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New Jersey Division of Youth and Family Services v. O.G.

May 5, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
O.G., DEFENDANT-APPELLANT, AND C.W., DEFENDANT-RESPONDENT.
IN THE MATTER OF K.G. MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FN-20-133-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 19, 2010

Before Judges Rodríguez, Reisner and Yannotti.

In this Title Nine abuse and neglect case, defendant O.G. appeals from Family Part orders dated May 28, 2008, July 31, 2009, and October 29, 2008. Defendant contends that he was the custodial parent at the time the Division of Youth and Family Services (DYFS) commenced the abuse and neglect proceedings. He argues that the court changed legal and physical custody of his fourteen-year old son, K.G., from O.G. to the boy's mother, C.W.; allowed her to move to Georgia with the son; and terminated the abuse and neglect litigation, all without conducting a dispositional hearing. He asserts that pursuant to the Supreme Court's recent decision in N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009), we must remand this matter to the trial court to hold the dispositional hearing required by N.J.S.A. 9:6-8.46c and N.J.S.A. 9:6-8.51.

DYFS, C.W., and the son K.G., represented by his Law Guardian, contend that the court held a series of dispositional hearings, even if they were mischaracterized as compliance hearings. They also contend that defendant, who was represented by counsel, never asked for a plenary hearing and instead consented to C.W. having physical custody of K.G. in Georgia, so long as defendant could have visitation during the entire summer. They argue that this arrangement is what K.G. wants; that K.G., now almost fifteen, is comfortably settled with his mother in Georgia and is entitled to certainty as to where and with whom he will live; and that pursuant to the Court's most recent decision in N.J. Div. of Youth & Family Servs. v. M.C. III, ___ N.J. ___ (2010), the doctrine of invited error precludes O.G. from now changing his position and demanding a further dispositional hearing.

Based on our review of the record, we affirm.

I.

The child was born in October 1995. The parents, C.W. and O.G., are not married, and they have had a tempestuous relationship.*fn1 The Division has been involved with the parents and their child on and off since 1996. This appeal concerns an incident in which the child was removed from his parents on an emergency basis in 2007. See N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30. The following case history was presented through testimony at a March 27, 2007 hearing concerning that removal.

In early October 2006, the child, then age eleven, reported to school authorities that O.G. had physically abused him. At that time, K.G. was temporarily residing with his mother C.W. and his grandmother, although O.G. had legal custody of the child. DYFS investigated, and found the allegation of abuse was unsubstantiated. In mid-October 2006 C.W. contacted DYFS to complain that O.G. had unenrolled the son from school.

In November 2006, DYFS investigated and substantiated a complaint that C.W. had hit O.G. with her car while the son was a passenger.*fn2 At this point the agency had both parents sign a case plan requiring them both to submit to psychological evaluations and attend counseling. Defendant agreed to undergo a substance abuse evaluation; the evaluator recommended a further evaluation, which defendant declined to attend. C.W.'s psychological evaluation resulted in a recommendation for supervised visitation with K.G. There were also reports from the child's school that K.G. was having behavior problems and academic problems, and that O.G. refused to allow the child to take medication for his ADHD and refused to allow his placement in special education classes.

In March 2007, DYFS received a referral from the police that O.G. had beaten K.G. with a belt. The child told the investigating DYFS worker that O.G. had become angry with him, "chased him around the house, screamed at him, choked him, threw him against the wall, and beat him with a belt." The worker also observed photographs that C.W. had taken of the child showing red marks on his neck and buttocks. Nonetheless, the child was returned to his father. In late March 2007, school officials told the DYFS worker that the child continued to have problems in school and continued to allege that his father abused him, and the father refused to allow the child to be placed in appropriate classes. After re-interviewing the child, who at that point had missed twenty-three days of school and was failing all his classes, the DYFS worker conducted an emergency removal. The removal was based on the child's continuing allegations of abuse, the child's expressed fear of his father, his statements that his father was insisting that he lie to the DYFS workers, and the DYFS worker's concerns about educational neglect.

In his brief testimony, which was not subject to cross-examination at the time, O.G. testified that he and K.G. had undergone counseling, that the child did not need medication for his ADHD, that he diligently helped K.G. with homework but the child refused to turn in the homework at school, and that DYFS had told O.G. that he did not need to attend extended substance abuse counseling. In his testimony, he did not address the allegations that he hit the child.

In an oral opinion placed on the record on March 27, 2007, Judge Spatola found DYFS had presented sufficient evidence of physical, educational and medical abuse to justify placing the child in the agency's legal custody. Those findings were also included in a written order dated March 27, 2007. The judge ordered the child to continue in the physical custody of his maternal grandmother, with the parents to each have supervised visitation only if the child desired to see either of them. She set a return date for April 11, 2007.

The case was transferred to Judge Alcazar, who held a series of case management conferences and hearings between April 11, 2007 and December 12, 2007. Thereafter, Judges Hawkins, Chrystal and Grispin conducted additional proceedings. In all of the proceedings from April 11, 2007 on, ...


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