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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...