An Essex County mother cannot be considered abusive or neglectful just because she and her four children were kicked out of their apartment, a state court ruled.

A Family Court judge had ruled that the single-mother, identified in court records only as “B.S." neglected her children because she was evicted in 2012 and was only able to make arrangements to shelter two of her young children.

But an appellate panel of two judges on Thursday overturned that decision because the court had not determined whether the mother could afford to find shelter.

The mother was evicted after the building’s management claimed she waited several hours one day before calling maintenance about her running toilet, which her children had clogged with toys.

Management said they found “feces through the house from the toilet” and “all over the floor. Management said they also found “fresh feces in the closet,” which the mother allegedly had let her children use as a toilet.

Although she was four months behind on rent, management claimed that that was not the reason they wanted her out. A case worker for the state Division of Child Protection and Permanency was unable to convince management to reconsider, even if the agency paid her rent.

The Family Court judge noted that when the case worker went to the apartment, the children "were properly clothed, they appeared to be well fed, and there weren't really any real issues . . . she didn't see any problems in [B.S.’s] apartment."

Nevertheless, the judge said the reason for her eviction was irrelevant and that the division “had proven by a preponderance of the evidence that "there was a significant issue with the shelter."

The appellate panel, however, said the children had not suffered any harm and that there was no threat of harm, which are the conditions for classifying a child as abused or neglected.

“We must consider a parent's financial circumstances in determining whether the failure to provide shelter amounts to abuse and neglect,” the panel said in a decision issued Thursday, adding that the division did not present evidence that the mother was financially able to provide suitable shelter.

The panel said that the mother was able to find shelter for two of her children and the division had been able to provide shelter for the other two.

Moreover, “the children were well-fed and properly clothed.”

The mother was represented in the appeal by Beatrix W. Shear and the state Public Defender’s Office.

Sergio Bichao is deputy digital editor at New Jersey 101.5. Send him news tips: Call 609-438-1015 or email

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