On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-0184-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 8, 2012 -
Before Judges Lihotz and St. John.
Defendant A.P. appeals from a May 6, 2009 order determining she "was neglectful" in allowing her mother, C.P., to care for her child, K.P. Following a hearing, the trial judge concluded the preponderance of the evidence proved the allegations of neglect advanced by the Division of Youth and Family Services (the Division). The trial judge found A.P. "left [the] child in the maternal grandmother's care" and "the maternal grandmother was taking [five types of] medication that made her drowsy[, had] no appropriate sleeping arrangements for the child, and [had placed the] shoes on [the] child backward[s.]" The trial court entered an order finding A.P. had neglected K.P. as defined by N.J.S.A. 9:6-8.21c(4). We reverse.
These facts were presented to the court during the fact finding hearing. Jill Miller, a Division Family Service Specialist, testified as to the facts gathered by the Division and reported in its file. Miller had not conducted the initial investigation. A.P. testified on her own behalf.
On May 30, 2008, the Division received a referral expressing concern for two-year-old K.P.'s safety. The referent stated A.P. left the child in the care of C.P., who suffered from "severe mental conditions" requiring regular psychiatric care, had a history of "cutting herself," her medications caused her to fall asleep, and she believed C.P. could not safely care for K.P.
The informant's call prompted the Division to conduct an investigation. In the past, both C.P. and A.P. had received services after the Division's intervention. In 1995, C.P. surrendered the care of her children, including A.P., to a relative because of her mental illness and in 2006, services were extended to A.P. to aid her care of K.P.
The Division's investigation report recorded that A.P. "works a lot" and "didn't have another place for her [child] to go," so she allowed her mother to care for K.P., believing she "had been cleared to care for children by her physician." A.P. maintained she never observed her mother falling asleep and was unaware of allegations to the contrary. The report also included A.P.'s statements suggesting she was considering placing K.P. for "open adoption" because her work schedule and home responsibilities precluded her from spending quality time with the child.
C.P. told the Division she could not recall when she began caring for K.P., but had been doing so for a while and her doctor had cleared her to do so. She recalled no problems and felt confident in the care she provided. On a typical day, C.P. stated she and K.P. rise between six and seven o'clock in the morning, eat breakfast, play until lunchtime, K.P. naps after lunch and when she wakes, the two spend time outside, followed by dinner.
C.P. confirmed she suffered from Schizophrenia Effective Disorder for which she takes prescribed medications, including Ativan (one milligram three times per day), Haloperidol (five milligrams twice per day and fifteen milligrams at bedtime), Remeron (thirty milligrams at bedtime), Lunesta (three milligrams at bedtime), and Lamictal (twenty-five milligrams three times per day). C.P. demonstrated she kept her medications secured and out of reach of the child and had appropriate food and clothing for the child. She denied she had fallen asleep while caring for K.P., but acknowledged the medications "made her drowsy."
The report noted the one-bedroom apartment "was untidy" and its carpet "was stained and dirty." The case worker did not see a crib set up in the apartment, stating the bedroom contained a queen-sized bed. She wrote of one concern, noting the child remained nonverbal, uttering only noises to communicate. Otherwise, K.P. was mobile, had no marks or bruises, was clean, seemed happy, and was dressed appropriately but for the fact that her shoes had been placed on the incorrect feet. K.P. demonstrated a strong bond to C.P. and had no fear of strangers. Finally, when A.P. arrived, K.P. became very excited and ran to greet her mother.
The Division executed an emergency removal of K.P., N.J.S.A. 9:6-8.29 and -8.30, and placed her in the care of a maternal great-aunt. On June 4, 2008, the Division filed a verified complaint under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, alleging K.P. was a neglected child. The Family Part judge, after concluding the removal was necessary to prevent imminent danger to the child's life, safety, or health, granted the Division's request for care, custody and ...