April 4, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF J.C.A., J.Z.A.S., AND Y.R.A.S., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-282-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 7, 2012
Before Judges Axelrad and Sapp-Peterson.
S.S. appeals from the Family Part's March 17, 2010 order, following a fact-finding hearing, determining she abused or neglected her three children by leaving them with relatives for a few days without contact information or information regarding her return, used marijuana on two occasions, and had unstable housing. She challenges the trial court's findings and aggregation of conduct as constituting neglect under Title Nine. We reverse.
Three children born to S.S., a boy J.C.A. (John) on November 17, 2002, and a boy J.Z.A.S. (James) and his twin sister Y.R.A.S. (Yasmin) on May 20, 2005,*fn1 are involved in this appeal. J.A. is the father of all three children and is not involved in this appeal.*fn2
The Division of Youth and Family Service (DYFS) removed the children from S.S. in February 2007, after J.A. hit Yasmin with a belt. (Docket No. FN-04-309-07). The children spent almost a year in foster care. DYFS substantiated J.A. for physical abuse, and S.S. for failure to protect Yasmin. On May 16, 2007, J.A. pled guilty to fourth-degree abuse of a child under N.J.S.A. 9:6-1 and -3, and was sentenced to five years probation with conditions, including supervised visitation with Yasmin.
On December 15, 2009, DYFS filed a verified complaint and Order to Show Cause against S.S. for abuse and neglect of her children under Docket No. FN-04-282-10, which was amended on March 9, 2010, which is the subject matter of this appeal. The three main aspects of the complaints were allegations of S.S.'s unstable housing, her use of marijuana, and an incident where she could not be located on December 14, 2009, which led to a second emergency removal of the children. At that time, John was seven years old and the twins were four years old.
Vivian Garcia, a Family Specialty I, Intake Worker for DYFS, testified at the hearing on December 16, 2009. Garcia testified that S.S. was temporarily living with a neighbor, P.B., where the twins were sleeping on a mattress, and John and S.S. were sleeping on separate couches. She noted DYFS was waiting for S.S. to secure permanent housing to purchase beds for her. Garcia also reported that when she picked up S.S. on December 11 to take her for a drug screen, S.S. admitted she would test positive for marijuana, which she did. The judge noted that S.S. tested positive for marijuana again on the date of the hearing.
Garcia also testified about her perceived abandonment of the children by S.S. After S.S.'s drug screen, Garcia drove her and the children to a bus stop in Sicklerville. S.S. told Garcia she was going to Camden to visit her sister C.J. Garcia next saw the children on Monday, December 14, when DYFS received a referral from Sandy Dilks, Director of the Pfeiffer Community Center (Pfeiffer Center) in Williamstown.*fn3 According to Garcia, S.S.'s Uncle A.S. and her Cousin H.S. (Uncle and Cousin) brought the children there because they "had been seemingly abandoned by their mother and no one could get in contact with her." Garcia further reported that Yasmin had a rash on her stomach, which was potentially ringworm, and James' ear was very crusty as a result of him scratching it nervously, and it not being treated. Garcia testified that Uncle and Cousin claimed S.S. did not leave the children with them, but left them with "other people," and Uncle and Cousin "ended up going to get the children from where they were." Uncle and Cousin apparently reported that S.S. was supposed to be home on Sunday. According to Garcia, nobody spoke to the "other people" because "they were unable to be reached."
Garcia telephoned S.S. at P.B.'s house, the only number DYFS had on file for S.S., but could not reach her. Garcia could not release the children to Uncle or Cousin because Uncle admitted to having a criminal record. Nor could Garcia release the children to S.S.'s Aunt C.S. (Aunt C.S.) because DYFS had not yet run a background check on her. Because DYFS could not verify with whom S.S. left the children, or when she was planning to return, DYFS took the children into custody pursuant to an emergency removal and placed them in foster care. Garcia testified that upon S.S.'s return from New York on December 15, S.S. reported she left the twins with her sister C.J. in Camden and John with Aunt C.S.
The court directed the children to remain under the care, custody and supervision of DYFS. S.S. was ordered to undergo substance abuse and psychological evaluations, and was allowed weekly supervised visitation. The ruling was memorialized in an order of the same date.
A follow-up hearing was conducted on January 21, 2010. S.S.'s urine screen was negative. S.S. represented she had not used drugs since the prior hearing in December. DYFS reported that S.S. had complied with her substance abuse evaluation and was recommended as a level two outpatient. S.S. explained she was attempting to get into a program called Providence House, which would provide housing for her and her children, and the reason for her lack of housing was a fire at her home the previous June. The court entered an order for the children to remain in the custody of DYFS, and for S.S. to cooperate with substance abuse treatment, undergo a psychological evaluation, and obtain stable housing.
After a fact-finding hearing on March 17, 2010, in which testimony was provided solely by Garcia consistent with that provided at the show cause hearing, and several documents were admitted into evidence, the court found DYFS proved by a preponderance of the evidence that S.S. had abused or neglected her children by a combination of a lack of stable housing, testing positive for marijuana on two occasions, and leaving her children in New Jersey and going to New York without leaving any contact information where she could be reached. The ruling was memorialized in an order of the same date.
A dispositional order of the same date was entered, continuing custody of the children with DYFS with weekly supervised visits by S.S., and directing S.S. to comply with substance abuse and psychological evaluations and recommendations.
Among other proceedings, a permanency hearing was held and order entered on January 14, 2011, directing DYFS to file a guardianship complaint because the children had been in placement since December 2009, and S.S. had been unable to obtain stable housing or complete any of the offered services. Shortly thereafter, DYFS filed a guardianship complaint (FG-04-162-11) seeking to terminate the parental rights of S.S. and J.A. to the three children. On March 28, 2011, an order was entered terminating the FN litigation and a guardianship multipurpose order was entered granting DYFS care, custody and supervision of the children and providing S.S. with continued services and supervised visitation.
On May 4, 2011, S.S. filed a notice of appeal of both the finding of abuse or neglect of May 17, 2010, and the termination of the FN litigation of March 28, 2011. She filed an amended notice of appeal on August 4, 2011.
Following trial, the court terminated the parental rights of S.S. and J.A. to James, Yasmin, and John by order of October 21, 2011. S.S. filed a notice of appeal of that order on or about December 20, 2011, which is pending before this court.
As the challenges asserted in S.S.'s brief relate solely to the May 17, 2010 order, this opinion will focus on the fact-finding hearing. DYFS entered into evidence its investigation and caseworker summaries from 2007 and 2009, and J.A.'s judgment of conviction. Garcia testified about the November 2009 referral that alleged S.S. was homeless and there was possible drug use. Garcia reported S.S.'s positive marijuana screen on December 11, 2009. Garcia testified at length as to the December 14 referral that resulted in the emergency removal of the children. She observed that James had a peeling and scabby ear that appeared to be infected and Yasmin had a rash with several circles on her stomach that appeared to be ringworm. Garcia also was concerned that the children appeared to be hungry and they said they had not eaten during the day.
Garcia attempted to locate S.S. by leaving a message at P.B.'s but did not receive a response. Uncle and Cousin had no information as to how to locate or contact S.S., and informed Garcia they only heard from S.S. when she called them. Garcia testified that the only information the children had regarding their mother was the twins' report that "their mother left [the two of them] with their Aunt C.J. . . . and they did not know where she was." Garcia explained she was never able to get in contact with C.J. to verify that she was taking care of the children or that there was a plan in place because no one could give her C.J.'s telephone number or address. Garcia explained that she removed the children because S.S. could not be located and the children did not know when she was coming back.
On cross-examination Garcia reported that during the evening of December 14, S.S. telephoned her and explained she was in New York, claiming she was in contact with her family, and her family knew where she was. According to Garcia, S.S. said she asked C.J. to watch the children on December 11 while she took a trip to New York. Garcia also admitted her understanding that P.B. was in contact with S.S. during the subject weekend based on her contact sheet notation of P.B.'s statement that S.S. called her on December 13 to explain she could not return to New Jersey because of bad weather. Garcia stated that P.B. would not give her a contact number for S.S.
Garcia also discussed the other allegations against S.S. where she was substantiated for neglect - in 2007 for failing to protect Yasmin from physical abuse by J.A., and in January 2009 for allowing J.A. to come into contact with the children in the home. Garcia acknowledged that a November 2009 referral was deemed unfounded. Furthermore, although S.S. admitted she would test positive for marijuana on December 11, 2009, Garcia conceded that as of that date, DYFS "had no concerns with regard to [the three] children." In fact, although DYFS had received the positive drug screen, Garcia reported the record reflected the only reason DYFS substantiated S.S. for abuse and neglect on December 14 was for abandonment.
Over S.S.'s objection, the court permitted DYFS to orally amend its complaint to conform to the proofs under N.J.S.A. 9:6-8.50(b), to include S.S.'s positive drug screen on December 16, 2009, as part of the reason the children remained in DYFS custody. S.S.'s attorney declined additional time to respond to the amendment. In response to questioning by the court, Garcia testified that she believed S.S. had been staying with P.B. for a few weeks at the time of removal of the children and the children were sleeping on a pull-out bed.
Following the hearing, the judge found DYFS proved by a preponderance of the evidence that the children were abused or neglected within N.J.S.A. 9:6-8.21(c). The judge noted an entry in the case worker's assessment in July 2009 that S.S. was in need of stable housing as she was living with two other people in a one bedroom home. The judge considered DYFS's substantiation of neglect by S.S. in 2007, when she did not protect Yasmin from being hit with a belt by J.A.
The judge emphasized that S.S. never testified on her own behalf that she left the children with a certain person, or that she was in contact with people during her three-day absence. The judge explained,
At the time that this referral came in -- and not taking into  account any hearsay, the bottom line was that the Division was unable to get a hold of [S.S.] and the Division was unable to verify who she left the children with, under what circumstances she left the children. Nobody had a phone number to contact her. She indicated she was contacting somebody else. I've heard no testimony on behalf of [S.S.] that would indicate that yes, I left the children with this person, and yes, I left -- I had this contact person, and yes, I was contacting people during that period of time. I've heard no testimony. All I know is what's presented to the Court. And what's been presented to the Court is that on 12/11, she left, went to New York and subsequent to that the children ended up with people that called the Division because they could not get a hold of her because she could not be [reached] and the Division could not get a hold of her either at the number -- at the only number that they had for her.
The judge emphasized that although nothing happened to the children, had something occurred, there would have been no way to get in touch with S.S. The judge recognized she could not determine whether James' ear infection or Yasmin's stomach rash occurred before or after S.S. left on December 11. She noted the two dates that S.S. tested positive for marijuana. The judge concluded,
And this is one of those cases that there's not a single -- the abuse is not because of one single thing that has occurred but a combination of things and . . . all these different elements are synergistically related. The lack of stable housing, the use of marijuana, the leaving the children without anybody being able to get a hold of her when the relatives came forward with the children. All those things together combined place these children at substantial risk of harm and for that reason I find the children to be abused or neglected.
A colloquy followed regarding meeting S.S.'s needs of finding stable housing and a substance abuse program which would fit her and her children's needs. The finding of abuse and neglect was memorialized in an order of the same date, which is the subject of this appeal.
We first address and reject DYFS's challenge to S.S.'s appeal of the March 28, 2011 order terminating the FN litigation as moot based on the October 21, 2011 order of guardianship. We note that although the March 2011 order was listed in S.S.'s notice of appeal, the challenges in her brief pertain to the prior fact-finding hearing. We recognized in New Jersey Division of Youth and Family Services v. A.P., that the Legislature expressly provided for a right of appeal from Title Nine cases and noted the "continuing adverse consequences for a parent who has been found to have abused or neglected his or her child" under N.J.S.A. 9:6-8.21. 408 N.J. Super. 252, 262 (App. Div. 2009) (internal quotation marks and citation omitted), certif. denied, 201 N.J. 153 (2010). These consequences include the "inclusion of the parent's name in the DYFS Central Registry, see N.J.S.A. 9:6-8.11, which may prevent the parent from obtaining certain types of employment and have other adverse effects." Ibid.
Accordingly, S.S. is entitled to judicial review of the abuse and neglect fact-finding hearing and decision on the merits in this appeal. Our determination is based solely on a snapshot of the case as presented on the record on March 11, 2010.
S.S. has appealed the order terminating her parental rights. Her guardianship appeal will be based on the trial court's record as of October 21, 2011. That appeal will abide review and determination by the Appellate Division in an opinion at a later date.
Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. However, we may disturb the judge's factual findings if they go "so wide of the mark as to be clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations omitted). See also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 269 (2007).
S.S. argues the court erred in finding abuse or neglect, asserting each individual component was insufficient to support such a finding, and the conduct taken together did not constitute harm sufficient for such a finding. Garcia conceded the removal of S.S.'s children was premised on her going to New York without leaving contact information for her relatives with whom the children were staying. According to S.S., the evidence presented at trial did not demonstrate this conduct rose to the level of "gross negligence" or "recklessness" to substantiate a finding of abuse or neglect. We agree.
Abuse and neglect cases fall under Title Nine, which places the safety of children as the paramount concern. N.J.S.A. 9:6-8.8, and -8.21 to -8.73; P.W.R., supra, 205 N.J. at 31. The statute defines, in pertinent part, an abused or neglected child as:
(4)  a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; (5) or a child who has been willfully abandoned by his [or her] parent or guardian, as herein defined[.] [N.J.S.A. 9:6-8.21(c).]
A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse and neglect. M.C. III, supra, 201 N.J. at 344; see also G.S. v. Dep't of Human Servs., 157 N.J. 161, 175 (1999) ("A parent or guardian can commit child abuse even though the resulting injury is not intended. . . . The intent of the parent or guardian is irrelevant.").
In determining a case of abuse or neglect, the court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). In V.T. we recognized that "the elements of proof are synergistically related. Each proven act of neglect has some affect on the [child]. One act may be substantial or the sum of many acts may be substantial." Ibid. (alteration in original) (internal quotation marks and citation omitted). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b).
Although, like the trial judge, we find it problematic that S.S. did not testify at the fact-finding hearing, we also find it problematic that DYFS relied solely on Garcia's vague testimony and did not present Uncle or Cousin at the hearing to explain the circumstances under which they obtained the children. Nor did Garcia conduct a further investigation to fill in the blanks during the three intervening months between the first removal hearing and the fact-finding hearing. Accordingly, the record does not demonstrate which children Uncle and Cousin brought to the Pfeiffer Center, the reason they went to get the children, or what led them to report S.S. to Dilks on December 14. It is also unclear whether S.S.'s whereabouts were unknown to the people with whom she left the children. The record is also silent as to why Garcia did not ask seven-year-old John if he knew where his mother was, or why Garcia did not speak with Aunt C.S., with whom John had arguably been staying for the weekend. All that appears for certain from the record is that the DYFS worker was unable to reach S.S. on December l4.
In G.S., the Court analyzed the "minimum degree of care" language set forth in Title Nine. Supra, 157 N.J. at 177-82. Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court explained that such a standard is intended to balance a parent's constitutional right to raise his or her own children, with "the State's parens patriae power to protect children from acts that negatively impact on their health and safety." Id. at 179-80.
This standard aims to subject a parent to liability "for injuries produced by the parent's failure to protect the child." Id. at 179. The Court noted the focus is on the harm to the child, giving the following example: "if a parent left a two-year old child alone in a house and went shopping, the child would be considered a neglected child within the meaning of Title 9 regardless of whether the parent intended to impair the child's well-being or harm." Id. at 180-81. Thus, a parent or guardian "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181.
This standard of "minimum degree of care" has been analyzed in several recent cases. In New Jersey Division of Youth and Family Services v. J.L., we emphasized that the focus is on a parent's awareness of the dangers inherent in a situation. 410 N.J. Super. 159, 168-69 (App. Div. 2009). In J.L., a mother allowed her two young children to walk to their condominium, which did not require them to cross any streets, while she watched from a park with an unobstructed view of the home. Id.
at 161. When the children believed they were locked inside, they called 9-1-1. Id. at 162. The mother returned home within half an hour. Ibid. We reversed the trial court's finding of abuse or neglect, concluding the mother's conduct, albeit inattentive, did not rise to the level of willful or wanton misconduct to constitute a failure to exercise a minimum degree of care. Id. at 168-69.
On the other hand, we found that placing a ten-month-old child on a twin bed, with no rails, next to a radiator, which resulted in the child receiving third-degree burns, did constitute wanton or willful misconduct to substantiate a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011). We emphasized the fact that the father placed blankets around the bed to presumably create a buffer, demonstrated he "recognized the inherent danger" to his child, and thus his actions amounted to gross negligence. Id. at 546.
Most recently, our Supreme Court held that a mother leaving her four-year-old son in her home when she thought her mother, the boy's grandmother, was home, did not amount to a failure to exercise a minimum degree of care to constitute abuse or neglect. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 310 (2011). The mother's belief that the grandmother was home was based on her car in the driveway and her routine of being home at that time on Sunday evenings, the night of the incident. Id. at 297. Unbeknownst to the mother, however, the grandmother had taken an impromptu trip to New York with her husband. Ibid. The Court found that although the mother's failure to ensure her child was supervised was negligent, such behavior did not rise to the level of "gross negligence" to constitute failure of a minimum degree of care. Id. at 309-10.
We are not satisfied there was competent, credible evidence to support the trial judge's fact-finding that S.S. left her children with people who did not know when she would be returning and had no way of contacting her, and that conduct contributed to their imminent danger. Similar to T.B., in this case, S.S.'s actions, although maybe negligent, did not rise to the level of gross negligence or a failure to exercise a minimum degree of care, to substantiate a finding of abuse and neglect. S.S. did not leave her children unsupervised while she went to New York with no set date on which she was to return. Rather, S.S. left her children with family members whom the children knew, under their supervision and care, for three days.
S.S.'s lack of testimony may result in a negative inference against her. Nevertheless, as previously stated, when analyzing the totality of the record, the trial court also should have considered that the majority of Garcia's testimony was hearsay-based and she did not investigate, nor did DYFS produce testimony or evidence explaining the reason for Uncle's and Cousin's retrieval of some or all of the children and presence at the Pfeiffer Center, whether or not S.S.'s sister C.J. and Aunt C.S. had a means by which to contact her directly, or the amount of contact S.S. actually had with her family members and P.B. over the three-day period. The court also made no mention of Garcia's testimony and the investigation summaries about Uncle's and Cousin's statements that S.S. called them from blocked telephone numbers and that S.S. was in contact with P.B., at least once, to advise she could not return on December 13 due to inclement weather. Nor did the court note Garcia's testimony that when S.S. returned, she claimed her sister C.J., with whom she left the twins, knew where she was and how to contact her.
Even if S.S. had left her children with C.J. and Aunt C.S. without contact information, and only called them through blocked phone numbers, such conduct would not rise to the level of failure to exercise a minimum degree of care under the statute. This is unlike A.R., where the father was aware of the inherent danger in allowing his young child to sleep next to a radiator as noted by his placing blankets around the child as a buffer. Nor is this similar to the example given in G.S., where the Court noted a parent could be liable for leaving a child home alone for a few hours. There was no evidence presented that S.S. intended to abandon her children. Her trip to New York was for a finite period of time and, as reported by P.B., she was detained because of the weather. S.S. was not aware of any inherent dangers of leaving her children with responsible family members, whom they knew, for three days. In fact, Garcia acknowledged that the twins did not "report anything that they were being abandoned or abused or anything like that while in the care of [their] Aunt C.J." Moreover, Garcia's investigation summary noted that James told her he sometimes scratched his ear at night, and Yasmin stated she got her stomach rash from sliding down the slide at the park. Garcia also testified that John, who was in Aunt C.S.'s care, looked fine upon removal.
We are mindful that a court need not wait for actual harm to find abuse and neglect; however, no evidence was presented that the children were at serious risk of harm to justify the court's comment that "[l]uckily, nothing serious happened to these children[.]" As the Court stated in T.B., supra, "[t]he parent's conduct must be evaluated in context based on the risks posed by the situation"; the mere possibility that some act could have been taken or done to avoid a harm or risk of harm to a child does not constitute a Title Nine violation. 207 N.J. at 309.
S.S. further argues the court erred in considering her "substance-abuse problem" and lack of stable housing in the finding of abuse or neglect. We agree.
As recognized by the trial court, in an abuse and neglect case, the "elements of proof are synergistically related" and "the sum of the acts may be substantial." V.T., supra, 423 N.J. Super. at 329-30 (internal quotation marks and citation omitted). Nevertheless, S.S.'s testing positive for marijuana and her lack of stable housing, taken together with her trip to New York, do not substantiate the finding of abuse or neglect based on the record presented at the fact-finding hearing.
In V.T. we noted that "Title 9 is not intended to extend to all parents who imbibe illegal substances at any time." Id. at 331. We reversed the trial court's finding of abuse or neglect based on a father's testing positive for marijuana and cocaine prior to two visits with his children and held that positive urine screens do not constitute abuse or neglect as a matter of law. Ibid. It is when this drug use places a child in imminent harm or at risk of danger where drug use can substantiate an abuse or neglect finding. Ibid.
The fact-finding record did not reflect that S.S. had a longstanding history of substance abuse or that her drug use placed her children at risk of any imminent harm. Although DYFS's complaints noted many allegations of drug use, the allegations were determined to be unfounded, with the exception of S.S.'s positive marijuana test on December 11, 2009. The court's finding of S.S.'s drug use stems solely from that test, which results were received by DYFS on December 14, and the positive marijuana screen obtained at the court hearing on December l6. In either instance there is no correlation between S.S.'s confirmed marijuana use and the condition of the children on December l4, the date of the emergency removal by DYFS.
Pursuant to N.J.S.A. 9:6-8.21(c), a child can be abused or neglected if a parent fails to supply the child with adequate shelter. However, it is when "a child's condition has been demonstrated to be impaired or in imminent danger of being impaired," will such a failure to provide for the child's needs support a finding of neglect. P.W.R., supra, 205 N.J. at 35. See also N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 550-51, 562 (1994) (noting a finding of neglect was proper when the parents failed to provide basic needs such as food, clothing and shelter to their children, although they were physically and financially capable of doing so). Poverty alone is not a basis on which to make a finding of abuse and neglect. Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff'd, 74 N.J. 196 (1977). See also In re Guardianship of J.E.D., 217 N.J. Super. 1, 13 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988).
It is evident S.S. had difficulty at times providing adequate shelter for her children. DYFS acknowledged, however, that S.S. was attempting to remedy the situation, and in the interim, none of the places where the children were temporarily living were unclean or unsafe. In fact, Garcia did not express concern that the children were temporarily sleeping on mattresses and explained that DYFS was waiting for S.S. to move to permanent housing to provide beds for the children.
Based on the lack of evidence and the hearsay evidence provided only through Garcia's testimony, we are satisfied DYFS failed to carry its burden of proving by a preponderance of the credible evidence that S.S. abused or neglected her children by leaving them with relatives for a three-day period with DYFS being unable to contact her, two positive marijuana screens within one week of each other, and her temporary lack of housing.