On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-171-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2011
Before Judges Grall and Alvarez.
L.J., the biological mother of K.O. and T.O., appeals from an order of disposition entered in a Title 9 action, N.J.S.A. 9:6-8.8 to -8.73, filed by the Division of Youth and Family Services (Division). Although the Division alleged and the judge found the children were neglected by their father, B.O., and stepmother, H.O., the dispositional order prohibits L.J. from having any contact with her children for an indefinite period. Because this order of protection is not authorized by N.J.S.A. 9:6-8.55 and was entered without affording L.J. adequate notice or an opportunity to be heard, we reverse.
The Division commenced this litigation in April 2008 after investigating a report from the Lopatcong Police Department about conditions in the father's home in March of that year. At that time, the children were living with their father and stepmother.
This was not the Division's first contact with this family. In July 1999, the children were placed under the Division's care and supervision, and the Division provided services to address their parents' alcohol abuse and domestic violence. A guardianship case was opened, and both parents participated in programs for substance abuse, domestic violence, anger management and parenting skills. In November 2000, that case was closed with a final order placing the children in the legal and physical custody of their father and providing supervised visitation for L.J.
In August 2002, the judge who presided over the guardianship action modified the arrangement in a custody case in which the Division did not participate. Under the terms of that order, the parents had joint legal custody and mother had unsupervised parenting time on alternate weekends. That arrangement for custody and parenting time was also incorporated by reference in an amended final restraining order entered on B.O.'s applications in September 2002 and December 2003.
Division records indicate that L.J.'s parenting time was subsequently suspended in February 2007 on B.O.'s motion filed in the custody case. Although the Division did not participate in that proceeding, it was investigating a referral made by a police officer who expressed concerns about the children based on his observations of L.J.'s apparent intoxication. During that investigation, T.O. told a caseworker he did not want to visit his mother because she acted "weird" and had fallen asleep on the lawn after using prescription medication. K.O., however, said she enjoyed her visits with her mother and felt safe with both of her parents. B.O. told the caseworker he did not think the children were unsafe with their mother but was concerned about her drug use and L.J.'s boyfriend. The Division arranged a substance abuse evaluation for L.J. After canceling several appointments, L.J. complied, and the evaluator concluded that there was no need for intervention. The Division concluded the referral was not substantiated and closed the case.
According to the caseworker's notes from the final visit before closing the case, L.J.'s daughter wanted to continue visits with L.J., and B.O. told the caseworker that the judge entered an order providing L.J. with visitation supervised by Catholic Charities. He also said he intended to ask the supervisors about counseling for their son. The Division left the parents to resolve the issues in the Family Part through their custody case and without Division involvement.
As noted at the outset of this opinion, L.J. was not involved in the March 2008 incident that led the Division to file this complaint alleging abuse or neglect and did not make the referral. A police officer from the Lopatcong Police Department contacted the Division to report that the children's father and stepmother were intoxicated and the stepmother had been taken to a hospital where a gash on her head was closed with fifteen staples and several stitches. The stepmother first indicated that B.O. pushed her against the garage door but later said she sustained the injury in a fall.
During the investigation that followed, the children told caseworkers that their father and stepmother regularly drank and that there was sometimes funny-smelling cigarette smoke in the house. They denied seeing any violent behavior, but they reported that the father and stepmother regularly consumed alcohol, which caused them to act "funny" and sometimes led to their stepmother passing out. In addition, the Division's nursing consultant determined that both children were behind on immunizations and due for check-ups, and the Division learned that L.J.'s son was refusing to visit her.
The Division commenced this litigation for care and supervision of the children by filing a complaint and an order to show cause on April 30, 2008. Father, stepmother and mother were named as defendants. Father appeared pro se at the initial hearing, but the other defendants did not appear. The judge gave the Division responsibility for care and supervision of the children but did not remove the children from the father's home. On the Division's representation that L.J. had supervised visitation, the judge included a provision providing for continued supervised ...