On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FN-09-105-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 13, 2008
Before Judges Cuff and Fisher.
The Division of Youth and Family Services (DYFS) appeals the portion of the January 8, 2008 order removing A.H.'s name from the Central Registry. We reverse.
DYFS became involved in the lives of A.H. and S.W. after the death of their thirty-four month old daughter, M.W. Four days after the child's death, DYFS filed a verified complaint seeking custody of M.W.'s older brother, E.W. He was about four and one-half years old at the time.
On January 7, 2008, a fact-finding hearing commenced. At the conclusion of the State's case, the parties reached an agreement concerning custody of E.W. By this time, he was almost five years old. According to the agreement, DYFS would continue to exercise care and supervision of the child, but his parents, A.H. and S.W., would exercise joint legal custody. The boy would reside with his father, S.W. His mother, A.H., agreed to undergo therapy in her native country of France and to obtain employment and suitable housing. The parties' agreement anticipates that A.H. will return to New Jersey in eighteen months and E.W. would return to France with her, if she has engaged in therapy and obtained employment and suitable housing.
During the negotiation of the agreement, A.H.'s attorney proposed removal of her name from the Central Registry. DYFS refused to agree to this term. As a result, the handwritten notes of the agreement crossed-out this term. Nevertheless, when the terms of the agreement were placed on the record and DYFS indicated its consent, A.H. asked the judge to remove her name from the Central Registry and the judge agreed to do so.
DYFS filed a motion for reconsideration, which was denied. At this time, the judge provided a written memorandum in support of her decision to remove A.H. from the Central Registry. She rejected the contention that she had no jurisdiction to order this relief. She also found that DYFS had not demonstrated that A.H.'s conduct was willful or wanton. In doing so, she relied on the opinion of a medical examiner that M.W.'s death was accidental. She also reasoned that DYFS could not dismiss its complaint for custody and retain A.H. on the Central Registry.
On appeal, DYFS argues that the trial judge did not have jurisdiction to order the removal of A.H.'s name from the Central Registry and that the judge incorrectly determined that DYFS failed to demonstrate that A.H. had abused or neglected her child. We agree.
The following facts were developed at the fact-finding hearing. A.H. and S.W. met in France. They had two children: E.W. born on January 10, 2003; and M.W. born on October 25, 2004. In November 2006, S.W. moved to the United States. In June 2007, A.H. visited S.W. with the children. The couple planned that A.H. would return to France in September, but the children would remain with S.W. to enable them to learn English. A.H. intended to return to the United States at a later date and possibly remain here.
On the morning of August 20, 2007, A.H. drew a bath for the children. She placed thirty-four month old M.W. in the bathtub and went downstairs. She instructed E.W. to go upstairs and get into the bathtub and he did so. A.H. remained downstairs to clean. The children were unattended in the bathtub. When A.H. went upstairs to check on the children, E.W. was out of the bathtub using the toilet and M.W. was lying face down in the bathtub. A.H. tried to revive her, as did a neighbor, but the child was pronounced dead on arrival at the hospital.
The death of M.W. is undoubtedly tragic. We agree that DYFS did not establish that A.H. acted in a willful or wanton manner but that is not the standard. N.J.S.A. 9:6-8.21c defines an "abused or neglected child" as a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, . . . (2) 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, or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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, as herein defined, to exercise a minimum degree of care . . . (b) ...