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New Jersey Division of Youth and Family Services v. D.Y.M


February 1, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-546-10.

Per curiam.



Submitted December 19, 2011

Before Judges Sabatino and Fasciale.

After a fact-finding hearing, the Family Part determined that defendant, the mother of a seventeen-year-old daughter,*fn1 committed abuse and neglect in violation of N.J.S.A. 9:6-8.21. The court's determination arose out of events that led to the daughter's temporary emergency removal from the mother's home by the Division of Youth and Family Services ("DYFS" or "the Division"), at the mother's behest, in June 2010. The daughter was returned to the mother's care and custody four days later.

The mother now appeals the trial court's determination of abuse and neglect, arguing that the proofs are insufficient to meet the applicable statutory criteria. For the reasons that follow, we remand this matter for additional findings. In particular, the trial court should specifically address whether the proofs establish that the mother willfully abandoned her daughter according to the definition of abandonment set forth in N.J.S.A. 9:6-1 and N.J.S.A. 9:6-8.21c(5).

The record developed at trial reflects the following material facts. The daughter was born in December 1992. At the time of the incident in question, she was living with her mother at the mother's residence in Camden County. The two had been residing together since 2000. The daughter's father resides in a different part of the State and has a limited relationship with her. According to the trial testimony, the father previously molested his son and, consequently, can only see his children in the presence of a supervisor. He is not allowed to have the daughter stay overnight with him. At the time of the incident, the daughter was enrolled in high school and earning good grades.

Leading up to the incident, the mother and her teenage daughter had been having repeated interpersonal conflicts. Among other things, the daughter had been disrespectful, slammed doors, refused to clean up, pulled the mother's hair, and dragged the mother across the floor. It appears that the mother-daughter conflict was heightened by the fact that the daughter had antipathy towards the mother's fiance. The mother had called the police and DYFS on several previous occasions for assistance, but those contacts, which resulted in the provision of some counseling, unfortunately did not resolve the turmoil within the family.

Ultimately, at around 11:00 a.m. on June 24, 2010, the mother called DYFS, requesting that the daughter be removed from her home. DYFS offered the mother services through an agency known as "Perform Care," but the mother declined that offer, believing that the services would not be helpful. At that point, the daughter had locked herself in her room, and the mother urged DYFS to take the daughter out of the house. The mother was so frustrated that she told the DYFS screener that she might burn down her house unless her daughter was removed from the premises.

A responding DYFS worker came to the residence that afternoon, and the mother signed paperwork to allow the daughter to be removed on an emergency basis. The daughter was removed from the residence by DYFS at about 4:00 p.m. and was taken to a shelter.

Four days later, the trial court ordered that the daughter be returned home and that Family Preservation Services be implemented. Later that month, on the return date of the order to show cause, the court ordered that further counseling be implemented. These measures appear to have improved the household situation. According to representations made by the daughter's law guardian*fn2 at the fact-finding hearing in October 2010, the daughter gained considerable insight from the counseling sessions. The law guardian further reported that the daughter's relationship with her mother, with whom she was still residing about four months after the incident, had substantially improved.

The Division charged the mother with abuse and neglect under N.J.S.A. 9:6-8.21, based upon her actions, which ultimately led to the daughter's emergency removal. In her defense, the mother testified at the fact-finding hearing that she had been frustrated with her teenager's ongoing disrespectful behavior and the failure of prior counseling to improve the situation. The mother also asserted that she had called DYFS on June 24 to obtain help, not to harm her daughter. The mother did confirm that the counseling and services provided after the June 24 incident had improved the situation and that her relationship with her daughter had gotten "a lot better."

After considering the proofs, the trial judge concluded that the Division had established the mother's abuse or neglect by a preponderance of the evidence. In her oral decision, the judge acknowledged that the mother had experienced problems with her daughter. However, the judge also noted that the daughter was a good student, did not use drugs or stay out past curfew, and was not destructive or promiscuous. The judge did not regard the mother-daughter conflict in this case to be sufficiently severe to justify the mother's insistence that the daughter be removed. In her corresponding order dated October 19, 2010, the judge specifically noted that the mother "got upset with the child and refused help offered by the Division and demanded that the child be removed from her home causing the child to be placed in the shelter[,] and this placed the child at significant risk of harm."

On appeal, the mother argues that there was insufficient evidence to establish that she abused or neglected her daughter, under the legal tests set forth in N.J.S.A. 9:6-8.21c and the related statutes. The Division counters that the proofs were sufficient to sustain the trial court's conclusion.

We review the issues before us, according considerable deference to the Family Part judge's factual findings. We will not disturb the trial court's findings of fact so long as they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations and "feel for the case" based upon her opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise, appellate courts must give particular deference to fact-finding in family cases and to the conclusions that logically flow from those findings. See Cesare, supra, 154 N.J. at 413. However, we do not owe such deference to the trial court's interpretation of the law. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010).

The applicable statute, N.J.S.A. 9:6-8.21c, provides several alternative grounds for a finding that a parent has abused or neglected her child:

c. "Abused or neglected child" means a child less than [eighteen] years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; (3) commits or allows to be committed an act of sexual abuse against the child; (4) or 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 or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; (5) or a child who has been willfully abandoned by his parent or guardian, as herein defined[.]

The trial court's oral decision and related order did not specify the particular subsection of N.J.S.A. 9:6-8.21c upon which it based its ultimate conclusion of abuse and neglect. Based on the parties' briefs, the two subsections that could arguably pertain here are subsection c(4), i.e., the failure of a parent to exercise "a minimum degree of care," and subsection c(5), i.e., "willful[] abandon[ment]." For the reasons that follow, we have considerable doubts about whether the evidence in this case satisfies subsection c(4). The Division's proofs are potentially stronger, however, with respect to subsection c(5), although the trial court made no specific finding of such willful abandonment.

Pursuant to N.J.S.A. 9:6-8.21c(4), an "[a]bused or neglected child" includes "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 or guardian . . . to exercise a minimum degree of care[.]" In construing this provision, our courts have emphasized that the primary concern of Title Nine is the protection of children, not the culpability of parental conduct. State v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991). Our Supreme Court has instructed that a gross negligence standard should be employed in determining whether the parent or guardian had failed to exercise a "minimum degree of care," warranting a finding of child abuse or neglect under N.J.S.A. 9:6-8.21c(4). G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). In G.S., the Court held that "a 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." Id. at 181. Such behavior need not be intentional. Id. at 178. Compare Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309-10 (2011) (finding no gross negligence where a mother accidentally left her four-year-old son home alone, reasonably believing that his grandmother would be present there) with N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011) (upholding a finding of gross negligence where a father placed his ten-month-old child on a bed with no railings next to a radiator, despite his recognition of the potential danger of the situation).

The Supreme Court also has recognized that determining what constitutes abuse and neglect is a fact-sensitive inquiry. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). In particular, the assessment may vary based on the age of the child. Id. at 38 (noting that "[r]equiring working-age children to contribute to the support of the family is not an actionable reason to remove the child from the family home").

Here, a critical issue under subsection (4) of the statute is whether the mother's conduct on the afternoon in question was sufficiently extreme to amount to a grossly negligent deprivation of a minimum degree of care. The trial judge made no specific finding on this point. Noting the absence of such a finding, we have considerable reservations about concluding that the evidence established the mother's violation of subsection (4) as a matter of law.

The daughter was seventeen years old at the time of the incident that precipitated this case. As such, she was not a young child with an intensive need for continuous supervision or care. Additionally, the record does not reasonably support an inference that the mother was aware that having DYFS remove the daughter from the home would expose her to risk of serious injury.

Although we surely do not commend the mother's resistance to the additional counseling offered by DYFS that day, we also appreciate that the mother was in a stormy and difficult situation with her teenager and had called DYFS in a state of exasperation to abate the escalated conflict. The child's father was not an option, and previous efforts to stabilize the mother-daughter relationship had failed. Mindful of our limited scope of review, we nonetheless rule out subsection (4) of the statute as a legal basis to sustain the trial court's order on this particular record.*fn3

The Division's proofs are arguably stronger, however, on the alternative statutory criterion of abandonment. Pursuant to N.J.S.A. 9:6-8.21c(5), an "[a]bused or neglected child" includes "a child who has been willfully abandoned by his parent or guardian." "Abandonment," in turn, is defined in another portion of Title Nine 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 (emphasis added).]

See also Lavigne v. Family & Children's Soc'y of Elizabeth, 11 N.J. 473, 480 (1953) (describing abandonment, albeit in a context preceding the enactment of Title Nine, as conduct that "'evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child'" (quoting Winans v. Luppie 47 N.J. Eq. 302, 304 (E. & A. 1890))).

The trial judge did not expressly address whether the mother's conduct met any of these criteria for abandonment under subsection (5). The elements of subsection (5) are slightly different from those of subsection (4), which focuses largely upon the risk of harm to the child. Subsection (5), on the other hand, can be proven even where the risk of harm required under subsection (4) is not established. In particular, a parent may commit abandonment under N.J.S.A. 9:6-1(a) by "willfully forsaking" a child, or under N.J.S.A. 9:6-1(c) by forcing the child to be housed by the government or a private agency that lacks a legal obligation to do so. These latter possibilities do not turn upon an analysis of risk or danger.*fn4

Because the trial judge did not expressly analyze the record in light of the abandonment criteria of N.J.S.A. 9:6-1 and N.J.S.A. 9:6-8.21c(5) and because the proofs on that point (including the mother's state of mind) are not entirely clear, we remand this matter to the Family Part for additional findings of fact on that discrete issue. The trial court, in its discretion, may choose to reopen the record for additional proofs germane to the abandonment issue. The remand shall be completed by April 1, 2012. Following the completion of the remand proceedings, any aggrieved party may seek further review by filing a request for such review with this court within forty-five days: in the case of the mother, a revised notice of appeal; in the case of the Division, a notice of appeal. Following receipt of such a request, the case manager will issue an appropriate post-remand briefing schedule, and the matter will be recalandered.

Remanded for further proceedings consistent with this opinion.

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