DIVISION OF YOUTH AND FAMILY SERVICES v. V.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6259-10T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

V.W.,

Defendant-Appellant.

______________________________________

IN THE MATTER OF I.W., H.W., and A.W.,

Minors.

______________________________________

Argued April 25, 2012 Decided May 8, 2012

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0227-11.

Michael S. Harwin, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief).

Erin O'Leary, Assistant Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Amy McKinsey, Deputy Attorney General, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for the minors I.W., H.W., and A.W. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

PER CURIAM

Defendant V.W. is the mother of A.W. who is now nineteen years old. V.W. appeals from a Family Part order dated July 18, 2011, finding that she committed an act of abuse and neglect, when she refused to accept services proffered by the Division of Youth and Family Services (the Division), to allow A.W. to return home, or offer a caretaker for A.W., thereby requiring the Division to arrange for A.W.'s placement. On appeal, V.W. argues the court erred in determining that she abandoned her daughter. For the reasons that follow, we affirm.

At approximately 10:30 p.m. on November 11, 2010, when she was seventeen years old, A.W. was transported by ambulance to Jersey City Medical Center because she was on the streets exhibiting violent and aggressive behavior. A.W. was examined by hospital staff, and at 3:00 a.m. the next morning she was found to be intoxicated with a .12 blood alcohol level. Shortly after her admission, a physician's assistant telephoned V.W., informed her that A.W. was in the hospital, and requested that V.W. come to the hospital to pick up her daughter. V.W. refused. The physician's assistant told V.W. the Division would be contacted if she did not come to the hospital. V.W. responded that the hospital could go ahead and contact the Division. This interaction was reported to the Division and Ragenie Suknanan, a representative of the Division, informed the physician's assistant to keep trying to telephone V.W. At 5:23 a.m., the Division was informed that no one answered the telephone at V.W.'s residence. The police went to the residence but no one answered the door.

At 7:20 a.m., Suknanan, accompanied by the police, made contact with V.W. outside her home. V.W. stated she was aware her daughter was drunk at the hospital, but refused to go there and pick her up. She was informed by the police that she is responsible for her daughter and that she could be charged with neglect. V.W. still refused. She stated that A.W.'s behavior is out of control and she was not bringing her home. Suknanan suggested services, but V.W. replied she had already tried services and explained A.W. had been found intoxicated on the streets and brought to the hospital two weeks earlier. At that time, V.W. told A.W. if it happened again she would not bring her home. V.W. also related A.W.'s history of discipline problems, mental illness, and educational deficiencies. Again, services were offered by Suknanan, but V.W. refused to take A.W. home.

V.W. agreed to visit her daughter and was then transported to the hospital by the Division. There, a conversation ensued between V.W. and A.W. V.W. told her daughter that she was not going to allow her to return home. A.W. stated "I don't like you" and "I don't want to go home with you," to which V.W. responded "and I do not want you back home." Suknanan tried to effect a reconciliation which was unacceptable to both V.W. and A.W. V.W. again refused to take A.W. home.

Suknanan explained, read, and served V.W. with a Dodd removal letter.1 V.W. refused to sign it. When asked if she had any relative resources for A.W.'s placement, V.W. stated she did not. V.W. was asked if she would execute the hospital discharge for her daughter and she declined. V.W. then left the hospital. Suknanan signed the discharge papers and left the hospital with A.W.

A.W. was placed with a resource family, but that same night she argued with another foster child and the police were summoned. A.W. was charged with aggravated assault and resisting arrest. V.W. was contacted by the police and assented to A.W.'s return home rather than having her detained at the youth detention center. A.W. spent the following night with a friend and then returned to the foster care facility.

On November 16, 2010, at the hearing on the order to show cause, the trial judge determined "its very clear to this court based upon [V.W.'s] testimony that she is not prepared at this time to take [A.W.] back home given the issues that are presented by this case, namely some of the behavior being exhibited by [A.W.]." Following the fact-finding hearing, the judge rendered a oral decision on July 18, 2011. The judge's findings and conclusions with regard to V.W. included the following:

Not only did [V.W.] refuse to take [A.W.] home, she refused services that were offered by the Division. She refused to offer a caretaker. A person, a family friend, or whoever, someone who could be . . . entrusted with [A.W.'s] care. And she essentially left [A.W.] to the care of the hospital and the State of New Jersey.

In her opinion, the judge determined that the Division proved by a preponderance of the evidence that V.W. abused and neglected A.W., stating:

I do make this finding today that by virtue of your refusal to take your daughter home that evening or to in any way engage in or accept the services of the Division of Youth and Family Services constituted an act of neglect, an act of abandonment as defined by the statute.

On appeal, V.W. argues that her failure to pick her daughter up at the hospital and allow her to return home prior to the child's placement by the Division does not rise to the level of abandonment. Therefore, V.W. argues that she never abandoned her child and did not violate N.J.S.A. 9:6-1(a), (b), or (c). We cannot agree.

Title Nine 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.]

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 take her home, and she ignored subsequent telephone calls and attempts at contact by police. Further, V.W. declined to offer a relative placement for her daughter, and she repeatedly rebuffed the Division's requests to utilize services. Furthermore, defendant 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 V.W.'s argument that the facts reflect her recognition A.W. needed professional assistance. Rather, we concur with Judge Margaret Foti's finding that V.W. abrogated her parental obligations because of her daughter's problematic behavior.

A

1 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).