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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 ...

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