On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FN-04-325-07 and FD-04-3569-08-M.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on September 30, 2009
Before Judges Fuentes, Gilroy and Simonelli.
Defendant M.M. appeals from the December 12, 2007 Family Part order entered in the abuse and neglect action, Docket No. FN-04-325-07, finding that she abused and neglected her daughter, Sue,*fn1 born April 17, 1998. M.M. also appeals from two orders entered on July 31, 2008, one in the custody litigation, Docket No. FD-04-3569-08-M, granting custody of Sue to her ex-husband and Sue's biological father, defendant S.M., and the other terminating the abuse and neglect action. We affirm in part and reverse in part and remand for further proceedings.
The record does not disclose when the parties were married; however, they separated in September 2000, after which M.M. became Sue's primary caretaker, with S.M., a sergeant first-class in the United States Army stationed at Fort Bragg, North Carolina, exercising parenting time while on military leave and during holidays. The parties divorced in January 2007.
On a date not specified in the record, M.M. moved with Sue to New Jersey. In March 2005, Sue transferred into the Gloucester Township public school system. Shortly thereafter, she was referred to a Child Study Team due to behavioral concerns. Specifically, Sue showed unusual behavior and mannerisms; she had temper outbursts; she talked about bizarre things and imaginary friends; she had trouble interacting appropriately with others; she showed involuntary movements such as arm flapping; she grunted and made unusual sounds for no apparent reason; she was easily distracted and had trouble concentrating; and she required a one-to-one aid.
A June 9, 2005 psychological evaluation revealed that Sue has superior range of intellectual functioning; however, test results indicated that she has significant levels of hyperactivity, aggression, depression, attention problems, "atypicality," withdrawal, and a significant lack of adaptability and social and study skills. Testing also confirmed a high probability that she has Asperger's Syndrome. The psychologist recommended that Sue have a neurological evaluation to address this disorder or other possible neurological conditions, and, depending on the results, have another psychiatric evaluation to assess her mental state. The psychologist also recommended school-based counseling and private therapy. M.M. did not follow these recommendations.
A May 15, 2006 psychiatric evaluation confirmed that Sue has Asperger's Syndrome and behaviors associated with attention deficit disorder with hyperactivity (ADHD). The psychiatrist encouraged M.M. to explore the issue of medication, which she ignored.
Plaintiff New Jersey Division of Youth and Family Services (the Division) first became involved with M.M. on January 29, 2007, after receiving a referral that Sue, then eight years old, reported to a teacher that M.M. left her home alone, and that the child had a "suicide ideation[,]" which M.M. refused to acknowledge. At the time, M.M. was employed full-time and S.M. was deployed in Iraq.
The Division substantiated neglect based on inadequate supervision after M.M. admitted to a caseworker that she sometimes left Sue home alone when she went to the store. M.M. also admitted that she was aware of Sue's psychiatric problems.
M.M. signed a safety plan acknowledging that she would not leave Sue home alone until the child was psychologically and neurologically evaluated to determine whether she was mentally capable to be left home alone. M.M. thereafter failed to have Sue evaluated. As a result, on March 15, 2007, the Division instituted the abuse and neglect action and obtained care and supervision of Sue; however, M.M. maintained legal and physical custody of the child.
M.M.'s involvement with the Division thereafter was marked by her resistance to having Sue evaluated. After a fact-finding hearing, the trial judge found by a preponderance of the evidence that M.M. had abused and neglected Sue by failing to (1) properly supervise the child by leaving her home alone; (2) have the child evaluated; (3) timely enroll the child in school despite the child's obvious need for intensive special educational services; and (4) address the child's serious psychiatric disorder. The judge ordered M.M. to undergo a psychological evaluation and for Sue to ...