Opinion
DOCKET NO. A-5801-12T3
02-06-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.K., Defendant-Appellant. IN THE MATTER OF A.M.Y., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Catherine Davila, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-312-12. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Catherine Davila, Designated Counsel, on the brief). PER CURIAM
Defendant A.K. (Alice) appeals the Family Part's August 9, 2012 order finding that she had abused or neglected her infant child A.M.Y. (Amy). We reverse.
We use pseudonyms to refer to the individuals in this case for the purpose of clarity.
I.
We discern the following facts and procedural history from the record on appeal.
Amy was born in May 2011, in California, where Alice was living at the time. Alice was then twenty-two years old. She was originally from Alaska, but had left home at age eighteen, went to California, and became a transient.
Soon after Amy's birth, Alice informed P.A. (Peter), to whom she was married but separated, that he was Amy's father. He purchased an airplane ticket to Newark so Alice and Amy could move in with his extended family in Bayonne. Alice and Amy resided with Peter and his family for two months.
Peter eventually questioned his paternity and obtained a private DNA test, which indicated no probability of paternity. He asked Alice to leave his family's house with Amy in October 2011.
Amy's biological father has not been identified.
Alice did not have any friends or family in New Jersey. After leaving Peter's home, Alice and Amy moved to Hope House Shelter, a homeless shelter in Jersey City. They resided at the shelter for approximately two months. During that time, Alice and Amy received public assistance.
On January 4, 2012, Alice had not slept in two days and no longer felt safe at Hope House. She had reported to the shelter staff that she had seen other mothers who abuse and threaten to kill their children. She also told them that the other shelter residents began calling her a "snitch."
The same day, Alice went to Jersey City Medical Center (Medical Center), where she underwent a mental health evaluation and was discharged. Although she received an appointment for counseling, she was distressed because the first session was not to take place until January 13. Alice brought Amy with her during that visit to the hospital.
On January 5, a Jersey City Police officer contacted the Division of Child Protection and Permanency (Division) to report that, after she placed a 9-1-1 call, Alice had been transported to the Medical Center and she had left Amy at the shelter. This was the Division's first involvement with Alice and Amy.
Division staff members arrived at the Medical Center and spoke to Alice. They asked her about leaving her baby unsupervised. She replied that she "had the baby in the stroller but [] had staff watch her." Alice told them that she "did not want her daughter to see her upset or [see] her like that." The workers advised her that it was not Hope House staff's responsibility to watch Amy.
Approximately two hours later, Alice was discharged. The Division workers accompanied her back to Hope House. Lillybeth Rivera, a Hope House staff member, was caring for Amy when the Division workers and Alice returned. The workers characterized Amy as "big and healthy."
The following day, Division workers, including Elizabeth Zambrano, returned to Hope House. They learned that, on the previous day, "[Alice] left the child in a stroller in the hallway of the facility unattended for an undisclosed amount of time. When the staff became aware of this and approached her about [it], [Alice] began screaming." According to Rivera, Alice was observed to be "appropriate with [Amy] except for [January 5,] when she left [her] unattended in the hallway." Rivera also reported that "[Alice] left [Amy] completely alone in her stroller while she walked to the outside of the shelter." She noted that "[Alice] ha[d] only been at the shelter for two months and there were no concerns of child abuse or neglect."
The workers interviewed Brenda Pulaski, Director of Hope House, who informed them that Alice displayed "psychotic" behavior and had been telling Hope House staff she wanted to kill herself. Because the staff at Hope House was not trained to handle residents with that type of mental health issue, Alice would be discharged from the shelter. Pulaski declined the Division's offer of homemaker services to assist Alice, explaining that she believed Alice was a "ticking time bomb" and that "something bad [would] happen at any time." However, Pulaski reported no issues regarding Alice's abuse or neglect of Amy.
Upon learning that she would no longer be permitted to reside in the shelter, Alice became distraught and told Division workers that she had no family or friends for support. The Division searched unsuccessfully for a different shelter in Hudson, Bergen, and Passaic Counties.
The Division workers suggested twenty-four-hour homemaker services for Alice, which she declined. When the workers told Alice that the Division wanted to implement a plan for her and Amy due to concerns about Alice's mental illness, she responded "[i]f you take my child, I'll die. I won't be able to live without my daughter. You can't just take her from me." Alice subsequently agreed to accept homemaker services when the Division decided to place Alice in a motel until they could find a different solution.
While transporting Alice to the motel, the Division workers observed her laughing and crying by herself. They also observed Alice staring into space at times and then laughing, which they characterized as "scary." One worker had to direct Alice to feed Amy, when she did not respond to Amy's crying. However, they did not observe anything that indicated abusive or neglectful behavior.
The Division interviewed members of Peter's family. They reported that they did not suspect abuse or neglect, although they thought Alice suffered from a mental ailment.
In January 2012, Larry E. Dumont, M.D., examined Alice. At the time, Alice had custody of Amy and continued to reside in the motel. Due to Alice's "significant psychiatric problem," Dumont recommended Alice undergo "partial hospitalization [so] she is seen on a daily basis." He related her "impulsive decision making" to her many moves in the past several years and multiple short-term relationships. According to Dumont,
there was not one occasion when she really expressed concern about her daughter's well-being or how her daughter was doing or expressed contrition about how her life impacted on her daughter. Instead, this is a woman who presented in an exceedingly narcissistic manner whose sole concern seemed to be about herself.Dumont's diagnostic impression was that Alice suffered from bipolar affective disorder, post-traumatic stress disorder, and borderline personality disorder.
Dumont recommended the Division assume custody of Amy so she could be provided with a stable and consistent living environment, and that Alice be allowed only supervised visits. He also observed that, if Alice wished to regain custody, she should be "involved in her own individual therapy on a regular basis, attending a program such as a partial hospitalization program on a regular basis, complying with taking prescribed medications, attending a parenting skills training program, and attend a substance abuse outpatient treatment program."
On January 23, a Family Part judge granted the Division's emergent application for custody, care, and supervision of Amy on the basis of Alice's mental health issues and Dumont's report. The judge determined that continued custody by Alice would, at that time, be contrary to Amy's welfare. At the hearing, Alice used profanity towards the judge and court staff after the judge granted custody to the Division. The sheriff officers intervened as Alice ran out of the courtroom with Amy in her arms. Alice was subsequently transported to the Medical Center.
On February 27, the judge held a hearing on the return of the Division's order to show cause seeking custody. The Division informed the judge that it was exploring Alice's mother as a potential placement for Amy and that Alice had rescinded releases to allow the Division to obtain her medical records. The judge determined these records would not be necessary until after the fact-finding hearing. She ordered Alice's visitation increased to two hours, twice weekly. Finally, the judge ordered the Division to arrange a paternity test for Peter.
Paternity tests ultimately confirmed that Peter was not Amy's biological father. He had no further involvement in the litigation.
On March 27, Mark H. Seglin, Ph.D., reported on the results of his examination of Alice, which had been arranged by her attorney. Seglin reported that Alice disclosed that she had been molested by her father and physically abused by her older brother. She also told him that her parents had a tense relationship due to their mutual unfaithfulness. Alice further disclosed that she had abused narcotics and prescription pain medicine in the past, but had not done so for several years.
After administrating psychological, child abuse and parenting skill tests, Seglin determined that Alice exhibited psychological dysfunction of mild to moderate severity and diagnosed her with obsessive compulsive personality disorder with histrionic personality features. Seglin did not agree that Alice was psychotic or presented as high-risk.
Seglin concluded that, on January 5, Alice "succumbed to a moment of extreme anxiety which combined with her overall tendency to the dramatic[,] indeed histrionic[,] resulted in suicidal statements" that triggered a Division referral. Nevertheless, Seglin found no risk of suicidal ideation. Although Alice was depressed, he concluded that she was demonstrating a "significant amount of resilience in the face of the current crisis." He recommended Alice attend parenting classes and counseling, and that the Division refer her to career counseling and training. He further recommended that the Division find housing, and work toward reunification of Alice and Amy.
On August 9, a different Family Part judge conducted a fact-finding hearing. The Division presented testimony from Zambrano. She described Hope House as "a shelter designed for women who have children, who are in distress and [] homeless." Zambrano testified that she had always observed Alice properly caring for her child. She told the judge that members of the Hope House Staff told her that Alice had "left [her] child unattended while she was walking out of the shelter to call [9-1-1]." However, the Division was unaware of how long Alice had left Amy, whether there were people around her, or whether Alice had asked any staff members to watch Amy.
The Division offered Dumont as an expert witness in the field of psychiatry. He testified that he "felt that there was a potential danger in keeping the child with the mother at [that] point in time." According to Dumont, although he had concerns about "negligence," Alice "never led [him] to believe that any physical harm would really come to the child." Dumont testified that Alice did not speak about Amy often during the exam, but during cross-examination he conceded that he only saw Alice for approximately forty-five minutes and was uncertain about how much he asked Alice about her daughter.
During Dumont's testimony, the judge admonished Alice when she used profanity and called him a "quack."
Following Dumont's testimony, the Division rested. Alice presented Seglin as her expert. The Division objected because Alice had revoked her consent to the release of her medical records and refused to participate in the psychological evaluation requested by the Division, and also on grounds that the basis of Seglin's opinion included observations of Alice's psychological condition after the January 5 incident. The judge overruled the objection.
Seglin's testimony was largely consistent with his report, as described above. He opined that Alice's suicidal gestures on January 5 were part of a histrionic syndrome of making dramatic statements to get attention. He acknowledged he did not have access to the hospital records of January 4 or 5 when he prepared his report. He was unwilling to "second-guess" the Division's decision to seek custody of Amy.
The final witness, a Division caseworker assigned to Alice's case, testified that Alice was then residing with a woman from her church, working at a supermarket full time, and remaining consistent with her visitations. The Division had not referred Alice to substance abuse treatment because the results of her substance abuse assessment indicated it was not needed.
Following summations, the judge delivered an oral decision. She outlined the evidence and described it as generally credible. The judge did not, however, outline the applicable law or the legal standard by which Alice's conduct was to be judged.
The judge noted that the only "indicia of evidence" that indicated Alice made any plans for supervision of her child was Alice's own reports to Division emergency response workers that she left the baby with support staff at the shelter. She queried:
[W]hat this Court can't understand is if [Alice] felt so unsafe [at Hope House], w[asn't she] a little worried about whether the baby was safe, if she left the baby alone there? If the staff wouldn't keep [Alice] safe . . . they couldn't keep the baby safe.
. . . .
There is a child, under a year old at the time who's left in a hallway of a place Mom is so scared of, she fakes . . . a suicide issue to get out of there. I believe by a preponderance of the evidence that she made no arrangements for that child other than leaving that child in the hall.
The judge also referred to Alice's outbursts in court.
[H]er judgment is so impaired and she's so impulsive that she has these outbursts in not one, but two courts, two separate judges, she needs help. She needs services. And she needs [to] get over the denial. She's got big problems that affect her ability to parent. And from her behavior, all of the concerns for this child are merited. Somebody who can't restrain themselves and is that impulsive, has a history - - whatever you want to call it - - of cutting themselves, faking suicidal ideations, and leaving a child in a place that they feel isn't safe for themselves, has some work to do.In the resulting order, the judge determined that "by a preponderance of the evidence . . . [Alice] abused or neglected the child[] based on the court's findings of fact and conclusions of law pursuant to N.J.S.A. 9:6-8.21(c)."
We briefly describe the proceedings that followed the fact-finding hearing. In January 2013, the Division's request for the termination of parental rights and permission to send Amy to her maternal grandmother's home in Alaska was denied. The judge explained that Alice had been complying with the previous court orders regarding visitation, now held a steady job, and had housing. On March 18, Alice's plan for reunification with Amy was accepted. In June, the litigation was terminated and Amy was returned to Alice's custody. This appeal followed.
II.
On appeal, Alice argues that there was insufficient evidence in the record to support the trial judge's finding of abuse and neglect under the applicable legal standard.
A.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid. The purpose of the act is
to provide for the protection of children under 18 years of age who have had serious
injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).
[N.J.S.A. 9:6-8.8(a).]
Title Nine also provides that an abused or neglected child includes one
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 or guardian, as herein defined, to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306-07.
[N.J.S.A. 9:6-8.21(c)(4).]
There is no requirement that the parent actually anticipate that harm will result from the conduct at issue.
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). Because 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. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J. at 305. Knowledge will be imputed to the actor.
As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence
to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).
Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Ibid.
[G.S., supra, 157 N.J. at 178-79.]
The essence of the trial judge's opinion in this case was that Alice did not act appropriately.
And I find by a preponderance of the evidence that [Alice] did not make appropriate arrangements for that baby. I think it's much more probable than not, that she just left the baby in the hall. She had a meltdown. . . . But her actions were beyond inappropriate.Making inadequate, or even "beyond inappropriate," provision for Amy, under the totality of the circumstances of this case, does not, in our opinion, amount to "conduct that is grossly or wantonly negligent" or "reckless disregard for the safety of others." T.B., supra, 207 N.J. at 305-06.
. . . .
So I do find by a preponderance of the evidence that [Alice] neglected [Amy] on January 5th, when she left her in the Hope House without making adequate provisions for her care.
We agree with the judge's conclusions that Alice was having "big problems" and "a meltdown" on January 5. Because of her condition, Alice left Amy at the shelter prior to going to the hospital without making appropriate arrangements with the staff. That was certainly negligent on her part. The record before us, however, does not support a finding that Alice's conduct was grossly or wantonly negligent or that she acted in reckless disregard for Amy safety. That was the applicable standard by which her conduct was to be measured, a standard that was nowhere mentioned in the judge's opinion.
There is nothing in the record to suggest that Amy was actually put at risk. It appears from the record that the shelter staff found Amy in the stroller and contacted the police. We note that, after they received the referral from the police, the Division's workers went to the hospital to interview Alice and allowed Amy to remain at the shelter, where she was being cared for by a member of the staff. That Alice may have felt unsafe at the shelter does not mean that the baby was unsafe. It was most likely the result of Alice's mental condition at the time, rather than a reflection of any danger to Alice herself.
We do not mean to suggest that the Division acted inappropriately by getting involved with the family or subsequently seeking custody of Amy. Alice clearly had mental health problems that had to be addressed so she could become an effective parent. The Division acted appropriately in this case, and also successfully, inasmuch as Amy was eventually returned to Alice.
Nevertheless, after giving the required level of deference to the Family Part judge's findings, our review of the record on appeal convinces us that it does not support a finding of abuse or neglect within the meaning of the cases cited above. Consequently, we reverse the order on appeal and direct that Alice's name be removed from the Child Abuse Registry. N.J.S.A. 9:6-8.11.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION