Opinion
DOCKET NO. A-4907-14T1 DOCKET NO. A-4908-14T1
06-21-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.Z. AND E.Z., Defendants-Appellants. IN THE MATTER OF A.Z., J.Z., and C.Z., Minors.
Clara S. Licata, Designated Counsel, argued the cause for appellant C.Z. (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the briefs). Beth Anne Hahn, Designated Counsel, argued the cause for appellant E.Z. (Joseph E. Krakora, Public Defender, attorney; Ms. Hahn, on the briefs). Sara M. Gregory, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Gregory, on the brief). Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes, Carroll and Farrington. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-142-14. Clara S. Licata, Designated Counsel, argued the cause for appellant C.Z. (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the briefs). Beth Anne Hahn, Designated Counsel, argued the cause for appellant E.Z. (Joseph E. Krakora, Public Defender, attorney; Ms. Hahn, on the briefs). Sara M. Gregory, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Gregory, on the brief). Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief). PER CURIAM
Defendant E.Z. (Erica) is the biological mother and defendant C.Z. (Conor) is the biological father of three minor children: A.Z. (Alice), born in June 2006; C.Z. (Christopher), born in March 2009; and J.Z. (James), born in August 2010. In these consolidated appeals, defendants challenge the April 30, 2014 Family Part order finding that they abused or neglected the children pursuant to N.J.S.A. 9:6-8.21(c)(4)(a).
We use pseudonyms for the reader's convenience and to protect the privacy of the children.
In New Jersey Division of Child Protection and Permanency v. L.W., 435 N.J. Super. 189 (App. Div. 2014), we held that homelessness resulting from a parent's poor planning did not support a finding of abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(a). Because we find L.W. squarely controlling, we reverse.
I.
The family first came to the attention of the New Jersey Division of Child Protection and Permanency (the Division) in June 2011, when the Division received referrals expressing concerns about defendants' supervision of Alice and Christopher. Upon visiting defendants' residence in Phillipsburg to investigate, defendants informed the Division of their difficult financial situation. Specifically, defendants stated they received $716 per month in food stamps, $433 in aid from the Temporary Assistance for Needy Families ("TANF") program, $1080 from the Section 8 Housing Assistance program (which completely covered their rent), and that the children had medical insurance coverage. The Division determined the allegation of abuse or neglect was unfounded.
The Division received another referral in July 2011, reporting that defendants negligently failed to supervise their children. The referral was investigated and determined to be unfounded.
The Division received additional referrals on April 29, 2012, and May 3, 2012, alleging that defendants engaged in inappropriate conduct that put the family at risk of eviction, and were verbally abusing the children. When the Division visited the family, Conor admitted "his children's medical insurance had lapsed[,]" even though both Alice and Christopher needed to see specialists for their disorders of sex development (DSDs). Erica confirmed the lapse, but indicated she was "in the process" of re-activating the coverage. Conor further conceded the family was at risk of losing their electricity because their utility bill was delinquent, but he hoped to satisfy the required balance when Erica was paid at the end of the week. The Division also learned that Alice would be repeating kindergarten because she missed seventy-four days of school. The allegations of abuse or neglect were unfounded, but the Division remained involved with the family to monitor the children's medical appointments.
The record and briefs refer to the disorder as hermaphroditism, but "experts, patients and families" no longer use that term; "[i]ncreasingly, this group of conditions is being called disorders of sex development (DSDs)." Nat'l Inst. of Health, U.S. Nat'l Library of Med., Intersex, MedlinePlus, https://medlineplus.gov/ency/article/001669.htm (last updated June 5, 2017). --------
The Division received another referral in October 2012, reporting the family had moved to a different residence in Phillipsburg, but had lost power five days earlier due to Hurricane Sandy and an unpaid balance on their gas utility bill. The Division ultimately paid the bill after Conor's attempts to contact various social service agencies for assistance proved unsuccessful.
The Division then held a budget meeting with defendants and learned they: (1) received $657 in food stamps, (2) earned $800 monthly income, and (3) received a monthly $4 0 voucher from the Universal Service Fund ("USF") to pay the gas bill. Erica also informed the Division that the children had seen their primary care physician, but she had not yet scheduled follow-up appointments with the children's urologists or endocrinologists. The Division concluded that its investigation "revealed no concerns of abuse or neglect."
On June 2, 2013, the Phillipsburg Police Department received an anonymous phone call alleging that Conor was yelling at the children and had smacked James on the back of the head with an open hand. A police officer went to the home but observed "no signs of abuse or neglect." The officer "reported that there were no concerns but he had to call it into the Division because of the allegations. He reported that there were no marks or bruises on the children and they looked happy."
Two days later, a Division caseworker "spent the morning with the family creating a budget and calling local and government agencies to get funding for the family." The Division was informed that the electricity had been turned off on May 21, 2013. Defendants reported that Erica earned $460 per month working at Walmart, and they received $60 0 per month in food stamps. Defendants further reported that they fell behind because of a lack of day care. Consequently, because Erica was the higher wage earner, Conor quit his job at McDonalds to care for the children. Notably, the caseworker "informed the family that they might need to move [due] to the high electric and gas fees that they reported were not told to them prior to moving in to the home."
The caseworker went to the children's school and observed they appeared happy and dressed appropriately. At that time, Alice was in kindergarten and Christopher was in the three-year-old class. A school counselor reported that the children's attendance had been "a major issue" because Alice had forty-eight unexcused absences and Christopher had forty-one. The counselor described both children as "polite and nice," and stated they were performing acceptably in school and their attendance issues would not prevent them from advancing to the next grade level. The counselor "also reported that she has met with [Erica] and they are supposed to meet in the beginning of the school year 2013-2014 to try and rectify any issues." When questioned by the caseworker about the school absences, Erica responded that "there were missed days because the children needed to go to the doctor which they gave the school notes for and [] they only have one car and she would come home late from working overnights." Erica further advised "that she and her husband are working to correct the absences for next year."
Finally, the caseworker reported that James "was dressed appropriately and seemed to be in good spirits. His weight and hygiene looked good." The caseworker's assessment of the home was that it "was clean and neat" and "free of safety hazards." Additionally, "[t]he parents appeared to be engaged with the children and care for them in a well manner. The parents appeared to show appropriate affection to each other and the children. The worker has no concerns at this time."
The present controversy commenced on December 11, 2013, when Conor contacted the Division to report that the family would be homeless by the end of the week. Conor indicated that the family had been living in Allentown, Pennsylvania, but they were evicted on November 25, 2013; that they unsuccessfully sought help from the Lehigh County Welfare agency and the Salvation Army; that Alice had not been in school for about three weeks; and that they were temporarily residing with Erica's sister, Christine.
Upon arriving at Christine's home, the Division caseworker observed it "was clean and free of any safety concerns" and "[a]ll of the children appeared well cared for and were free of any visible signs of injury." Conor explained that both he and Erica had applied for, and obtained, jobs with Amazon. However, Connor's employment with Amazon was rescinded due to his criminal conviction for a weapons offense in 2004. As a result, defendants could no longer afford the Allentown apartment where they had moved to be closer to their employment with Amazon. Erica further advised that they could not receive public housing assistance because they owed around $200 in unpaid rent, which they believed was "not worth repaying" since they would then be placed on a waiting list that could take months, and they needed housing immediately.
One week later, the Division met with the family to provide the children with clothing and toys for Christmas. Defendants indicated they changed their address to Christine's residence in Phillipsburg to receive financial assistance and food stamps and re-establish residency in New Jersey. However, on December 27, 2013, and January 4, 2014, Conor left two telephone messages with the Division stating defendants had failed to secure housing and were denied food stamps because of a $600 overpayment they received when they moved to Allentown. On January 6, 2014, the Division received a Related Information (RI) referral from Conor's mother reporting the family was facing homelessness and expressing concerns about defendants' mismanagement of money and expenses.
The next day, the Division caseworker contacted Conor, who confirmed that the family could not stay with Christine any longer and had traveled to Jersey City where they unsuccessfully sought to enter a shelter. Conor also informed the caseworker that defendants had obtained the paperwork to enroll Alice in school but had not yet returned it. After futilely attempting to secure housing, the Division paid for the family to stay a night at a hotel. The caseworker met with the family at the hotel, and noted "[t]he children all appeared to be in good spirits and did not show any signs of visible injury." While there, Conor explained to the caseworker that "he and Erica did not want to live off the system anymore" and "tried to make it on their own." This decision prompted them to leave their Section 8 housing in Phillipsburg and move to Allentown to commence employment at Amazon.
On January 8, 2014, the caseworker contacted the Section 8 Housing program in Phillipsburg to determine the family's status, only to learn they were ineligible because defendants failed to follow up with the necessary documentation in August 2013, and did not challenge this determination by the appeal deadline. These failures rendered them ineligible to receive benefits for three years. After receiving this information, the Division executed an emergency removal of the children due to defendants' inability to provide basic needs such as food and shelter for them. At that time, it was learned that the boys were behind on their immunizations. Alice was given a flu shot, the children were all updated on their immunizations, and then brought to Division-approved foster homes.
On January 10, 2014, the Division filed a complaint alleging the children were abused or neglected by defendants and seeking custody of the children. On that same date, the court continued custody of the children with the Division; appointed a law guardian; and directed the Division to continue to provide assistance in locating a shelter for the family. On January 29, 2014, the court ordered legal and physical custody of the children to remain with the Division, and granted defendants two hours of unsupervised visitation with the children each week.
The court conducted a fact-finding hearing on April 29 and 30, 2014. Division caseworker Emil Ahmed testified about the Division's history with the family as discussed above, and the Division introduced relevant documents, including the eviction and Section 8 letters.
Erica testified on her own behalf that while the family was living in Phillipsburg she earned $9.20 per hour working about twenty-five hours per week at Walmart. Prior to that, she worked approximately the same number of hours at Burger King, where she earned $7.25 per hour. During this period, they paid $114 per month in rent, with the balance subsidized by Section 8 housing assistance. Before receiving Section 8 benefits, defendants had lived in the projects in Phillipsburg. Also, the family has received food stamps since the children were born. Erica testified that, even when defendants were receiving these welfare benefits, they still had difficulty paying the family's bills.
According to Erica, she and Conor decided to move the family to Allentown because they secured full-time jobs at Amazon's Breinigsville, Pennsylvania warehouse facility, which initially paid $10 per hour and then increased to $11.50 per hour. She explained that they "wanted to be off the system," by which she meant, "[w]e didn't want to have [] food stamps or anything. We wanted to do it ourself." As a result, defendants opted not to pursue the continuation of their Section 8 benefits.
The job with Amazon began at the end of August 2013, and Erica continued working there until she was laid off on December 9, 2013. Erica testified that Conor worked there two weeks before being laid off because of his criminal background. Consequently, defendants were no longer able to afford the $675 per month rent plus utilities at the new Allentown apartment. On November 25, 2013, they returned to Phillipsburg, and initially stayed with Erica's sister Christine while they searched for new housing. They attempted to again get food stamps, but were told they were ineligible until they were back in New Jersey for six months. They also tried to enroll Alice in school, but were unsuccessful because the school required proof of residency, such as utility bills, which they could not provide.
Erica described the children's disorders of sex development, for which Alice had undergone multiple surgeries, Christopher minor surgery, and James faced future surgery. All three children were missing chromosome 15, which affected their immune system and led them to "get sick a lot." This also resulted in Alice's frequent absences from school. Erica conceded, however, she often did not get home from work until 2:00 a.m. and "was really tired and didn't get up in the morning," nor did Conor, who stayed up all night with James when he was a baby.
In an oral decision immediately following counsel's summations, the judge stated "the main issue in this case is . . . the family's homelessness." She found "[t]here was no evidence . . . or [] testimony presented as to why [] defendants could not comply with the requirements of the Section 8 Housing [Authority]" in July 2013, prior to their move to Allentown. The judge noted that defendants received a $600 overpayment in food stamps before they moved, and did not find credible Erica's testimony that she believed she was entitled to receive it. The judge determined that by November 2013, defendants fell behind on their Allentown rental payments "despite the considerable amount of income that was coming into the home, plus a month's worth, in September, of food stamps." The judge also criticized defendants for using a $7000 income tax refund they received in 2013 to purchase a car for $2000, to buy clothing and furnishings for the children, and to set aside $1000 of it to pay Conor's $40 biweekly child support obligation.
Ultimately, the judge found "the facts in [L.W.] are completely distinguishable from the facts in this case." The judge elaborated:
So, it was beyond poor planning. It was [] defendants' deliberate and purposeful noncompliance with Section 8 Housing, as well as their receipt of food stamps . . . for a time period when they were not to receive it that then precluded them from getting the assistance that they then did need, for whatever reason, in January [] 2014. And why they were precluded from availing themselves [of] many services that normally would have been made available to them.
So, the [c]ourt does find that their actions do rise to the level of gross neglect. That this is beyond poor planning in which this family found themselves homeless [] in December [] 2013 and January [] [2014]. That they did have the financial capability, certainly in November [] 2013, to pay for the housing that they had at that point in time, in view of the income that came into the home, and in view of the tax refund that was receiv[ed], in view of their ability to plan as indicated by taking $1000 aside and not even making a lump sum payment on the child support, but making the biweekly payments.
And that it does rise to the level of willful and wanton neglect. And that, in
accordance with . . . [N. J.S.A.] 9:6-8.21(c)(4), that these children were in imminent danger; that their physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of the failure of their parents to exercise a minimum degree of care in supplying the children with adequate shelter, although financially able to do so or though offered financial or other reasonable means to do so.
Again, they were financially capable to do so for a period of time. And the reason why the offered financial assist[ance] or other social service assistance was not available to them was because of their simpl[e] noncompliance with those programs from the past.
In addition, I find that they also failed to provide the appropriate education[], specifically with regard to [Alice], with the understanding that the history of her absences and tardies and the fact that she had to repeat a grade, even though she advanced to first grade. That she was no longer in the Pennsylvania school system [] as of at least November 25, if not earlier, and that an appointment wasn't even made for her to be enrolled in the New Jersey school system until December 19, almost [] a month thereafter.
On May 21, 2015, the trial court entered an order terminating the child protection services litigation. This appeal followed.
II.
On appeal from the court's fact-finding order, Erica argues that the Division failed to prove she neglected her children by a preponderance of the evidence. In a similar vein, Conor contends that there was insufficient evidence to support the finding that he was reckless or grossly negligent in failing to provide the children with adequate shelter, medical care, or education, and that the children were not at substantial risk of harm or facing imminent danger.
We begin with a review of the applicable legal principles that guide our analysis. We defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). Special deference is accorded to the Family Part's expertise. Id. at 343; Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).
An abused or neglected child is defined as:
[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[.]
[N. J.S.A. 9:6-8.21(c)(4).]
Here, the finding of abuse and neglect centers on defendants' purported "failure . . . to exercise a minimum degree of care," in supplying the children with adequate shelter and education. Our Supreme Court has held that:
The phrase "minimum degree of care" denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
[N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999)).]
In turn, "'willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. 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.'" Id. at 306 (citations omitted) (quoting G.S., supra, 157 N.J. at 179). "[W]here a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk." Id. at 307.
In L.W., supra, 435 N.J. Super. at 191, we reversed a trial court's finding that L.W. neglected her two young children by failing to provide housing. In that case, as here, L.W. had been the subject of several prior referrals to the Division. Id. at 191-93. The proofs at the fact-finding hearing established that L.W. had moved to Georgia with her fiancé, but then returned to New Jersey. L.W. testified that she moved to a shelter and then took the children to live with her fiancé in his transitional housing in a Newark hotel. She also unsuccessfully sought employment and welfare benefits. After exploring all options, and unable to locate housing, she contacted the Division to seek help for the children so they would not be living "out on the street." Id. at 192-93. The Division caseworker noted that the children were clean, well-fed, and well-clothed. Id. at 192.
The trial court "found that [L.W.] did not have housing for her children due to her 'unbelievably poor planning.'" Id. at 193. The judge also "criticized L.W. for following her fiancé in spite of the effect on her children," and also found her "to be irresponsible for leaving permanent housing in Georgia to come to New Jersey without the means to return." Ibid.
In reversing, we noted "[i]t is well-settled that poverty alone is not a basis for a finding of abuse or neglect." Id. at 195 (citing Doe v. G.D., 146 N.J. Super. 419, 430-31 (App. Div. 1976), aff'd sub nom., 74 N.J. 196 (1977). We concluded:
[L.W.'s] poor planning is at least in part a side-effect of poverty. She sought housing through government agencies. She sought employment to no avail. Like many people, she formed a bond with her fiancé and tied her family welfare to his ability to provide housing. Ultimately, he was unable to provide housing for the children, so [L.W.] did what was in their best interest by coming to the Division for help instead of subjecting her children to further homelessness. We agree with the first judge who reviewed this matter that by seeking help from the Division, [L.W.] "did the responsible thing." The Division, as a child welfare agency, has a primary mission to help families stay together and to assist parents to raise safe and healthy children. See N.J.S.A. 30:4C-11.3 (citing a general policy to reunify families absent imminent threat to a child's safety).
Although there was insufficient evidence to sustain a finding of neglect under Title Nine, the Division may still provide services to [L.W.] and her family with her consent
pursuant to N.J.S.A. 30:4C-11, or may seek a court order to provide services in the best interest of the children pursuant to N.J.S.A. 30:4C-12. See N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 15 (2013) (stating that the Legislature intended N.J.S.A. 30:4C-12 to authorize the court to "award care, supervision, and even custody" to the Division "when children need services and a parent cannot provide that help for no fault-based reason"), cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013).
It is important that impoverished, homeless parents feel free to call on the Division in times of need, without fear of being found neglectful for "poor planning." . . . For the many people who live on or over the edge of homelessness in New Jersey, the Division may be their last resort; it provides a way to find safe housing for their young children, even at the cost of the parent's temporary separation from those children. Such a parental sacrifice to promote the welfare of their children should be encouraged.
[Id. at 196-97.]
The parallels between L.W. and the present case are striking, and the principles we espoused there are no less applicable here. In the present case, the Division received several referrals regarding the family, and each allegation of abuse and neglect was investigated and determined to be unfounded. It is undisputed that at all times the family lived on the brink of poverty. Defendants first lived in the projects in Phillipsburg before moving upon securing Section 8 housing. While residing in Phillipsburg, Erica was only able to obtain low-paying, part-time jobs at Burger King and Walmart. Similarly, Conor worked for a time at McDonald's, but his criminal conviction prevented him from obtaining more gainful employment. Like many low-income families, defendants found the cost of daycare prohibitive, and Conor assumed the role of caretaker for the three young children while Erica worked.
The evidence is undisputed that at the time defendants moved to Allentown to commence working full-time jobs with Amazon, they had been in Section 8 housing in Phillipsburg for four years and had been receiving food stamps and TANF benefits since Alice was born. Indeed, the Law Guardian's brief "acknowledges that this family lived below the poverty line for many years - they were receiving food stamps, rental assistance and vouchers to help pay the utilities since their oldest child was born." Seeing no end to this vicious cycle of subsistence living, defendants chose to terminate their affiliation with Section 8 and cease their reliance on food stamps and other forms of public assistance and "tried to make it on their own." We are loathe to characterize this decision as anything other than laudable. The full-time jobs both defendants searched for and obtained with Amazon provided them with earnings that far surpassed those they had in Phillipsburg. Certainly, defendants' decision to take these higher-paying jobs was a reasonable step in attempting to break away from the cycle of dependence that previously ensnared them.
Unfortunately, in retrospect, defendants' decision to terminate their reliance on public assistance proved detrimental after Conor's employment with Amazon was quickly rescinded and Erica was laid off in early December, 2013, apparently through no fault of her own. However, hindsight's twenty-twenty vision should not serve to distort a parent's reasonable judgment at the time. The record simply does not show that defendants acted with gross or wanton negligence, knowing that injury was likely, or recklessly disregarding that possibility. G.S., supra, 157 N.J. at 178.
Moreover, the record does not contain any evidence of a time or instance when the children were at a substantial risk of harm. As in L.W., here the Division caseworker invariably observed that the children were well-cared for, clean, and properly nourished. Nor were there any findings of drug or alcohol abuse or domestic violence on the part of the parents that exposed any of these children to imminent danger or a substantial risk of harm. Absent proof that defendants' actions placed the children in imminent danger of being impaired physically, mentally, or emotionally, N.J.S.A. 9:6-8.21(c), we are constrained to conclude the court's finding cannot be sustained, even accepting the Family Part's findings of fact and credibility determinations, because the record only demonstrated some potential for harm.
As in L.W., defendants acted responsibly in contacting the Division in December 2013, when the family was at risk of becoming homeless. As we noted in L.W., a finding that a parent has not abused or neglected a child, which requires a dismissal of the Title Nine action, N.J.S.A. 9:6-8.50(c), does not prevent the Division from protecting a child in need of services to ensure his or her safety and welfare. L.W., supra, 435 N.J. Super. at 196; see also N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 30-34 (2013). Here, while we agree that the Division's initial actions were proper, it should have proceeded under Title 30 in its efforts to protect the children and provide services to the parents.
We agree with the trial court that Alice's frequent absences from school present a cause for concern. However, Alice's absences during her initial year of kindergarten largely came when she was under six years of age and thus not subject to compulsory education requirements. N.J.S.A. 18A:38-25. While certainly the following year there were several unexcused absences, Alice's absence between November 25, 2013 and December 19, 2013, coincided with the period when defendants were attempting to establish proof of residency, which they were informed by school officials was a prerequisite for Alice's enrollment. Indeed, in its brief the Division concedes that "the issues of educational and medical neglect, standing alone, may not support a finding of neglect." In any event, the record confirms that defendants are now well aware of their obligation to ensure the children's educational needs are met, and the consequences that may well befall them should they fail to honor that obligation.
In sum, the absence of substantial evidence of abuse or neglect requires us to vacate the April 30, 2014 fact-finding order. Additionally, we direct the Division to remove defendants' names from the Central Registry maintain pursuant to N.J.S.A. 9:6-8.11, in relation to the events that were the subject of that order.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION