On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Cape May County, FN-05-32-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2007
Before Judges Payne and Sapp-Peterson.
A.P. (fictitiously, Anna), the step-mother of J.C. and mother of M.H.L.C., appeals from an order of the Family Part, dated February 9, 2006, setting forth the court's determination that she abused or neglected her two children and from an order dated December 13, 2006, dismissing the abuse and neglect litigation as it applied to M.J.L.C. and terminating Anna, as a non-relative, from that litigation as it applied to J.C.
J.C. was age eleven, and his brother, M.J.L.C.,*fn1 was five days old at the time of the initial involvement of the Division of Youth and Family Services (DYFS) in this matter. That involvement occurred as the result of a raid, pursuant to a search warrant, conducted by fourteen police officers on the apartment occupied by Anna and her husband, J.C.A. (fictitiously, John). The raid took place at 4:30 a.m. on September 28, 2005, As the result of evidence discovered in the raid, both Anna and John were taken into custody on drug-related charges. After the raid was concluded, DYFS was contacted, and it took custody of the children, present in the home, on an emergency basis. See N.J.S.A. 9:6-8.29.
On September 30, 2005, as required by N.J.S.A. 9:6-8.30b, DYFS commenced an action by way of verified complaint against Anna, John and the mother of J.C., pursuant to N.J.S.A. 9:6-8.21 to -8.73, N.J.S.A. 30:4C-12 and R. 5:12-1, alleging abuse or neglect pursuant to N.J.S.A. 9:6-8.21c(4)(b) as the result of the evidence of the parent's alleged narcotics distribution and seeking custody of the two children. An order granting temporary custody, setting a return date for defendants to show cause why such custody should not be continued, and appointing a law guardian was entered on the same day. See N.J.S.A. 9:6-8.31.
Thereafter, on December 12, 2005, the deputy attorney general representing DYFS sent letters to counsel for Anna and John stating:
I wanted to inquire whether or not your client will be contesting the fact-finding hearing presently scheduled for December 14, 2005. At this time the Division will be seeking a Title 9 finding with regard to your respective clients. The Division intends, at this time, to rely on a submission of the documents noted on the enclosed Exhibit List. These documents have been provided to counsel in previous discovery submissions, with the exception of the N.W.P.D. documents. Please advise at your earliest convenience if this matter is going to be contested and if you will be seeking to call witnesses.
The record does not reflect a response to this letter or to a similar letter sent to counsel on January 9, 2006 after an adjournment of the hearing.
At the Title 9 fact-finding hearing, which occurred on February 9, 2006, DYFS introduced into evidence nine pre-marked exhibits, consisting of a September 28, 2005 DYFS Referral Response Report; a Cape May County Prosecutor's Office Child Abuse/Sexual Assault Telephonic Referral; Cape May County Prosecutor's Office Investigation Reports dated September 16, 2005, September 28, 2005, October 3, 2005, and October 4, 2005; a Wildwood Police Department Supplemental Investigation Report; and criminal complaints against Anna and John. The investigation report of September 16, 2005 disclosed the undercover purchase of eighteen grams of alleged cocaine for $500 from Israel Rivera Plumey, an alleged agent of "Mel," the name the report's writer stated was used by John when telephonically setting up the drug purchase. Other law enforcement reports detailed the September 28 search of Anna's and John's apartment, which resulted in the seizure of two ledgers containing numerous monetary entries; a Priority Mail box,*fn2 found "in the microwave stand in the kitchen," containing "nine (9) small paper bowls each containing a packed white powdery substance"; a baggie containing "a brown powdery substance," found in the top dresser drawer of the master bedroom"; cash in the amount of $10,275 located throughout the master bedroom; a safe, later found to contain $11,000 in cash and prescription medicines; and various documents. The reports also indicated that John resisted arrest, and that mace was used to subdue him. The Cape May County Prosecutor's Office General Investigation Report of October 3, 2005 stated that John was initially charged with first-degree distribution of cocaine and with being the leader of a narcotics distribution network. Bail was set at $500,000. According to the report, Anna was arrested and charged with first-degree distribution of cocaine and second-degree conspiracy to distribute cocaine. She was held on $250,000 bail. No reference was made in any of the reports to the children, other than to indicate that they were occupants in the home at the time of the raid, and they were being placed in the custody of DYFS.
Following the introduction of documents into evidence without objection, DYFS rested without calling any witnesses.
Because criminal charges were pending against both Anna and John, they were advised by their counsel not to testify at the hearing, and they complied with that advice. The judge denied a request for an adjournment pending resolution of the criminal charges and, after commenting that the documents were not very voluminous, "mercifully, in terms of the press of time on various people's schedules ...