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Sunday, January 22, 2017

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. S.W. AND R.W. IN THE MATTER OF AL.W, AN.W., M.W. AND N.W. A-4020-14T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND 
PERMANENCY VS. S.W. AND R.W. 
IN THE MATTER OF AL.W, AN.W., M.W. AND N.W. 
A-4020-14T4 
In this Title Nine matter, the date of defendant's fact-finding hearing was advanced from September 12 to September 11, 2013. There is no indication that defendant was advised of the date change and he did not appear for the hearing. Defendant's counsel agreed to proceed with a fact-finding hearing "on the papers." Based solely on documents submitted by the Division, the judge found defendant abused or neglected his four children when he relapsed and used cocaine after his arrest for failure to pay child support for the four children who were in his custody. 
After defendant's arrest, the children were cared for by their older siblings and then taken to their mother's house. The children were not harmed and there was no proof that defendant's use of cocaine exposed any of the children to imminent danger or a substantial risk of harm. 
There was also no evidence that defendant knowingly waived his right to a fact-finding hearing and agreed to have the judge decide whether he abused or neglected his children solely based on her review of reports prepared by Division caseworkers. Because statutory and constitutional rights are impacted when a defendant waives the right to testify on his own behalf, to call witnesses, to cross-examine witnesses who testify against him, and to have a judge make credibility determinations, there is no reason why the protections afforded to defendants entering stipulations of abuse or neglect announced in Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 617-18 (App. Div. 2011), should not be required when a defendant waives the right to a fact-finding hearing. 

Even where a defendant makes a knowing waiver and agrees to a determination on the papers, the judge must reject the abbreviated procedure and proceed with a testimonial hearing if the record contains conflicting facts critical to the determination.