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New Jersey Division of Youth & Family Services v. S.R.

Superior Court of New Jersey, Appellate Division

November 21, 2013

S.R., Defendant-Appellant, and R.S., IN THE MATTER OF R.S. and K.M., Minors.


Submitted October 29, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-78-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Jill Alintoff, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors R.S. and K.M. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

Before Judges Espinosa, Koblitz and O'Connor.


S.R. (fictitiously Serena) appeals from a May 8, 2012 finding that she abused or neglected two of her three daughters: R.S. (fictitiously Rhonda), born in 2008, and K.M. (fictitiously Kim), born in 2011. Her oldest daughter was in the custody of a relative during this litigation and therefore not included in the fact-finding. Serena also appeals from the trial judge's decision to allow the Division to file for guardianship pursuant to Title 30, N.J.S.A. 30:4C-15, before the fact-finding was finalized. We reverse the abuse or neglect finding only.

The Division became involved with Serena in 2008 when St. Joseph's Hospital reported that she was abusing drugs while pregnant with Rhonda. She admitted to using marijuana and Phencyclidine (PCP). Serena was also homeless. Serena tested positive for PCP when Rhonda was born. The Division provided baby essentials for Rhonda, a home health aide and a referral for a substance abuse evaluation. Serena was living with her stepmother, who reported that Serena left the baby overnight. Serena admitted to this behavior and the home health aide also reported that Serena did not cooperate. She tested positive for marijuana and PCP on numerous occasions in 2009. Serena failed to enroll in a substance abuse program recommended by the Division. The Division filed a complaint alleging abuse or neglect and Serena stipulated that she placed her child at harm by using PCP. Although Rhonda had been removed, she was returned to Serena after three months while she was attending an outpatient rehabilitation program in Paterson.

Rhonda was removed again in June 2010 when Rhonda's father found Serena high on PCP and engaging in reckless behavior with Rhonda. Although pregnant again, Serena continued to test positive for PCP in September and October 2010. At a second fact-finding in October 2010, Serena again stipulated to putting Rhonda at risk by using PCP.

Serena complied with substance-abuse treatment and Rhonda was again returned to her. When her third daughter, Kim, was born, Serena was ordered to continue to comply with drug testing and out-patient treatment. The Division did not remove the new child, Kim, because Serena began testing negative for substances.

Serena said she was displaced by the August 2011 flooding in Paterson. She did not submit to the required drug testing and the Division could not locate her for more than a month. She dropped out of her GED course and failed to take Rhonda for required early intervention appointments. On October 5, Serena went to the Division offices where she tested negative for PCP as reflected in a laboratory report.

On October 25, 2011, during a compliance review hearing, Serena tested positive for PCP in an in-court urine test ("insta test") administered by court personnel. After drinking water without supervision, she was allowed to take a second "insta test, " which produced a negative result. The two girls were removed by the Division on an emergent basis two days later. On October 28, the Division filed an amended complaint adding Kim to the abuse or neglect litigation. This amended complaint was changed by court staff to reflect a new complaint with a new 2012 abuse or neglect docket number replacing the 2009 docket number. Also on this date, the court approved the emergency removal of the two children, who were then placed in the custody of the Division. After several adjournments occasioned in part by the defense, the fact-finding hearing originally scheduled for February 14, 2012 was held on April 13, 2012. At the hearing, Division caseworker Tobiann Wilson outlined Serena's nearly four-year history with the Division. Wilson noted that Serena had been displaced by the flood in August 2011 and submitted a negative ...

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