NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. B.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.M.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF K.M.,

A Minor.

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Submitted June 18, 2013 Decided

Before Judges Fisher and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-380-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Thomas Ercolano, III, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, Law Guardian, on the brief).

PER CURIAM

The child in question, K.M., was born on January 4, 2012. At birth, both child and mother defendant B.M. tested positive for cocaine. The Division of Youth and Family Services (Division)1 initiated an emergency removal and placed the child in foster care. Based on defendant's agreement that she needed services, as well as the acknowledged fact that both mother and child tested positive for cocaine at the time of the child's birth, the judge entered an order to show cause on January 12, 2012, that authorized the Division's continued care and custody of the child. On the return date the following month, the judge set a date for a fact-finding hearing.

At the fact-finding hearing on May 18, 2012, defendant stipulated that she and the child tested positive for cocaine at the time of the child's birth; defendant also acknowledged that she had used cocaine for approximately eighteen months leading up to K.M.'s birth, and that she had last used cocaine three or four days prior to the child's birth. The Division also provided evidence that defendant's two other children were in

the custody of their grandmother and aunt. Relying on these facts, the judge rendered an oral decision. He found that defendant's ingestion of drugs prior to the child's birth, and the child's testing positive for cocaine at the time of birth, were factors that required a finding of abuse or neglect. The judge also entered an order permitting defendant to return home from her substance abuse program with the child, but he also required defendant to continue with an intensive outpatient program and other Division services.

Following the action's dismissal, defendant appealed, arguing:

I. K.M.'s REMOVAL FROM B.M.'S CUSTODY VIOLATED THE RELEVANT STATUTORY PROVISIONS FOR REMOVAL WITHOUT A COURT ORDER AND THE LITIGATION COMMENCED TO VALIDATE THAT REMOVAL LACKED THE REQUISITE DUE PROCESS TO WHICH B.M. WAS ENTITLED AND, THERE WAS INSUFFICIENT EVIDENCE OR FINDINGS BY THE TRIAL JUDGE TO SUPPORT REMOVAL OR CONTINUED PLACEMENT IN FOSTER CARE (Not Raised Below).

II. AT THE RETURN ON THE ORDER TO SHOW CAUSE THE TRIAL COURT MISTAKENLY BELIEVED A FACT-FINDING HEARING WAS REQUIRED UNDER N.J.S.A. 9:6-8.44 AND INSTEAD SHOULD HAVE PROCEEDED TO A HEARING ON THE PROPER DISPOSITION OF THE CASE AND TO DISMISSAL ONCE B.M. AND K.M. ENTERED THE RESIDENTIAL TREATMENT PROGRAM IN WHICH THE DIVISION WANTED THEM (Not Raised Below).

III. BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF ABUSE OF K.M. BY B.M. UNDER THE APPLICABLE STATUTES, THE FINDING MUST BE REVERSED, B.M.'S NAME

REMOVED FROM THE CENTRAL REGISTSRY AND ANY DYFS RECORDS REFERRING TO SUCH A FINDING MAY BE EXPUNGED.

The month after defendant filed her brief on the merits in this court, our Supreme Court decided N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013), holding that a mother's drug abuse at or prior to the time of birth may not alone support a claim of abuse or neglect. The judge's decision here, although referencing other circumstances, chiefly relied upon the drug use of defendant while pregnant. In light of the Court's watershed decision in A.L., we vacate the order that memorialized the judge's finding of abuse or neglect, and remand for further consideration in light of A.L. For that reason, we need not now consider the other issues raised by defendant.

The May 18, 2012 order is vacated, and the matter remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

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