On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-261-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2012
Before Judges Nugent and Haas.
Defendant H.W. appeals from the Family Part's May 3, 2010 order, following a fact-finding hearing, determining she abused and neglected her four-year old child because defendant and the child were found by police in a stolen car that was parked on a city street. She challenges the trial court's finding that this conduct constituted abuse and neglect under Title Nine. She also challenges the court's September 22, 2011 order terminating the Title 9 litigation. We reverse.
One child born to defendant, a girl A.W. (fictitiously Alice), on November 22, 2005, is involved in this appeal.*fn1 The Division of Youth and Family Services*fn2 (the Division) removed Alice from defendant's care on February 18, 2010, after defendant was arrested because she had been found in a car that had been reported stolen. On February 22, 2010, the Division filed a verified complaint and order to show cause against defendant for abuse and neglect of Alice under Docket No. FN-07-261-10, which is the subject matter of this appeal. The only allegations raised against defendant in the complaint concerned the fact that Alice had been with her at the time she was arrested.
Defendant was released from jail prior to the March 17, 2010 return date of the order to show cause. On that date, she appeared with counsel and asked that Alice be returned to her care. Defendant testified that she had moved from New Jersey to Florida in May 2009. She had a Florida driver's license. She testified that she had returned to New Jersey on February 18, 2010, the date she was arrested. A Division representative testified defendant had had one prior arrest for trespassing and she had previously been treated for depression. The trial judge ordered that Alice remain in the Division's care and custody and that the child continue to reside with defendant's sister, with whom she had been living since the date of defendant's arrest. Defendant was permitted to have supervised parenting time with Alice and, following an April 16, 2010 compliance hearing, services began to be arranged for the family.
On May 3, 2010, a fact-finding hearing was held concerning the Division's allegation that defendant had abused and neglected Alice. The Division developed the following proofs at the hearing.
Detective John Bocchino of the East Orange Police Department testified he was on patrol on the evening of February 18, 2010. At approximately 7:30 p.m. he performed a random plate check on a car that was parked in front of a furniture store. Bocchino testified the car was not "illegally parked" at that time, because defendant "was still in it." However, he checked the plate "because no cars are supposed to be there." The check revealed that the car was a rental vehicle and that the rental agency had reported it stolen in July 2009. As Bocchino was checking the plate, the driver of the car, later identified as defendant, moved it into a rear parking lot.
Bocchino approached the car and found defendant and Alice together in the front seat. He testified Alice was not in a safety seat. Bocchino said "[t]here was too many clothes and stuff in the back seat" to see if there was a child seat in that area of the car.
Defendant told Bocchino that she lived in Florida, and she eventually produced a driver's license from that state. Defendant acknowledged she did not own the car and that she had rented it. She told Bocchino she had been trying to find the rental agency so she could return it. Bocchino testified "the car was filled with clothes, a bunch of - - the whole backseat was filled." Bocchino testified defendant "seemed kind of out of it." He did a background check for warrants and found she had another pending charge out of East Orange.*fn3 After Alice left with another officer, Bocchino arrested defendant for receiving stolen property and took her to the police station. Defendant provided him with her sister's contact information so that the sister could come to the station to care for Alice. Bocchino then reported the matter to the Division.
Monique Williams, a Division investigator, also testified at the May 3, 2010 hearing. She testified from a report that had been primarily prepared by another investigator from the Division's Special Response Unit (SPRU), who had gone to the police station to speak to defendant on February 18, 2010. Thus, Williams' testimony was largely hearsay.
The investigator reported that defendant was not cooperative following her arrest. She told the investigator she did not have a place to stay in New Jersey. Defendant stated she had been living in Florida and had returned to New Jersey that day. She asserted she had rented the car for a friend, but the friend had brought it to her in Florida rather than returning it. Defendant had come to New Jersey to return it.
The investigator reported that defendant did not seem to appreciate what was happening and she could not understand why the Division was involved in the situation. A medical examination of Alice revealed that she was in good health, with no medical concerns noted at that time.
The investigator also spoke to defendant's sister, who had already arrived at the station to take custody of Alice. The sister told the investigator that defendant had given up her apartment in New Jersey to move to Florida to take care of their mother, who was ill. Defendant's sister also reported that defendant had previously been treated for mental illness in California. Defendant told the investigator she had been prescribed medications in the past, but she was not currently taking any. Williams confirmed at the fact-finding hearing, however, that the Division had not substantiated neglect based upon defendant's mental health issues at that time. Rather, according to Williams, the Division was asserting that defendant had neglected Alice "[d]ue to [defendant] driving a stolen Enterprise Rent-A-Car with her child in the car, and being that she was arrested at that time - - the [D]ivision was notified by the East Orange Police Department - - and that was neglectful."
After defendant was released from jail, all charges against her were dismissed. When she left jail, she moved into a shelter. She continued to contact the Division seeking the return of her child. By the time of the fact-finding hearing, defendant's sister had returned the child to the Division, which had placed her with a foster family.
On the basis of this record, the trial judge found the Division had demonstrated that defendant abused and ...