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Division of Youth and Family Services v. D.P.


December 8, 2009


On appeal from Superior Court of New Jersey, Chancery Division Family Part, Ocean County, Docket No. FN-15-13-08.

Per curiam.



Submitted October 7, 2009

Before Judges Graves and J.N. Harris.

In these consolidated appeals, defendants D.P., mother, and M.P., father, challenge a final order terminating the litigation in which the court found they abused or neglected their two sons: C.P., born in 2003, and M.A.P, born in 2004. This finding was based in part on the response by the Division of Youth and Family Services (Division) on July 13, 2007, to a domestic violence referral at D.P.'s mother's and stepfather's home, where D.P. and M.P. lived with the children. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.

On July 13, 2007, a courthouse employee reported to the Division that D.P.'s stepfather, A.V., had sought custody of the children because of ongoing domestic violence in the home. A.V. claimed M.P. pushed him while A.V. held M.A.P., and A.V. sought a restraining order against both parents. However, when A.V. was told that D.P. and M.P. would be allowed to leave his home with their children if he obtained a restraining order, he decided not to file for the order. Because A.V. was concerned for the welfare of the children, the courthouse employee who spoke with A.V. referred the matter to the Division. At that time, the Division was aware that D.P. had obtained an active final restraining order (FRO) against M.P. in July 2006. The FRO was issued after M.P. entered the family home while she and the children were sleeping, held a knife to her throat, physically assaulted her, and threatened to kill her and their children. As a result of that incident, M.P. served ninety days in the Atlantic County Jail on charges of assault and terroristic threats and was then placed on probation.

When case workers arrived at A.V.'s home, D.P. assumed her parents had called the Division and began yelling and cursing at them in front of the children. M.P. yelled at D.P. to be quiet as she was making matters worse. D.P. and M.P. began physically fighting, and the children began crying. D.P. attempted to grab C.P. from his grandmother's arms and leave, stating no one was going to take her children away. The Division called the police prompting M.P. to flee because there were outstanding warrants for his arrest.

The Division conducted an emergency removal of the children based on the violence in the children's presence and the violation of the FRO. In addition, the case worker reported that D.P. told her there had been more serious violence in the past, that "she was bi-polar and [M.P.] was schizophrenic and that he had left because he wasn't stupid." At that point, D.P. also agreed to leave the home and the Division advised her not to return. However, M.P. and D.P. soon returned. According to the Division case worker, they attempted to block the Division van so that it could not leave with the children. D.P. and M.P. subsequently testified they only returned to the home to retrieve some personal belongings and they did not deliberately block the Division van.

On July 17, 2007, the Division filed a complaint alleging abuse or neglect, together with an order to show cause (OTSC) seeking emergent removal of the children and an award of custody to the Division. On the return date of the OTSC, D.P. appeared with counsel. Neither M.P. nor counsel for M.P. appeared. The court continued legal custody of the children with the Division and granted physical custody to A.V. but not J.V., the children's maternal grandmother, due to an incident that occurred on August 8, 2007, while J.V. was caring for the children. On that date, the police responded to a call that the children were outside unsupervised. When the police entered the home, they found J.V. inebriated after an accidental overdose of prescription drugs, and she was taken to a hospital for emergency treatment. Following that incident, J.V. agreed not to reside in the home and to supervision of all contact between her and the children pending an evaluation by Dr. Alan Lee. J.V. returned to the home in October 2007 after the evaluation was completed.

On October 24, 2007, the court determined that D.P. had abused or neglected the children. M.P. did not appear at the hearing. D.P. testified as to the Division's removal of the children and stated she had been unaware the FRO against M.P. was still in effect. D.P. also testified she vacated the FRO "immediately" on the following Monday after the Division's investigation.

After considering testimony from D.P. and a Division case worker who conducted the removal of the children on July 13, 2007, the court found D.P. had abused or neglected the children. The court stated the following events placed the children's emotional and physical well-being at risk: the parents' yelling, cursing and physical fighting in the presence of the children; D.P.'s attempt to leave with the children before the Division could remove them; and her efforts to protect M.P. from detection by the police because he was in violation of his FRO and had outstanding arrest warrants. The court also found that D.P. had allowed M.P. to remain in the home, despite domestic violence and his previous threats to harm her and the children.

In February 2008, while A.V. and J.V. had custody of the children, C.P., then age four, started a fire by turning on a gas stove, which was covered by a bed sheet while the kitchen was being painted. In an effort to put out the fire, C.P. threw a can of paint on top of the stove, causing extensive smoke damage to the home although no injuries occurred.

On February 21, 2008, Dr. Lee determined C.P.'s "anger, tenuous emotional functioning, impulsivity, limited social and moral development, and also his curiosity towards some destructive behaviors" aggravated his risk for fire-setting. He further noted that C.P.'s grandparents reported the boy had been "inappropriate to animals such as pulling a dog's tail," had "run away down the block from the house," and often engaged in "seemingly aggressive behavior and destructive tendencies including cutting electrical wires [and] hiding knives and scissors." J.V. informed Dr. Lee that when she asked C.P. why he hid knives under his bed, he explained he needed them "for protection to 'cut the bad man.'" Dr. Lee determined that C.P.'s "heightened level of anger that likely seems to stem from the trauma and chaos that he has experienced . . . overwhelm[s] his rather brittle, tenuous, and limited resources."

J.V. explained to Dr. Lee that C.P. "sometimes experience[d] much anger towards his father who was supposedly mean and would hit him and do bad things. She also indicated that [C.P.] appears to be mad at his mother for sticking up for his father [and that he] has had some history of stealing behavior . . . and violent dreams." About a month later, on March 17, 2008, Dr. Alexander Iofin examined C.P. and concluded:

[D]ue to the extreme danger that he is presenting to himself and others, with inability to be properly supervised without psychotropic medications, his proclivity to get into electrical outlets, to cut live wires, proclivity and interest in fire play and fire setting . . . the risk of him being injured or creating a situation when others will be injured appears to be extremely high, and the risk of having side effects, including severe side effects, is relatively low if proper supervision is arranged.

Dr. Iofin also noted that C.P.'s grandparents reported "him having, for his age, [an] extremely inappropriate repertoire of vulgarities, 'outrageous cursing,' especially when he gets frustrated. . . . [H]e shows unrestrictive aggressive impulses, with spitting, punching, hitting and biting others." He further found that C.P. "was described as also having learning disabilities and being dyslexic. . . . [H]e shows not only oppositional defian[ce], but also antisocial behavior, including stealing and being completely oblivious to any attempt to redirect him." In general, Dr. Iofin concluded that "with a reasonable degree of psychiatric probability, [C.P.] is required to receive the maximum amount of help that could be allocated to the devoted extended family, who are taking care of him."

When M.P. appeared in court with counsel on May 23, 2008, he initially claimed he did not know the FRO against him was still in effect on July 13, 2007. He also confirmed, however, that he was aware he was not legally permitted to be in D.P.'s presence, testifying "[w]ell, honestly, I wasn't supposed to be at their -- I could have been at their [the maternal grandparents'] house if I wasn't with my wife." At the same hearing, D.P. testified she complied with all Division-recommended services; she attended two parenting classes, two anger management classes, two domestic violence classes, individual counseling, substance abuse evaluations, and every scheduled visit with the children. In addition, she testified that she and M.P. both attended marriage counseling and training to learn more about their son's condition.

On May 23, 2008, the court entered a finding of abuse or neglect against M.P. based on the threats and violence that resulted in the FRO issued in 2006, his violation of the FRO, and the events of July 13, 2007, which subjected the children to "physical risk" and "emotional risk." The judge did not believe M.P.'s claim he was unaware the FRO against him had not been vacated. The court then held a permanency hearing and approved the Division's plan to initiate termination of parental rights proceedings, followed by adoption of the children by J.V. and A.V.

The permanency order stated the court approved the plan because the "parents are not recommended for reunification at this time and the children have been in placement for 10 months." The court relied upon Dr. Lee's evaluation of D.P., which found that "[d]espite her having reportedly completed several domestic violence programs and parenting classes, it is questionable how much she has fully benefited from these programs. . . . Ongoing Division involvement for the two children is certainly supported principally for the purposes of seeking other permanency planning for the children besides reunification with the birthmother." The court also relied upon Dr. Lee's evaluation of M.P., which stated nearly identical conclusions and recommended "other permanency planning for the children besides reunification with the birthfather."

On September 24, 2008, the court terminated the abuse or neglect action because the Division had filed a complaint for termination of parental rights. On October 31, 2008, D.P. and M.P. filed notices of appeal from the final order terminating litigation, which were consolidated on November 25, 2008. According to the Division, each parent has since surrendered custody of the children and agreed to their adoption by J.V. and A.V.

A parent has a "constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). However, that right is not absolute, and must be balanced "against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

Abuse or neglect occurs when a parent fails to exercise a minimum degree of care and unreasonably inflicts physical, mental, or emotional harm upon a child, or places the child at substantial risk of such harm. N.J.S.A. 9:6-8.21(c)(4)(b). A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dept. of Human Servs., 157 N.J. 161, 181 (1999). In addition, the court "need not wait to act until a child is actually irreparably impaired" by parental abuse or neglect. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

"Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). A reviewing court should defer to the trial court's factual findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonable credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).

In this case, the trial court complied with all of the statutory requirements for abuse or neglect proceedings, and the court's findings and conclusions as to each of the parents are fully supported by sufficient credible evidence. Based on our review of the record, we conclude the matters were correctly decided and defendants' arguments do not warrant further discussion in a written decision. R. 2:11-3(e)(1)(A) and (E).


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