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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 ...

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