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Division of Youth and Family Services v. E.P


June 13, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-381-10.

Per curiam.



Submitted May 30, 2012 -

Before Judges Baxter and Carchman.

E.P. appeals from a December 21, 2010 Family Part order in which the judge found that E.P. engaged in conduct that constituted abuse and neglect of her infant daughter Z.P., in violation of N.J.S.A. 9:6-8.21(c)(4). We reject E.P.'s claim that the proofs presented by the Division of Youth and Family Services (DYFS or the Division) were insufficient to satisfy the statutory standard. We affirm.


Z.P. was born at the Jersey City Medical Center, where the hospital's social services and nursing staff were well-acquainted with E.P. Hospital staff were aware that E.P. had given birth to seven other children, all of whom had been removed from her care by DYFS and subsequently adopted, some by a voluntary surrender of E.P.'s parental rights and others by a court-ordered guardianship. The hospital social worker's concern that E.P. was unable to care for Z.P. was heightened because the child tested positive for HIV, and would require consistent administration of AZT medication every six hours. Due to E.P.'s history of substance abuse, the social worker had grave concerns about whether E.P. would administer the AZT medication as required. The social worker also informed DYFS that E.P. did not have housing or adequate supplies for the baby.

The Division initiated an immediate investigation and interviewed E.P., who admitted that seven months earlier, while pregnant with Z.P., she had tested positive for cocaine. E.P. confirmed to the DYFS caseworker, Sasha Marroquin, that she did not have provisions such as diapers, clothing, a playpen or a bassinette for the baby. E.P. also conceded that she had missed numerous prenatal appointments due to transportation problems. She reported that she was unemployed, and subsisted on welfare benefits of $140 per month and food stamps of $200 per month.

When asked where she intended to live upon discharge from the hospital, E.P. explained that she intended to reside with her grandmother, who lived in subsidized housing. When Marroquin spoke to E.P.'s grandmother, Marroquin learned the grandmother would not permit E.P. and the baby to remain in her apartment for longer than two months due to a fear that allowing them to live there would cause her to be evicted.

The Division effected an immediate emergency removal of Z.P. based on E.P.'s lack of housing and the Division's apprehension that E.P. would not consistently administer the life-saving AZT medication to Z.P. On June 16, 2010, following the emergency removal, the Division filed a verified complaint for custody of Z.P. Marroquin testified to the events we have already described. E.P. also testified at the emergency removal hearing, acknowledging that she had missed some of her prenatal appointments, and admitting to a ten-year problem with cocaine and a relapse in November 2009. At the conclusion of the June 16, 2010 hearing, the judge denied the Division's request for custody of Z.P.; however, the judge granted the Division care and supervision of Z.P., and directed DYFS to contact E.P.'s grandmother to confirm that E.P. and the baby could live with her, at least temporarily. The grandmother agreed to provide housing for E.P. and the baby, and also agreed to permit homemakers to be placed in her home around-the-clock, to ensure that the baby received the AZT medication every six hours as required.

Despite having agreed to those conditions, the grandmother refused to permit the workers from the homemaker services agency into her home. When DYFS offered to scale back the hours that the workers would be present, the grandmother continued to refuse them access, insisting that she would permit no more than four hours per day.

Concluding that four hours per day was insufficient, the Division decided that E.P. and Z.P. living in the grandmother's home was no longer a viable option. As a result, DYFS placed E.P. and Z.P. in a hotel for three nights. E.P. sought emergency housing as part of her welfare benefits. The local county welfare agency referred E.P. to Project Home, an agency that would provide a year of housing services to E.P. and Z.P.; however, Project Home refused to accept E.P. because on the morning of her interview, she tested positive for cocaine.

Because E.P. was now homeless, the Division conducted a second emergency removal of Z.P., and filed a second complaint for custody of the child on June 23, 2010. Finding that the placement with the grandmother had failed; that there was no other housing plan available and E.P. was homeless; and that Z.P. had a life-threatening illness that required consistent dosages of medication, and E.P. might not be able to consistently comply with that medication regimen because of her history of addiction to cocaine, the judge ordered that custody of Z.P. be transferred to the Division.

At the fact-finding hearing on October 27, 2010, DYFS presented supervising caseworker Rosa Espinosa, whose testimony largely tracked the testimony provided earlier by Marroquin at the June 23, 2010 emergency removal hearing. Espinosa testified that the Division's concern for Z.P.'s safety resulted from E.P.'s lack of a viable housing plan, her lack of stability and the absence of any "provisions in the home for the baby." When asked to explain what she meant by "provisions," Espinosa answered "diapers, clothing, playpen [or] bassinet[te]." She commented, "[t]he baby didn't have anything." Espinosa also explained that because E.P.'s grandmother had refused to cooperate with the safety protection plan involving homemaker services, the grandmother was rejected as a possible placement, leaving E.P. homeless, and causing DYFS to institute its second emergency removal of Z.P.

E.P. testified at the fact-finding hearing. She explained that before giving birth to Z.P., she planned to move to her twin sister's home in Georgia with Z.P. and the baby's father, R.R.*fn1 E.P. also asserted that had DYFS not insisted on homemakers being present in her grandmother's apartment, her grandmother would have permitted her and the baby to live there indefinitely.

On cross-examination, E.P. admitted that when she testified on direct examination that Z.P. was "healthy" at birth, she had neglected to mention Z.P.'s need for follow-up medication every six hours. E.P. also admitted that she had tested positive for cocaine in July 2010, after the second emergency removal of Z.P. Finally, E.P. conceded that a few years earlier, she had entered a substance abuse program in Rhinebeck, New York, but had not completed it.

The Law Guardian did not present any witnesses, but by way of written summation, argued that E.P. abused and neglected Z.P. because E.P. failed to provide Z.P. with adequate shelter at a time when Z.P. was suffering from a life-threatening illness. The Law Guardian also maintained that E.P.'s long history of drug abuse created a substantial risk that E.P. would not be able to provide Z.P. with an adequate home or with the close medication regimen that the child required.

In an oral decision rendered on December 21, 2010, the judge concluded that the Division had satisfied its burden of proving by a preponderance of the evidence that Z.P. was an abused and neglected child. The judge based that finding on the: totality of the circumstances presented by this case including lack of stable housing and income, history of drug abuse and danger of relapse, failure of [E.P.'s grandmother] to permit homemakers, thus disrupting the placement, coupled with E.P.'s candid admission that she has tested positive [for drugs] since the time of the Dodd*fn2 removal.

The judge also observed that E.P.'s prior history with the Division included losing custody of her seven older children.

The judge stated that although she was "sympathetic" to E.P.'s plight, DYFS had produced sufficient evidence to establish "a legal basis for continued court and agency intervention." The judge issued a confirming order on December 21, 2010, continuing Z.P. under the custody, care and supervision of the Division, with placement as deemed appropriate by the Division. The judge ordered E.P. to cooperate with a substance abuse evaluation and any recommended treatment. The judge also ordered DYFS to provide E.P. two hours per week of supervised visitation, and directed E.P. to obtain stable and adequate housing. The judge directed DYFS to assist E.P. in that effort. The judge scheduled the matter for a compliance review hearing on March 22, 2011.

A permanency hearing was conducted on June 7, 2011, at which time the judge approved the Division's plan of termination of parental rights followed by adoption by the current foster parents. The abuse and neglect matter that is the subject of the present appeal was dismissed by order of July 22, 2011; and the Division filed a guardianship complaint in July 2011. The Division's appellate brief specifies that the guardianship trial was scheduled to begin on April 11, 2012; however, we have been provided with no information on the outcome of those proceedings.

On appeal, E.P. argues that: DYFS failed to prove by a preponderance of the evidence that there existed an imminent danger of impairment of Z.P.'s physical, mental or emotional condition, as DYFS failed to prove that Z.P. was medically fragile and E.P. was unable to attend to her medical needs; DYFS failed to prove E.P. lacked income; DYFS failed to prove that E.P. was unable to provide housing for Z.P., but if there was any such inability, it was caused by DYFS intervention; and E.P.'s history of substance abuse and the one positive test for cocaine in July 2010 were insufficient evidence of abuse and neglect.


"Title 9 controls the adjudication of abuse and neglect cases." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing N.J.S.A. 9:6-8.21 to -8.73). As the Court stated in N.J. Division of Youth & Family Services v. P.W.R., 205 N.J. 17, 31 (2011):

The purpose animating Title Nine is to provide the protection of children under 18 years of age who have had serious injury inflicted upon them. Title Nine's primary concern is the protection of children, not the culpability of parental conduct. . . .

[C]hildren have the right of protection from physical abuse and neglect and [the] purpose of Title Nine is to ensure children's rights will be adequately protected[.] [(Internal citations and quotation marks omitted).]

Title Nine defines an "[a]bused or neglected child" as follows: 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 parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, 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 and 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[.] [N.J.S.A. 9:6-8.21(c)(4).]

Addressing E.P.'s claims in the sequence in which she has presented them, we first consider her contention that DYFS failed to prove that Z.P. was medically fragile and E.P. was unable to meet the child's medical needs. The record reflects that at the first removal hearing on June 16, 2010, when the Law Guardian attempted to elicit testimony from Marroquin describing in more detail the medical condition facing Z.P., the Deputy Attorney General (DAG) representing DYFS objected. The DAG explained that "for purposes of confidentiality[,] we are not going to disclose the medical [diagnosis]." When the judge pointed out that the hearing was "a confidential proceeding" that was "closed" to the public, the DAG continued to insist that Z.P. and E.P. were entitled "to a certain amount of privacy with regard to the baby's medical issues." At that point, neither the Law Guardian nor the judge pressed the issue further. However, at the conclusion of Marroquin's testimony, the judge asked to see counsel in chambers. Although the judge did not describe on the record what she had heard from counsel in chambers, the Law Guardian asserts that "[a]fter that meeting in chambers, none of the attorneys challenged that a serious medical condition was present in mother and child." According to the Law Guardian, E.P. "essentially stipulated to that fact by not insisting on a detailed acknowledgment of the medical condition on the record."

We need not speculate about what was disclosed by the DAG in the judge's chambers, as we are satisfied that the record contains uncontroverted evidence demonstrating that Z.P. suffers from HIV. In particular, a report prepared by Marroquin on June 18, 2010, and admitted in evidence without objection along with all of Marroquin's other case notes, describes E.P.'s meeting with a DYFS nurse on that date. The June 18, 2010 DYFS contact sheet reflects the following conversation:

Nurse Kokila Bahadur arrived at the visiting room and explained to [E.P.] the importance of being consistent with the HIV medication for the baby and that [E.P.] cannot miss a dosage. [Bahadur] explained that the medication gives the baby a chance to convert her HIV status and within months she can be HIV negative. Furthermore, Mrs. Bahadur explained that the baby needs to be seen by the pediatrician every two weeks or so in order to get an accurate weight because the medication is prescribed by the baby's weight.

The record also contains a contact sheet from June 17, 2010, admitted in evidence, which noted that Z.P.'s AZT medication must be administered orally every six hours "without missing a dosage." E.P. acknowledged as much during cross-examination on October 27, 2010. The record clearly establishes that Z.P. suffers from HIV, that she must be given AZT every six hours without fail, and that if she is not given the AZT as required every six hours, she runs the risk of her HIV status becoming more serious. In light of the uncontroverted evidence in the record, we reject E.P.'s claim that DYFS did not prove that Z.P. suffers from a life-threatening medical condition.

We likewise reject E.P.'s claim that the proofs presented by DYFS failed to establish a significant risk that E.P. would not reliably administer the AZT medication to Z.P. E.P. admitted to a ten-year addiction to cocaine, and further admitted that she had relapsed as recently as June 2010. The uncontroverted evidence in the record demonstrated that E.P.'s recovery from her cocaine addiction was, at best, fragile, and at worst, unsuccessful. Indeed, the June 2010 relapse was not an isolated incident, as the record demonstrated that E.P. also relapsed in November 2009.

In light of E.P.'s unresolved addiction to cocaine, and Z.P.'s fragile medical condition, we agree with the trial judge's conclusion that Z.P.'s medical condition was "in imminent danger of being impaired" as the result of E.P.'s failure to provide Z.P. "with proper supervision," within the meaning of N.J.S.A. 9:6-8.21(c)(4). We reject E.P.'s argument that DYFS failed to present sufficient proofs on this subject.


Next, E.P. argues that the record lacks sufficient credible evidence to support a finding that she did not have sufficient income necessary to provide Z.P. with a stable environment. We recognize that a parent's lack of income is not sufficient, standing alone, to justify a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). Here, the judge did not confine her findings to E.P.'s lack of income, but instead concluded that E.P.'s lack of income caused her to be without housing. E.P.'s lack of housing was attributable, according to Marroquin, to E.P.'s failure to attempt to recertify her eligibility for benefits, and E.P. being rejected from Project Home because she tested positive for cocaine immediately after the intake interview. The judge's findings reflect the required nexus between lack of income and an adverse impact on the child. We reject E.P.'s claim that the evidence was insufficient to demonstrate that E.P. lacked income.


Next, E.P. asserts that DYFS presented insufficient evidence to demonstrate that she lacked adequate shelter. E.P. argues that she intended to live with her grandmother, and that the only reason that plan failed was because DYFS, without justification, insisted on homemakers being present in her grandmother's apartment, to which her grandmother objected. E.P. also maintains that she could have lived with her twin sister in Georgia. We reject E.P.'s assertion that the Division's insistence on homemakers being present in her grandmother's apartment was an unreasonable condition. Z.P.'s fragile medical condition, combined with the uncertainty of E.P.'s recovery from cocaine, certainly warranted such intervention.

As for E.P.'s plan to live with her sister in Georgia, although E.P. testified that such was her plan before the baby was born, she never presented to the judge a clear statement that she intended to move to Georgia. In fact, her testimony was to the contrary, when she stated that she intended to live with her grandmother, where she had been residing for several years.

After E.P.'s grandmother refused to permit the homemakers into her apartment and E.P. became homeless, the Division referred E.P. to a local welfare agency, which was willing to provide E.P. with transitional housing for one year at Project Home. It was only because E.P. tested positive for cocaine on the day of the interview with Project Home that she was rejected for its housing services. As a result, E.P. had nowhere to live with Z.P. Her homelessness was a significant factor in the judge's finding of abuse and neglect, a finding that was well-supported by the evidence in the record. We reject E.P.'s claims to the contrary.

In sum, having carefully reviewed E.P.'s claims on appeal in light of the evidentiary record, we are satisfied, as was the trial judge, that DYFS proved its abuse and neglect case by a preponderance of the evidence.


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