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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff–Respondent, v. B.Y., Defendant–Appellant. IN RE: E.Y.,

DOCKET NO. A–3090–10T1

    Decided: February 17, 2012

Before Judges Carchman and Baxter.Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel;  Nora P. Pearce, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (James A. Louis, Deputy Public Defender, of counsel;  Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

Following a plenary hearing, Judge Melendez, sitting in the Family Part, concluded that defendant B.Y. abused and neglected her daughter, E.Y. The judge then placed the child in the custody of F.M.1 and terminated the Title 9 litigation.   B.Y. appeals and contends that the Division of Youth and Family Services' (DYFS) complaint, and the trial court's subsequent finding of abuse and neglect, were punitive actions to punish defendant for concealing E.Y.'s existence from DYFS. Moreover, defendant contends that the court's findings were based purely on B.Y.'s prior conduct with her two elder children, who were removed from her custody less than a year before E.Y. was born.   We conclude that the trial court's findings are supported by substantial credible evidence in the record and affirm.

These are the relevant facts adduced from the record.   Defendant B.Y. is the biological mother of three children—J.Y., born December 23, 2007;  Z.Y., born October 27, 2008;  and E.Y., born March 6, 2010.   B.Y. has refused to identify the father of E.Y.

DYFS first became involved with defendant on October 30, 2008, when it learned that she had given premature birth to Z.Y. and tested positive for drugs while in the hospital.   In the following two months, DYFS made four unsuccessful attempts to locate and contact B.Y. On December 9, 2008, a DYFS caseworker located the home where B.Y. resided with J.Y. The caseworker described the home as

dark and cluttered.   In the living room were two dark colored couches.   The floor consisted of hardwood planks with bolts protruding from various spots on the floor.   Worker observed the staircase to be hazardous.   The staircase had no railing and consisted of wood boards with large spacing without any structure or backing.

Because of safety concerns posed by the condition of the home, the caseworker informed B.Y. that she and J.Y. could not stay at that residence.   B.Y. agreed to stay with her aunt;  however, she ultimately left her aunt's home with J.Y. and her mother before the caseworker could ascertain where B.Y. and her child would be staying.

B.Y. did not provide any contact information, and DYFS was unable to make contact with B.Y. until February 2009.   On February 18, 2009, the caseworker learned that Z.Y. had been hospitalized and was released from the hospital a week earlier, and that the child required a nebulizer and apnea machine.   The next day, B.Y. contacted the caseworker and stated that she had been staying at the Riviera Motel in Pennsauken 2 but that she was leaving to stay with her aunt in Camden.

On February 26, 2009, J.Y. and Z.Y. were removed from B.Y. pursuant to a DODD 3 hearing, and placed with B.Y.'s aunt, K.F., and K.F.'s boyfriend, B.R. B.Y. was ordered to attend parenting skills training and psychological and psychiatric evaluations.   DYFS preliminarily established that B.Y. had abused and neglected Z.Y. and J.Y. B.Y. was ordered to attend parenting skills training, counseling, and psychological and psychiatric evaluations.

Although B.Y. successfully completed a course in parenting skills and attended the required evaluations, her overnight visitation time with her children was suspended because K.F. reported that Z.Y. and J.Y. had returned from overnight visits with B.Y. dirty and unkempt, and on two occasions, J.Y. had returned with what appeared to be a bruised eye.

E.Y.'s birth was shrouded in secrecy.   From February 2010 until March 5, 2010, B.Y. was questioned multiple times by her caseworker whether she was pregnant, but B.Y. consistently denied the pregnancy.   During a May compliance review hearing, B.Y. finally admitted that she had a third child, E.Y., born on March 6, 2010.   Thereafter, DYFS filed an amended abuse and neglect complaint against B.Y., and E.Y. was removed from B.Y.'s custody during a pediatric exam at CamCare.

E.Y. was placed with F.M., the alleged paternal aunt;  however, D.M., the alleged father who was incarcerated and not living in the home, was excluded as the father following a negative paternity test.   The Law Guardian filed a motion to place E.Y. with her siblings in the custody of K.F. and B.R. Judge Melendez denied the motion, and E.Y. remained with F.M.

During the fact-finding hearing, Dr. Gregory C. Gambone testified that defendant had poor cognitive abilities, including reading and language function deficits which could impact her ability to parent.   Dr. Gambone opined that

these combined characteristics would likely contribute to increased confusion, poor decision making, that could, eventually, lead to child neglect.   I'm not connecting the dots, I'm just trying to put on the table what factors I think I'm seeing in the assessment of [B.Y.] that would contribute to inadequate parenting.

So, so far you have some cognitive deficits, you have a whole series of social stressors, social and interpersonal stressors, and then, as well, you have some personality dysfunction that may contribute, as well.

Then we go, kind of, to the conceptual end of it.  [B.Y.] has a superficial understanding of the physical, emotional, intellectual, and social needs of her children.   So she has some understanding, I don't want to ․ minimize that too much.   However, she has a history of disregarding her responsibility for her children's health and safety under conditions of residential instability, improper child medical care, and possible ․ physical discipline.

Further, Dr. Gambone observed that B.Y.'s failure to acknowledge the birth of E.Y. during the course of the legal action “strongly suggests an inability to consider the consequences of her actions with regard to her children's future.”

Dr. Matthew Johnson, who evaluated B.Y. several months after DYFS took custody of E.Y., disagreed with Dr. Gambone's assessment.   Though he acknowledged that he was unaware of B.Y.'s prior unsuitable housing arrangements and that he did not discuss with B.Y. why she had concealed E.Y. from DYFS and the court, Dr. Johnson opined that based on his observations, B.Y. was a “viable care provider for her daughter,” and did not pose a risk of harm to E.Y.

B.Y. noted that she had received prenatal care during her pregnancy with E.Y. Upon E.Y.'s discharge from the hospital, three days after her birth, B.Y. took her daughter to live with F.M. in Camden because the “roof was leaking” where she was staying.   B.Y. may have also lived with the alleged paternal grandmother as well as her own parents, while the child remained at F.M.'s, because she did not want DYFS to know about E.Y. She stated that she lied to DYFS because she did not want the Division to “take [her] child away,” and she would “rather [the] child to live with someone else than live with [her]” if it prevented DYFS from finding out where the child was.

Of the five witnesses who testified, B.Y. was the only witness Judge Melendez found not to be credible.   The judge noted:

This Court did not find [B.Y.] to be a credible witness.   She initially stated that after [E.Y.] was discharged from the hospital, [E.Y] went to live at the home of [F.M.]. [B.Y.] claimed she would go to [F.M.]'s home every[ ]day from 9:00 am until 9:00 pm in order to care for [E.Y.] and spend time with her.   She later testified that she goes to parenting classes every Wednesday at 6pm and goes to school Monday through Friday from 9 am until 12pm.   Also, when she was done school for the day, her father usually picked her up and she would help him work a construction job.   This took place about two or three days a week for about two or three hours a day.   Therefore, [B.Y.] could not have possibly seen [E.Y.] every day from 9am until 9 pm like she had initially claimed.

Judge Melendez concluded that B.Y. had abused and neglected E.Y. B.Y. agreed to the court's grant of custody of E.Y. to F.M. and thereafter, B.Y. surrendered her parental rights to Z.Y. and J.Y. with custody and ultimately adoption of those children to a maternal aunt K.F.

On appeal, B.Y. asserts that the judge erred in finding abuse and neglect.   She claims that abuse and neglect were not established by the facts, and the ultimate findings were punitive, based on prior paternal conduct, rather than B.Y.'s conduct with the child.

In this appeal of a non-jury case, we must determine “whether the findings made [by the trial court] could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility.”  N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 442–43 (App.Div.2001), certif. denied, 171 N.J. 44 (2002).   We will “defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand;  it has a feel of the case that can never be realized by a review of the cold record.”  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks and citation omitted).   See also Cesare v. Cesare, 154 N.J. 394, 413 (1998) (“Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.”).

Title 9, N.J.S.A. 9:6–8.21 to –8.73, governs the adjudication of abuse and neglect actions.  N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010).   In an abuse and neglect case, the safety of children is the paramount concern.  N.J.S.A. 9:6–8.8.

An “abused or neglected child” is defined in part as:

a child less than 18 years of age whose parent ․ (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ;  (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ;  ․ (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent ․ 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. 9:6–8.21(c)(1)–(2), (4).]

The purpose of a fact-finding hearing in a Title 9 proceeding is not to assign guilt to a defendant but to determine whether a child is abused or neglected under N.J.S.A. 9:6–8.21. N.J.S.A. 9:6–8.44;  N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.Super. 551, 581 (App.Div.2010).   DYFS must establish abuse or neglect through “competent, material, and relevant evidence” by a preponderance of the evidence.  N.J.S.A. 9:6–8.46(b);  see also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011).   The trial judge “must articulate, with particularity, the facts upon which a determination of abuse or neglect is made.”  N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 265 (App.Div.2002).

A court may consider a parent's past actions as indicative of his or her future ability to effectively parent.   See J. & E. v. M. & F., 157 N.J.Super. 478, 493 (App.Div.), certif. denied, 77 N.J. 490 (1978) (finding that “[n]othing in the record suggests any dramatic change with respect to their capacity as parents to warrant our harboring the hope that [their child] can some day be safely returned to them”).  “Predictions as to probable future conduct can only be based upon past performance․  Evidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care to other children in their custody.”  N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 616 (App.Div.) (quoting J. & E., supra, 157 N.J.Super. at 493), certif. denied, 192 N.J. 68 (2007).

We recently reaffirmed this principle in I.H.C., supra, 415 N.J.Super. at 573.   We held:

[I]n civil proceedings for the protection of a child, a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child.  N.J.S.A. 9:6–8.46(a) states that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of ․ the parent or guardian.”   Thus, the statute itself provides for admissibility of evidence about other children.


Moreover, “[t]he effect of neglect upon children is also dependent upon the parent's ability or willingness to change.”  N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J.Super. 190, 201 (Cty.Ct.1981) (citations omitted.).

Because the abuse or neglect statutes expressly require that the court assess risk to the children, “the Legislature has made risk of harm, not just past injury or acts, relevant to determining whether a child is an abused or neglected child.”  I.H.C., supra, 415 N.J.Super. at 575.   Accordingly, “the risk, or pre-disposition, that a defendant may harm the children is expressly admissible in an abuse or neglect case.”  Id. at 575–76.   Courts need not wait until a child is actually irreparably impaired by parental inattention or neglect.  In re Guardianship of DMH, 161 N.J. 365, 383 (1999).   In DMH, the Court found that although there was no question the defendant father loved his children, “he was not able to fulfill any of his parental duties,” and the record supported a finding of neglect because the father would “not be able to provide a safe and stable home for the children in the near future.”  Ibid.

Here, the trial court did not err in finding that B.Y. abused and neglected E.Y. by exposing her to a substantial risk of harm.   Judge Melendez's opinion states, “It is clear from previous and current conduct that not only is [B.Y.] incapable of giving [Z.Y.] and [J.Y.] the proper care and supervision they need, but [E.Y.] would also be at a substantial risk of further harm if she remained in [B.Y.]'s care.”   The judge found Dr. Gambone to be a credible witness, and when “taken as a whole, all of the tests that Dr. Gambone conducted indicated that [B.Y.] should not be considered capable of adequately parenting her children on an independent basis.”   Dr. Johnson, B.Y.'s witness, was also found to be credible.   Judge Melendez noted that Dr. Gambone was the only expert who performed an evaluation on B.Y. around the time that E.Y. was removed from her custody.   Dr. Johnson did not perform his evaluation until four months after E.Y.'s removal, and the two other experts' reports (both of which supported removal) were made in the year prior to E.Y.'s birth.

Critical to Judge Melendez's findings were B.Y.'s abuse and neglect of her prior two children, the fact that she lacked suitable housing, her transient nature—“[s]ince December of 2008, [B.Y.] has moved a total of ten times”—and her dishonesty with DYFS. Defendant's contentions that this finding was based on B.Y.'s poverty, or was the result of DYFS' resources, are inaccurate.

DYFS continually reached out or attempted to reach out to B.Y. to provide services that would enable her to care for her children.   DYFS provided classes, counseling and doctors' examinations despite the fact that she concealed her location, her pregnancy and eventually her daughter from DYFS. DYFS established that B.Y. was transient and did not and could not provide habitable housing for E.Y. B.Y. was unwilling to change, and the trial court did not have to wait until E.Y. was irreparably harmed to rule as it did.

Further, as DYFS notes, B.Y. did not object to F.M.'s custody of E.Y. during the proceedings.   To the contrary, at the compliance review, B.Y.'s counsel suggested a preference for E.Y.'s placement with F.M., stating:  “Let me make clear, my client has a very, very good relationship with [F.M.] ․ Her preference is that the child stay where she is.”   Most recently, at the January 12, 2011 compliance review, B.Y.'s counsel stated:  “I understand that as a matter of course, if there is an application for change of custody, there would be a requirement of notification to DYFS, obviously, that's required.   I would ask that there be no additional notification required ․ it does not seem that the circumstances would require that.”

The judge carefully assessed the record, and her findings are sound and based on the credible evidence before her.   We affirm essentially for the reasons set forth in Judge Melendez's various orders and her thoughtful and thorough written opinion of October 7, 2010.



FN1. By a prior order, the child had been placed with F.M., so the placement was continued in the final order..  FN1. By a prior order, the child had been placed with F.M., so the placement was continued in the final order.

FN2. The caseworker described the motel as one connected to a gentleman's club and “available by the hour.”.  FN2. The caseworker described the motel as one connected to a gentleman's club and “available by the hour.”

FN3. “A ‘Dodd removal’ refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act ․ N.J.S.A. 9:6–8.21 to –8.82.” N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J.Super. 593, 609 n.2 (App.Div.2010))..  FN3. “A ‘Dodd removal’ refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act ․ N.J.S.A. 9:6–8.21 to –8.82.” N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J.Super. 593, 609 n.2 (App.Div.2010)).


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