On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FN-04-61-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2007
Before Judges Lintner and Cuff.
On July 20, 2006, the Division of Youth and Family Services (DYFS) filed a verified complaint for custody of T.B., a seven-year-old boy who had been in the care of his maternal grandmother, defendant A.H., since birth. T.B.'s mother, K.W., a drug user, had already lost custody of two other children due to neglect. Defendant, who is unemployed, has not seen K.W. since April 2006.
Defendant and T.B. resided with defendant's female friend and former paramour, V.V., along with V.V.'s thirteen-year-old granddaughter, A.V. A.V.'s mother, W.V., also a known drug user, stayed at V.V.'s home from time to time, but was eventually arrested and incarcerated on June 30, 2006.
Referrals to DYFS regarding the care of T.B. and A.V. began in July 2004. Many of the referrals claimed that adults in the home were abusing drugs and alcohol. When a DYFS worker asked defendant about her alleged drug abuse in December 2004, defendant explained that she was hit by a car in December 2003 and had been prescribed Percocet and OxyContin. She admitted to using crack cocaine in the past, but had not used illegal drugs in five years. According to DYFS records, allegations of neglect were substantiated against V.V. in May and June 2006. On May 12, 2006, DYFS found that A.V.'s risk of neglect was "substantial" because V.V. allowed her to be "in the care of her mother despite [W.V.'s] extensive substance abuse problems."
V.V. stated that she allowed W.V. to care for A.V. "due to the fact that there isn't a Court order to refrain her from doing such." In June 2006, V.V. had a stroke and was hospitalized. Once again, DYFS substantiated neglect because A.V. was left in the care of W.V. despite W.V.'s drug use, including a recent overdose on heroin.
For the most part, DYFS's records demonstrate that T.B. was "healthy and well taken care of." DYFS workers continually noticed that the home showed no safety concerns and described defendant as cooperative, "alert, and able to answer all questions." Additionally, T.B. repeatedly told DYFS workers that he never saw defendant or V.V. use drugs and liked living with his grandmother. DYFS records do indicate that while W.V. was at the house, defendant appeared to be afraid of her.
On June 30, 2006, V.V. received a letter from her landlord, stating, "although you have been a good tenant and always paid your rent on time your present situation has caused you to be behind." The landlord asked V.V. to pay her outstanding rent within two weeks or be evicted. Defendant told a DYFS worker that V.V. was expecting to receive Social Security and that "they [were] going to use that to catch up with the rent."
On July 18, 2006, DYFS arrived at the house to remove A.V. and T.B. According to DYFS records, a neighbor informed a DYFS worker that defendant asked to borrow twenty dollars for cigarettes and after the neighbor loaned her the money, defendant returned, "asking for more money [because] she said she couldn't find it." When the neighbor looked inside the house to find the money, she claimed she found a crack pipe on the floor. The neighbor also told DYFS workers that defendant did not spend money on sneakers or clothes for T.B., but instead on cigarettes.
A.V. told DYFS workers that defendant and V.V. are often "passed out" and that V.V. "is never home and is always at her boyfriend[']s house and when she is home she sleeps most of the day." According to A.V., she and defendant had an argument because A.V. did not want to live in the house anymore. She claimed that defendant "chased her down the street and tried to choke her." DYFS workers found T.B. with one of defendant's male friends at his landscaping business. According to DYFS, T.B. "was filthy dirty with no shoes and no shirt."
Dr. Meryl E. Udell, a psychologist, performed psychological evaluations of defendant, V.V., T.B. and A.V. Defendant told Udell that "she is currently prescribed Morphine, 60 mg, twice a day, Percocet, 10 mg, as needed, Amytriptyline, 100 mg, at night, Ambien, 1 mg, nightly, and Ativan CR, 2.2. mg, nightly by her pain management doctor." Defendant also stated that her primary care physician "prescribed [her] Oxy[C]ontin, 80 mg, in the AM and 20 mg in the PM, which was ...