A mother who lost custody of her children based on a finding of intoxication, when in fact she was only using prescription anti-anxiety medication, will get a second chance to prove she did not neglect or abuse them.

A state appeals court ruled on Tuesday in a published opinion that a family court judge erred in discarding evidence that may have been “fatal” to the state’s case.

“Because the trial judge’s decision … failed to include findings regarding defendant’s degree of culpability necessary to a determination that defendant failed to provide a minimum degree of care, we remand for further proceedings and findings,” the Appellate Division panel held in Division of Youth and Family Services v. S.N.W., A-0504-11.

Police responded to the home of the defendant, identified only as S.N.W., on Oct. 13, 2010, and found her engaged in a heated argument with her husband. Both appeared to be intoxicated. A DYFS caseworker arrived and placed her two children, ages 20 months and 5 months, in the care of the mother’s sister.

By all accounts, the children appeared to be in good health, clean and taken care of. The mother told the caseworker she had taken five .25 mg Xanax tablets.

Nevertheless, Cumberland County Superior Court Judge Gary Wodlinger, while conceding the matter was “as close as a case as you get,” found the mother was “toasted” and thus guilty of abuse and neglect.

The mother sought to supplement the record by including a doctor’s prescription, which authorized her to take .50 mg of Xanax three times a day, meaning that when she was with the caseworker S.N.W. had taken less than the amount approved by her doctor.

S.N.W. argued that she received ineffective assistance of counsel. Wodlinger apparently agreed with that argument. However, he said the additional evidence was irrelevant because, according to witnesses, S.N.W. was “visibly intoxicated” at the time and the prescription would have impact on his decision.

On appeal, Judge Clarkson Fisher Jr. said Wodlinger should have taken into consideration a line of cases offering guideline for finding abuse and neglect.

In G.S. v Department of Human Services, 157 N.J. 161 (1999), the Supreme Court said judges had to engage in a case-by-case analysis.

In DYFS v. T.B., 207 N.J. 294 (2011), the court found there was no abuse or neglect in a case in which a mother accidentally left her 4-year-old home alone for an extended period, believing that her mother was at home. “[E]very failure to perform a cautionary act is not abuse or neglect,” the court said.

And in DYFS v. J.L., 410 N.J. Super. 159 (App. Div. 2009), the Appellate Division found there was no abuse or neglect in the case of a mother who allowed her 3- and 5-year-old children to walk home alone from a playground.

Fisher, joined by Judges Alexander Waugh Jr. and Jerome St. John, said Wodlinger was supposed to have considered whether the failure of S.N.W.’s attorney to introduce evidence of the prescription was “fatal” to DYFS’ case.

“In response, the judge determined that the cause of defendant’s condition was irrelevant,” Fisher said. “As the authorities which we have outlined demonstrate, the judge’s conclusion in that regard was erroneous.

“…[W]e must conclude that the judge’s findings do not support the conclusion that the children were abused or neglected,” he said. “The judge made no finding as to defendant’s degree of culpability or, indeed, whether she was culpable at all.”

If it is determined that S.N.W. took the prescribed amount, and had not taken any other substances, that would preclude a finding of abuse and neglect, Fisher said.

S.N.W.’s designated counsel, Fair Lawn solo Michael Harwin, referred questions to the Office of the Public Defender, which declined comment on the ruling as it related to S.N.W. Lee Moore, a spokesman for the Attorney General’s Office, which represented DYFS, also declined to comment.

The children were represented by the Office of the Law Guardian. “We appreciate the court’s recognition of the children’s interests and its decision to remand the matter to ensure that those rights are protected,” says Assistant Public Defender Lorraine Augostini.