On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FN-16- 184-01.
Before Judges Wefing, Ciancia and Fuentes.
The opinion of the court was delivered by: Fuentes, J.S.C.
REVISED OPINION FROM JUNE 11, 2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
These consolidated appeals are taken from the Superior Court, Chancery Division, Family Part's judgment awarding legal and physical custody of three minor children Bobby, age six; Ethan, age four; and Jane age three *fn1 to their maternal aunt and uncle. *fn2 Defendant J.Y. is the mother of all three of the children. Defendant E.M. is the father of Ethan and Jane. Bobby was fathered by A.J. who is currently serving a long-term state prison sentence. J.Y. and E.M. are appealing the Family Part's custody orders. A.J. is not a party in the appeal. We remand for a full hearing for the Family Part to make specific factual findings and conclusions of law.
DYFS PRE-ACTION PROCEEDINGS
The Division of Youth and Family Services (DYFS) filed a verified complaint and order to show cause in the Family Part seeking legal custody of Bobby, Ethan and Jane pursuant to the provisions of N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The order to show cause was filed to continue DYFS's legal custody of the children which had been obtained through a voluntary agreement entered into with defendant J.Y. Physical custody of the children was held by relatives of J.Y. Bobby had been placed with his maternal aunt and uncle in West Milford, New Jersey. Ethan and Jane had been placed with their maternal grandparents in Tafton, Pennsylvania. DYFS also sought leave of court to continue this arrangement.
The verified complaint named J.Y., E.M. and A.J. as defendants and alleged incidents of abuse and neglect involving all three children. Although the verified complaint listed sixteen separate paragraphs purporting to establish a pattern of abuse or neglect, a careful review of the allegations in the complaint reveals only one substantiated *fn3 incident of neglect limited to J.Y. and E.M. involving Ethan and Jane. There were no allegations directly involving Bobby. For the most part the complaint chronicled a history of repeated DYFS involvement with this family, based on third party referrals or complaints.
The complaint alleges that on May 14, 1996, the Family Part judge sitting in Passaic County ordered DYFS to investigate J.Y.'s home situation after she filed a domestic violence complaint against A.J. In the domestic violence complaint J.Y. alleged that A.J. had threatened to kill her and their son Bobby. The court granted a final restraining order against A.J. The verified complaint in support of the petition for involuntary removal does not indicate the results of this investigation or any other action taken by DYFS.
On September 11, 1996, Passaic General Hospital informed DYFS that Bobby had been admitted with second degree burns. The doctors in the burn unit believed that the injuries were accidental. The hospital notified DYFS that the previous month Bobby had been treated for a sprained shoulder. Hospital staff had not considered the shoulder injury to be suspicious at the time. DYFS determined that both incidents occurred while in E.M.'s care and concluded that he "lacked knowledge and experience with babies." DYFS kept the file open for "supervision" until June 17, 1997. The case was then closed. On August 21, 1997, the case file was reopened based on a referral from an unidentified individual who alleged witnessing A.J. hit Bobby. Aside from this cryptic description, the verified complaint contains no other information as to this event. DYFS investigated the matter and concluded that the allegations were not substantiated. *fn4 The case was kept open to offer the family Emergency Child Assistance Program (ECAP) services. The only "services" described in the complaint were some type of family counseling. Here again the complaint is sparse in details. We are unable to determine the specific counseling provided, how long it lasted and who actually participated. On August 17, 1999, almost two years after this referral, DYFS again closed the case.
On September 13, 1999, DYFS received a referral from a social worker at St. Joseph's Hospital reporting an accident in which Jane suffered a fractured femur as a result of falling down a flight of stairs. The social worker expressed "concern" that a lack of parental supervision may have been the possible cause of the accident.
DYFS reopened the case and once again found insufficient evidence to substantiate that Jane had been abused or neglected. The investigation revealed only that J.Y. and E.M. did not have a crib for Jane or a safety gate for the stairs. J.Y. and E.M. assured DYFS that they would obtain both items, and the case was again closed on November 3, 1999.
The case was reopened on June 22, 2000, prompted by a referral from an unidentified person who said that Bobby stated that each morning E.M. would enter Bobby and Ethan's beds and squeeze the boys' testicles. Bobby also claimed, according to this unidentified person, that E.M. touched Jane's "private parts." This anonymous individual further alleged that J.Y. instructed Bobby not to tell "M.," his great-grandmother. J.Y. purportedly agreed to talk to E.M. about this incident.
DYFS determined the allegations were unfounded *fn5 but due to J.Y. and E.M.'s extremely poor housekeeping skills, ECAP services were again made available to the family. Once again, the complaint gives no other description of the type of services offered. Whatever "services" were provided failed to produce any positive results. Over a four month period, June 22, 2000 to October 24, 2000, DYFS indicated that the apartment was in a state of disrepair and lacking in basic housekeeping. There were holes in the walls, doors hanging off their hinges, rodent infestation, and exposed electrical wires in the bathroom. Despite these documented conditions, DYFS did not initiate any action to remove the children or assist the family in relocating to more suitable accommodations.
On October 24, 2000, DYFS learned that J.Y. had been admitted to the hospital suffering from diabetes and a bladder infection. She had apparently arranged for the children to stay with a neighbor. The verified complaint provides no other information as to J.Y.'s hospitalization, i.e., its duration, the seriousness of her illness or its potential impact on her ability to parent the children. Similarly, there is no indication that this temporary custody arrangement with the neighbor was unsuitable or otherwise placed the children at risk. *fn6
It is this event that triggered DYFS's direct intervention by formally obtaining legal custody of the children. J.Y. agreed to sign a fifteen-day informed consent placement agreement temporarily relinquishing custody of all three children to DYFS. At DYFS's direction Bobby was placed with a maternal aunt. Ethan and Jane were placed with the maternal grandmother.
The next day, October 25, 2000, the maternal aunt informed DYFS that while visiting with Ethan and Jane, she noticed multiple bruises on the children while bathing them and that the children had told her that E.M. had hit them. The Clifton Police Department was notified. Both the police department and DYFS attempted to contact E.M. by telephone and mail without success. The verified complaint avers that an investigation of these allegations against E.M. has not been completed. There is no evidence in the record before us that any criminal charges have been brought against E.M.
On November 18, 2000, J.Y. signed a six-month informed consent placement agreement, extending the children's placement with her relatives. The verified complaint asserts that after this date, from November 18, 2000, until March 27, 2001, J.Y. failed to maintain contact with DYFS.
On March 27, 2002, J.Y. left a telephone message with DYFS saying that she was employed, was not making much money and wanted assistance from DYFS. The record does not indicate if any assistance was given.
In the order to show cause, DYFS asked the court for legal custody of all three children and continuation of the physical custody agreement in place.
PROCEDURAL HISTORY OF THIS ACTION
On June 1, 2001, the trial court entered an order to show cause, returnable June 12, 2001. The order granted interim legal custody of the children to DYFS and physical custody with the maternal relatives, as requested in the complaint. A law guardian was also assigned to represent the interests of the children. The form of order stated in pertinent part:
. . . the Court having read the verified complaint, affidavits and other supporting documents, the Court therefore determines that the removal of the child(ren) is necessary to avoid ongoing risk to the life, safety or health of the child(ren), because . . . [a blank area is provided for the judge to state the reasons] and for the other reasons stated on the record.
The only indication of the judge's reasons for entering the order is a handwritten reference to "8A-O of complaint" appearing in the blank area of the form of order as described above. This appears to be an attempt by the judge to incorporate by reference the allegations contained in paragraph 8, sections A-O of the verified complaint as a basis for the relief granted. In the same form of order, there are six "check-off" boxes pertaining to DYFS's statutory duty under N.J.S.A. 30:4C-11.2 to utilize all reasonable efforts to prevent placement prior to seeking the involuntary removal of the children. Here again the judge merely checked off the first box which read: The ...