NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3963-05T43963-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant,

and

Sh.S.,

Defendant,

IN THE MATTER OF K.S.H.,

Minor-Respondent.

 

Submitted December 6, 2006 - Decided December 28, 2006

 
Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FN-04-322-05.

Bryan C. Schroll, attorney for appellant.

Stuart Rabner, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Patrick DeAlmeida, Assistant Attorney General, of counsel; Angela N. Domen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor-respondent, K.S. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant S.S. is the mother of K.S.H., who was born on June 22, 1998. Defendant appeals from a February 23, 2006 order that defendant and her mother, Sh.S., who is also the child's guardian, neglected K.S.H. by failing to provide him with a regular school education. Sh.S. has not appealed from the trial court's decision.

In her brief on appeal, S.S. claims that the court's determination was against the weight of the evidence. Having thoroughly canvassed the record in light of this claim, we affirm substantially for the reasons expressed by Judge Melendez in her February 23, 2006 decision, as memorialized in the court's order of that date. Defendant's arguments lack merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). We add only the following.

K.S.H. was diagnosed at an early age as suffering from Fragile X Syndrome and cerebral palsy, among other conditions, and by the age of fourteen months was referred for occupational, physical, and speech therapy. After his mother moved to Lawnside, New Jersey, at the end of 2002, he was enrolled in the Lawnside School District (the District). Beginning in February 2003, the District made multiple attempts, some successful and some unsuccessful, to find the appropriate placement for the child. The trial judge found that defendant interfered with the District's placement efforts, to the point where she neglected K.S.H. within the meaning of N.J.S.A. 9:6-1, which provides that neglect of a child includes the willful failure "to provide . . . regular school education as required by law." A neglected child is defined in N.J.S.A. 9:6-8.21(c)(4) as including one "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with . . . education."

In arriving at her conclusion, the judge made a number of specific findings, including, but not limited to, the following:

Specifically the [S.] Family has neglected [K.S.H.]'s educational needs. They have consistently refused to cooperate with the Lawnside School District in their efforts to provide [K.S.H.] with home instruction and related services, and also with finding a permanent education placement for him. According to the testimony of Dr. Slaughter,[] home instruction was never intended to be a permanent plan for [K.S.H.]. As a result of the family's uncooperative and self-defeating behavior, [K.S.H.] was not in a program from February of 2004 through November of 2005.

Although Lawnside failed to comply with the A.L.J. order to provide home instruction and related services and provide a behavioral assessment and intervention plan, the [S.] Family did everything they could to obstruct Lawnside's attempt to take corrective action . . . . Every effort by the . . . school district to resolve any issue was inadequate to the [S.] Family, which typically resulted in them filing due process or a compliance investigation. Furthermore, as evidence in the records and the witnesses' testimony, the [S.]s studied the I.D.E.A. and New Jersey Special Education provision in order to poke holes in the District's actions.

[S.S.] and [Sh.S.]'s obstructionist behavior has been enhanced by their rude, accusatory and condescending attitudes. [S.S.] argued in her summation that even if this Court found she exhibited rude behavior to Division employees or investigators her actions are not synonymous with child abuse and neglect.

However, it is apparent from the records that the [S.] Family's behavior was self-defeating. Since [K.S.H.]'s transfer to Lawnside, the [S.] Family has written at least one letter a week to the District and to Archway. The overall tone of the letters was extremely harsh, critical and accusatory. [K.S.H.] was asked to leave Archway because they did not want to deal with the family . . . .

The independent experts at Cooper Hospital who evaluated [K.S.H.] noted that the [S.]s were uncooperative . . . . When A.L.J. Metzger attempted to intercede on [Sh.S.]'s behalf and scheduled a phone conference, she hung up the phone on her. This in turn only dissuaded the Judge from taking any extra steps on her behalf . . . .

. . . .

The compulsory education law did not apply to [K.S.H.] until he turned six, which was on June 28th of 2004, N.J.S.A. 18A:38-25. Thus the parents were not required to ensure their child attended school regularly until the child was already well involved with the Lawnside School District. Parents, such as the [S.]'s, do have a constitutional right to choose the type and character of education they feel is appropriate for their children, Morris Board of Education Vs. Sills, 110 N.J. Super. 234 at 244, Chancery Division, 1970. They do not, however, have the right not to educate [K.S.H.].

If they were genuinely concerned about the child's best interest, they would have pushed for the child to be in school at the young age of three. In almost every expert's evaluation, including their own expert, Dr. Sulhalter's opinion, [K.S.H.] should be in school. Although the law does not require socialization, why they would choose to hold back a child who desperately needs socialization is beyond me.

. . . .

Accordingly, this Court finds that it is the [S.]'s oppositional and defiant behaviors that had directly impacted [K.S.H.]'s attendance and participation in an appropriate educational program. As a result, they have failed to provide him with a regular school education as required by law, and this Court finds [K.S.H.] to be abused and neglected pursuant to N.J.S.A. 9:6-8.21.

A trial court's findings are binding on appeal when supported by adequate, substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Here, the record fully supports the findings of Judge Melendez. Defendant's arguments to the contrary are without merit. Defendant has shown a history of uncooperative behavior which resulted, in substantial part, in denying K.S.H. an education for significant periods of time during his short life, and particularly from September 2004 through the end of that school year. Consequently, we affirm substantially for the reasons expressed by Judge Melendez in her thorough and well-reasoned decision.

 
Affirmed.

Defendant's brief does not include point headings in its table of contents as is required by Rule 2:6-2(a)(1). In addition, throughout defendant's brief, she questions the admissibility of certain evidence admitted during the trial. We decline to address those issues as they were not raised in a point heading, but are merely mentioned in a footnote in the brief.

Dr. Billie A. Slaughter is a psychologist and the child study team coordinator for the District Board of Education.

(continued)

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6

A-3963-05T4

RECORD IMPOUNDED

December 28, 2006