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New Jersey Division of Youth and Family Services v. E.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 5, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.W. AND R.W., DEFENDANTS, AND J.H., DEFENDANT-APPELLANT.
IN THE MATTER OF R.W.J.,*FN1 M.W. AND B.W., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Camden County, Docket No. FN-04-368-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 16, 2008

Before Judges Cuff, Lihotz and Simonelli.

In this appeal, we review an order entered following a fact-finding hearing that defendant J.H. abused and neglected the three children in her care. Following entry of an order that it would be unsafe to return the children to her care and the filing of a complaint to terminate the parental rights of the father of the children, this matter became ripe for review. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163-64 (App. Div. 2003); N.J.S.A. 9:6-8.70. We affirm.

On June 5, 2006, R.W.J., M.W. and B.W. were removed from the custody and care of their father, R.W., and his live-in girlfriend, J.H. Until May 2003, the children resided with their mother. They were removed from her care when she was evicted from her home. At that time, R.W.J. was twelve, M.W. was eight, and B.W. was six. The Division of Youth and Family Services (DYFS) asserted in its complaint that the children were abused and neglected by their father and defendant J.H. On appeal, J.H. contends that DYFS presented insufficient credible evidence to support a finding that she neglected the children.

Abuse and neglect proceedings are governed by N.J.S.A. 9:6-8.21 to -8.73. In rendering findings of abuse and neglect, the trial judge must "articulate, with particularity, the facts upon which a determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002) (citing N.J.S.A. 9:6-8.50). These factual findings must be supported by evidence admitted during a fact-finding hearing. Ibid.

The Legislature has defined an "abused or neglected child" as a child whose:

[Parent or guardian] creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement . . . . [N.J.S.A. 9:6-8.21(c)(2).] and

(4) . . . a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so . . . . [N.J.S.A. 9:6-8.21(c)(4).]

Any determination that a child is abused or neglected must be based on a preponderance of the evidence and based only on "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b); J.Y., supra, 352 N.J. Super. at 262. To meet the standard, a court must, at minimum, make a finding that:

(1) the child has a physical, mental or emotional condition that is either impaired or in imminent danger of being impaired; (2) such impairment is or would be the result of the parent's failure to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter, education, medical or surgical care, and (3) even though financially able to do so or, through offered aid, is able to do so. [Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976), aff'd sub nom., Doe v. Downey, 74 N.J. 196 (1977).]

"Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation[;]" courts are to make this determination on a case-by-case basis. N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 111 (Ch. Div. 2006). "[T]he focus of proceedings under Title 9 is not the culpability of parents' conduct but rather the protection of children from acts or conditions which threaten their welfare." State v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991).

Review of a trial court's finding of abuse and neglect is limited. N.J. Div. of Youth & Family Servs. v. I.Y.A., ___ N.J. Super. ___, ___ (App. Div. 2008). Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). It follows that this court should not disturb the factual findings and legal conclusions of the trial judge unless it is "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Judge Melendez found "beyond all reasonable doubt" that R.W.J., M.W., and B.W. were abused and neglected pursuant to N.J.S.A. 9:6-8.21(c)(2) and (4). She found that defendant struck B.W. in the head with a car seatbelt causing a sore on the child's head approximately one inch behind her hairline. The judge also found that school personnel observed bruises on each child on a consistent basis, and that the recurring bruises observed on the children demonstrated that J.H. failed to properly supervise the children.

The judge found that B.W. was struck by a chair thrown by her father. J.H. was present during this episode and did nothing to protect the child.

Judge Melendez found that the children suffered chronic neglect while they resided with their father and J.H. The judge found that their father and J.H. provided inadequate clothing for the children. She found that the children arrived at school on a daily basis in ill-fitting, dirty clothes. The children smelled because they did not bathe. B.W.'s hair was rarely combed. In addition, their father and J.H. failed to supply the children with adequate food, the children arrived at school hungry, and they were usually unsupervised after school and into the evening hours.

Judge Melendez found that their father and J.H. neglected the educational needs of the children. In fact, J.H. refused to comply with a teacher's suggestion that M.W. should affix his spelling words to the refrigerator. J.H. chided the teacher for "telling her how to decorate her house."

In addition, the judge found that their father and J.H. neglected the medical needs of the children. J.H. refused to come to school to pick up the children when they were ill.

Finally, Judge Melendez found that the sleeping arrangements were unsuitable and that those arrangements probably contributed to B.W.'s overtly sexual behavior observed by school personnel following the Christmas 2005 school vacation.

Each of these findings are well-supported by the record. Several teachers at the school in which the children were enrolled between September 2003 and May 2005 testified regarding the condition of these children. The record demonstrated not only the deplorable neglect of these children and persistent evidence of physical abuse but also J.H.'s involvement in their care.

She attended conferences at school. She expressly rejected a teacher's suggestion to assist M.W. with his spelling. J.H. was the custodian of the children when their father was excluded from the home after he threw a chair at his young daughter and injured her and while he was incarcerated for the assault. Throughout this period, the children continued to report to school in ill-fitting and soiled clothing. Throughout this period, the children reported to school hungry, dirty, and smelling of urine and feces. Throughout this period, the children were left unsupervised after school and were observed wandering the streets as late as 9 p.m. in the evening.

Any suggestion that the condition of the children was the "unfortunate incidents of poverty," as in Doe v. G.D., supra, 146 N.J. Super. at 430-31, rather than a manifestation of chronic abuse and neglect is misguided. This record demonstrates that J.H. failed to protect the children from their father and continued the established pattern of neglect when she was the sole caretaker of the children. See G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999) (holding that a guardian fails to exercise a minimum degree of care for the children in her care when she is aware of a danger to the well-being of the children and fails to adequately supervise or protect the children).

In short, the finding that J.H. abused and neglected R.W.J., M.W., and B.W. is supported by overwhelming evidence. The order is affirmed.

Affirmed.


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