NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2854-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

P.H.,

Defendant-Appellant.

__________________________________________

IN THE MATTER OF C.H.,

A Minor.

__________________________________________

March 15, 2013

 

Submitted March 5, 2013 - Decided

 

Before Judges Alvarez and St. John.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0151-12.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara L. Kenney, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

 

PER CURIAM

Defendant P.H. is the mother of C.H.2 P.H. appeals from a December 19, 2011 Family Part order which found that she committed abuse and neglect when she refused to attend C.H.'s court proceedings and take custody of him, or arrange for a caretaker for C.H., thereby requiring the Division to arrange for C.H.'s placement. J.R., the biological father of C.H., was not a party to the fact finding and is not a party to this appeal. On appeal, P.H. argues the court erred in determining that she abandoned her son. For the reasons that follow, we affirm.

I.

We briefly summarize the facts from the record on appeal. On June 16, 2011, the Division received a referral from the Division Liaison from the Hudson County Superior Court Family Part reporting concerns for C.H., then seventeen years old, who was being detained at the Hudson County Juvenile Detention Center (HCJDC). The Division was informed that P.H. resided in Georgia and that C.H. was sent by her to live with his sisters in New Jersey but that a transfer of custody was never accomplished. It was reported that P.H. did not intend to come to New Jersey to deal with C.H.'s juvenile matters.

Although various family members appeared at some of C.H.'s court hearings, no one appeared at his June 16, 2011 hearing. Consequently, the trial judge in that matter requested that the Division conduct an investigation because it was unclear where C.H. was living prior to his arrest. The next day representatives of the Division interviewed C.H. at the HCJDC and asked him where he was residing prior to his arrest. C.H. replied, "I don't know." He gave the same response when asked with whom he had been staying. C.H. informed the representatives that he had been living with his mother in Georgia and was sent to New Jersey because he was getting into trouble in Georgia.

Several days later, Division representatives went to the home of L.H., one of C.H.'s sisters. They informed her that no one attended C.H.'s June 16 hearing. L.H. responded that she had forgotten about the court hearing, that someone from the court called her on that date to inform her, and she attempted to make it to the hearing. L.H. further alleged that when she was waiting in line to get into the court house, she was informed that the matter had been rescheduled for the following day. L.H. also stated that she was unable to attend the hearing because she did not have money for transportation. When asked if P.H. would be attending the July 5 hearing, L.H. told the representatives that her mother would not be attending. L.H. stated she would attend and, if she was unable to attend, another sister would attend.

When asked with whom C.H. had been living before he was arrested, L.H. stated that he had been living with her in Jersey City and then lived with another sister, T.H. She stated that upon release, C.H. could not live with T.H. because she was receiving housing assistance.

The Division contacted another of C.H.'s sisters, S.H. S.H. stated that she wanted C.H. to reside with her. She informed the representative that C.H.'s father, J.R., was incarcerated. She also confirmed that she would be attending the July 5 hearing.

C.H.'s mother, P.H., was then contacted and informed that no one had been present at the June 16 hearing. When asked if she would be attending the July 5 hearing, P.H. responded that she could not say yes or no because she was uncertain if she would be going. P.H. was informed that the Division could file for custody of C.H. if no one from the family came to the July 5 hearing or if C.H. could not reside with his adult siblings upon his release.

On July 12, 2011, C.H. was released from detention to his sister, S.H., who agreed to file for custody. However, S.H. failed to actually file for formal custody. C.H. was arrested again on July 26, 2011. When S.H. was called and informed that C.H. had a court appearance on August 5, S.H. indicated that she would not be able to attend, explaining that she had responsibilities for her daughter, financial and personal responsibilities that she needed to meet, and that she could not take off from work. Consequently, when C.H. appeared in juvenile court, S.H. appeared telephonically. S.H. stated that while C.H. could live with her upon his release from detention, she would not attend any court proceedings. The judge indicated that he could not release C.H. if no one from his family was present in court.

A representative of the Division called P.H. on August 9 and informed her that C.H. had a court appearance on August 11. P.H. indicated that she would not be able to attend, and that she could not take custody of C.H. because that might cause her to lose her Section 8 housing. She was also concerned that C.H. would continue to get into trouble if returned to Georgia. However, P.H. indicated that she could appear telephonically on August 11. C.H. appeared on that date, and the court attempted to call P.H. but was only able to leave a voice message. The court released C.H. from detention, but since no family member came to the proceeding, DYFS conducted an emergency removal. C.H. was placed in the Volunteers of America shelter in Jersey City. Subsequently, C.H. was arrested for a third time and consequently remained in detention throughout P.H.'s trial.

On August 15, 2011, the Division filed a verified complaint against P.H. and J.R., alleging abuse and neglect of C.H. pursuant to N.J.S.A. 9:6-8.21- to -8.73 and N.J.S.A. 30:4C-12. On the same date, the judge entered an order to show cause and an order to appoint a Law Guardian having determined that the removal of C.H. was necessary because he was in New Jersey without supervision and had been arrested, and that P.H., who lived in Georgia, refused to come to New Jersey to take custody.

The court determined that removal was necessary because C.H. was without parental supervision. The court entered an order continuing the physical and legal custody of C.H. with the Division, ordering defendant to sign releases for all service providers, ordering the Division to consider all relative resources as placement options, ordering the Division to serve and file proof of service of the complaint on all parties, and allowing J.R. to appear by telephone at the next hearing. On the return date, the court determined that C.H. was to continue under the care, custody, and supervision of the Division. P.H. was entitled to arrange visitation with C.H. through the Division.

A fact finding hearing was held on December 19, 2011. The Division moved and the court admitted into evidence the Division's assessment summary, screening summary, contact sheets, child protective services report, screening and investigative summary. The court heard testimony of caseworker, Kathy Achenaka, and defendant, P.H. Achenaka testified that C.H. was sent to live with his sister, T.H., in New Jersey in March or April 2011. After C.H. was arrested for the first time, Achenaka contacted P.H. and P.H. informed her that she did not have a plan for C.H., and that she was not willing to take him back into her home. Although C.H. was ultimately placed in his sister S.H.'s care, S.H. did not file for custody.

Achenaka testified that the Division was contacted again after C.H. was arrested for the second time. Achenaka again contacted P.H. and told her that if neither she nor any of her adult children attended the court proceeding, the Division would file for custody. P.H. responded that she was not willing to take C.H. back into her home because she would lose her Section 8 housing. She also informed Achenaka that C.H. had been arrested in Georgia and was going to continue to do the things he had been doing. P.H failed to make any arrangements for C.H. after his release. Achenaka also spoke with S.H. who stated that she was not going to go to court for C.H.'s hearing. Without any family member available to take C.H. upon his release, Achenaka stated that C.H. could not be released from the Union County Detention Center. After the Division filed for custody, C.H. was released to the Division and placed in a shelter.

P.H. testified that she sent C.H. to live with his three sisters in New Jersey because he "wasn't making it down here." P.H. alleged that her daughters did not appear in court because they did not know about the court date, although P.H. did not know if any of her daughters had been notified. She stated that C.H. did not contact her because he did not have her telephone number. P.H. stated, "He still doesn't have mine to this day."

P.H. did admit that the Division told her that if no arrangements were made for C.H., the Division would take custody of him. P.H. knew that C.H. had been arrested, but she asserted that after he was released, she was not contacted by the juvenile court. She further stated that she did not believe that the court contacted her daughters. P.H. stated that she was unable to make the trip from Georgia to attend C.H's court hearings, but believed the entire time that C.H. was in New Jersey he was either living in the detention center or living with his sisters. P.H. testified that she was not aware that C.H. would be released, and that she believed he was going to be incarcerated for another two years.

The court found that P.H. needed to "make some kind of arrangements for the child and there were absolutely no arrangements made." P.H. was "responsible for this child," and C.H. had to have an adult there for him to address the charges against him. Therefore, the court determined by a preponderance of the evidence that P.H. abandoned C.H. pursuant to N.J.S.A. 9:6.1(c).

The trial judge acknowledged that "the burden of proof is by a preponderance of the evidence." He set forth the definition of "abandonment" under N.J.S.A. 9:6-1 and focused on the assertion by the Division that P.H. had abandoned her son, in that she "fail[ed] to care for and keep the control and custody" of him in order to avoid his maintenance "at the expense of the public, or by child caring societies or private persons not legally chargeable with his care, custody and control." The judge found that when C.H. was arrested, both the first and second time, not only was P.H. not there, but no responsible adult was available for C.H. After C.H. was released the first time, P.H. was contacted, but she stated "she's not coming back to New Jersey." The judge noted that the "better thing to do might have been to have someone file for custody of [C.H.]. That wasn't done."

After the second arrest, P.H. again failed to respond, and the judge determined that P.H. needed "to make some kind of arrangements for the child and there were absolutely no arrangements made." The judge did not find credible the assertion that none of C.H.'s relatives knew about his situation. Nor did the judge find credible P.H.'s contention that she believed that C.H. "was in detention and probably would stay that way." Ultimately, the judge found that P.H. abandoned C.H. and that he "needed to be taken in by child caring societies at the expense of the public."

An order terminating litigation was entered by the court on January 4, 2012, after C.H. turned eighteen years old. This appeal ensued.

On appeal, P.H. contends that the court erred in ruling that she committed abuse and neglect by "abandoning" her son.

Title 9 controls the adjudication of abuse and neglect cases. N.J.S.A. 9:6-8.21 to -8.73. The well-being of the child is the paramount concern. N.J.S.A. 9:6-8.8; see G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999) ("Title 9's primary concern is the protection of children, not the culpability of parental conduct."). Under N.J.S.A. 9:6-8.21(c)(5), the definition of an "[a]bused or neglected child" includes "a child who has been willfully abandoned by his parent or guardian." "Abandonment" is defined as follows:

Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection; (c) 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.

 

[N.J.S.A. 9:6-1.]

 

II.

The scope of our review 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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988). However, deference is not appropriate if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). This is not such a case.

Here, the record contains substantial, credible evidence that defendant "willfully forsook" her child. Defendant clearly and explicitly refused to care for her child when she repeatedly refused to keep the control and custody of her son, and she ignored subsequent telephone calls and attempts at contact by the court and the Division. Further, P.H. did not arrange for custody of C.H. by a relative.

P

.H. violated N.J.S.A. 9:6-1(c) because her actions forced the public to care for her child. We are not persuaded by P.H.'s argument that the facts support her contention that she could not attend the August 11 hearing because she only had two days notice. The judge allowed her to appear telephonically and she failed to be available. Moreover, no other family member appeared. This caused the Division to take emergency custody of C.H. at the State's expense. We concur with the trial judge's finding that P.H. abrogated her parental obligations and that "there were never appropriate arrangements made for this child in this case."

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16 eff. June 29, 2012.

2 C.H. is now nineteen years old.