DYFS V. M.D. and S.D., I/M/O N.D., S.D., and G.D. A-2419-09T4
While in the midst of a contentious divorce and bitter custody dispute, defendant/mother entered a stipulation at a fact-finding hearing in this Title Nine litigation. She admitted using her oven and stove to heat her home while herchildren were present. The record revealed, however, that at the time, defendant's husband, also a defendant in the Title Nine litigation, was in arrears of his child support payments and had refused to make repairs to the furnace in the marital home. Based upon her admission, the judge entered an order finding that defendant had abused/neglected her children.
On appeal, defendant, among other things, argued that her attorney did not provide her with effective assistance. We concluded that defendant established her attorney provided ineffective assistance at the fact-finding hearing. We noted, for example, that neither the attorney nor the judge ever advised defendant that by entering the stipulation, she was admitting to abuse/neglect under Title Nine and the consequences of such a finding. Indeed, the words "abuse" or "neglect" were never used during the entire proceeding. We further determined that given the totality of the circumstances presented at the time of the fact-finding hearing, defendant had established her claim and there was no need to remand the matter for an evidential hearing.
We also noted the frequency with which similar issues regarding stipulations at fact-finding hearings arise on appeal. We now require that the judge conduct a specific inquiry of a defendant who intends to enter a stipulation, similar to the line of inquiry posed to a criminal defendant who enters a guilty plea, to ensure that the defendant is voluntarily and knowingly waiving those rights available at a fact-finding hearing.
We also suggest that the Committee on Practice in the Family Part and the Administrative Office of the Courts implement the use of a form, similar to the one now being used in cases in which a parent agrees to a voluntary surrender, in all cases in which a defendant is stipulating to a finding of abuse and neglect. 1-12-11
