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New Jersey Division of Youth and Family Services v. H.S

April 19, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
H.S., DEFENDANT-APPELLANT.
IN THE MATTER OF O.S.S., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-92-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2012

Before Judges Sabatino and Ashrafi.

Defendant-mother H.S. appeals from several orders of the Family Part adjudicating a complaint of abuse or neglect of her three-year-old son, O.S.S., under N.J.S.A. 9:6-8.21(c). The orders maintained custody of the boy with the Division of Youth and Family Services (DYFS), found that defendant had abused and neglected the child in three distinct ways, and terminated the Title 9*fn1 abuse or neglect case so that DYFS could proceed to a Title 30*fn2 case for termination of defendant's parental rights with the goal of adoption by the boy's paternal grandmother.

Although the court's transition from the abuse or neglect fact-finding hearing to a dispositional and permanency hearing should have included proper notice to defendant and more detailed findings in support of the approved permanency plan, we affirm the Family Part's orders in the particular circumstances of this case. More than a year had passed since the boy was placed in the custody of his grandmother, and defendant did not seek reunification with the child, agreeing to his permanent placement with his grandmother. Defendant was not prejudiced by the court's proceeding to a dispositional hearing before it had formally issued its decision on abuse or neglect, or by entry of the permanency order permitting DYFS to proceed with its Title 30 case. Preferably, DYFS's permanency plan should have been considered within the Title 9 proceedings, but defendant's right to contest the plan was adequately preserved in the ensuing Title 30 case.

I.

Defendant gave birth to the child in December 2006 when she was twenty years old. The child remained in defendant's custody until shortly before his third birthday. The child's father did not live with them. Defendant later gave birth to another boy, who has been in the custody of a maternal aunt since birth.*fn3

Beginning in 2007, DYFS received several referrals concerning the health and welfare of O.S.S., initially when defendant left the child in the care of her own mother, who was not suited to care for the child, and subsequently because of poor living conditions and defendant's seeming inability to cope with the stress of raising a small child. DYFS investigated each referral but did not substantiate abuse or neglect at that time. Rather, DYFS provided assistance to defendant, such as by purchasing new bedding and furniture for her to eliminate bedbugs.

In 2009, defendant and her son were living in a two-bedroom apartment with another woman, whom we will refer to as the roommate, and her two children. Defendant was also involved in a relationship with a man, whom we will refer to as her boyfriend, but that relationship was marred by domestic violence. In the last documented incident of violence before the child was removed from defendant's custody, the child was struck and choked by the boyfriend and fell to the floor. The roommate stepped in to remove the child from further harm. Subsequently, defendant claimed that she broke off her relationship with the boyfriend and only reconciled with him after DYFS removed the child from her care in late November 2009. However, the day before the child's removal, defendant told a DYFS caseworker that the boyfriend was present and asleep in her apartment.

Removal of the child occurred from a hospital emergency room on Thanksgiving Day 2009. The child had trouble eating food that morning, and defendant took him to the emergency room of AtlanticCare Medical Center. There, a nurse called DYFS because the child had visible marks of injuries - a swollen jaw, scratches on his face and body, bruises on his legs, and round marks the size of a fingertip on his hand, legs, and back. In addition, the child was wearing dirty clothes and behaving in a bizarre manner, such as licking the floor, but defendant was not correcting the behavior appropriately. Instead, defendant was yelling at the child continuously in the emergency room because, according to her, he was being "fussy." When defendant became aware that DYFS had been called, she tried to leave the hospital with the child but was prevented from doing so.

Hospital personnel informed DYFS that defendant and the child had come to the hospital two weeks earlier because defendant had been beaten up by her boyfriend and the child had been choked during the incident. In response to the DYFS caseworker's questions, defendant gave inconsistent answers about the causes of her son's injuries. She first blamed the child's father. After DYFS contacted the father by telephone and heard his denial that he had been with the child in recent months, defendant claimed that the child had been in the care of her roommate when the injuries occurred. Defendant explained that she lied originally about the father's involvement because she was concerned that DYFS would cause problems with her roommate and she would be evicted from the roommate's apartment.

Also, she had no other babysitter to care for her son while she worked at a restaurant two days a week. She did not have a credible explanation, however, about why she allowed the roommate to watch the child alone when defendant was not working. She had admitted to another DYFS caseworker earlier that week that she did not want to be responsible for ...


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