On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FN-12-220-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Winkelstein and Yannotti.
Defendant father, R.L., and defendant mother, A.W., are the biological parents of A.L., a female, born on January 26, 1995; R.L., a male, born on June 4, 1996; D.L., a male, born on June 5, 1999; and D.L., a male, born on May 19, 2004. Defendants appeal from a September 5, 2006 order of the Family Part, following a factfinding hearing, that they abused or neglected their children. A final order was entered on November 9, 2006, dismissing the complaint. We reverse the abuse and neglect order.
At the hearing, the Division of Youth and Family Services (the Division) offered the testimony of one witness, Michael Eatman-Muhammad, a Division social worker. He testified that the Division was informed on February 27, 2006 that defendants and their children had been living in a Howard Johnson motel room in New Brunswick, and on March 1, 2006, the family was visited by another Division employee, Brandi Miles.
Because at the time of the factfinding hearing Miles was no longer employed by the Division, the Division offered the testimony of her supervisor, Eatman-Muhammad. Eatman-Muhammad had never visited the motel room. Nevertheless, even though he did not have first-hand knowledge of the family's living conditions, the judge permitted him to testify based on his review of the contact sheets that Miles had completed, the pictures of the motel room that Miles had taken, and his review of the complaint the Division had filed against defendants. Although an objection to his testimony was raised at trial, and the Law Guardian has raised the admissibility of the evidence on appeal, we do not address the evidentiary issue because we have determined to address the abuse and neglect finding substantively.*fn1
Eatman-Muhammad testified that Miles told him that the motel room floor was covered with debris and clothing, and that cats were present in the room. According to Miles, the children lacked physical hygiene; their clothing, hair, face, and skin were not clean.
Miles had taken Polaroid photographs of the motel room. Eatman-Muhammad testified that the pictures depicted debris on the floor; beds without sheets and with objects on them; books, toys, paper, and an open diaper on the floor; and an electric heater on an end table. A photograph of the bathroom showed piles of dishes in the sink, a cat on top of the counter, and spots on the floor, which Miles told Eatman-Muhammad were feces. These photographs were admitted into evidence. Eatman-Muhammad also testified that Miles observed the youngest child running, playing, and pulling things from boxes, and that the child wore no shoes or socks and that his shirt was dirty. He also testified that two cats lived in the motel room.
Eatman-Muhammad admitted that the children's school officials did not report the children as having improper hygiene or inadequate or dirty clothing. He also admitted that the Division had not received referrals from physicians or other medical personnel indicating that the children had been living in unhealthy conditions. Eatman-Muhammad testified that Miles reported, after a second trip to the motel room after the children had been removed, that the room had been cleaned.
A.W. testified that the family moved to the Howard Johnson motel in August 2005 because they had made a down payment of $4300 on a property; but, because the tenants would not move out, they could not move in. A.W. had never received complaints from the children's school about their cleanliness, although one of their sons had "behavioral issues," and was having a difficult time understanding the teacher in class. He had been diagnosed with learning disabilities, and the school had received an Individualized Education Plan (IEP) for him.
A.W. also testified that on March 1, 2006, she was in the process of both completing taxes and doing laundry. She said her youngest son, D.L., who was one year old at the time, had just knocked over paperwork when Miles entered the room. She testified that she did her own laundry because her daughter, A.L., was allergic to the detergent used by the motel, and the beds were stripped because she was in the process of doing laundry. She was doing laundry the day Miles arrived because the previous day she and R.L. had been busy moving items they kept in storage. The cats typically lived in the bathroom with the door closed, but they escaped from the bathroom when the case worker arrived. She testified that she cleaned the bathroom "once to twice a day." She acknowledged that the sink in the bathroom was used to wash dishes.
A.W. further testified that she told Miles that she and R.L. could clean the room in two hours, but that Miles "just laughed at [her] and walked out." Nevertheless, she cleaned the room within the next two hours. At the hearing, she ...