On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-410-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued January 26, 2009
Before Judges Fisher and King.
This appeal is brought by T.D., the maternal grandmother of the subject child, J.S. (D/O/B 9/27/06). This appeal seeks to overturn a judicial finding that T.D. had abused and neglected her infant granddaughter. The child is currently in the custody of the father, Jo.S., and we believe still under the Division of Youth and Family Services (DYFS) supervision. The father has drug and legal problems of his own.
There was no trial in this case. From various agreed upon submissions the Family Court judge found that the father, the mother (J.D.) and the grandmother (T.D.) were all guilty of "abuse and neglect within the language of the statute." N.J.S.A. 9:6-8.21 to -8.73. As to the grandmother T.D., the judge found on October 2, 2007:
[T.D.] abused this child by allowing [J.D.] to stay in her home while continuing to use drugs, creating an ongoing risk of physical injury to the child. [T.D.] failed to keep her prescription medication from [J.D.] despite multiple incidences of abuse of these medications. [T.D.] further created a risk of harm to the child by failing to obtain necessary treatment for her own mental illness.
So, for all of those reasons, I find the child to be abused and neglected within the meaning of the statute.
Thus the trial judge found both parents and T.D. to have abused and neglected the child. Subsequent hearings were held, and eventually, J.D. consented to the placement of the child with the father Jo.S. The Law Guardian concurred with this placement. The litigation was terminated at the trial level. T.D. now appeals the abuse and neglect finding.
We are very troubled with the procedure followed in this case. At the earlier hearing on September 19, 2007 Mr. Snyder, representing T.D., objected to her presence in the litigation. The principal issue at that time was the best placement for the child in this very dysfunctional family situation. As noted, this issue was ultimately resolved in the father's favor, a decision not questioned here and not the subject of this appeal.
J.D. did not want to go through a trial. The other parties did not stipulate to anything but did not object to the admission of various DYFS documents. T.D. went along with this understanding. Our principal concern is that the information in the documents alone is not sufficient to support the findings of abuse and neglect against T.D. It is not clear to us that T.D. ever knew her status in that respect was even at issue in the case. The focus of all attention fell on the acute problem, what to do with the child in view of the problems created by the mother, J.D.
We are loathe to see T.D. permanently stigmatized with the abuse and neglect label as a result of a non-traditional, rather informal, hearing on this type of record. See N.J. Div. of Youth & Fam. Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003). During the relevant time period, T.D. was caring for her invalid father and the baby while trying to control her difficult daughter. Moreover, T.D. had her own psychological problems needing medical care. Despite this consideration, for which she had little time for treatment, the child was apparently doing well and developing appropriately. The record before us, including the stipulated documents, strongly suggest that T.D. was coping as best she could with a very difficult situation.
We conclude that if DYFS wishes to persist in its pursuit of the abuse and neglect findings against T.D., it do so on traditional proofs in a conventional trial-type proceeding carefully focused on T.D.'s unfitness. See generally Div. of Youth & Fam. Servs. v. M.C. III, __ N.J. Super. __ (2008). We cannot condone an abuse or neglect finding as ...