On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-0119-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2011
Before Judges Messano and Yannotti.
Following a fact-finding hearing, the Family Part judge concluded that defendant H.B. "was neglectful and placed [her] children at risk due to her lack of intervention and supervision given the history of violence in the home." The Title Nine litigation was ultimately terminated eight months later as a result of defendant's "cooperat[ion] with . . . and compli[ance] with services" provided by the Division of Youth and Family Services (DYFS or the Division), thereby eliminating "any concerns of abuse or neglect."
Defendant now appeals and raises the following issue for our consideration:
THE FINDING OF ABUSE AND NEGLECT AGAINST [DEFENDANT] WAS NOT SUPPORTED BY COMPETENT MATERIAL AND RELEVANT EVIDENCE We have considered this argument in light of the record and applicable legal standards. We reverse.
On January 8, 2009, defendant's son, Charles, arrived at school with "bruises on his face and body."*fn1 Charles told "the school resource officer that his brother, [Ronald], beat him up" the prior evening while defendant was at work. Ronald was 18 years old at the time, Charles was 16, and their sister, Vicky, was 14. All three children were attending school, residing at home with defendant, and present in the home when the incident occurred.
The Parsippany-Troy Hills Police Department was contacted and referred the matter to the Division on January 16. Maria Perez, a Division case worker, visited the family home later that evening to investigate the report. Ronald told Perez that Charles came home on the evening of January 7 "in a bad mood." When Ronald tried to calm his brother down and touched him on the shoulder, Charles "retaliated by kicking him in the chest," and "hit him with a [piece of] plywood on the forehead." Ronald struck Charles in self-defense. Ronald was subsequently arrested for simple assault and had a municipal court appearance scheduled for February.
Defendant was belligerent, declined to be interviewed, called Charles, who was not home, "and told him that DYFS was in the home to pick him up." After the call, defendant told the caseworker that Charles would not be coming home, and the Division could "have fun" looking for him.
Perez told defendant that either Ronald would have to leave the home, or Charles and Vicky would be placed in protective custody while the Division investigated "the violence between the children" and the family's "history with the police."
Defendant refused to ask Ronald to leave, and provided the Division with contact information for her adult daughter who was willing to take custody of Vicky, but not Charles. Defendant reported that she had scheduled a psychological evaluation of Charles, but he did not attend and "she [wa]s not able to physically pick him up and take him to counseling." Defendant noted that she had previously asked the Division for assistance with no success.
Perez effected an emergency removal of Vicky. In the process of transporting Vicky to her older sister's home, she told Perez that Ronald had also hit her -- "'not hard, we play fight.'" Vicky did not witness the incident on January 7, but told the caseworker that her brothers often hit her mother.
Charles was located, and Perez notified defendant that he would be taken to the Morristown Youth Shelter. Defendant "stated that she understood and . . . perhaps now [Charles] could get help," adding that "her son's main issues [we]re anger and not listening to authority figures." During his first day at the shelter, Charles became enraged and used profanity when told he could not smoke and needed to relinquish his iPod and cell phone to shelter personnel. Charles left the shelter twice that day without authorization.
On January 21, 2009, the Division filed a verified complaint against defendant, seeking an order granting care, custody, and supervision of Charles and Vicky. At the hearing that day, the Family Part judge noted an extensive history of domestic disturbances, police involvement, and Division referrals. The judge granted DYFS custody and care of the two children, noting the January 7 incident "[wa]s perhaps more problematic than it would be in isolation."
The police reports considered by the judge indicated that during 2005, the police responded on four separate occasions to investigate claims that defendant and the children had been fighting with one another. Several of those calls for assistance were made by defendant.
In 2006, defendant called the police to respond to incidents involving Ronald on two occasions: once, when he threw a flashlight damaging a wall; and again when he and Charles were fighting. Defendant told the police that "she felt she could not control her son [Ronald] and . . . had similar problems in the past with ...