant waived her right to a hearing and stipulated to certain facts. The stipulation is brief and we reproduce it here

On April 19, 2013, at 2:45 p.m. [A.M.] left her children, [Alan] (3) and [Mark] (2), home alone and unattended while she went to work from 3 p.m. to 6 p.m. at a local hospital.

[A.M.] resides in Piscataway and the hospital was in New Brunswick.

At 4:30 p.m., the children were discovered standing on the street near the firehouse, unaccompanied by an adult.

The children were observed to be healthy.

A police officer found the door [to A.M.'s] home open.

The home was clean and organized.

[A.M.] could not find daycare on that date.

[A.M.] did not ask for caregivers to take care of the children because the paternal grandmother had just started a new job and the maternal grandmother had just babysat the children the day before.

[A.M.] had arranged for daycare to begin on May 1, 2013.

[A.M.] was remorseful.

[A.M.] stated that this was the first time she had left the children alone.

[A.M.] was stressed and overwhelmed.

[A.M.] was experiencing financial problems.

[A.M.] was unable to pay her mortgage since October 2012.

Based upon these stipulated facts, the judge found that defendant's conduct "was grossly negligent . . . as she failed to exercise a minimum degree of care, thereby placing the children at substantial risk of imminent harm."

On appeal, defendant now claims that the judge erred in finding neglect because there is no evidence that her conduct was likely to be repeated. Because there is no evidence that defendant made a knowing and informed relinquishment of her right to a fact-finding hearing and because the limited record before us is insufficient to establish that her conduct was wanton and willful, we are compelled to remand for a fact-finding hearing.

"The fact-finding hearing is a critical element of the abuse and neglect process." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). In New Jersey Division of Youth and Family Services v. G.M., the Court observed that fact-finding hearings must be "conducted 'with scrupulous adherence to procedural safeguards.'" 198 N.J. 382, 401 (2009) (quoting N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004)). Because a judge's determination that a child is abused or neglected "has a profound impact on the lives of families embroiled in this type of a crisis[,] . . . this critically important part of the business of the Family Part demands meticulous adherence to the rule of law." J.Y., supra, 352 N.J. Super. at 264-65.

Before accepting a defendant's stipulation in lieu of a fact-finding hearing in an abuse and neglect case, the trial judge must determine that the waiver of a hearing "involved 'the intentional relinquishment of a known right . . . evidence[d] by a clear, unequivocal and decisive act from which an intention to relinquish the right can be based.'" Id. at 266 (quoting Country Chevrolet v. N. Brunswick Planning Bd., 190 N.J. Super. 376, 380 (App. Div. 1983)). The judge here made no inquiries of defendant before or after she agreed to stipulate to the fourteen facts and relinquish her right to a hearing. The stipulations were simply read into the record and, at the direction of her attorney, she signed a waiver form.

Nor was defendant well-served by the decision to relinquish her right to a fact-finding hearing. As neither child suffered injury as a result of defendant's actions, the Division of Child Protection and Permanency was required to prove that defendant's conduct was grossly or wantonly negligent. G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). Defendant's conduct should have been "evaluated in context based on the risks posed by the situation." Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011). Factors such as the distance the children wandered before being discovered at the firehouse, the traffic on the road, and whether defendant took steps to secure the home before she left, all could have been considered in determining whether her conduct was simply negligent or rose to the level of gross negligence or recklessness. Moreover, the court would have been better equipped to perform its role as fact-finder had these matters been developed more fully with evidence at the hearing.

We do not suggest that factual stipulations in lieu of a fact-finding hearing are never permissible or appropriate. J.Y., supra, 352 N.J. Super. at 265. However, when there is such a waiver, especially in a close case such as this one, it is imperative that a defendant is aware of the rights she is waiving by foregoing a hearing and has clearly acknowledged on the record that the waiver is knowing and voluntary.2

The finding of abuse and neglect is vacated without prejudice, and defendant's name will immediately be removed from the child abuse registry. The matter is remanded for a full fact-finding hearing. We do not retain jurisdiction.

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

2 We note that the Division was prepared to proceed with the hearing and had witnesses available. Defendant's counsel did not place any reasons on the record why she agreed to waive a hearing and we can see no benefit to defendant in doing so. In the past, we have cautioned against elevating expediency and the swift disposition of cases at the expense of fairness and justice. See N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 60 (App. Div. 2012). Because of the facts of this case, we feel it necessary to repeat this admonition.