On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-333-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2011
Before Judges Payne and Hayden.
R.N., the biological mother of K.A.N., born August 31, 1994, appeals from the June 26, 2009 Family Division order finding her to have neglected K.A.N. We reverse and remand for a new fact-finding hearing in accordance with this opinion.
From a careful examination of the rather sparse record, we have gleaned the following. R.N. had two other children, D.L., born January 24, 1983, and V.N., born April 21, 1990. In the years prior to its most recent involvement in 2008, the Division of Youth and Family Services had received numerous reports concerning R.N.'s family, which alleged abuse or neglect of the children. While the circumstances never were found to constitute abuse or neglect, the Division attempted to provide a variety of services to stabilize the family.*fn1 In addition, K.A.N. received case management coordination of the multiple services needed to address his severe emotional and behavioral difficulties.
On March 3, 2009, the Division filed a verified complaint in the Family Division seeking an order for care and supervision of K.A.N. with custody to remain with R.N. The complaint contained many allegations involving past and recent involvement of the family with the Division, especially focusing on an incident in December 2008 when R.N. was alleged to have left K.A.N. with his eighteen-year-old sister V.N. for several days. The Division had previously determined that this allegation of neglect was unfounded. The complaint alleged other incidents in January and February 2009 when R.N. left K.A.N. with V.N. for several days without food or money. The complaint also alleged that K.A.N. had missed numerous days of school.
The day after the verified complaint was filed, just prior to the court hearing on the order to show cause, R.N. underwent a drug screen, wherein she tested positive for marijuana, PCP and cocaine. At the hearing, the Division verbally amended its complaint to request custody of the child, which the trial judge granted. K.A.N. was then placed with his maternal grandmother.
Several months later, at a court hearing on June 26, 2009, R.N.'s attorney stated that his client was going to enter into a stipulation of facts admitting to abuse or neglect. However, after R.N.'s testimony demonstrated her unwillingness to admit facts showing abuse or neglect, the stipulation testimony ended without the stipulation being accepted by the trial judge.
Next, the Division called Rosie Feliciano, the Division caseworker for the family since March 2009, to testify. She described a December 2008 incident, which was alleged in the complaint, where R.N. had left K.A.N. home for several days with only V.N., his eighteen-year-old sister. She also testified that there had been other occasions when R.N. had left K.A.N. in V.N.'s care without providing food. The caseworker attributed her knowledge about these incidents to statements made by V.N., who did not testify. In addition, the caseworker noted that the minor child had behavioral problems and could be very difficult. When he was residing with his mother, the caseworker reported, there were times when the mother did not fill the prescriptions for the medications given to him to help him control his behavior. The caseworker also testified that R.N. had tested positive for illegal drugs a number of times, beginning in March 2009, up to the day of the fact-finding hearing. No documentary evidence was admitted at this hearing.
After the caseworker testified, the trial judge rendered her opinion, stating:
This matter comes before the court for the court to make a determination whether the minor child [K.A.N.] is an abused and neglected child within the meaning of N.J.S.A. 9:6-8.21. And I am satisfied having heard the testimony of both the mother and the current worker, Ms. Feliciano. And having reviewed and taken judicial notice of the urine screens that have been done in court with respect to the named defendant . . . . I make my findings by a preponderance of the believable evidence and based on the following facts: She tested positive for cocaine, PCP and marijuana on March 4 of this year; she ...