Opinion
DOCKET NO. A-1748-13T2
07-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.W., Defendant-Appellant. IN THE MATTER OF M.H., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Ostrer and Hayden. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0239-11. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant C.W. (Cindy) appeals the June 6, 2011 Family Part order finding that she abused and neglected her child by failing to exercise a minimum degree of care. We affirm.
We use pseudonyms to protect the family's privacy.
The record reveals the following facts. Defendant is the mother of M.H. (Mary), who was born in April 2005. On February 9, 2011, the Division received a referral from P.K. (Patty), who identified herself as defendant's cousin. Patty reported that she was acting as the sole caretaker of Mary and had done so for several months without any assistance from defendant. She claimed that defendant asked her to pick the child up from school one afternoon and never returned to take the child home. The Division investigated and subsequently performed an emergency Dodd removal, placing Mary in foster care. In its complaint for custody, care, and supervision of Mary, the Division noted it had previously received a similar referral in 2008 that defendant had left Mary in the care of others for long periods of time. At the show cause hearing on February 15, 2011, the court determined that Mary should remain in the Division's custody.
Mary's father, R.H., is not a party to this appeal.
Cindy is also the mother of two older children, who are currently in the custody of their father and are not involved in this litigation.
N.J.S.A. 9:6-8.29.
The following day, defendant contacted the Division's caseworker, Lisa Pigott-Lafond, who instructed defendant to come to the Division's offices to meet with investigators. Defendant promised that she would contact the Division and provided a phone number and address where she could be located. However, she did not come to the Division and the Division was unable to contact defendant using the information she provided. Defendant did not contact the Division again until two months later, on April 12, 2011, when she went to the Division's offices. The Division held a family team meeting during which defendant admitted that she had substance abuse problems and had been drinking that morning. The Division requested defendant to undergo an emergency substance abuse assessment, which tested positive for alcohol and opiates. Thereafter, defendant entered into a treatment program.
At the fact-finding hearing on June 6, 2011, the Division presented the testimony of two caseworkers, Pigott-Lafond and Natasha Gooding. Additionally, the Division offered into evidence the February 9, 2011 referral, the investigation summary, and the substance abuse test results. Defendant objected only to the admission of the substance abuse test results, which the trial court admitted after hearing testimony. The Division caseworker testified that Mary was with Patty from October 2010 until the Division's removal in February 2011. The caseworker testified that during that time, defendant did not provide Patty with any financial assistance and did not contact either Patty or Mary. The caseworker further recounted that defendant had previously left Mary in Patty's care on at least two occasions for long periods of time because defendant abused alcohol. The caseworker testified that she attempted to contact defendant on a number of occasions to no avail based on telephone numbers and addresses provided by Patty and defendant's family.
The caseworker acknowledged that Mary was found to be well-groomed and happy, and Patty's house was fairly clean and had electricity, water, and food. However, the caseworker expressed a major concern that Patty had given the Division false information. In particular, she noted that Patty stated she was a licensed foster parent and she had joint legal custody of Mary, but there was no court or Division record confirming this statement. Further, the caseworker was concerned that Patty, who stated that she was bipolar, was not taking medication or receiving therapy, and that she had denied ever using drugs despite having a criminal history involving drug use.
At the conclusion of the hearing, the trial court found that defendant had abused or neglected Mary as she had left her in Patty's care for a lengthy period with no plan to pick her up and without providing any financial assistance. The judge found the caseworker's testimony to be credible, and determined that the Division's concerns regarding Patty's ability or fitness to parent Mary were warranted.
After a number of compliance hearings, the judge adopted the Division's recommendation that defendant be reunited with Mary as she had complied with the Division's requests and was receiving services. Thereafter, on June 21, 2012, defendant and Mary were reunited and an order was entered returning legal custody to defendant. On October 24, 2013, the litigation was terminated. This appeal followed.
On appeal, defendant argues that the trial court erred in finding that she failed to exercise a minimum degree of care. Defendant maintains she acted reasonably and responsibly in placing her child with a relative because of her lack of housing and substance abuse problems. Defendant contends that there was no evidence that Mary was at risk while staying with Patty. We disagree.
We begin with a review of the applicable legal principles that guide our analysis. The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse and neglect. N.J.S.A. 9:6-8.21 to -8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). Title Nine's purpose is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). A child is abused or neglected when the child's
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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
[N. J.S.A. 9:6-8.21(c)(4).]
The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "'refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 300 (quoting G.S., supra, 157 N.J. at 178). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123-24 (1995)).
Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the conduct is "analyzed in light of the dangers and risks associated with the situation[,]" with an emphasis on "the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger." Id. at 181-82; see T.B., supra, 207 N.J. at 309-10 (finding only negligence where mother left four-year-old alone at home because she mistakenly believed the child's grandmother was present); N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App. Div. 2009) (finding only negligence where mother allowed children to walk from the playground to condominium within her line of sight). But see N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011) (finding gross negligence where defendant left infant on bed near radiator and infant was severely burned because defendant's use of blanket as buffer showed he was aware of substantial risk of imminent harm).
Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The court must look at the totality of the circumstances in making its findings. Id. at 33-34 (citing M.C. III, supra, 201 N.J. at 345); see also Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010) ("Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of many acts may be 'substantial.'") (internal citations omitted) (alteration in original).
Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We must determine "whether the findings made 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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is accorded to the family court because of its "'expertise in family matters[.]'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
However, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). 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 Twp. of Manalapan, 140 N.J. 366, 378 (1995).
The issue here is whether defendant's decision to leave Mary in Patty's care for several months without providing financial assistance, an order of custody or guardianship, or in any way following up constitutes a failure to exercise a minimum degree of care. N.J.S.A. 9:6-8.21(c)(4). Whether a particular event should be classified as merely negligent, as opposed to gross or wanton negligent, can be difficult to determine, T.B., supra, 207 N.J. at 309, and often seems much clearer with the benefit of hindsight. At the time the Division acted, defendant's actions were reckless and put Mary at substantial risk of harm. See G.S., supra, 157 N.J. at 178. The record clearly demonstrates that defendant had a history of leaving Mary in the care of others for long periods of time without resources to care for the child. The record is also devoid of any evidence suggesting that defendant planned or had an agreement with Patty to take care of Mary. Cf. T.B., supra, 207 N.J. at 309-10; J.L., supra, 410 N.J. Super. at 168-69 (no abuse or neglect where children were left alone for a brief period of time).
It is also undisputed that defendant did not contact or visit Mary for almost the entire four-month period in which Patty was caring for Mary, apart from a brief visitation in early February. Moreover, defendant did not provide Patty with any financial assistance, a working phone number or contact information, and did not give Patty any authority through an order for custody or guardianship to make emergency decisions on behalf of Mary. Indeed, even after the Division had custody and defendant spoke to the caseworker, she did not make herself available to meet with the Division for two months. Consequently, we conclude that defendant's actions showed reckless disregard for Mary's safety and created a substantial risk of harm to the child.
We also reject defendant's argument that the trial court erred in admitting the drug and alcohol test results. The "admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Yilmaz, Inc. v. Dir., Div. of Taxation, 390 N.J. Super. 435, 443 (App. Div.) (quoting Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991)), certif. denied, 192 N.J. 69 (2007). Here, the trial court did not base its finding of abuse and neglect on the substance abuse test results. Rather, the trial court used this to corroborate the information the Division received in the referral and investigation. As such, we find that the trial court did not abuse its discretion in admitting the test results into evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION