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New Jersey Division of Youth and Family Services v. J.B

March 7, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-397-07.

Per curiam.



Argued February 8, 2011

Decided Before Judges Carchman and Waugh.

Defendant, J.B., first the foster mother of minors C.P and M.P.,*fn1 (collectively "the children") and then their adoptive mother, appeals from a January 14, 2010 order of the Family Part denying her motion to set aside the judgment of the Family Part finding her guilty of neglect. In addition, defendant asserts that her counsel was ineffective. We reject the latter claim and conclude that the motion judge did not err in denying defendant's motion. Accordingly, we affirm.

We review the extensive factual and procedural history of this case to place the issues raised on appeal in appropriate context. In May 2007, approximately four years after the children's adoption by defendant, M.P. was at school, and was "hit in the face with a football," which broke her eyeglasses. The school attempted to contact defendant. When they were unable to reach anyone, M.P. "told the nurse that [defendant] was away and that is why they couldn't reach her."

The school principal contacted the New Jersey Division of Youth and Family Services (DYFS or the Division). Monica Garcia, the assigned DYFS investigator, interviewed both M.P. and C.P. at the school. M.P. told Garcia that her mother had gone to Wildwood, New Jersey with a male friend named Sam Marcos. C.P. informed Garcia that defendant had left on Sunday, May 20, and would "probably be back by Friday," May 25.

In response to Garcia's inquiries, the children related a litany of problems in the home. According to Garcia, M.P. told her that defendant, while in Wildwood, had instructed M.P. to stay in a basement apartment she owned, while C.P. stayed at the family residence. Both C.P. and M.P. claimed that this arrangement resulted from M.P. having previously taken money and food without permission, and that defendant did not trust her. M.P. did not have food at the apartment, and C.P. would bring her food.

Both children also stated that defendant was away from home for approximately five days in March 2007. During that time, C.P. had been left alone at home, while M.P. stayed at defendant's friend's house. C.P. also confirmed that, in her mother's absence, C.P. would go to the family residence after school, feed the dogs, complete her homework and then walk approximately forty minutes to M.P.'s location, where both children would eat and sleep.

C.P. also stated that "[defendant] and the girls wear diapers when they get their menses and one time C.P. rubbed a dirty diaper on their face when she left it lying around." C.P. feared going home after school because "she doesn't know what [defendant] is going to do." In addition, C.P. claimed that she overheard a telephone call in which defendant said, "If I could I'd kill them." Finally, C.P. claimed that defendant "hits [M.P.] more than her[self] because [M.P.] appears to not care and makes [defendant] repeat herself more."

M.P. also reported additional problems. She stated that defendant does not allow her into the kitchen unless M.P. is cleaning, that defendant did not buy them clothing, and that their wardrobes were instead provided by "the church and neighbors." She felt that "she likes her sister but does not have a healthy relationship with her because [defendant] keeps them separate within the household." She claimed that defendant curses at them, using words such as "bitch" and "the 'F' word." Finally, M.P. told Garcia that, after she returned from McDonald's without defendant's salad, defendant told her that "she would wish she would choke and die on her burger."

Defendant had provided M.P. and C.P. with a list of emergency contact numbers. Garcia attempted to call defendant on Marcos' cellular phone and left a voicemail message. Garcia later attempted to contact the other people on the list. Although Garcia called "Ms. Colleen," "Julie," and "Ms. Jenn Mullaly," *fn2 none of the listed people answered. After consulting with her supervisor, Garcia was instructed to effect an emergency removal. C.P. was placed with the Volunteers of America in Jersey City, and M.P. was placed in a foster home in Kearny.

Two days later, on May 25, DYFS filed a verified complaint seeking custody of the children. Defendant claimed that the children were supervised, but had decided, of their own volition, to stay in the basement apartment instead of with their caregiver on the second floor, Ms. "Jennifer Mulolli." Defendant also refuted the characterization of the cheeseburger incident, stating that "I asked her to slow down or she will choke." The judge granted temporary custody of the children to DYFS.

After the proceeding, Garcia interviewed defendant at her home. Defendant claimed that she did not leave the children unsupervised, but that they were in the care of Julie Rojas,with Ms. Jennifer Mellali as a "back up." Defendant also claimed that Marcos' cell phone battery had died, but had no explanation as to why ...

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