Opinion
DOCKET NO. A-5613-13T2
02-02-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.S., Defendant-Appellant. IN THE MATTER OF W.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Vonnetta Fermin, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0387-13. Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Vonnetta Fermin, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.S. (Sally) appeals from the August 1, 2013 fact-finding order, memorializing the family judge's determination that she abused and neglected her child. We conclude from our review of the record that the competent, material and relevant evidence is sufficient to sustain the judge's findings. We affirm.
We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.
Sally adopted W.S. (Wally) in March 2007 when he was four weeks old. When he was born, Wally tested positive for cocaine and opiates. Wally has physical ailments and exhibits chronic behavioral problems, including inattention, hyperactivity, and impulsivity.
On April 4, 2013, Sally was contacted by Wally's school, advising her that he was misbehaving and she needed to come to the school. She did so and when she arrived, Sally was able to calm Wally down and she returned to work. Later that afternoon Sally received a call from the principal telling her that Wally had to be picked up and he was being removed from the after-school program because he was completely out of control. When told to "sit out," Wally became upset, threw a chair at a teacher and started punching her.
Sally met with the principal and the after-school teacher. She testified that Wally, however, refused to leave with her and she left. The principal called Sally in her car, and asked if she had left her son. Sally replied that "he won't come. . . . I can't keep doing this. I don't feel well. My chest is hurting me. I'm constantly trying to do everything right and find services for him and nothing's working." Although the principal informed her that the police and the Division of Youth and Family Services would be called, Sally said that she understood but she just "[couldn't] do it anymore."
When the police contacted Sally at home and told her that she needed to take Wally home, she replied: "I can't right now. I said . . . I don't feel well, my chest is hurting, and I know how he is." Sally also spoke to a Division caseworker, telling her that she could not take Wally home because she felt his behavior required punishment. After the officer spoke with the caseworker, Sally was arrested. The caseworker testified that she spoke with Sally at the police station, to ensure she understood the consequences of her actions. Sally stated that "[s]he was tired of his behaviors and she didn't care anymore." Sally was advised that if she left Wally she would be substantiated for abandoning him, to which she continued to reply that "she didn't care."
The caseworker testified that Sally told her that when she disciplines Wally she takes things away from him and beats him.
Sally was released from the station and no criminal charges were filed. That same night, the Division executed a Dodd removal and Wally was removed from her care.
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. --------
On August 1, 2013, after a fact-finding hearing, the trial judge found that Sally had abused or neglected Wally pursuant to N.J.S.A. 9:6-8.21(c)(5), by willfully abandoning him. On October 31, following Sally's completion of court-ordered services including a psychiatric evaluation and therapy sessions, Wally was returned to her custody and the case was subsequently dismissed in June 2014. Sally now appeals the August 2013 fact-finding order.
The scope of our review of a trial court's fact-finding function is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citation omitted). Particular deference should be given to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. at 412-13. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made," they should not be disturbed, even if the reviewing court would not have made the same decision. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). In using that standard, we find no basis to disturb the trial judge's conclusion that Wally was abused and neglected, as defined in N.J.S.A. 9:6-8.21(c).
We first address Sally's contention that the evidence was insufficient to establish, by a preponderance of the evidence, that she abused and neglected her child; specifically, she argues that the judge's conclusion that she "willfully abandoned" her child is not supported by the facts in this case.
"In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). "The fact-finding hearing is a critical element of the abuse and neglect process." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). "The judge, as the fact-finder, is there 'to determine whether the child is an abused or neglected child as defined [by statute].'" Id. at 264 (quoting N.J.S.A. 9:6-8.44).
N.J.S.A. 9:6-8.21(c)(5) defines an "abused or neglected child" as including "a child who has been willfully abandoned by his parent or guardian." The judge found that Sally abandoned her child under N.J.S.A. 9:6-1(c), which defines abandonment as:
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.
In deciding a case of abuse or neglect, the court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). Here, the trial judge properly relied on the totality of the circumstances to determine that the Division had met its burden. The judge stated:
[Sally] received another call from the principal that she had to go back to the school. . . . She got there, found out what the situation was, and as we heard from her testimony, she left her child behind. . . . [S]he drove home.
The principal called her and told her that she had to return to pick the child up and she told the principal that she's made the decision that she's not going to return. The principal said she was going to call the police, call [the Division], and [Sally]
said that she has [sic] made the decision not to return.
She . . . [testified] that . . . a police officer . . . met with her in the vicinity of her residence. And for whatever the reason, she did not drive back to the school on her own, but she was driven back by the police. And she continued to refuse to take her child.
. . . .
[W]hen she was told by a [Division] employee that if she were to take the child[,] services can be provided, she refused. . . . And she also said that she . . . wasn't feel[ing] well. . . . She said she was overwhelmed, she was stressed out, and she was concerned because [Wally] had a history of being aggressive and she would have to protect herself, she said, and she didn't want to injure him.
The judge determined that Sally made a conscious and deliberate decision on that afternoon to abandon her child.
Based on our review of the record and the applicable legal standards, we conclude that the evidence presented during the August 1, 2013 fact-finding hearing is sufficient to support the determination that Sally abused and neglected her child. Despite interaction with school officials, the police and a Division caseworker, Sally made the decision to not take her child home with her on the day of this incident. Therefore, under the statute she willfully abandoned him, constituting abuse and neglect. We therefore affirm the trial judge's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION