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Division of Youth and Family Services v. J.L.

February 22, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FN-11-27-06.

Per curiam.



Submitted February 5, 2008

Before Judges Fuentes and Grall.

The Division of Youth and Family Services (DYFS) filed a complaint charging defendant J.L. with abuse and neglect of his daughter, Y.D.L., in accordance with N.J.S.A. 9:6-8.21 to -8.73.*fn1 As provided by statute, fact-finding and dispositional hearings were conducted. See N.J. Div. of Youth and Fam. Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003). The judge found that defendant neglected Y.D.L. and entered an order reflecting that determination. A final order concluding the litigation was entered after conditions in the home were remediated. See N.J.S.A. 9:6-8.51. Defendant now appeals from the finding of neglect. See L.A., supra, 357 N.J. Super. at 165. He contends that the trial court's finding of neglect must be reversed because it is supported by incompetent evidence and because relevant evidence was improperly excluded. Because the judge's decision is supported by adequate, competent and credible evidence, we affirm. R. 2:11-3(e)(1)(A). We add only a brief discussion of the evidentiary issue raised on appeal.

Defendant has two daughters. Their mother died in 1997. In August 2005, the date of the alleged abuse, the youngest of defendant's daughters, Y.D.L., was ten years of age and her older sister was fourteen.

At 5:30 p.m. on August 21, 2005, the police responded to a call from defendant's neighbor. Y.D.L. was with that neighbor. According to the officer, the child was covered with dirt, sweating and flushed. The temperature had reached ninety-four degrees that day. To the officer, Y.D.L. looked as if she had been crying. Y.D.L. told him that she and her sister had recently returned from a visit with their aunt in California. Earlier that day, Y.D.L. and her father argued after she told him that she wanted to live with that aunt. He called her derogatory names. Sometime after 12:30 p.m., defendant told Y.D.L. to go outside and weed their yard until he gave her permission to return. She tried to come into the house to use the bathroom and get water, but the door was locked. When she knocked and asked to come in, defendant told her to drink from the hose. Defendant later drove away from the house with Y.D.L.'s sister in the car. Y.D.L. went to a neighbor for help. She did not know her father's cell phone number.

The officer tried to gain entry to Y.D.L.'s home. All of the windows and doors on the first floor were locked. He saw a bucket that was full of weeds and an area of the yard that appeared to have been weeded. He did not find any glasses or plates outside. The officer waited with the child at the neighbor's home for about an hour and, because defendant had not returned, left with the child.

Defendant and Y.D.L.'s sister returned by 6:45 p.m. Later that night, police officers and a caseworker employed by DYFS interviewed defendant and Y.D.L.'s older sister. Both described an argument between Y.D.L. and defendant about her desire to live in California. According to Y.D.L.'s sister, defendant called Y.D.L. names. He then sent Y.D.L. outside to punish her and locked her out of the home. She was outside for "quite a few hours." When Y.D.L.'s sister spoke to the caseworker, she whispered and explained that she was whispering because she did not want defendant to hear her. According to defendant, weeding was assigned to Y.D.L., as a chore, not a punishment, and Y.D.L. was outside for only about one-half hour when he left. He claimed the doors were unlocked. Defendant also said that before he left the house, he invited Y.D.L to come with him and her sister, but she had declined. Y.D.L.'s sister remembered defendant speaking to Y.D.L before they left.

Defendant testified at the fact-finding hearing. He said that Y.D.L had eaten lunch before she went outside and did not go outside until about 2:00 p.m. He explained that there was a sliding door that was not locked and that the officer must have pulled rather than pushed that door and mistakenly believed it was locked. He also testified that Y.D.L. knew where he kept a spare key to the house, which was hidden outside. He said that he used a derogatory name when speaking to Y.D.L. to describe how she was treating him, not to describe her.

The trial judge did not permit defendant to present testimony from a neighbor. He offered that testimony to establish that it was not unusual for him to leave the ten-year-old child alone and that she was capable of taking care of herself at home. The judge, however, permitted witnesses to repeat statements made by defendant's mother about her son's temperament. Defendant's mother did not testify.

The judge found that defendant locked Y.D.L. outside the house in the heat for a long period of time, neglecting her need to use the bathroom and have access to the home. He concluded that defendant neglected the child when he "locked [her] out of the house in 94 [degree heat] for at least four hours to pick weeds, without water, food or facilities; left [her] unattended [and] locked outside of the ...

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