NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5012-05T45012-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.H.,

Defendant-Appellant,

IN THE MATTER OF D.B.,

A Minor-Respondent.

 

Submitted September 27, 2006 - Decided October 6, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FN-07-0433-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robyn A. Veasey, Assistant Deputy Public Defender, on the brief).

Stuart Rabner, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Lorena L. Perez, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent, D.B., a minor (Deborah S. Reed, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant D.H., the mother of D.B., appeals from an April 24, 2006 order of the Family Part determining that she abused and neglected D.B. The court entered another order on that date granting legal custody of the child to L.B., D.B.'s paternal great-aunt. We reverse the order of abuse and neglect. Because, however, at the fact-finding hearing all parties agreed to the transfer of legal custody to L.B., we affirm the April 24, 2006 custody order.

The material facts leading to the abuse and neglect order are not in dispute. D.H. is a diagnosed schizophrenic who was living in a shelter before giving birth to D.B. on January 31, 2006, at St. Mary's Hospital in Passaic, where she had been receiving prenatal care. Because of defendant's mental health disorder and living conditions, the Division of Youth and Family Services (the Division) had instructed the hospital to contact the agency upon D.B.'s birth, which it did. The day after the child was born, a Division caseworker interviewed D.H.; she told the caseworker that she had arranged for D.B. and herself to live with D.B.'s paternal great-aunt, L.B., and D.B.'s paternal great-grandmother, H.B. She also informed the caseworker that she was seeing a counselor and had been prescribed medication for her condition, but that she had not taken the medication for the previous month because of her pregnancy. When the caseworker visited the home of L.B. and H.B. to assess its suitability for the child, L.B. and H.B. told the caseworker they planned to assist with D.B.'s care.

On February 2, 2006, D.H. was released from the hospital. At the Division's request, D.B. remained in the hospital until the Division could complete its investigation.

The following day, the Division received a completed questionnaire that it had sent to Rose Maracho, the case manager and program director of the counseling program D.H. attended. Maracho indicated on the form that D.H. had a low tolerance for stress and was at that time without psychiatric medication. She did note that D.H. would "be OK" if she were with supportive family, but that without help or assistance she would be unable to tolerate stress. Maracho was also concerned about D.H.'s history of psychiatric illness and "past attempts of aggressive/assaultive behavior."

On February 7, 2006, after the Division filed a verified complaint seeking care and custody of the child, the court granted custody of D.B. to the Division. Two weeks later the court granted the Division permission to transfer physical custody of D.B. to L.B. and H.B. The Division retained legal custody.

At the fact-finding hearing on April 24, 2006, the only witness was Terry Whitfield, a supervisor with the Division. No expert testimony from a psychiatrist, psychologist or mental health professional was presented.

Whitfield testified about the form received from Maracho. The record is silent as to whether Maracho was a mental health professional. Whitfield said the form sent to Maracho was simply a request for "any information that [the Division] need[s] to be concerned about." The report did not contain any medical or scientific conclusions.

Whitfield testified that the child was not drug-exposed when he was born, nor did he suffer any complications during his birth. The Division became involved based on a referral from a hospital social worker, who indicated that the child's father died from a drug overdose in September 2005 and the mother was diagnosed with schizophrenia and prior to her hospitalization was living in a shelter. Whitfield testified that D.H. offered placement of the child with the child's great-aunt and great-grandmother.

The Division's concerns about the potential placement were that the great-aunt and great-grandmother "were older"; the Division proceeded with its investigation "to make sure that they were capable of caring for the baby." Both were subjected to psychological evaluations, the results of which raised no concerns about their caring for the child. Consequently, when the child was discharged from the hospital, he was placed with his great-aunt and great-grandmother. Whitfield acknowledged that the placement was consistent with defendant's plan for the child upon his release from the hospital.

At the conclusion of the hearing the court ruled that

there were sufficient facts at [the time the Division placed the child with his great-aunt and great-grandmother] barely for the Division to act as it did and for the Court to take jurisdiction. That's by a preponderance of the evidence, by the way.

. . . .

Now, the reasoning is that it's a very close case. I think there was some concern on the Division's part that [D.B.] might be unsafe with [D.H.] around.

The Division at that point did not have clear proof that [L.B.] will be taking care of the child safely. And I won't say in an excess of caution, which is a bad phrase. I'll say exercising caution I believe the Division acted properly and the Court had jurisdiction at that time.

After the court made its findings, the parties agreed to transfer legal custody of D.B. to his great-aunt.

The statute defines an abused or neglected child, in part, as follows:

[A] child less than 18 years of age . . . whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21(c)(4).]

A determination by the court of abuse or neglect must be based on a preponderance of competent, material and relevant evidence. N.J.S.A. 9:6-8.46b. Here, while we acknowledge that the Division and the trial judge initially acted in what they perceived to be the best interests of the child, our review of the record reveals insufficient facts to support the judge's finding of abuse or neglect.

While no dispute exists that D.H. suffered from schizophrenia, there is no evidence in the record that would tend to show that her schizophrenia would affect her ability to care for her child. Though a court need not wait to act until a child is actually harmed by parental inattention or neglect, In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999), the State still has the burden to prove, by competent, material, and relevant evidence, that a probability of present or future harm exists. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004). Here, the Division failed to show the probability of future harm to D.B. if he remained in his mother's care.

No medical testimony was before the court to show the extent of defendant's schizophrenia, or its effect on her ability to care for her child. The record is empty of any evidence of past actions by defendant from which an inference could be drawn that she would abuse or neglect D.B. in the future. That she has a mental illness and had lived in a shelter are not alone sufficient to establish a probability of future harm.

It is also significant that D.H.'s plan to care for the child was exactly what the Division ultimately agreed to and what the court ordered: that D.H. and D.B. would live with the child's great-aunt and great-grandmother. That D.H. had a viable plan to take care of D.B. at the time she was hospitalized shows that she was aware that her disorder could affect her ability to care for her son, and she formulated a plan for his care.

We are mindful that when a parent suffers from a mental illness there is the potential for psychological or other damage to a child. Nevertheless, the current record is devoid of any evidence to support such a conclusion here. The Division did not demonstrate a substantial risk of harm to D.B.; that D.H. would not take her medication; or that D.H. would place D.B. in an unstable living situation. Simply put, the Division did not meet its burden of proof.

We reverse the order of abuse and neglect. We remand for further proceedings consistent with this opinion.

 

(continued)

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8

A-5012-05T4

RECORD IMPOUNDED

October 6, 2006