On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FN-05-133-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2009
Before Judges Rodríguez, Payne and Waugh.
J.F., the biological mother of three children, G.F., a boy born on March 28, 2004; J.T. Jr., a boy born on May 1, 2006; and M.T., a girl born on May 26, 2007, appeals from the July 24, 2006 fact finding order adjudging her to have abused or neglected J.T. Jr. The order was entered pursuant to N.J.S.A. 9:6-8.52 by the Cumberland County Family Part. She also appeals from the October 17, 2007 order by the Cape May County Family Part, which dismissed the abuse/neglect litigation without vacating the fact finding order. The abuse/neglect litigation was dismissed "because a complaint for Termination of Parental Rights has been filed." We reverse the fact finding order for two independent reasons: (1) there was insufficient evidence to find abuse or neglect; and (2) the procedures for entering a suspended judgment were not followed.
We note parenthetically that, during the guardianship trial, J.F. voluntarily surrendered her parental rights as to her three children. Thus, insofar as J.F. is concerned, this appeal has no bearing on the placement and permanent custody of the three children. However, a judgment of abuse/neglect bears other consequences, including registration as a child abuser in the Central Registry of the Bureau of Children's Services, N.J.S.A. 9:6-8.11, and the numerous trial court orders finding J.F. non-compliant with court-ordered services requirements, where the court's authority to require such services was derived from its prior erroneous abuse/neglect judgment. See N.J.S.A. 9:6-8.58. A final consequence is that DYFS has issued an "administrative substantiation" that J.F. abused M.T., apparently based upon the fact that J.F. consumed drugs while pregnant with M.T., a circumstance identical to the one now before us. J.T., the father of J.T. Jr. and M.T., is not a party to this appeal.
When she was pregnant with J.T. Jr., J.F. underwent prenatal medical tests. The tests revealed the presence of illicit substances in J.F.'s bloodstream. The New Jersey Division of Youth and Family Services (DYFS) filed an abuse/neglect complaint in Cumberland County. One month later, J.T. Jr. was born with opiates and amphetamines in his bloodstream. At a hearing on the abuse/neglect complaint, J.F. admitted that she took "vicodine" [sic] and some "other pill."
On July 24, 2006, J.F. appeared with counsel before a judge for a fact finding hearing. At this proceeding, DYFS sought J.F.'s stipulation, based both on the "positive" drug tests on J.F. and J.T. Jr. at the child's birth and on the "questionable prenatal care" J.F. had received prior to J.T. Jr.'s birth, that she had exposed J.T. Jr. to a risk of injury amounting to child abuse. J.F.'s counsel pointed out that there was no evidence to support an admission by J.F. of "inadequate prenatal care," and DYFS essentially agreed. The judge then indicated that he would "allow the stipulation to exist solely on the positive drug test," and he asked J.F.'s counsel whether J.F. would be: willing to admit to the fact that at the birth of the child [J.T. Jr.], she and the child tested positive for a controlled dangerous substance that may have placed the child's physical, mental, or emotional condition in imminent danger of being impaired as a result of her failing to exercise a minimum degree of care.
J.F.'s counsel indicated J.F. would make that admission.
Thereafter, in support of the stipulation, J.F. testified that she was consciously giving up her right to a fact finding trial in which DYFS would have been called upon to prove the allegation against her of child abuse/neglect. In response to questions from her counsel, J.F. admitted only that she had taken and had tested positive at J.T. Jr.'s birth for non-prescribed controlled dangerous substances; however, she also indicated that she had been told at the hospital that "the baby did not test positive." On cross-examination, DYFS's counsel asked a single question: whether J.F. would "admit that your use of controlled dangerous substances while pregnant placed your child [J.T. Jr.] at possible risk of - - of harm." J.F. responded in the affirmative.
The judge then concluded that J.F. had "knowingly, willingly, and voluntarily admitted to the fact that she did in fact use a controlled dangerous substance during the time that she was pregnant with the child [J.T. Jr.]." The judge concluded further that J.F.'s use of such illicit drugs during pregnancy "did place that child's physical, mental, or emotional condition in eminent [sic] danger of being impaired as a result of her failing to exercise a minimum degree of care, and the Court hereby does enter a finding of abuse/neglect against . . . [J.F.] for that reason."
The judge stated on the record that "[p]ursuant to N.J.S.A. 9:6-8.21c4 . . . [J.F.] tested positive for THC Pre-maturely [sic] and admits her use of controlled substance during pregnancy placed her child at risk" and that "these acts or admissions constitute abuse or neglect pursuant to law." Significantly, the judge directed that "[t]his order is entered under the suspended judgment rule," which is set out in N.J.S.A. 9:6-8.52.
J.F. later became pregnant with M.T. The trial court made DYFS responsible for the care and supervision of M.T. At birth, M.T. tested positive for the presence of illicit drugs in her bloodstream. DYFS filed an amended abuse/neglect complaint to include M.T. Another abuse/neglect hearing took place on June 1, 2007. Because both J.F. and J.T. now resided in Cape May County, the judge transferred the abuse/neglect complaint from Cumberland County to Cape May County. DYFS subsequently filed a guardianship complaint in Cape May County to terminate the parental rights of J.F. and the children's fathers with respect to the three ...