NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.E.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3871-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

A.E.,

Defendant-Appellant.

______________________________

IN THE MATTER OF Ne.R., C.S.,

K.B., AND Na.R.,

Minors.

______________________________

October 21, 2013

Submitted October 1, 2013 Decided

Before Judges Fisher, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-256-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, on the briefs).

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; Sara M. Gregory, Deputy Attorney General, on the brief).

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

PER CURIAM

A.E. appeals from a July 11, 2011 order finding that she committed an act of abuse or neglect by consuming illegal drugs prior to the birth of her youngest child, C.S. Based on the recent Supreme Court case of New Jersey Div. of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013), we reverse.

When A.E. gave birth to C.S. in December 2010, both mother and daughter tested positive for Phencyclidine (PCP). C.S. did not suffer any noticeable ill effects from having PCP in her system. Hospital records indicated that A.E. used PCP at least twice during her pregnancy. In response to these findings, the Division conducted an emergency Dodd2 removal of C.S. A.E.'s three older children had been living with their maternal grandmother while A.E. was in the hospital. The Division placed C.S. with her siblings in the temporary custody of her maternal grandmother.3

Based primarily on C.S. and A.E.'s positive PCP tests, the Division filed a Title 9 abuse and neglect complaint. N.J.S.A. 9:6-8.31-4 and -5. A.E. indicated through counsel that she would voluntarily submit to services, while denying she had committed an act of abuse or neglect. During the seven month period from the initial order to show cause in December 2010 to the Title 9 fact-finding hearing in July 2011, A.E. failed to submit to the Division's substance abuse referrals or psychological counseling. At the July fact-finding, the Family judge determined that A.E.'s PCP use constituted a substantial risk of harm to her child. The court based its ruling chiefly on A.E.'s prenatal PCP use, but noted that A.E. needed to address her "out of control" PCP addiction.

On appeal A.E. raises one issue:

POINT I: THERE IS NO EVIDENCE THAT THE DEFENDANT'S BABY OR ANY OF HER OTHER CHILDREN SUFFERED FROM ANY ABUSE OR NEGLECT.

Three months after defendant filed her brief on the merits in this court, our Supreme Court decided A.L., 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. A.E.'s counsel immediately brought the decision to our attention pursuant to Rule2:6-11(d). Neither the Division nor the Law Guardian responded to this letter as is permitted by the Rule. The judge's decision here, although referencing A.E.'s lack of compliance with drug treatment after the birth of C.S., chiefly relied upon the drug use of defendant while pregnant. In light of the Court's decision in A.L., we vacate the order that memorialized the judge's finding of abuse or neglect, and remand for further consideration.4

The July 11, 2011 order is vacated, and the matter remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).

3 A.E. subsequently consented to the grandmother obtaining Kinship Legal Guardianship of the children pursuant to N.J.S.A. 3B:12A-1 to -7.

4 We decline to take judicial notice of the article on the dangers of PCP attached to the Division's brief. A.L., supra, 213 N.J. at 29. First, the article is not a part of the record. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278 (2007); R. 2:5-4(a). Second, the opinions expressed in a medical journal article are not "certain and indisputable" facts that "everyone of average intelligence and knowledge of things can be presumed to know" subject to judicial notice pursuant to N.J.R.E. 201. State v. Flowers, 328 N.J. Super. 205, 214 (App. Div. 2000).