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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1767-09T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

vs.

C.S.,

Defendant-Appellant.

___________________

IN THE MATTER OF C.C., a minor.

__________________________________

November 9, 2010

Submitted: October 20, 2010 - Decided:

Before Judges Cuff, Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-311-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Theresa A. Nitti, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor C.C. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant C.S. is the mother of C.C., who was born in January 2007. C.S. appeals from the order entered following a fact-finding hearing, N.J.S.A. 9:6-8.44, at which Judge Mizdol found C.S. neglected her infant daughter. We affirm.

The focus of the complaint filed by plaintiff, New Jersey Division of Youth and Family Services (DYFS), is environmental neglect. DYFS alleged that the condition of the home in which C.S. lived with her infant daughter created an imminent threat to the physical condition of the child. N.J.S.A. 9:6-8.21c(4)(b). Judge Mizdol found that C.S. allowed

a large accumulation of refuse, clothing, plastic garbage bags, boxes of unused belongings, which severely hindered movement in the apartment and in some locations made it totally non-accessible, making it impossible for authorities to conduct a search and rescue effort, if one was necessary.

Judge Mizdol also found that C.S. neglected her child when she returned to the apartment with the child following an order to vacate issued by the fire marshal and before abatement of the conditions giving rise to that order. The judge further found that C.S. neglected her child "by minimizing and refusing to acknowledge the seriousness of the hazardous fire condition . . . and the severity of the situation."

On appeal, defendant argues that the finding of neglect memorialized in the October 27, 2008 order1 is incorrect as a matter of law, her motion to dismiss the complaint should have been granted because the record did not support the need for court intervention, and defendant's request for suspended judgment should have been granted. We disagree.

The findings of fact are supported by the testimony of the property manager of the apartment complex in which C.S. resided, the DYFS worker who initially responded to the referral, the municipal fire inspector, a municipal police officer, and photographs memorializing the condition of the apartment in June 2007. Dawn Ruggiero, the property manager, testified she went to the apartment in which C.S. resided with her infant daughter in response to reports from maintenance workers who had responded to the apartment to fix a water leak. She described a scene of incredible crowding and clutter. From her vantage point at the door of the apartment, Ruggiero observed only pathways through the foyer and into the living room. When the owner of the apartment opened the door, "all [Ruggiero] could see was boxes, bags, garbage, papers, just a mess from the hallway."

DYFS worker Elizabeta Janiec testified that the apartment was so cluttered she could hardly see the floor. She observed pet hair throughout the apartment. Boxes and bags were piled high throughout the living room, and she could not walk through this room. She also observed piles of clothing as high as the ceiling in the bedroom occupied by defendant and her infant daughter. One pile almost reaching the ceiling was on the top of a bunk bed, and defendant had placed the infant's bassinet next to the bunk bed. In the same room, defendant had stacked two televisions on top of each other. C.S. had scattered newspapers over the floor of the bathroom for use by the dog and cat. The DYFS worker also detected a pet smell throughout the apartment. Ingress to and egress from the apartment was difficult, if not blocked entirely in places. Janiec testified that C.S. acknowledged that the apartment "looked like hell" but told Janiec it was not her fault.

The following day, the fire marshal issued a notice of violation of a dangerous condition. The order cited a large accumulation of refuse, clothing, plastic garbage bags, and boxes of unused belongings. He noted that movement in the apartment was severely hindered and in some places, boxes and refuse blocked entrances, including the sliding doors to the terrace. He ordered defendant to correct the condition of the apartment. Four days later, the inspector observed some progress towards abatement of the dangerous condition, and defendant was permitted to return to the premises. She had, however, returned earlier than permitted to do so.

Ordinarily, great deference is accorded to the discretionary decisions of Family Part judges. The findings of the Family Part judge should not be disturbed unless wholly unsupported as to lead to a denial of justice. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Such findings "are binding on appeal when supported by adequate, substantial and credible evidence." Ibid. This is especially true "'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). Accordingly, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

An abused or neglected child is defined by statute as:

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of being impaired as the result of the failure of his parent or guardian, as herein defined, 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, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.

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

Judge Mizdol determined by a preponderance of the evidence, that the condition of C.S.'s apartment constituted a substantial risk of harm to the child within the meaning of N.J.S.A. 9:6-8.21c(4).

Defendant disputes this finding in two ways. First, defendant argues that the condition of the apartment was not so egregious that it threatened the physical condition of C.C. within the meaning of N.J.S.A. 9:6-8.21c(4). Defendant also argues that DYFS failed to demonstrate by a preponderance of the evidence that C.S. failed to exercise a minimum degree of care within the meaning of N.J.S.A. 9:6-8.21c(4).

Defendant's argument fails because DYFS is not required to wait until actual harm occurs to the child. A court may find that a child has been neglected when placed at risk of imminent harm.

This record provides sufficient evidence to support Judge Mizdol's finding of neglect. Her findings of fact do not rest simply on subjective reactions to conditions in the home or personal standards of cleanliness. The fire marshal determined that the premises posed such a danger to the occupants that he ordered not only abatement of the condition but also vacation of the premises. In addition, DYFS introduced a series of photographs of the apartment that corroborated and enhanced the testimony of those people who observed the apartment on June 7 and 8, 2008. Those pictures verify that the fire marshal and the DYFS worker confronted a situation that posed an imminent risk of physical harm to the occupants. This was much more than an untidy home.

For these reasons, the judge properly denied the motion to dismiss the complaint. Defendant acknowledged that she should not have allowed the stuff in her apartment to accumulate. She provided a variety of excuses for the condition of the apartment. However, her failure to address the situation created a risk of harm. In G.S. v. Department of Human Services, 157 N.J. 161, 178 (1999), the Court emphasized that "risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful." By allowing the apartment to become a fire hazard and by recognizing the state of the apartment and declining to remediate the condition, C.S. created a risk of imminent harm to her child.

C.S. also argues that Judge Mizdol should have suspended judgment. We disagree.

A suspended judgment is one of the possible statutorily prescribed outcomes following a finding of abuse and neglect. N.J.S.A. 9:6-8.51a(1). Abuse and neglect cases are adjudicated through a two-step hearing process. N.J.S.A. 9:6-8.47. The first step is a fact-finding hearing, which determines "whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. Upon completion of that hearing, the court is authorized to take one or more of five actions, one of which is a finding of abuse and neglect. N.J.S.A. 9:6-8.50.

"If abuse or neglect is established as a result of the fact-finding hearing, the second step is the 'dispositional hearing.'" N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 475 (App. Div.) (quoting N.J.S.A. 9:6-8.45), certif. denied, ___ N.J. ___ (2010). The disposition hearing can either "commence immediately after the required findings [have been] made" or be adjourned. N.J.S.A. 9:6-8.47a; N.J.S.A. 9:6-8.48b.

"Once the dispositional hearing has been completed, N.J.S.A. 9:6-8.51a requires the court to enter an order adopting one or more of six dispositional options, which are not all mutually exclusive." R.M., supra, 411 N.J. Super. at 475. N.J.S.A. 9:6-8.51a provides:

At the conclusion of a dispositional hearing under this act, the court shall enter an order of disposition: (1) suspending judgment in accord with section 32 hereof; (2) releasing the child to the custody of his parents or guardian in accord with section 33 hereof; (3) placing the child in accord with section 34 hereof; (4) making an order of protection in accord with section 35 hereof; (5) placing the respondent on probation in accord with section 36 hereof; (6) requiring that an individual found to have abused or neglected a child accept therapeutic services, and this order may be carried out in conjunction with any other order of disposition.

[Internal footnotes omitted.]

Here, the judge maintained the child in the physical custody of C.S. with DYFS maintaining care and supervision. In addition, the dispositional order required C.S. to attend dialectical behavioral therapy. Finally, the dispositional order required C.S. to maintain the home in a safe and sanitary condition.

N.J.S.A. 9:6-8.52 explains the parameters of a suspended judgment disposition:

a. The court shall define permissible terms and conditions of a suspended judgment. These terms and conditions shall relate to the acts of commission or omission of the parent or guardian.

b. The maximum duration of any term or condition of a suspended judgment shall be 1 year, unless the court finds at the conclusion of that period, upon a hearing, that exceptional circumstances required an extension thereof for an additional year.

The purpose of a suspended judgment is to provide "a temporary alternative to the final return of the child to the parent or placement of the child with the Division or other individuals." R.M., supra, 411 N.J. Super. at 478. Thus, "a suspended judgment was intended as an interim measure with the ultimate goal of maintaining the family unit." Ibid.

There are four factors a court should consider before granting a defendant a suspended judgment in an abuse and neglect case:

"(1) defendant's prior history; (2) seriousness of the offense; (3) defendant's remorse and acknowledgment of the abusive/neglectful nature of his or her act; and (4) defendant's amenability to correction, including compliance with court-ordered services, treatment, and his or her efforts in rehabilitating the relationship with the child[ren]."

[R.M., supra, 411 N.J. Super. at 477 (quoting N.J. Div. of Youth & Family Servs. v. C.R., 387 N.J. Super. 363, 375 (Ch. Div. 2006)).]

An analysis of these factors reveals that suspended judgment was not an appropriate option here.

Here, C.S. has substantial prior history with DYFS, including a substantiated referral of physical abuse against C.S. involving her older daughter, Ch.S. Moreover, a suspended judgment would not address the harm defendant is trying to avoid, namely, future disclosure of the finding of abuse and neglect against C.S. We have recently held "successful completion of a period of suspended judgment does not result in expungement of the underlying finding of abuse or neglect." Id. at 482. In short, we discern no error in the disposition fashioned by Judge Mizdol and certainly find no error because she neither considered nor imposed a suspended judgment.

Affirmed.

1 C.S. filed a notice of appeal on December 16, 2009, after Judge Mizdol dismissed the complaint. Until entry of the December 2009 order, the October 27, 2008 order was interlocutory. N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163-66 (App. Div. 2003).