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New Jersey Division of Youth and Family Services v. M.J

April 30, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-197-10.

Per curiam.



Submitted March 13, 2012

Before Judges Baxter and Maven.

Joseph E. Krakora, Public Defender, attorney for appellant (Anna F. Patras, Designated Counsel, on the brief).

Defendant M.J., the mother of D.J., appeals from the Family Part orders of June 3, 2010, finding M.J. abused and neglected D.J., and February 2, 2011, accepting the permanency plan for termination of parental rights followed by adoption. Defendant contends: (1) the verified complaint failed to set forth adequate facts to support an allegation of abuse and neglect;

(2) the removal of the child was in error; (3) the Division failed to show any substantial risk of harm or actual injury to D.J.; (4) the court considered inadmissible evidence such that the finding of abuse and neglect was unsupported by credible evidence; and (5) the permanency hearing was too informal. We reject defendant's arguments and affirm the finding of abuse and neglect.

These are the facts adduced from the record. Nineteen-year-old M.J. and her thirty-eight-day-old daughter D.J. lived with M.J.'s mother, Donna,*fn1 and M.J.'s two younger brothers. On February 13, 2010, at 12:30 a.m., New Brunswick Police Officer James Hoover and his partner, Patrolman William Oels, responded to a disturbance call reporting a loud argument at Donna's apartment. When the police officers arrived, they did not observe an argument; however, Donna confirmed that she and M.J. had been arguing. The officers smelled a strong odor of gas flowing from the kitchen stove, but neither M.J. nor Donna could explain why or how the gas had been turned on. Donna was told to extinguish her cigarette and turn off the stove. The police advised the two women to be more careful, and to call the police again if they had any more problems. Officer Hoover observed M.J. holding D.J., and noted that the baby was alert and conscious.

After the officers left, the women resumed their argument. When it appeared that the argument might become physical, to avoid dropping the child during the fight, M.J. placed D.J. on a three-foot-high pile of laundry that was on the floor in the hallway. Neither M.J. nor Donna noticed when D.J. fell off the laundry pile to the floor, hit her head, and was rendered unconscious. After M.J. saw D.J. on the floor, breathing but unresponsive, M.J. attempted to rouse the baby for twenty minutes before calling 9-1-1 about the child. At approximately 2:00 a.m., the same police officers returned to the apartment in response to defendant's 9-1-1 call. Officer Hoover and paramedics tried, without success, to revive the child at the apartment. Paramedics transported M.J. and D.J. to Robert Wood Johnson Hospital where the child eventually regained consciousness while in the emergency room.

Officers Hoover and Oels went to the hospital to observe M.J. while awaiting further instruction as to whether to treat the case as an investigation of an injured baby, or a case of an unresponsive child with a potential suspect, M.J. While at the hospital, M.J. became angry and verbally abusive toward the police officers, and disruptive to the nurses in the pediatric emergency room. M.J. was arrested and taken into custody for disorderly conduct, aggravated assault on a police officer, and resisting arrest.

The Division of Youth and Family Services (Division) received a referral from the police department regarding the circumstances involving this unresponsive child. Toshia Gresham, a Special Response Unit Officer, and Nicole Smith, the Child Protective Investigator, conducted the initial investigation. Medical tests demonstrated that the child did not suffer any physical injuries as a result of the fall. Smith interviewed M.J. in the jail and noted that "she had some childlike behavior." In addition to providing her version of the incident, M.J. informed Smith that she suffered from anger management problems, was bi-polar but was presently compliant with taking her medication, Haldol. M.J. admitted that she attempted suicide when she was eighteen years old by sitting in the street but denied being currently suicidal. M.J. explained that she was unemployed and received Supplemental Security Income (SSI), and stated her mother handled all of her finances. M.J. claimed that she was the primary caregiver for D.J., but, when she became overwhelmed, she would let her mother watch D.J. while she went for a walk. Next, Smith spoke to Donna at their apartment and noted that the home was not hazardous. Donna reported to Smith that M.J. was not taking her medication.

As a result of the investigation, the Division substantiated the allegation of abuse and neglect due to M.J.'s placing the child on a pile of laundry, resulting in the infant's falling to the floor, becoming unconscious and unresponsive, and needing medical attention.

After four days in the hospital, the child was ready to be discharged. The Division filed an order to show cause and verified complaint on February 19, 2010, seeking custody, care and supervision pursuant to a Dodd*fn2 removal hearing. Diane Robustellini,*fn3 the Division intake caseworker, served M.J. with a copy of the complaint in the jail.

At the initial hearing, M.J. was not yet represented by counsel and, because criminal charges were pending from the hospital incident, the judge advised her not to testify. Robustellini testified regarding the Division's investigation reports and her interviews with M.J. and Donna. Robustellini testified that the substantiated allegation of abuse and neglect and the verified complaint were based on M.J.'s placement of the child on a pile of laundry, which resulted in the infant's fall and need for medical attention. Robustellini further stated that the Division sought the Dodd removal because M.J. was still incarcerated and Donna could not be considered a suitable placement because of her prior history with the Division.*fn4 On the next hearing date, the court ordered psychological and psychiatric evaluations of M.J. to evaluate her mental health and anger management problems, and her volatile relationship with Donna, as they related to any potential risk to the child.

On June 2 and 3, 2010, the judge conducted a fact-finding hearing, see N.J.S.A. 9:6-8.44, to determine whether M.J. abused and neglected D.J. The Division and Law Guardian presented the testimony of Division caseworkers Gresham, Smith, Robustellini, and Leger, who testified to their investigation of the incident, the history of the Division's contact with M.J. and the ongoing permanency review. In addition to the testimony of its own personnel, the Division presented the testimony of Officer Hoover who recounted the police involvement with M.J. and Donna on the morning of February 13, 2010 and on other occasions. M.J. testified on her own behalf regarding her mental health and anger control problems, which included fourteen prior hospitalizations, and described her habit of managing her anger by taking walks to calm down. She explained that she depended on her ...

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