On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-103-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Wefing, Parker and LeWinn.
Defendant T.M. appeals from a final order entered on June 15, 2008 dismissing the Title 9 abuse and neglect complaint and authorizing the Division of Youth and Family Services (DYFS) to file a Title 30 guardianship complaint. We reverse and remand.
Defendant is the mother of L.L. and R.L., now nine and eleven years old. She has four older children who are not the subject of this action.*fn1 Defendant has been involved with DYFS since July 1994, when it was reported that she and her newborn child, S.M., had both tested positive for cocaine. Defendant admitted to using cocaine and received treatment. In January 1995, however, defendant was charged with possession of cocaine and was again provided with treatment. In 2002, DYFS received two additional referrals and S.M. was removed from defendant's custody.
With respect to the children involved in this complaint, in 2004, DYFS received a report that defendant smelled of alcohol when she dropped L.L. off at school. On November 6, 2006, DYFS received a referral that defendant was intoxicated and not properly supervising the children. She agreed to complete a substance abuse evaluation.
On November 28, 2006, DYFS received a report that the children were left home alone. When the caseworker went to the Franklin Motel in Seaside Heights, where the family was staying, she noted that defendant's speech was slurred and she smelled strongly of alcohol. The caseworker observed that defendant was staggering and confused about the children's whereabouts, although they had not yet come home from school. Defendant was arrested the same day on outstanding warrants and DYFS took custody of the children without a court order. The following day, November 29, 2006, DYFS served notice of the removal without a court order, pursuant to N.J.S.A. 9:6-8 and -8.30. The Title 9 verified complaint for custody was filed on November 30, 2006.
The children were placed with their older brother and his wife in Pennsylvania. Defendant moved from Ocean County to northern New Jersey in order to have greater access to transportation to and from services. DYFS claimed it attempted to coordinate services for her, including substance abuse treatment, parenting skills classes and a psychological evaluation. DYFS did not, however, transfer the case to an office in defendant's new county of residence to better coordinate services, and there was a nine-month gap from the time the children were removed from defendant's custody until services were begun. DYFS did provide defendant with bus passes for transportation to and from service providers because she does not drive.
On April 12, 2007, an order was entered after a fact finding hearing at which DYFS moved three exhibits into evidence: a notice of placement for each child and the caseworker's handwritten "substantiation" of neglect. We have not been provided with a transcript of that hearing and have only the court's notation on the order that the "mother was found intoxicated and incapable of caring for her children. Mother was arrested for warrants at the scene."
After that hearing, DYFS claimed it attempted to contact defendant on many occasions but the caseworker's phone calls were not returned. DYFS also represented that it offered defendant the opportunity to visit with the children in Pennsylvania and claimed she did not take advantage of that opportunity. DYFS neglected to mention, however, that the bus passes it provided were only for New Jersey and DYFS failed to provide any means of transportation, such as a bus ticket, for defendant to visit the children in Pennsylvania.
On June 13, 2007, a permanency hearing was held. No witnesses were sworn, no testimony was taken and no documents were admitted into evidence, except a DYFS report indicating that services were offered to defendant and that she did not take advantage of them. The report further indicated that the children were placed with their older brother and his family in Pennsylvania and that defendant was authorized to visit them. Again, however, DYFS failed to note that defendant had no means of transportation to visit the children in Pennsylvania. There was also no mention of where the services were provided for defendant and whether she could reach them by bus. DYFS reported, however, that the children's older brother and his wife indicated their desire to adopt the children.
Although defendant was not present for the November 13, 2006 permanency hearing, her counsel advised the court that defendant had waited nine months before DYFS scheduled any services for her. Counsel represented that defendant tried to initiate her own treatment but DYFS rejected the names of doctors defendant provided who could offer substance abuse treatment, parenting training and psychological counseling. DYFS did not rebut the representations, nor did it offer any evidence that reasonable efforts had been made to provide services and transportation, or to assist defendant in reuniting with her children. The law guardian noted that the children missed their mother and wanted to live with her. Based upon little more than the representations of counsel, the court entered a permanency order, allowing a "dual track plan" for sixty days; that is, DYFS ...