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New Jersey Division of Youth and Family Services,*Fn1 v. M.J

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 9, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
v.
M.J., DEFENDANT-APPELLANT. IN THE MATTER OF S.G. AND K.G., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-365-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2012

Before Judges Grall, Simonelli and Accurso.

In this Title 9 matter, defendant M.J. appeals from the October 14, 2011 Family Part order, which found by clear and convincing evidence that she had abused or neglected the children of defendant K.R. pursuant to N.J.S.A. 9:6-8.21c(1), (2) and (4)(a) and (b).*fn2 Defendant contends the court erred in finding her guilty of abuse and neglect because the evidence did not establish she qualified as a "parent" under N.J.S.A. 9:6-8.21a. Defendant also contends the court lacked jurisdiction, and her involvement in this matter must be resolved in criminal court. We disagree with these contentions and affirm.

Because defendant does not dispute that the children were abused or neglected, we focus on the evidence relevant to whether she qualified as a "parent or guardian" under N.J.S.A. 9:6-8.21a. K.R. has two children: Karla, born in April 2004, and Samuel, born in March 2005.*fn3 K.R. had a third child, Karen, who was born in April 2003, and died on May 22, 2011, from complications of an unattended and untreated fractured femur, and severe malnourishment. The medical examiner ruled Karen's cause of death a homicide.*fn4

Defendant met K.R. at church and the two became friends. In August 2010, defendant moved in with K.R. and her three children. Defendant was in the home on May 22, 2011, when Karen died, as were K.R. and her other two children.

On May 23, 2011, caseworkers from respondent New Jersey Division of Youth and Family Services (Division) spoke to Karla. According to the caseworkers, Karla identified K.R. as her "dark-skinned mother" and defendant as her "light-skinned mother," and said she lived with her "two mothers" and sometimes went outside with her "other mother," meaning defendant.*fn5 The caseworkers also reported that Karla said "both mothers" normally left the children alone in the apartment for long periods of time and put them in a room with soup, bread, and a bucket to use as a toilet; tied them to a radiator; dragged and carried them around the apartment because they could not walk; fed, home-schooled and taught them Bible studies, and bathed, and slept with them; and physically disciplined them. Karla included defendant in a picture she was asked to draw of her family, and said she feared defendant because defendant would hurt her. According to the Division's pediatrics and child abuse expert, on May 23, 2011, Karla said that "both Mommies" would hit the children with objects.

The caseworkers spoke to Samuel on May 24, 2011. According to the caseworkers, the child said that "the mothers" would tie the children to the radiator all day when they left the apartment and that "both mothers" would hit the children with objects.

K.R. told a Division caseworker that defendant lived with her and the children, and she trusted defendant to discipline and spank them. She also confirmed that defendant was present in the home when Karen died.

Defendant told a Division investigator that she lived with K.R. and the children. She described the children's daily activities in which she participated, and admitted she helped bathe, care for, discipline, and wash the children's clothing, cooked for and taught them, hit them with objects, and tied them to a radiator.

The trial judge concluded that defendant qualified as a parent or guardian under N.J.S.A. 9:6-8.21a. The judge found that no one other than K.R. and defendant cared for the children, defendant assumed the children's care "for at least several months," she bathed and participated in the children's normal activities, and physically disciplined and abused them. The judge determined that the children referred to and clearly viewed defendant as their "mommy" and "other mother." This appeal followed.

On appeal, defendant raises the following contentions:

I. THE COURT ERRED IN FINDING [DEFENDANT] GUILTY OF ABUSE AND NEGLECT UNDER N.J.S.A. 9:6-8[.]21 BECAUSE [THE DIVISION] FAILED TO SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT SHE IS A PARENT UNDER THE DEFINITION PROVIDED BY THE STATUTE.

II. THE COURT'S FINDING THAT [DEFENDANT] IS A PARENT UNDER N.J.S.A. 9:6-8.21 DOES NOT COMPORT WITH THE LEGISLATIVE INTENT OF TITLE

9.

III. THE SUPERIOR COURT, CHANCERY DIVISION, FAMILY PART LACKS JURISDICTION OVER CRIMINAL PROCEEDINGS.

Our Supreme Court has set forth the standards that govern our review of Title 9 matters as follows:

[A]ppellate courts defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record. Indeed, we recognize that because 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, 342-43 (2010) (internal quotation marks and citation omitted).]

"'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we review issues of law de novo and accord no deference to the trial judge's conclusions. State v. Smith, 212 N.J. 365, 387 (2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Where, such as here, there are mixed questions of law and fact, our review is de novo. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).

An abused or neglected child is defined in pertinent part as a child less than 18 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; . . . (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[.] [N.J.S.A. 9:6-8.21c(1), (2), (4).]

A "parent or guardian" is defined, in pertinent part, as "any person, who has assumed responsibility for the care, custody or control of a child." N.J.S.A. 9:6-8.21a. As used in Title 9, Chapter 6, "'[t]he person having the care, custody and control of any child', . . . shall mean any person who has assumed the care of a child, or any person with whom a child is living at the time the offense is committed, and shall include . . . a person who legally or voluntarily assumes the care, custody, maintenance or support of the child." N.J.S.A. 9:6-2 (quoting N.J.S.A. 9:6-8.21).

Defendant contends in Point I that the judge erred in finding her guilty of abuse and neglect under N.J.S.A. 9:6-8.21a. Relying on N.J.S.A. 9:2-13c,*fn6 N.J.S.A. 9:3-38d,*fn7 and V.C. v. M.J.B., 163 N.J. 200 (2000), defendant argues she did not qualify as a "parent" under the N.J.S.A. 9:6-8.21a because there was no evidence she had legal custody of or control over the children or established a parental bond with them, and she did not assume responsibility for the children's care or custody. She merely helped K.R. care for the children, and her mere presence in the home was insufficient to establish parenthood.

Defendant's reliance on N.J.S.A. 9:2-13c, N.J.S.A. 9:3-38d, and V.C. is misplaced. Title 9, Chapter 2 pertains to the care, custody, guardianship and support of children in general, N.J.S.A. 9:3-38 governs adoptions, not abuse or neglect cases, and neither statute is referenced in Title 9, Chapter 6, the chapter that governs this case. Thus, N.J.S.A. 9:2-13c and N.J.S.A. 9:3-38d do not apply here. V.C. does not apply as well. That case involved a third-party's action pursuant to Title 9, Chapter 2, for joint custody or visitation, not child abuse or neglect. V.C., supra, 163 N.J. at 214-25.

N.J.S.A. 9-8.21a applies here. The statute does not require that a "parent or guardian" have legal custody of the child. The statute includes those persons who have voluntarily assumed the responsibility for a child's care or lived with the child at the time the abuse or neglect was committed. The evidence in this case established that defendant lived with the children for many months during which they were severely abused and neglected. The evidence also established that defendant voluntarily assumed responsibility for the children's care. Her role with the children was much more than that of a helper who was merely present in the home. She assumed the role of mother in this case. She was present in the home on a daily basis, participated in the children's daily activities, fed, bathed, and home-schooled them, and supervised their religious activities. She also physically disciplined the children and abused them. We are satisfied that the record overwhelmingly supports the judge's determination that defendant qualified as a "parent or guardian" under N.J.S.A. 9:6-8.21a, and that she abused and neglected the children.

We have considered defendant's contentions in Points II and III in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.

This is not a criminal matter. It is a non-criminal Title 9 abuse or neglect matter. "[T]he Superior Court, Chancery Division, Family Part has exclusive original jurisdiction over non-criminal proceedings under [Title 9] alleging the abuse or neglect of a child." N.J.S.A. 9:6-8.24. "[I]f the matter in regard to the parent or guardian is referred to the county prosecutor by the Family Part or otherwise the Family Part may continue the proceeding under [Title 9] in regard to the child after such referral." N.J.S.A. 9:6-8.24(4)(d). Accordingly, the Family Part had jurisdiction over this matter.

Affirmed.


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