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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 27, 2011

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

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-43-10K.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 22, 2011 -

Before Judges Carchman, Graves and St. John.

Defendant C.P. is the mother of R.G. (fictitiously Ruth), who is now eighteen years old. C.P. appeals from a Family Part order dated December 7, 2009, finding that she committed an act of abuse and neglect on September 5, 2009, when she refused "to allow [Ruth] to return to her home, thereby requiring DYFS to arrange for [Ruth's] placement." On appeal, C.P. argues the court erred in determining that she abandoned her daughter. For the reasons that follow, we affirm.

At approximately 3:30 p.m. on August 22, 2009, when she was sixteen years old, Ruth walked into the Rahway Police Station and reported that her mother, C.P., had locked her "out of the house and [would] not let her return." The "juvenile sergeant" spoke with C.P. on the telephone, and C.P. indicated that "she [wanted] nothing to do with the child." The police referred the matter to the Division of Youth and Family Services (DYFS or the Division), and a caseworker was assigned to investigate.

At about 8:30 p.m., the caseworker interviewed Ruth at the police station. According to Ruth, after she was terminated from the Outward Bound summer program at Seton Hall University for allegedly texting someone while in class, her mother told her that she would not be allowed to reside at home unless "she gave up the cell phone." When Ruth refused to do so, it was agreed that she would reside with her maternal grandmother, B.W., in Roselle. However, Ruth's mother and grandmother subsequently agreed that it would be better for Ruth "to reside with her mother, and she was sent back" to C.P.'s house in Rahway.

Ruth advised the caseworker that when she returned home, she had a further dispute with her mother concerning her cell phone and that her mother locked her out of the house. Ruth admitted to the caseworker that she had been "rude and disrespectful to her mother."

After interviewing Ruth and speaking with the officer who had talked to C.P., the caseworker telephoned B.W. and asked her why Ruth had been sent home. B.W. advised that Ruth had "been hanging out with a gang in Newark" and that she had "stolen quite a bit of money from her." Accordingly, B.W. was "no longer [willing] to care for the child."

The caseworker also contacted C.P. at work and inquired about her plans for her daughter. C.P. stated that Ruth had burned "all her bridges and no family member [would] allow her into their homes." According to C.P., she told Ruth that she would have to go to a friend's house while she was at work from 3:00 p.m. to 11:00 p.m. that day, because Ruth's stepfather was afraid of her. C.P. also stated that Ruth thought she could do whatever she wanted with "no consequences."

At about 9:55 p.m., after consulting with her supervisor, the caseworker called C.P. again and told her that she was responsible for her daughter and "had to come and pick her up." C.P. arrived at the police station at approximately 11:00 p.m. and agreed to transport Ruth to her father's home because "she needed his assistance to supervise" their daughter.

About two weeks later, shortly after midnight on Saturday, September 5, 2009, the Division received another referral from the Rahway Police Department indicating that Ruth had been locked out of her home again. When the caseworkers spoke with Ruth at the police station, she stated that she was unable to enter her mother's house because "her mother locked the outside screen door." For the next several hours, the DYFS caseworkers placed telephone calls to Ruth's mother, father, stepfather, and other relatives and left voicemail messages. In addition, the police returned to C.P.'s home in an unsuccessful effort to see if anyone was there.

At 6:11 a.m., the caseworker received a telephone call from R.G., Ruth's father. R.G. advised that he was a truck driver and was in Boston. He also told the caseworker that Ruth "steals from every house she goes to" and that C.P. did "not want DYFS to disrupt her home." In addition, R.G. stated that he and C.P. wanted Ruth "to attend boot camp."

A few hours later, at 8:28 a.m., the caseworker received a return call from C.P. C.P. explained that she was at Beth Israel Hospital attending to her grandmother, A.H., who had a stroke. C.P. informed the caseworker that Ruth "stole her credit card and disappeared on Tuesday, [September 1, 2009]." C.P. admitted telling her husband "to put the outside lock on the door [for] which no one has a key" due to Ruth's "stealing." She also told the caseworker that she did "not want [Ruth] to return home" and that she wanted "to press charges against [her] for stealing."

After Ruth received a medical examination at Union Hospital, she was taken to the Newark Shelter. However, while the caseworker was completing the paperwork for a temporary placement, Ruth refused to accept the shelter's rules, and the facility would not admit her. At that point, Ruth asked to be transported to her cousin's home. Unfortunately, the cousin would not allow Ruth to remain with her and, after Ruth again refused to stay at the Newark Shelter, the caseworker permitted Ruth to leave even though she had no place to stay.

Later that same day, the Division received another referral from the Rahway Police Department indicating that Ruth's grandfather had driven her home, but she was locked out of the house. When the caseworker reached C.P. on the telephone, C.P. said that she did not want Ruth "back in her home and no family member [would] take her due to her behavior." When the DYFS caseworker explained to C.P. that the Division would have to obtain custody of Ruth and take C.P. to court, C.P. stated that she had to return to work "to save people who want to be saved, [Ruth] does not want to be saved." The Division then executed an emergency removal without a court order, pursuant to N.J.S.A. 9:6-8.30, and temporarily placed Ruth in the YES program at the Newark YMWCA pending a court hearing.

At the initial court hearing on September 9, 2009, the court granted the Division's request for temporary custody of Ruth. The court's findings and conclusions included the following:

Now obviously there is some dispute and debate as to whether the child was out on the streets and how long she was out on the streets and when she was with her father and when she was with her mother. But I am satisfied . . . that it would be contrary to the welfare of this child to return her to the home because she has been faced on more than one occasion with not being able to get into that home and because there are issues as to whether she has a home to return to. And that includes the fact that [C.P.] did indicate to me that [Ruth] is welcome in her home if she abides by the rules, but clearly this is a child who doesn't abide by rules. And I recognize that that raises certain issues. But at least for now I do find that it would be contrary to the welfare of the child to be returned to the home of either parent without these underlying issues being addressed.

I further find that the removal of the child was required due to imminent danger to the child's life, safety, or health since the child was at the police station, and [C.P.] was not coming for her to get her and [Ruth's father] could not be reached. And therefore the child was without a home to return to at that time.

On September 29, 2009, the return date of the order to show cause that was entered on September 9, 2009, the court ordered that Ruth was to "continue under the custody, care and supervision of the Division." The court also scheduled a fact-finding hearing for November 9, 2009.

Following the fact-finding hearing, the court rendered a comprehensive oral decision on December 7, 2009. The court dismissed the Division's complaint against the biological father and stepfather, but it found "abandonment and therefore abuse and neglect" by C.P. The court's findings and conclusions with regard to C.P. included the following:

First as to [C.P.]. She is the parent who has physical custody of [Ruth], the parent of primary residence. She knew that [Ruth] had been gone from her home since September 1st. She was angry with [Ruth] for stealing a debit card. She failed to report [Ruth's] disappearance to the police. When she was called on the overnight of September 4 to September 5, this incident having begun in the late hours of September 4 and carried into the 5th, she received the messages upon returning home from work that night, but she did not return the calls until the morning. According to the DYFS report, when she did call back, she refused to allow [Ruth] to return to her home. She was contacted again that evening while at work, and again she refused to allow [Ruth] to come home. She could have said at that time that [Ruth] could not come [home] until her shift ended, but she didn't. She agreed only to arrange for [Ruth] to have her medication picked up by the Division.

While [C.P.] testified that she would have allowed [Ruth] to return, I did not find her testimony in that respect to be credible. And I did not find her conduct to be consistent with a willingness to allow [Ruth] to return. [C.P.] specifically asked me to consider what she had stated when she was before me on the initial application in this case on September 9. I listened to the tape to confirm my recollection and my notes. [C.P.] said that she would allow [Ruth] to return if [Ruth] would abide by her rules. Given [Ruth's] behavior, I viewed that comment then and I view it now as tantamount to a refusal to take [Ruth] back. [C.P.] wanted the State to place [Ruth], and this was the way that she could accomplish it. By refusing to take [Ruth] back to her home, she left the Division with no alternative.

She failed to care for and keep the control and custody of this child, and as a result, the child had to be supported and maintained at the expense of the public. For these reasons I find that [C.P.] has committed an act of abandonment, which does constitute abuse and neglect under the statute.

C.P. argues on appeal that her failure "to pick the child up at the police station" and her failure to "make arrangements for anyone else to do so on her behalf" prior to the child's placement by the Division does not "rise to the level of abandonment." We cannot agree.

Title Nine controls the adjudication of abuse and neglect cases. N.J.S.A. 9:6-8.21 to -8.73. The well-being of the child is the paramount concern. N.J.S.A. 9:6-8.8; see G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999) ("Title 9's primary concern is the protection of children, not the culpability of parental conduct."). Under N.J.S.A. 9:6-8.21(c)(5), the definition of an "[a]bused or neglected child" includes "a child who has been willfully abandoned by his parents or guardian." "Abandonment" is defined as follows:

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; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection; (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.]

In the present matter, there is substantial credible evidence to support the trial court's determination that C.P. violated N.J.S.A. 9:6-1 when she refused to allow her daughter to return home on September 5, 2009, and the Division was forced to find alternative placements at public expense. Moreover, as the trial court properly recognized, the law does not permit parents to simply abandon their children when they "fail to abide by the rules" and are difficult to control.

The scope of our 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)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). This is not such a case. Based on our examination of the record, we have concluded that the trial court's findings are amply supported by sufficient credible evidence and that the matter was correctly decided. Accordingly, we affirm substantially for the reasons stated by Judge Frederic S. Kessler on December 7, 2009.

Affirmed.

20110427

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