On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FN-12-0173-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodriguez and Reisner.
Defendant S.S. appeals from a Family Part order dated July 13, 2011, finding that she abused or neglected her month-old baby, A.L., "by occupying a home that contained drugs, [and] drug paraphernalia [and] that was ultimately raided by police." We reverse.
I The record can be summarized as follows. At the time she gave birth to A.L., S.S. was nineteen years old. She had been involved in a relationship with the child's father, D.L., since she was fourteen. At the time the child was born, S.S was living with D.L. While her mother disapproved of their relationship, she also expected S.S. to live with D.L. and make a home with him, because S.S. was pregnant with his child and the mother thought the two of them should live independently as "a family." There was evidence, however, that D.L. was abusive to S.S. and she was afraid that "he would get enraged and throw her through a window" if she tried to leave him.
When the child was born, the Division of Youth and Family Services (DYFS or Division) was called to the hospital because of the couple's reported history of domestic violence, including an incident in which a social worker at the prenatal clinic reported seeing D.L. hitting S.S. in the head during a prenatal visit. During a home assessment, on November 10, 2010, the assigned DYFS caseworker observed that the couple's apartment was clean and neat, and the baby was healthy, well-cared for, and appeared "to be bonded" with S.S. On that date, S.S. privately told the worker that she was planning to leave D.L. and move in with a relative but was afraid to tell him her plans. The worker recommended that the agency close its case because there were "no current events of domestic violence" and the child was healthy.
However, on the evening of November 18, 2010, the local police raided the parents' apartment due to reports that D.L. was "a known drug dealer." He and A.G., another individual who was staying at the apartment, were arrested after the police thoroughly searched the premises and found drugs. During the arrest, A.G. told the police that the drugs were his, although he apparently changed his story later on. The police did not arrest S.S., because she was not a target of their investigation and there was no evidence that she was involved in drug dealing.
At the fact finding hearing, Detective Jaremczak testified that when the police entered the apartment by breaking down the door, S.S. walked out of a bedroom holding the unharmed baby in her arms. While there was a smell of burnt marijuana in the living room, Det. Jaremczak testified that there was no smell of marijuana in the bedroom from which S.S. had emerged. The police told S.S. to stay in the living room with the baby while they searched the apartment.
The record supports the conclusion that during the search, the police essentially tore the place apart. They found drugs in various locations, including on top of a dresser in the bedroom. In a closet they also found an Airsoft pistol, which the police report referred to as a "fake gun."*fn1
After the police called DYFS to report the raid, the DYFS worker who arrived on the scene found the baby's crib overturned and the rest of the apartment in a chaotic state. Although the baby was in good health, S.S. was barely able to find formula for him in the wrecked apartment. S.S. did not appear to be under the influence of any drugs. However, the DYFS worker testified that when she entered the apartment there was a strong smell of marijuana, and she believed the smell extended to the bedroom. The apartment appeared to be in such disarray that she did not believe it was safe to leave S.S. and the baby there. She also did not know precisely what S.S.'s involvement might have been in the drug activity. Although the baby was physically unharmed and appeared bonded with S.S., the worker decided to remove the baby on an emergent basis, reasoning that S.S. "placed [the] child at enormous risk" because the child was "exposed to drugs and marijuana smell." The child was placed in a foster home.
At a hearing on December 7, 2010, the DYFS attorney reported to the court that on November 23, 2010, S.S. had undergone a drug test, which was negative. The child had been placed with a paternal aunt. S.S. was "doing everything that she need[ed] to do" and was about to begin unsupervised visitation with the baby. By the next hearing, on February 23, 2011, S.S. was living with her mother and stepfather. She was compliant with all of the services DYFS had provided, including individual counseling. DYFS had "no concerns" about the baby living with S.S. in her mother's home, and recommended "that the child be reunified with" S.S. The Law Guardian agreed, reporting to the judge that both parents were "visiting [the baby] three or four times per week, plus weekends, really caring for the child."
Accordingly, the judge ordered that "legal and physical custody" of the child be returned to S.S. "today." However, the case was to be kept "open for services." When the judge inquired whether the case could be dismissed "at the next court date," the DYFS attorney responded that a fact finding hearing was still required, after ...