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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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