New Jersey Division of Youth & Family Services v. V.M.

974 A.2d 448, 408 N.J. Super. 222, 2009 N.J. Super. LEXIS 162

• Court: New Jersey Superior Court Appellate Division
• Decided: July 16, 2009
• Status: Published

Opinions

PER CURIAM.

Defendants V.M. and B.G. appeal from the judgment of the Family Part which found that they abused and neglected their child, J.M.G. As a result of these findings, J.M.G. was placed in the custody and care of plaintiff Division of Youth and Family Services (DYFS). At a permanency hearing the judge approved DYFS’s plan for termination of parental rights.

We have carefully reviewed this record in light of defendants’ contention that the judge erred in finding abuse and neglect. We agree that the judge’s findings as to V.M. were supported by the evidence adduced at the hearing, but as conceded by the Deputy Attorney General representing DYFS at oral argument before us, we disagree as to his findings as they relate to B.G. We further agree with the ultimate conclusion reached by our concurring colleague affirming the judgment as to V.M. and reversing as to B.G. In so doing, we adopt the facts as set forth in the concurring opinion, and we generally ascribe to the law, which he so thoroughly enunciates in that opinion. Where we part company is his discussion of whether V.M.’s refusal to consent to a cesarean section (c-section) can, as a matter of law, be considered an element of abuse and neglect. On the record before us, we do not agree that the issue need be decided.

While we acknowledge that the judge, in fact, did rely, in part, on such refusal in his findings of abuse and neglect, we are of the view that there was substantial additional evidence of abuse and neglect that supported the ultimate findings. Our view is consistent with DYFS’ acknowledgement at oral argument that the judge need not have considered V.M.’s refusal on the merits of the issue of abuse or neglect. DYFS did assert, as well, that the judge could consider V.M.’s refusal and her later claim that she did not refuse, as these statements relate to her credibility.

As we have stated, the independent evidence presented, irrespective of the evidence concerning V.M.’s resistance to the c-section, amply supported the judge’s ultimate finding as to V.M., and we affirm as to her. As to B.G., we reverse for the reasons set forth in the concurring opinion.

Affirmed as to defendant V.M.; reversed as to defendant B.G.