On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FN-21-105-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
Defendants K.H. (father) and L.S. (paternal grandmother) appeal from a May 20, 2009 order finding that they "neglected" K.H.'s fifteen-year-old daughter E.H. The finding was based on their refusal to permit the Division of Youth and Family Services (DYFS or Division) to remove E.H. from their home and place her in a residential facility. We reverse the order on appeal and remand for entry of an order vacating the May 20 order and removing defendants' names from the Central Registry.
The child, E.H., had a long psychiatric history, which included
fabricating claims of abuse, and cutting herself. Her mother was
deceased and in 2006, she was placed with her father and his mother at
the grandmother's house. By all accounts, she was very difficult to
care for. Beginning in March 2008, DYFS had been trying to convince
the grandmother and the father to allow the child to be placed in a
specialized residential facility, but they had refused. The child was
removed from defendants' home on July 22, 2008, on an emergent basis
(DODD removal), after she first claimed that the grandmother abused
her and then asserted that she was afraid to stay at the grandmother's
At the hearing on July 24, 2008, following the DODD removal, the grandmother denied either hitting the child or subjecting her to emotional abuse. The grandmother also testified that she was now willing to have the child placed in a residential facility. The judge expressed his understanding that the child was "out of control" and the grandmother could not handle her any more. A residential placement was not then available, however, DYFS had placed the child in foster care. The DYFS attorney urged the court to make a finding of abuse of some kind so that the Division could continue its custody of the child. The judge found there was an insufficient basis to credit the reports of physical abuse, but he credited testimony from the caseworker that she had personally seen and heard the grandmother yelling at the child, calling her a "slob" and a liar and telling her that nobody wanted her. At this hearing, no legally competent evidence was presented that the father committed any abuse or neglect and the judge made no findings concerning the father.
By the next hearing, which was held before a second judge on September 3, 2008, the DYFS attorney reported to the court that the child had been placed at the Hunterdon Youth Shelter and then at Plaid House,*fn1 where she was "doing wonderfully." The child did not want visits with her father or grandmother and they had "stated that they do not want visits." The grandmother's attorney agreed that the grandmother would forgo visits at that point and would agree that visitation should be at the child's option.
At a case management conference on December 17, 2008, the child was reportedly still doing well at Plaid House. The grandmother's attorney indicated that the grandmother was not anxious to visit with the child, because she felt that every time she had contact with the child, the child falsely accused her of verbal abuse. The attorney also told the judge that the grandmother was "not really looking to have [the child] come back to stay with her."
The fact finding hearing began on May 20, 2009. At that point, the child was sixteen. The Division's attorney candidly stated to the judge that the agency was not alleging abuse or neglect based on claims of physical or emotional abuse. Rather, she conceded that the "sole theory" on which the agency was proceeding was "that the defendants refuse to comply with the recommendations of the Care Management Organization (CMO) and the therapist working with the family to put [the child] in residential treatment." She and the Law Guardian asserted that the child's expressed fear and repeated emotional crises were symptoms of her need for placement. They also based their case on the fact that the grandmother and father did not want the child to return to their home, and the child did not want to return. The agency claimed that constituted "abandonment."
DYFS case worker Shaquelle Newton testified that on July 21, 2008, the Division received a report from the child's school that the child was complaining that her grandmother hit her with a coat hanger and her father was threatening her. The agency later determined that those allegations were not credible, and was aware that the child had a history of "mak[ing] up stories." However, after having the child examined by a psychologist, the agency determined that she needed to be in a residential placement. After the grandparent and father refused to allow the placement, the agency took custody of the child.
Newton testified that when she went to the grandmother's house on July 22, 2008 to interview the child, she was only able to speak to the child alone briefly. The grandmother insisted on coming into the room and trying to correct the child's statements to Newton. When the child went outside, Newton also heard the father curse at the child and yell at her to come back in the house. Newton testified that the child seemed intimidated, and stated that she was afraid to stay with her grandmother and her father. Newton testified that, prior to July 2008, the Division had been trying for several months to convince the grandmother and the father that the child needed a residential placement. They were resistant. The grandmother told Newton that she thought she could handle the child and she did not want the child to feel abandoned. At a May 28, 2008 visit, the grandmother told Newton that not all of the experts were recommending a residential placement ...