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New Jersey Division of Youth and Family Services v. S.M.H


June 1, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-339-10.

Per curiam.



Argued April 24, 2012 --

Before Judges Reisner and Hayden.

Defendant S.H. (Susan)*fn1 appeals from the August 6, 2010 Family Court order finding that she neglected her sixteen-year-old daughter A.M.D. (Ann). For the reasons that follow, we affirm.

The record reveals the following facts. On May 16, 2010, the Division of Youth and Family Services (the Division) received a referral, reporting that Susan had informed the caller that she was putting her daughter Ann and Ann's two-month-old son J.T. (Jon) out of her home. That day two Division investigators went to Susan's home and found Ann sitting on the front steps with Jon although she had a key to get into the house. Ann stated that Susan had threatened to "kick her out" the previous day, but Ann had called the police. Then, earlier in the day, Susan sent Ann a text message telling her she must go to a shelter.

During the interview with the investigators, Ann reported that she and Jon lived with her mother, her nineteen-year-old sister D.D. (Donna) and her fifteen-year-old brother E.D. (Elroy). Susan received Ann's SSI benefits and food stamps for Ann and her baby. Jon's nineteen-year-old father was incarcerated in New York. Ann also told the investigators that she did not get along with her sister Donna, that they had engaged in several physical altercations, and that Donna and Susan smoked pot almost every night. However, Ann said that she felt safe in the home and wanted to stay because she had no place to go.

Donna came home during the interview but refused to speak to the investigators. Susan then phoned Ms. Muir, the principal Division investigator, and stated that she wanted Ann to leave the home. Susan soon appeared and advised the investigators that she wanted Ann out of the house because the child was very disrespectful, cursed her, and would not follow any rules. For example, she stated that Ann and Jon's father had a physical altercation, during which he kicked in the front door.

According to Ms. Muir, "[Susan] was not willing to keep [Ann]. She wanted her out. She was pretty adamant about having her leave the house today - - that day." The Division offered to provide services to stabilize the family but Susan refused them. The Division had previously offered to provide services to the family through Perform Care, which would give counseling and other services to help them work through problems. Instead, Susan stated that "if [Ann] doesn't leave then I'm going to jail for putting my hands on her." At that point Donna said that they had the bail money ready. Susan at first denied, then admitted, that she smoked pot in the home. She also informed the Division that no family members were willing to take Ann into their home due to her behavior issues.

At that point in the interview, Susan and Ann began to engage in a heated argument. Considering everything going on in the home, Ms. Muir assessed the situation as dangerous for Ann and Jon and made an emergency removal of both minors. The next day, Elroy was interviewed in school, and he acknowledged that his mother and Ann did not get along. However, he stated that he was treated well and felt safe. As a result, the Division did not remove him from the home.

At the fact-finding hearing on August 6, 2010, Ms. Muir, the Division investigator, was the only witness. The Division argued that the mother could have accepted the services offered, obtained a restraining order against the boyfriend, and worked with the Division to find a "Mommy and Me" program for teenage mothers. The mother argued that she never harmed Ann or prevented her from remaining in the home but she was merely expressing her frustration and attempting to get help.

In her cogent oral decision following the hearing, Judge Margaret Foti stated:

The case presented today is one of a mother interacting with a sixteen year old daughter, who also has a . . . three month old baby, all under [Susan]'s roof. There is no question and it is very clear to me from the testimony and the record that this is a difficult child, a teenager who herself has a baby, a teenager who has had a boyfriend coming in and out of the home. . .

But the record is also clear that the Division has been working with this family. The Division had offered [Susan] . . . the services of Perform care, a subcontractor to the Division, who could have offered counseling services to this family and other services for [Susan] to work through this very difficult situation with this adolescent.

[Susan] is the parent. She is not the victim. [Ann] is the child. She's a difficult child. She's a challenging child.

But she's a child. And whether [Susan] physically locked the door or continually just stated to this child that you must leave my home and specifically stated that if [Ann] didn't leave . . . [Susan] was going to go to jail because she was going to put hands on her.

The judge acknowledged that Ann was clearly a challenging child and Susan was in a problematic situation, stating:

There are things that mothers can do when they are presented with difficult challenges. There are services that parents can ask for and receive when they are dealing with difficult children. The appropriate response is not to threaten to throw your child out of the home. The appropriate response is to seek help in order to address the issue.

Based upon Susan's unwavering insistence that the child must leave, her knowledge that Ann did not have any place to go with her infant, her threats of physical violence if Ann failed to leave, and her expressed willingness to go to jail rather than keep Ann in her home, the judge found that Susan's actions put Ann at a substantial risk of harm, which constituted abuse and neglect under N.J.S.A. 9:6-8.21c(4).*fn2

After the fact-finding hearing, the litigation continued. Ann had trouble staying in any placement due to her behavioral issues. After several unsuccessful placements, Ann returned to live with Susan in February 2011. By the time of the July 26, 2011 hearing, Susan had moved to Florida with Elroy and refused to give the Division her address. Ann was living with her father in Queens and Jon was in the custody of the Division. With the consent of the parties, the court terminated the litigation on July 26, 2011. This appeal followed.

On appeal, Susan argues that the finding of abuse and neglect must be reversed because these facts do not meet the legal definition of abuse and neglect. She maintains that she never forced Ann out of the house but was merely expressing her frustration at a disrespectful teenager, which did not place the child at any risk.

We disagree.

The court's authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards. N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). These safeguards are designed to serve two functions: to protect innocent parents against government interference with their fundamental right to parent and to spare children unnecessary emotional trauma. Ibid.

The Division brought this case under Title Nine, N.J.S.A. 9:6-1 to -8.73, the statute covering non-criminal abuse and neglect of children. Title Nine requires that, after a child has been temporarily removed from his or her parent's custody, a fact-finding hearing be held to determine whether the Division has shown by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.44. The evidence presented at a fact-finding hearing must be competent, material and relevant. N.J.S.A. 9:6-8.46b.

In the Title Nine provision at issue here, an "abused or neglected" child is defined as one who is less than eighteen years of age and 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 (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.

[ N.J.S.A. 9:6-8.21c(4).]

An inquiry under N.J.S.A. 9:6-8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly "protect children from a wide range of conduct that clearly qualifies as neglect." G.S. v. Dep't of Human Servs., 157 N.J. 161, 180-81 (1999). In G.S., the Court explained that "[t]he phrase 'minimum degree of care'" implies "something more than ordinary negligence" and "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)).

The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). These findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Nevertheless, the trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378.

Based upon our review of the record, we are persuaded that substantial credible evidence supports the trial court's determination that Susan placed her daughter Ann at a substantial risk of harm by attempting, under threat of physical violence, to force her and her infant son out of the home when they had no place to go. We reject as unsupported by the record Susan's claims that the threats were mere empty expressions of her extreme frustration at her disrespectful teenage daughter. We agree with Judge Foti that the proper response to a troubled teenager is to reach out to the authorities for assistance, not put the child out on the street. Instead of accepting assistance, by her actions Susan acted with reckless disregard for Ann's safety.

Accordingly, we affirm substantially for the reasons stated by Judge Foti in her opinion issued July 26, 2011.


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