NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. G.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5568-04T45568-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

G.K.

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF C.B., B.K., C.K., C.K., and

T.K.,

Minors.

_______________________________

 

Submitted: December 7, 2005 - Decided:

Before Judges Axelrad and Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Cape May County, FN-05-34-03.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent New Jersey Youth and Family Services (Michael J. Haas, Assistant Attorney General, of counsel; Frederick A. Mick, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor children, C.B., B.K., C.K., C.K., and T.K. (Rebecca J. Miller, Assistant Deputy Public Defender, on the brief).

PER CURIAM

G.K. appeals from a November 23, 2004 judgment of abuse and neglect against him and his wife R.K. based on a finding of their failure to provide adequate shelter for their four children, B.K., Caleb K., Cody K., and T.K., and his stepson C.B. At the time, the children ranged in age from one and one-half to nine years old. The matter was ultimately resolved in G.K.'s favor with the trial court ordering that the children be returned to their parents' custody and the litigation be terminated after the six-month compliance review on May 4, 2005.

On appeal, G.K. argues the record does not support, by a preponderance of the evidence, a finding of abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(a). We agree and reverse.

DYFS initially became involved with the family in October 2002, and was awarded care and supervision of the children. At the hearing on November 18, 2004, C.B.'s father P.A. was prohibited from contact with his son. Throughout the course of the litigation, DYFS provided the family with numerous child protective services. DYFS received a referral on July 29, 2004, alleging defendants' home had been without gas service since June 29, 2004, and was "dirty and cluttered." In response to the referral, a DYFS caseworker went to the home and spoke with the children. The caseworker described the condition of the home in her referral response report as follows:

During the investigation, the conditions of the home were found to be deplorable. There appeared to be cut up old hot dogs on the floor, old pizza crust and other trash on the floor pouring over onto the floor from the trash can, and dirty piled up dishes on the sink and stove. Flies were flying around on the trash. As worker viewed the kitchen area the floor was felt to be slippery, and there was dirt patches stuck on the floor throughout the kitchen. There were also clothes all over the floor by the living room steps downstairs and clothes laying on the steps going upstairs. There was a pile of clothes in a basket that was tumbling over onto the floor blocking the doorway of [C.B.'s] bedroom. There were also wooden boards, black trash bags, other furniture, and a beer bottle throughout the sun-porch area. Worker had to step over the things in the sun-porch to get to the main door. . . .

At the fact-finding hearing on November 18, 2004, DYFS alleged that G.K. and R.K. had placed their children at a substantial risk of harm because they allowed the children contact with P.A. despite him being disqualified from having such contact pursuant to N.J.S.A. 9:4-2.1, and they failed to provide adequate shelter for their children. DYFS introduced the caseworker's reports relative to the July 29 referral and a series of photographs taken of the home by the caseworker. DYFS did not call any witnesses.

G.K. testified as to the lack of gas services in the house consistent with his explanation to the caseworker contained in her response report. He acknowledged the family had been without heat, hot water and gas for cooking for several weeks. G.K. explained that they did not receive a gas bill for the first several months they lived in the apartment and he was unaware he had to pay for gas. G.K. was unable to straighten out the problem when he contacted the gas company after the gas was turned off because he did not have the account number. He received a bill about two weeks before the caseworker's visit, but it was for $847.11, which was more than he could afford. When G.K. contacted the utility company to arrange a payment plan, he had been told the bill had to be paid in full in order for the gas to be turned back on. G.K. had sought assistance from the Bureau of Public Utilities, and expected a representative to contact him on the day of the caseworker's visit.

Because of the lack of gas for cooking, the family would either cook food on the grill or would eat at McDonalds. The children were bathed either in cold water at their house, which the boys preferred, or they went over to the home of G.K.'s brother-in-law to take a hot bath. As it was summer, there was no issue of inadequate heat. G.K. further explained that the clutter on the front porch belonged to their landlord who was dilatory in cleaning up, despite several requests.

The trial court issued a memorandum of decision and order on November 23, 2004, finding both parents had neglected their minor children by failing to provide adequate shelter pursuant to N.J.S.A. 9:6-8.21(c)(4)(a) based on the cumulative evidence of the unsanitary kitchen and temporary lack of gas service to the home. The court acknowledged the shortcomings of DYFS' proofs and gave "little weight" to the photographs because of the lack of explanation of the rooms depicted, noting:

The Division really does need to come to grips with the fact that an Exhibit like P-8 (the photographs) is a relatively useless package in the form in which it was presented. If it wishes to proceed without testimony at a fact-finding . . . it ought to think about presenting a report from the worker who took the pictures with narrative that matches up to specific pictures . . . They might be more persuasive if one knew, in each instance, what/whose rooms we were looking at -- and how those rooms are connected with each other.

The court made no credibility assessment of G.K.'s statements to the caseworker at the time of the home inspection or of his testimony at the hearing. The court's sole fact finding and legal conclusions consisted of the following:

The caseworker's narrative report in P-5 offers some disturbing details ("trash container overflowing in kitchen covered with flies," "kitchen floor slippery with grease, old food and caked-in dirt," "chopped discolored hot dogs on floor"). Beyond these things, there was the original point of the referral -- that gas service to the house had been disconnected for some weeks.

[R.K.] confirmed that there had been no gas "for about two weeks". The practical impact was that there was no hot water and no ability to cook food.

. . . .

I believe that the Division has established, by a preponderance of the evidence, that [defendants] were neglectful of their children because they failed to provide "adequate shelter" as that term is used in N.J.S.A. 9:6-8.21(c)(4)(a). I take into account here the cumulative effects of the evidence, noting that I would probably not be able to make a finding if any one element (photos, caseworker narrative, disconnected gas) stood on its own.

Based on our review of the record, we are not satisfied that DYFS sustained its burden of proof, by a preponderance of the evidence, of abuse and neglect under the statute. The Legislature has defined an "abused or neglected child," in pertinent part, as:

a child [less than l8 years of age] 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 . . . 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 . . . .

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

The primary concern of Title 9 is the protection of children, not the culpability of parental conduct. State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. l99l). We have held that although substandard, dirty and inadequate sleeping conditions are unfortunate incidents of poverty, they do not, by themselves, establish child abuse or neglect. Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff'd, 74 N.J. 196 (1977) ("Adoption of such facts as a basis for a finding of child neglect or abuse might result in mass transfers of children from ghettos and disadvantaged areas into more luxurious living accommodations but with resultant destruction of the natural parental bond [which] clearly was not the design of the statute nor the intent of the Legislature.").

The record does support a finding that the kitchen was filthy and had not been cleaned in quite some time, or if it had, it was an inadequate job. Moreover, the porch was untidy and cluttered, and there were clothes strewn around the house. The record, however, is devoid of testimony or evidence that these conditions placed the children at risk. In fact, the caseworker's report acknowledged that the children's bedrooms appeared clean and appropriately furnished.

Moreover, DYFS presented no evidence the children were malnourished, filthy, or had inadequate clothing. Nor was there evidence the interrupted gas service exposed the children to a risk of harm. The family had electricity in the home and, as it was summer, there was no need for heat. The uncontroverted evidence was that G.K. had made appropriate alternative bathing and eating arrangements for the children while he was attempting to have the gas service restored. Moreover, there was no evidence presented by DYFS or finding by the court that G.K. had the financial means to provide adequate shelter for his family and failed to do so. Nor could such a finding have been made on the record below. The sole evidence presented was G.K.'s explanation of non-receipt of the monthly gas bills, his inability to pay the $847.11 gas bill and his attempt to obtain gas company and agency assistance, which was not disputed by DYFS and which was presumably credited by the court.

 
Reversed.

G.K.'s wife did not appeal.

The Complaint was amended on August 2, 2004, adding the parties' youngest child who was born on June 8, 2003, and the allegations addressed at the November l8, 2004 hearing.

A significant portion of the fact-finding hearing dealt with this allegation. The court ruled against DYFS on this issue, finding the evidence did not support the allegation that R.K. and B.K. "did (or failed to do) anything which caused or facilitated interaction by the children with [P.A.]." DYFS did not appeal that determination. Therefore, this opinion will omit any reference to that issue.

(continued)

(continued)

9

A-5568-04T4

RECORD IMPOUNDED

December 19, 2005