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Thursday, October 27, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. H.P AND V.P. IN THE MATTER OF H.P., JR., A.P. AND A.P. A-0642-10T1

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. H.P AND V.P.

IN THE MATTER OF H.P., JR., A.P. AND A.P. A-0642-10T1

Defendant appealed from an order that concluded he had abused or neglected his three children. The finding was rendered by the judge's consideration only of testimony taken at a hearing conducted the day the complaint was filed, at a time when defendant was present but not represented by counsel.

The court held that defendant's claim that the record considered when the finding of abuse/neglect was made was inadequate because he was not represented when the testimony was taken lacked merit because defendant was represented when he consented to the judge's reliance on that earlier testimony. The court reversed and remanded, however, because the judge made a finding of abuse/neglect by using the clear and convincing standard without providing defendant advance notice of that standard's use. In addition, the judge's findings consisted only of a summary of the testimony followed by a conclusion parroting the requirements of N.J.S.A. 9:6-8.21 without credibility determinations or an analysis of what the judge found had actually occurred. Absent greater clarity regarding this and other factual circumstances, the court was unable to conclude that the evidence was sufficient to meet the applicable preponderance standard even though the judge felt the higher clear and convincing burden had been met. 10-27-11