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New Jersey Division of Youth v. A.F

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 24, 2011

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-146-08. Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 3, 2011 - Decided: Before Judges Fisher and Fasciale.

Defendant, A.F., appeals from an October 15, 2008 order finding that she abandoned her teenage child, T.R. Defendant argues she was seeking help for her child and never intended to abandon her. We disagree and affirm.

Defendant brought her child to her father's residence in New York because she did not feel that she could handle her behavioral problems, which included physical assaults against defendant. A.R., the child's father, returned the child to her probation officer in New Jersey. The probation officer asked defendant to pick up her child, defendant refused, and the officer called the Division of Youth and Family Services (DYFS) to report a case of child abandonment.

At the fact-finding hearing, defendant explained that she refused to allow her child to return home because defendant was afraid for her safety and for the safety of her one-year old infant. Defendant stated her living situation with her child was "volatile" and that she could not control her anymore. Defendant had called DYFS on previous occasions asking DYFS to remove her child or assist her in controlling the child but DYFS informed defendant that the agency could not remove her simply because she did not want her in the home. Defendant admitted that she wanted the report of abandonment to go through in order to receive help for the child.

Judge Frederic Kessler found by a preponderance of the evidence that defendant abandoned her child because she willfully left her with the probation officer and created a burden on the state in violation of N.J.S.A. 9:6-1(a) and (c). He found defendant's motivation to refuse her child access to the home unpersuasive, explaining, "I don't find a caveat to abandonment to say that if a child is dangerous or if a child is out of control that you can then abandon your child."

Defendant argues on appeal that she never intended to abandon her child and therefore Judge Kessler improperly found that she violated N.J.S.A. 9:6-1(a) and (c).

At a fact-finding hearing, the judge must determine whether a child has been abused or neglected. N.J.S.A. 9:6-8.44. Our scope of review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The standard for a finding of abuse or neglect is by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b). N.J.S.A. 9:6-8.21(c)(5) states that an "[a]bused or neglected child" is "a child who has been willfully abandoned by his parent or guardian . . . ." Thus:

Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; . . . (c) failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control. [N.J.S.A. 9:6-1.]

Here, the record contains substantial, credible evidence that defendant "willfully forsook" her child. Defendant clearly and explicitly refused to care for her child when she informed the child's probation officer that "I cannot come get [my child], I cannot control her, and if this is the way that we have to get help then I want[] [the report of abandonment] to go through . . . ." Furthermore, defendant violated N.J.S.A. 9:6-1(c) because her actions forced the public to care for her child. Judge Kessler correctly found that the law does not allow a parent to abandon a child merely because that child is difficult to control.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that defendant's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20110224

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