New Jersey Division of Youth & Family Services v. H.P.
37 A.3d 509
| N.J. Super. Ct. App. Div. | 2011Background
- H.P. and V.P. are the parents of three children; on December 5, 2008 the children were removed from the home by DYFS based on a domestic violence referral.
- December 9, 2008 hearing on the removal occurred with counsel for all parties except H.P.; the court did not advise him of the right to counsel or to apply for representation.
- Division caseworker testified; child statements and wife’s testimony described alleged abuse, including choking, beating with a belt, and verbal abuse; no cross-examination of H.P. occurred.
- H.P. testified, with his wife’s counsel present, but he was advised not to testify; he ultimately chose to testify despite earlier warnings.
- June 25, 2009 order found abuse/neglect using a clear and convincing standard, issued after a later proceeding where counsel waived closings; move toward reunification ensued and later an August 2010 termination of the action.
- The court remanded to a different judge for further proceedings and returned the children to parental care with ongoing supervision; the order under review vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use of clear and convincing standard without notice was error | H.P. argues the higher standard was applied without advance notice, violating due process. | Division contends waiver occurred when represented later; higher standard may have been permissible without repeating formal notice. | Error to apply without advance notice; vacate remand for proper proceedings. |
| Whether the factual findings support abuse/neglect | Findings were based on inadequate, untested evidence and did not credibly establish abuse/neglect. | Record supports the clear and convincing finding under the statutory framework. | Findings were insufficient; vacate and remand for proper fact-finding. |
| Whether the right to counsel and the waiver process affected the record | The absence of counsel at removal compromised rights and tainted the record. | Waiver occurred when counsel was later involved; later proceedings cured any preclusion. | Right to counsel violated at removal; remand to ensure proper proceedings; waivers insufficient to cure initial defect. |
| Whether the remand should be before a different judge | Consistency and credibility concerns require fresh fact-finding. | No explicit objection; preservation of record. | Remand to a different judge is appropriate. |
Key Cases Cited
- N.J. Div. of Youth & Family Servs. v. E.B., 137 N.J. 180 (1994) (right to counsel in Title Nine cases; due process)
- N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322 (App.Div. 2007) (counsel rights in DYFS proceedings)
- N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88 (2011) (collateral estoppel factors and notice regarding proof standard)
- N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App.Div. 2004) (emotional harm from witnessing domestic violence; evidentiary standards)
- P.W.R. v. Div. of Youth & Family Servs., 205 N.J. 17 (2011) (excessive corporal punishment; definition under statute)
- Cesare v. Cesare, 154 N.J. 394 (1998) (credibility and factfinding need for explicit support)
- AW v. DYFS, 103 N.J. 591 (1986) (remand authority and considerations for fresh fact-finding)