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

February 1, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.Y.M., DEFENDANT-APPELLANT.
IN THE MATTER OF D.Y.M., A MINOR.



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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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