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New Jersey Division of Youth and Family Services v. S.B.

Superior Court of New Jersey, Appellate Division

May 21, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, [1] Plaintiff-Respondent,
v.
S.B., Defendant-Appellant. IN THE MATTER OF J.M., a minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2013.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-465-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Designated Counsel, on the brief).

Before Judges Hayden and Hoffman.

PER CURIAM

This is an appeal of a Title Nine[2] protective services proceeding. Defendant, S.B. (Selma), [3] appeals from the trial judge's determination that she abused and neglected her six-year-old son, J.M. (Jake), by using PCP.[4] She argues that the Division of Youth and Family Services (the Division) failed to prove that her admitted use of the drug PCP while being Jake's primary caretaker harmed or created a substantial risk of harm to her child. We disagree and affirm.

The record reveals the following facts. The Division most recently became involved with defendant on April 11, 2011, when Jake's school reported that he had brought a small clear vial of white powder into his classroom. When questioned, Jake gave inconsistent versions of where he found the vial. That day, two Division caseworkers went to Jake's home and spoke to Selma. The workers observed that Selma's speech was slow and slurred. Selma explained that she was taking a muscle relaxer four times a day but denied any illegal drug use. Selma reported that only she and Jake lived in her home and that Jake's godmother, a neighbor, picked Jake up from his school most afternoons when Selma attended business school. Due to the drug-related nature of the referral, the caseworker asked Selma if she was willing to have a substance abuse evaluation and screening, and she agreed.

After Selma missed the first two scheduled substance abuse evaluations, on May 24, 2011, the caseworker contacted her by telephone. During the conversation, Selma was incoherent, insisting that the Division send a taxi or a limo. Two caseworkers proceeded directly to the home but they were unable to locate Selma. The next day they persuaded defendant to come to the local Division office and take part in a drug screening. The result of the drug screen was "abnormal, " which suggested that the testing procedure had been compromised.

On June 15, 2011, the Division received a referral from the Substance Abuse Initiative (SAI), where defendant had been sent by the Temporary Assistance to Needy Families program, that Selma had recently tested positive for PCP. That day, the Division caseworker spoke to Selma, who admitted that she had "flushed out" her system before the May 25, 2011 drug screening to avoid detection of her drug use. She also acknowledged she had tested positive in the recent SAI screening and that she smoked PCP twice a week. The Division immediately removed Jake from his mother's custody.

At the June 17, 2011 order to show cause on the removal, the judge entered an order continuing Jake in the Division's custody. After the removal, defendant started to attend an outpatient drug treatment program. After some time, she entered an inpatient treatment center.

At the fact-finding hearing on October 27, 2011, defendant appeared by phone from her treatment center. The Division presented testimony of the caseworker and several exhibits concerning the Division's investigation were also admitted into evidence. The trial judge found the caseworker's testimony credible and also noted that her testimony concerning defendant's admissions of drug use was uncontradicted. The judge found that the Division had met its burden of proof that defendant's admitted bi-weekly drug use, while having sole custody of a six-year-old child, ...


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