June 8, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
C.F. AND E.F., DEFENDANTS-APPELLANTS.
IN THE MATTER OF Z.F. AND J.F., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-000049-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2011
Before Judges A.A. Rodriguez, Grall and C.L. Miniman.
C.F. and E.F., the parents of eleven-year-old Z.F. and ten-year-old J.F., appeal from April 22, 2010 judgments finding that they abused and neglected these children. We affirm.
The Division of Youth and Family Services (DYFS) first became involved with the family on September 10, 2009, when it received a referral call at 10:30 p.m., alleging that the family was living out of a car and that the children were not in school and appeared tired and malnourished. DYFS asked local police departments for assistance in locating the family.
After locating the father the following morning, the Hamilton Township Police Department contacted DYFS. Diana Kelly, a Special Response Unit caseworker, responded and interviewed E.F. at the police station.
E.F. told the caseworker that the family had been transient for two weeks. E.F. revealed that his family was in front of a grocery store in Somers Point waiting for him to pick them up, and that they would be spending the night in the car because his direct deposit check had not come through. C.F. also has an eighteen-year-old son named N.F., by a different father, who was living with the rest of his family at the time of the referral. E.F. has been a security guard since May 2009. He was assigned a vehicle in connection with his job. He works from 9:00 p.m. to 5:00 a.m., Thursday through Monday, earning $400 per week.
Beginning in May 2009, the family stayed free of charge at Cornerstone Ministries, a shelter run by a religious organization. In late August or early September, the family left Cornerstone over a disagreement with the pastor. After leaving Cornerstone, the family stayed in motels when it could afford to do so. When it could not, C.F., N.F. and the children would sleep in the back of the company car while E.F. did his work rounds using the car.
Kelly had the Somers Point police pick up the rest of the family and take them to the station so they could be interviewed. C.F. confirmed that the family would sleep in the car that evening and that the children were being home schooled because they were Christians who did not believe in evolution. She also said that the family did not seek public assistance because she did not believe in "mooching off the system."
Kelly observed that Z.F. and J.F. were dirty, their hair was greasy, their nails were uncut, their clothes were stained, and they smelled. J.F. said he had no clean clothes and that he was not wearing underwear. He did not respond when he was asked what he had for breakfast, and only had crackers and donuts for lunch. Z.F. said that he had pretzels and the police officers that picked him up purchased food from Applebee's for them.
Z.F. guessed that he "might be in the fourth grade" and could not remember his birthday while J.F. was not able to spell his name. Z.F. stated that he had last seen a doctor "a really long time ago." C.F. confirmed that the children had not seen a doctor since they arrived in New Jersey four months earlier. Except for one record of J.F. being seen by a family doctor in 2002 for an ear infection, DYFS was not able to locate any medical records for the children.
Based on her investigation, Kelly created a "safety plan" for the family that required that they stay in the Atlantic City Rescue Mission. The caseworker took C.F., J.F., and Z.F. to the Rescue Mission, but did not take N.F. because she could not take responsibility for driving an adult. Moreover, the Rescue Mission did not have any room for N.F. Instead, the police dropped him off at an all-night diner so he could wait for E.F. to get off work.
C.F., J.F., and Z.F. only stayed at the Rescue Mission on Friday night. They left the next day and E.F. picked them up.
According to C.F., they left the Rescue Mission because staying there meant splitting up the family and staying in a bad part of town populated by unsavory people. They stayed in E.F.'s company car for the next two nights and checked into a motel on Monday.
When intake caseworker Brittany Bellinger attempted to follow-up with the family, she discovered that they had left the Rescue Mission. She eventually spoke with E.F., who told her that his family had checked into a motel that morning and that they had booked the room for the next four nights. After interviewing E.F., Bellinger went to the motel at approxitmately 9 p.m. and saw C.F., J.F., and Z.F. walking hurriedly away from their motel room. Bellinger approached the family and C.F. denied her identity, and that they were staying in the motel room indicated by E.F. When confronted by a police officer, she first gave her maiden name, but later admitted that she was C.F. and confirmed that she was staying at the motel.
Bellinger saw that J.F. and Z.F.'s legs and feet were very dirty; they had dirt under their fingernails and a very bad smell. They also had bags under their eyes and appeared to be very skinny. Bellinger attempted to interview the children, but C.F. denied her permission. Bellinger nevertheless determined that J.F. had Cheerios, an apple-cheese danish, and a banana earlier in the day. At 10 p.m., as Bellinger was conducting her investigation, a pizza that C.F. had ordered arrived, and the children ate it. C.F. also produced slices of bread, peanut butter, and many individual-sized cereal containers when asked what food she had for the children.
On September 14, 2009, DYFS performed an emergency Dodd removal*fn1 and placed Z.F. and J.F. in foster care. Subsequently, the children were examined by a healthcare worker. They were underweight for their age, but not suffering from malnutrition.
DYFS attempted to obtain records about the children's home schooling, but only discovered records from Fulton, New York stating that Z.F. had been registered for first-grade home schooling during the 2006/2007 school year. E.F. and C.F. could not provide any records of their own to prove that they had home schooled the children. The children themselves could not provide much information about home schooling. They merely said that they "go to the library."
On September 16, 2009, DYFS filed a verified complaint for custody and order to show cause. The complaint alleged that Z.F. and J.F. were abused and neglected. C.F. and E.F. contested the removal. Judge Patricia M. Wild, J.S.C. determined that Z.F. and J.F. should remain in DYFS' custody while C.F. and E.F. attempted to secure suitable living arrangements and other resources. Approximately one month later, Judge Max A. Baker, ordered DYSF to return Z.F. and J.F. to the physical custody of their parents, conditioned upon the children remaining in school and their immunizations being brought up to date. Judge Baker also ordered that C.F. and E.F. attend psychological evaluations, couples counseling and parenting classes.
At a fact-finding hearing, before Judge Baker, DYFS presented testimony from Kelly, Bellinger, and E.F. E.F. and C.F. did not present any affirmative proofs.
At the conclusion of the hearing, Judge Baker found by a preponderance of the evidence that E.F. and C.F. had neglected their children. Specifically, the judge found C.F. and E.F. neglected their "children by failing to exercise a minimum degree of care in supplying [them] with adequate food, clothing, shelter, . . . education, and medical care." He found that DYFS had proven that the family had the financial ability to afford proper housing, clothe the children, enroll them in school, and ensure that they were clean with clean clothes. Moreover, the judge also found that the family had violated DYFS's safety plan by leaving the Rescue Mission and sleeping in the car.
With regard to the children's clothing and food, the trial judge found that C.F. and E.F. had failed to ensure their children were kept clean and well-fed. He noted that the family had access to a motel, yet had not showered the children or attempted to wash their clothes or otherwise ensure they had clean clothes to wear. As to food, the judge found they had not had a "proper meal" and that all C.F. had for them was "junk food."
The judge also found that C.F. and E.F. were not home schooling the children, who were behind in their studies. In addition, he noted that the children had not had regular checkups since 2001. Based on these findings, Judge Baker entered the judgments of abuse and neglect against C.F. and E.F., pursuant to N.J.S.A. 9:6-8.21. Because the family planned to move to New York, DYFS was ordered to refer the case to that state's protective services agency. E.F. and C.F. were ordered to provide a copy of their lease and proof that the children are enrolled in school in New York.
At the next compliance hearing, in June 2010, DYFS confirmed that the family had obtained housing in New York and that the children were in school. The litigation was terminated.
On appeal, C.F. contends:
THE LOWER COURT ERRED IN FAILING TO DISMISS THE COMPLAINT AS IT WAS NOT SUPPORTED BY SUFFICIENT FACTS AND THE COURT'S ASSISTANCE WAS NOT REQUIRED ON THE RECORD BEFORE IT (Not Raised Below).
THE TRIAL COURT'S FACTUAL FINDINGS INCLUDED SUPPOSITION, CONJECTURE, IRRELEVANT FACTS, AND ERRONEOUS CONCLUSIONS, CONSEQUENTLY ITS CONCLUSION THAT C.F. ABUSED AND NEGLECTED HER CHILDREN MUST BE REVERSED (Not Raised Below).
On appeal, E.F. contends:
THE JUDGMENT OF ABUSE AND NEGLECT WAS PRIMARILY BASED ON A FINDING THAT THE DEFENDANTS VIOLATED A SAFETY PLAN AGREEMENT, BUT THIS FINDING WAS BASED ON AN UNWARRANTED ASSUMPTION, AND WAS THEREFORE PLAINLY IN ERROR.
Purported Violation of the Agreement was the Basis of the Removal of the Children.
IF DYFS HAD INTENDED TO PROVE EDUCATIONAL AND OR MEDICAL NEGLECT AGAINST THE PARENTS IT COULD AND SHOULD HAVE PROVIDED DOCUMENTARY EVIDENCE OF SAME.
We reject all of these contentions.
Pursuant to N.J.S.A. 9:6-8.50(c), the trial court shall dismiss an abuse or neglect complaint when "facts sufficient to sustain the complaint under this act are not established, or the court concludes that its assistance is not required on the record before it." That is not the situation here. The trial judge's finding that J.F. and Z.F. were abused or neglected is entitled to deference. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). When a judge has applied the proper standards and found them satisfied on the basis of facts that "are supported by 'adequate, substantial and credible evidence' on the record," this court must uphold the findings. Id. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We intervene only if the trial court's determinations are based upon a misunderstanding of the law or the implications the court has drawn from its findings are "so wide of the mark that a mistake must have been made." Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), cert. denied, 117 N.J. 265 (1989) (quoting Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 337 (App. Div. 1978)).
Here, after careful review, we conclude that the record contains a preponderance of credible evidence to support Judge Baker's findings of neglect based on lack of shelter and education. We also conclude that Judge Baker applied the correct legal standards to the pertinent facts found. We discern no sound reason for disturbing the judge's findings and affirm substantially for the reasons set forth in Judge Baker's April 22, 2010 oral decision.