On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FN-02-072-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Cuff, Fisher and Baxter.
S.P., the mother of T.P., born October 12, 1998, appeals from a November 15, 2007 order of the Family Part that dismissed the Title 9 protective services litigation filed by the Division of Youth and Family Services (DYFS) and transferred physical custody of the child from S.P. to the child's father, P.P., without an evidentiary hearing. We reverse.
When S.P. and P.P. were divorced, the court awarded them joint legal custody, but granted sole physical custody of T.P. to S.P. DYFS involvement with S.P. began in January 2006, when the agency received a referral alleging that S.P. was drinking heavily and taking prescription medication that made her so drowsy she was unable to climb the stairs in her home. The referent also alleged that S.P. drove while intoxicated with her two daughters in the car.*fn1 In response to that referral, a DYFS caseworker interviewed both girls at school. Each denied ever seeing her mother drink more than one glass of wine or seeing her intoxicated. The girls reported that their mother cooked dinner every night, helped them with their homework, functioned properly as a mother and imposed appropriate discipline. The principal of the girls' school reported no concerns about S.P. and commented that both girls were doing well academically.
On February 1, 2006, a second referral was received from an anonymous female who alleged that S.P. consumed alcohol daily and had recently become so drunk that she passed out and was "comatose." The caller alleged that S.P. had no food in the house for her daughters, who often had to fend for themselves to find food. As in January, both girls again reported their mother provided appropriate care.
In response to the February 2006 referral, a DYFS caseworker interviewed S.P. During the course of that interview, S.P. reported that P.P. tested positive for cocaine in August 2005. S.P. also alleged that P.P. had threatened to kill her, and expressed frustration that no one was helping her. Later that month, at DYFS's request, S.P. was assessed by Preferred Behavioral Health (PBH) concerning her alcohol and drug use. She reported to PBH her use of alcohol starting at age fourteen and her use of cocaine at various points in her life. S.P. also acknowledged suffering from significant anxiety, for which prescription anti-anxiety medications had been prescribed. After the assessment, PBH reported to DYFS that S.P. did not require treatment at that time.
In April, although S.P. had agreed to provide a urine drug screen, she was unable, or refused, to provide a sufficient sample to be tested. By mid-May 2006, S.P. had been evicted from her apartment and began receiving assistance from the Homeless Prevention Program.
In mid-June 2006, S.P. rebuffed DYFS's efforts to obtain a urine drug screen, stating she was so busy looking for housing and employment that she did not have time to come to the DYFS office. A few days later, S.P. reported to a DYFS worker that T.P. was staying with P.P. until S.P. was able to find housing. The DYFS worker then provided a list of community resources that could assist her in her search. On June 27, 2006, S.P. again refused to provide a urine drug screen, and DYFS filed a verified complaint for investigation on August 1, 2006.
In its complaint, DYFS sought an order directing S.P. and P.P. "to permit the immediate investigation by [DYFS] of the circumstances" of T.P. A few weeks later, on August 17, 2006, DYFS filed an amended complaint seeking care and supervision of T.P. pursuant to N.J.S.A. 9:6-8.33. In that complaint, DYFS alleged that S.P. continued to be uncooperative with urine drug screens, whereas P.P. had been attending drug treatment on a regular basis and his last two to three urine screens were negative.
Over the next fifteen months, three different judges held a total of ten hearings, most of which were designated as compliance review hearings. At the last hearing on November 15, 2007, designated a dispositional hearing, the court entered an order approving DYFS's motion to terminate the litigation and to continue T.P.'s placement with her father. Other than the hearing on August 31, 2006, which was the second of the ten hearings, no ...