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Division of Yough and Family Services v. P.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 16, 2006

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
P.S., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.B. & C.B.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FN-05-79-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 31, 2006

Before Judges Kestin and Lihotz.

This matter dates from March 26, 2004, when the Division of Youth and Family Services (DYFS or Division) filed a complaint seeking the trial court's intervention "for the protection and best interests" of two children. See N.J.S.A. 9:6-8.21 to -8.73; N.J.S.A. 30:4C-12; R. 5:12.

The complaint charged three defendants, including P.S., the stepfather of the children, and M.S., their mother, with abuse or neglect. On June 2, 2005, following a hearing, the trial court made findings and conclusions on the record and entered an order captioned "Civil Judgment of Abuse or Neglect", which contained a recitation that the court had found, by "clear and convincing evidence," that P.S. and his wife, M.S., had "exposed the children to a substantial risk of harm due to domestic violence" and entered a "Civil Judgment of Abuse and Neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(b)" against them. That order scheduled a "compliance review" for August 4, 2005.

The record on appeal does not disclose any further trial court action until the entry of the final order in the matter on April 12, 2006, providing: "This litigation is terminated because . . . the children, having remained in the custody of the defendant, and the defendant having remediated the child safety concerns[,] . . . [t]he children . . . shall remain in the physical/legal custody of defendants, Mrs. and Mrs. [S]." That order also provided that the third defendant, the father of the children, was not to have any visitation with the children without court approval on application made with notice to the Division. The final order concluded: "The Division may keep the case open administratively to monitor and make home visits."

Following entry of the final order, defendant P.S. appealed from the interlocutory order or "judgment" that embodied a finding of abuse and neglect. He raises a single issue on appeal: that "the trial court's ruling that the children were abused and neglected within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) was not supported by a preponderance of the evidence, as there was insufficient credible evidence to find that the children were abused or neglected."

We reject the argument advanced. The evidentiary record supports both the trial judge's findings that two incidents of domestic violence occurred--the facts underlying those findings were uncontested--and his conclusion that exposure to conduct of that type was harmful to the children in statutory terms, calling for DYFS's continuing involvement with the family for a time and recognizing its ultimate interest in the health and welfare of the children.

We are bound by the trial court's findings, see Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), and, as to its conclusion, we defer to the court's special expertise and insights, id. at 412-13. Except for the finding of abuse and neglect, which we see as well warranted, P.S. points to no prejudice or materially adverse consequence as a result of the litigation. The harm to the children initially found has been declared to be remediated and the children have remained in the custody of P.S. and M.S. The provision that "[t]he Division may keep the case open administratively to monitor and make home visits" is little more than a recognition of DYFS's statutory responsibility to promote the health and welfare of children generally.

Affirmed.

20061116

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