On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Number FN-02-57-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Collester and Graves.
Defendant S.B. is the mother of two children: H.B. (fictiously, Harold), born on February 1, 1992, is now sixteen years old, and J.D. (fictiously, Janet), born on December 13, 1994, is now thirteen years old. Although the trial court ultimately returned the children to S.B.'s care and custody, S.B. appeals from a Family Part order dated January 12, 2007, finding she abused or neglected the children. S.B. contends the evidence presented by the Division of Youth and Family Services (DYFS or the Division) was insufficient to prove, by a preponderance of the evidence, that she abused or neglected her children under N.J.S.A. 9:6-8.21. We agree and reverse. The relevant facts are substantially undisputed. On June 8, 2006, the Division received a referral from S.B.'s landlord. The landlord reported that the children "were not attending school, [and] that their mother left them home alone for long hours and sometimes overnight." The landlord also reported that S.B. had not paid the rent, and that the electricity in the apartment had been turned off.
In response to the referral, DYFS sent a Division worker to S.B.'s apartment to investigate the matter. Upon arrival at S.B.'s apartment, the Division worker explained why she was there, and S.B. told the Division worker that she was "taking care of her children." S.B. then asked who had called DYFS, and the Division worker said she could not disclose the person who made the referral. At that point, S.B. told the Division worker that if she would not identify the person who called the Division, then S.B. would not cooperate with the investigation, and S.B. "closed the door."
Shortly thereafter, when S.B. exited the building, the Division worker told her the children should not be left alone if they were under age. S.B. then went back into the building and, "about three minutes or so later," she came out with four children between the ages of ten and fourteen. The children went to a different apartment building, and S.B. left. The next day, the Division worker returned to S.B.'s apartment with a Hackensack police officer, but S.B. was not home. On the following day, the Division worker returned to S.B.'s apartment and, this time, S.B. was home. S.B. was unwilling, however, to answer any questions and she told the Division worker to stop "nosing into her business." Because of S.B.'s refusal to cooperate, the Division filed a verified complaint for investigation. On June 21, 2006, the court signed an order to show cause for investigation and an order requiring defendant to produce the children in court. After S.B. was served with the complaint and the signed orders, she agreed to be interviewed at the Division office.
During the interview on June 22, 2006, S.B. advised the Division that her children were with their maternal great- grandmother, T.B., in California. But S.B. said she did not know T.B.'s address. The Division worker's written report regarding the interview with S.B. and the subsequent events on June 23, 27, and 29, 2006, reads as follows:
Worker asked [S.B.] if her children were attending school. She stated that they were attending school regularly. She withdrew them from school in June, because they were doing good, and they passed. [S.B.] stated that she came to New Jersey on April 12, 2006. She rented that apartment and the last rent she paid was in April. She stated that her gas and electricity was included in her rent. She stated that she started having problems with her Landlord, because [the landlord] turned off her light. [S.B.] went to the electric company and she was told . . . that her light was turned off from her apartment. She stated that she went to court and won the first case. She told worker that her landlord was upset with her and [her landlord] called DYFS on her. Worker told her that if she had granted the interview on 6/8/06, the Division would have been able to make an assessment and contact the Landlord to turn on her light. [S.B.] stated that she was very annoyed that someone could just call the Division and make up stories about her family.
Worker asked [S.B.] where she was living before she came to New Jersey. She stated that she was living with her best friend at the Military Base at [Fort] Leavenworth, Kansas. She gave her previous address as 12 1st. Calvary Court, [Fort] Leavenworth, KS. She did not give the name of her best friend. She also stated that her children were attending the Military School at the Base, but she did not give the name of the school. She stated that it was a private Military School and she could not tell worker the name of the school.
Worker asked her about her children's fathers. She gave their names as [H.B.] and [J.D.]. She did not have information about their addresses, but she stated that they live in Monticello, New York. She stated that the children do not have contacts with their father.
Worker asked about her extended family. [S.B.] stated that she has a family, but they were not really involved in her [life]. She asked worker if she understood what it meant for someone to have been caring for herself since she was 15 years old. She stated that she started providing for herself since she was 15; that she has some contact with her [grandparents] and some cousins.
Casework[er] supervisor came in to find out if [S.B.] had provided her grandmother's address. [S.B.] became argumentative again and stated that she did not know the address, but she knew how to get there. Caseworker supervisor explained to her that she needed the address so that the Child Protective Service of the State of California could be sent to her grandmother's home to see the children. She stated that she was concerned about the children's safety. [S.B.] refused to provide the information. Caseworker supervisor told her that she was to come to court the next day . . . .
[S.B.] was in court on [June 23, 2006], but she refused to provide the information about her grandmother's address. She went back to court on [June 27, 2006], and still carried on with her uncooperative attitude and she was put in jail until she produces her children. She went back [to court on June 29, 2006], and she stated that her children would be flying in with Spirit Airlines from California to Newark Airport.
On July 5, 2006, the Division received a phone call from S.B.'s brother, [L.B.], stating that the children were with him in Brooklyn, New York. He stated that his sister did not understand how the State works, and she was "trying to protect her children." He also agreed to bring the children to the Division office that day. After interviewing both children on July 5, 2006, the Division worker concluded that the child neglect referral was "unfounded." The Division worker's report concerning the interviews with the children contained the following information:
[Harold] told worker that he is 14 years old and he was promoted to the 7th grade. He is attending Hackensack Middle School. Worker read the allegations to [Harold] and asked him if he was in [s]chool regularly. He stated that he attended school regularly, and he took his finals. He stated that he stopped going to school after his finals, because he passed. Worker asked him where they were living before they came to New Jersey. He stated that they were living with his aunt in Kansas, and he attended a Military School. [Harold] did not say his aunt's name or the school he was attending. He told worker to ask his mother.
Worker asked him about his father. He gave his father's name and stated that he lives in Monticello. He stated that he sometimes sees his father during the summer. He stated that he saw him last summer. He told worker that his father has other children, he has two brothers, and 3 sisters. The other children are younger than him. He stated that his father is married. He did not know his father's telephone number or address.
Worker asked him where he has been. He stated that he was in California with his great grandmother. He did not know her name or the address where he was. He stated that he came back to New Jersey over the weekend and his uncle took him to his home in Brooklyn, New York. Worker asked him how he got to California. [Harold] did not provide any answer. He told worker to ask his mother.
Worker asked him when he saw his mother last. He stated that he "does not remember." Worker asked if they were always home alone. He said "no". He stated that his mother went to work and came back home. Worker ...