On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-247-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 27, 2012
Before Judges Axelrad and Sapp-Peterson.
C.P. (Shirley), a Pennsylvania resident, appeals from a June 8, 20ll order of the Family Part, entered after a fact-finding hearing, of abuse and neglect. Specifically, the court found Shirley improperly abandoned her great niece A.M. (Annie), then nine years old, to the child's mother J.M. (Jane) without the Division's approval. At trial, the Law Guardian opposed the finding of abuse or neglect against Shirley and joins in the appeal. As we are not convinced the order is supported by substantial, credible evidence in the record, we reverse.
The record reflected that Shirley is Annie's legal guardian. She took custody of the child immediately after her birth on June 17, 2001, pursuant to a private agreement with Jane, codified in an order of September 18, 2001 (FD-07-2152-02-V). At the time of the child's birth, Jane tested positive for marijuana. Jane resides in Newark and is the mother of three other children, none of whom are in her care. Shirley moved with Annie from New Jersey in May 2008, and cared for her at her home in Easton, Pennsylvania, where her boyfriend, daughter, and two grandchildren also resided. Shirley works the night shift at Newark Beth Israel Medical Center.
On February l6, 2011, the Division of Child Protection and Permanency, formerly known as the Division of Youth and Family Services (the Division) received a referral from the Pennsylvania Child Protective Services (CPS), advising that Shirley had brought Annie to New Jersey and left her with Jane the previous night. The Division proceeded with an emergency removal of Annie, and on February 22, 2011, filed a verified complaint against Jane and Shirley pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, alleging abuse or neglect, and seeking custody, care or supervision of Annie. Following testimony by the Division investigator, the court ordered the matter to proceed as a Title 9 abuse and neglect action as to Shirley for abandoning Annie to the care of Jane, and ordered continued custody of the child with the Division.
At a review hearing on March 15, 2011, Shirley and the investigator testified. At the factfinding hearing on June 7, 2011, the Division presented the testimony of the investigator and intake caseworker. Shirley was present with counsel and was sworn in, but she did not testify. On June 8, 2011, the court articulated the following oral findings and conclusions regarding Shirley:
The Court . . . will substantiate as to [Shirley], and will not substantiate as to [Jane].
The basis for the substantiation as to [Shirley] . . . the Court finds, by a preponderance of the evidence, that she did abandon the minor, that other options available to her included her appearing before a court of competent jurisdiction in order to have the custody order vacated.
The memorializing order stated:
[T]he court hereby determines by a preponderance of the evidence that the defendant [Shirley] abused or neglected the child(ren) [Annie] in that [Shirley] who was the legal custodian of [Annie] for the past nine years, abandoned the child by bringing her to New Jersey and leaving her in the care of her mother without sufficient provisions. [Shirley] had ...