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New Jersey Division of Youth and Family Services v. C.H. and M.B

August 23, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-179-09.

The opinion of the court was delivered by: Axelrad, P.J.A.D.




Argued: March 14, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

The opinion of the court was delivered by AXELRAD, P.J.A.D.

In this appeal, we address the trial court's sua sponte dismissal of an abuse or neglect complaint filed by the Division of Youth and Family Services (the Division)*fn1 in the interim between the close of its presentation of evidence and the scheduled return date for defense witness testimony, without notice to the parties or an opportunity to be heard. The case arose out of the ingestion of about thirty prescription pills by J.B., a toddler, while he was solely supervised by his mother C.H., resulting in a severe medication overdose, hospitalization, and, fortunately, full recovery.

The Division argues that the sua sponte dismissal deprived it of its due process rights, was based on an improper legal analysis, and was erroneous, as it had established a prima facie case. The Law Guardian supports the position taken by the Division regarding the violation of due process, and the Division's establishing a prima facie case of abuse or neglect.

Both the Division and the Law Guardian seek reinstatement of the complaint and remand to the trial court.*fn2 We agree the court erred procedurally and substantively with respect to C.H., and reverse and remand for continuation of the fact-finding hearing. We affirm the court's dismissal of the complaint against the father M.B., as it was entered following an oral motion and argument by counsel.


J.B. was born on October 26, 2007 to C.H. and M.B. (collectively defendants), who are married. On October 1, 2008, the Division filed a verified complaint alleging defendants abused or neglected J.B., based on an incident a week prior when then-eleven-month-old J.B. ingested C.H.'s prescription medication while in her care and was hospitalized in critical condition.*fn3 The complaint sought care, custody and supervision of the child, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12.

A hearing on the order to show cause was conducted that day and continued telephonically on October 2, 2008. At the conclusion, the court entered an order, directing that J.B. be placed in the physical custody of his paternal grandmother B.G. in defendants' home upon his release from the hospital, although he remained under the legal custody, care and supervision of the Division. Defendants were given permission to remain in the home, provided J.B.'s grandmother and his nanny, Ms. C., moved in and supervised all contact with his parents.

A fact-finding hearing was held over three days -- April 3, 2009, September 21, 2009, and June 7, 2010. At the conclusion of the Division's presentation of evidence on June 7, the court granted M.B.'s oral motion and dismissed him from litigation, but gave him permission to be present in the courtroom for the remainder of the proceedings.

The next scheduled hearing was set for July 26, 2010, for defendants to produce expert testimony and, if desired, the testimony of M.B. However, on June 17, 2010, the trial judge sua sponte by letter opinion dismissed the case against defendants, and an order terminating the litigation was entered on June 18, 2010. On July 19, 2010, the court entered an order directing the Division to remove C.H.'s name from its Central Registry, and expunge all agency records related to C.H., M.B., or J.B., within three years of the order. The Division appealed.

On appeal, the Division argues:



A. [The trial judge's] sua sponte decision to dismiss this case should not be upheld because it denied the Division [its] due process rights of notice and opportunity to be heard.

B. [The trial judge's] sua sponte decision to dismiss should not be upheld because he misapplied the law.

1. Sua sponte decisions are reviewed de novo when a judge misapplies the law.

C. Sua sponte dismissal of the Division's complaint was erroneous since the evidence presented by the Division constituted a prima facie case.

The Law Guardian similarly challenges the trial court's sua sponte dismissal as violative of due process and the court's ruling of the Division's failure to establish a prima facie case as substantive error. The Division and the Law Guardian seek reinstatement of the complaint and remand to the trial court for completion of trial. We are convinced by these arguments and reverse and remand as to C.H.



J.B. and his family became known to the Division on September 20, 2008, when the agency received a referral from Shira Gertz, M.D., of Newark Beth Israel Hospital, who reported that eleven-month-old J.B. had come into the pediatric intensive care unit "critically ill" after ingesting twenty-one Wellbutrin pills, an antidepressant medication. The referral response report prepared by the Division caseworker Trent Collier details the incident that resulted in this referral, as reported to him by C.H. and M.B. in separate interviews.

C.H. reported that on September 19, 2008, at some time between 7:30 p.m. and 8:00 p.m., she and J.B. were in her bedroom. C.H. was the only person watching J.B. as the nanny had left at approximately 4:00 p.m. She further reported that she placed J.B. in his play yard, a light-weight, fence-like device with no bottom, which he could move when he pushed it forcefully. The play yard was located one to two feet away from C.H.'s night stand, where she kept her prescription Wellbutrin pill bottle. C.H. told Collier that she did not see a need to keep her medication in a locked box.

C.H. reported that J.B. was playing with his toys in the play yard while she was "fiddling with her new cellular phone." She heard a humming sound coming from J.B., and when she looked in his direction she observed he had her pill bottle in his mouth. According to C.H., she was concentrating on her phone, and not J.B., for "two to three minutes." She immediately took the bottle from J.B., swept his mouth with her finger to feel for pills, and picked up a total of forty-four pills that she found on the floor.

C.H. counted the pills, and determined she was missing approximately thirty pills after taking into account the pills remaining and the pills she had taken in the two weeks since starting the bottle. She did not think J.B. could have swallowed the pills; rather, she thought she had been shorted one month's supply of her medication.

M.B. reported that when he returned home from work at approximately 8:00 p.m., C.H. told him what happened. When he entered the bedroom, he noticed the play yard was moved closer to the night stand than usual. He reported that the play yard and the night stand are of the same height. They contacted J.B.'s pediatrician and poison control, and were instructed to take J.B. to the emergency room.

Upon arriving at Mountainside Hospital, J.B. began having a seizure. J.B. was transferred to St. Barnabas, and eventually transferred to Beth Israel, where he was treated by Dr. Gertz, who contacted the Division.

Collier further reported that, when questioned, C.H. denied giving J.B. the pills. However, she did admit being overwhelmed with having a new home, change of environment, new responsibilities and a new identity as a mother. While discussing her mental health, C.H. reported that she was diagnosed with postpartum depression in April of that year, and her treating physician was Dr. Allison Weiner.

On September 21, 2008, due to the suspicious circumstances surrounding J.B.'s condition, Collier reported the incident to the Montclair Police Department and the Essex County Prosecutor's Office. The Prosecutor's Office obtained a search warrant for defendants' residence and observed numerous prescription vials in the master bedroom, including narcotic pain medications.

At the show cause hearing on October 1, 2008, the following people testified: Martha Camille, an investigative case manager for the Division in the Child Advocacy Center, Ms. C., and M.B. Camille described the facts surrounding the incident on September 19, and how the agency came to ...

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