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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 7, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.S., DEFENDANT-APPELLANT.
IN THE MATTER OF D.S. AND J.S., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0233-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2011

Before Judges Simonelli and Fasciale.

Defendant J.S. appeals from two Family Part orders: (1) the January 14, 2008 order, which found he abused and neglected his son, James (fictitious name); and (2) the August 10, 2010 order terminating this matter, returning the child to his mother, defendant P.S., restraining defendant from the home and granting him unsupervised visitation. We affirm.

The record reveals a long history of domestic violence between defendant and P.S., which often occurred in the presence of their children, James and D.S. During a domestic violence incident that occurred at approximately 8:30 p.m. on July 30, 2006, defendant left James alone in the parties' apartment unsupervised for over an hour. The child was three-years-old at the time. A police officer from the Rutherford Police Department found the child alone and crying locked in a bedroom. D.S. was with a neighbor.

After three days of hearings, Judge Mizdol found that during the domestic violence incident, defendant left James alone and crying locked in a bedroom for over one hour, thus demonstrating a total disregard for the child's welfare and a failure to appreciate the risk of harm his behavior caused to his son. The judge concluded plaintiff Division of Youth and Family Services (Division) established by a preponderance of the evidence that defendant abused or neglected James by placing the child at substantial risk of harm. This appeal followed.

On appeal, defendant contends the record does not support the judge's findings, and the Division failed to prove he abused or neglected James by a preponderance of the evidence. We disagree.

We afford great deference to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should [we] intervene and make [our] own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).

N.J.S.A. 9:6-8.21 to -8.73 governs abuse and neglect proceedings. The Division's burden of proof in such proceedings is a preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009). N.J.S.A. 9:6-8.21c(4) defines an abused or neglected child, in relevant part, as: a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care . . ., or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof. . . . [N.J.S.A. 9:6-8.21c.]

The law does not impose an insurmountable standard of conduct as it defines abuse and neglect. A parent or "guardian 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. Dep't of Human Servs., 157 N.J. 161, 181 (1999) (citation omitted).

In G.S., the Court held that the caretaker, who administered seventy-eight times the prescribed dose of medication to an autistic, non-verbal, epileptic, developmentally disabled minor, neglected her ward. Id. at 182-83. By contrast, we reversed a finding of neglect by a mother who allowed her sons, six and four years of age, to leave a playground and enter their home within view of the playground and left them unattended in the home. N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 161 (App. Div. 2009). We emphasized that when the locking mechanism on the front door did not permit the children to leave the house, the older child, who had a cell phone to use in case of emergencies, used it, as instructed, to call the police, and the children suffered no more than "transitory upset to the older child." Id. at 169. We noted that "[t]hese circumstances suggest that the child exercised good judgment and was well trained by his parents to deal with the crisis that he perceived to exist." Ibid. In addition, the after-the-fact risk assessment conducted by the agency found the risk of future neglect was low and no further services were required. Id. at 163.

The circumstances of this case are markedly different than J.L. Here, the child was three-years old. He was left unattended and locked in a bedroom for an over an hour in the evening. The child could not fend for himself, get out of the apartment or call for help. Moreover, until the police found James, no one knew his whereabouts.

That James was not physically harmed while unattended does not negate the high risk of harm to which he was exposed. Unlike in J.L., the situation in this case presented an inherent risk of harm. It is well established "that the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005). Notably, it is not necessary that the parent intended to cause harm. What the Division must prove by a preponderance of the evidence is "the probability of present or future harm." Ibid.

Based on our review of the record, we are satisfied that there is ample support for the judge's finding of abuse and neglect. Defendant left James alone for over an hour in a locked bedroom. This presented an inherent risk of harm to the child warranting a finding of neglect within the meaning of Title 9.

Affirmed.

20110407

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