DIVISION OF YOUTH AND FAMILY SERVICES v. J.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5953-06T45953-06T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

J.L.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP OF

J.L. and J.L.,

Minors.

_____________________________________________

 

Submitted February 5, 2008 - Decided

Before Judges Fuentes and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Mercer County, FN-11-27-06.

James M. Colaprico, attorney for appellant.

Anne Milgram, Attorney General, attorney for

respondent (Lewis Scheindlin, Assistant

Attorney General, of counsel; Vanessa G.

Cardwell, Deputy Attorney General, on the

brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors J.L. and J.L. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

The Division of Youth and Family Services (DYFS) filed a complaint charging defendant J.L. with abuse and neglect of his daughter, Y.D.L., in accordance with N.J.S.A. 9:6-8.21 to -8.73. As provided by statute, fact-finding and dispositional hearings were conducted. See N.J. Div. of Youth and Fam. Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003). The judge found that defendant neglected Y.D.L. and entered an order reflecting that determination. A final order concluding the litigation was entered after conditions in the home were remediated. See N.J.S.A. 9:6-8.51. Defendant now appeals from the finding of neglect. See L.A., supra, 357 N.J. Super. at 165. He contends that the trial court's finding of neglect must be reversed because it is supported by incompetent evidence and because relevant evidence was improperly excluded. Because the judge's decision is supported by adequate, competent and credible evidence, we affirm. R. 2:11-3(e)(1)(A). We add only a brief discussion of the evidentiary issue raised on appeal.

Defendant has two daughters. Their mother died in 1997. In August 2005, the date of the alleged abuse, the youngest of defendant's daughters, Y.D.L., was ten years of age and her older sister was fourteen.

At 5:30 p.m. on August 21, 2005, the police responded to a call from defendant's neighbor. Y.D.L. was with that neighbor. According to the officer, the child was covered with dirt, sweating and flushed. The temperature had reached ninety-four degrees that day. To the officer, Y.D.L. looked as if she had been crying. Y.D.L. told him that she and her sister had recently returned from a visit with their aunt in California. Earlier that day, Y.D.L. and her father argued after she told him that she wanted to live with that aunt. He called her derogatory names. Sometime after 12:30 p.m., defendant told Y.D.L. to go outside and weed their yard until he gave her permission to return. She tried to come into the house to use the bathroom and get water, but the door was locked. When she knocked and asked to come in, defendant told her to drink from the hose. Defendant later drove away from the house with Y.D.L.'s sister in the car. Y.D.L. went to a neighbor for help. She did not know her father's cell phone number.

The officer tried to gain entry to Y.D.L.'s home. All of the windows and doors on the first floor were locked. He saw a bucket that was full of weeds and an area of the yard that appeared to have been weeded. He did not find any glasses or plates outside. The officer waited with the child at the neighbor's home for about an hour and, because defendant had not returned, left with the child.

Defendant and Y.D.L.'s sister returned by 6:45 p.m. Later that night, police officers and a caseworker employed by DYFS interviewed defendant and Y.D.L.'s older sister. Both described an argument between Y.D.L. and defendant about her desire to live in California. According to Y.D.L.'s sister, defendant called Y.D.L. names. He then sent Y.D.L. outside to punish her and locked her out of the home. She was outside for "quite a few hours." When Y.D.L.'s sister spoke to the caseworker, she whispered and explained that she was whispering because she did not want defendant to hear her. According to defendant, weeding was assigned to Y.D.L., as a chore, not a punishment, and Y.D.L. was outside for only about one-half hour when he left. He claimed the doors were unlocked. Defendant also said that before he left the house, he invited Y.D.L to come with him and her sister, but she had declined. Y.D.L.'s sister remembered defendant speaking to Y.D.L before they left.

Defendant testified at the fact-finding hearing. He said that Y.D.L had eaten lunch before she went outside and did not go outside until about 2:00 p.m. He explained that there was a sliding door that was not locked and that the officer must have pulled rather than pushed that door and mistakenly believed it was locked. He also testified that Y.D.L. knew where he kept a spare key to the house, which was hidden outside. He said that he used a derogatory name when speaking to Y.D.L. to describe how she was treating him, not to describe her.

The trial judge did not permit defendant to present testimony from a neighbor. He offered that testimony to establish that it was not unusual for him to leave the ten-year- old child alone and that she was capable of taking care of herself at home. The judge, however, permitted witnesses to repeat statements made by defendant's mother about her son's temperament. Defendant's mother did not testify.

The judge found that defendant locked Y.D.L. outside the house in the heat for a long period of time, neglecting her need to use the bathroom and have access to the home. He concluded that defendant neglected the child when he "locked [her] out of the house in 94 [degree heat] for at least four hours to pick weeds, without water, food or facilities; left [her] unattended [and] locked outside of the house for an additional two hours; [and] called [Y.D.L.] derogatory names and made harsh comments to her."

Defendant raises three issues on this appeal.

I. THE TRIAL JUDGE'S FINDINGS WERE NOT

SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE BECAUSE THEY ARE BASED UPON THE INSUFFICIENTLY CORROBORATED OUT-OF-COURT STATEMENTS OF THE ALLEGED CHILD VICTIM

II. THE TRIAL JUDGE'S FINDINGS WERE NOT

SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE BECAUSE THEY WERE BASED UPON THE HIGHLY PREJUDICIAL HEARSAY STATEMENT'S OF J.L.'S GRANDMOTHER

III. THE TRIAL JUDGE'S FINDINGS WERE NOT

SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE BECAUSE HE FAILED TO ADMIT SIGNIFICANT RELEVANT TESTIMONY OFFERED BY DEFENDANT

This court does not disturb a trial judge's finding of abuse or neglect unless it is convinced that the findings are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . " N.J. Div. of Youth and Fam. 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)). In this case, the findings are supported by adequate competent evidence. For that reason, we affirm.

There is no question that "'[t]he fact-finding hearing is a critical element of the abuse and neglect process.' A finding of abuse or neglect has a profound impact on a family. Therefore, it is paramount that any finding must be based on competent reliable evidence." L.A., supra, 357 N.J. Super. at 166 (citations omitted) (quoting N.J. Div. of Youth and Fam. Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002).

It was not improper for the judge to consider statements Y.D.L. gave to the officer and caseworker. "[S]tatements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). The corroborative evidence required is evidence that provides "support for the out-of-court statements." Z.P.R., supra, 351 N.J. Super. at 436.

There was significant evidence to support Y.D.L.'s statements: there was a bucket of weeds outside of her house; she was flushed and dirty; the doors to her house were locked; defendant admitted that he argued with the ten-year-old child earlier in the day; defendant admitted that he sent her outside to weed as early as 2:00 p.m.; defendant admitted that he left the house no later than 4:30 p.m. with Y.D.L.'s older sister; defendant did not return until 6:45 p.m.; before speaking to Y.D.L., her older sister described the weeding as a punishment imposed for the argument and stated that her sister had been locked out of the house for "quite a few hours"; and there was no physical evidence that defendant gave the child any fluids while she was outside. Even if her sister's statements are set aside, there was sufficient evidence supporting Y.D.L.'s out-of-court statements. See L.A., supra, 357 N.J. Super. at 168 (noting that a judge need not take the child's testimony if the testimony is not necessary).

Statements made by defendant's mother were not properly admitted into evidence, but, the judge's finding of abuse and neglect does not rest on anything that his mother said about his temperament or parenting skills. Defendant's mother had and gave no information about the day in question, and the judge's finding of neglect is based on defendant's conduct on the day in question. In concluding that defendant called Y.D.L. derogatory names and made harsh comments, the judge relied largely on defendant's attempt to explain what he said, which the judge found incredible. For those reasons, we are confident that the error the judge made in receiving testimony about defendant's mother's hearsay is harmless. R. 2:10-2.

The judge did not err in precluding defendant from presenting his neighbor's testimony about Y.D.L.'s experience and competence in caring for herself at home. That evidence was irrelevant in this case, which involved defendant's treatment of the child on a single day. See N.J.S.A. 9:6-8.46b (providing for admission of "only competent, material and relevant evidence" at a hearing on abuse and neglect).

Affirmed.

The child's initials are not Y.D.L. We use those initials to indicate her status as his youngest daughter.

(continued)

(continued)

9

A-5953-06T4

RECORD IMPOUNDED

February 22, 2008