On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-303-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Kennedy.
J.B. and N.D. appeal from an order entered by the trial court on July 13, 2010, finding that they abused or neglected four minor children. We reverse.
J.B. is the biological mother of J.H., J.F. Ja.F., and N.D., Jr. N.D. is the biological father of N.D., Jr. J.B. and N.D. are not married but were engaged in a relationship for several years. N.D. provided the family with financial and emotional support although he maintained a separate residence.
On March 26, 2010, the Division of Youth and Family Services (Division) filed a complaint in the Family Part for care and supervision of the four children. Among other things, the Division alleged it was informed that J.H. and J.F. were found in school with marijuana. In addition, the Division alleged it was informed that Ja.F. told her teacher that J.F. had been helping her mother's boyfriend bag marijuana.
The court conducted a preliminary hearing on April 29, 2010. Counsel for the Division told the court that it was not making any allegations of abuse or neglect against J.B. but named J.B. as a defendant to afford her the opportunity to participate in the lawsuit. The court permitted J.B. to continue with custody of the children, pending the outcome of the fact-finding hearing, provided she did not allow N.D. to have unsupervised visits with them.
The court conducted the fact-finding hearing on June 18 and July 12, 2010. At the outset of the hearing, counsel for the Division informed the court that its allegations were against N.D., not J.B. The Division then presented evidence which established that, because of her work schedule, J.B.'s mother had custody of the children and they reside near the Peshine Avenue School, which the three older children attend. The children stay with J.B.'s mother during the school week but spend weekends with J.B. at her residence.
On Sunday, March 14, 2010, the children were at J.B.'s residence in the morning. Later that day, they went to a party at a cousin's house. Thereafter, the children went to their grandmother's home, while J.B. returned home.
On Monday, March 15, 2010, Officer Harvey Phillips (Officer Phillips) of the Newark Police Department was called to the children's school by the vice-principal, who reported that J.H. and J.F. had been found with marijuana. Officer Phillips testified that he went into the school's guidance office and observed fifteen bags of suspected marijuana on the table, along with one partially-spent cigarette, forty dollars in cash and a black pouch.
J.F. told Officer Phillips that he and J.H. found the drugs on the way to school. The officer inventoried the suspected marijuana, contacted the boys' parents, and transported the boys to the Youth Aid Bureau, where J.F. was arrested for possession of a controlled dangerous substance (CDS). The substance was not tested but Officer Phillips testified that, based on its appearance and the packaging, he believed the substance could be marijuana.
Geraldine Code (Code), Ja.F.'s second-grade teacher, testified that, on March 16, 2010, Ja.F. said her brothers had helped N.D. bag marijuana while they were staying with their mother over the previous weekend. Code told Ja.F. not to mention this to any of the other students. A school administrator directed Code to make a record of this conversation, and Code prepared and signed a report concerning the matter the same day.
Latoya Peoples (Peoples), one of the Division's investigators, interviewed Ja.F. later that day in the living room of her grandmother's house. The grandmother sat in on the interview. Peoples thought that Ja.F. appeared nervous in her grandmother's presence, and she answered all questions about her brothers' possession of marijuana in the negative.
Peoples interviewed Ja.F. at school the following day. She asked Ja.F. whether her brothers "had weed on them." Ja.F. replied that J.H. and J.F. were in their rooms bagging marijuana the previous Sunday, and J.H. hid the marijuana in his pillow case when he was done.
Ja.F. stated that, at one point, N.D. had gone into J.F.'s room, grabbed something she could not identify, and took it with him back to a bedroom. Ja.F. explained that J.B. and N.D. left that room a few minutes later and walked back and forth through the house. Ja.F. did not, however, state that J.B. or N.D. knew what her brothers had been doing.
Peoples asked Ja.F. if she knew what "weed" was and she replied that "it was green and it had little sticks in it." Ja.F. reported that she walked to school with her brothers that Monday, but they told her to walk on ahead. Peoples conceded that the fact the boys shared a bedroom in J.B.'s residence contradicted Ja.F.'s statement that the boys had been bagging marijuana in separate bedrooms.
Peoples also interviewed J.B. and told J.B. what Ja.F. said. J.B. stated she did not know why Ja.F. would say such things but said that Ja.F. had an active imagination. John Green (Green), another one of the Division's ...