On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FN-02-249-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2010
Before Judges Lihotz and Baxter.
Defendant, S.S., appeals from the October 23, 2008 order of the Family Part in which the judge found that S.S. neglected her children D.S., then twelve years old, B.S., then six years old, and C.S., Jr., then three years old, in violation of N.J.S.A. 9:6-8.21.
On appeal, S.S. argues the trial judge erred in allowing the Division of Youth and Family Services (DYFS or the Division) to proceed with its case as its verified complaint violated Rule 5:12-1 in that it contained only unsubstantiated allegations and no prima facie evidence of abuse and neglect. S.S. further argues the trial court erred because DYFS failed to establish neglect by a preponderance of the evidence. We reject these claims and affirm.
S.S. first became involved with DYFS on November 2, 2005 when a referral was received reporting that S.S. abused alcohol, frequently held parties, and could not manage her children. It was also alleged that A.M., S.S.'s paramour who resided with her and her minor children, abused heroin, marijuana, and alcohol. Upon investigation, A.M. admitted to occasional alcohol use, as well as being a recovering heroin addict. S.S. denied any alcohol or drug use. This referral, as well as referrals on November 10, 2005, February 28, 2006, and April 17, 2006, which made similar allegations, were all ultimately determined to be unfounded.
Despite these referrals being unfounded, S.S. agreed to restrain A.M. from her home if he failed to initiate substance abuse treatment. A.M. began such treatment on April 20, 2006.
On May 12, 2006, DYFS was notified by A.M.'s treatment program that he had tested positive for opiates and marijuana. DYFS thereafter filed a verified complaint and order to show cause seeking care and supervision of S.S.'s children.
At the June 12, 2006 return date on the order to show case, Judge Mizdol ordered S.S. to submit to psychological evaluations and random urine screenings. A.M. was required to attend both psychological evaluations and intensive substance abuse treatment and was restrained from S.S.'s home and from unsupervised contact with S.S.'s children. A.M. was permitted to return to S.S.'s home on August 24, 2006 following his satisfaction of the order's requirements but was still restrained from unsupervised contact with the children.
The complaint against S.S. was modified on November 6, 2006 to add A.M. as a defendant. On November 15, A.M. stipulated to testing positive for opiates in July of that year, while residing with S.S.'s children. That litigation was ultimately terminated on February 22, 2007, and A.M. was required to attend and complete parenting skills classes.
DYFS received another referral on December 6, 2007 reporting drug use by S.S. S.S. was thereafter scheduled for a substance abuse evaluation, in which she tested positive for opiates and benzodiazepines. After S.S. provided prescriptions for these substances, the referral was deemed unfounded.
When DYFS later determined that S.S.'s prescriptions did not account for her positive drug screen, another referral was generated. During this investigation, concerns were raised regarding A.M.'s unsupervised contact with the children, as it was discovered that he had been convicted of narcotics possession in the past, and with respect to the large number of prescription drugs S.S. was taking and the frequency of her filling these prescriptions. As a result, S.S. agreed to restrict A.M. from her home and from unsupervised contact with her children and to have the children's maternal grandmother supervise S.S.'s interaction with the children. No proceedings, however, were brought against S.S. and the referral was deemed to be unfounded.
On April 29, 2008, DYFS received yet another referral regarding S.S. and A.M., alleging that S.S. had two paramours living with her, that all parties were abusing heroin and prescription pills, that the children were malnourished, and that the police were investigating S.S.'s home for drug activity. When questioned ...