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New Jersey Division of Youth and Family Services v. C.S.

November 9, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.S., DEFENDANT-APPELLANT.
IN THE MATTER OF C.C., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-311-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 20, 2010

Before Judges Cuff, Fisher and Sapp-Peterson.

Defendant C.S. is the mother of C.C., who was born in January 2007. C.S. appeals from the order entered following a fact-finding hearing, N.J.S.A. 9:6-8.44, at which Judge Mizdol found C.S. neglected her infant daughter. We affirm.

The focus of the complaint filed by plaintiff, New Jersey Division of Youth and Family Services (DYFS), is environmental neglect. DYFS alleged that the condition of the home in which C.S. lived with her infant daughter created an imminent threat to the physical condition of the child. N.J.S.A. 9:6-8.21c(4)(b). Judge Mizdol found that C.S. allowed a large accumulation of refuse, clothing, plastic garbage bags, boxes of unused belongings, which severely hindered movement in the apartment and in some locations made it totally non-accessible, making it impossible for authorities to conduct a search and rescue effort, if one was necessary.

Judge Mizdol also found that C.S. neglected her child when she returned to the apartment with the child following an order to vacate issued by the fire marshal and before abatement of the conditions giving rise to that order. The judge further found that C.S. neglected her child "by minimizing and refusing to acknowledge the seriousness of the hazardous fire condition . . . and the severity of the situation."

On appeal, defendant argues that the finding of neglect memorialized in the October 27, 2008 order*fn1 is incorrect as a matter of law, her motion to dismiss the complaint should have been granted because the record did not support the need for court intervention, and defendant's request for suspended judgment should have been granted. We disagree.

The findings of fact are supported by the testimony of the property manager of the apartment complex in which C.S. resided, the DYFS worker who initially responded to the referral, the municipal fire inspector, a municipal police officer, and photographs memorializing the condition of the apartment in June 2007. Dawn Ruggiero, the property manager, testified she went to the apartment in which C.S. resided with her infant daughter in response to reports from maintenance workers who had responded to the apartment to fix a water leak. She described a scene of incredible crowding and clutter. From her vantage point at the door of the apartment, Ruggiero observed only pathways through the foyer and into the living room. When the owner of the apartment opened the door, "all [Ruggiero] could see was boxes, bags, garbage, papers, just a mess from the hallway."

DYFS worker Elizabeta Janiec testified that the apartment was so cluttered she could hardly see the floor. She observed pet hair throughout the apartment. Boxes and bags were piled high throughout the living room, and she could not walk through this room. She also observed piles of clothing as high as the ceiling in the bedroom occupied by defendant and her infant daughter. One pile almost reaching the ceiling was on the top of a bunk bed, and defendant had placed the infant's bassinet next to the bunk bed. In the same room, defendant had stacked two televisions on top of each other. C.S. had scattered newspapers over the floor of the bathroom for use by the dog and cat. The DYFS worker also detected a pet smell throughout the apartment. Ingress to and egress from the apartment was difficult, if not blocked entirely in places. Janiec testified that C.S. acknowledged that the apartment "looked like hell" but told Janiec it was not her fault.

The following day, the fire marshal issued a notice of violation of a dangerous condition. The order cited a large accumulation of refuse, clothing, plastic garbage bags, and boxes of unused belongings. He noted that movement in the apartment was severely hindered and in some places, boxes and refuse blocked entrances, including the sliding doors to the terrace. He ordered defendant to correct the condition of the apartment. Four days later, the inspector observed some progress towards abatement of the dangerous condition, and defendant was permitted to return to the premises. She had, however, returned earlier than permitted to do so.

Ordinarily, great deference is accorded to the discretionary decisions of Family Part judges. The findings of the Family Part judge should not be disturbed unless wholly unsupported as to lead to a denial of justice. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Such findings "are binding on appeal when supported by adequate, substantial and credible evidence." Ibid. This is especially true "'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). Accordingly, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

An abused or neglected child is defined by statute as: a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of being impaired as the result of the failure of his parent or guardian, as herein defined, 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, or (b) in providing the child with proper ...


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