Division of Youth & Family Services v. M.D., 417 N.J. Super. 583 (App. Div. 2011). This lengthy opinion by Judge Messano focuses on what information counsel must provide to a defendant who stipulates to a finding of abuse and/or neglect of a child at a parental rights hearing to ensure that the defendant’s waiver of rights is knowing and voluntary. Of interest to appellate practitioners, however, is the court’s citation of six unpublished Appellate Division decisions in this area.
Judge Messano’s decision cited those cases to show that “additional guidance” from the Appellate Division is needed. He noted that the unpublished cases lacked precedential value, citing Rule 1:36-3, but found them “nonetheless, instructive as to the frequency with which these issues arise.”
Rule 1:36-3 has never been an absolute bar to citation of unpublished opinions. This decision shows once again that there are “loopholes” in that Rule that practitioners and judges can exploit.